BAUHINIA CATERING MANAGEMENT CO LTD v. HEUNG SAI KIT AND OTHERS

DCCJ5561/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5561 OF 2006

________________________

BETWEEN

________________________

________________________

D E C I S I O N

________________________

1.  At today’s application hearing, the defence applies for leave to appeal my judgment of 29 April 2011 in this action.

2.  The defence notice of appeal raises 11 grounds of appeal on my findings that there was no oral agreement on the parties’ split of the LPG discount from the supplier and on my failure to apply the doctrine of waiver and acquiescence of the plaintiff, based on the plaintiff’s conduct.  The last ground was on my refusing to allow the rectification of the first and second agreements between the parties.

3.  Section 63A(2) of the District Court Ordinance, Cap.336 provides the following:

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave 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.”

4.  The defendant’s appeal belongs to the “reasonable prospect of success” category, it is not a matter of public interests. 

5.  I adopt the judgment of Chu J (as she then was) in Wynn Resorts (Macau) SA v Mong Henry, HCA 192/2009, paragraph 19:

“To meet the “reasonable prospect of success” test, an applicant is required to show more than just an arguable case, but an appeal that has merits and ought to be heard although he does not have to demonstrate that the appeal will probably succeed.”

6.  Le Pichon JA in the Court of Appeal said in her judgment in SMSE v KL, CACV 111/2009 (date of judgment on 15 May 2009) at paragraph 17:

“Reasonable prospect of success involves the notion that the prospects of succeeding must be ‘reasonable’ and therefore more than ‘fanciful’, without having to be ‘probable’.”

7.  I also refer to Bokhary PJ in the case of Ting Kwok Keung v Kam Dick Yuen, [2002] 1 HKC 601,

“Where the Court of Appeal is satisfied that the conclusion reached by the trial judge on the facts was plainly wrong, it should intervene. If the Court of Appeal is not so satisfied, it should defer to the trial judge’s conclusion, even if in some doubt as to its correctness”.

8.  This passage can also be found in the Hong Kong Civil Procedure 2011, page 10-16, under paragraph 59/0/58 on ‘appeal against decisions of questions of fact’.

9.  The defence, therefore, has to show I was plainly wrong in my findings of fact in order to succeed in the appeal.  Furthermore, the defence has also to show the prospect of succeeding in the appeal is reasonable, not merely fanciful or just an arguable case.

10.  I am not able to find the defence’s grounds of appeal to be meritorious and I am not satisfied the defence has shown it has a reasonable chance to succeed in the appeal.  The highest I will put the defence case is, it is barely arguable.

11.  I have a full understanding of the evidence adduced at the trial, I have heard and seen the witnesses giving evidence in court.  I have considered the witness statements and the documentary evidence in support, after careful analysis of the evidence before me, I came to the findings set out in my judgment.

12.  As to the application of the legal doctrine of waiver and estoppels, and acquiescence, I have also made findings based on my conclusions on the evidence, taking into account the fact that the plaintiff had received payments from the university after calculations made by the staff club submitted to the university accounts/treasury department, and I have also dealt with whether the acceptance of payments constituted a waiver or acquiescence or whether due to the conduct of accepting monthly payments, the plaintiff was estopped from denying the LPG discount arrangement.

13.  I do not wish to repeat the reasons given in my judgment here, suffice it to say that I have dealt with those points, the legal issues in particular in my judgment which I shall not repeat.

14.  I have no doubt Miss Tsui, counsel for the defendants, has diligently gone through the transcript of the trial, all the evidence and my judgment, I am unable to agree with Miss Tsui that the defendants have any reasonable prospect of success in the appeal.

15.  Based on my finding of facts, the judgment speaks for itself.  I have no intention to go into the details of the case here and, in view of the lack of merits in the appeal, leave to appeal is refused.

16.  As to the application for stay of execution, the plaintiff should not be deprived of the fruits of the litigation unless there are exceptional circumstances or matters of exceptional nature.  I can find none here.  The application is, therefore, refused.

(Discussion re costs)

17.  For present purposes, the cost of the application to follow the event and will be borne by the defendants, to be taxed if not agreed, with certificate for counsel.