東莞市枝記市場投資管理有限公司 AND ANOTHER v. YIP KWOK CHI

CACV 153/2017
[2018] HKCA 26

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 153 OF 2017

(ON APPEAL FROM HCA NO 1072 OF 2014)

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REASONS FOR JUDGMENT

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Hon Kwan JA (giving the reasons for judgment of the Court):

1.  This is the defendant’s appeal against that part of the judgment of B Chu J by which he was ordered to pay to the 2^nd plaintiff $850,000 and that there was to be no order as to costs. The judgment was given on 3 June 2016 after a two‑day trial in December 2015. This appeal seeks to overturn the judge’s findings of fact. We dismissed it with costs on a party and party basis at the conclusion of the hearing. These are the reasons for our judgment.

The judgment below

2.  The 1^st plaintiff is a limited company incorporated in Mainland China.  Its main business was and is the supply and wholesale of agricultural produce in the Mainland and Hong Kong.  The 2^nd plaintiff is the legal representative of the 1^st plaintiff.  The defendant operated a wholesale business of agricultural produce at a stall (“the Stall”) in the North District Wholesale Market.

3.  In this action, the following claims were advanced by the 1^st plaintiff, the 2^nd plaintiff and the defendant:

(1) The 1^st plaintiff claimed against the defendant RMB 4 million (“the 1^st Debt”) being the outstanding sum under a debt agreement signed by the 1^st plaintiff and the defendant in January 2004 in which the defendant acknowledged and confirmed his indebtedness of RMB 5 million.  This arose out of the supply of agricultural produce by the 1^st plaintiff to the defendant between January 2003 and January 2004.  It was the 1^st plaintiff’s case that in consideration of its forbearing to sue, in early 2005 the defendant allowed the 1^st plaintiff to occupy and use a portion of the Stall (“P1’s Portion”) so long as any part of the 1^st Debt remained outstanding.

(2) The 2^nd plaintiff claimed against the defendant $850,000 (“the 2^nd Debt”) as the amount due and payable for the supply of agricultural produce by the 2^nd plaintiff to the defendant at the latter’s request from early 2004 to early 2005, after the 1^st plaintiff had ceased to supply produce to the defendant.  It was the 2^nd plaintiff’s case that the defendant agreed to repay the 2^nd Debt by giving him three batches of post-dated cheques at different times, with each batch totalling $850,000.

(3) The defendant counterclaimed against the 2^nd plaintiff to account for amounts received by him in excess of RMB 5 million from the use of P1’s Portion.

4.  The 2^nd plaintiff and the defendant were the only witnesses to give evidence at the trial.  As noted by the judge, the case involved mainly factual disputes and it was one party’s word against the other.  The approach she adopted was to rely on contemporaneous documents and/or previous statements (to the police and the Agriculture Fisheries and Conservation Department) made by the parties before this litigation to test their evidence.  She dismissed the 1^st plaintiff’s claim for the 1^st Debt and the defendant’s counterclaim.  Her reasons may be summarised as follows:

(1) The judge did not find the 2^nd plaintiff an entirely credible witness in that what was pleaded in the statement of claim in relation to the terms of the supplemental 1^st Debt agreement was not consistent with his evidence.  Further, the plaintiffs’ case in this action was not consistent with the case of the 2^nd plaintiff in the criminal trial in which he was charged with criminal intimidation and had his conviction quashed on appeal.

(2) The judge did not find the defendant a credible or reliable witness either.  She did not find there was sufficient evidence of an oral agreement alleged by the defendant that there was to be a daily payment of $2,000 for the use of P1’s Portion towards the repayment of the 1^st Debt.

(3) The judge came to the view that it was more probable than not there was an oral agreement between the defendant and the 2^nd plaintiff for the ‘sale’ to the 1^st plaintiff of P1’s Portion, in satisfaction of the 1^st Debt.  She also found it was more probable than not that the daily deductions by the defendant were for commissions attributable to P1’s Portion paid to the management company of the stalls in the market, not for the repayment of the 1^st Debt.

5.  The judge found in favour of the 2^nd plaintiff for his claim of the 2^nd Debt.  Her reasoning was as follows:

(1) She did not find the defendant’s evidence in relation to the three batches of cheques credible.  When the defendant was cross-examined on how the 2^nd Debt arose, at first he said he could not recall but later said $850,000 was an accumulation of amounts for the supply of the produce, or part of a ‘rolling’ account.  The judge was of the view what the defendant said about a ‘rolling’ account did not make sense.

(2) She noted that the 2^nd plaintiff was not cross-examined about the 2^nd Debt or the agreement to repay the 2^nd Debt or the three batches of cheques.

(3) The 2^nd plaintiff had in his possession the three batches of cheques, each coming to exactly $850,000, and this supported the 2^nd plaintiff’s evidence. Having compared the 2^nd plaintiff’s evidence and the defendant’s, the judge found the 2^nd plaintiff’s version was the more probable and that the 2^nd Debt was as evidenced and acknowledged by the defendant by the three batches of cheques.

6.  The judge made a costs order nisi that there be no order as to costs, since neither the 1^st plaintiff nor the defendant was wholly successful.  She declined to vary the order nisi on the plaintiffs’ application in her decision of 16 November 2016.

This appeal

7.  Mr Philip Wong, who appeared for the defendant here and below, argued these grounds on appeal:

(1) The judge erred in accepting the 2^nd plaintiff’s case on the 2^nd Debt when she had earlier found he was not a credible witness and had dismissed the 1^st plaintiff’s claim for the 1^st Debt, in that the plaintiffs’ case as pleaded in the statement of claim and testified by the 2^nd plaintiff was inconsistent with the case put forward by the 2^nd plaintiff’s counsel in his criminal trial.

(2) The judge failed to give any reasons why she chose not to consider the 2^nd plaintiff’s credibility and this was contrary to her duty to give adequate reasons for her decision and to evaluate properly the evidence of the witness and in particular the case of the 2^nd plaintiff.

(3) The judge failed to have regard to the rule in Browne v Dunn (1893) 6 R 67 in that the defendant was not cross-examined on the coincidence of each of the three batches of cheques coming to exactly $850,000.

8.  Mr Wong cited a number of criminal cases and one case in professional disciplinary proceedings to support his arguments.  None of the grounds he argued are of merit.

9.  His complaint in ground (1) was that in accepting the 2^nd plaintiff’s evidence on the 2^nd Debt whilst rejecting his evidence on the 1^st Debt, the judge had allowed herself to “pick out the plums and leave the duff”, citing R v Shippey (Colin) [1988] Crim L R 767, which was said in the context of the assessment of evidence as a whole in ruling on a submission of no case to answer.  This is far removed from the present situation.  The judge in a civil trial is perfectly entitled to accept parts of a witness’ evidence and to reject other parts.  The mere fact that a witness was held not to be credible in one aspect does not mean his evidence should be rejected in total.  It must depend on the particular circumstances and the extent to which the evidence rejected may impact on other parts of the evidence.

10.  Here, detailed reasons have been given by the judge why she rejected the 2^nd plaintiff’s evidence regarding the 1^st Debt.  She had reviewed the evidence in relation to the 2^nd Debt and explained why she came to the conclusion that the 2^nd plaintiff’s version was the more probable one.  The reasons for rejecting the 2^nd plaintiff’s evidence on the 1^st Debt had no apparent impact or bearing on his evidence regarding the 2^nd Debt.  In respect of the 2^nd Debt, there is no question of the plaintiffs’ case as pleaded in the statement of claim and testified by the 2^nd plaintiff as being inconsistent with the case put forward by the 2^nd plaintiff’s counsel in his criminal trial.  Furthermore, as noted by the judge, the 2^nd plaintiff was not even cross-examined about the 2^nd Debt or the agreement to repay the 2^nd Debt or the three batches of cheques.  There is no inconsistency in the judge’s evaluation of different aspects of the 2^nd plaintiff’s evidence and the different findings of fact she made in respect of each claim.

11.  Contrary to the complaint in (2), the judge had given adequate reasons why she made the finding that the 2^nd plaintiff’s version on the 2^nd Debt was the more probable one.  She was right to compare and test the 2^nd plaintiff’s evidence with the contemporaneous documentation, where the events had taken place long before the time of trial.  She was entitled to rely on the three batches of cheques, each of which came up to exactly $850,000.  It was not the case that the judge chose not to consider the 2^nd plaintiff’s credibility, as contended by Mr Wong.  Rather, the judge had considered his evidence, examined it against the contemporaneous documentation, compared it with the defendant’s evidence, and decided to accept the 2^nd plaintiff’s evidence.

12.  The argument invoking the rule in Browne v Dunn cannot get off the ground.  We have been referred by the plaintiffs’ counsel Mr Tony Li to the relevant parts of the transcript which showed quite clearly that the defendant was cross-examined as to why each of the three batches of cheques came up to $850,000.

13.  There is no basis whatsoever for the appeal court to interfere with the judge’s findings of fact.  There is nothing to indicate that the judge was wrong, let alone plainly wrong, in making the findings of fact sought to be challenged.

14.  The appeal as to the costs order there be no order as to costs is equally unmeritorious.  It was contended that the judge had failed to consider sufficiently that substantial time and effort was spent on arguing the 1^st Debt (in which the defendant succeeded) and so the no costs order was disproportionate to the reasonable expense incurred by the defendant in the trial.

15.  The defendant did not seek to vary the order nisi there be no order as to costs.  The application to vary was made by the plaintiffs.  In any event, the judge had fully considered the time and costs spent in arguing the 1^st Debt.  She also took into account that notwithstanding the 1^st plaintiff’s claim against the defendant was dismissed, the defendant should be deprived of any costs as a result of any apportionment, in view of the defendant’s own evidence during the trial.  She had pointed out in the main judgment that the defendant had changed his version of events several times and his evidence was not consistent with his previous statements.  And she did not find in favour of his case and his counterclaim was dismissed.  After considering all the circumstances and the parties’ conduct, the judge declined to vary her order nisi on costs.

16.  There is no basis at all to interfere with the judge’s exercise of her discretion on costs.  It has not been shown that the judge had made errors of law or fact, or had acted in disregard of principle, or had taken irrelevant matters into account, or had failed to take into account relevant matters, or that her decision was plainly wrong or outside the generous ambit within which a reasonable disagreement is possible.

17.  We have therefore dismissed the appeal with costs.