YIP MEI NA v. CHOW LAP KWOK PATRICK AND OTHERS

DCCJ1226/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1226 OF 2015

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DECISION

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1.  The plaintiff, now appearing in person, applies for leave to appeal against the Judgment herein handed down on 15 June 2017 (“the Judgment”). At trial, the plaintiff was legally represented.

2.  In this decision, I adopt the same abbreviations used in the Judgment.

3.  By the Judgment, I dismissed with costs the plaintiff’s claim for HK$430,000 said to be the unpaid purchase price of the Share in the Property.  In gist, I adjudged that the plaintiff held the Share in resulting trust for Chow Senior and Madam Chow, and Chow Senior and Stephen therefore are not liable to pay the plaintiff the price claimed.  I also held in favour of their fallback defence that even if the plaintiff’s claim were established, the same had been paid for by Madam Chow’s payment of a total sum of HK$450,000 to the plaintiff.

Applicable legal principles

4.  Section 63A(2) of the District Court Ordinance Cap 336 provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard.

5.  It is trite that a reasonable prospect of success involves the notion that the prospect of succeeding must be reasonable and therefore more than fanciful, without having to be probable: SMSE v KL [2009] 4 HKLRD 125, KNM v HTF (unrep. HCMP 288/2011) and Hong Kong Civil Procedure 2017 §59/2A/4.

6.  In relation to an appeal against a finding of primary fact, the Court of Appeal will intervene only if it is nevertheless satisfied that such finding is plainly wrong, even though it does not enjoy the advantages enjoyed by the trial judge who received the evidence at first-hand: Ting Kwok Keung v Tam Dick Yuen & Others [2002] 5 HKCFAR 336; and the Court of Appeal is reluctant to interfere with the findings of fact made by the trial judge particularly where they turn on the credibility or otherwise of the witnesses: Hong Kong Civil Procedure 2017 §59/19/3.

Proposed grounds of appeal and discussion

7.  In her affirmation filed on 13 July 2017, the plaintiff made the following 3 complaints:-

“1. The Judge failed to consider the Plaintiff’s evidence thoroughly, especially the documentary evidence of the Plaintiff.

2. The Judge (sic) wrong in consider (sic) many irrelevant factors and was bias.

3. It was unfair to the Plaintiff that the Judge failed to consider the matter as a whole in an objective way.”

8.  For ease of reference, I shall refer to these 3 complaints as respectively “Ground 1”, “Ground 2” and “Ground 3”.

9.  In the hearing, I invited the plaintiff and gave her ample opportunity to explain and particularize her 3 Grounds.

10.  In respect of Ground 1, the plaintiff identified 4 documents she said the court should have considered, but has failed to.  They are:-

(a) a 2-page statement dated 2 March 2015 written by the plaintiff being Attachment 1 to her Form J in FCMC 10952/2005[1] filed in response to Stephen’s application made in January 2015 for custody of Terry;

(b) a 3-page letter written by the plaintiff dated 30 March 2015 to the Family Court in FCMC 10952/2005 in respect of her claim for unpaid maintenance and other expenses[2];

(c) a 1-page hand written letter dated 5 May 2011 by Madam Lo, a social worker, being Attachment 2 to the letter mentioned in sub-paragraph b above[3]; and

(d) the report of Social Welfare Department dated 21 April 2015 submitted to the Family Court in FCMC 10952/2005 in relation to the question of custody of Terry[4].

11.  These 4 documents in fact have not been referred to in the plaintiff’s witness statement dated 23 February 2016, nor have they been referred to or relied on by counsel for the plaintiff at trial, whether in examination of witnesses or submissions.  I have however read through them before trial.  In my view it is right that they have not been so referred to.  The contents of these 4 documents did not touch on or assist in the 2 main issues for trial.

12.  The report of Social Welfare Department evidently reported on matters relating to Terry to assist the Family Court on the question of Terry’s custody.  The short letter by Madam Lo spoke positively about the plaintiff in respect of familial matters to offer her support.

13.  The 2-page statement and the 3-page letter written by the plaintiff set out, among others, her viewpoints against the Chows’ about many familial and money matters.  They also contain allegations that the Chows owed her the claimed price of HK$430,000.  These are however self-serving statements made long after the fact on the probative value of which this court took a dim view.

14.  I therefore take the view that an appeal based on Ground 1 has no reasonable prospect of success.

15.  In respect of Ground 2, the plaintiff at the hearing explained and particularized that she thought this court has taken into account irrelevant factors by having taken into account, as stated in paragraph 113 of the Judgment, her answers in cross-examination that she was surprised that Madam Chow offered an amount as huge as HK$550,000 as compensation for the verbal harassment[5].

16.  I so considered her said answers in relation to the Chows’ said fallback defence.  I have stated clearly in the Judgment that in finding in favour of that defence, (a) I placed great weight on the contemporaneous text messages exchanged between the parties; (b) I have considered the parties’ general credibility as well as credibility of their versions as against what were stated in the text messages; and (c) I have weighed the inherent probabilities of the parties’ competing versions.  In viewing the plaintiff’s version as less inherently probable, I have also considered the parties’ contemporaneous reaction in the course of such communications, including the surprise expressed by the plaintiff.  The plaintiff’s said reaction is but one factor in the totality of evidence.  I am of the clear view that such reaction is not irrelevant and is a piece of evidence (among others) that as trial judge I can assign it its due weight; and in this case, some weight in assessing the inherent probabilities. 

17.  Thus, the plaintiff has no reasonable prospect of success in an appeal based on Ground 2.

18.  In respect of Ground 3, she explained and as I understood it, her complaint was that I have not duly considered the effect of the Conveyance.  She reasoned that even if the Share was held by her in resulting trust in favour of Chow Senior and Madam Chow, but by obtaining its return through executing the Conveyance in which the price of HK$430,000 was named, Chow Senior and Madam Chow should be liable to pay.

19.  Such line of argument however was not pleaded in the plaintiff’s Amended Reply.  It was never pursued or even mentioned by the plaintiff at trial (not that she would be entitled to).  In the plaintiff’s opening speech at trial, Miss Lau for the plaintiff confirmed, rightly in my view, that the issues for trial as disclosed by the pleadings were the 2 issues dealt with in the Judgment.  In any event, the plaintiff’s such argument is in my view unmeritorious.

20.  Again, I have no hesitation to conclude that her Ground 3 has no reasonable prospect of success.

21.  Essentially, the plaintiff’s proposed appeal is seeking the overturning of many findings of primary facts made by me.  I also consider that her 3 Grounds have no reasonable prospect of meeting the high hurdle in appealing against a finding of fact as set out in paragraph 6 above.

22.  Apart from the 3 Grounds, the plaintiff has not relied on the second limb of section 63A(2), namely, that for some other reason in the interests of justice why the appeal should be heard.

23.  I therefore must dismiss the plaintiff’s application with a costs order nisi that she pays the costs of the defendants.