Yun Kee Kitchen Ltd v. Luk Kwan and Another

DCCJ4904/2006 & 90/2007
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NOs. 4904 OF 2006 & 90 OF 2007(Consolidated)

BETWEEN

Before: H H Judge Lok in Chambers (Open to the public)

Date of Hearing: 18 December 2008

Date of Decision: 18 December 2008

D E C I S I O N

1.This is an application for extension of time for applying for leave to appeal against the judgment or order made by myself on 23 September 2008.

2.The judgment with full reasons was orally delivered in the hearing.  After the sealing of the judgment, the Defendants wrote to the court to request for the written transcript of the oral judgment.  Due to the workload of the staff preparing the transcript, the transcript was not available until the end of November 2008.  In such circumstances and as a matter of fairness to the Defendants, I should extend the time for the Defendants to make the application for leave to appeal.

3.I then treat this hearing as the application for leave to appeal itself.  I have already given my full reasons in the judgment orally delivered on 23 September 2008 and I do not want to repeat the same here. 

4.I have the benefit of looking at the draft Notice of Appeal prepared by the Defendants. Ground 1 and Ground 2 are that the court  was wrong in accepting the evidence of the Plaintiff’s director Mr Yik that the net profit for the business in respect of the annex of the restaurant was about $33,000 a month.  In fact, such figure was much less than the figure of loss of profit stated in the accountants’ report of the Plaintiff.  As Mr Yik was the person responsible for the operation of the restaurant, I cannot see why the court could not have relied on his evidence about the net profit of the business in respect of the annex of the restaurant.  The Defendants had been given ample opportunity to cross-examine Mr Yik on such matters, and there is simply no substance in challenging the factual findings made by the court in this regard.

5.At the trial, I find that, because of the leakage of water in the karaoke room in the annex, the Plaintiff could not use these premises as a VIP dining area for its patrons.  I accepted the evidence of Mr Yik that the whole premises were used as a special dining area, and there is simply no basis for the Defendants to challenge the factual finding in this regard.  Ground 3 has therefore no substance.

6.Ground 4 and Ground 5 are about the Plaintiff’s duty to mitigate the loss.  I have already dealt with these issues in some length in paragraphs 22 to 24 of my judgment.  As I see, the Defendants have no reasonable prospect of success in challenging the court’s decision in this regard.

7.Ground 6 is a challenge on the factual findings made by court.  Again, I see no substance in this ground of appeal.

8.Ground 7 is about my decision on costs on the two summonses.  Before the commencement of the trial, the Defendants had filed a witness statement by the son of the first-named Defendant, which contained a lot of hearsay information passed by the first-named Defendant to her son.  As the first-named Defendant was the person responsible for handling the leasing matters relating to the premises, the first-named Defendant should therefore come to court to testify so that her evidence could be tested in cross-examination.  The Plaintiff therefore took out the two summonses; the first one to strike out the hearsay evidence stated in the witness statement of the first-named Defendant’s son; and the second one to compel the first-named Defendant to testify at the trial.  Taking into account the role of the first-named Defendant in this case, the Plaintiff was quite justified to take out these two summonses. 

9.However, the first-named Defendant could not come to court to testify because she was suffering from dementia, I therefore required the Defendants to produce medical proof and the same was made available on the first day of the trial.  In such circumstances, the court did not see fit to compel the attendance of the first-named Defendant in court and the Defendants should be allowed to rely on the hearsay evidence given by the first-named Defendant to her son.  Whether the court would in due course accept this evidence was all a matter of weight to be decided at the trial. 

10.I dealt with the costs of these two summonses at the end of the trial.  As I see, it was quite justified for the Plaintiff to take out the two summonses and it was only because of the health reason that the court did not compel the attendance of the first-named Defendant.  The costs of these two summonses should therefore form part of  the costs of the proceedings.  As the Plaintiff obtained the costs of the action, it should also get the costs of these two summonses.

11.Based on the aforesaid, I do not see that there is any reasonable prospect of success in any of the grounds stated in the draft Notice of Appeal, and I therefore refuse the Defendants’ application for leave to appeal.