Shieh Shin Jiu v. Mak Shiu Kei Johnny and Another
Read the full judgment text of CACV 174/1997 on BabelCite. This Court of Appeal judgment was delivered on 13 April 1999 before Godfrey JA, Liu JA, Findlay J.
Civil appeal – shares – transfer of shares – authenticity of signatures on instruments of transfer – allegation of forgery – appellate review of primary fact findings – Court of Appeal – civil action – standard of review – witness credibility – rehearing. Civil procedure – appeal from Court of First Instance – whether appellate court can disturb trial judge's finding of primary fact based on credibility. The respondent, a Taiwanese businessman, brought proceedings against Mr. and Mrs. Mak concerning two undated instruments of transfer of shares in Zheng Yuan Enterprises Co. Ltd. executed in May 1991 at a stated consideration of $1 each. Mr. and Mrs. Mak denied signing the transfers, alleging forgery. At trial, the respondent could only produce photocopies, and a handwriting expert was unable to express an opinion on genuineness without the originals. The trial judge, having considered all the evidence and the inherent probabilities, found the respondent's case overwhelming and held the signatures authentic. On appeal, the appellants argued that the initial share arrangements gave them a substantial beneficial interest which they would not surrender for nominal consideration, and that the judge should have found forgery. Held, appeal dismissed. The court reaffirmed that, although an appeal is by way of rehearing, the appellate court will not usurp the trial judge's function of finding facts, and will not disturb findings of primary fact based on credibility assessments. An appellant must show either that there was no evidence to support the finding or that it was contrary to documentary or other incontrovertible evidence overlooked by the judge. It is not enough to show the finding was contrary to the weight of the evidence, as weight is a matter for the trial judge. Here, the trial judge, having had the advantage of seeing and hearing the witnesses, accepted the respondent's evidence and rejected the allegation of forgery; the appellate court could not come to a contrary conclusion. Per Findlay J, an uncomfortable feeling that the appellants may have had a better case than pleaded did not affect the disposition. Appeal dismissed.
Legal issues: Standard of appellate review of primary fact findings on authenticity of documents
Outcome: Appeal dismissed; trial judge's finding that the signatures on the instruments of transfer were authentic upheld.
Cited by 11 cases
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CACV000174/1997 CACV 174/1997 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 174 OF 1997 (ON APPEAL FROM HCA NO. A9096 OF 1991)
---------------------- Coram : Hon. Godfrey, Liu, JJ.A. & Findlay, J. Date of Hearing : 13 April 1999 Date of Judgment : 13 April 1999 ---------------------- J U D G M E N T ---------------------- Godfrey, J.A. : Introduction 1. This is an appeal from an order of Master Woolley (sitting as a deputy judge of the Court of First Instance of the High Court) made on 25 March 1997. The dispute which the judge had to resolve was a dispute as to the authenticity of the signatures appearing on two undated instruments of transfer of shares made in May 1991, the first being a transfer by Mak Shiu Kei, Johnny ("Mr. Mak") of one share in Zheng Yuan Enterprises Co. Ltd. ("the company") to Shieh Shin Jiu ("Mr. Shieh"), and the second a transfer of another share in the company by Ma Shuk Hing ("Mrs. Mak") to Mr. Shieh. The stated consideration in each transfer was $1. The instruments of transfer were accompanied by sold and bought notes relating to the transaction. All these documents appear to have been signed as appropriate by Mr. or Mrs. Mak, but the authenticity of the transfers is denied. 2. At the trial of the action, Mr. and Mrs. Mak appeared in person, and Mr. Mak gave evidence. The judge, contrary to the submissions made by Mr. Mak on behalf of himself and Mrs. Mak, held that the signatures on the instruments of transfer were authentic and accordingly resolved the proceedings in favour of Mr. Shieh. Mr. and Mrs. Mak now appeal to this court. The background 3. The background may be shortly stated. 4. The plaintiff is a Taiwanese businessman, in the business of, among other things, manufacturing parts for the mechanism of tape recorders. Mr. and Mrs. Mak have been associated with him for some years. Mr. and Mrs. Mak worked for him in Hong Kong. The company was incorporated in Hong Kong for the further pursuance of the business. Four shares in the company were allotted, each of $1; one was allotted to Mr. Mak, one to Mrs. Mak, one to Mr. Shieh and one to his wife. 5. Mr. and Mrs. Mak's case, which Mr. Shieh denies, is that these shares were issued to them to reflect a 50% beneficial ownership in the company; but this is not a question which fell to the judge to decide, and is not one which we can review. 6. Although the company had some success, the first set of audited accounts showed an overall loss. It appears that in early 1991, Mr. and Mrs. Mak wished to resign as directors, and to give up their shares in the company. 7. The minutes of a meeting of the company held on 31 March 1991 record the resignation of Mr. and Mrs. Mak as directors of the company and record that the transfers of their shares to Mr. Shieh was approved. 8. The evidence at the trial given by Mr. Mak was to the effect that he and Mrs. Mak did not sign the instruments of transfer. As I have already said, Mrs. Mak did not give evidence. Mr. Shieh said that Mr. and Mrs. Mak did execute these transfers, but he was unable at the trial to produce the originals, and was only able to produce photocopies of the transfers. There was evidence at the trial from a handwriting expert who expressed the view that it was possible that the documents were forgeries and said this :-
The judgment below 9. The judge reviewed all the evidence, and after considering all the matters which he had to consider (including the inherent probabilities of the case, as to which he had some sympathy with the position of Mr. and Mrs. Mak), found Mr. Shieh's case as to these documents "overwhelming". He said this :
The appeal 10. It is said by Mr. Li for Mr. and Mrs. Mak today that the facts of the case dictate a different conclusion, because the initial arrangements in favour of Mr. and Mrs. Mak must have given them a substantial beneficial interest in the company, which they would not be prepared to transfer for only a nominal consideration. He says the judge should have found himself compelled to find that these instruments of transfer were forged. Conclusion 11. For myself, I find it quite impossible to accept that submission. This is an appeal on a pure question of fact; a, very serious, allegation of forgery. The judge refused to find as a fact these documents were forged. 12. The appeal is by way of rehearing, but that does not mean that this court will retry the case. This court will not usurp the function of the trial judge to find the facts. It certainly will not disturb his findings of primary fact when these are based on the credibility of the witnesses and a preference for the evidence of one witness over that of another. The extent to which an appellate court can interfere with a judge's findings of primary fact is very limited. An appellant who seeks to disturb an adverse finding of primary fact has to demonstrate either (1) that there is no evidence to support it; or (2) that it is contrary to documentary or other incontrovertible evidence which the judge overlooked. It is not enough to show that there is very little evidence to support the judge's finding or that it was "contrary to the weight of the evidence". The weight of the evidence is a matter for the trial judge. It does not matter how many witnesses say one thing, and how few say the contrary. The judge is entitled to prefer the evidence of the few to that of the many. 13. In a case like the present, in which the judge recoiled from finding that the instruments of transfer in question here were forged, it is really impossible for us to come to a contrary conclusion without having seen or heard the witnesses and therefore not having the advantages which the trial judge had. 14. For these reasons, I consider there is no course open to us but to dismiss this appeal. Liu, J.A. : 15. I agree that the appeal should be dismissed for the reasons given by the President. I also agree that at the root of this appeal is the question whether the documents were forged as alleged. It really matters not what the Maks said of the two shares, nor what Mr Shieh said about his wanting them to have one percent, nor that the two shares to the Maks only came to light when they were about to resign as directors. Findlay, J. : 16. I agree. 17. I would only like to say that I have an uncomfortable feeling that the appellants in this case might have had a far better case than was ever pleaded or advanced in the court below, but that is no more than a suspicion. The court below, and, of course, this court, must deal with the case as pleaded and advanced by the appellants. 18. So, for the reasons given by my brothers, I would agree that the appeal must be dismissed.
Representation: Mr. C.Y. Li (M/s. Or, Ng & Chan) for 1st & 2nd Defendants by Original Action & 1st & 2nd Plaintiffs by Counterclaim Mr. John J.E. Swaine (M/s. Simon Ng & Co.) for Plaintiff by Original Action & 1st Defendant by Counterclaim |
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