Zee Yee Ka Jessica v. Greenwood (Asia) Ltd and Another

DCCJ 6578/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6578 OF 2003

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BETWEEN

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Coram: Deputy District Judge K.W.Wong in Chambers (open to public)

Date of Hearing: 17^th January 2007

Date of Handing Down Ruling: 28^th February 2007

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RULING

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1.This is the Plaintiff’s application by way of summons dated 25^th October 2006 for leave to appeal to the Court of Appeal against my judgment handed down on 4^th September 2006 dismissing her claims and entering judgment against her on the counterclaim of the Defendants with costs.

2.There is no dispute that the relevant test for whether to grant leave to appeal is set out in Smith v Cosworth Casting Processes Ltd [1997] WLR 1538 per Lord Woolf MR as applied in Hong Kong in Ma Bik Yung v Ko Chuen, HCMP 4303/1999, Leong JA (as he then was) (unreported 8^th September 1999). The test has a rather low threshold and in a nutshell is this: the court will only refuse leave if satisfied that the applicant has no realistic prospect of success on the appeal.

3.There are four grounds of appeal which are set out in the draft notice of appeal annexed to the summons. In essence, these grounds seek to appeal against my findings of facts as well as the consequence of such findings that the relationship between them is one of joint venture partnership rather than an employment as asserted by the Plaintiff.

4.The Plaintiff’s arguments are set out in Mr. Leo’s detailed written submission. Although I do not consider that the Plaintiff has any reasonable chance of success in appealing against many of my primary findings of facts including the credibility of the Plaintiff’s evidence, I have to say that some findings of facts are arrived at after a process of inference. My joint venture partnership conclusion as aforesaid is of course based on these findings of facts. Appeal against findings of facts made by a process of inference will be approached very differently from findings of primary facts by an appeal court: see Ting Kwok Keung v Tam Dick Yuen [2002] 1 HKC 601 per Bokhary PJ at 611B to E. In drawing inference, the appellate court is in as good a position as the trial judge to draw such inference and is free to arrive at a conclusion different from that of the trial judge: as per Godfrey JA in Tang Kwok Ming v Daxprofit Scaffolding Ltd [1999] 1 HKC 657 at 663.

5.Furthermore, the Plaintiff has referred to a statement of the Defendants made to the Labour Tribunal which said that the parties started talking about a partnership around the beginning of 2003. This statement appears to be inconsistent with my findings and the evidence of the 2^nd Defendant in this respect, although the 2^nd Defendant has not been cross-examined on such discrepancies at trial. After reading the written submissions and hearing oral submissions of counsel for both parties, I must say I cannot conclude that the Plaintiff has no realistic prospect of success in the appeal

6.That being the case, I grant leave to the Plaintiff to appeal against my judgment. I make an order nisi that costs of this application be in the cause of the substantive appeal with certificate for counsel.

Mr. Donald Leo instructed by Messrs. Y.C. Lee Pang & Kwok, for the Plaintiff.

Mr. Kamlesh Sadhwani instructed by Hoosenally & Neo, for the Defendants