Chow Wing King v. Chan Suet Yee

HCMP 1165/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1165 OF 2011

(ON AN INTENDED APPEAL FROM DCPI NO. 1221 OF 2009)

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BETWEEN

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Before: Hon Tang VP and Kwan JA

Date of Judgment: 16 December 2011

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JUDGMENT

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1.The cars driven by the Plaintiff and the Defendant were involved in an accident in the early hours of 9 May 2006. They gave different versions of how the accident occurred.

2.After trial, Acting Chief District Judge S. T. Poon accepted the Defendant's version.  He preferred the evidence of the Defendant and his friend who also gave evidence. 

3.On the other hand, the learned judge regarded the Plaintiff's evidence as "totally unreliable".

4.This is the Plaintiff's application for leave to appeal, leave having been refused by the learned judge.

5.I have been supplied with written submissions prepared by counsel for the parties.

6.Mr Tony Chow Ho Hin, for the Plaintiff, accepts that he is seeking leave to appeal from findings of fact and that he faces the formidable obstacle of Ting Kwok Keung v Tam Dick Yuen trading as Tam Dick Yuen Engineering & Others [2002] 5 HKCFAR 336.

7.As Ms Jennifer Tsui, for the Defendant, submits the court must be satisfied that the appeal has a reasonable prospect of success, and that:

"16.   … Merely showing that the appeal is 'arguable' and 'not fanciful' would not be sufficient. …". per Le Pichon JA in Ho Yuen Ki Winnie and Anor v Ho Hung Sun Stanley and Anor, HCMP 1009/2009 (unreported, 24 August 2009)

8.I have considered the judgment and Mr Ho's submissions with care.  I am of the view that the arguments raised by Mr Ho regarding findings of fact made by the learned judge to be highly artificial, and the intended appeal has no reasonable prospect of success.  

9.I would refuse leave with costs to the Defendant.

10.I also make an Order under O. 59 r. 2A(8) that the Plaintiff may not request this determination to be reconsidered at an oral hearing inter partes.

Hon Kwan JA:

11.I agree with the judgment of the Vice-President.  The trial judge found the plaintiff an unreliable witness and rejected his evidence there was no collision between his vehicle and the defendant's vehicle.  The proposed grounds of appeal to challenge this finding of fact do not have reasonable prospect of success.