CHINA STEM CELLS HOLDINGS LTD v. ZHENG TING AND OTHERS

CACV 85 & 90/2024,
CACV 86 & 91/2024,
CACV 87 & 92/2024 &
CACV 88 & 93/2024

[2025] HKCA 724

On Appeal From [2024] HKCFI 481

CACV 85 & 90/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 85 AND 90 OF 2024

(ON APPEAL FROM HCA NO 1407 OF 2022)

________________________

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AND

CACV 86 & 91/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 86 AND 91 OF 2024

(ON APPEAL FROM HCA NO 1408 OF 2022)

________________________

________________________

AND

CACV 87 & 92/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 87 AND 92 OF 2024

(ON APPEAL FROM HCA NO 1409 OF 2022)

________________________

________________________

AND

CACV 88 & 93/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 88 AND 93 OF 2024

(ON APPEAL FROM HCA NO 1410 OF 2022)

________________________

________________________

(Heard together)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  These are applications by Zheng Ting (“Tina”) and Chen Bing Chuen Albert (“Albert”) for leave to appeal against the judgment of this Court dated 21 May 2025 (“the CA Judgment”), by which the Court dismissed their respective appeals against the determinations made by Madam Justice Linda Chan in her judgment dated 8 February 2024 (“the CFI Judgment”) after a trial of preliminary issues in 4 actions heard together.

2.  The basic facts of this case and the Court’s reasons for dismissing the appeals of Tina and Albert are fully set out in the CA Judgment and will not be repeated here. In this Judgment, unless the context indicates otherwise, the Court shall continue to use the expressions and abbreviations as defined in the CA Judgment.

3.  Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

4.  Tina and Albert have each raised 5 questions said to be questions of great general or public importance which ought to be submitted to the Court of Final Appeal for decision. By way of preliminary observation, we note that the questions raised by Tina and Albert all relate to the issues of whether the Judge, in her determinations, went outside the scope of the Preliminary Issues, and whether she failed to properly apply the correct burden of proof. These are, we consider, fact sensitive questions which could not be answered divorced from the specific facts of the present case, and are not questions of great general or public importance (see Safder Tehseen v Permanent Secretary for Security (2014) 17 HKCFAR 567, at §14 per Fok PJ; Tsang Chiu Wing Florence v Li Kin Kan Samathur, FAMV 38 & 39/2014, 10 February 2015, at §12 per Ribeiro PJ).

TINA’S NOTICES OF MOTION

5.  In Tina’s Notices of Motion filed on 17 June 2025, she raises the following 5 questions (“Tina’s Questions”) which she contends are involved in her intended appeal and ought to be submitted to the Court of Final Appeal for decision by reason of their great general or public importance.

6.  Tina’s Question 1: whether in a trial of a preliminary issue, it is open to the trial judge to assess the credibility of a key witness without the benefit of all relevant documentary and other evidence in relation to issues outside the ambit of the preliminary issue but intended to be relied on by that witness in support of his evidence?

7.  We do not consider this question to be reasonably arguable. The Preliminary Issues in the present case were clearly defined. It was for Tina to adduce such relevant and available evidence as she considered necessary in support of her case in relation to the Preliminary Issues. The same comment applies to the other parties to the proceedings. The Judge could only determine the Preliminary Issues on the basis of the admissible evidence adduced by the parties. The Judge could not, and should not, speculate on whether there was other documentary or relevant evidence which the parties decided, for whatever reason(s), not to adduce before her.

8.  Tina’s Questions 2 and 4 can be dealt with together:

(1)  Tina’s Question 2: whether in a trial of a preliminary issue, it is appropriate for the trial judge to make findings of fact outside the ambit of the preliminary issue without the benefit of all relevant documentary and other evidence in relation to issues outside the ambit of the preliminary issue?

(2)  Tina’s Question 4: whether in a trial of a preliminary issue, it is appropriate for the trial judge to make findings of fact outside the ambit of the preliminary issue thereby depriving the parties from litigating the truth or otherwise of that fact?

9.  These questions have been considered in the CA Judgment, at §§47-53. In short, we do not consider that the Judge went outside the scope of the Preliminary Issues. We are also of the view that if, in the course of determining the Preliminary Issues, some other issues arose and the resolution of those other issues would have a bearing or impact on the answers to the Preliminary Issues, the Judge ought to be entitled to have regard to those issues and make such findings on them as may be necessary in order to reach the correct answers to the Preliminary Issues. To hold otherwise would mean that the Judge might be required to reach a conclusion contrary to the true state of the evidence.

10.  Tina’s Question 3: whether in a trial of a preliminary issue, it is appropriate for the trial judge to make findings of fact against parties or individuals not before the court and not bound by the result of the preliminary issue?

11.  This question is irrelevant to Tina’s position. The fact that the Judge might have made findings of fact against parties or individuals not before the court and not bound by the result of the Preliminary Issues has no impact on Tina. In any event, the suggestion that the Judge could not make findings of fact against parties or individuals not before the court and not bound by the result of the Preliminary Issues is not reasonably arguable. This issue has been dealt with in the CA Judgment, at §55. The Judge’s task was to determine the Preliminary Issues. If, for the purpose of resolving the Preliminary Issues, the Judge considered it necessary to make findings of fact which concerned or might touch upon such parties or individuals, we see no reason why the Judge could not do so unless and until those parties or individuals are joined as parties to the proceedings.

12.  Tina’s Question 5: whether in a trial of a preliminary issue, it is appropriate for the trial judge to assume the proof of a fact the burden of which lies with the plaintiff simply by disbelieving the defendant without more?

13.  This question is premised on the contention that the Judge held that the Plaintiffs had discharged their burden of proof on the issue of backdating of the Impugned Documents simply because she disbelieved the evidence of the Defendants and/or their witnesses. However, as mentioned at §76 of the CA Judgment, the Judge made a positive finding that the Impugned Documents were backdated for the reasons given at Section D1 of the CFI Judgment. That finding was based on, amongst other matters, various “objective facts” (referred to by the Judge at Section D1.1 of the CFI Judgment), the absence of any contemporaneous documents in support of the Defendants’ case (referred to by the Judge at Section D1.2 of the CFI Judgment), and the fact that those Defendants who supposedly would be concerned about upholding the validity of the Impugned Documents and would be bound by the judgment given by the court, did not enter appearance to defend or dispute the Plaintiffs’ claims (referred to by the Judge at Section D1.3 of the CFI Judgment). The contention that the Judge’s decision was based simply on her disbelief of the evidence of the Defendants and/or their witnesses is incorrect.

ALBERT’S NOTICES OF MOTION

14.  In Albert’s Notices of Motion filed on 17 June 2025, he raises the following 5 questions (“Albert’s Questions”) which he contends are involved in his intended appeal and ought to be submitted to the Court of Final Appeal for decision by reason of their great general or public importance.

15.  Albert’s Question 1: in a trial of preliminary issues, whether the court has jurisdiction and/or is entitled to make any findings on matters outside the scope of the preliminary issues as defined by court order, in particular on disputes concerning the veracity or validity of agreements outside such preliminary issues?

16.  This question raises, in substance, the same issue in Tina’s Questions 2 and 4 which we have dealt with at §§8 and 9 above.

17.  Albert’s Questions 2 and 4 can be dealt with together:

(1)  Albert’s Question 2: in a case where (i) disputes concerning the validity and existence of an agreement are outside the scope of preliminary issues and (ii) the parties agree that such disputes are not to be resolved as preliminary issues, should the court proceed on the assumed basis that the agreement is valid and in existence for the purpose of determining the preliminary issues?

(2)  Albert’s Question 4: where parties have unequivocally proceeded on common ground that certain disputes are not to be resolved as preliminary issues, (i) is a party estopped or precluded from seeking the court to determine such disputes at the trial of preliminary issues, and (ii) is the court entitled to make findings on such disputes for the purposes of determining the preliminary issues, contrary to the parties’ common ground?

18.  These questions have been fully considered in the CA Judgment, at §§62-67. We do not propose to repeat our analysis here. The short point is that while the Plaintiffs’ witness (Chow) made it clear that the Plaintiffs would not be inviting the Judge to resolve factual issues concerning the 2019 Security Arrangement, Albert and Tina put forward the 2019 Security Arrangement to justify their conduct in answer to the allegations of breach of fiduciary duties on their part, and such allegations were, indisputably, within Issues 2 and 7 of the Preliminary Issues. There was never any agreement, or common understanding, between the Plaintiffs and the Defendants (or any of them) that the Judge could not have regard to the 2019 Security Arrangement at all when determining the Preliminary Issues. Neither could such agreement or understanding (even if one existed) be binding on the Judge. In order to properly consider whether the defence put forward by Tina and Albert had any substance, it seems to us that the Judge was plainly entitled to examine the existence and validity of the 2019 Security Arrangement. Further, we see no reason why the Judge was wrong to have regard to the alleged 2019 Security Arrangement when assessing the credibility of Tina and Albert’s evidence.

19.  Albert’s Question 3: if a court cannot isolate material issues outside the scope of preliminary issues from those within it, (i) whether the court should direct that all issues be resolved at the substantive trial, and (ii) whether such direction can only be made as a matter of last resort?

20.  This question has also been considered in the CA Judgment, at §67. Whether the Judge should defer the determination of the Preliminary Issues to the substantive trial of the actions was a case management decision[1]. Mr Anson Wong, SC’s contention that this Court held that the exercise of the court’s case management powers to direct all issues to be resolved at the substantial trial can only be considered “as a matter of last resort”[2] is based on quoting a few words in §67 of the CA Judgment out of context. This Court did not lay down any such general proposition. What the Court said was that: “As for the suggestion that the Judge should have directed all the issues to be resolved together at the substantive trial of the actions, while we accept the Judge would have power to do so notwithstanding the previous order for the trial of preliminary issues, plainly that was something which should be considered only as a matter of last resort bearing in mind the time and costs already spent or incurred”. The time and costs already incurred in relation to the trial of the Preliminary Issues were plainly highly relevant considerations when the Judge considered whether to continue with the trial of the Preliminary Issues (quite apart from the fact, as pointed out by the Plaintiffs, that Tina and Albert had at one stage sought to appeal against the Judge’s decision to direct a trial of preliminary issues but later abandoned such appeals)[3].

21.  Albert’s Question 5: where a judge rejects a defendant’s submission that the plaintiff bears the burden of proving a material allegation (e.g., the backdating of documents), does this constitute a reversal of the persuasive burden of proof on that allegation (as opposed to merely affecting the evidential burden)?

22.  This question raises, in substance, the same complaint that Albert advanced in the appeal that the Judge reversed the persuasive burden of proof on the issue of backdating of the Impugned Documents. This complaint is unfounded, because the Judge expressly accepted the Plaintiffs’ submission that they bore the burden of proof that the Impugned Documents were backdated (see §§87 and 88 of the CFI Judgment), and went on to make a positive finding in favour of the Plaintiffs on that issue (see §110 of the CFI Judgment). The Judge did not reject the Defendants’ submission that the Plaintiffs bore the burden of proof on the issue of backdating. For the reasons explained in §76 of the CA Judgment, Albert’s complaint about reversal of burden of proof is a red-herring.

23.  In all, we are not satisfied that leave to appeal should be granted to Tina or Albert, because the questions raised by them do not arise from the CA Judgment, or are not of great general or public importance, or are not reasonably arguable.

24.  Insofar as Tina and Albert seek leave to appeal under the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, it is the well-settled practice of this Court to defer to the Appeal Committee of the Court of Final Appeal for consideration of whether leave to appeal ought to be granted under the “or otherwise” limb. We see no good reason to depart from this practice in the present case.

DISPOSITION

25.  Tina and Albert’s respective Notices of Motion are dismissed with costs to the Plaintiffs, to be summarily assessed. Tina and Albert shall each have leave to file and serve a statement of objection (limited to 2 pages) to the relevant statement of costs of the Plaintiffs dated 18 July 2025 within 14 days from the date of this judgment.