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CACV 25/2013
IN THE HIGH COURT OF THE

COURT OF APPEAL
CIVIL APPEAL NO. 25 OF 2013

BETWEEN

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YUI CHUNG YIN

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(ON APPEAL FROM HCA NO. 1826 OF 2009)

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HONG KONG SPECIAL ADMINISTRATIVE REGION

Plaintiff

and
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NG KIT SUM

Defendant

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Before: Hon Yuen JA in Chambers (open to the public)

Date of Hearing: 2 July 2015

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Date of Judgment: 7 July 2015

JUDGMENT
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1. This is the plaintiffs application for leave to adduce further evidence

on his appeal from a judgment of DHCJ Cheng SC given on 11 January

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2013 in HCA 1826/2009.

Before I deal with the application, it is

necessary to give a brief summary of the action.

Background

2.1.

The action concerned two disputes.

The first and main

dispute involved the sale of goods from the defendant to the plaintiff,

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being laptop computers intended by the manufacturer Lenovo for sale to

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students at a reduced student price.

This dispute was called the

Computer Dispute.

2.2.

The chain of supply of the computers was as follows:

from Lenovo to Synnex Technology International (HK) Ltd

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(Synnex);
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from Synnex to Helix Distribution (HK) Ltd and Helix System

(HK) Ltd (Helix System), both companies of the defendant;

from Helix System to the defendant himself;

from the defendant to the plaintiff.

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3.1.
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From the middle to the end of 2008, the defendant supplied a

number of computers to the plaintiff, for which the plaintiff paid various
sums, and in the words of the learned judge, the issue is one of final

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accounting between the parties (para. 18 of the judgment).

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3.2.

The issues in this dispute were (para. 16 of the judgment):

how many computers were delivered/sold (the Quantity issue),

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and
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what was the unit price (the Price issue).

3.3.
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The other dispute in the action was called the Insurance

Dispute which had nothing to do with the Computer Dispute. The

Insurance Dispute is not relevant to the application before me.

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Trial and Judgment

4.1.

The trial took 8 days. Both the plaintiff and the defendant

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gave oral evidence and were cross-examined by each others counsel.

4.2.

In relation to the Computer Dispute, the judge found that:

in relation to the Quantity issue, the issue centered on five disputed

transactions; and

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in relation to the Price issue, the issue was whether it had been

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agreed that the defendant would receive a mark-up of $450 per unit
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from the student price as his profit.

5.1.

The judge noted that

the plaintiff did not produce any invoice in support of any of

its figures, whether they be the number of computers delivered
or the unit price (para. 30)

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whereas

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5.2.

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the defendant produced three sets of invoices, two of which

were challenged by the plaintiff. The invoices set out the
number of computers delivered as well as the unit price to be
paid by the plaintiff (para. 31).

The three sets of invoices produced by the defendant were

(i)

invoices issued by Synnex to Helix (Synnex invoices);

(ii)

invoices issued by Helix System to the defendant (Jack

invoices); and

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(iii)

invoices issued by the defendant to the plaintiff (I_MY

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invoices).
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- The defendants case on the invoices

6.1.

The defendants case was that

he had delivered the I_MY invoices to the plaintiff from time to

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time during the period of transactions, whereas

the Jack invoices were internal invoices which were not delivered

to the plaintiff.
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6.2.

More importantly, in his oral evidence the defendant said

that generally he would issue the I_MY invoices before the Jack invoices,
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with the latter being prepared by his partner Mr Ching possibly with
reference to figures that the defendant had written down on memorandum

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paper (Transcript internal page p449-450, B/243-244). I have not been

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referred to any direct evidence to contradict this testimony on the

sequence of preparation of the invoices.

- The plaintiffs case on the invoices

7.1.

The plaintiff denied that he had received any I_MY invoices

at all.

7.2.

He challenged both the I_MY invoices and the Jack invoices.

7.3.

It was submitted on his behalf that the I_MY invoices were

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prepared after the event and the Jack invoices issued by Helix System to
the defendant were also prepared at the same time (para. 38 of the
judgment).

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7.4.

The plaintiff sought to draw support for this submission from

the orientation of Helixs company stamp on 27 Jack invoices bearing

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dates from 26 August 2008 to 13 October 2008. His point was that the
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orientation of the round stamps appeared to be identical (with the word

System at the top), even though the stamps were said to have been

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placed on the different dates when the invoices were prepared (for ease of
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reference, this submission is referred to below as the orientation point).

7.5.

When the defendant was cross-examined on this, he said he

had no explanation for the similarity in orientation (Transcript 452-P,

B/246). I have not been referred to any evidence from Mr Ching on this
matter.

all the Jack invoices were prepared at the same time, and not on or

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about the dates appearing on them, and

the I_MY invoices were also prepared at the same time.

The judges findings

The plaintiff submitted that it could be inferred from the

orientation point that

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8.

The judge was obviously aware of this submission. In the

judgment she commented that the allegation that this documentary

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evidence was created ex post facto is a serious contention suggesting

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effectively that the defendant manufactured evidence to support its case

(para. 38).

9.1.

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The judge rejected the plaintiffs evidence that he had never

received the I-MY invoices on the following grounds:

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(1)

the amount of transactions involved was not insignificant

and it was unlikely that invoices were never issued;

(2)

the defendant testified that the invoices were handed over

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from time to time when the parties met;

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(3)
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the plaintiff did not say that he had never seen I-MY
invoices when they were referred to in the defendants letter
to him in May 2009 and in the letter before action from the

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defendants solicitors in June 2009;

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(4)
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(5)

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9.2.

the plaintiff said he had records of incoming goods, so some

documentation must have passed between the parties; and

in any event, the judge found the plaintiff not credible in

giving evidence in this aspect (para. 39).

The judge found that the issuances of these I-MY invoices

are contemporaneous documentary evidence of the transactions. They

not only record the number of units sold but also the amount that was to
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be charged against the Defendant for those units (para. 41). It is obvious
from the context that the Defendant meant the plaintiff.
9.3.

Pausing here, it would be noted that for the judges finding

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that the I_MY invoices were contemporaneous documentary evidence,

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the Jack invoices did not feature as one of the grounds.

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As for the plaintiffs allegation that the defendant had

fabricated evidence, the judge noted (when discussing one of the

transactions for which some documents produced by the defendant did

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not match): if the Defendant had wished to fabricate evidence, he could

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easily have used the number ordered, 377, instead of 370 units

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(para. 55).
11.

Further, in relation to another transaction where there was a

discrepancy between the Jack invoice and the I_MY invoice, she noted
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that these two invoices illustrate that it is not correct to assume that the
I_MY invoices were prepared at the same time with the Jack invoices as

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submitted by the Plaintiff (para. 62).

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12.

In my view, it is clear that

(1)

the

judge

concluded

the

I_MY

invoices

were

contemporaneous documentary evidence for the five reasons

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(2)

(3)

set out in para. 9.1 above;

irrespective of the orientation point, she did not find the

defendant had fabricated evidence; and

she found the plaintiffs assumption that the I_MY invoices

were prepared at the same time as the Jack invoices was

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incorrect.

13.1.
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It is not necessary to consider the rest of the judgment for

present purposes, save to say that the judge found, after carrying out a
final accounting exercise set out in an annex attached to the judgment,

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that the plaintiff should pay the defendant $730,147 in respect of the
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Computer dispute.
13.2.

The judge also found the plaintiff liable to the defendant for

US$25,641 in respect of the Insurance dispute.

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Appeal
14.

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The plaintiff filed a notice of appeal on 7 February 2013 in

relation to the Computer dispute only. The second ground of appeal

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states:
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The Honourable Deputy High Court Judge Cheng SC erred in

law and in fact in drawing the inference that the I_MY Invoices
were issued and delivered by the Defendant to the Plaintiff in
person [Judgment 40] without considering the evidence that
these 28 I_MY invoices together with the corresponding Jack
Invoices were prepared by the Defendant ex post facto
[Judgment 39 and 40]:

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a) The 28 Jack invoices were admitted by the Defendant to

be prepared by him and his partner Mr Ching after each
and every transaction [Judgment 38]. Therefore, it cannot
be a mere coincident that the orientation of the
28 company stamps in each and every 28 Jack Invoices
had the same orientation with very minor discrepancy.

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b) The I_MY Invoices were admitted by the Defendant to be

prepared by him and with the original passed to the
Plaintiff in person after each transaction while the
Defendant exhibited in the Defendants List of Document
Item 4 were also the originals.

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15.

For reasons which are not relevant to this application, the

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appeal was stayed. The stay was lifted on 4 December 2014 and the
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appeal has now been set down for hearing on 3 November 2015.
Application for leave to adduce further evidence

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16.1.
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On 16 April 2015 the plaintiff issued a summons seeking

leave to adduce in evidence on appeal:

(1)

a Report on Measuring Angles of Stamps prepared by

Professor Raymond H Chan (a mathematician) dated

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19 December 2014; and

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(2)

Shao Qiman (a statistician) dated 30 December 2014.

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a Statistical Analysis Expert Report prepared by Professor

16.2.

The summons was supported by two affirmations of the

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plaintiff. Briefly, it is said that the reports show that on Prof Chans
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measurements, there were 12 consecutively dated invoices with

increasing angle measurements (although the rate of increase was not

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uniform), and based on the premises of personal behaviour and the

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random perturbations, Professor Shao calculated the probability in

relation to 12 or more consecutively increasing angle measurements
would be:
(1)

(2)

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1 out of 28,000 assuming the 27 stamps were imprinted by

1 out of 25,000,000 if the 27 stamps were imprinted by one

person at 27 different occasions.

16.3.

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two different persons at 27 different occasions; and

The plaintiff seeks to adduce this further evidence to support

his submission that the Jack invoices were stamped on only one or two

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occasions. The defendant has opposed the application.

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Principles
17.1.

It is not disputed between the parties that the three

conditions set out in Ladd v Marshall [1954] 1 WLR 1489 must be

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satisfied for the court to exercise its discretion to permit further evidence

to be adduced on appeal.

17.2.

The conditions are:

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(1)

the further evidence could not have been obtained with

reasonable diligence for use at the trial;

(2)

the further evidence is such that, if given, it would probably

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have an important influence on the result of the case, though

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(3)

it need not be decisive; and

the evidence is such as is presumably to be believed.

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Discussion

18.1.
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For present purposes, I am prepared to assume, in favour of

the plaintiff, that the third condition is satisfied. Although the defendants
counsel Mr Felix Ng had referred me to various procedural requirements

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before expert evidence may be adduced, in my view these are relatively

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minor matters which can be rectified if necessary should the court give

leave to adduce the further evidence.

18.2.

In my judgment however, neither the first condition nor the

second condition has been satisfied.

The first condition

19.

The Jack invoices had been annexed as exhibits to the

defendants supplemental witness statement filed on 30 November 2011,

more than a year before the start of trial on 17 December 2012. They are
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simple documents of one page each. One can see at a glance that on
each, the round stamp has been affixed so that the word System is at

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the top.
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20.1.

The plaintiff alleged that as the Jack invoices were not

arranged consecutively at the time when he saw the exhibits, he did not

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notice the orientation point then. And although they had been arranged
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in consecutive order in the trial bundle, he did not pay attention to them
as he had seen them before.
20.2.

The plaintiff alleged that it was only on the 5 th day of trial

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that he noticed the orientation point, and that his first reaction was that
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it could not be a coincidence and my common sense dictated that the

coincidence could only be explained if they were being prepared at the
same time (para. 37, Yui 5th aff). On his instructions, his counsel crossexamined the defendant on the point and made submissions to the judge

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(see paras. 7.5 and 7.3 above).

20.3.

So even on the plaintiffs own case, the orientation point

was apparent to him and his legal advisers at trial (even if not earlier).

21.

It is well-established that all the evidence that a litigant can

marshal in relation to the issues in a case should be adduced at trial. At

trial the plaintiff advanced the orientation point on the strength of the
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existing evidence. He did not ask for an adjournment to produce further

evidence (such as these reports) to strengthen his case. In my view,

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having made that choice, he must live with it. It is inimical to the proper
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fair and efficient administration of justice if a litigant is allowed to

produce fresh evidence like these to try to bolster his argument after he

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has lost the case.

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22.1.

Miss Ebony Ling, the plaintiffs counsel, submitted that it

was not inevitable that the court would refuse an application to adduce

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further evidence on appeal simply because the party did not seek an

adjournment to adduce the evidence in the court below. She referred to

the decision of this court (Kwan JA and McWalters J, as he then was) in

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Oriental Generation Ltd v Town Planning Board [2013] HKC 364.

22.2.

I agree with Miss Ling that refusal is not inevitable. It

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depends on the circumstances of the case.

22.3.

In the quoted case, the TPB had refused to consider raising

the Building Height Restriction on Orientals site.

Oriental issued

judicial review proceedings, challenging the TPBs decision on a number

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of grounds set out in its application Form 86.

22.4.

However at the hearing before Reyes J, Oriental advanced a

new ground which had not been set out in the Form 86, nor did it apply to
amend the Form 86 so that the ground could be properly formulated.

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However the TPB did not object or ask for an adjournment, and Reyes J
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found in favour of Oriental on that ground.

22.5.

The TPB sought to adduce further evidence on appeal.

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Oriental objected.

22.6.

This court granted leave to adduce the further evidence. It

held that the first condition of Ladd v Marshall was satisfied. Since

Oriental had not set out this ground in its Form 86, nor had sought leave
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to amend the form to do so, TPB was facing an entirely new ground
(amongst many grounds) at the hearing with no forewarning from

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Oriental. The court found that the TPBs failure to react at the hearing
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before Reyes J by objecting to the new point or seeking an adjournment

was not material to the application to adduce the further evidence.

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22.7.

In my view it can immediately be seen that the

circumstances in Oriental were very different from the present

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application. In our case, it is not the situation that the defendant had
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sprung a new point on the plaintiff at trial. The Jack invoices were not
new documents. They had been produced for the plaintiffs inspection

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more than a year before the start of trial. Therefore the plaintiff cannot
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blame the other party for his failure to prepare his case with all the

necessary supporting evidence in good time before the trial.

23.1.

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As for Miss Lings proposition that the judge had not given a

clear indication that the existing evidence was not sufficient to support
the plaintiffs case, I do not read the judgment in Oriental as holding that
this was a relevant consideration. The passage in para. 16 (p369F-G) was
the courts record of the explanation given by the TPBs counsel for their
failure to react at the hearing before Reyes J, which the court accepted as
understandable (paras. 18-19).
23.2.

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In any event I would find it very surprising if it is said that a

trial judge is obliged to give indications to a party as to the strength (or

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weakness) of his evidence. Further I have not been referred to any

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passages in the transcript in which the judge is said to have given

indications that the plaintiff had adduced sufficient evidence to prove that

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the Jack invoices were prepared at the same time and together with the
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I_MY invoices ex post facto.

24.1.
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Miss Ling then submitted that the first condition is relaxed in

cases where fraud, deception or other impropriety is alleged.

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submitted there has been willful deception in the present case. That is a

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serious allegation for which (as Miss Ling accepts) the plaintiff must
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show a prima facie case (Hamilton v Brodie Brittain Racing Ltd [1996]

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CLY 654).
24.2.

I do not see how a prima facie case of willful deception has

been established. The Jack invoices were shown to the judge who could
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obviously see the way the stamps were affixed.

There is nothing

inherently remarkable about a stamp of a name being affixed in such a

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way that the words can be read the right way up. The only thing the
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reports add to the plaintiffs submission is to give measurements of

angles and calculations of probabilities.

But to pick out 12 out of

27 documents to show a feature of increasing angles in this batch (albeit

not at a uniform rate) does not establish that all 27 had been prepared on
one or two occasions only. I do not see how the plaintiff has thereby
established a prima facie case of willful deception.
25.

For the reasons set out above, I do not find the first condition

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of Ladd v Marshall has been met.

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The second condition

26.

In case I am wrong, I shall also discuss the second condition

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briefly. The plaintiff must show that the further evidence would probably
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have an important influence on the result of the case, though it need not

be decisive.

27.1.

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As noted earlier, the issue was the final accounting between

the parties. The quantity of goods and unit prices were shown in the

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I_MY invoices. The Jack invoices were merely internal records of the
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defendant.

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27.2.

More importantly, the defendants evidence was that he

would prepare the I_MY invoices before the Jack invoices. I have not

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been pointed to any evidence to contradict this testimony, and the judge
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has also pointed to other evidence showing that they were not prepared at
the same time.
27.3.

Therefore, how and when the Jack invoices were prepared is

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of peripheral relevance. The issue was not how and when the stamps on
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the Jack invoices were affixed, but whether the I_MY invoices were
delivered. For the five reasons given at para. 39 in the judgment, the
judge found the I_MY invoices were delivered.
27.4.

In light of this big picture, how and when the stamps were

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physically affixed on the Jack invoices had little import, and I do not
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think that the further evidence would have an important influence on the

result of the case.

Order

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28.

For the reasons set out above, I would dismiss the

application. Counsel having agreed that costs should follow the event, I

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would order that the plaintiff pay the defendants costs of the application.
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The plaintiffs own costs are to be taxed in accordance with Legal Aid

Regulations.

29.

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Finally I would like to thank both counsel for their thorough

submissions and able assistance.

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(Maria Yuen)
Justice of Appeal

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Ms Ebony Ling, instructed by Charles Chu & Kenneth Sit, assigned by

the Director of Legal Aid, for the plaintiff

Mr Felix Ng, instructed by Hom & Associates, for the defendant