TSANG HON CHU FLORENCE v. TSANG HON MAN THOMAS

HCMP 2613/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2613 OF 2011

(ON AN INTENDED APPEAL FROM DCCJ NO. 4307 OF 2008)

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BETWEEN

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DECISION

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1.  On 30 May 2011, after a trial which had taken several days, Judge Leung ordered the defendant ("Thomas") to pay the plaintiff ("Florence") HK$238,652.02 with interest.

2.  Thomas applied for leave to appeal which was heard by the learned judge on 10 October 2011.  Leave was refused by decision which was handed down on 28 November 2011.

3.  This is Thomas' application for leave to appeal out of time.  The application is supported by his affirmation dated 16 December 2011 which states as follows:

"1.   The learned Judge was wrong in fact and in law that the Defendant's counterclaim was not considered in a just and fair way.

2.   The learned Judge wrongly exercised his discretion in that errors were made in the judgment with respect to the calculation of Plaintiff's claim.

3.   There was no evidence upon which the learned Judge could find all the claims made by the Plaintiff.

4.   The learned Judge's conclusion that non-resident rental tax C$3033.63 payment by the Defendant is inconsistent with his finding of the fact that previous non-resident rent tax.

I was away from Hong Kong from October 27 to December 11, 2011.  I just received the judgment."

4.  Since time to appeal will not be extended in any event if the proposed appeal has no reasonable prospect of success, I turn to consider whether the appeal has any reasonable prospect of success. 

5.  As the learned judge said in his judgment of 30 May 2011, Florence's claim against Thomas arose out of financial transactions relating to two properties, referred to in the judgment as the Vancouver Property and the Hong Kong Property.  The Vancouver Property was owned by Florence, and the Hong Kong Property owned by Thomas.  Florence's claim is that she had discharged some of the Thomas' liability in respect of the Hong Kong Property out of her own money.  On the other hand, Thomas' case was that the rental income from the Hong Kong Property, together with the money he had sent to Florence time to time was more than sufficient to discharge his liability in respect of the Hong Kong Property; and that it was Florence who has pocketed some of the money and neglected to repay certain mortgage installments.

6.  The case turned on the evidence of Florence and Thomas.  It is clear from the detailed judgment, the learned judge preferred the evidence of Florence over the evidence of Thomas.  Indeed, in relation to one aspect of Thomas' evidence, namely that Florence's claim had been settled at $50,000 on 12 October 2006.  He said:

"102.    T’s pleaded case and his evidence in court can hardly be reconciled.  His above evidence also defies understanding, if he in fact considered F owed him money."

7.  In other words, this is an appeal against findings of primary facts made by a trial judge.  As the decision of the Court of Final Appeal in Ting Kwok Keung v Tam Dick Yuen and Ors [2002] HKCFAR 336, shows the Court of Appeal is not entitled to interfere with findings of primary facts unless it is satisfied that the conclusion reached by the trial judge on the facts was plainly wrong.  Thus, the burden on an appellant is a heavy one.

8.  When Thomas applied for leave to appeal before the learned judge, Thomas had put forward various reasons why leave should be granted.  The learned judge has carefully dealt with those reasons.  They are self-explanatory.  I agree with them and will not repeat them.

9.  Thomas has in this application repeated his allegation that the learned judge was unfair and biased.  Such allegations are wholly unparticularised allegation. The fact that the learned judge had decided against him is not evidence that he had been biased or unfair in any way.  It is quite clear from the long judgment (25 pages) and the decision which is 5 pages long, the learned judge has carefully evaluated the evidence, dealt with all the points raised by the parties who acted in person in what was undoubtedly a bitterly fought case.

10.  It is clear to me that the proposed appeal has no reasonable prospect of success.  That being the case, it follows that no extension of time to appeal should be granted.

11.  The application for leave to appeal out of time is refused.

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

Hon Kwan JA:

13.  I agree with the judgment of the Vice-President in refusing leave to appeal out of time.