MOK PAK KEUNG v. WONG IP MING

CACV78/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 78 OF 2000

(ON APPEAL FROM HCA10036 OF 1997)

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J U D G M E N T

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Hon Chan, CJHC:

1. On 21 January 2000, after a trial, Sakhrani J gave judgment in favour of the plaintiff against the defendant for the sum of $140,000 together with interest and costs. On 3 March 2000, the defendant lodged a Notice of Appeal intending to appeal against that judgment. Due to a misunderstanding of the appeal rules, the defendant's solicitors failed to file a notice of setting down. On 31 March 2000, having failed to obtain consent from the plaintiff's solicitors, the defendant's solicitors issued a summons under Order 3 rule 5 and Order 59 rule 5(4) of the Rules of the High Court for extension of time to file such notice. This is the hearing of the summons.

2. It is quite clear that the length of the delay was only about 20 days and the reason was a misunderstanding of the rules on the part of the lawyers. It is also not seriously argued that there would be any great prejudice to the plaintiff because of the delay. This is because the defendant had already paid the judgment sum to the plaintiff.

3. The main arguments today are centered round whether the defendant has an arguable case (the test as adopted in C M Van Stillevoldt B V v E L Carriers Inc [1983] 1 WLR 207) or what are the chances of the appeal succeeding (as put by the court in A Solicitor v. Law Society of Hong Kong [1998] 2 HKC 88).

4. In this case, the plaintiff and the defendant were the shareholders and directors of a company. Through this company, they owned a piece of land. It was suggested that at least part of the land would be resumed by the Government. It was the plaintiff's case that the parties agreed that they would instruct lawyers and surveyors to negotiate with the Government in connection with the resumption of part of the land. They would join forces and each would share half of the expenses which would amount to $280,000. The plaintiff's share of $140,000 was paid to the defendant on 28 February 1997 through the defendant's account.

5. The receipt of the money was not denied by the defendant. But he told the court a different story with regard to how and why the money was paid. He denied any agreement to join forces to negotiate with the Government on the possible resumption of the land or to share the charges of the lawyers and surveyors in connection therewith. He alleged that the sum of $140,000 was paid by the plaintiff to him to settle an earlier dispute. He said in evidence that the plaintiff had made a secret profit with regard to the purchase price of the property and that after some discussion, the plaintiff agreed to pay $140,000 to him. That was the money he received through his bank account.

6. The trial judge heard the witnesses. He assessed and evaluated all the evidence and documents presented to him. He came to the conclusion that the plaintiff was an honest witness. He believed his evidence and rejected the defendant's evidence. He described the defendant's evidence as incredible. He gave a number of reasons for accepting the plaintiff's evidence and disbelieving the defendant's. For the present purpose, it is not necessary for me to go into detail of the evidence or his assessment. Suffice it to say that the trial judge explained why he preferred one version to the other. It may be accepted for the present purpose that some of the criticisms which the judge made of the defendant's evidence as his basis for rejecting it were not free from doubts or even unjustified and the deficiencies in his evidence might have been exaggerated. However, there were also quite a number of criticisms made by the judge on the various parts of the evidence, particularly that part of the defendant relating to "Exhibit P1" which were, in my view, quite justified in the circumstances of this case. So, at the end of the day, it would appear that there were in fact justifiable grounds for the trial judge to accept the plaintiff's evidence and not the defendant's and for ruling in favour of the plaintiff. That was a finding of fact based upon the evidence.

7. That being a case, I have serious doubt as to whether such conclusion is appealable. It may be said that, strictly speaking, the defendant may be able to put up some arguments attacking some of the criticisms of the judge. However having considered the judgment of the court below and the submissions I have heard today, I have come to the conclusion that the defendant is unlikely to succeed in the appeal and that the chances are not high at all. I would even say they are slim. In the circumstances, I think it would be a waste of time and costs to pursue the appeal.

8. For the reasons which I have given, I would refuse the application for extension of time. I would also order costs against the defendant.