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DCCJ3458/2005
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO. 3458 OF 2005
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BETWEEN
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FIRST INTERNATIONAL SUPPLIES LIMITED |
1st Plaintiff |
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ROH SHANG SOO |
2nd Plaintiff |
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and |
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KO SHIU MING STANLEY |
Defendant |
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Coram: H H Judge Marlene Ng in Chambers (Open to the Public)
Date s of Hearing: 17th January 2007
Date of Handing Down Decision: 19th January 2007
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JUDGMENT
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1.This is the application by the Defendant Mr Ko for leave to appeal against my judgment dated 31st October 2006. Section 63 of the District Court Ordinance Cap.336 provides that a party may only appeal from the District Court to the Court of Appeal with leave. If a judge below refuses leave, the intended appellant may still apply for leave to appeal to the Court of Appeal.
2.The principles on application for leave to appeal are set out in Ma Bik Yung v Ko Chuen HCMP 4303/1999, Leong JA (unreported, 8th September 1999) citing Smith v Cosworth Casting Processes Limited [1997] WLR 1538 in which Lord Woolf provided the following guidance :
“(1) The Court will only refuse leave if satisfied that the applicant has no realistic prospect of succeeding on the appeal. This test is not meant to be any different from that which is sometimes used which is that the applicant has no arguable case. Why, however, this court has decided to adopt the former phrase is because of the use of the word 'realistic' makes it clear that a fanciful prospect or an unrealistic argument is not sufficient.
(2) The court can grant the application even if it is not so satisfied. There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success. For example, the issue may be one in which the court considers should be in the public interest be examined by this court, or, to be more specific, this court may take the view that the case raises an issue where the law requires clarifying.”
In short, Mr Ko needs to satisfy this court that the intended appeal has a realistic prospect of success in the sense that Mr Ko has at least an arguable case in the intended appeal.
3.Mr Ko was previously legally represented, but now acts in person. The Plaintiff all along acts in person.
4.Mr Ko sets out various intended grounds of appeal in his affirmation dated 24th November 2006 and in his written submissions handed to the court at the hearing. For convenience I shall adopt the abbreviations in my judgment of 31st October 2006.
5.First, Mr Ko points out that the original plaintiff in these proceedings was First International. On the first day of trial I granted leave to add Mr Roh as the 2nd plaintiff, and at the end of the trial First International failed but Mr Roh succeeded in the claim against Mr Ko. Mr Ko argues it is unfair to him to add Mr Roh as the 2nd plaintiff at the trial. He believes that the court has been sympathetic to Mr Roh who is a Korean and without legal representation. He further claims that Mr Roh told his sorry story and appeared helpless at the trial so as to gain the sympathy of the court. Mr Ko further claims that since the original plaintiff was First International, this means Mr Roh “absolutely don’t think I am owe him (Mr Roh) money” otherwise he would have put his own name as a plaintiff as well.
6.In fact, the decision to add Mr Roh as the 2nd plaintiff has been subject of my reasoned ruling delivered on the first day of trial after hearing arguments. I do not wish to repeat the reasons save to say I am unable to discern in the ruling the bias alleged by Mr Ko.
7.The issue of whether to add Mr Roh as the 2nd plaintiff turns on Mr Roh’s capacity in entering into the tripartite agreement at the Coffee Shop. Did he do so in his own capacity or on behalf of First International? There was sufficient material then before the court to justify adding Mr Roh as an additional plaintiff. Indeed, this has been borne out by the evidence at the trial when all parties, including Mr Ko and Mr Cheung, accepted it was Mr Roh who was a party to the tripartite agreement. Indeed, Mr Ko and Mr Cheung when they gave evidence went so far as to insist their employer was Mr Roh and not First International. The dispute amongst the parties is not in relation to the identity of the contracting parties but as to the terms of the agreement.
8.Mr Sin who then represented the Defendant also could not point to any prejudice that might be suffered by Mr Ko by reason of the addition of Mr Roh as a party to the proceedings save for lateness. Indeed, as borne out by the trial, the addition of Mr Roh as a party has not led to any change in either party’s case.
9.In my view, there is no realistic prospect of success in relation to this intended ground of appeal.
10.Secondly, Mr Ko claims that the cheques were drawn by First International, so with the dismissal of First International’s claim, Mr Roh failed to adduce evidence to prove that Mr Ko owed him money.
11.Given I have found as a fact that Mr Roh, Mr Cheung and Mr Roh were the contracting parties to the tripartite agreement and that Mr Roh caused the Loan payments to be made through First International to Mr Ko and Mr Cheung (see paragraphs 128, 129 and 144 of the judgment), there is sufficient support for the contention that Mr Roh extended the Loan to Mr Ko who owed him the Sums. There is no realistic prospect of success in relation to this intended ground of appeal.
12.Thirdly, Mr Ko challenges various findings of fact in my judgment as follows :
(a) Mr Ko claims there is no direct relationship between Mr Ko’s previous employment with Sweetmart/AMW and the present case. Mr Ko disputes Mr Roh’s negative comments about Mr Ko when he was with Sweetmart, and queries why Mr Roh failed in fairness to refer to how he helped Mr Roh to collect his outstanding payments. He suggests that Mr Roh did so in order to gain the sympathy of the court. However, I note that I have not made any finding that Mr Roh was critical of Mr Ko personally when he was with Sweetmart (see paragraph 16 of my judgment).
(b) Mr Ko submits that Mr Roh made negative remarks about him whilst he was working at Sweetmart and AMW. He says that if that were so, it would have been impossible for them to work together. However, I note that Mr Roh was not critical of Mr Ko when he was at Sweetmart/AMW (see paragraphs 16 to 18 of the judgment). It was Sweetmart and not Mr Roh who owed First International money. Mr Roh also fairly accepted Mr Ko had no say over this and he added that Mr Ko passed some business to him when at AMW.
(c) Mr Ko insists on submitting to me that he told Mr Roh both of them were born in the year of the rat and Mr Roh was 12 years older than him. He further told Mr Roh that their character would be quite similar, which would be conducive to their working together. But, as Mr Ko acknowledged, such evidence has not been led at the trial and I am unable to see its significance for the purpose of the present application.
(d) Mr Ko disagrees with my conclusion that it was improbable that Mr Roh initiated the move into the uncharted waters of garment business. To support such contention, Mr Ko in his written submissions draws on his own experience to say that fabric suppliers are well familiar with garment production and with the garment products that used their fabrics since they have to adjust the fabric quality to suit the production process. He adds that in his experience many fabric suppliers are willing to take the risk of investing in or setting up garment production companies since they will be less competitive if they only depend on fabric business. However, Mr Ko has not led such evidence at the trial.
(e) Mr Ko doubts whether Mr Roh would have agreed to invest in garment business based on 2 to 3 meetings/discussions at the Coffer Shop and restaurant if Mr Ko is (as I have found) a conservative and considerate merchant and has been a businessman in Hong Kong for 10 odd years. But Mr Ko acknowledges there has been a historical relationship of dealings between him and Mr Roh at Sweetmart and AMW and they went on the Dongguan trip together.
(f) Mr Ko claims there was no reason for him to borrow money from Mr Roh to establish and operate a company. Prior to his employment by Mr Roh, Mr Ko’s monthly salary was HK$25,000.00 (as evidenced by his tax return). After he left Golden Glory, he was able to secure a job as a senior merchandising manager at a monthly salary of HK$26,500.00 and has remained at this job for 2 years (or even up to now according to his oral submissions before me). Since Mr Ko has good work experience and ability, there would have been no need to borrow and he would not have borrowed HK$20,000.00 a month from Mr Roh.
(g) Mr Ko says he only agreed to join Golden Glory on the basis of a monthly salary of HK$20,000.00 (which was sufficient to support his living expenses) because Mr Roh was willing to invest in the venture and because Mr Ko wanted to test his own ability. Apart from expense payments of HK$2,000.00 or HK$3,000.00, the monthly cheques Mr Ko received from First International were in fact his salary (and not loan) payments as they could be aggregated to various HK$20,000.00 sums.
(h) Mr Ko argues that since Mr Roh had been in business for 10 odd years in Hong Kong and had previous experience of Sweetmart owing First International a sum of about HK$1.2 million, it was impossible for Mr Roh to lend so much money to others without documentary proof. Mr Ko claims that Mr Roh only sued him because of his own failed investment (ie Golden Glory had no income), but in fact Mr Roh should bear the risk of his own decision to invest in garment business. Mr Ko denies he had any money dealings with Mr Roh.
(i) Mr Ko says Mr Roh handled all corporate documents of Golden Glory. Mr Ko just wanted to develop his own career and did not bother with the contents of the documents he signed. He treated Mr Roh as a friend/brother and trusted him. If Mr Ko had carefully studied such documents before signing, the present litigation could have been avoided.
(j) Mr Ko submits that he did not raise the matter of MPF and employees’ compensation insurance with Mr Roh because he only discovered Mr Roh cheated him (ie Mr Roh did not have sufficient investment funds for the venture) after joining Golden Glory. This inadequacy of investment funds was reflected by the fact that Mr Roh only paid Mr Ko’s full monthly salary of HK$20,000.00 for the first month and thereafter Mr Roh was only able to pay various sums now and then. Mr Ko says he was exhausted from chasing Mr Roh for his outstanding salary let alone MPF etc.
(k) Mr Ko submits that whilst he was working for Golden Glory in Mainland China, he sent an email to Mr Roh chasing for his salary, but he could no longer locate a copy of such email. However, he has not led such evidence at the trial.
(l) In respect of the issue of his tax return, Mr Ko explains that he and Mr Roh did not part on good terms, so he did not have any further contact with Mr Roh after he started his new job. In the circumstances, he did not think of asking Mr Roh whether he should file tax return. Mr Ko feels he had already done his civic duty and his defence should not fail on this ground.
(m) Mr Ko notes that he did not part with Mr Roh in January 2005 on good terms. However, the quarrel at the meeting in January 2005 was essentially between Mr Cheung and Mr Roh, and Mr Ko only acted as mediator. Mr Ko claims that Mr Roh made a false allegation when he said Mr Ko was engaged in a fight.
(n) Mr Ko claims that even though Mr Roh as investor should be well aware of the risk of investment and of the initial period in which there would be no income, Mr Roh acted irresponsibly by ceasing investment suddenly in January 2005 without any thought for the difficulty facing Mr Ko and Mr Cheung at a time close to Chinese New Year. Mr Ko claims he acted with reasonable restraint in successfully looking for a job and in not pursuing Mr Roh for outstanding salary immediately.
(o) Mr Ko submits that it was impossible for Mr Roh to be unable to contact him after the quarrel in January 2005 because Mr Roh had his address and mobile telephone number. He argues that in fact it was Mr Roh who failed to look for him.
13.From the above grounds, it is clear that Mr Ko is only reiterating his evidence and Mr Sin’s submissions made at the time of trial as well as attempting to rely on new information. I have carefully considered and analysed the evidence and arguments in my judgment of 31st October 2006. Since the judgment is there for all to see, I do not wish to repeat my analysis and findings save to say that I have, upon consideration of the evidence and submissions, rejected Mr Ko’s factual assertions.
14.In considering whether there are any real prospects of success, I need to bear in mind that these intended grounds of appeal challenge primary findings of fact based on the credibility of witnesses by the trial judge. The test is set out by Godfrey JA in Tang Kwok Ming v Daxprofit Scaffolding Ltd [1999] 1 HKC 663 and reiterated in Tin Kwong International Enterprise Company Limited & ors v San Tung & anor CACV164/2005 (unreported, 17th January 2006) as follows :
“ The principles laid down in the above authorities can be summarised as follows:
(a) If the Court of Appeal is to reverse the trial judge’s decision on the facts, it “must not merely entertain doubt whether the decision below is right, but be convinced it is wrong”.
(b) The Court of Appeal will certainly not disturb the judge’s findings of primary fact where they are based on the credibility of the witnesses or the preference of the evidence of one witness for that of another because he enjoyed the advantages of receiving the evidence in a living state at first-hand.
(c) In order to disturb a finding of primary fact, the Court of Appeal has to be satisfied that the judge’s conclusion is plainly wrong in the sense that either (1) that there is no evidence to support it; or (2) that it is contrary to documentary or other incontrovertible evidence that the judge overlooked. It is not enough to show there is little evidence to support the judge’s finding, or that it was “contrary to the weight of the evidence”. The weight of the evidence is a matter for the trial judge. It does not matter how many witnesses say one thing, and how few say the contrary. The judge is perfectly entitled to prefer the evidence of the few to that of the many.”
15.But apart from repeating his evidence and contentions at the trial, Mr Ko has not demonstrated any arguable case that there is no evidence to support my findings or that my findings are contrary to documentary or incontrovertible evidence.
16.Further, even if leave to appeal is granted, I am doubtful whether the Court of Appeal will consider the new evidence referred to above since such new evidence is unlikely to fulfil the three conditions of the test in Ladd v Marshall [1954] 1 WLR 1489 as follows :
(a) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;
(b) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive;
(c) the evidence must be such as is presumably to be believed, or, in other words, it must be apparently credible though it need not be incontrovertible.
17.But even if such new evidence is considered on a provisional basis, I am not satisfied it will affect the outcome since Mr Ko still has to show an arguable case for overturning findings of fact, which he has not. In the circumstances, I do not consider there is any real prospect of success on these intended grounds of appeal.
18.In light of the above, there is no need for me to consider Mr Roh’s affirmation in opposition that also raises new facts not canvassed at the trial.
19.I therefore dismiss Mr Ko’s application. However, he has 14 days to renew his application to the Court of Appeal.
20.There is no reason why costs should not follow event. I therefore grant a costs order nisi that Mr Ko do pay Mr Roh’s costs of the application to be taxed if not agreed.
21.Should Mr Roh or Mr Ko require translation of this Decision into Korean or punti language, they can contact my clerk to arrange an appointment for an interpreter to verbally translate this Decision to them at the Wanchai Law Courts at a mutually convenient date and time.
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(Marlene Ng)
District Court Judge |
Representation:
The 1st Plaintiff represented by its director Mr Roh Shang Soo and present.
The 2nd Plaintiff in person and present.
The Defendant in person and present.
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