YIP KU v. YIP HON WING AND ANOTHER

DCCJ4857/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4857 OF 2005

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D E C I S I O N

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1.  The 1st defendant applies for leave to appeal my judgment of 16 February 2009 giving judgment against the 1st defendant.

2.  The 1st defendant’s grounds of appeal today are set out on my findings of fact.  Mr Cheng, counsel for the 1st defendant, relied on the authority of the Court of Appeal case of Carrian Holdings Limited v Cressflame Estate Limited CACV205 of 1993 where Power V.P. gave the judgment of the court and held on page 16:

“(1) An appellate court has jurisdiction to try the case and find the facts on the transcript.  It is a re-hearing.

 (2 Nevertheless, not having seen and heard the witnesses, it is in a position of permanent disadvantage as against the trial judge.

(3) Therefore, this court would reverse a trial judge on a finding of fact when that finding depended upon the credibility of a witness or witnesses only if:

(a) it is shown that the judge failed to use, or culpably misused his special advantage, and

(b) the witness’ evidence is vitiated either by such a glaring improbability or by an objective fact or conclusive document which shows that the judge’s finding was wrong.”

3.  The court further held:

“Further, in a case such as this which turns on the judge’s opinion of the witness formed in all the circumstances of the trial, if we are to reverse his decision on the facts, we ‘must not merely entertain doubt whether the decision below is right but be convinced it is wrong.’  The Julia [1860] 14 Moo PC 210 at 235 per Lord Kingsdown.”

4.  Section 63A(2) of the recently amended District Court Ordinance provides that:

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that:

(a)  the appeal has a reasonable prospect of success, or

(b)  there is some other reason in the interests of justice why the appeal shall be heard.”

5.  Mr Cheng submitted that his appeal has a reasonable prospect of success.  However, the 1st defendant must be able to show first that the Court of Appeal not only would entertain doubt whether my decision was right but be convinced it is wrong to be able to succeed in the appeal.  I refer to Power VP’s reference to dictum in The Julia referred to above.

6.  Mr Cheng submitted that it was glaringly improbable for the plaintiff’s evidence on the agreement to be accepted because of a number of reasons.  He said that I wrongly accepted Mr Yip had agreed to take the payment in cash because it would also take the 1st defendant to agree to pay in cash, and that Mr Yip’s evidence was uncorroborated and Mr Yip had delayed in taking his son to court until the last instalment was close to time-bar.

7.  Mr Cheng further disagreed with my finding that there was an incentive for Mr Yip to settle the matrimonial dispute at $5 million in cash.  However, according to the evidence, there were no other reasons given either by Mr Yip himself or the 1st defendant, his son, why Mr Yip, the father, should sign the settlement agreement the very next day after the alleged meeting at the restaurant where Mr Yip senior claimed the agreement was reached. 

8.  There was no suggestion from anyone else of an incentive for the plaintiff, Mr Yip senior, to settle the matrimonial dispute and all other related actions with his wife and the related companies if not for the agreement he had reached with his son the night before.  If there were other incentives or a motive for him to do so, I am sure they would be disclosed at the trial.

9.  Mr Cheng further submitted that Mr Yip’s wife had previously offered him a larger settlement before the trial of the matrimonial proceedings that took place before Waung J, and he queried: why the plaintiff, Mr Yip senior should agree to accept $5 million only?  What Mr Cheng failed to mention is that the offer was made a long time ago? The agreement Mr Yip is relying on was reached in the middle of a long trial. 

10.  Mr Cheng further suggested that the scribble on the note resembled Mr Yip senior’s signature rather than the 1st defendant’s.  As there was no handwriting expert evidence introduced, the court cannot accept this suggestion without any support.  There is, on the other hand, the evidence of Mr Yip senior on the payment of legal fees that Mr Yip senior claimed he had used to pay with the money he received from the 1st defendant upon reaching of the agreement. 

11.  Mr Cheng submitted that Mr Yip did not pay his former solicitor, Mr. Tommy Lai, that was why he was taken to court by Mr Lai.  Mr Cheng, however, agreed that Mr Yip had two sets of lawyers.  He had changed lawyers in the middle of the matrimonial proceedings.  He had another set of lawyers and counsel acting for him before he acted in person in the end.  The fact that Tommy Lai sued him for unpaid legal fees is neither here nor there.  In any event, this was not an issue raised at the trial or in the cross-examination of Mr Yip.

12.  In short, Mr Cheng submitted that I was wrong to accept Mr Yip’s evidence at the trial.  I disagree with him.  I have seen and heard the witnesses giving evidence at the trial and observed their demeanour.  I came to a decision after taking into account all the evidence I had heard and read, including the documentary evidence placed before me.  I found there was overwhelming evidence against the 1st defendant.  I do not think the 1st defendant would have a reasonable prospect of success in the appeal to the Court of Appeal.  I do not think there was a glaring improbability in the plaintiff’s case or that Mr Yip’s evidence could be vitiated by an objective fact or there was any conclusive document to show that my finding was wrong. 

13.  On the contrary, I found there was conclusive evidence for me to find for the plaintiff at the trial, and for the reasons I give above, leave to appeal is refused with costs.

(Discussion re costs)

14.  Since Mr Lee has no objection to the sum suggested by Mr Cheng, I allow costs of the application, assessed at $7,500.