LAM FUNG CHING ANNIE v. TSE KWOK WING JACKY AND ANOTHER

DCMP 1129/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1129 OF 2012

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DECISION

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Application

1.  The plaintiff commenced the present action under section 6 of the Partition Ordinance (Cap 352) to seek an order for sale of a residential property with the net sale proceeds, after paying off the mortgage loan and ancillary charges, to be divided equally among the 1^st defendant, the 2^nd defendant and her. 

2.  On 24 December 2015, I gave judgment (“Judgment”) in favour of the plaintiff with costs after trial.  By Summons (“Summons”) filed on 20 January 2016, the defendants seek leave to appeal and to stay the execution of the Judgment pending appeal.

3.  At the hearing on 18 April 2016, Mr Ching, acting for the 1^st defendant (assigned by the Director of Legal Aid), and the 2^nd defendant (in private brief), applied for an adjournment of the hearing on the ground that the defendants were not ready for the leave application. 

4.  The reason given was that the 1^st defendant had communication problem with the Legal Aid Department ending up with late grant of legal aid to him on 12 April 2016, and accordingly, he needed more time to instruct counsel.  No reason was given by the 2^nd defendant.  No affirmation was filed in support of the application. 

5.  Even though Mr Ching has been the handling solicitor and the trial advocate for both defendants throughout these proceedings, he chose not to put forward any intended grounds of appeal until immediately before the hearing.  Still, he said that those grounds might not be relied on.

6.  In the circumstances, I adjourned the hearing and ordered the defendants to pay the costs of and incidental to the application for adjournment to the plaintiff on an indemnity basis, with certificate for counsel, to be taxed if not agreed. I also disallowed the 1^st defendant’s own costs be taxed in accordance with the Legal Aid Regulations.

7.  At the adjourned hearing on 27 June 2016, Mr Ching acted for the defendants.  No counsel was instructed. 

Intended grounds of appeal

8.  The background of this case has been set out in the Judgment which I will not repeat here.  The same defined terms are adopted.

9.  In his skeleton argument dated 22 June 2016, Mr Ching put forward 5 proposed grounds of appeal.  It is alleged that this court erred in:

(a) finding that the plaintiff’s claim was premised on equity follows the law when the plaintiff’s own evidence was that one of the three registered owners (the 2^nd defendant) was not a beneficial owner but a trustee for a fourth party, namely the father of the two defendants (“Ground 1”);

(b) not finding that, in the above circumstances, as a matter of law, the plaintiff bore the primary burden of proof (“Ground 2”);

(c) ruling that the plaintiff was a credible witness notwithstanding the apparent deficiencies in the evidence of the plaintiff and the defendants’ criticisms of the plaintiff’s evidence as detailed in the closing submissions of the defendants, and accepted the evidence of the plaintiff and thus gave Judgment for the plaintiff when she ought to have rejected the evidence of the plaintiff and dismissed the plaintiff’s claim with costs (“Ground 3”);

(d) failing to give any or any adequate reasons for rejecting the defendants’ criticisms of the plaintiff’s evidence as detailed in the closing submissions of the defendants (“Ground 4”); and

(e) adopting different standards in considering and rejecting the evidence of the defendants and that of the only defendants witness, and failing to give any or any adequate reasons for the rejection (“Ground 5”). 

Legal principles

10.  Leave to appeal shall not be granted unless the court is satisfied that the intended appeal has a reasonable prospect of success; or there is some other reason in the interests of justice that the matter should be heard by the appellate court: section 63A (2) of the District Court Ordinance. 

11.  “Reasonable prospect of success” involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.  Hong Kong Civil Procedure 2016 Volume 1 at 59/2A/4.

Grounds 1 and 2

12.  Grounds 1 and 2 can be dealt with together.  They challenge this court’s ruling on the issue of burden of proof.

13.  Mr Ching does not dispute the legal principle as set out in paragraphs 30 - 31 of the Judgment : the burden of proof rests on the party seeking to establish that equity should not follow the law to demonstrate that the beneficial interests are different from the legal interests. 

14.  Mr Ching runs an argument that given the plaintiff’s own case was that the Property was registered in the name of the parties as joint tenants (as opposed to tenants in common) and that the 2^nd defendant was not a beneficial owner but a trustee, this court erred in ruling that the plaintiff was seeking “equity follows the law” and accordingly did not bear the burden of proof.  He complains that this court has mistakenly believed that the burden was on the defendants to disprove the plaintiff’s claim, and therefore focused on the credibility of the defence witnesses and lost sight of the incredibility of the plaintiff.

15.  Mr Ching’s argument was a repetition of his submission in trial.  I have rejected it and stated the reasons for my decision in paragraphs 32 – 33 of the Judgment.   In brief, I took the view that the plaintiff, being the registered owner of the Property, sought to rely on her beneficial interests following her legal title and accordingly the burden of proof did not rest on her.

16.  In any event, even if I had erred in ruling that the burden of proof did not rest on the plaintiff, the error will have no impact on the Judgment, for the simple reason that the Judgment was in fact developed on the basis that the burden of proof was on the plaintiff.  Mr Ching simply ignores paragraph 33 of the Judgment in that I made it clear that : -

“That said, I take the view that even if Madam Lam [the plaintiff] carries the burden of proof, I am satisfied that she has succeeded in proving that she has one-third beneficial interest in the Property. This judgment proceeds on the basis that the burden of proof is on Madam Lam.”

17.  In the premises, Grounds 1 and 2 are unmeritorious. 

Grounds 3 to 5

18.  Grounds 3 to 5 should be dealt with together.  They seek to challenge this court’s finding of facts.  

19.  It is well-established principle that the appellant court is not to assume the task of reviewing the evidence and substituting the trial judge’s findings with findings of its own.  The appellant court would only reverse a finding of primary fact if it is satisfied that the finding is plainly wrong.  If not so satisfied, it would defer to the trial judge’s conclusion on fact even if in some doubt as to its correctness.  Ting Kwok Keung v Tam Dick Yuen [2002] 5 HKCFAR 336

20.  Mr Ching complains that this court was wrong in finding the plaintiff a credible witness.  Plainly, he seeks to re-argue the submissions he advanced at trial.  Those submissions have been fully considered, the determination of which was summarized in the Judgment.

21.  Mr Ching’s first attack relies heavily on the plaintiff’s omission to mention about the brief meeting (“Brief Meeting”) with the Aunt before the signing of the preliminary agreement for the purchase of the Property in her 1^st affirmation (in support of the Originating Summons) and her 2^nd affirmation (in reply to the defendants’ affirmation in opposition).  He argues that given the Brief Meeting formed part of the bone of the plaintiff’s case, the fact that it was only mentioned in the plaintiff’s witness statement which was prepared two years after the commencement of this action must cast serious doubt on the credibility of the plaintiff and her case as a whole.

22.  The truthfulness of the plaintiff’s evidence relating to the Brief Meeting was fully considered and determined in paragraphs 83 to 95 of the Judgment.  Not only that the evidence relating to the Brief Meeting given by the plaintiff was examined, it was tested against the evidence given by the 1^st defendant and the Aunt. 

23.  In paragraph 101 of the Judgment, Mr Ching’s attempt to discredit the plaintiff through her silence on several matters in her affirmations was particularly canvassed.  The conclusion that such attempt was futile was expressly stated to be drawn from my assessment of the single and combined effect of all aspects of the evidence as set out in the preceding paragraphs, including, the reasons for the purchase, the reasons for contributions towards mortgage repayments, the reasons for the joint ownership arrangement, the actual contribution made by each party, the communication between the parties after the plaintiff’s moving out of the Property, the implication and effect of the 2^nd defendant’s contribution towards the household expenses.

24.  In the same paragraph, I further expressed my view that it is understandable that the plaintiff has not accounted for all the events leading to the purchase of the Property in her affirmations.  The view was  expressly stated to have been formed after consideration of the background of this action.  Given that the plaintiff’s case was premised on the beneficial interests following her legal title, it is logical that she would not have thought of, or being asked to account for every single detail of the events leading to the purchase of the Property in the affirmations at the commencement of the present action.  Such view was supported by the plaintiff’s explanation in court (see pages 23 to 24, 49 of the transcript).

25.  Reference is made to the plaintiff’s answer on the omission during the cross-examination.  Mr Ching says that as the plaintiff readily agreed with the suggestion that had her allegations relating to the Brief Meeting were true, she must have mentioned them in her affirmations. He contends that such answers were admission by the plaintiff that she was not telling the truth.

26.  I am not convinced. I agree with Ms Ng, counsel for the plaintiff, that Mr Ching’s argument is to quote a remark out of its context, ignoring the explanation given by the plaintiff that she was able to elaborate some more matters in her witness statement through recollection of memory with the assistance of her new solicitors.  Undoubtedly, credibility of witness should be assessed by taking into account of all the evidence instead of just one or two answers during cross-examination.  

27.  At the hearing, Mr Ching further referred to paragraphs 54 and 55 of the Judgment to complain that the finding of facts that the plaintiff had received living expenses from her own father before her employment was one which was devoid of evidence in support. 

28.  Having been directed to pages 22-25 of the transcript, Mr Ching admitted that such complaint was groundless, without offering any explanation for his unjustified complaint.  It is noted that the transcript was obtained by him for the 1^st defendant during the trial.

29.  Mr Ching then resorted to the complaint that the finding of facts was not supported with adequate reasons or was based on a misunderstanding of the evidence.  His complaint was again unsustainable. He was unable to illustrate how the reasons were inadequate or based on a misunderstanding of the evidence.

30.  Mr Ching’s another complaint that this court has adopted different standards in evaluating the evidence of both sides, particularly on the omission of material allegations in their respective e-mails and letters as well as the allegation that the plaintiff’s e-mails and letters did not tally with her claim, is unjustified. 

31.  I do not intend to repeat my analysis of the evidence in these aspects as set out in paragraphs 66 to 72 of the Judgment.  Suffice it to say that I have expressly weighed the relevant evidence on each side separately as well as the combined effect of all the evidence together.  The analysis of the circumstances under which the messages were written, the contents and the implications of those messages, the explanations for their omission given by the parties, together with the reasons as to why I accepted the evidence of the plaintiff but rejected the evidence of the defendants have been provided for.

32.  Likewise, Mr Ching seeks to repeat his argument on the implication of the plaintiff’s cessation of making contributions towards mortgage payments, and complains this court for not ruling this fact against the plaintiff. 

33.  Such argument disregards the ruling having been made after full consideration of the background facts and the relationship between the parties as expressed in paragraphs 97 and 98 of the Judgment. The conclusion in paragraph 97 was drawn from the combined effect of all evidence, including the plaintiff’s undisputed evidence that the Tse’s family had been in exclusive possession of the Property after the plaintiff’s departure and that she had not asked for any rental payment from them.

34.  Mr Ching’s attack on the plaintiff’s late disclosure of the e-mails is unfounded for lack of relevancy.  He gives no regard for the 1^st defendant’s confirmation that the content of those e-mails was the same as his memory and true.  Further, Mr Ching was given the opportunity to cross-examine the plaintiff after the disclosure of the e-mails, in that the reasons for her late disclosure of them were explored.

35.  After all, Mr Ching is unable to illustrate how his alleged errors or mistakes in the Judgment, even if they do stand as errors or mistakes, are sufficiently material to undermine the conclusions in the Judgment. 

36.  In the premises, Mr Ching fails to demonstrate that this court was plainly wrong in assessing the evidence.  The mere assertion that the finding of this court is against the weight of the evidence or that this court should have reached another conclusion could not be regarded as errors. 

37.  I am not persuaded that I have fallen in palpable errors which give rise to grounds for intervention by the appellate court.  In relation to findings of fact, where judges can reasonably reach different conclusions from each other would not be a ground for intervention.

38.  For reasons above, the defendants fail to satisfy this court that their intended appeal has any reasonable prospect of success.  There is simply no basis to grant leave under the “some other reason” limb.  The leave application must be dismissed.

Stay of execution

39.  Having concluded that the intended appeal is not arguable, I take the view that the minimum requirement of a stay of execution is not met.  Accordingly, there is no good reason to grant a stay of execution.

Conclusion

40.  In conclusion, I dismiss the Summons. The application for leave to appeal and for stay of execution of the judgment is refused.

Costs

41.  I make an order nisi for the 1^st and 2^nd defendants to pay the plaintiff’s costs of the Summons, including all costs reserved, to be taxed if not agreed, with certificate for counsel.

42.  The 1^st defendant’s own costs be taxed in accordance with the Legal Aid Regulations.

43.  In the absence of application to vary by summons within 14 days, the costs order nisi shall become absolute.