PC ENTERPRISES (HK) LTD AND ANOTHER v. CHAN WAI CHING

DCCJ 375/2019

[2021] HKDC 1548

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 375 OF 2019

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BETWEEN

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DECISION

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1.  By her summons dated 2 September 2021, the defendant, then legally represented, applied for leave to appeal against the judgment of this court, handed down on 10 August 2021 after a 9-day trial, adjudicating that the defendant was liable to pay the 1^st plaintiff HK$386,099.10 and to pay the 2^nd plaintiff HK$595,641 with interest (“the Judgment”).

2.  On 6 September 2021, this court directed that the application be dealt with on papers and gave directions for the lodging of written submissions. On 8 September 2021, the defendant filed a Notice to Act in Person. On 15 September 2021, she applied for Legal Aid thereby triggering the automatic statutory stay of 42 days.

3.  This court has considered the parties’ written submissions. This is its decision.

4.  Very succinctly, in this action the plaintiffs claimed that the defendant, an accountant employed by the 1^st plaintiff and essentially employed as the person in charge of the Finance Department, had misappropriated funds belonging to the 1^st plaintiff and its subsidiary, the 2^nd plaintiff, in the course of about 9 months right before she resigned in January 2014, and doing so through 13 online transfers from the plaintiffs’ bank accounts into 4 bank accounts of the defendant[1].

5.  One notable feature in this case was that the details of these 13 transactions (a) as recorded in the plaintiffs’ internal accounting records, (b) as entered into the banks’ online transfer system, and (c) the details of the actual transfers, did not match. The plaintiffs’ case was that these 13 transfers were not authorized and were not used to discharge liabilities of the plaintiffs. The defendant’s case was that they were all authorized and were used to pay various liabilities of the plaintiffs, and the defendant then advanced her specific case in respect of these alleged liabilities, one of which being that she had made 2 substantial loans to the 1^st plaintiff through PT and some of the transfers were repayments. The details of these liabilities alleged in the defendant’s case however and almost in every instance also did not match with the information recorded in the above-mentioned records and system.

6.  In the trial, voluminous documents were involved. The trial bundles consisted of 10 arched files.

7.  For ease of reference, the abbreviations used in this decision are those used in the Judgment.

8.  The principles regarding the granting of leave to appeal are well settled. Leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard (Section 63A(2) of the District Court Ordinance Cap 336). To amount to a reasonable prospect of success, the prospect of succeeding must be reasonable and therefore more than fanciful, without having to be probable; while it is insufficient to show that the appeal was “mere arguable” and “not fanciful”: SMSE v KL [2009] 4 HKLRD 125, KNM v HTF (unrep HCMP 288/2011) and Hong Kong Civil Procedure 2021 §59/2A/4.

9.  In the draft Notice of Appeal enclosed with the summons drafted by her former solicitors, the defendant raised 2 grounds of the proposed appeal:-

“(a) The Learned Judge erred in law by intervening excessively in the cross-examination of the Defendant and the Defendant’s witnesses during the trial so as to render the trial unfair. What the judge had done throughout the trial was much more than an attempt to clarify issues that might appear unclear. The learned Judge appeared to assist the 1st and 2nd Plaintiffs in framing their case against the Defendant [sic] failed to maintain an independence on [sic] neutral role throughout the trial.

(b) By doing what he did, the learner Judge had created substantial bias and impaired his judgment and may for that reason [sic] and may render the trial unfair. By interrogating the defendant and the defendant’s witnesses the way he did, the learned Judge had arrogated to himself a quasi-inquisitorial role contrary to the Common Law adversarial system.”

10.  Incidentally, at trial the defendant only called one other witness apart from herself, namely Cherry, and not “the Defendant’s witnesses” as stated in the above draft grounds of appeal.

11.  In her written submissions dated 10 November 2021 (“D’s Submissions”), the defendant cited 香港特別行政區 v CPM HCMA 130/2007, a decision of L Tong J, and relied on this passage:-

“裁判官在自己進行追問這方面的問題後再說不相信上訴人，旁觀者確可能會認為裁判官是在替控方進行盤問。正如本席指出在這類問題上裁判官應盡量保持中立，讓控方處理，最後以客觀立場考慮是否相信上訴人。本席認為裁判官提問的方式，包括內容及次數，似乎已是超過了恰當的界線。”

12.  Regarding curial interventions, the plaintiffs cited the following passage by Li CJ in Chan Kam Keung v HKSAR (2008) 6 HKC 437 and relied on the principles approved therein:-

“11. … , the test generally applied where curial interventions are alleged to be such as to call into question the fairness of the trial is that enunciated by the Court of Appeal in R v Yeung Mau-lam [1991] 2 HKLR 468 at 473. While the Court was there dealing mainly with judges descending into the arena by asking too many questions, the broad principle is stated in the following terms:

“The ultimate question for the consideration of an appellate court is whether the judge’s conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial.”

The Court of Appeal added:

“We think it appropriate also to emphasize that a court, when considering the propriety of interventions by a judge, must bear in mind that it is the judge’s duty throughout to ensure that a trial is properly and coherently conducted.” ”

13.  The plaintiffs also referred to the following observations by Power JA in R v Yeung Mau Lam [1991] 2 HKLR 468, though made in the context of that case, as being apposite in the circumstances of this case:-

“ … it is desirable that a judge, if he needs to clarify matters, should do so at the conclusion of either cross-examination or re-examination. The judge was, however, in some difficulty in this regard in the present case. … . We have no doubt that if the judge had let all of the matters about which he asked questions rest until what is normally considered to be the appropriate time, satisfactory elucidation thereof would have been difficult and protracted, if not impossible.” (at 475A)

“… there was nothing in the questioning of the applicant by the judge which either indicated bias or prevented the applicant from giving evidence in his own way, nor do we think that he interfered with the applicant in placing his defence before the court. It is plain to us that there was an attempt by the applicant to obfuscate and confuse, that it was this which led the judge to take steps to ensure that he gave comprehensible and responsive answers …” (at 477J to 478A, the plaintiffs’ emphasis)

14.  The defendant, acting in person, lodged D’s Submissions consisting of one and a half pages, and her reply submissions dated 3 December 2021 (“D’s Reply Submissions”) consisting of 4 and a half pages.

15.  In D’s Submissions, the defendant just made generalized and bare complaints and cited the above case.

16.  In D’s Reply Submissions, apart from generalized complaints, there were a few more specific matters that can be deciphered.

17.  The first more specific complaint is this. In §3 of D’s Reply Submissions, she complained that this court has handled this application in an extremely odd and unreasonable manner, proving that it was biased, in that I directed the defendant to lodge D’s Submissions within 14 days from 6 September 2021, the plaintiffs to lodge their submissions in opposition 14 days thereafter, and only gave the defendant 7 days (the defendant’s emphasis) to lodge D’s Reply Submissions.

18.  For paper disposal, it is trite practice and only fair that the party making the application should set out all the matters he relies on and all his arguments in the first round of his written submissions, and his reply submissions are restricted to responding to matters and arguments raised in the submissions then lodged by the other party in opposition. Therefore, usually a shorter time is given for the lodging of the reply submissions, bearing in mind its limited ambit. Here and however, the defendant only raised matters of more substance for the first time in D’s Reply Submissions (which she had had ample time to prepare from the date of the Judgment to the date of D’s Submissions) and, ironically, complained of being treated unreasonably and unfairly. Rather, the plaintiffs were the parties who have been unfairly deprived of the opportunity to respond to the matters raised for the first time in D’s Reply Submissions. As the plaintiffs did not seek the opportunity to, and I do not see the need to call upon them to respond, and to save time and costs, I have not asked the plaintiffs to lodge another round of submissions.

19.  Next, though there were no examples or instances quoted or referred to, in D’s Reply Submissions, and so far as this court can understand, she specifically complained and described 3 situations of curial interventions by this court.

20.  The first situation was:-

“當被告作供時，指出原告主要証人作証時，作出沒有理據的虛假陳述，而法官又莫視其不合理性，被告作出澄清，該刻，原審法官 KC Chan 嘲諷被告做了代表律師的職位，要求被告代表律師阻止被告發言，阻礙被告人為自己尋求公義以自己的方式講述事情。” (§7 of D’s Reply Submissions, my emphasis)

21.  I have set out my assessment in §98 of the Judgment that the defendant was, among others, often argumentative when giving evidence. As said by herself in the above quoted paragraph, in giving evidence, she often times tried to, in her own words, “point out that the evidence of the plaintiffs’ witnesses were unsubstantiated lies”, by making arguments and/or referring to other events or matters (sometimes new events or matters, but most of the time by adding extra details or spins hitherto unmentioned about that event/matter or those events/matters). At trial, this court found it necessary in the course of her evidence to explain, and to often times follow up with reminders, that her duty and role as a witness (even though she was also a party) was to answer questions, and not to make arguments or comments. This court so explained by, among others, explaining to her the difference in duties and roles of a witness and advocate. Despite having so explained, this court found it necessary in a number of instances, in order to properly manage the trial, to hold the defendant, when she was giving evidence, to the role of a witness to only answering the questions put to her.

22.  The second situation mentioned was that this court had intervened in the examination of the defendant and her other witness with many questions and “had controlled the direction of the questions and answers” (“在審訊全程中操控問題及對答的方向性”, §4.4 of D’s Reply Submissions).

23.  In §98 of the Judgment, I have also given my view that when giving evidence the defendant was often very evasive, and further that “she often mixed up the time, place, people or events, unless one clarified with her or pinned her down. I formed the distinct impression that in some of the instances she purposefully did so to confuse”. At trial, in order to ensure that the trial was properly and coherently conducted, and bearing in mind the many events, time, places, people and documents involved, this court often times had to clarify these matters and the attendant events in the middle of the evidence so as to clearly understand which part of her answers was factual evidence, which time/event/document she was referring to, and that there would not be confusion or that potential confusion(s) would not be further compounded. Quite unfortunately, such clarifications almost invariably could not be easily achieved with the defendant as questions aimed at obtaining clarification were often met with further evasions and diversions necessitating more questions to elicit direct and clear answers.

24.  The third situation complained of was that the court had helped the plaintiffs’ witnesses by stopping defence counsel from pursuing his questions or by interjecting with the court’s own questions. As no specific instances or examples were given, this court cannot assess the merits of this allegation. I would just mention that I did note in §97 of the Judgment and took into account the fact that PT was unsure or could not remember many matters even though those matters might help the plaintiffs’ case.

25.  While not appealing against my findings regarding the Removal of Documents by Courier (§§42 – 55 of the Judgment), the defendant complained against my reliance on the fact that the defendant had not responded at all to the allegations made by Cheung in his witness statement. She alleged that the court was biased as the plaintiffs’ counsel and this court had not asked her for her response when she was giving evidence and she therefore did not have any opportunity to respond and this court did not seek the truth (“… 原告律師或原審法官亦無在我作証時要求我回應， 我根本無機會回應，原審法官竟然就在不尋求真相下，判定為單方面不提供被告回應的情況下，判定相信原告…”, (§5.1 of D’s Reply Submissions, the defendant’s own emphasis).

26.  This complaint is clearly unmeritorious as the defendant, who was legally represented, evidently had had ample opportunities from the time Cheung’s witness statement was exchanged to the time of trial, even in evidence-in-chief, to seek to respond, but she did not. Also, it is, as complained by the defendant, not the court’s role to be inquisitorial. Here and however, the defendant complained that the court should have been inquisitorial and was biased in not being so.

27.  I am of the clear view that the informed bystander, informed by having appraised all of the above-mentioned matters, and listening to the case, would not say that the defendant had not had a fair trial.

28.  In all, I take the view that the defendant’s proposed grounds of appeal have no reasonable prospect of success and I therefore refuse leave to appeal.

29.  I order, on a nisi basis, to be made absolute after 14 days unless either party applies by letter to vary within that time, that the defendant do pay the plaintiffs their costs of this application, with certificate for counsel, to be taxed if not agreed.

30.  If required, the defendant may arrange with my clerk for this decision to be interpreted to her in Punti.