BRIGHT KINGDOM LTD v. LO CHAU YUEN t/a SUN HANG WAI CONSTRUCTION & ENGINEERING CO AND ANOTHER

HCMP 3073/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3073 OF 2013

(ON AN INTENDED APPEAL FROM DCCJ 4508/2009)

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BETWEEN

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JUDGMENT

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Hon Cheung CJHC (giving the judgment of the court):

1.  This is the defendants’ application for leave to appeal from the judgment and order of HH Judge Chow dated 26 August 2013, entering judgment against the defendants and dismissing the defendants’ third party notice against the 1^st third party.

2.  The facts and issues in this case have been set out in the judgment below and it is unnecessary to repeat them here. The crucial issue in the intended appeal is whether the judge was right in finding that it was Mr Ko Chin Pang (a partner of the 1^st defendant and a director of the 2^nd defendant) who had failed to turn off the water tap in the toilet inside the defendants’ factory unit which led to the flooding of the plaintiff’s unit next door. The defendants maintained that it was a staff member of the 1^st third party, the defendants’ contractor to renovate their unit at the time, who forgot to turn off the tap.  Indeed the 1^st third party has repeatedly admitted that to be the case.

3.  The defendants therefore seek leave to appeal, essentially to challenge the judge’s finding of fact to the contrary, that is, that it was Mr Ko who actually failed to turn off the tap.

4.  Primary findings of fact are notoriously difficult to challenge on appeal: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336.  This case is no exception.  The judge had seen and heard the witnesses, including Mr Ko, Mr Lam (the 1^st third party) and the three witnesses of the plaintiff who heard Mr Ko admitting shortly after the incident that it was he who had failed to turn off the water tap after use.  The judge gave his reasons for believing the plaintiff’s witnesses, and disbelieving Mr Ko’s and Mr Lam’s evidence.  Amongst the reasons he gave, the judge pointed out that Mr Lam never identified the staff member who had supposedly failed to turn off the tap, and the undeniable fact that that staff member was not called to give evidence.

5.  It was of course for the plaintiff to prove a case of negligence against the defendants, including the fact that it was the defendants who caused the flooding.  However, when the defendants put forward a positive case that it was the 1^st third party who caused the flooding, it was for the defendants to make good that assertion.  Failing that, the judge was quite entitled, as he did, to accept the plaintiff’s evidence (and reject the defendants’ and 1^st third party’s evidence) and found, on the totality of the evidence before him, that Mr Ko had failed to turn off the water tap.

6.  The intended challenge against the judge’s primary finding of fact is not arguable at all.  It is totally without merit. Accordingly, the application for leave to appeal is dismissed.  We also make an order that the defendant may not under Order 59, rule 2A(7) of the Rules of the High Court (Cap 4A) request our determination to be reconsidered at an oral hearing inter partes.