YUEN SHUI CHUN AND ANOTHER v. CUNG SHIRLEY TU NHAN

HCMP 4430/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 4430 OF 2002

(ON APPEAL FROM DCCJ NO. 7251 OF 2001)

_______________________

_______________________

_______________________

J U D G M E N T

_______________________

Hon Rogers VP:

1. This is an application for leave to appeal. It comes to this court, following an application which was made to a single judge. That application was refused by Mayo VP on 30 October of last year.

2. The case involved two rubies which the plaintiffs allege were bought from the defendant. Whether they were bought from the defendant or from the defendant's husband matters not as far as this application is concerned. The plaintiffs' case is that the two rubies were synthetic rubies and upon that their case is founded.

3. The problem which faced the plaintiffs is this: that not only were the rubies purchased some time prior to any complaint being made, but they had both been reset. Indeed, the 2nd plaintiff had sold on the reset ruby to one of his customers and had retrieved it. The judge came to the conclusion in paragraph 35 of her judgment that:

"...There is no evidence before me that the two plaintiffs have produced the same two rubies in the two rings they purchased from the defendant and that they were synthetic rubies rather than natural rubies when they were sold to them by the defendant. The gemstones that could have been replaced at the time of resetting or at any time before it was taken to Dabera for examination in the case of the 1st plaintiff. And, in the 2nd plaintiff's case, by his customer or anyone else who had custody of the ruby ring in the three intervening years."

4. It is against that hurdle that the plaintiffs are now faced. In my view, there is no realistic prospect of success on any appeal in this case. Mr Yeung has said just about everything that could possibly be said on the plaintiffs' behalf, but his argument amounts, in effect, to this: that the judge should have relied on various matters and inferences which could be drawn and should have come to a different conclusion, but none of the points which Mr Yeung has raised are anywhere near being conclusive in their own right. Many of them are flawed in themselves.

5. In my view, there is nothing to displace the judge's conclusion that she was not satisfied. It was for the plaintiffs to satisfy the court that the gems which they produced in court were indeed the two gems which they had purchased from the defendant. That they failed to do. Unfortunately their case failed as a result. In my view, this application has to be dismissed.

Hon Le Pichon JA:

6. I agree.