JOSHI SUNIL v. HO HOI LEONG

DCCJ5683/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5683 OF 2006

RU L I N G

1.  After a two day hearing on 12th and 13 November, judgment was delivered in this case on 25 November.  Judgment was entered against the defendant for the sum of $92,000 with costs.

2.  The defendant now seeks leave to appeal to the Court of Appeal.

3.  The principles upon which the court acts on an application for leave to appeal are set out in Hong Kong Civil Procedure, paragraph 59/14/7.  Leave will normally be granted unless the grounds of appeal have no realistic prospects of success.

4.  No draft grounds of appeal were included in the application, although an affirmation was filed by the defendant, wherein he stated that the credibility and reliability of the evidence of the plaintiff and his witness was problematical and the video recording produced by the plaintiff was not an original and was not complete.  This morning the defendant supplemented this by essentially repeating his own case and his denial of the plaintiff’s case, and the defendant says that these will be his grounds of appeal.

5.  Much of what the defendant says are his grounds of appeal is merely a repetition of his case and his submissions at trial.  The defendant is in fact saying that the court has made the wrong finding of fact.

6.  On an appeal in an action tried by a judge alone, the burden of showing that the trial judge was wrong in his decision as to the facts lies on the appellant, and if the Court of Appeal is not satisfied that he was wrong, the appeal will be dismissed (see Hong Kong Civil Procedure, paragraph 59/1/48).

7.  On this issue, the defendant has not provided any reason why he says I am wrong in my finding of fact, despite my invitation for him to do so.  I can therefore see no reasonable prospects of success on what the defendant says are his grounds of appeal on the facts. 

8.  That leaves the question of the video recording, which the defendant says was not original and was not complete.

9.  The defendant was accorded full opportunity to view the video recording played in court and compare it with the best copy in existence.  Having viewed and made that comparison, the defendant accepted that the video recording played in court was the same as the best copy in existence, which was to be found on the plaintiff’s mobile telephone, and after comparison and viewing of the video recording, the defendant pointed out two areas of complaint concerning the video recording.  One was a part where the defendant says the sound was very low and the defendant said that in that portion the words “I don’t want to find someone or me to kill you” were uttered by the plaintiff, and that was done during the part when the volume on the recording was low.

10.  This aspect was fully covered in cross-examination and I have also dealt with it at paragraph 42 of my judgment.

11.  That leaves the defendant’s complaint that some parts of the meeting were not shown in the video.

12.  The reason why I found the video helpful or illuminating is for the defendant’s reaction or, rather, lack of reaction when told that he owed the plaintiff $150,000 (see paragraphs 40 and 41 of my judgment), as well as the defendant’s general demeanour at the time of the meeting as shown in the video recording.  The video recording was not relied upon as being a complete record of all that went on on that evening.

13.  In the circumstances, having considered the defendant’s submissions and all other matters, I see no realistic prospect of the defendant’s grounds of appeal succeeding.  In the circumstances, the defendant’s application for leave to appeal to the Court of Appeal is dismissed with costs to the plaintiff, to be taxed if not agreed.