MOK KA PO, MABEL t/a M & M CO v. NG MEE LING t/a ACTIVE INDUSTRY CO

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JUDGMENT

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Fuad, V.-P., (giving the judgment of the court):

1. This is an appeal from the judgment of Wong J. dated 31st December 1990. In his reserved judgment, after a three day hearing, the judge rejected the plaintiff's claim and entered judgment for the defendant on his counterclaim in a sum which was agreed between the parties ($190,000). Had the plaintiff succeeded in her claim she would have received judgment for the agreed sum of $158,319.95

2. The controversy which brought the parties before the court essentially related to the production by the defendant of a mould for making plated champagne cork openers. The plaintiff claimed that in breach of the agreement reached between them, the defendant had failed to produce the mould and any samples from them so that she suffered loss and damage. It was the defendant's  defence that the concluded agreement between the parties was that he would be paid US$7,000 before he would be under any obligation to make the mould. He had hot been paid this sum, or any part of it, but had nevertheless begun the process of making the mould in anticipation of payment. Hence his counterclaim.

3. The only witnesses who gave evidence before the judge were the plaintiff herself, Miss Mok Ka Po (who trades as M & M Company) , Mr. Poon Yiu Tong, the Manager of the defendant Ng Mee Ling (trading as Active Industry Company) and Mr. Dennis Daniels. Mr. Daniels was called by the defendant and accepted by both parties as an impartial and independent witness. He was the plaintiff's customer for the champagne cork openers which would be made by the mould ordered from the defendant.

4. In the light of the order we have unanimously decided to make on this appeal, we think it desirable to say no more in this judgment than is strictly necessary. The learned judge disbelieved Miss Mok's evidence on a specific matter to which, with respect, he rightly attached great importance. He then said:

5. Leading Counsel for the appellant, who did not appear in the court below, fully appreciated the heavy burden he had assumed on her behalf. The principles upon which an appellate court acts when questions of facts have been tried and determined by a judge sitting alone are well-known and we do not intend in this judgment to rehearse them. All the leading cases were discussed in a recent decision of this Court, differently constituted: Hong Kong & Shanghai Banking Corporation v. Chan Yiu Wah and Another [1988]1 HKLR 457. It need hardly be said that great weight must be accorded to the conclusions of a judge who relies on the demeanor and manner of the witnesses when he has reached decisions in cases where there has been a conflict of testimony, particularly where, as here, the judge shares a common language with the principal witnesses. However, after being taken through all the evidence both oral and documentary, with very great respect to the learned judge we have been convinced that his judgment cannot be allowed to stand because we find it was a misdirection for him to hold that Mr. Poon's evidence was "supported by the evidence of Mr. Dennis Daniels on major issues." It would have been helpful if the judge had indicated what issues he had in mind. Our examination of Mr. Daniels' evidence, with the able assistance of counsel, reveals no such support.

6. For these reasons we conclude that we have no alternative but to make the following order: the appeal is allowed, the judgment and order of the judge dated 31st December 1990 is set aside (including the order for costs). A re-trial of the entire action is ordered on liability only before another judge of the High Court.