Wong Kot Ki v. Fantastic State Ltd

CAMP 237/2025, [2026] HKCA 1910

On intended Appeal From [2025] HKDC 345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 237 OF 2025

(ON AN INTENDED APPEAL FROM DCCJ NO 4604 OF 2015)

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BETWEEN

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JUDGMENT

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Hon Ng J (giving the Judgment of the court):

A. Introduction

1.This is the plaintiff’s renewed application by summons (“Summons”) dated 5 December 2025 for leave to appeal against the judgment (“Judgment”) of Deputy District Judge Louise Chan (“Judge”) dated 10 March 2025[1]. In the Draft Notice of Appeal attached to the Summons, the plaintiff seeks the following (“Order Sought”):

(1) In addition to paying the plaintiff for the costs of labour for plastering the New Fence Wall in the sum of HK$66,263.23, the defendant do pay the plaintiff the sum of HK$247,527.50 being the costs of rectifying the absence of a one-foot foundation in the New Fence Wall.

(2) The defendant do pay the plaintiff the sum of HK$10,946.11 being the costs of replacing the tiles purchased by the plaintiff.

2.The critical issue in this case concerns the terms of an oral agreement (“Agreement”) between the parties over the demolition of a fence wall (“Old Fence Wall”) and the construction of a fence wall (“New Fence Wall”). In the Judgment, the Judge accepted part of the plaintiff’s case and part of the defendant’s case. The Judge ordered the defendant to pay damages for breach of the Agreement only in the sum of HK$66,263.23 for the costs of labour for plastering the New Fence Wall with tiles.

3.On 7 April 2025, the plaintiff issued a summons to seek leave to appeal against the Judgment before the Judge. On 24 November 2025, the Judge handed down a decision[2] (“Leave Decision”), refusing the plaintiff’s application for leave to appeal.

4.After reviewing the parties’ respective written submissions, we are of the view that it is proper to dispose of this application on paper in accordance with Order 59, rule 2A(5) of the Rules of the High Court (Cap 4A) (“RHC”).

B. Background and the parties’ case

5.The factual background has been set out comprehensively in the Judgment and need not be repeated in full. For present purposes, we will highlight the following.

6.In November 2001, the plaintiff became the registered owner of a plot of land and a house erected thereon in Tai Po Fung Yuen Village (“plaintiff’s Site”). There was a fence wall built for demarcating the plaintiff’s Site from neighbouring plots ie the Old Fence Wall. The plaintiff’s Site was under construction from around March 2009 for his new village house (“plaintiff’s House”). The construction finished around late 2009 or early 2010 followed by another year-long renovation.

7.The defendant was a developer and acquired a piece of land next to the plaintiff’s House (“defendant’s Site”) in the 2000s. It commenced a residential development known as Mont Vert in or around 2007. The defendant’s case was that in 2007, it was informed by the Lands Department that the Old Fence Wall illegally encroached on the defendant’s Site.

8.Both parties agreed that in 2008, the defendant’s manager, Mr Alex Leung (“Leung”) approached the plaintiff to discuss the issue of illegal encroachment and Leung suggested to the plaintiff that the defendant would, at its own expense, demolish the Old Fence Wall and erect a new fence ie the New Fence Wall on the plaintiff’s Site. No agreement was reached in 2008.

9.In the Amended Statement of Claim, it was pleaded:

(1) at para 4, in about May or June 2009 (“Mid-2009 Meeting”), representatives of the defendant including Leung and Mr Anthony Chow (“Chow”)[3] met with the plaintiff at the plaintiff’s Site during which Leung represented that the defendant would at its own costs re-erect the Old Fence Wall to its original state and condition after its demolition. Both the plaintiff and Leung agreed that this was a pre-condition of the plaintiff’s agreement to demolish the Old Fence Wall;

(2) at para 5(a), on the faith of the said representation, the plaintiff orally consented to the defendant’s request, and accepted the defendant’s offer, to demolish the Old Fence Wall and to re-erect the said fence wall to its original state and condition at the costs of the defendant (“plaintiff’s Agreement”);

(3) at paras 6 and 7, in or about December 2009, the plaintiff met with representatives of the defendant including Leung and Chow. During the said meeting, the plaintiff and Chow discussed the details of implementing the plaintiff’s Agreement including a one-foot foundation below ground and s hall be finished with tiles (紙皮石), being the material used for the Old Fence Wall;

(4) at para 10, the New Fence Wall was defective and not in accordance with the plaintiff’s Agreement including inter alia the absence of a foundation and the New Fence Wall not finished with tiles;

(5) at para 15, the defendant was in breach of the plaintiff’s Agreement and suffered loss and damage including inter alia (i) the costs of plastering the New Fence Wall with tiles, (ii) the costs of rectifying the absence of a foundation, and (iii) the costs of replacing the tiles the plaintiff bought in around May to June 2010 which had since broken down and / or decolored.

10.Pausing here, it can be seen that the plaintiff’s Agreement as pleaded in para 5(a) did not include a foundation for the New Fence Wall. While it was pleaded that in a meeting in or about December 2009, the plaintiff and Chow discussed the details of implementing the plaintiff’s Agreement including a one-foot foundation below ground, it was not pleaded that the discussion resulted in any further agreement between the parties. Further, in the Amended Defence, it was pleaded at para 8(c) that Chow did not represent the defendant in any capacity. This was not challenged by the plaintiff as such. In the Amended Reply, the plaintiff had only pleaded he had no knowledge of it and asserted that Chow, among others, held himself out as the defendant’s representative in entering into negotiation with him. No particulars were given as to how Chow held himself out as the defendant’s representative. As a matter of well-established law of agency, a person cannot hold himself out as an agent of the principal. Only the principal can.

11.In the Amended Defence, it was pleaded:

(1) at para 9(b), an oral agreement was reached between the plaintiff and Leung for the defendant on 30 December 2009 (“defendant’s Agreement”) whereby (i) the defendant agreed to demolish the Old Fence Wall and erect the New Fence Wall wholly within the plaintiff’s Site at the defendant’s costs, and (ii) tiles would be laid on the New Fence Wall by the plaintiff at his own costs with his own materials;

(2) at para 9(c), prior to the defendant’s Agreement, the plaintiff did not inform the defendant that there was a one-foot foundation underneath the Old Fence Wall and the alleged one-foot foundation could not be visible by the naked eye; hence, the defendant could not have agreed to build a foundation for the New Fence Wall;

(3) at para 9(d), at the time of the defendant’s Agreement, the plaintiff represented to the defendant that he would lay tiles on the New Fence Wall after he had finished constructing the plaintiff’s House;

(4) at para 9(f), demolition of the Old Fence Wall commenced in January 2010 and the New Fence Wall was completed in mid-2010; during the demolition of the Old Fence Wall, it was observed that it was built out of bricks and there was no one-foot foundation as alleged;

(5) at para 9(h), in April 2015, the plaintiff for the first time requested the defendant to finish the New Fence Wall with tiles which would be provided by the plaintiff himself; the defendant did not agree;

(6) at para 16, after construction of the New Fence Wall, the plaintiff did not complain about it after his inspection;

(7) at para 17, the New Fence Wall was not defective - it has not collapsed and remained standing to date; the defendant has built a layer of steel reinforcement bars and cement under the New Fence Wall.

12.By letter dated 16 March 2015, the plaintiff sent a letter to the defendant asking it to complete the unfinished construction works, which this court takes it to mean or at least include a foundation for the New Fence Wall, failing which the defendant should compensate him $100,000 so that he could hire someone to do so.

13.By letter dated 9 April 2015, the plaintiff’s solicitors, Messrs. Rene Hout & Co, sent a letter to the defendant. In para 4 of the letter, it was alleged the New Fence Wall was without foundation and was of poor quality and workmanship so that many cracks appeared. In para 6, the defendant was requested to rectify the damage to the wall at the defendant’s costs and expenses or pay the plaintiff $100,000 to enable him to engage his own contractors to make good the damage.

14.On 8 October 2015, the plaintiff issued the Writ of Summons in DCCJ 4604 of 2015.

C. The Judgment Below

15.This court shall set out below those findings by the Judge which are germane to the Orders sought.

16.Based on inferences drawn from the evidence, the Judge found the plaintiff and Leung reached an agreement in principle at the Mid-2009 Meeting, which became binding in December 2009 when the parties orally confirmed the date of commencement together with other details of the project. The term of their agreement was for the defendant to erect a new fence wall which would look the same as the Old Fence Wall.

17.The parties agreed the labour costs of the tiling work would be borne by the defendant while the plaintiff would source the tiles at his own costs.

18.Judging from the striking similarities between the Old and New Fence Walls, the Judge accepted the evidence of the plaintiff and found the parties did agree that the new fence wall would be re-erected to its original state.

19.The Judge found the parties never reached any agreement as to the foundation based on inter alia the following:

(1) The Old Fence Wall was built prior to the plaintiff acquiring the plaintiff’s Site, and there was no evidence showing his awareness of the foundation below ground until the collapse of the Old Fence Wall in July 2009.

(2) It was likely that Leung never inspected the Old Fence Wall in detail, but only surveyed it from afar, and thus had no knowledge of the foundation.

(3) The Judge accepted the steel bars could serve a similar purpose as a foundation.

(4) It was not in dispute that the plaintiff was present when workers were building the New Fence Wall. If a foundation was of such importance to the plaintiff, it was unrealistic that he would allow the bricklaying to commence without any foundation.

(5) It was unrealistic that the plaintiff did not raise any complaint to the defendant’s representatives, contractor or Leung about the absence of a foundation until 2015.

(6) The Judge accepted the defendant’s evidence that the plaintiff did not tell him there must be a foundation.

20.The Judge also rejected the plaintiff’s evidence that he bought a second batch of tiles or the second batch was ruined by prolonged exposure under the sun.

21.In the premises, the Judge only allowed the plaintiff’s claim for the costs of plastering the New Fence Wall with tiles, which was valued at HK$66,263.23.

D. Legal Principles

22.Under section 63(1) of the District Court Ordinance (“Ordinance”), leave is required to appeal against the Judgment to the Court of Appeal. Under section 63A(2) of the Ordinance, leave to appeal shall not be granted unless the court is satisfied that (i) the intended appeal has a reasonable prospect of success, or (ii) there is some other reason in the interests of justice why the appeal should be heard.

23.Leave to appeal is not lightly granted. The court must be satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard. Reasonable prospects of success involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”: SMSE v KL [2009] 4 HKLRD 125 at [17] per Le Pichon JA.

24.The principles governing an appeal against a trial judge’s findings of fact are well-established.

25.In Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at [42], Bokhary PJ held:

“42. Where the judgment turns on an issue of fact, the Court of Appeal must have regard to the nature of that issue of fact. And it must have regard to the advantages enjoyed by a trial judge who received the evidence on such an issue at first-hand, in other words, in whose presence the whole of the evidence unfolded in its living state. Such advantages can be, as Lord Shaw of Dunfermline put it in Clarke v. Edinburgh Tramways at p.36, “sometimes broad and sometimes subtle”. The question for the Court of Appeal is whether, even though it does not enjoy the advantages enjoyed by the trial judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong. The Court of Appeal should intervene if so satisfied. But if not so satisfied, the Court of Appeal should defer to the trial judge’s conclusion even if in some doubt as to its correctness.” (emphasis added)

26.Lau Chung Kei v Lau Miu Ting [2023] 1 HKLRD 443, which is an appeal against a judge’s ruling that an oral agreement existed, G Lam JA held that:

“34. Accordingly, in accordance with long-established principles, an appellate court will not hastily interfere with the trial judge’s assessment of witnesses’ testimony and other evidence, including whether the trial judge is satisfied with the testimony of a witness, and will not hastily overturn the trial judge’s findings of fact. To persuade an appellate court to overturn the trial judge’s finding of facts, the appellant must have sufficient grounds to prove that the decision is plainly wrong, including the trial judge ignoring crucial evidence, misinterpreting evidence, making a finding of facts that is not supported by the evidence, or making a finding that no judge in his or her rational judgment could have made. This is a rather high threshold, and the appellant is not entitled to assert that the decision was manifestly wrong simply because the judge did not accept his evidence or submission. See: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336; China Gold Finance Ltd v CIL Holdings Ltd (unreported) CACV 11/2015, judgment dated 27 November 2015; and Tsang Chun Duen (transliteration, 曾春段) v Manulife (International) Limited (unreported) CAMP 37/2017, judgment dated 7 December 2017.” (emphasis added)

27.In Yu Man Fung Alice v Chiau Sing Chi Stephen [2021] HKCA 1456 at [33] -[34], Kwan VP observed:

“33. The principles for the appeal court to disturb the findings of fact of the trial judge are well settled. Palpable errors, whether of law or of fact, must be identified, and they must be sufficiently material to undermine the conclusions of the trial judge. In the absence of material errors, an appeal court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified. What matters is whether the decision is one that no reasonable judge could have reached. That the judges in the appeal court may have reached a different conclusion is not a ground for intervention.

34. The principles for appellate intervention apply also to inferences of fact drawn from primary facts (unless the finding is based purely on inferences or otherwise has nothing to do with the witnesses’ demeanour or the trial judge’s having received the evidence at first hand), and findings of mixed fact and law, or an issue on which the judge had to come to a judgmental conclusion after taking a number of factors into account. The correct approach in reviewing such a conclusion is to treat the judge’s decision with utmost respect, and refrain from interference unless satisfied that it proceeded upon some erroneous principle or was plainly wrong. It is similar to an appeal against an exercise of discretion.” (emphasis added)

E. The plaintiff’s Draft Notice of Appeal

28.The plaintiff has advanced the following proposed grounds in his draft Notice of Appeal:

(1) In deciding that there was an agreement between the plaintiff and the defendant that the New Fence Wall be erected to the original state and condition of the Old Fence Wall at the defendant’s own costs which became binding in December 2009, the Judge erred and was plainly wrong in finding that their agreement did not include a one-foot foundation below ground for the New Fence Wall. (“Ground 1”)

(2) The Judge erred in law and in principle in interpreting the Agreement in that:

(a) Given (i) there was mutual understanding between the parties that the New Fence Wall would be re-erected to its original state and condition for the plaintiff and also given (ii) the parties’ knowledge of the foundation at the time of the Agreement, the Judge should have interpreted the Agreement to include a foundation for the New Fence Wall.

(b) The Judge erred in interpretating “原樣” and holding the phrase to bear the same meaning as “原貌”, “同原本一樣”, “照樣” and held they should all be understood as “the original look” or “to look like the original one”. The said generalisation is plainly wrong and contrary to the natural meaning of the phrase, and “原樣” should refer to cover and include other aspects of the original Old Fence Wall: dimensions, structure, state and condition, tiling, openings, and existence of the foundation. (“Ground 2”)

(3) The Judge erred in law in concluding that the steel bars laid by the defendant could serve a similar purpose as a foundation in anchoring the New Fence Wall in the absence of expert evidence. (“Ground 3”)

(4) The Judge erred in not finding in favour of the plaintiff for his loss and damages for the costs of the tiles he purchased for the New Fence Wall which later became ruined and unusable due to the defendant’s persistent failure to plaster the New Fence Wall with the tiles for over 10 years. (“Ground 4”)

F. Discussion

Ground 1

29.In his written Statement, the plaintiff contends inter alia that:

(1) The Judge was plainly wrong in finding that (i) the plaintiff had no knowledge of the foundation prior to the collapse of the Old Fence Wall which happened in July 2009 and (ii) Leung had no knowledge of the foundation. The reasons are as follows:

(a) The Judge did not pay sufficient regard to the quotation issued by a contractor 劉燕良建築裝修機械地基工程(“LYL”) dated 29 November 2008 (“LYL Quotation”). While the Judge pointed out in her Decision that the quotation did not form part of the Agreement, the fact that it included a foundation supports the plaintiff’s case on (i) the existence of the foundation in the Old Fence Wall, (ii) the parties’ knowledge of the same by late 2008 at the latest, and (iii) Leung himself agreed under cross-examination that in 2008, the defendant did contemplate[4] building New Fence Wall with a foundation.

(b) The Judge’s finding that there was no evidence of the plaintiff’s awareness of the foundation in the Old Fence Wall until its partial collapse in July 2009 was plainly wrong and contrary to the evidence since (i) the plaintiff was able to recount in his Supplemental Witness Statement the origin and details of the Old Fence Wall with the foundation built in 1998, and (ii) the LYL Quotation included a foundation.

(c) The Judge was plainly wrong in finding Leung and thus the defendant had no knowledge of the foundation since (i) both the LYL Quotation and the collapse of the Old Fence Wall in July 2009 revealed the existence of the foundation, (ii) the defendant did contemplate the building the New Fence Wall with a foundation and (iii) the defendant had inspected the collapsed part of the Old Fence Wall close enough and must have known about the foundation.

(d) In any event, both the plaintiff and the defendant inspected the Old Fence Wall shortly after its partial collapse. The only reasonable conclusion is that both parties knew about the foundation by July 2009 at the latest.

30.This court does not agree that the Judge was plainly wrong in finding the Agreement did not include a one-foot foundation below ground for the New Fence Wall.

31.First, the foundation set out in the LYL Quotation was one and a half feet high, instead of one foot as pleaded by the plaintiff and the LYL Quotation was issued more than one year before the date of the Agreement as found by the Judge ie December 2009. This is not challenged by the plaintiff.

32.Even accepting in 2008, (i) the LYL Quotation did include a one and a half feet foundation and (ii) Leung did agree in cross-examination that in 2008, the defendant contemplated building the New Fence Wall with a foundation, it is a non sequitur to infer the parties had agreed in December 2009 that the New Fence Wall would have a 1-foot foundation. The weight of the LYL Quotation is further undermined by the fact that (i) it expressly excluded plastering the New Fence Wall with tiles, contrary to the plaintiff’s case that the New Fence Wall should be finished with tiles and (ii) LYL was eventually not chosen by the defendant as the contractor for the works in question.

33.Second, even assuming the plaintiff had knowledge of the foundation prior to the Agreement in December 2009, that is not enough. It is necessary for the defendant also to have knowledge of the foundation prior to the Agreement in order for the plaintiff’s case to have a leg to stand on. In this regard, the Judge found as a fact that it was likely that Leung never inspected the Old Fence Wall in detail, but only surveyed it from afar, and thus had no knowledge of the foundation. This is a finding of fact that the Judge was entitled to make.

34.Third, none of the arguments raised in relation to Ground 1 addressed the Judge’s finding that the plaintiff witnessed the construction of the New Fence Wall without first constructing a foundation and did nothing for five years.

35.To conclude, Ground 1 is a classic example of an appellant (i) asserting a judge’s decision is manifestly wrong because the judge did not accept his evidence or submission and (ii) complains about a judge’s weighing of the available evidence. In reaching her factual findings, the Judge has carefully assessed multiple strands of evidence including inter alia the LYL’s Quotation; photo exhibits, and the plaintiff’s conduct during the construction of the New Fence Wall[5] and after its construction[6]. The findings clearly formed part of a factual assessment open to the Judge, which could “reasonably be explained or justified”: Yu Man Fung Alice v Chiau Sing Chi Stephen at [33].

36.Having considered the arguments raised in relation to Ground 1, we do not consider any of them amount to the type of error described in Lau Chung Kei. We therefore do not see any scope for us to overturn the Judge’s finding.

37.Ground 1 is without merits.

Ground 2

38.By Ground 2, the plaintiff contends that the Judge erred in interpreting the Agreement regarding the phrase “original state and condition” or in Chinese「原樣」[7]. The Judge is said to have erred to hold the phrase “original state and condition” should be understood as “the original look” and the term「原樣」to bear the same meaning as「原貌」,「同原本一樣」 or「照樣」. The Judge should have construed “original state and condition” and「原樣」to include inter alia the one-foot Foundation as the Old Fence Wall.

39.In his written Statement, the plaintiff contends that the Judge has disregarded the factual matrix and knowledge available to the parties at the material time. As far as factual matrix is concerned, this would include (i) the knowledge of the parties at the material time, (ii) the general objective of the Agreement (iii) the reasonableness in interpreting “original state and condition” or 「原樣」and (iv) the respective bargaining power of the parties. As far as knowledge of the parties is concerned, there is no explanation as to what knowledge the plaintiff is referring to. This court can only take it to mean the plaintiff’s and the defendant’s alleged knowledge of the foundation as in Ground 1.

40.This court does not agree.

41.First, in this court’s view, Ground 2 is just another way of putting Ground 1. In Ground 1, the plaintiff contends the Judge erred in finding the Agreement did not include a one-foot foundation for the New Fence Wall. In Ground 2, the plaintiff contends the Judge erred in interpreting the Agreement as not to include a one-foot foundation for the New Fence Wall. If Ground 1 fails as we just hold, it is difficult to see how putting it in another way and dressing it up as a separate Ground 2 can succeed.

42.Second, the plaintiff has failed to explain in his Draft Notice of Appeal or written Statement how the so-called factual matrix can lead to the conclusion that the Agreement should include a one-foot foundation for the New Fence Wall. In dealing with Ground 1, this court has already ruled the Judge was entitled to find as a fact that it was likely that Leung never inspected the Old Fence Wall in detail, but only surveyed it from afar, and thus had no knowledge of the foundation. The other so-called factual matrix ie general objective of the Agreement, reasonableness and the bargaining power of the parties are all self-serving bare assertions.

43.Third, the reliance on the bargaining power of the parties is particularly intriguing. The plaintiff was described in the Judgment as 66-year-old at the time of the Agreement and the owner of the plaintiff’s Site with a house on it. The defendant was a property investment subsidiary of Cheung Kong Asset Holdings Limited and the developer of a residential estate in Tai Po known as Mont Vert. Further, the Lands Department found the Old Fence Wall had illegally encroached on the defendant’s Site so, one way or another, by negotiation or litigation, the Old Fence Wall had to be demolished. It is unclear how this kind of respectively bargaining power can lead the Judge to construe the Agreement as including a one-foot foundation for the New Fence Wall.

44.Lastly, a judge’s task in construing an agreement is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. The court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the agreement, would have understood the parties to have meant.[8]

45.In the present case, what the Judge had done in interpreting the terms of the Agreement was to give them their natural meaning as would be understood by reasonable people[9]. We do not see how that can be plainly wrong.

46.Ground 2 is without merits.

Ground 3

47.By Ground 3, the plaintiff contends that the Judge erred in concluding, without expert evidence, that the steel bars could serve a similar purpose as a foundation in anchoring the New Fence Wall.

48.Ground 3 is without merits.

49.First, as stated at the beginning of this Judgment, the critical issue in this case concerns the terms of an oral agreement between the parties. This issue has been resolved by this court in rejecting Grounds 1 and 2.

50.Second, in the Draft Notice of Appeal, there is no explanation in the Draft Notice of Appeal or the plaintiff’s written Statement what consequences should follow from the Judge’s alleged error or why.

51.Third, what the Judge said about the steel bars was only one of a number of observations and factors which the Judge had taken into account in making her finding that the Agreement did not include a one-foot foundation. As this court said in relation to Ground 1, in reaching her factual findings, the Judge has carefully assessed multiple strands of evidence. Whether the Judge’s observation about the function of the steel bars is right or wrong, it would not have a significant impact on her resolution of the critical issue.

52.Lastly, one must not forget the plea in the Amended Defence that the New Fence Wall has not collapsed and remained standing to date and it was the defendant who laid steel bars to reinforced the New Fence Wall. The only challenge to this plea in the Amended Reply and the plaintiff’s Supplemental Statement was that (i) it was the plaintiff rather than the defendant who laid the steel bars as a temporary measure and (ii) according to his years of experience in the construction industry, steel bars were far less effective than a one-foot foundation. There is no challenge to the fact that the New Fence Wall has remaining standing to date. There is also no claim or evidence that the New Fence Wall has wobbled, sunk or collapsed. In other words, the Judge may not be wrong in ruling that the steel bars could serve a similar purpose as a foundation, let alone plainly wrong.

Ground 4

53.By Ground 4, the plaintiff challenges the Judge’s factual finding that there was insufficient evidence to show that he had bought the so-called second batch of tiles and her refusal to accept the plaintiff’s allegation that the second batch was ruined by prolonged exposure under the sun.

54.In his written Statement, the plaintiff relies on (i) the oral testimony of Madam Chan[10] that the plaintiff had purchased the second batch of tiles and she had seen the same, (ii) some photos of tiles as ample proof of the plaintiff’s purchase of the second batch of tiles, and (iii) some photos said to show the discoloured tiles themselves.

55.As far as the photos are concerned, they simply show some tiles on the ground and are undated. It is unclear whether they were the first batch of tiles bought by the plaintiff and subsequently “borrowed” by Madam Chan or they were the so-called second batch of tiles. Further, the quality of the photos is such that one simply cannot tell whether they were discoloured or otherwise unusable.

56.What Madam Chan actually said in her witness statement was that around the end of 2010, she had “borrowed” the tiles previously purchased by the plaintiff and used them for her own fence wall. According to the witness statement, the tiling work of her fence wall was completed 2 weeks before the 2011 Chinese New Year. Madam Chan also said in her witness statement that she had paid the plaintiff for the tiles. In other words, she had “bought” the tiles from the plaintiff, not borrowed. Nevertheless, during cross-examination on 5 September 2024, Madam Chan contradicted herself by denying she had paid the plaintiff for the tiles: see the extract from the official transcript in the next paragraph.

57.As far as Madam Chan’s oral testimony is concerned, it is very ambiguous and does not support what the plaintiff said in his written Statement. During cross-examination on 5 September 2024, what she said about the tiles was recorded in the official transcript at p 103 as follows:

“問： 明白，唔該。咁妳個理解就係「原告人需要等到17呎高嘅被告人嘅被告人嘅牆建好後--建好才可以一併鋪上牆身物料，所以本人建議周先生可先借用原告人嘅瓷磚取代原有嘅紙皮石」，係咪？

答： 係。

問： 「然後按使用量及價錢給原告人」。

答： 係。

問： 「在原告人同意借用瓷磚下，本人的圍牆清拆及重建的工程於2011年農曆新年前...（聲音模糊）停工」。

答： 係。

問： 咁所以妳就借用咗原告人買嗰啲嘅瓷磚喇？

答：喺佢同意之下我咪借囉。

問： 係喇，亦都畀咗錢佢嘅？

答： 我冇畀過錢。

問： 哦，按妳嘅理解，喺妳借咗原告人嗰啲瓷磚之後，原告人有冇買番啲瓷磚呀？

答： 佢用--即係呢個用咗上個牆身，有人付咗錢之後，後來再有啲--因為佢--佢有起緊樓㗎嘛，所以佢不停有啲物料呢會來回嘅，佢應該係有擺過啲物料，仲係--而家仲係擺喺我屋企門口。” (emphasis added)

58.In this court’s view, Ground 4 is again an impermissible challenge against the Judge’s finding that there was insufficient proof of the purchase of the second batch of tiles or that they had been ruined and become unusable.

59.Ground 4 is without merits.

G. Disposition and costs order nisi

60.For the above reasons, we are not persuaded that the intended appeal has any reasonable prospect of success. There is also no other reason in the interests of justice that the appeal should be heard. We therefore refuse leave to appeal and dismiss the Summons.

61.We have considered the Statement of Costs filed by the defendant’s legal representatives seeking costs in the sum of HK$98,540, which includes a brief for two counsel in the sum of HK$82,500 to prepare the 5-page statement of opposition. Since the arguments in the statement of opposition are simply an expansion of the grounds in the draft Notice of Appeal, we are of the view that the defendant should only be allowed to recover the costs for one counsel. Taking a broad-brush approach, we order the plaintiff do pay the costs of the defendant summarily assessed in the sum of HK$65,000.

62.The costs order is made on a nisi basis. Unless any party applies to vary it by summons, the costs order will become absolute 14 days from today.

63.Since this application for leave to appeal is in our view totally without merits, we make an order pursuant to RHC Order 59, rule 2A(8) that no party may request this determination be reconsidered at an inter partes oral hearing.

Ms Vivian Chan, instructed by M/s C Y Tsang & Co, for the plaintiff

Mr Michael Lok and Mr Billy Liu, instructed by M/s Kao, Lee & Yip, for the defendant