XCHRX NG PING FAI t/a TAI SHING HONG PROPERTY AGENCY v. MA YU SHING

M.P. No. 2651 of 1995

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant's claim for commission of $36,898.00 was dismissed by Judge Sweeney after trial. The applicant seeks leave to appeal against the dismissal of his claim out of time.

2. The grounds of appeal being advanced by the applicant are as follows:

(1) the Judge presided on this case had held prejudice against me,

(2) my civil rights had been unjudicially deprived,

(3) the defendant's statement had been inconsistent,

(4) the defendant's witness of this case, Wong Kwok Yip, could not be a reliable and impartial witness because his witness statement had been inconsistent,

(5) the defendant's witness Wong Kwok Yip and I had had previous business conflicts.

3. The applicant elaborated on these grounds. He said that the judge had criticised him on a number of occasions. He also claimed that the defendant's witness Mr Wong had on a previous occasion blackmailed him. He accepted that Mr Wong had never been prosecuted for this. He also agreed that he had not been instrumental in bringing about a sale of the property in question.

4. These grounds are not very compelling. There are no particulars to support the generalised allegations that Judge Sweeney was either prejudiced or that he had "unjudicially deprived the plaintiff of his civil rights".

5. It is evident from a perusal of the reasons given by Judge Sweeney that he was primarily concerned with the resolution of issues of fact. He clearly gave detailed consideration to the issues which were before him and I do not think that the plaintiff would have any realistic chance of succeeding in any appeal he may prosecute.

6. What needs to be borne in mind is that it is difficult for findings of fact to be reversed on appeal. The judge had the advantage of observing the witness giving evidence. The Court of Appeal does not have this advantage. Besides the allegation of bias all of the complaints made by the applicant related to issues of fact.

7. This application for leave is refused. The refusal is mainly based upon the merits of the appeal rather than the fact that the application is made out of time.