DAMON DRUMMOND v. KWAKU ATUAHENE-GIMA

CACV 53/2000
& CACV 54/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 53 AND 54 OF 2000

(ON APPEAL FROM HCA NOS. 13924 OF 1997 AND 5429 OF 1998)

______________

CACV 53/2000

_______________

J U D G M E N T

_______________

Keith JA (giving the first judgment at the invitation of Rogers V-P):

1. This appeal relates to a long-running dispute between two members of the academic staff of the City University of Hong Kong. They brought actions for defamation against each other. The actions were consolidated. After a trial lasting eight days, Cheung J dismissed Dr Drummond's claim against Dr Atuahene-Gima (who was called Dr Kwaku for convenience), but gave judgment for Dr Kwaku on Dr Kwaku's claim against Dr Drummond. The judge ordered Dr Drummond to pay the sum of $200,000.00 to Dr Kwaku as damages, and ordered him to pay Dr Kwaku's costs of both actions.

2. Dr Drummond is now appealing to the Court of Appeal against both the dismissal of his own action and the judgment in favour of Dr Kwaku on Dr Kwaku's action. Dr Kwaku has responded by applying for the notices of appeal to be struck out on the grounds that they do not disclose any arguable points of law, that they constitute an abuse of the process of the court, and that they do not spell out the grounds on which it is alleged that the judge's findings of fact were wrong.

3. The basis on which these appeals are said to be an abuse of the process of the court is that Dr Drummond is accused by Dr Kwaku of being a vexatious litigant and a gold-digger, who has unreasonably refused reasonable offers to compromise their dispute. I note what Dr Kwaku claims, but the correctness of allegations of that kind simply cannot be decided at a short hearing to determine whether or not the notices of appeal should be struck out. The fact that the notices of appeal do not contain arguable points of law is also not a ground for striking them out. Although the occasions will be rare when an appellate court will interfere with the findings of primary fact made by the trial judge, appeals against findings of fact are permissible. The grounds of the appeal in Dr Kwaku's action against Dr Drummond are sufficiently spelt out in the supplemental notice of appeal which Dr Drummond has recently filed, and Dr Drummond has told us that he is prepared to file a supplemental notice of appeal in the appeal against the judge's dismissal of his claim against Dr Kwaku. For my part, I would direct him to do so within four weeks of today, i.e. by 12 January 2001, but subject to that I would dismiss Dr Kwaku's application for the notices of appeal to be struck out.

4. Having said all that, Dr Drummond must appreciate that to disturb adverse findings of primary fact is an enormously uphill task for an appellant. Dr Drummond will have to demonstrate either that there was simply no evidence to support the findings of fact which the judge made, or that the judge's findings of fact were contrary to documentary or other incontrovertible evidence which the judge must have overlooked. It is not enough - repeat, not enough - for Dr Drummond to show that there was little evidence to support the judge's findings of fact or that the judge's findings of fact were contrary to the weight of the evidence. The weight of the evidence was for the judge to assess.

Le Pichon JA:

5. I agree with the judgment of Keith JA and have nothing to add.

Rogers V-P:

6. I agree with the judgment of Keith JA and with the order which he proposes. I only wish to add that I should not be taken by the reference to the supplemental notice of appeal in CACV 54/2000 to be suggesting that everything contained there would constitute a good ground of appeal. Having said that, however, I agree with the order. The application will therefore be refused on those terms.