Kant S.K. Yeoh t/a Major Mercantile Co v. New Zealand Insurance Co Ltd
Read the full judgment text of CACV 37/1969 on BabelCite. This Court of Appeal judgment.
1. This was an appeal against the judgment of Mr. Justice Blair-Kerr dismissing a claim for indemnity under a policy of fire insurance. We dismissed the appeal and now give our reasons for so doing.
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CACV000037/1969 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO.37 OF 1969 -----------------
----------------- Coram: Mills-Owens, Huggins and McMullin, JJ. Date of Judgment: ----------------- JUDGMENT ----------------- 1. This was an appeal against the judgment of Mr. Justice Blair-Kerr dismissing a claim for indemnity under a policy of fire insurance. We dismissed the appeal and now give our reasons for so doing. 2. The appellant carried on business in a flatted factory building. He occupied the whole of one floor, consisting of two flats separated by a landing and lifts. In one flat he manufactured woollen goods and in the other what have been described as hair products, more particularly wigs. In the wig section were three offices, one used by the appellant himself, one used as an accounts office and one as a reception room for buyers. The appellant negotiated with the respondents two policies of insurance. The first, which was the one under which the action was brought, was a straight fire insurance of the contents of the factory. The second was an insurance against loss of profits in the event of fire. 3. On the 2nd of September 1967 a fire occurred in the woollen goods section and considerable damage was done both by the fire and by the water used in extinguishing the blaze. On 12th September the appellant made a claim under the first mentioned policy, but this was subsequently rejected by the respondents. When the appellant sued upon the policy the respondents contested the action on two main grounds: it was denied that the appellant had lost the property said to have been destroyed and, further, that in any event the alleged values had been so grossly inflated that the claim amounted to fraud. 4. Among the property in respect of which the appellant sought indemnity were three very large items. One of these consisted of embroidered cardigans and another of nylon eye-lashes. We were told that the learned trial judge found that the claim was fraudulent and that one of his reasons for reaching that conclusion was that he found that the cardigans included in the first large item had been exported before the fire. Counsel submitted that the appellant's oral testimony that the cardigans claimed for were in the factory at the time of the fire was supported by the documentary evidence in that, although a quantity of cardigans similar to that in the claim had been exported shortly before the fire, it was clear that twice that quantity had been manufactured. In the event this argument was not pursued when counsel conceded that the documents did not show that any more than twice the quantity exported had been manufactured. That left only the appellant's oral testimony, which was clearly rejected by the learned judge. The contention being that the finding was against the weight of the evidence it necessarily follows that that ground of appeal fails. 5. The next point taken on the appeal related to a complaint about the respondents' conduct after the fire. There were two matters of complaint. First it was said that the respondents took away the only books salved (and without preparing any inventory of such books) so that the appellant was deprived of the opportunity to prove his loss by documentary evidence. Secondly it was said that they sold the salved property without taking an inventory and misled the appellant into destroying the remains of the burnt property. As to the documents counsel argued thus: under the policy the respondents had the right to enter into possession of the premises and/or the contents and to require production of the books: by taking possession of the books they made it impossible for the appellant to produce them in evidence. Moreover, there was a suggestion that a relevant ledger was among the books taken by the respondents but that this particular book had, whether accidentally or deliberately, been mislaid. Reliance was placed on the decision in Yorkshire Insurance Company Limited v. Graine, 1922 2 Appeal Cases 541. There the insurers sought to rely upon a condition that the assured was within a specified time to deliver detailed particulars of any loss or damage covered by the policy. Before the expiration of that specified time the insurers exeroised their right under another provision of the policy to take possession of the premises and of any goods therein at the date of the fire. The assured delivered the detailed particulars after the expiration of the period specified. What in effect the insurers were saying was that no proper claim had been lodged. The Judicial Committee of the Privy Council held that on the proper construction of the policy that argument was not open to them for the power to take possession existed only "so long as the claim is not adjusted". That pre-supposed that a valid claim against the company had been made and that all that remained to be done was to adjust the amount of it. Similarly in the present case, it was said, the respondents could not be heard to complain of the absence of documentary evidence when that absence was due to their own act. In our view the case cited is of no assistance to the appellant because the terms of his policy are different; indeed, we suspect that it was drafted with this decision of the Privy Council in mind. Moreover, the respondents never sought to rely upon the condition in the policy that the appellant should produce his books; what they said was that there was no documentary evidence to support the claim and they suggested that the absence of such evidence was a weighty factor when it came to the assessment of the oral testimony. They maintained that the oral testimony was inherently suspect for the appellant said that before the fire he had taken all the books from the accounts office in the wigs section through into the woollen goods section, where he was making them up: most of them were completely destroyed in the fire although, as we have seen, a limited number were salved. The respondents asked the judge to say that it was improbable that anyone would choose to make up his books in a room where noisy machines were installed rather than in the accounts office in the wigs section. The grounds of appeal to which this argument related were, as we understand it, those which alleged that the judge failed to give due weight to the evidence of the removal of the appellant's books and the failure to supply an inventory of the books thus taken. We saw no reason to believe the judge had failed to give this matter due weight. Nor did we think that the position was altered by the fact that the respondents, whilst being prepared to allow inspection, declined to return the books even after they repudiated liability under the policy on 7th November 1967: at most that gave the appellants a right of action in detinue. 6. As to the destruction of the remains of the burnt property the suggestion was, again, that the respondents misled the appellant into believing that they would not require him to produce physical evidence of his loss. The matter arose in this way. On 8th September the respondents, having regard to their possible liability under the loss of profits policy, asked the appellant to go ahead with clearance of the debris in the woollen goods section so that production might be resumed; They gave him what has been described as "the five-point memorandum", which was in these terms:
As a result of this the appellant himself employed someone to clear out the woollen goods section and it was suggested that this clearance dispersed the only physical evidence of what had been burnt. In particular it was suggested that the ash or the other remains of the eye-lashes alleged to have been burnt was swept away. This was of special importance because the respondents made much at the trial of the fact that no traces of the eye-lashes were found. They took this line because there was a suggestion that shortly after the fire the appellant mentioned a negligible quantity of these goods as having been on the premises, whereas when his claim was lodged it included an item for a quantity valued at $197,932.02. While there may well have been room for misunderstanding as to what the appellant did in fact say that would not invalidate any comment upon the absence of any remains of the large quantity claimed for. The evidence on this matter is referred to in greater detail below. The case for the respondents at the trial was that there were in fact no eyelashes at all involved in the fire or that the evidence by the plaintiff that he had a large quantity whereas he had previously mentioned a smaller quantity was an indication of the falsity of his claim. Counsel for the appellant was driven by his argument to contend that by, as he said, directing the appellant to disperse the debris they represented that they would not require proof of the extent of the appellant's loss. Taken to its logical conclusion that meant that by giving such a "direction", they gave the appellant carte blanche to remove the debris but in fact we think that is putting the matter far too high. The evidence of the appellant was recorded thus:-
In our view it would be wrong to construe that evidence, assuming it to have been believed, as a representation that the respondents would not require clear proof of the appellant's loss whatever items and values he might see fit to include in his claim. Similarly, in our view the sale by the respondents of the salved goods without supplying an inventory could not bar them from requiring proof of the appellant's loss. The evidence which was read to us showed very clearly that the appellant had ample opportunity to inspect the premises and contents including the salved books and accounts after the fire but chose to do absolutely nothing either by himself or by his agents. 7. That brings us to an objection by counsel for the respondents that some of the arguments addressed to us raised matters which lay outside the scope of the appeal. Counsel for the appellant first approached the lack of physical evidence, including the absence of books, on the basis of waiver. When we pointed out that waiver presupposed the existence of some right the benefit of which could be waived he shifted his ground to estoppel. The answer to any argument based on estoppel is two-fold. First, not only was estoppel not pleaded but no reference to estoppel appears in the grounds of appeal. The truth is that the notice of appeal dealt with the matter in the only possible way in view of the course the proceedings had taken. It had never been alleged at the trial that any such representation as that alleged before us had been made by the respondents. Secondly, as must be apparent in what we have already said we think that such an allegation would have been doomed to failure. The notice of appeal was drafted on the basis that the judge had failed to give due weight to the reasons for the absence of physical evidence of the loss incurred and that partly in consequence of this the judgment was against the weight of the evidence. It should perhaps be said again that upon an appeal an attack on the basis of the attachment of insufficient weight, or too much weight, to evidence should be directed not to the judgment as a whole but to particular findings of fact upon which the judgment rests. Only three findings by the judge were expressly attacked in this case, namely that the appellant had not manufactured the goods included in each of the three large items of the claim. It is enough to say that we were not persuaded that the judge did fail to give due weight to the matters we have discussed or that the judge was not entitled to make the three findings attacked. 8. It was part of counsel's general attack upon the trial judge's approach to the plaintiff's claim, and the manner in which he dealt with the evidence adduced in support thereof, that the judge had found that the claim for $179,025.40 for 315 1/3 dozens crocheted woollen dresses, style 910 was fraudulent whereas no such fraud had been specifically pleaded. Counsel submitted that this finding on its own was sufficient to vitiate the judgment on the ground, presumably, that the judge should have permitted proof of such frauds only as the defendant company had seen fit to specify upon the pleadings. This argument overlooks the fact, which is admitted that it was for the plaintiff to prove his claim and every given particular of it. He did indeed put forward evidence purporting to show that woollen dresses of this style and to this quantity had been made. Principally, that was the evidence of SIU Leung-ming who said that he done this work and who produced certain vouchers to support his story. On pages 28 and 29 of the judgment the judge gives reasons for coming to the view that this evidence was false and it might be fair to add that he implied, though he did not expressly say so, that the vouchers were forgeries and the fruit of a fraudulent connivance between the plaintiff and his witness. But these views were clearly come to upon a consideration of the evidence as to whole including the cross-examination of SIU Leung-ming. The circumstances surrounding the calling of that witness were such that both counsel for the defendant company and the trial judge himself were, justifiably in our view, suspicious of fabrication. The fraud which was then suggested by counsel, and the existence of which was later accepted by the judge in his finding that SIU had never made any such dresses, was one the position of which arose adhoc in the course of the witness' evidence and which took its substance from the body of that evidence and which, even if it be regarded as an extension of the pleaded fraud, derived wholly from the manner in which the plaintiff had sought to prove this part of his claim. It could not have been specifically pleaded for it did not become a matter of suspicion until the witness had been called. But once this evidence had been given it was properly explored in cross-examination and it became necessary for the judge to form and express an opinion about it in the process of evaluating the worth of this part of the plaintiff's claim. It would be strange if the court were compelled to find that a defendant, who had pleaded fraud in respect of one of several claims of a plaintiff and who had put him to the proof of the others, must lose the benefit of a judgment given in his favour simply because the plaintiff's own evidence had provided wider grounds for suspicion than had existed at the time of the pleadings and because counsel had been thereby led, in cross-examination, to explore the possibility of a wider fraud. had fraudulently claimed for the loss of goods which had never existed. It may be some indication that counsel regarded this general misdirection on the evidence as being the chief ground of his attack upon the factual basis of the judgment that he suggested, at the beginning of his argument, that the entire allegation of fraud, as particularised in para.5(1) of the defence, was possibly based upon a misunderstanding by the witness Wood of what the plaintiff had said concerning the quantity of nylon eyelashes which he claimed had been destroyed by the fire. The burden of his complaint on this score was that the trial judge had not only misunderstood the evidence on the point but had compounded the difficulty by introducing into the examination of that witness terms which had not been used either by the plaintiff or by Wood and that he had relied upon those terms in resolving the question in his judgment. Clearly there is some ambiguity in the record of the evidence on this point but we think that a close examination of it will reveal that the judge's understanding of what the witness Wood said is correct. 9. Wood was an assurance loss adjuster who was called in by the original assessors Messrs. Paulsen and Bayes Davy to examine the factory and its contents on behalf of the defendant company. He said that he interviewed Mr. Yiu, the plaintiff, on the 8th of September, i.e. 6 days after the fire, and was then for the first time informed that a quantity of completed nylon eyelashes had been among the goods destroyed. The judge's note of Wood's evidence at this point is as follows (page 425):-
He had also been told that the eyelashes were under a quantity of human hair, which was not in fact destroyed or damaged by the fire. After this, according to Wood, he and Ozorio, who was a surveyor and loss adjuster, after further searching the factory premises on the 13th September interviewed the plaintiff once more. The note of this conversation includes the following passages:-
The witness went on to say that on the 15th of September, after the plaintiff had presented his formal claim (Exh.A5) he questioned the plaintiff again. The note reads as follows (page 434):-
Dealing with all this evidence the learned trial judge said (page 493):-
The significant words have been underlined in these passages. There are several possible explanations of these obscurities but perhaps the most likely is that: (a) the judge's note: "11 dozen goods" (at page 425 of the typescript) should read "11 dozen gross"; and (b) where the note records Wood as saying: "previously he had said 11 dozen pairs" he had intended to say 11 dozen gross pairs" or else he had said that but, by mistake, it was recorded as "11 dozen pairs". This would seem to follow from the fact firstly, that: "11 dozen goods" or "11 dozen pairs" would be a quantity so minute that Wood could never have thought it worth his while to check upon the existence of them and, secondly, that the plaintiff's suggestion that Wood had misunderstood what he had said is evidently based upon the similarity in sound of the phrases "11 dozen gross" and "11 thousand gross." That this is so is borne out by the fact that Wood, in disposing of this explanation, points out that the claim as presented in writing is for 11 hundred - not 11 thousand. Clearly, in this passage he was allowing for the possibility that the plaintiff might have said "11 thousand" and that he might have heard it as "11 dozen" but was disposing of the possibility by referring to the fact that the written claim was for something over 11 hundred gross. The whole contest at this point was in relation to the words "dozen" and "thousand" and the word "gross", if indeed it was not spoken (whether in the interview itself or in Wood's evidence thereof), would seem to have been tacitly understood as the subject qualified by the disputed adjectival phrase. If the plaintiff (as Wood avers) did say: "you must have misunderstood and you took it to mean 11 dozen but I said 11,000" it is patent that he must have meant that he had said 11,000 gross pairs since 11,000 pairs would be less than sufficient to fill one carton. (11 dozen gross or 17,568 pairs being, on the evidence, enough to fill slightly more than one carton). What all this amounts to on any intelligible reading of the evidence is that the trial judge was justified in coming to the conclusion that Wood had confronted the plaintiff with the difference between the 1173 gross claimed in Exh. A5 and a figure of 11 dozen gross as the figure mentioned to him by the plaintiff on the 8th September. We cannot agree that it was the judge who gratuitously introduced the word "gross" into the evidence in order to resolve the difficulties of his record. That word appears in Exh. A5 and the evidence on the point can scarcely be understood from the standpoint of either of the opposing contentions unless it is read into what the plaintiff and Wood were discussing. Finally it is to be noted that Mr. Swaine, counsel for the plaintiff at the trial, cross-examined Wood on the basis that Wood's evidence in chief had been that on the 8th of September the plaintiff mentioned 11 dozen gross eyelashes (p.439 of the typescript). 10. The remaining complaints concerning the evidence of these 4 witnesses may be rapidly dealt with. It is true that Ozorio said he first heard about the claim for eyelashes on the 13th of September while Wood said that Ozorio helped him search for them on the 8th after the plaintiff mentioned this item of claim to him; it is true that they differed in their estimate of the degree of inundation by water from the fire hoses; it is true that Ozorio purported to identify the book Exh. Las the 1967 stock book which he says he saw at the premises, whereas, at the trial, according to the plaintiff's evidence, which was, on this point, accepted by the judge, that book was not on the premises at the time of the fire but was in the hands of Messrs. Cheng & Co. the authorized Accountants, but it is clear that Ozorio's evidence on this point was diluted by later reservations when questioned further on the matter; it is true that Wood said that he told the plaintiff on the 13th of September that he could not find any books of account whereas he also admitted that Ozrio had told him, about the 9th of September, that he, Ozorio, had found 3 ledgers and miscellaneous records which he had moved from the hair section into the wig section of the premises, but Wood went on to say that Ozorio showed him what he had found and that it was of no use in relation to what they were looking for. The tenuous nature of the criticisms directed against the evidence of these two witnesses may be seen in counsel's attempt to enlist the aid of a logical dilemma based on a premise which the plaintiff himself did not accept. If, he said, Ozorio was right in saying that he had seen Exh. L at the factory premises and if, as Wood admitted, Ozorio had brought all his findings to Wood's notice then Wood could not honestly have said that none of the records shown to him were records of the sort for which he was looking since, as both sides agree, Exh. L purports to be a stock book and does refer to stock transactions involving the disputed items in 1967. But the fact is that the plaintiff did not allege that Exh. L was in the premises at the time of the fire. The judge dealt with Ozorio's evidence in this way:-
In a passage following closely upon this he said:-
Nothing which has been put before us offers the slightest ground for differing from that opinion. It is to be noted that counsel for the appellant, on being pressed by the court at the hearing of the appeal, was disposed to put his contentions on Wood's evidence so far as to say that Wood had perjured himself in the service of the defendant company's interests and he drew a distinction between this witness and Ozorio who, he said, unlike Wood, was not biassed in favour of the defendant. Yet Ozorio, no less than Wood, was engaged by the defendant company to survey and assess the fire damage and he was positive and unshaken in his testimony that Lam, the foreman, had told Wood and himself that there had been no eyelashes on the premises and that while refusing to give a written statement, he could give verbal evidence to that effect. If Ozorio is accepted, in contradistinction to Wood, as an honest witness that testimony on its own would surely have justified the finding of fraud. 11. So far as Ng Ka Ping and Yung Sze Wing are concerned, Mr. Cheung made an elaborate analysis of their evidence to show that they were false witnesses who had been called by the defendant company to destroy the evidence of Yeung Chun Wah, the witness who had said that he had manufactured eyelashes for the plaintiff. Yung was the claims supervisor for the defendant company and he said that he had enlisted the services of Ng, who is employed by a commercial inquiry agency, to help him investigate the story of a telephone caller who had said that he could give evidence concerning the plaintiff's claim. The two witnesses described how they met this person at a cafe - and what transpired thereafter. The general purport of their evidence was that this was the witness Yeung and that he had said that he could supply them with proof that the evidence he was going to give in support of the plaintiff's claim was false and that a sum of money was mentioned as a reward for his doing so. Clearly this was evidence of the utmost significance in the case and Mr. Cheung was naturally concerned to demonstrate that it was wholly untrustworthy. At our request he reduced his criticisms to a list of eight discrepancies as between the evidence of Ng and that of Yung which he regarded as so serious in character as not to be explicable on the basis of faulty memory or imprecise observation. These dealt with such matters as the date and time when Ng and Yung met to arrange an appointment with the mysterious caller; the date arranged for this meeting; who had first raised the question of payment for Yeung's assistance; the route taken by the three of them from the cafe where they met to the Gun Bar at the Hong Kong Hotel where the discussion took place; how they came to go there rather than to another cafe which had previously been mentioned; what drinks were consumed there and so forth. It seems to us unnecessary to consider these matters in detail. Neither separately nor in sum do they conduce even to an unfavourable impression of the witnesses much less to the fundamental exposure of perjury which counsel asked us to find in them. Set over against the fact that Yung's employer saw fit to enlist the need of an independent detective agency to help check on the story of Yeung; that Yung committed his recollection of what happened at the meeting to paper in an affidavit sworn a few days after the event; that the existence of the witness, Yeung, was never referred to in the opening address of counsel, who dealt at some length with the question of the eyelashes; and leaving aside the highly important factor of the impression made by the witness on the judge, the record itself would seem to speak against the defendant on these matters. When one considers the other suspicious factors to which the judge attended and more particularly the total absence of fire debris from 10 substantial cartons alleged to have been under or within 10 feet of a pile of human hair which was left untouched by the fire we can only say that the trial judge was justified in expressing his opinion of the evidence of Ng and Yung and Yeung in the following terms:-
Counsel in general undertake a formidable task when it is sought to persuade an appellate court that the trial judge, who has seen and heard the witnesses and formed and expressed an estimate of their worth, has fallen into fundamental error in his opinion of them, or that he has wholly misconstrued their evidence. Oversight of important discrepancies or misdirection on fact, or bias towards witnesses must be clear indeed before an appellate court will feel itself obliged to substitute its own opinion for that of the trial judge. But the present case is not even one of those in which we would feel moved to say that, while not disposed to interfere, we might, in the judge's place, have formed a different opinion on the evidence. The extensive review of the evidence, so far from drawing us to counsel's opinion of the defendant's witnesses, left us with no doubt that the learned trial judge was right in his estimate of them and that, by contrast, the grounds which he gave for rejecting the testimony of the plaintiff and his witnesses, in particular of Lam, the foreman, and of Siu Leung Ming who said he had embroidered the cardigans; and of Yung Chun Wah who said he made the eyelashes, were not only justified in the circumstances disclosed upon the record but that the suspicion thereby raised of a calculated and extensive fraud may go some way towards explaining the many interventions by the judge in both examination-in-chief and cross-examination which interventions were made a separate ground of complaint in the particulars of the ground of appeal. 12. There were numerous other matters of complaint set out in the notice of appeal but they were in the form of particulars of the three "grounds of appeal". Although no point was taken by counsel for the respondents we think that objection might well have been taken not only to the ground that "the judgment was against the weight of evidence" but also to both the other grounds, that "the judge erred in fact and in law in giving judgment for the defendant" and that "the judge misdirected himself on the evidence". Neither of these other grounds was in fact argued but some of the matters particularised under them were referred to in the course of the argument. One related to interruptions by the judge in the course of the trial, another to a suggestion which counsel for the respondents was allowed to make during cross-examination of the appellant to the effect that the fire had been caused by the wilful act of the appellant himself, that not having pleaded, and another to an allegation that the judge misdirected himself as to the burden and standard of proof of fraud. As these matters were not pursued we refrain from expressing any view upon them. 13. The appeal is dismissed with costs to the respondent company. Representation: Oswald Cheung, Q.C. & K.H. Woo (Gunston & Chow) for appellant A. Zimmern (Deacons) for respondent |