Ng Yuen Fai v. Lau Shu Ming and Another
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CACV000018/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO.18 OF 1975 (On appeal from O.J. 1183/73) -----------------
----------------- Coram: Briggs, C.J., Huggins & McMullin, JJ. Date of Judgment: 2nd July 1975. ----------------- JUDGMENT ----------------- Huggins, J.: 1. There are before the Court six motions for leave to adduce further evidence on an appeal, four by the Appellant and two by the second Respondent. A fifth notice of motion given by the Appellant has not been pursued. 2. The principal relief claimed in the action was a declaration that some land assigned to the Respondents was held by them upon trust for the Appellant. Cons, J. dismissed the action. 3. The evidence which the Appellant Plaintiff now seeks to adduce can be divided into five parts. First there are a paper writing and witnesses who would speak to its execution on 23rd September 1971 and to the circumstances surrounding its execution. Secondly there are a tape recording and witnesses who would speak to the occasion on 23rd April 1973 when that recording was made. Thirdly there are witnesses who would speak to a meeting on 18th December 1972 at which the second Respondent is alleged to have admitted that she had no beneficial interest in the land. Fourthly there is evidence which the Appellant himself now wishes to give to prove that false evidence was given at the trial on behalf of the Respondents in relation to his financial affairs. Finally there is evidence that after the trial the second Respondent's son admitted having committed perjury at the trial. 4. There is no dispute between the parties as to the legal principles applicable to the admission of further evidence upon an appeal. Those principles are as laid down in Ladd v. Marshall 1954 1 W.L.R. 1489, Meek v. Fleming 1961 2 Q.B. 366 and Skrzypkowski v. Silvar Investments 1963 1 W.L.R. 525. Mr. Jackson-Lipkin concedes that some of the evidence he seeks to adduce is not within those principles, but he prays the mercy of the Court to include this evidence if the other evidence is allowed in. 5. The most important part of the further evidence is the first - the paper writing. It is a document, alleged to have been signed by the second Respondent, which if genuine would undoubtedly be conclusive of the action in favour of the Appellant. It must be said that the second Respondent swears that this is a forgery, although she admits the signature is hers. She indicates how the forgery could have been committed. The circumstances leave much to be explained by both parties, but for the purposes of these motions I think we ought to assume that the Appellant would be able to satisfy the Court that the document is genuine. The vital question is, why was it not produced at the trial? The Appellant's case is that, although he had persuaded the second Respondent to sign the paper in the first place because he did not trust her, he had put it away and forgotten all about it until he was reminded of its existence by his son "a little while before the trial". He says he then looked for it but could not find it in the time available and did not mention it to his legal advisers or to the Court because he thought it could not be referred to in evidence unless it was actually produced. That seems to me an unlikely story, but I might not be prepared to reject it out of hand were it not for the evidence which he gave at the trial. In cross-examination he said in the clearest terms that he had asked the second Respondent to sign on only one occasion. In the context he must have been talking of the time when she acquired the land and presumably she then signed both "the Agreement" and the Assignment. He told a strange story of having asked her to sign because he believed tax would be avoided if there were more than one assignee. However, what is more important is that he said "there was no written expression of trust" - and this in spite of the fact that for the past two days he had been searching for just such a written expression of trust. In these circumstances I am not persuaded that the Appellant is a credible witness and it follows that I am not satisfied that the paper, if it existed at all before the trial (which I doubt), could not have been produced at the trial by the exercise of due diligence: if he had started looking for the relevant documents and witnesses in 1973 (when the writ was issued) there is every probability that this evidence, even assuming it to be true, could have been adduced at the trial. 6. The recorded tape relates to a conversation at the Appellant's clinic on 23rd April 1973, one month before the institution of these proceedings. It was a memorable occasion because not only is the second Respondent said to have admitted once more that she had no beneficial interest in the land, but the discussion became so heated that all concerned ended up in a police station. The Appellant does not, therefore, suggest that he had forgotten about the conversation: as to the tape he says that before the trial he tried on two occasions to get his solicitors to listen to it and on one occasion he tried to get his counsel to listen to it, but always without success: as to the witnesses who were present he asserts that he was not asked by his solicitors to find those witnesses until notice of hearing was given a week before the trial and that he was unable to find them in time. The tape was clearly available and in respect of it the Appellant throws himself upon the mercy of the Court. As to the witnesses I am not persuaded that they could not have been found if the search had been instituted a reasonable time before the trial. 7. Equally I am not persuaded that the witnesses to the meeting on 18th December 1972 could not have been found if a search for them had been instituted a reasonable time before the trial. As to Chan Tung, who was called, it is submitted that he should be allowed to give evidence which prima facie would contradict the evidence he gave at the trial, on the ground that there was a misunderstanding between him and counsel. I see no justification for this contention. The evidence was recorded by the learned judge in short note from, which can sometimes lead to ambiguity when the note is read by someone other than the maker, but in this instance I see no room for misunderstanding. The witness was clearly asked about the meeting in December 1972 and stated the purpose of the meeting as "to discuss about Mei Foo Sun Chuen flat" (which was not the land in suit). He then mentioned the Agreement which was reached and the note records:
(i.e. the land in suit). That can only mean what it says. 8. The evidence which the Appellant wishes to give in relation to his financial affairs is said to fall within the extension of the principles laid down in Ladd v. Marshall: it is contended that the Appellant's advisers could not reasonably have anticipated the relevance of this evidence. Even if that be correct I agree with Mr. Leung that it relates to a subsidiary matter only and that the basic requirements for its admission on appeal are not fulfilled. 9. That brings me to the final class of evidence now sought to be adduced by the Appellant, evidence of an admission of perjury at the trial. This evidence would be given by an aunt of the Appellant and of the second Respondent, Mrs. Sung Tseung Kim-keung. This lady says she heard the second Respondent's son, Tse Lan-on, say:
The suggestion is that in his evidence Tse Lan-on had said he did pay part of the purchase price of that flat, although that evidence would have been only indirectly relevant to the matter principally in issue. Tse Lan-on said that he "gave" the Appellant a total of $50,000 before he left with his wife on a visit to England, but his subsequent evidence indicated that this was a loan at interest. On 1st June 1970 a down payment was made on the Mei Foo Sun Chuen flat by the Appellant, but Tse Lan-on's evidence was that the whole of that payment came from the money lent to the Appellant. There is nothing in his evidence to the effect that he agreed that the Appellant should make payment on his behalf instead of repaying the loan: on the contrary, he said that he agreed that part of that money should be used to pay his mother's share in a joint venture she went into with the Appellant. Further, he said that there was a balance of $20,000 outstanding on the loan which was eventually set off against the half share of $50,000 which he had to pay on the purchase of the suit land. Nor can I find any assertion by Tse Lan-on that he made any other payment in respect of the Mei Foo Sun Chuen flat: what did happen was that there was an agreement that the Appellant would sell the flat to Tse Lan-on and his mother for $110,000. It seems to me, therefore, that there is no solid foundation for the admission of this witness's evidence and it is unnecessary to consider whether it would be right for this Court to allow the admission of such evidence unless either there had been a conviction for perjury or there was supporting circumstantial evidence. 10. I would dismiss the motions on behalf of the Appellant and it becomes unnecessary to deal with the motions on behalf of the second Respondent, since it has not been suggested that they related to anything more than evidence intended to defeat the applications of the Appellant. 2nd July 1975. Representation: |