GOLIK CONCRETE LTD v. TOWA CONCRETE LTD

DCCJ 7267/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7267 OF 2003

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REASONS FOR DECISION

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1.  This is the Defendant’s application for leave to appeal against my judgment handed down on 13 July 2006 whereby I gave judgment in favour of the Plaintiff in the sum of $370,322.50 and dismissed the Defendant’s counterclaim.  At the conclusion of the hearing I dismissed the Defendant’s application and indicated that I would hand down my reasons in due course.  This I now do.

2.  The principles governing applications for leave to appeal are well settled.  I should only refuse leave if I am satisfied that the intended appeal has no realistic prospect of success: Ma Bik Yung v. Ko Chuen, HCMP4303/1999 and Smith v. Cosworth Casting Processes Ltd [1997] 1 WLR 1538.

3.  Mr. Mak, the director who represented the Defendant at the trial, essentially relied on the contents of his affirmation filed on 25 July 2006 in support of the present application.

4.  Most of the matters deposed to in the affirmation of Mr. Mak were effectively repetitions of the submissions previously made by him on behalf of the Defendant at the trial.  Those submissions included in particular the contentions of Mr. Mak in regard to the quality of the concrete delivered by the Plaintiff to Maeda-Chun Wo Joint Venture (“MCWJV”) from September 1999 to June 2000, the construction of Clauses 7 and 8 of the Co-operation Agreement for Sale of Concrete, and the alleged settlement agreement said to have been made between the Plaintiff and the Defendant around June 2003.

5.  At paragraphs 11 to 17 of my judgment I have already set out the reasons why I rejected the Defendant’s allegations in relation to the quality of the concrete delivered by the Plaintiff.  Under paragraph 16 I made particular reference to the testimony of Mr. Mak under cross-examination by counsel for the Plaintiff on the third day of the trial in relation to a document which was disclosed and used by Mr. Mak himself in the course of his cross-examination of the Plaintiff’s witness, Mr. Yin Xiaoguang.  That document was a schedule of payment records (Schedule 6) annexed to the Defendant’s Amended Statement of Claim previously filed in another action (HCCT140/2000) between the Defendant and MCWJV.

6.  Mr. Mak now takes issue with the extract of that particular part of his evidence (which I have held amounted to an admission of full payment by MCWJV to the Defendant in respect of the concrete supplied by the Plaintiff) and claims that he could only have answered “no” to those questions put by counsel or, if his answer was indeed “apparently yes”, he should only be treated as having made such an answer with reservation.

7.  Mr. Mak further asserted in his affirmation (under paragraphs 11 and 37) that he was “directed” by this Court to produce the said document disclosed by him “against his wishes”.

8.  Although I have no hesitation in maintaining my citation of the aforesaid part of Mr. Mak’s evidence under cross-examination and in rejecting the suggestion that the said schedule was produced against Mr. Mak’s wishes, in view of the disturbing nature of these allegations I have taken the trouble to listen to the audio recording of the relevant part of the trial.

9.  I am left in no doubt whatsoever that what Mr. Mak now seeks to assert is not borne out by the record of the proceedings at the trial.  Contrary to what Mr. Mak has alleged, he had in fact been offered ample opportunity, both by this Court and by counsel for the Plaintiff, to decide whether the schedule would be used for the purpose of cross-examining Mr. Yin or advancing the case of the Defendant.

10.  Mr. Lo appearing for the Plaintiff also informed me that the allegations of Mr. Mak did not accord with the notes taken by the Plaintiff’s solicitors during the trial.

11.  In so far as the same document was used against Mr. Mak when it came to his cross-examination by counsel for the Plaintiff, it is true that Mr. Mak did indicate, as quoted under paragraph 16 of my judgment, that he would have to reflect on the suggestion put to him (that according the Defendant’s own document all the invoices in question had already been settled by MCWJV).  However, Mr. Mak did consider or “reflect on” the schedule carefully before he gave his affirmative answer, as the audio recording shows that after Mr. Mak had indicated that he had to reflect on the suggestion, he was invited by counsel to look at the document again and there was a long pause before he eventually gave the answer “apparently yes”.

12.  I should add that even if Mr. Mak had not made the said admission under cross-examination, I still would have come to the same conclusion on the quality of the concrete mixes supplied by the Plaintiff for the other reasons I gave in my judgment.

13.  I am therefore of the view that the Defendant has no realistic prospect of succeeding on appeal.  The Defendant’s application is dismissed with costs to the Plaintiff, to be taxed if not agreed.