Mr Chen relied on the old case of Benmax v Austin Motor Co [1955] AC 370 to draw a distinction between the finding of facts based Ltd on credibility or bearing of a witness and findings based on inference. With respect, it should be recognized that the modern authorities have witnessed a change in appellate approach. In view of the complexity of modern litigation and the heavy demand for appellate resources (with corresponding much lesser time allocated to an appellate court to hear an appeal as compared with the first instance hearing), the courts have come to recognize that though there is a distinction between assessment of credibility and fact finding by way of inference, the latest approach is the one set out in the authorities cited above. In particular, in ZJW v SY, supra, after reviewing the modern authorities (including those in the UK), Poon JA concluded at [34]: Facts are commonly found on inferences. An inference can be “ made from primary facts or after a process of evaluation : [2002] EWCA Civ 763, per Walker LJ at [24]. If Bessant’s case the former, the Court of Appeal approaches them in the same way as discussed in Part D1.1 : Beacon Insurance Company Limited v supra, Lord Hodge at [17]; Maharaj Bookstore Limited, China supra, per Lam VP at [22]; Gold Finance Ltd v CIL Holdings Ltd, supra, per Poon JA DBS Bank (Hong Kong) Limited v Sit Pan Jit, at [111] [117]. If the latter, the Court of Appeal adopts the – same approach as per Part D1.2 above.” In the present case, as far as the ground is concerned, the judge’s finding is partly based on her assessment on the reliability of the witnesses and the documents put forward by the executors and partly based on her assessment of the inherent probability of the executors’ case on assignment. We are of the view that the plainly wrong test must be fulfilled in order for the executors to succeed.
Mr Chen relied on the old case of Benmax v Austin Motor Co Ltd [1955] AC 370 to draw a distinction between the finding of facts based on credibility or bearing of a witness and findings based on inference. With respect, it should be recognized that the modern authorities have witnessed a change in appellate approach. In view of the complexity of modern litigation and the heavy demand for appellate resources (with corresponding much lesser time allocated to an appellate court to hear an appeal as compared with the first instance hearing), the courts have come to recognize that though there is a distinction between assessment of credibility and fact finding by way of inference, the latest approach is the one set out in the authorities cited above. In particular, in ZJW v SY, supra, after reviewing the modern authorities (including those in the UK), Poon JA concluded at [34]: “ Facts are commonly found on inferences. An inference can be made from primary facts or after a process of evaluation : Bessant’s case [2002] EWCA Civ 763, per Walker LJ at [24]. If the former, the Court of Appeal approaches them in the same way as discussed in Part D1.1 : Beacon Insurance Company Limited v Maharaj Bookstore Limited, supra, Lord Hodge at [17]; China Gold Finance Ltd v CIL Holdings Ltd, supra, per Lam VP at [22]; DBS Bank (Hong Kong) Limited v Sit Pan Jit, supra, per Poon JA at [111] – [117]. If the latter, the Court of Appeal adopts the same approach as per Part D1.2 above.” In the present case, as far as the ground is concerned, the judge’s finding is partly based on her assessment on the reliability of the witnesses and the documents put forward by the executors and partly based on her assessment of the inherent probability of the executors’ case on assignment. We are of the view that the plainly wrong test must be fulfilled in order for the executors to succeed.
CAMP000069_2017.docx