Tsang Hon Chu Florence v. Tsang Hon Man Thomas

DCCJ 4307/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4307 OF 2008

____________

Coram: His Hon Judge Leung in chambers (open to public)

Date of hearing: 10 October 2011

Date of handing down decision: 28 November 2011

_______________________

D E C I S I O N

_______________________

1.This was a financial dispute between the Plaintiff (“F”) and the Defendant (“T”), who are sister and brother, arising out of their mutual management of their respective residential properties in Canada and Hong Kong.

2.After trial, I handed down my written judgment on 30 May 2011 (“the Judgment”) [*] whereby I gave judgment in favour of F for damages in the sum of HK$238,652.02 with interest.  I dismissed the counterclaim by T.  I also made a nisi order as to the costs of the action in favour of F.

3.By summons dated 13 June 2011, T applies to “vary the amount of damages in the Judgment”. As explained during the first hearing of the application, this court has no jurisdiction to review or to vary the Judgment in the absence of an appeal. The hearing was also adjourned because F was overseas.

4.The parties attended the resumed hearing of T’s application.  T confirmed that it was his intention to appeal and hence asked this court to treat this as his application for leave to appeal.  F had no objection.

5.Pursuant to section 63A(2), leave to appeal shall not be given unless the intended appeal has a reasonable prospect of success or the matter in the interest of justice ought to be heard by the appellate court.

6.The background and the parties’ pleaded cases are set out in the first 25 paragraphs in the Judgment. I do not repeat here.

7.First and foremost, the position of T has apparently changed from that at the trial.  All along up to the trial, the position of T, as pleaded, was that it was F who should owe him money.  Now the position of T has become that he is indeed liable to F but only for a sum of HK$84,599.37.

8.When asked to explain in court, T suggested that he did not genuinely believe that he should be liable for such sum either.  But this is the amount that he would be prepared to accept as he conceded that taking account between him and F is very difficult.

9.Second, T seeks to adduce new evidence on appeal with a view to challenging this court’s finding in respect of F’s arrangement of cash to be brought to Liu, the Mainland lawyer acting for T in connection with T’s litigation against Li Lin and his property deal in the Mainland.

10.No fresh evidence shall be admitted on appeal save on exceptional grounds.  This will be where the further evidence:

(1) could not have been obtained at the trial with reasonable diligence;

(2) would or might, if believed, have a very important effect on the mind of the tribunal; and

(3) is of a sort which inherently is not improbable.

See O.59, r.10(2); Ladd v Marshall [1954] 1 WLR 1489.

11.T has not dealt with any of the above factors in his affirmation or submission.  As mentioned in the Judgment (at §95), T was the party to the matters in the Mainland and the client of Liu; and any alleged inability to produce relevant documentary evidence in this respect during the trial would be beyond belief.  The attempt to adduce the documents only now reinforces my view.

12.More importantly, the new documents, if taken into account, would have also reinforced my factual findings against him.  The written decision dated December 2003 (民事裁定書) apparently recorded that T, through his lawyer Liu, was still making application against Li Lin in the Mainland court in late June 2003.  The other documents in relation to the property deal of T in the Mainland were dated February 2004 and January 2008 still referred to Liu, his lawyer, as the contact person on his behalf.  These documents tend to contradict T’s case that the engagement of Liu had ceased with the conclusion of the litigation and property deal in 2002 at the latest.

13.Third, T launched attack on the court’s factual findings in respect of the mortgage repayments, expenses, interest, rental income and payments in question during the relevant years.  In so many words, T is attacking this court’s evaluation of the evidence, documentary and oral, including the witnesses’ relative credibility.  In principle, the appellate court will be reluctant to disturb the trial judge’s findings of fact that the judge was entitled to come to on the evidence.

14.Fourth, T repeatedly accused this court of being unfair and biased against him.  Suggestion that the court was wrong in any particular aspect would have been understandable.  Yet this is not to be equated with the alleged bias on the part of the court in favour of or against either party.  The accusation as a ground of appeal is unwarranted.

15.Fifth, T made references to errors in the Judgment which, though admittedly should have been prevented in the first place, are typographical in nature; and therefore do not form substantive appeal grounds.

16.Lastly, T takes issue as to the time taken for the Judgment to be ready and complains about the interest rate awarded.  Whilst it would have been desirable for the Judgment to be handed down earlier (notwithstanding what was said under the Overview (§9) of the Judgment), interest on judgment is a matter of the court’s discretion that, in my view, could not be said to have been exercised wrongly in principle in the present case.

17.I have also taken the time to consider the Judgment against the submissions of T in his affirmation and in court.  In conclusion, I am not satisfied that there is reasonable prospect in the intended appeal.

18.There is no basis for giving leave under the second limb of section 63A(2) in the circumstances of the present case.

Order

19.The application is dismissed.  As explained during the hearing, I make an order following the event that costs of the application be to F to be taxed, if not agreed.

The Plaintiff, in person, present

The Defendant, in person, present

[*] with Corrigenda dated 31 May 2011