Chow Hing Eric v. Wide Land Purchasing Centre Ltd and Others

HCMP 483/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO.483 of 2009

(On an intended appeal from HCCW No.868 of 2005)

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BETWEEN:

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Before: Hon. Tang V-P and Yuen JA in Court

Date of hearing: 18 June 2009

Date of judgment: 19 June 2009

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JUDGMENT

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Hon. Tang V-P:

1.I agree with the judgment of Yuen JA.  

Hon. Yuen JA:

2.There are 2 applications before us:

(1)     the Petitioner’s application (by summons filed on 16 March 2009) for an extension of time to appeal, adjourned from 9 April 2009; and

(2)     his application (by summons filed on 22 April 2009) for leave to adduce fresh evidence at his intended appeal.

Petition

3.The relevant background is as follows.  The Petitioner was the registered shareholder of 40% of the shares in the 1^st Respondent company (“the Company”).  In 2005, he filed a petition under s.168A and s.177(1)(f) of the Companies Ordinance, asking that the Company be wound-up, alternatively that he be bought out.  He alleged that he had been wrongfully expelled from the management of the Company which he claimed was a quasi-partnership between himself and the 2^nd Respondent who was the registered shareholder of 60% of the shares.  The 3^rd Respondent was a director of the Company. 

Hearing

4.The petition was heard before Kwan J over a period of 6 days in March 2007.  The Petitioner was represented by counsel, as were the 2^nd and 3^rd Respondents (whom I shall refer to collectively as “the Respondents”).

Issue of beneficial ownership

5.The judge listed 5 main issues in dispute, the first of which was “whether the petitioner owns beneficially the 4 million shares he holds in the Company or whether he holds them on trust for the Fifth Office and its successors” (para. 6).  The “Fifth Office” was a reference to 廣東省人民政府第五辦公室 (the Fifth Office of the Municipal Government of Guangdong Province) (para. 2). 

Judgment

6.In a 22-page judgment, the judge discussed the evidence and concluded that the Petitioner did not have beneficial ownership of the shares in the Company.  Essentially her ladyship

•        found that the Petitioner “did not come across as a truthful witness” (para. 39),

•        rejected his evidence that the money for investment in the Company came from profits of other businesses jointly invested in by himself and the 2^nd Respondent (para. 57), and

•        found that the Company had been funded by the Fifth Office (para. 67) which had invested in the Company through Zhuhai Zhun Hua, Hong Kong Zhun Wah and Zhun Hua Ltd (para. 70). 

The judge found on the totality of the evidence (para. 74):

“the presumption of resulting trust has not been rebutted and that the petitioner does not have beneficial ownership of the shares he holds in the Company.  There is no acceptable evidence of actual intention of the provider of funds to benefit the petitioner of the beneficial interest in the shares he held”.

The petition was duly dismissed with costs. 

7.The judgment was given on 4 May 2007 and the order was sealed on 12 June 2007.  The deadline for an appeal expired 28 days later on 10 July 2007 (Order 59 rule 4(1)(b) Rules of the High Court). 

Application for extension of time to appeal

8.The Petitioner did not attempt to lodge an appeal until 16 March 2009, some 20 months after the deadline.  In the documents put forward with the summons for extension of time to appeal, the Petitioner stated that on 30 December 2008 he received a document showing that the judge was wrong when she inferred that the shares he held were owned by the state.  The document (which he said was an internal state document) showed that pursuant to an order, from 1998 onwards government executive organizations were no longer permitted to in participate in commercial activities and such activities were terminated by the end of 1998.  It would appear from the date that the Petitioner was referring to a document exhibited as “annexure 8". 

9.When the matter first came before a single judge of this court on 9 April 2009, the Petitioner was informed that fresh evidence could not be adduced on appeal without leave of the court according to the guidelines set out in Ladd v Marshall.  The Petitioner indicated that he would make an application for such leave.

Application for leave to adduce fresh evidence on appeal

10.On 22 April 2009 the Petitioner filed a summons for leave to adduce fresh evidence.  In his affirmation in support, the Petitioner annexed only one document, a letter dated 3 April 2009 from the Liaison Office of the Central People’s Government in Hong Kong. 

11.The letter dated 3 April 2009 referred to a reply from the Guangdong Province 信訪局 stating that the Company was registered in Hong Kong and not in Zhuhai, and 珠海振華貿易公司 had changed its name in 1995 to 珠海振華集團公司, which was now a private limited company.    

Discussion

12.Whilst the Court of Appeal has power to allow fresh evidence to be adduced on appeal in the exercise of its discretion, this is not often or lightly done.

13.Where there has been a trial on the merits, fresh evidence will generally not be admitted on appeal unless the three conditions set out in Ladd v Marshall [1954] 1 WLR 1489 are satisfied:

(1)     it must be shown that the evidence could not have been obtained with reasonable diligence for use at the hearing;

(2)     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;

(3)     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.

However, if the evidence relates to matters which have occurred only after the hearing, the court has a discretion to admit such evidence, although the power is used sparingly with due regard to the need for finality in litigation (Hong Kong Civil Procedure 2009, §59/10/10).

14.It is true that the 3 April 2009 letter only came into being after the judgment.  However it does not assist the Petitioner’s intended appeal.  The three matters stated in the letter were:

•        “the Company was registered in Hong Kong” - there is no dispute about that;

•        “珠海振華貿易公司had changed its name in 1995 to珠海振華集團公司”- since this change of name occurred 12 years before the trial and was a matter of public record, this is a piece of evidence which the Petitioner could have adduced at trial if he had exercised reasonable diligence, and in any event, there is nothing to indicate that it would probably have had an important influence on the result of the case;

•        “珠海振華集團公司was now a private limited company” – the status of this company “now” is irrelevant to the case or the appeal.

15.In the circumstances, the appellate court would not use its powers to permit the Petitioner to adduce this fresh evidence on appeal.

16.There are no grounds for extending the time for appeal.  The delay in lodging the appeal is substantial and no satisfactory explanation has been given for it.  There are also no merits in the appeal which is an appeal from the judge’s finding of facts, it being well-established that an appellate court would generally not overturn a judge’s finding of facts. 

Order

17.Both summonses are accordingly dismissed.  The Respondents having succeeded, they should have the costs of the proceedings.  The Respondents have provided to the court and the Applicant two statements of assessment of costs.  We direct that if the Applicant wishes to object to the quantum of costs, he should do so in writing within 14 days of the date of this judgment.  Should the Respondents wish to reply to the Applicant’s objection, they should do so within 14 days after receipt of the Applicant’s objection.  This court will then give its assessment in writing.

The Petitioner (Applicant) in person, present.

Mr Anson Wong instructed by DS Cheung & Co for the 2^nd and 3^rd Respondents.