YOKVIEW CO LTD v. LO YING KIT HENRY t/a AGT AND OTHERS

DCCJ 5136/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.5136 OF 2009

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DECISION

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1.  There are 2 applications of leave to appeal before me.

2.  Briefly, after a trial of 3 days, on 28 July 2011, I handed down a Judgment in favour of the Plaintiff. As a matter of fact findings, on balance, I accepted the case of the Plaintiff and refused those of the 1^st and 3^rd Defendants.

3.  The Plaintiff found its action for libel against all the Defendants.

4.  The 2^nd Defendant did not take any step in the proceedings and as such, default judgment was obtained against her.

5.  Both the 1^st and 3^rd Defendants defended for the proceedings. The former said that he knew nothing about the matter at all. He was only innocently brought into the dispute. The 3^rd Defendant argued that she was being set up by the Plaintiff and denied any involvement in the matter.

6.  After considering the documents, oral evidence of the witnesses and inherent probability/improbability of the parties’ cases, I rejected the Defences. By the Judgment, I found that the 3^rd Defendant, having been dismissed by the Plaintiff, decided to solicit its customers to her new business set up in the name of the 1^st Defendant. The 2^nd Defendant was the sales marketing coordinator of the new business and she issued various defamatory e-mails to various overseas customers of the Plaintiff. They however relayed those e-mails to the Plaintiff who then investigated into the matter, leading to the institution of the present proceedings.

7.  I granted an injunction against both the 1^st and 3^rd Defendants. They were also ordered to pay compensatory and aggravated damages to the Plaintiff in the total sums of $300,000 as well as costs.

8.  Both the 1^st and 3^rd Defendants later applied for leave to appeal against the Judgment.

9.  I heard the matter on 7 November and reserved my decision to be handed down. I now do so.

10.  Upon consideration, I have decided to refuse to grant the leave sought by both the 1^st and 3^rd Defendants. My reasons appear in below.

(a)  The relevant provision regulating whether leave should or should not be granted is located in section 63A (2) of the District Court Ordinance (Cap. 336).

“(2) Leave to appeal shall not be granted unless the Judge…is satisfied that -

(a) the appeal has a reasonable prospect of success; or

(b)   there is some other reason in the interests of justice why the appeal should be heard.”

(b)I am not satisfied either of the above grounds have been   established by the Defendants.

(c)  I do not intend to deal with each of the proposed grounds of appeal by the Defendants individually as some of them overlap with each other. It suffices for me to say the followings.

(d)The burden of proof lies on the Plaintiff. I did not rule otherwise in the Judgment.

(e)  Regarding the findings of facts, I remain of the same view that the case of the Plaintiff was preferred than those of the Defendants. The mere repeating of what was argued at the trial will not advance the position of the Defendants.

(f)   I do not consider that the “complaints” by the Defendants upon the “failure” on the part of the Plaintiff to call the overseas customers or any of its staff to come to Hong Kong to testify are justified. There are clear District Court rules governing how the argument ought to have been properly dealt with. If the Defendants, themselves or through their solicitors, did not follow the rules, they could only blame themselves but not others. Further, I did consider two alterative situations in the Judgment. Either I would have dispensed with the attendance of the overseas customers or that my assessment of the parties’ cases would be substantially the same without the evidence of the overseas customers.

(g)  As to the amount of damages assessed by me, I fail to see any reason to vary the same or at all.

11.  There will be an order nisi that the 1^st and 3^rd Defendants do pay costs of the Plaintiff in the applications of leave to appeal, to be taxed, if not agreed.