DOUBLE PROOF LTD v. HO KWOK WING

CAMP 372/2023, [2024] HKCA 598

On An Intended Appeal From [2023] HKDC 1128 &

[2023] HKDC 1742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 372 OF 2023

(ON AN INTENDED APPEAL FROM DCCJ NO 5753 OF 2019)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  There are before the Court two summonses taken out by the Defendant:

(1)  a summons dated 13 December 2023 (“the Leave Summons”) seeking leave to appeal against Deputy District Judge C K Siu’s judgment dated 24 August 2023 (“the Main Judgment”) and his decision dated 29 November 2023 (“the Leave and New Evidence Decision”); and

(2)  another summons also dated 13 December 2023 (“the New Evidence Summons”) seeking leave to file and serve a witness statement of Ho Kwok Wing (the Defendant) and a witness statement of Wong Kwai Pan (the Defendant’s husband, “Wong”), both dated 20 September 2023 (collectively, “the Witness Statements”), in support of the Leave Summons and, in the event that leave to appeal is granted, the substantive appeal.

2.  Having considered the documents and the submissions filed by the parties, we consider that it is appropriate to deal with the two summonses on paper without an oral hearing pursuant to Order 59, rule 2A(5)(a) and rule 14A(1) of the Rules of the High Court, Cap 4A.

BRIEF BACKGROUND

3.  The Plaintiff and the Defendant are neighbours. The Plaintiff is the registered owner of Unit 4A (“Unit 4A”), and the Defendant Unit 4B (“Unit 4B”), on 12/F, Harbour Centre, Tower 2, 8 Hok Cheung Street, Kowloon (“the Building”).

4.  Units 4A and 4B were previously one single unit known as “Unit 4” owned by the Plaintiff. It was partitioned into two units, ie Unit 4A and Unit 4B, in 1991 shortly before Unit 4B was sold and assigned by the Plaintiff to the Defendant on 16 July 1991. Prior to the partition, Unit 4 had only one toilet (“Toilet 4B”). As part of the partition work, an additional toilet (“Toilet 4A”) was constructed.

5.  After the partition and sale of Unit 4B to the Defendant, (i) Unit 4B consisted of an office area (“Office 4B”) and Toilet 4B, which was situated next to Office 4B, while (ii) Unit 4A consisted of an office area (“Office 4A”) and Toilet 4A, with Office 4B sandwiched between them. There was a discharge pipe (“the Pipe”) for carrying away the flushed waste water from Toilet 4A. The Pipe ran along the wall of Office 4A and extended into Toilet 4B before joining the main drainage or sewage pipe of the Building.

6.  The Plaintiff’s claim against the Defendant was that, in or about July 2019, the Defendant, wrongfully and in breach of the Deed of Mutual Covenant of the Building and/or Sub-Deed of Mutual Covenant between Unit 4A and Unit 4B, cut off and blocked the Pipe. As a result, Toilet 4A could not be used. The Plaintiff commenced the action below against the Defendant seeking, inter alia, a mandatory injunction to compel her to reinstate or reconnect the Pipe, an injunction to restrain her from cutting off the connection of the Pipe again, and damages. The Defendant denied the Plaintiff’s claim, and counterclaimed against the Plaintiff for loss and damage for allegedly stopping the fresh water supply to both Unit 4A and Unit 4B for about a month between August and September 2019.

7.  The Plaintiff’s claim and the Defendant’s counterclaim were tried by the Deputy Judge on 26 and 28 June 2023. At the trial, the Plaintiff called 2 witnesses, namely, Mr Chatlani (a director) and Madam Lin (an employee) to give evidence on its behalf. The Deputy Judge considered both witnesses to have given evidence in a straight forward manner, and their evidence to be materially consistent with the contemporaneous documents. By and large, the Deputy Judge accepted their evidence. On the other hand, the Defendant, in breach of court orders, failed to file and serve any witness statement. By the order of Master Jocelyn Leung dated 19 September 2022[1], the Defendant was debarred from filing and exchanging witness statements, or adducing any evidence of factual witnesses at the trial.

8.  On 24 August 2023, the Deputy Judge gave the Main Judgment, finding that the Defendant was liable to the Plaintiff for breach of the Deed of Mutual Covenant and the Sub-Deed of Mutual Covenant, wrongful interference with the Plaintiff’s quasi-easement in respect of the use of the Pipe, and private nuisance. The Deputy Judge also rejected the Defendant’s counterclaim against the Plaintiff. Accordingly, the Deputy Judge granted the mandatory injunction and prohibitory injunction sought by the Plaintiff, and awarded the Plaintiff the costs of the action. No order on the Plaintiff’s claim for damages was made because, as confirmed by the Plaintiff’s counsel at the trial, the Plaintiff decided not to pursue that claim.

9.  The detailed facts of this case and the Deputy Judge’s reasons for his decision are fully set out in the Main Judgment and will not be repeated here.

10.  The Defendant was not satisfied with the Main Judgment, and sought leave to (i) appeal, and (ii) file and serve the Witness Statements, by a summons dated 21 September 2023. By the Leave and New Evidence Decision, the Deputy Judge dismissed the Defendant’s summons of 21 September 2023 (and three other summonses taken out by the Defendant, the details of which it is not necessary to set out in this Judgment).

11.  By the Leave Summons and the New Evidence Summons filed in the Court of Appeal, the Defendant, inter alia, (i) renews her application for leave to appeal against the Main Judgment, and (ii) applies for leave to file and serve the Witness Statements.

DISCUSSION

12.  The relevant principles for (i) granting leave to appeal from a judgment given by the District Court, (ii) appeals against findings of fact, and (iii) granting leave to adduce new evidence on appeal, are well-established, and will not be repeated here.

(i)  The application for admission of new evidence

13.  We shall first deal with the Defendant’s application for leave to file and serve the Witness Statements, which we have read. Save in relation to a survey report dated 22 May 2023 (“the Survey Report”) concerning the saleable area of Unit 4B, all other matters referred to in the Witness Statements concern facts or matters which occurred prior to or in August 2019. At §11 of the Witness Statement of Wong, it is stated generally that “[n]ew documents mentioned in this Witness Statement and other evidence in the application for leave for being adduced were only discovered in mid2023” [sic]. The same or similar assertion is made at §§10 and 59 of the Affirmation of the Defendant dated 12 December 2023. No proper explanation or particulars are given for this bare assertion. Having considered the matters mentioned in the Witness Statements, it seems clear to us that they were matters within the knowledge of the Defendant and/or Wong prior to the trial. The first Ladd v Marshall condition for admission of new evidence for the purpose of appeal, namely, that the proposed evidence could not have been obtained with reasonable diligence, is not satisfied. It is thus unnecessary to consider the second or third Ladd v Marshall conditions.

14.  Insofar as the Survey Report is concerned, it is proposed to be adduced by the Defendant as evidence of “other poor conduct of P”[2], the allegation being that the “partition wall is more to the right by 300mm, in favour of P with larger area for Unit 4A [than as shown] on the Plan of the Assignment”. This, it is said, is “a reflection of act of P’s witness not telling the truth”. The Survey Report bears the date of 22 May 2023. Neither the Defendant nor Wong has given any explanation as to why no application was made to seek to adduce the Survey Report at the trial, which took place in June 2023. We are not satisfied that the first Ladd v Marshall condition for admission of the evidence contained in the Survey Report is satisfied. Further, we do not see that the proposed evidence can demonstrate that the Plaintiff’s witness(es) was/were not truthful in his/her/their evidence. In any event, the allegation now raised goes at most to the credibility of the Plaintiff’s witness(es). We do not accept that the proposed evidence would or might have a very important effect on the mind of the Deputy Judge. Accordingly, the second Ladd v Marshall condition is also not satisfied.

15.  In the written submissions of the Defendant (Appellant) dated 13 December 2023, it is contended that the evidence clearly demonstrates “fraud” on the part of the Plaintiff “since the signing of the PSPA and including the false elaboration of the 16^th May 1991 letter by the witness of P”, and that the Main Judgment was obtained by “fraud”. Hence, the Defendant argues that it is not necessary for her to satisfy the “reasonable diligence requirement” for admission of new evidence.

16.  As correctly submitted by Mr Chan on behalf of the Plaintiff, the allegation of fraud is groundless and should never have been made. There was no allegation of fraud against the Plaintiff raised in the Defendant’s pleadings[3], or by the Defendant’s counsel at the trial. The fact that Mr Chatlani signed “legal documents before June 1991” (apparently a reference to the provisional sale and purchase agreement and a receipt for the initial deposit of HK$400,000[4]) now relied upon by the Defendant[5] to allege that Mr Chatlani “was telling lies” was something which the Defendant knew or ought to have known back in 1991. However, it was, apparently, not put to Mr Chatlani at the trial that he “was telling lies”[6]. The mere fact that the Defendant disagrees with the evidence of Mr Chatlani does not mean that his evidence was not truthful, still less that the Main Judgment was obtained by fraud. The Defendant’s allegation of “fraud” against the Plaintiff cannot even get off the ground.

17.  In all, we reject the Defendant’s application for leave to adduce the Witness Statements as new evidence in the Court of Appeal.

(ii)  The application for leave to appeal

18.  The draft Notice of Appeal attached to the Leave Summons is a prolix document:

(1)  Ground (i) alleges that the appeal is supported by new evidence, and contains 40 sub-paragraphs.

(2)  Ground (ii) alleges a “wrong motive” on the part of the Plaintiff since the signing of the provisional sale and purchase agreement, and that the Plaintiff’s witness was not telling the truth.

(3)  Grounds (iii) to (xvii) allege fraudulent and/or dishonest conduct on the part of the Plaintiff and also misrepresentation by the Plaintiff.

(4)  Grounds (xviii) to (l) allege that the Deputy Judge erred in making various findings of fact in the Main Judgment.

(5)  Grounds (li) to (lxxiv) criticize various findings or conclusions of the Deputy Judge in the Leave and New Evidence Decision.

The draft Notice of Appeal is not a proper notice of appeal, which ought to be a concise document setting out clearly and succinctly the reasons why the Court of Appeal should interfere with the judgment of the court below, and must not be prolix, unfocused or canvass evidence or submissions at length (see §§20 and 22 of Practice Direction 4.1 – Civil Appeals to the Court of Appeal).

19.  For the purpose of disposing of the Defendant’s application for leave to appeal against the Main Judgment, it is not necessary for us to examine the “grounds” of appeal individually, because the only matter put forward in the Defendant’s Written Submissions dated 13 December 2023 is that the Main Judgment was, allegedly, obtained by the Plaintiff’s fraud, in reliance on the new evidence sought to be adduced by the Defendant. At the hearing of the leave application before the Deputy Judge, the Defendant’s counsel conceded that if the application for admission of new evidence was refused, the intended grounds of appeal would fail[7]. As mentioned above, we refuse the Defendant’s application to adduce the proposed new evidence, and reject the Defendant’s allegation of fraud against the Plaintiff. This is sufficient to dispose of the intended grounds of appeal raised in the draft Notice of Appeal, including Grounds (i) to (xvii).

20.  Insofar as Grounds (xviii) to (l) are concerned, the Defendant seeks effectively to re-argue the whole case before the Deputy Judge. We do not see that the Deputy Judge made any palpable errors in his findings of fact, and consider that there is no reasonable prospect of the Defendant being able to satisfy the high threshold for challenging the findings of fact made by the Deputy Judge.

21.  Grounds (li) to (lxxiv) are immaterial because we have re-considered the Defendant’s applications for (i) leave to appeal and (ii) admission of new evidence afresh.

22.  In short, we are of the view that that the Defendant’s intended appeal does not have a reasonable prospect of success. We also do not see any other reason in the interests of justice why the appeal should be heard.

DISPOSITION

23.  The Leave Summons and the New Evidence Summons are dismissed with costs to the Plaintiff, which we summarily assess in the sum of HK$100,000. The above summary assessment of costs is an order nisi, which shall become absolute unless an application is made to vary the same within 14 days from the date of this Judgment.

24.  Since the application for leave to appeal is totally without merit, we make an order that no party may request the present determination of the leave application to be reconsidered at an oral hearing inter partes, pursuant to Order 59, rule 2A(8) of the Rules of the High Court.