Winners' Workshop Production Co Ltd v. Oceanic Technology Development Ltd

DCCJ4413/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4413 OF 2006

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BETWEEN

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Before: Her Honour Judge Mimmie Chan in Chambers (open to public)

Date of Hearing:   27 November 2009

Date of Delivery of Decision:   27 November 2009

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D E C I S I O N

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1.The Defendant seeks leave to appeal from my judgment of 2 October 2009. Essentially, from the grounds of appeal, the Defendant is seeking to challenge the court’s findings of fact made as to the court’s preference of the evidence of Mr Wong of the Plaintiff over the evidence of Mr Law of the Defendant.

2.As I pointed out in paragraph 8 of the Judgment, the only issue for determination at trial was whether there was a Variation Agreement made between Mr Wong and Mr Law on 15 August 2005. As further pointed out in paragraph 11 of the Judgment, questions of whether the Facilities and/or Machinery sold under the agreements made between Mr Wong and Mr Law on behalf of their companies were not the primary issues for determination of the Plaintiff’s claims against the Defendant, and those claims are relevant only in the determination of the credibility of the assertions made by the parties and their witnesses.

3.Hence, if I had not expressed the point sufficiently, the only findings required relate to the issue of whether there was a Variation Agreement.

4.I therefore fail to see any reasonable prospect of success so far as the ground of appeal relates to the failure of the court in making express findings on issues relating to the claims as to whether the Facilities and Machinery were defective, or whether any warranties were made in relation to the Facilities and Machinery. As to whether such claims relating to defects and warranties were pleaded, I also dealt with the pleading point briefly in paragraph 11 of the Judgment.

5.I do not consider that the matters identified in paragraph 1(1) of the Grounds of Appeal would, on their own, be so clear as to be sufficient to convince the Court of Appeal that the conclusion on the existence of the Variation Agreement is plainly wrong.

6.In relation to the challenges to the court’s findings in relation to whether the two machines removed by the Defendant were included in the sale, I had made it clear in paragraph 12 of the Judgment that the sale of the Machinery and the sale of the Facilities were accepted by Mr Wong and Mr Law to be one transaction. The reference to “the agreement” between the parties in the sixth line of paragraph 13 of the Judgment, the term of which was not a defined term in the Judgment, refers to the one transaction agreement for “the sale and purchase of all the Machinery, facilities and settings within the Factory”. I fail to see any reasonable prospects of success so far as the appeal seeks to distinguish between the agreement governing the Machinery, and the agreement governing the Facilities.

7.As for giving reasons for my preferring the Plaintiff’s evidence over the Defendant’s, inarticulately expressed though it may be, the Judgment sets out in paragraphs 25 to 30 the reasons why I found it more credible than not that the Variation Agreement was made.

8.In the context of appeals against findings of fact made by the trial judge, the principles are clearly set out by Bokhary PJ in the Court of Final Appeal decision in Tin Kwok Keung v Tam Dick YuenFACV No. 12 of 2001, from paragraphs 35 to 42. (This case is in tab 7 of the Plaintiff’s bundle of authorities.) I can add very little to the following passage from paragraph 39 of his Judgment:

“As Lord Shaw of Dunfermline said in Clarke v Edinburgh Tramways at p.36 and Lord Edmund-Davies repeated in Whitehouse v Jordan at p. 257 C-D, the great respect due to a trial judge’s choice of whom to believe is ‘quite irrespective of whether the judge makes any observation with regard to credibility or not.’  The same point was made by McHugh J in Abalos v Australian Postal Commission(1990) 171 CLR 167.  There, in a judgment with which all the other members of the High Court of Australia hearing that appeal agreed, His Honour said (at p.179) that: ‘It does not follow that, because [the trial judge] made no express reference to the demeanour or credibility of either [of the two witnesses who gave evidence on the issue of fact concerned], demeanour or credibility played no part in her findings on [that issue of fact].’”

9.In paragraphs 41 and 42 of his Judgment, Bokhary PJ had this to say, and I quote:

“41. ‘On an appeal against a judgment of a judge sitting alone’, Lord Sankey LC said in Powell v Streatham Manor Nursing Home at p.249, ‘the Court of Appeal will not set aside the judgment unless the appellant satisfies the court that the judge was wrong and that his decision ought to have been the other way.’  I would reinforce that by respectfully adopting what Lord Hoffman said in Biogen Inc v Medeva Plc[1997] RPC 1 at p.45 and repeated in Piglowska v Piglowski at p.1372 D-F:

‘The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy.  It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence.  His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.’

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.”

10.On these principles, and for the reasons I have given, I consider that the proposed appeal has no realistic prospects of success and must decline to give leave. Nor do I see any other reason in the interests of justice why the appeal should be heard.

11.The application is dismissed with costs.

Mr Jacky Ip, instructed by Messrs Paul W Tse, for the Plaintiff

Mr Eugene Yim, instructed by Messrs Keith Lam Lau & Chan for the Defendant