Eden Connections Design & Engineering Co v. Ayash Omer

HCMP 270/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 270 OF 2012

(ON AN INTENDED APPEAL FROM DCCJ NO. 2739 OF 2009)

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BETWEEN

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Before: Hon Tang VP and Kwan JA

Date of Judgment: 20 March 2012

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JUDGMENT

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Hon Tang VP (giving the judgment of the Court):

1.The dispute between the parties arose out of a contract for renovation works at the Defendant's restaurant.

2.After a 3-day trial, Deputy District Judge J Wong gave judgment in favour of the Plaintiff in the sum of $67,611.50 with costs, and dismissed the Defendant's counterclaim with costs.

3.The learned Deputy Judge's judgment which is 24 pages long handed down on 8 November 2011 and contained a careful analysis of the evidence which was adduced before him.  He found in favour of the Plaintiff because he said at para 12, "all contemporaneous documents … largely support" the Plaintiff.  More importantly, he said he preferred the evidence of the Plaintiffs witnesses (Mr Ching and Ms Lee) to the evidence of the Defendant: para 13.  Nor did he accept the evidence of Mr Tsang, "the 'expert" for the Defendant": see para 14.

4.Thus the decision turned on the assessment by the trial judge of the evidence adduced before him.

5.In the learned Deputy Judge's decision of 3 February 2012 refusing leave to appeal, he explained why he was of the view that the appeal has no reasonable prospect of success and that there is no other reason in the interests of justice why the appeal should be heard:  section 63A(2) of the District Court Ordinance (Cap 336).

6.Basically the draft notice of appeal complained that the Plaintiff's evidence was accepted and the Defendant's not.

7.Ting Kwok Keung v Tam Dick Yuen and Ors (2002) 5 HKCFAR 336, a decision of the Court of Final Appeal shows clearly the threshold which an appellant has to overcome in order to appeal successfully against a finding of fact is a high one. 

8.In the circumstances of this case I agree with the learned trial judge there is no reasonable prospect of the appeal succeeding.  Leave to appeal is therefore refused.

9.We also make an order under O 59 r 2A(8) that the Defendant may not require this determination to be reconsidered at an oral hearing inter partes.