The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 75 of 1995

 

Michael Eric Alexander Bos Mak Appellant

v.

Wocom Commodities Limited Respondent

 

FROM

 

THE COURT OF APPEAL OF HONG KONG

 

---------------

ORAL JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 11th November 1996

------------------

 

Present at the hearing:-

Lord Browne-Wilkinson

Lord Lloyd of Berwick

Lord Nolan

Lord Nicholls of Birkenhead

Sir John May

  ·[Delivered by Lord Browne-Wilkinson]

 

-------------------------

 

1. This is an appeal from the Court of Appeal of Hong Kong dismissing an appeal against a decision of Rogers J.  The trial judge had dismissed claims brought by the appellant, Mr. Mak, against the respondent, Wocom Commodities Limited.  The claims made in the action by Mr. Mak all related to transactions in which the defendants, Wocom, were involved.  There were a number of different issues in the trial at first instance.  One group of them related to the question whether or not stop orders had been placed, another group related to dealings in the spot market foreign exchange carried out by Wocom.

 

2. The claims before the judge were wide-ranging and the trial lasted some 69 days.  In dealing with the stop order contentions the judge made a series of very adverse findings as to the credibility of Mr. Mak. Indeed he went so far as to say that he thought Mr. Mak had attempted to deceive the court.

 

  On the foreign exchange dealings there were two issues before the judge.  The first was whether Wocom had been carrying out transactions in which Mr. Mak was interested as agent for Mr. Mak or as principals.  The second issue was whether, if Wocom had been acting as principals in dealing with Mr. Mak, Mr. Mak had been aware of that fact.  The judge found against Mr. Mak on both these issues: he found that Wocom had been dealing in foreign currency with Mr. Mak as principals and not as his agent and he also held that Mr. Mak had been well aware of that fact.  The importance of the issue was that Mr. Mak was claiming that Wocom had acted as agents for him in the transactions and had made undisclosed profits.

 

3. There was no appeal from the judge's decision on the issue whether or not Wocom had been acting as principals in the foreign currency transactions.  The only question before the Court of Appeal was whether Mr. Mak had known of the fact that Wocom were dealing as principals and not as agents.

 

4. The Court of Appeal dismissed the appeal.  Now Mr. Mak seeks to appeal to this Board against the judge's finding of fact that Mr. Mak knew they were acting as principals.

 

5. At the trial Wocom's case had been that Mr. Mak had been expressly told that Wocom were trading as principals.  Mr. Mak and his witnesses denied this.  The judge accepted the evidence given on behalf of Wocom, in particular, by Mr. Leung. The judge disbelieved Mr. Mak and his witnesses on this issue as on the stop order issue.  In so deciding the judge took into account various factors which, it was contended by Mr. Mak, showed that Wocom had changed its evidence, in particular by various amendments made to the pleadings.  He also took into account the inherent improbability that Mr. Mak, an experienced financial dealer, would have entered into these transactions with Wocom, as principals.

 

6. In the Court of Appeal Mr. Mak sought to persuade the court that the trial judge, by disbelieving his evidence and accepting that of Wocom's witnesses, had failed to give proper weight in assessing the credibility of the witnesses.

 

7. Mr. Guthrie Q.C., who appears for Mr. Mak before the Board, accepts that the Court of Appeal, in considering this appeal on an issue of fact turning primarily on credibility, had directed themselves correctly in law, having due regard to the fact that the judge had the advantage of seeing the witnesses and comprehending the whole case, an advantage necessarily not available to an appellate court.  However, Mr. Guthrie seeks before  this Board  to  upset the finding of the Court of Appeal

upholding the judge's finding of fact, on the basis that although they may have directed themselves correctly at law, when they came to apply that law to the case before them they failed to do so properly.

 

8. Mr. Mak now seeks to ventilate before the Board the issues of fact on which he lost before the learned judge.  In so doing, he comes up against the practice of the Board, established for well over 100 years, that where there are concurrent findings of fact in the courts below, this Board will decline to review the evidence for the third time. The practice is fully considered in the decision of this Board in Devi v. Roy [1946] AC 508.  The headnote, which Mr. Guthrie accepts as accurate, states the general principle and then states certain specific considerations.  Point 4 is:-

"That, in order to obviate the practice of the Board, there must be some miscarriage of justice or violation of some principle of law or procedure.  That miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all. That the violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure whose application will have the same effect. The question of whether there is evidence on which the courts could arrive at their finding is such a question of law."

 

Point 6 is:-

"that the practice is not a cast-iron one and the foregoing statement as to reasons which will justify departure is illustrative only, and there may occur cases of such an usual nature as will constrain the Board to depart from the practice."

 

9. It should be added that it is clear that questions as to the weight of the evidence are not matters which come within any of the exceptions to the practice.

 

10. In the present case Mr. Mak wishes to contend that because of a series of points (which Mr. Guthrie has not had the opportunity to develop) cumulatively and taken together this Board could be convinced that the judge's finding as to credibility, which lies at the root of this case, was ill-founded.  He says, rightly, that in Devi v. Roy, after a hearing lasting 28 days and only after having conducted a full review of the evidence,  did  the  Board then decide, however improbable the

story was, that they could not interfere with the concurrent findings in the court below. He suggests that in the present case their Lordships should not summarily dispose of this appeal because, until their Lordships have heard the whole development of the argument, they cannot decide whether cumulatively the points which Mr. Guthrie, on Mr. Mak's behalf, seeks to make will drive them to the conclusion that the judge's finding as to credibility was wrong.

 

11. In their Lordships' view that is not a legitimate approach to the settled practice of the Board.  In effect what Mr. Guthrie was seeking to do was to develop a series of points all directed towards the weight to be given to circumstances, documents or evidence with a view eventually to persuading the Board to alter the fundamental findings as to credibility.  In their Lordships' view that is not a legitimate matter to seek to persuade the Board to deal with.  This Board does not exist to make a further review of the findings of fact when at root what is in issue is the weight of the evidence and the way in which conflicting pieces of evidence should be balanced, the one against the other.

 

12. On one issue alone was there any investigation of the facts before the Board and that was very short and incomplete.  Mr. Guthrie stressed in the forefront of his argument that in making his findings as to credibility the judge and later the Court of Appeal failed to give proper regard to the conflicting versions of the story put in the pleadings of Wocom.  In particular Mr. Guthrie drew attention to the late amendment of the pleading which was not made until after Mr. Leung, the chief witness for Wocom, had given evidence.  In their Lordships' judgment that is not a matter which by itself could be decisive.  There is no single point that Mr. Guthrie could point to which was, if established, wholly inconsistent with the finding of the judge.  All the matters in issue were questions of balance as between one factor and another.  Such an appeal does not lie within the normal practice of the Board.

 

13. For those reasons their Lordships will humbly advise Her Majesty that the appeal ought to be dismissed.  The appellant must pay the respondent's costs.

 

© CROWN COPYRIGHT as at the date of judgment.