TANG WAI CHO v. TANG WAI LEUNG

CACV 289/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 289 OF 2011

(on appeal from HCA NO. 2207 OF 2007)

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J U D G M E N T

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Hon Yuen JA:

1.  This is an application on the part of the plaintiff (appellant) for leave to adduce fresh evidence at the hearing of his appeal against the judgment of Deputy Judge Carlson given on 30 November 2011.

The action

2.  First, a brief word on the action. 

2.1   The plaintiff and the defendant are brothers. 

2.2   The defendant is the registered owner of a property in Caine Road.  It would appear that the sums for the purchase price were paid between 11 May 1991 and 31 July 1991.  

2.3   The plaintiff claimed to be the beneficial owner of the property.  He had been running a business at the property as a sole proprietor since 1980 but had gone to Australia in 1985 on a Temporary Entry Permit, thereafter overstaying there.  He married an Australian citizen in October 1990 and thereafter applied for extension of the Temporary Entry Permit as a spouse.  However that application was rejected and he returned to Hong Kong on 5 May 1991. 

2.4   It was the plaintiff’s case that even though he had provided all the money for the purchase of the property, he put the property in the defendant’s name for 3 reasons:

(1)     he did not wish his wife to know he owned a property as he knew her only briefly before marriage;

(2)     he feared that if his sole proprietorship business in Hong Kong got into trouble in the future, his personal assets would be at risk;

(3)     he had heard that “even overseas properties were required to be declared to the Australian Government and be subjected to various kinds of taxes or levies”

(para. 49 of the plaintiff’s witness statement dated 21 January 2009).

Judgment

3.  The learned judge gave judgment in favour of the defendant.  In rejecting the 3 reasons given by the plaintiff for putting the property in the defendant’s name, he held that:

(1)     the authorities in Australia had held the plaintiff’s marriage to be a sham, that it was not a genuine marriage, and that the plaintiff knew that what he had contracted was a marriage of convenience; the learned judge considered it “not worth reasoned contemplation” that the woman would seek to litigate, in ancillary relief proceedings in the Australian divorce court, a share in the value of the property (para. 62 of the judgment);

(2)     the plaintiff’s business in Hong Kong had not contracted any indebtedness of any size, and in any event there were many ways in which he could protect the property from creditors of the business, eg by having the business incorporated, or by having the property held by an overseas company (para. 63);

(3)     the plaintiff had been ordered to leave Australia, his marriage had been held to be a sham, and the Australian authorities “did not want anything further to do with him” (para. 64).

Appeal

4.  The plaintiff, then acting in person, lodged a notice of appeal on 28 December 2011.  Ground 4 of his intended grounds of appeal is that the learned judge was wrong in finding that the marriage was of no legal effect and therefore the plaintiff had no need to put the property in the defendant’s name so as to avoid sharing it with his wife.   

Application to adduce fresh evidence

5.  The plaintiff now has the benefit of legal representation and has lodged an application to adduce fresh evidence in the form of the following documents:

Document

(1)     his certificate of marriage dated 31 October 1990;

(2)     a memorandum dated 12 March 1991 written by an officer of the Australian Department of Immigration, to the effect that the plaintiff should return to Hong Kong and that his wife could sponsor his return to Australia;

(3)     a letter dated 17 May 1991 from the Australian Consulate in Hong Kong, advising the plaintiff to obtain a character certificate for his application for entry to Australia;

(4)     a letter dated 20 February 2012 from the Australian Consulate in Hong Kong, referring to records that the plaintiff had applied for a partner migration visa on 14 May 1991 which application was refused on 12 September 1991; and

(5)     an email dated 6 March 2012 from the Australian Consulate in Hong Kong, advising that “assessment on the genuineness of the relationship for a visa application is different and independent to the legality of a marriage certificate”.

6.  The plaintiff has also sought to supplement his evidence with a fresh affirmation dated 23 April 2013.  The fate of this affirmation must follow that of the documents sought to be adduced.

Principles

7.  The principles governing the exercise of the court’s discretion whether to permit fresh evidence to be adduced are well established.  Where there has been a hearing on the merits, fresh evidence will generally not be admitted on appeal unless the three conditions set out in Ladd v Marshall [1954] 1 WLR 1489 are satisfied:

(1)     it must be shown that the evidence could not have been obtained with reasonable diligence for use at the hearing;

(2)     the evidence must be such that, if given, would probably have an important influence on the result of the case, though it need not be decisive;

(3)     the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible though it need not be incontrovertible. 

Discussion

8.  In my view, with respect the present application falls at the first hurdle.  There is no reasonable explanation why documents (1) to (3) listed in para. 5 above were not obtained, and why the authorities whose responses are contained in documents (4) and (5) were not approached, prior to the trial. 

8.1   It is clear from the plaintiff’s witness statement that 2 of the reasons he proffered for his decision to put the property in the defendant’s name had to do with his marriage and his wish to return and settle in Australia.  They were obviously important elements of his case.

8.2   Document (1) (the marriage certificate) is neither here nor there in terms of helping his case but clearly this was a document that could have been obtained from the Australian marriage registry before trial had it been sought.      

8.3   Document (2) might support the argument advanced by Miss Yang now that the reference to “reg. 126(1)(b)” in the record of decision might have been mistaken and that the Australian authorities had not in fact intended to reject the plaintiff’s application on the ground that his relationship with his wife was not a genuine or continuing one.  However a letter dated 5 April 1991 from the Australian authorities enclosing the record of decision dated 2 April 1991 was in fact available at the trial.  It provided a file reference number which, had it been followed up, would have led to document (2).  However there is no evidence that anyone from the plaintiff’s team sought to follow it up at the relevant time.

8.4   The plaintiff’s allegation was that notwithstanding the fact that he had not been allowed to remain in Australia and had to lodge an application from Hong Kong, he was pursuing an application to return to settle in Australia on the basis of spouse migration.  That allegation could have been supported had he brought forward document (3) at or even during the trial.  That document was in the plaintiff’s possession throughout. There was ample time for the plaintiff to look for it.  Unusually, the trial took place over the course of 15 months from 4 March 2010 to 29 June 2011.  There was ample time for the plaintiff to look for documents and his legal advisers to do the necessary investigations.

8.5   The same comment applies to documents (4) and (5).  There is an allegation in the plaintiff’s last affirmation that he had been informed that the file of the 1991 application at the Australian Consulate in Hong Kong had been destroyed.  However no particulars have been given as to who had given him that information, and more importantly, when he asked and when he was given that information.  For the purposes of an application to adduce fresh evidence, those particulars are crucial.

8.6   I do not think it relevant that the plaintiff was found to be of low average intelligence.  The 3 reasons were there in his witness statement before the trial.  All that was necessary was some “legwork” to find supporting evidence.

8.7   In any event it does not seem that it took any unusual efforts on the part of the plaintiff’s relatives to find these documents.  Unfortunately they only did so after the judgment.

8.8   In other words, the plaintiff has failed to show that the evidence could not have been obtained with reasonable diligence for use at the hearing.  I can only apply the law and it is clear that the first condition in Ladd v Marshall has not been satisfied.

9.  Although not necessary for this decision, I take the view that had the plaintiff satisfied the first condition, I would have found the other 2 conditions in Ladd v Marshall satisfied. For the reasons I have given however, I must dismiss this summons.

[Submissions on costs]

Order on costs

10.  The plaintiff is to pay the defendant’s costs of this application to be taxed if not agreed.  The plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.