LAM WING LAI v. Y T CHENG (CHING TAI) LTD

DCEO6/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES CASE NO. 6 OF 2004

D E C I S I O N

1.  The defendant applies for leave to appeal my judgment in this action handed down on 23 December 2005.  Mr Cheung, counsel for the defendant, did not prepare a skeleton submission today.  He relied on the grounds of appeal filed with the summons for the application for leave to appeal.

2.  Upon reading the defendant’s grounds of appeal it is abundantly clear that the defendant’s intended appeal is based on the finding of facts, so it is an appeal on facts.  Mr Cheung relied on the Court of Final Appeal judgments in the Nina Kung v Wang Din Shin, FACV 12 of 2004, a judgment handed down on 16 December 2005.  Mr Cheung submitted that even the CFA would go into examining of the facts in a case and reverse the trial judge’s finding of facts.

3.  The Court of Final Appeal judgment of Chan PJ referred to me was on the handwriting expert’s evidence.  The judgments of Ribeiro PJ and the other judges of the Court of Final Appeal hearing the matter, in reversing the trial judge’s decision, were on the applicable principles under the Wills Ordinance and the Probate Practice.  Paragraph 247 of Ribeiro PJ’s judgment pointed out that:

“the case turns crucially on the determination of what inferences can properly be drawn from proven facts and on the evaluation of expert evidence.”

4.  Clearly, in that case, the facts were proven and there was expert evidence adduced, the Court of Final Appeal’s decision was based on those facts and the evaluation of the expert evidence.

5.  Miss Lau, counsel representing the plaintiff, instructed by the Equal Opportunities Commission, referred in her submission to the judgment of Lord Woolf, the then Master of the Rolls, in the case of Smith v Cosworth Casting Processes Limited [1997] 1 Weekly Law Reports, 1538:

“1.   The court will only refuse leave if satisfied that the applicant has no realistic prospect of succeeding on the appeal.  This test is not meant to be any different from that which is sometimes used which is that the applicant has no arguable case........ ” 

“2.   There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success.  For example, the issue may be one which the court considers should in the public interest be examined by this court or, to be more specific, this court may take the view that the case raises an issue where the law requires clarifying”.

6.  The defendant’s grounds of appeal disclose that the appeal was purely on facts, although Mr Cheung added a further ground on the victimisation finding under paragraph 63 of my judgment.  The finding was made on the basis that it was an academic exercise.  I made a finding of victimisation under section 9(1)(d) of the Ordinance based on my finding of fact that the plaintiff was dismissed because of her pregnancy and family status and that the plaintiff truly believed she had been dismissed when she disclosed it to a third party. 

7.  To overturn this finding the defendant would have to show the plaintiff made the disclosure of her dismissal to another in bad faith, i.e. knowing her dismissal based on  her pregnancy was not true under section 9(2) of the Sex Discrimination Ordinance.  As there was no such evidence of bad faith adduced at the trial, an appeal based on this ground is not likely to succeed at all.  Miss Lau submitted, referring to the judgment of the Court of Appeal in the case of Non-No Fashion Wholesale Limited v Chung Kam Wing and Anor CACV 168 of 2001 at page 9:

“In a case such as this, which turns on the judge’s opinion of the witness formed in all the circumstances of the trial, if we are to reverse his decision of the facts, we must not merely entertain doubt whether the decision below is right but be convinced it is wrong”. 

referring to, Powell VP’s (as he then was) judgment in Carrian Holdings Limited v Crestflame Estates Ltd and Ors, (an unreported decision of the Court of Appeal on 30 August 1994, CACV 205 of 1993), referring to Lord Wright’s judgment in Powell v. Streatham Manor Nursing Home [1935] AC 243 at pages 265-268. (this passage can be found in paragraph 31 of the judgment of the Court of Appeal in the case of Non-No Fashion Wholesale Limited v Chung Kam Wing.)

8.  I do not think the present appeal is one of those cases where there is an important point of law which requires the clarification by a higher court or a case where I have applied the facts on a misunderstanding or a mistaken understanding of the legal principles.  The judgment was reached after my careful consideration of evidence adduced before me at the trial.  I cannot find any merits in the defendant’s grounds of appeal and for this reason I refuse the defendant’s leave application.  I do not see the defendant have any prospect of success.

9.  I agree with Miss Lau that the plaintiff should not be deprived of the fruits of the judgment, the fact that the plaintiff earns $20,000 a month now and she occasionally has to travel to China as required by her job, does not mean that she would disappear or would not be able to repay the judgment sum should the defendant succeed in the Court of Appeal if leave was obtained in the Court of Appeal and that the judgment should be overturned by the Court of Appeal.  The stay of execution application is therefore refused.  Costs of both applications be to the plaintiff in any event, to be taxed if not agreed, with certificate for counsel.