NG KOON FAI v. TO CHUNG YIN AND ANOTHER

DCCJ 1878/2021

[2025] HKDC 429

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1878 OF 2021

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DECISION

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Introduction

1.  On 18 December 2024, I handed down the judgment (the “Judgment”) in respect of the present action (see [2024] HKDC 2074). I dismissed the Plaintiff’s claims against the 2^nd Defendant.

2.  For the reasons elaborated in the Judgment, I found that the Guarantee[1] in question was forged, and the Questioned Signature there did not belong to the 2^nd Defendant.

3.  In summary, I found that:-

(1)  The inherent probabilities lied in favour of the 2^nd Defendant’s case: see Judgment, paras 37 to 44. In this connection, I found that:-

(a)  The 1^st Defendant was a fraudster who was dishonest and unscrupulous: see Judgment, para 38.

(b)  The 1^st Defendant was in financial trouble, and there was reason why he would commit forgery when the Plaintiff exerted pressure on him to make payment: see Judgment, para 39.

(c)  The relationship between the 1^st Defendant and the 2^nd Defendant had broken done completely. The 2^nd Defendant disapproved the 1^st Defendant’s financial behavior, and repeatedly reported his wrongdoings to public authorities. In the circumstances, it was most unlikely that the 2^nd Defendant would agree to pay the 1^st Defendant’s indebtedness: see Judgment, para 40.

(d)  The 2^nd Defendant only earned a monthly salary of HK$20,000, and as such HK$780,000 (ie the indebtedness under the Guarantee) was a huge sum for the 2^nd Defendant: see Judgment, para 41.

(e)  The 1^st Defendant was in a position to obtain samples of the 2^nd Defendant’s signatures: see Judgment, para 42.

(2)  There was no direct evidence showing that the 2^nd Defendant put her signature on the Guarantee: see Judgment, paras 45 to 47.

(3)  Dr Mallory Leung (ie the expert engaged by the 2^nd Defendant) was qualified to give evidence and express opinion as a forensic handwriting expert: see Judgment, paras 53 to 66.

(4)  The opinion expressed by Dr Mallory Leung was preferable to the opinion expressed by Dr Daniel Wong (ie the expert engaged by the Plaintiff). The Questioned Signature was unnatural, and certain features were hallmarks of forgery: see Judgment, paras 67 to 103.

4.  This is the Plaintiff application for leave to appeal against my Judgment by summons dated 15 January 2023

Legal Principles

5.  Pursuant to section 63A of the District Court Ordinance (Cap 336), no leave to appeal shall be granted unless the proposed appeal has a reasonable prospect of success or there is some other reason in the interest of justice that the appeal should be heard.

6.  The party that seeks to appeal bears the burden of satisfying the Court that his or her appeal has a reasonable prospect of success. This means an appeal with prospects that are more than fanciful but which do not need to be shown to be probable: SMSE v KL [2009] 4 HKLRD 125 at para 17.

7.  It is trite that an appellate court will not lightly intervene a trial judge’s primary factual findings, unless (i) there is no evidence in support; (ii) the trial judge misunderstood the evidence; or (iii) no reasonable judge could have reached such findings. In Salleh Abu Baker v Anyway Limited [2023] HKCA 187at para 27-28, G Lam JA stated:-

“27. It is common ground that the principal attack on the judge’s conclusion involves a challenge against his findings of primary fact, and that the plaintiff has to pass a high hurdle in order to justify appellate interference with such findings. Before this court can intervene, it has to be able to conclude that, despite the fact that it does not enjoy the advantages available to the judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong: Ting Kwok Keung v Tam Dick Yuen & others (2002) 5 HKCFAR 336, §42. The starting point is for the appellant to identify palpable errors in the judgment below sufficiently material to warrant intervention by this court. An appeal is not a forum for repeating all the submissions on the evidence made below, as if it were a re-trial, in the hope that the appellate judges may come to a different view of the facts from that of the judge: China Gold Finance Ltd v CIL Holdings Ltd (CACV 11/2015, 27 November 2015), §§15-16.

28. While this Court may interfere with a finding for which there was no evidence in support, or which was based on a misunderstanding of the evidence, or which no reasonable judge could have reached, it must be borne in mind that the trial court is the primary tribunal for the assessment of the evidence and making relevant findings of fact. As Kwan VP observed in Shine Grace Investment Ltd v Citibank NA & another [2022] HKCA 1341at §60(2):

“It is the trial judge who has the primary role in assessing evidence and making relevant findings of fact, not the appeal court. The trial before the primary judge should be the ‘main event’, not a ‘tryout on the road’. The appeal court should defer to the trial judge’s conclusion even if in some doubt as to its correctness, because it is unlikely to gain as much insight to the facts from seeing how the evidence unfolded, or be as familiar with the evidence as the primary judge, who has lived with the trial from beginning to end. Besides, the perception of the appeal court may be narrowed or distorted by selective readings of the transcript when the focus is on the challenge of a particular finding.”

8.  As Kwan JA (as she then was) pointed out in秦錦釗 及 香港特別行政區 [2018] HKCA 167at para 8, in light of the function of the Court of Appeal, it would be futile for an appellant to rehearse the contentions that were rejected by the first instance judge. Instead of doing so, the appellant should focus on the first instance judge’s reasoning, and pinpoint the error in respect thereof. See also李智慧 及 昆士蘭保險 (香港) 有限公司 [2021] HKCA 984at para 11 (per Chow JA).

Deliberation

The 1^st Proposed Ground of Appeal

9.  Mr Jevons Chan (for the Plaintiff) submitted I was wrong to hold that Dr Mallory Leung was qualified to give evidence as a handwriting expert.

10.  As pointed out in paragraphs 53 to 66 of the Judgment, in coming to the view that Dr Leung was qualified to give expert evidence, I took into account the following matters:-

(1)  For a period of almost 2 years, Dr Leung underwent “one-on-one” professional training with a prominent expert in the field of forensic examination (namely Mr SC Leung), and the training was with reference to the standards of the European Network of Forensic Science Institutes and the Scientific Working Group for Forensic Document Examination.

(2)  Dr Leung had received continuous supervision from Mr SC Leung even after she started accepting professional engagement on her own in the end of 2021.

(3)  Dr Leung had drafted more than 80 reports on forensic handwriting examination.

(4)  Dr Leung testified in the capacity as a forensic handwriting expert in various court cases. In Au Chee Cheong v 區永昌& Anor [2024] HKDC 1602 at paras 58 to 72, DHCJ Phillis Loh (as Her Honour Judge Phillis Loh then was) spoke highly of Dr Leung.

(5)  When Dr Leung testified in court, she demonstrated her sound knowledge of matters relating to forensic handwriting examination. Like Her Honour Judge Phillis Loh, I was also impressed by Dr Leung and I took the view that her analysis was convincing.

11.  Mr Chan merely sought to regurgitate the contentions that I rejected at trial. He was unable to demonstrate why my findings were plainly wrong.

12.  In my view, the first proposed ground of appeal is plainly unarguable.

13.  For completeness, it should be pointed out that:-

(1)  In response to my observation that certain prominent handwriting experts (such as Mr David Browne) acquired expertise and experience via “on-the-job” training: see Judgment, para 63[2], the Plaintiff sought to adduce the CV of Mr David Browne as new evidence.

(2)  Further, the Plaintiff also sought to adduce materials relating to application for membership with the American Society of Questioned Document Examiners (the “ASQDE”) as new evidence.

14.  For the following reasons, I have no hesitation to dismiss the Plaintiff’s application for adducing new evidence.

15.  Insofar as Mr Browne’s CV is concerned, the contents are irrelevant and unhelpful. Each expert has his or her own career path. Whilst Mr Browne trained with the Immigration Department in the United Kingdom, Dr Leung trained with Mr SC Leung on a “one-on-one” basis. It may be true that Mr Browne is more experienced and senior than Dr Leung. However, it does not mean Dr Leung was not qualified to give expert evidence

16.  As regards the application materials relating to ASQDE:-

(1)  I am unimpressed by the Plaintiff’s litigation conduct. There was no reason why the Plaintiff’s legal representatives did not obtain the application materials and cross-examined Dr Leung at trial. I am not of the view that it would be fair to allow the Plaintiff to adduce new evidence after the trial was completed.

(2)  In any event, ASDQE is merely a quasi-professional organization in the United States of America. As pointed out in paragraph 63 of the Judgment, the industry of forensic handwriting examination is not governed by statutes, and there is no requirement that an expert must be affiliated to a professional body. I do not understand why the Plaintiff expected Dr Leung to apply for membership with ASDQE. The mere fact that Dr Leung was not affiliated to an overseas quasi-professional body like ASDQE did not show that she did not have the knowledge and expertise to testify as a handwriting expert.

The 2^nd Proposed Ground of Appeal

17.  Mr Jevons Chan submitted I was wrong to put weight on Dr Leung’s evidence (such as patching and retouching) when these matters were not put to the Plaintiff’s handwriting expert, ie Dr Wong. Mr Chan further emphasized that the Plaintiff and/or Dr Wong were deprived of the opportunity to respond.

18.  This complaint is disingenuous.

19.  In her expert report, Dr Leung did identify the crucial features (including the retouching and patching) showing that the Questioned Signature was forged. Dr Wong had ample opportunities to respond to Dr Leung’s observations.

20.  I accept that Dr Leung provided elaborations when she gave oral evidence. However, Dr Leung’s elaborations arose from the questions raised by Mr Chan during cross-examination. It was plain that Dr Leung was (i) entitled to explain the bases of her opinion; and (ii) responded to Mr Chan’s criticisms.

21.  In any event, if the Plaintiff’s advisors took the view that it was necessary for Dr Wong to respond to Dr Leung’s elaborations, it was open to Mr Chan to make an application for adducing further oral evidence from Dr Wong. For reasons best known to Mr Chan, throughout the trial, no such application was made.

22.  In the circumstances, I cannot see how the Plaintiff might seriously complain that the trial was conducted in an unfair manner. It appears to me that the complaint is merely an afterthought.

23.  The second intended ground of appeal has no merits and is wholly unarguable.

The 3^rd Proposed Ground of Appeal

24.  Mr Jevons Chan submitted I was wrong to prefer Dr Leung’s opinion to Dr Wong’s opinion as there was no evidential basis to rationalize the alleged arbitrariness of Dr Leung’s methodology.

25.  In paragraphs 73 to 103 of the Judgment, I set out the salient features identified by Dr Leung. I explained why I took the view that Dr Leung’s analysis was sound and why I preferred her opinion to Dr Wong’s opinion. In particular, in paragraphs 91 to 94 of the Judgment, I explained why I took the view that Dr Leung had valid answers to Mr Chan’s criticisms regarding the questions relating to proportion, angles and rotation.

26.  Again, Mr Chan simply regurgitated the contentions that I rejected at trial without identifying the palpable errors on my part. With respect, this is not the correct approach for conducting an appeal.

27.  In any event, in light of the overwhelming objective circumstances and inherent probabilities against the Plaintiff’s case, I am not of the view it is arguable that the Questioned Signature belonged to the 2^nd Defendant.

28.  The third intended ground of appeal has no prospect of success and is unarguable.

The 4^th Proposed Ground of Appeal

29.  Under the third intended ground of appeal, Mr Chan submitted I failed to take into account the inconspicuous similarities identified by Dr Wong.

30.  This criticism has no basis.

31.  In paragraphs 95 of the Judgment, I pointed out that Dr Wong emphasized the similarities between the Questioned Signature and the Sample Signatures. In paragraph 96, I set out some examples of the subtle features identified by Dr Wong. In paragraphs 98 to 103, I went on to explain why I did not prefer Dr Wong’s opinion and why the matters identified by Dr Wong were incapable of swaying me to accept the conclusion that the Questioned Signature belonged to the 2^nd Defendant.

32.  With respect, there is no room for Mr Chan to regurgitate the submissions at trial, which I did not accept.

33.  Mr Chan also submitted in paragraph 38 of the Judgment, I was wrong to hold that the 1^st Defendant was “capable” of committing forgery, and this is inconsistent with my finding in paragraph 101 of the Judgment that there was no evidence as to the skills of the suspected forger (ie the 1^st Defendant).

34.  This criticism is completely disingenuous.

35.  Paragraphs 37 and 38 of my Judgment reads as follows:-

“D2. Inherent Probabilities

37. For the following reasons, I am of the view that the inherent probabilities lie in favour of the 2^nd Defendant’s case and against the Plaintiff’s case.

38. First, even on the Plaintiff’s case, the 1^st Defendant was a fraudster. He fraudulently and dishonestly induced the Plaintiff to pay him the said sum of HK$780,000. As pointed out, I accept the Plaintiff’s assertions, which are not contradicted by any evidence. Having observed the way in which the Plaintiff gave evidence, I am of the view that the Plaintiff is an unsophisticated person, and the 1^st Defendant (who was the Plaintiff’s neighbor) calculatedly abused the trust and confidence that the Plaintiff reposed on him. On the evidence before the court, there is no question that the 1^st Defendant was a dishonest and unscrupulous person who had a low level of morality. In my view, a person like the 1^st Defendant was capable of manufacturing forged documents.” (emphasis added)

36.  My observation is not controversial. Forgery is a serious wrongdoing. It is unlawful and immoral. Bearing in mind the psychological burden involved, it would be difficult for an honest and righteous person to commit forgery. It is inherently less likely that an honest and moral person would commit forgery; put it conversely, it is inherently more likely that a dishonest and unscrupulous person would commit forgery.

37.  When the relevant passage in paragraph 38 of my Judgment is read in context, it is apparent what I meant was that since the evidence showed that the 1^st Defendant was dishonest and unscrupulous, it was more likely that a person with such a low level of morality might commit forgery.

38.  Obviously, the discussion focused on the 1^st Defendant’s honesty and morality, and I did not refer to the 1^st Defendant’s skills or competence as a forger (in respect of which there was indisputably no evidence: see Judgment, para 101).

39.  In my view, Mr Chan could not have misunderstood paragraph 38 of my Judgment, and he should not have sought to play a game of words by singling out the words “capable” out of context.

40.  The fourth intended ground of appeal has no prospect of success and is unarguable.

Conclusion

41.  For all the above reasons, I am of the view that the Plaintiff’s intended appeal does not have a reasonable prospect of success. I am also unable to see any reason in the interest of justice why the appeal should be heard.

42.  Accordingly, I dismiss the Plaintiff’s summons dated 15 January 2025.

43.  I make a costs order nisi that the Plaintiff do pay the Defendant’s costs in respect of the summons dated 15 January 2025 to be taxed if not agreed (with certificate for counsel).