CHAN SING CHUEN v. YUNG MEI CHUN

HCMP 4776/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 4776 of 2003

(On intended appeal from DCCJ 15756 of 2000)

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JUDGMENT

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Hon. Cheung JA:

1.  I agree with the judgment of Yuen JA.

Hon. Yuen JA:

2.  This is the Defendant’s application for leave to appeal from a judgment of Deputy District Judge W. Chan giving judgment to the Plaintiff for a sum of $135,000.  The judge had refused leave to  appeal at a hearing at which the Defendant did not appear.  The Defendant then made an application to the Court of Appeal for leave to appeal.   This was rejected on paper by a single judge of the Court of Appeal.  The Defendant then renewed her application for leave to this court.  After an oral hearing, the Defendant also submitted written submissions, including a 48-page written submission with annexures, which this court has perused.

Background

3.  The Plaintiff and the Defendant are both Certified Public Accountants.  They were classmates at the Hong Kong Polytechnic.  After graduation, they were also colleagues for a number of years at a large accountancy firm, although they worked in different sections.

4.  Essentially, the Plaintiff’s case was that the Defendant had in early 1999 agreed to trade in Hang Seng Index Futures (“HSI contracts”) for him, and was liable to him for $135,000, being the balance outstanding after deducting from deposits he had paid ($400,000) and profits made on 2 contracts ($34,500), the losses made on 2 other contracts (-$217,000), transaction costs (-$816) and payment made on 27 April 1999 (-$81,684).

5.  The Defendant’s defence was simply one of fact: that it was not she, but her husband (“the Husband”) - a builder, who was also known to the Plaintiff - who had agreed to trade in HSI contracts for the Plaintiff.  She also adduced evidence that the Defendant actually owed the Husband money for trades done after the 4 contracts referred to above, even though the Husband had not by the time of trial commenced legal proceedings against the Plaintiff.  This was notwithstanding the fact that the Plaintiff had instituted this action against the Defendant in 2000, and the trial before the deputy judge at the end of 2002 was already the second trial of the action, a previous trial in 2001 having been aborted (this previous trial is erroneously referred to as a “trial de novo” in the Defendant’s submissions).

Dispute of fact

6.  At the (second) trial, both parties were represented by counsel.  The trial lasted 10 days.  The Plaintiff, the Defendant and her husband gave evidence.  Given the nature of the defence, the judge rightly noted that the case turned on the facts.  The judge observed that “it is readily apparent that the story of the Plaintiff cannot possibly stand together with the story of the Defendant and her husband.  The evidence from the protagonists adduced at trial is so diametrically opposite that there can really be no halfway house” (judgment para. 76).

7.  Having reminded himself that the demeanour of witnesses could be deceptive and should be approached with great care (judgment para. 79), the judge accepted the Plaintiff’s evidence, describing him as an impressive witness who did not embellish his evidence or attempt to tailor his evidence to suit his case.  By way of contrast, he found the evidence of the Defendant and the Husband rehearsed, and he found that they were prepared to tailor their evidence to suit the Defendant’s case.

Proposed ground of appeal - judge should not have believed Plaintiff 

8.  In her proposed grounds of appeal, the Defendant has challenged the judgment on the ground first that the judge should not have believed the Plaintiff as he (the Plaintiff) had given answers in evidence that were inconsistent or not worthy of belief especially coming from an accountant.  The details of these submissions can be found in the Defendant’s written submissions and will not be repeated here.  The Defendant has relied on authorities which state the necessity for a judge to do more than simply say that he preferred one party’s evidence to the other’s (Zhou Cui Hao v Ting Fung Yee CACV 108/98, unrep.).

Documentary evidence

9.  However, it is clear from the judgment in the present case that the judge did not simply say that he preferred the case of the Plaintiff to that of the Defendant based on demeanour alone.  He examined the documentary evidence, and considered three important pieces of documentary evidence:

(1)	two e-mails written by the Defendant from the Husband’s e-mail address to the Plaintiff on 12 June 2000 (judgment paras. 95-105);
(2)	deposit slips recording deposits made by the Plaintiff to the bank account of Tai Fook Futures Ltd, who were the brokers for the trades in March - April 1999 (judgment paras. 106-114);
(3)	the Husband’s notebook, in which he allegedly contemporaneously recorded the trades done in 1999 (judgment paras. 116-122).

(1)     E-mails

10. As for the e-mails, by way of background, the Plaintiff had first sent e-mails on the subject of the HSI contracts to the Defendant at her office e-mail address.  The Defendant forwarded them to the Husband’s e-mail address.  At the end of June 2000, she warned the Plaintiff against inappropriate use of her employer’s property (i.e. her office e-mail account). 

11. The Defendant admitted however that she wrote 2 e-mails to the Plaintiff on 12 June 2000 from the Husband’s e-mail address.  The contents of these e-mails (reproduced below) completely justified the judge’s rejection of the Defendant’s defence that it was not she who had been trading the HSI contracts. 

12. In the 1^st e-mail at 14:01, she wrote:

“Francis [the Plaintiff]

I am sorry that I haven’t sent you the confirmation yet as I need some time to dig out all the confirmations.  I will mail them to you in the coming two weeks.  Hope it is OK.

Jessie [the Defendant]”.

The Plaintiff replied at 14:16:

“a word of advice, HSF trading is not suitable for U, better to take longer rest.

Did U do the CFA examination?  I have taken the Certified Information System Audit exam last year, now I am doing more IT related assignment, like Y2K and Internet Betting.

How’s Jeff [the Husband], still working with his old boss?

Send me what U have in hard copy to HKJC, let’s do it bit by bit.  Thanks.”

The Defendant replied to this in her 2^nd e-mail at 16:43:

“Thanks for your advice.  I am just busy with my reports.  As promised, I will send you all the confirmations.  Don’t worry”. 

13. The contents of these e-mails were unambiguous.   The use of the first person singular made it clear that it was the Defendant who had been trading in HSI contracts for the Plaintiff.  The Defendant’s explanations that she wrote the e-mails on behalf of the Husband simply flies in the face of the clear language of the e-mails.  The judge was entitled to place heavy reliance on the 2 e-mails which were written by the Defendant herself and he rightly did so.

(2)    Deposit slip

14. As for the deposit slips, the Plaintiff’s evidence was that, consistently with his case that the Defendant told him that she would be trading for him, he had written, amongst other things, “deposit to: Jessie Yung’s a/c” on a copy of a deposit slip which he had faxed to Tai Fook on 23 March 1999.  A copy of this copy deposit slip was exhibited as “P-1A”.  

15. The Defendant challenged this evidence on the basis of (a) discrepancies in the copies supplied by the Plaintiff’s solicitors to the Defendant’s solicitors and (b) the suggestion that Tai Fook would not have accepted the deposit where the name (“Jessie Yung”) did not match the account number (it being the Husband’s account).

16. In respect of (a), the judge heard evidence from a trainee solicitor with the Defendant’s solicitors and rejected the discrepancies alleged in the exhibits.  But more importantly, no attempt had been made by the Defendant to call evidence from (or even contact) the staff of Tai Fook who had received the original document and who would have been in the best position to depose to whether the words “deposit to: Jessie Yung’s a/c” were in the document faxed to them.  In respect of (b), the Defendant’s suggestion that Tai Fook would not have accepted the deposit as the name Jessie Yung did not match the Husband’s account number was not supported by any evidence from Tai Fook.

17. In the absence of such evidence to support the Defendant’s contention, the judge was entitled to accept the Plaintiff’s evidence regarding the writing on the deposit slip, which was consistent with his case. 

(3)    Husband’s notebook

18. The Husband had adduced in evidence a notebook in which he said he had contemporaneously recorded the trading done in 1999.  His evidence was that he used the notebook between early 1999 and July 1999.  The judge found that he should attach no weight to it.  He took into account its late production in discovery.  More importantly an entry in the notebook gave the lie to the Husband’s story that he used the notebook between early 1999 and July 1999.  His attempts to explain the entry were mutually inconsistent.  In these circumstances, the judge was entitled to place no weight on the notebook. 

19. Accordingly, there are no realistic prospects of success on the Defendant’s proposed grounds of appeal based on the judge’s acceptance of the Plaintiff’s evidence.  The judge had considered the documentary evidence adduced by both parties and as noted above, the e-mails written by the Defendant herself on 12 June 2000 were very damaging of her defence.

20. As for the Defendant’s detailed submissions on inconsistencies and other areas in the Plaintiff’s evidence which she found unsatisfactory,  it is well-established that where a trial judge has made findings of primary fact, it is not the function of an appellate court to review the evidence to see if it might have made a different finding.  As Lord Hoffmann said in Biogen Inc v Medeva plc [1997] RPC 1 and repeated in Piglowska v Piglowski [1999] 1 WLR 1360:

“The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy.  It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impressions which was made upon him by the primary evidence.  His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance .... of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation”.                                                                          

To this, Bokhary PJ added in Ting Kwok Keung v Tam Dick Yuen [2002] 1 HKC 601:    

“Where the judgment turns on an issue of fact, the Court of Appeal must have regard to the nature of that issue of fact.  And it must have regard to the advantages enjoyed by a trial judge who received the evidence on such an issue at first-hand, in other words, in whose presence the whole of the evidence unfolded in its living state.  Such advantages can be, as Lord Shaw of Dunfermline put it in Clarke v Edinburgh Tramways at p.36, ‘sometimes broad and sometimes subtle’.  The question for the Court of Appeal is whether, even though it does not enjoy the advantages enjoyed by the trial judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong.  The Court of Appeal should intervene if so satisfied.  But if not so satisfied, the Court of Appeal should defer to the trial judge’s conclusion even if in some doubt as to its correctness”.  

21. In the present case, the trial judge had seen the evidence “unfolding in its living state” and his rejection of the defence was supported by documentary evidence, particularly the 2 e-mails.

Proposed ground of appeal - Plaintiff’ discussed case with solicitor while giving evidence

22. Another ground of appeal was based on the Defendant’s allegation that on the first day of trial, the Plaintiff had had discussions with his solicitor even though the judge had reminded him not to do so.  The Defendant’s allegation was that the Plaintiff had lunch with his solicitor on the first day of trial (although it is not clear whether the Defendant is alleging that they actually discussed the case during lunch), and that at the end of the hearing on that day, the Plaintiff had discussed the case with his solicitor.

23. However, even assuming that the Defendant’s allegations are that the Plaintiff discussed the case with his solicitor on both occasions, she did not bring that to the attention of the judge at the time.  The Defendant was well aware that the judge had reminded the Plaintiff not to discuss the case  and she alleges that her legal representatives had also seen the Plaintiff discuss the case with his solicitor at the end of the hearing on the first day.  Yet no complaint was made to the judge until after judgment.  The Defendant cannot wait to see “how the wind blows” and keep a point like that up her sleeve until judgment was given against her.  By choosing not to take the point (assuming there was one) at the time, she has waived whatever rights she had to a re-trial.   

24. Again there is no realistic prospect of success on this ground of appeal.  Accordingly, this application for leave to appeal must be dismissed.