MANDIZARI INTERIOR DESIGN & DECORATION CO LTD v. SIN YIU KEUNG

DCCJ 1405 / 2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1405 OF 2006

------------------------

BETWEEN

------------------------

-----------------------------------

Reasons for Decision[1]

-----------------------------------

Introduction

1.  On 29 January 2008, I handed down my decision to give judgment after trial in favour of Mandizari (the Plaintiff) for $69,500.00, as outstanding contract sum for decoration works owed by Mr Sin.

2.  Mr Sin now applies for leave to appeal to the Court of Appeal my judgment.

3.  As to the background leading to the dispute and the reasons of my earlier judgment, they have all been set out in the reasons for decision, I would not repeat them here.

Proposed grounds of appeal

4.  At the hearing today, Mr Sin advances two proposed grounds of appeal^[2]:

(1)	Mr Sin submits that this court is wrong at paragraph 21 of the reasons for decision in rejecting his witness, Mr Au’s evidence, as the Court so rejected the evidence solely because it corroborated Mr Sin’s evidence.  Further, Mr Sin says Au’s evidence should have been accepted as he was an independent witness and was present at the meeting between Mr Sin and Mr Chu (of Mandizari).
(2)	The salon (at which the decoration works were carried out) was closed down last year because of water leakage from the ceiling.  This shows Mandazari’s defective works, and it would now be unfair if he were not allowed to appeal the judgment.

Applicable principles

5.  In considering whether to allow leave to appeal to the Court of Appeal, Mr Sin needs to satisfy the Court that the intended appeal has a realistic prospect of success, in the sense that he has at least an arguable case in the intended appeal:  Ma Bik Yung v. Ko Chuen (unrep., HCMP4303 of 1999, 8 September 1999) per Leong CJHC at paragraph 5, in adopting and approving Smith v. Cosworth Casting Processes Ltd [1997] 1 WLR 1538.

6.  Moreover, the appellate court would not lightly disturb the trial judge’s finding of primary facts unless it can be shown that that no reasonable judge in the position of the trial judge would have come to the same findings, or that the trial judge is plainly wrong in coming into the conclusions.  See: Hong Kong Civil Procedure 2008, para 59/1/48.

The present appeal

The rejection of Mr Au’s evidence

7.  Paragraph 21 of my earlier decision says as follows:

“For the same reasons, I also reject Mr Au’s evidence insofar as it corroborates Mr Sin’s above evidence.”

8.  It is clear from the paragraph that I rejected Mr Au’s evidence not only because it corroborated Mr Sin’s evidence, but because of the “same reasons” I rejected the evidence of Mr Sin (who was the principal witness on the scope of the contract). 

9.  These reasons are set out in paragraphs 20(1) to (5) of the decision, which in summary, are that such evidence (whether it was from Mr Sin or Mr Au) was contrary to commercial and common sense in all the circumstances, and was inherently unlikely.

10.  As I mentioned at paragraph 19 of my earlier decision, in coming to the conclusion in rejecting Mr Sin and Mr Au’s evidence, I had considered all their evidence, including the evidence that Mr Au was allegedly present at the meeting and he had no apparent interest in the outcome of the trial. 

11.  However, these factors do not in my judgment constitute anything which may show that no reasonable judge in my position would have rejected Mr Au’s evidence for being contrary to commercial and common sense, and being inherently unlikely.  They do not show that the Court was arguably plainly wrong in rejecting Mr Au’s evidence.

12.  As such, I do not think there is an arguable case that Mr Sin would succeed in the intended appeal based on this ground.

The salon’s closing down

13.  The allegation that the salon was closed down because of water leakage from the ceiling due to Mandizari’s defective work also does not form any valid ground of appeal:

(1)	This allegation was not mentioned in Mr Sin’s evidence at trial.
(2)	Further and in any event, I have in my earlier decision concluded that, based on the available evidence, Mr Sin had failed to establish any of the alleged defective works.  Mr Sin has not said or shown anything today to suggest why that finding is plainly wrong.
(3)	In the premises, Mr Sin has not demonstrated why it is at least arguable that my judgment is obviously wrong or that no reasonable judge would have come to the same conclusion.

Conclusion

14.  For the above reasons, Mr Sin has failed to show that he has a realistic chance of success in the intended appeal. 

15.  I therefore dismiss his application for leave to appeal to the Court of Appeal.  I further order that costs of this application be to Mandizari, to be taxed if not agreed.

[1] As requested by Mr Sin, I direct that a Chinese translation of this decision should be provided and be handed down together with it.

[2] The originally only ground of appeal stated in the Notice of Appeal is that Mr Sin would call further and new witnesses to give evidence for his case.  In his affirmation in support, which contains only two sentences, these new witnesses are un-named and the nature of “new” evidence is not provided.  There is also no explanation as to why these witnesses were not called at the trial.  At the hearing today, Mr Sin abandons this ground and advances 2 new grounds.