Siu Ling v Wong Sum-fai

CourtCourt of Appeal (Hong Kong)
Judgment Date23 Jul 1981
Judgement NumberCACV70/1981
SubjectCivil Appeal
CACV000070/1981 SIU LING v. WONG SUM-FAI

CACV000070/1981

IN THE COURT OF APPEAL 1981, No. 70
(Civil)

BETWEEN
SIU LING Appellant
(1st Defendant)
and
WONG SUM-FAI Respondent
(Plaintiff)
BETWEEN WONG SUM-FAI Cross Appellant
(Plaintiff)
and
SIU LING Cross 1st Respondent
(1st Defendant)
SIU WAI Cross 2nd Respondent
(2nd Defendant)

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Coram: Sir Alan Huggins, V.-P., Zimmern and Barker, JJ.

Date of Judgment: 23rd July 1981.

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. The opposition to the Appellant's appeal has now been withdrawn. We have come to the conclusion that the appeal must be allowed. The question whether or not CHAN Wai had authority to contract on behalf of the 1st Defendant was not pleaded. As a result the issues which would have arisen upon such a plea were never fully investigated and the question whether section 5 of the Law Amendment and Reform Consolidation Ordinance applied was never raised. If the Plaintiff had amended the pleadings, then the 1st Defendant would have amended her pleadings.

2. As was said in Farrell v Secretary of State for Defence 1980 1 W.L.R. 172, 180A, the matter of pleading is not now unimportant and this is a good example where pleading was important. We think that the appeal must be allowed.

3. Turning then to the Respondent's Notice, it is said that, on the facts found, the judge should have held that the 2nd Defendant, was the agent of the 1st Defendant. He failed to find any primary facts: his finding really was one of credibility of the Plaintiff and of his witnesses. That may be a satisfactory formula in a very simple case, but it is not satisfactory in a complicated case such as this. Both sides have suggested matters which support their view of the evidence. If anything, the indicia suggested by Mr. Cheung seem to us to be of greater and more compelling weight than those which are advanced by Mr. Swaine. We appreciate that we must make up our own minds as to any proper inferences to be drawn from the facts and we realize that the view of the trial judge is a matter which has to be borne in mind. Nevertheless, we are not persuaded that the matters advanced by Mr. Swaine are sufficient to show that the judge was wrong in holding that the 2nd Defendant was not the...

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