XCHRX CABI CO. LTD. and Another v. NG WING NING, VICTOR

1996, No.A1463

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is an appeal against the Order of the master entering judgment in favour of the Plaintiffs against the Defendant on an Order 14 application for summary judgment.

2. The facts are pretty simple. The Plaintiffs claimed against the Defendant for secret commissions allegedly received by the Defendant during his course of employment under the Plaintiffs as a merchandiser. The fact of acceptance of commission is not denied by the Defendant. The Defendant's defence is that such commissions were not secret commissions because they were authorized by the Plaintiffs. His case was that it was the Plaintiffs who educated him in how to receive these commissions and that the Plaintiffs all along knew about the receipt of the commissions. When I said "the Plaintiffs" I am referring to Mr Runser who effectively owns both Plaintiff companies.

3. The basis of the Plaintiffs' submission in saying that the Defendant's defence is unbelievable is that on various matters viewed against the factual background of the case, the court ought to have come to the conclusion that the defence raised is so incredible that no reasonable tribunal would find it believable. I do not propose to refer to all these various facts, and submissions on logic, made by Mr Leung, suffice it for me to say that I have considered all of them. There are various possibilities, possible conclusions, one can come to when one viewed these facts individually and collectively; and not necessarily coming to the sole conclusion the Plaintiffs said the court ought to have come to, and, that is, the Defendant was lying.

4. I am fully satisfied that this is a case where the Defendant had just been able to get over this threshold burden and establish a believable defence. A defence which a reasonable tribunal can believe if it chooses to. The defence raised may be weak in a sense that there is no documentary evidence supporting it, but I am not here to decide whether the defence should be believed or not. That is not the proper test as Godfrey, J.A. rightly pointed out in his recent case; and in many other cases as well. The temptation of applying the wrong test should be resisted and I should not put myself in the shoes of the trial judge and say whether I would believe this witness or not, that is not my function. My function here is to decide whether a reasonable tribunal could have found the events believable.

5. This is a case crying out for a speedy trial. The dispute of facts involved are pretty straightforward and simple. It involved relatively little discovery because, as I understand it, both sides do not really have a lot of documents. The issue on the consent, or the lack of it, is really effectively one man's word against another man's word.

6. For the reasons given, the judgment entered against the Defendant ought to be set aside. The order of the master is set aside and the appeal is allowed.

7. Now the way forward gentleman, as I have said, this is a case which should go for speedy trial. I think we have identified the issue already and I do not propose to give the usual directions if the consensus of the parties is that this should go for a speedy trial.

8. Costs below would be in the cause. Costs of the appeal would be against the Plaintiffs in any event with certificate for two Counsel. I agree that this is not a complex case with complicated issues of law by any stretch of imagination. Nevertheless, this is, as far as the Defendant is concerned, a very important case indeed. Not only would his reputation be at stake as a person who received secret commission, he would suffer financial disaster if the judgment is allowed to stand. There may be implications of criminal liability as well arising out of the allegations made by the Plaintiffs. So as far as the Defendant is concerned, this is a matter of life and death for him. It is a situation where the seriousness of the case alone would warrant certificate for two Counsel.

(Jerome Chan)

Judge of the High Court