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Wong Sui-kwan v Cheong Pui Fan

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date18 May 2007
CourtDistrict Court (Hong Kong)
Judgement NumberDCCJ5879/2004
Subject MatterCivil Action
DCCJ004987A/2004 WONG SUI-KWAN v. CHEONG PUI FAN

DCCJ 4987/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4987 OF 2004

__________________

BETWEEN

　 WONG SUI-KWAN otherwise known as S.K. WONG Plaintiff
　 and 　
　 CHEONG PUI FAN otherwise known as ANGELA Defendant
　 CHEUNG PUI FAN otherwise known as ANGELA 　
　 CHEONG 　

AND

DCCJ 5879/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4987 OF 2004

___________________

BETWEEN

　 WONG SUI-KWAN otherwise known as S.K. WONG Plaintiff
　 and 　
　 CHEONG PUI FAN otherwise known as ANGELA Defendant
　 CHEUNG PUI FAN otherwise known as ANGELA 　
　 CHEONG 　

[Ordered to be tried together pursuant to the order of H.H. Judge Wong dated 30th May 2005]

Coram: Deputy District Judge K.W. Wong in Chambers (open to public)

Date of Hearing: 19th April 2007

Date of Handing Down of Ruling: 18th May 2007

__________________

RULING

__________________

1. This is the Plaintiff’s application by way of summons dated 30th January 2007 for leave to appeal to the Court of Appeal against my Judgment in the two actions handed down on 27th October 2006 after a 16-day trial.

2. The Plaintiff was a former consultant to a firm of solicitors of which the Defendant was the sole proprietress. His name appeared in the name of the Defendant’s firm. The Plaintiff alleged that there existed between the parties an agreement which provided, inter alia, that the rates of commission to which he was entitled would follow the so-called “Rider A formula” and that when he left the firm, the Defendant should cease using his name. By the Commission Action (“DCCJ 4987/04), he requested an account be taken of all files opened in his name and for payment of any sum found due. By the Name Action (“DCCJ 5879/04), he sought an injunction restraining the Defendant from continued using his name in her business. The Defendant counterclaimed in the Commission Action for damages on the ground that the Plaintiff had breached fiduciary duties owed to her. For reasons stated in my said Judgment, including a finding against the existence of the alleged oral agreement, I dismissed the Plaintiff’s Name Action. I concluded that the applicable rate of commission was 25% as asserted by the Defendant instead of that of the Rider A formula. I ordered that accounts be taken of the files opened in the name of the Plaintiff in the Commission Action (i.e. DCCJ4987/04), but to a limited extent. I also dismissed the counterclaim. Now the Plaintiff seeks leave to against my said Judgment in so far as it is against him.

3. There is no dispute between the parties that the relevant test for leave to appeal is set out in Smith v Cosworth Casting Process [1997] WLR 1538 per Lord Woolf MR. Such test is cited with approval in Hong Kong in Ma Bik Yung v Ko Chuen, (unreported) HCMP 4303/1999, 8th September 1999, Leong JA. The test is this: the court will only refuse leave to appeal if satisfied that the applicant has no realistic prospect of success on the appeal.

Grounds of Appeal

4. Mr. Ambrose Ho, S.C. together with Mr. Sherwin Wong, counsel for the Plaintiff have prepared and relied on their written submission comprising 49 pages in support of the leave application. This submission can be summarized in the following five grounds:

i) I erred in inferring from the documents containing the Plaintiff’s own handwritten record on commission [Bundle 3B, pages 693 to 694-5] that the rate of commission orally agreed between the parties being a flat rate of 25% without a full consideration of when and how the said record was made (“the wrong inference ground”);

ii) I failed to have any or sufficient regard to the fact that the Defendant failed to reply to the Plaintiff’s note dated 12th March 2004 [Bundle 3A, page 205]; and the Plaintiff’s letter’s to the Defendant dated 8th September 2004 [Bundle 3B, page 708] (“the failure to reply ground”);

iii) I fail to have any or sufficient regard to the significance of the tentative consensus reached by the parties as evidenced in the 1st and 2nd Proposals [Bundle 3B, pages 699 to 700] (“the proposal ground”);

iv) I erred in making certain findings in paragraphs 105 to 108, and 110 to 121, which are adverse to the Plaintiff (“wrong findings ground”); and

v) I erred in ordering accounts be taken of files under SKW reference opened by the Firm between 1st September 1999 and 30th August 2004, which is an order inconsistent with my finding that commission to the Plaintiff should be paid no matter when such profit costs generated by the Plaintiff accrued (“the wrong order ground”).

5. The above basically seeks to appeal against my findings of facts. It is Mr. Ho’s submission that my conclusion of no agreement as alleged by the Plaintiff is based upon findings of a number of facts, some arrived at by inference, some by assessment of credibility of witnesses and weighing of evidence. It is submitted that appeal against findings of facts made by a process of inference will be approached very differently from findings of primary facts by the appeal court: see Ting Kwok Keung v Tam Dick Yuen [2002] 1 HKC 601 per Bokhary PJ at 611B to E. In drawing inference, the appellate court is in as good a position as the trial judge, and is free to arrive at a conclusion different from that of the trial judge: as per Godfrey JA in Tang Kwok Ming v Daxprofit Scaffolding Ltd [1999] 1 HKC 657 at 663. Furthermore, it is submitted that some of my findings are contrary to documentary evidence that is undisputed or are inconsistent with documents which I have not dealt with. As such, it is submitted the Plaintiff is able to meet the rather low threshold required of in leave application, and leave to appeal should be granted.

6. I have no doubt that Mr. Ho S.C. has correctly stated the position of the law in these areas. Although I do not consider that the Plaintiff has any reasonable chance of success in...

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