Zhuo Cui Hao v. Ting Fung Yee

CACV000108BX/1998

[English Translation - 英譯本]

CACV 108/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 108 OF 1998

(ON APPEAL FROM HCA 7558 OF 1996)

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Coram : Hon. Chan CJHC, Liu and Leong JJA in court

Date of Hearing : 5 March 1999

Date of Judgment: 5 March 1999

Date of Handing Down of Judgment : 19 April 1999

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JUDGMENT

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Chan CJHC (delivering the judgment of the Court):

1. The Respondent, Madam Zhou Cui Hao (the Plaintiff in the present case), was the wife of the late Mr Ng Ching Poon who died on 9th December 1990. The Plaintiff is the sole executrix named in his last will and the sole beneficiary thereunder. The suit premises, which is a flat situate in Camp Street, Kowloon is included, among other property, in the estate of the late Mr Ng.

2. The Appellant, Madam Ting Fung Yee (the Defendant in the present case), lives in the suit premises and receives rent obtained therefrom. The Plaintiff applied to the court for an order of possession requiring the Defendant to vacate the suit premises, an order that the Defendant was to pay to the Plaintiff all the rents received from the suit premises and other relevant orders. After trial the trial judge entered judgment in favour of the Plaintiff. The Defendant appeals against that decision.

3. Before the Plaintiff initiated the proceedings in this action, she had made an application to the High Court for a grant of probate in respect of the will of the late Mr Ng. That application was opposed by the Defendant on the ground that the suit premises should not be regarded as part of the estate of the late Mr Ng because she has an interest in the suit premises. The trial of that case took place in 1995. It was the view of the court that the Defendant did not have the locus standi to oppose the application for a grant of probate in respect of the will of the late Mr Ng. The Defendant's objection was therefore dismissed and it was ordered that probate of the late Mr Ng's estate be granted to the Plaintiff. The court also directed that the Defendant should institute a fresh action if she wished to make a claim to an interest in the suit premises. The present case is the action which concerns the interests in the suit premises.

4. The Defendant avers that she was in cohabitation with the late Mr Ng since 1980. At first they lived elsewhere. Later, they jointly purchased certain properties and carried on the business of a male dormitory. The suit premises was jointly purchased by them. It was mortgaged to the bank and was converted into and decorated as a male dormitory. The income from the aforesaid business was used to pay off the mortgage repayments. The Defendant further avers that she is entitled to an interest in the suit premises because she had contributed towards the payments for the purchase of the suit premises, the conversion and decoration of the suit premises as a male dormitory and the mortgage.

5. The Plaintiff does not accept that the Defendant had ever cohabited with the late Mr Ng and denies that the Defendant and Mr Ng had ever jointly purchased any property including the suit premises. She alleges that the Defendant was only employed by Mr Ng to manage the male dormitory on his behalf and this does not constitute the acquisition of any interest in the suit premises. The Defendant was simply given a licence to occupy the suit premises. After the death of Mr Ng, solicitors acting on behalf of the Plaintiff wrote to the Defendant determining her licence to occupy the suit premises and requiring her to vacate the suit premises and return all of the rents she has received.

6. According to the trial judge, the Defendant gave evidence in court but did not call any witness. Nor did she produce any document to show that she did not merely manage the suit premises, but also has an interest in it. Having rejected the Defendant's evidence, the trial judge entered judgment in favour of the Plaintiff and dismissed the Defendant's counterclaim which asked the court to pronounce that she was entitled to an interest in the suit premises. In the whole judgment, the judge gave a brief account of the facts not in dispute, set out the pleadings and the main points contained therein and pointed out the disputed facts. As to why the Defendant's evidence was rejected, the trial judge explained as follows:

"All of those matters are for the Defendant to prove on a balance of probabilities. And she has not satisfied me of any of them on such a balance. I do not regard her story as inherently likely. But it is by no means impossible. I listened to her with the greatest care and with a more benevolent disposition given that she is in person. But, having done so, I have to say that she did not impress me as a credible witness."

7. The grounds of appeal set out in the Defendant's Notice of Appeal are that there is no reason for the trial judge to reject her evidence and that the judge failed to give reasons for not believing her. The Defendant alleges that the judgement is incorrect and inconsistent with the facts.

8. The Defendant has been acting in person both at the trial and in this appeal. She states that a number of documents were produced by her to the court at the trial to show that she did collect rents. These documents, as pointed out by the trial judge, show nothing more than that she managed the suit premises and collected rents and they do not show that she has any interest in the suit premises.

9. Nevertheless, in the submissions made by the Defendant before us at the hearing of this appeal, there is some evidence which was not mentioned by her at the trial. That includes her allegation that a sister of Mr Ng has given her a power of attorney by which she is authorized to manage her property. The Defendant further states that the Plaintiff, after having arrived in Hong Kong from the Mainland, just had a short stay here and then emigrated to Canada. Later, Mr Ng was seriously ill. At first the Plaintiff refused to return to Hong Kong. Subsequently, after having returned to Hong Kong, the Plaintiff together with her son and daughter-in-law had a meeting with Mr Ng and the Defendant to discuss matters concerning his estate. There the Plaintiff asked Mr Ng to transfer all the property in his name to her. Yet Mr Ng insisted to reserve the suit premises for the Defendant. And to this, no objection was raised by the Plaintiff and her son. One day, while Mr Ng was in hospital in a serious condition, the Defendant went to visit him but found that he was not there. She then called the police and later found that the Plaintiff had taken Mr Ng to another hospital with intent to keep her in the dark about it. The Defendant further states that the identity card of Mr Ng is still kept by her as she was the one who made arrangement to send him to the hospital at the initial stage.

10. In reply to the enquiry made by this Court, the Defendant states that the reasons why so many new matters raised above were not raised at the trial are that nobody mentioned about them and the trial judge did not ask her to give evidence in that aspect.

11. The suit premises has been registered in the name of Mr Ng. On the face of it he was the owner of it in law. After his death, it should become part of his estate of which the Plaintiff is the lawful beneficiary. If the Defendant wants to rebut this and seeks to acquire an interest in the suit premises, she has the burden of proving that she is entitled to such interest. For this reason, the trial judge was right in stating that those allegations of facts were for the Defendant to prove on a balance of probabilities. Also, the trial judge, after having heard all the evidence, was entitled to believe or disbelieve the evidence of any witnesses, including the Defendant's. However, the trial of this case lasted for six days and there was substantial oral and documentary evidence before the court. Although the documents produced by the Defendant cannot provide direct proof to show that she has an interest in the suit premises, these documents and evidence may be used to support part of her oral evidence. At least, they do not contradict her oral evidence. Therefore, it would seem rather unconvincing if the court simply stated without elaboration that the Defendant was not a credible witness and that her evidence was not accepted. In her judgment the trial judge first stated that she did not regard the Defendant's story as inherently likely. She went on to say that it was not at all impossible. Probably what it means is that the evidence of the Defendant did not reach the standard of proof as required by law. Apparently there is indeed ambiguity in the judge's statements. But what is more unacceptable is that the judge did not further elaborate which parts of the Defendant's evidence were incredible and the reasons why they were incredible.

12. Generally speaking, a professional judge is under a duty to analyse in his judgment the material points in the evidence of the case and give reasons as to why he has reached a particular conclusion or decision. This is the only way to make people understand why their evidence is not accepted by the court and why they lose in a case. Only by this can justice be seen to be done. Furthermore, the losing party needs to be clear on whether there is any error in the reasons for the decision given by the court before he can decide whether to appeal or not, and, at a later stage, submit to the Court of Appeal his grounds of appeal in order to seek to set aside the original decision. A professional judge is under a duty to give adequate reasons for any decision which he has made. This is a principle of paramount importance in the common law system. This principle is quite clear. Recently the Court of Final Appeal has also mentioned this important principle in Oriental Press Group v. Obscene Articles Tribunal [1998] 2 HKLRD 857, 866. Nevertheless, from time to time some professional judges still forget to give adequate reasons in their judgments. Take the United Kingdom as an example. The UK Court of Appeal has recently found it necessary to reiterate this principle in Flannery and Another v. Halifax Estate Agencies Limited (Independent Law Report 26 February 1999; Times Law Reports 4 March 1999). There are some similarities between that case and the one before us in that the trial of that case lasted for eight days and a large part of the 29-page judgment given by the trial judge was on the disputes of facts, among which the more important ones were related to the evidence of experts from both sides. In the final part of the judgment in that case, the trial judge simply stated that he accepted the expert evidence of a particular party and entered judgment in favour of that party without specifically analysing the evidence or giving reasons as to why he accepted the evidence of that party. The UK Court of Appeal took the view that from such a brief and simple judgment it was rather difficult for anyone to find out the reasons for the decision. For this reason the original decision was set aside. After the hearing of the present appeal, we searched in the Internet and obtained the original text of that judgment. In the judgement given by the UK Court of Appeal, there was a rather detailed discussion on the duty of professional judges to give adequate reasons for their decisions. In our view, it is worth taking note of the guidelines reiterated in that judgment.

13. For the various reasons stated above, we take the view that the judgement of the trial judge must be set aside. At the hearing of this appeal the Defendant has given some new information which, if found to be true, will be helpful to her case. Therefore, we order a retrial before another judge and make an order nisi as to costs. In other words, unless either party applies to vary the costs order nisi within fourteen days of the handing down of this judgment, the order nisi shall become absolute. The order nisi given by this Court is that costs of the appeal be to the Defendant and costs of the proceedings before the judge of the Court of First Instance be costs in the cause of the retrial.

14. As this is a case which involves some points of law on interests in property and there are substantial disputes on facts, the Defendant will definitely be put at a disadvantage if she acts in person. We therefore advise the Defendant to apply for Legal Aid forthwith so that she will be legally represented at the retrial.

Representation:

Appellant, Ting Fung Yee, in person

Ms Lisa Yip, assigned by the Legal Aid Department (M/s C. K. Mok & Co.) for the Respondent