Re Shang Kiang Yuen
Read the full judgment text of on BabelCite. was delivered on 30 May 1968.
1. The proceeding before me is an application in chambers brought by way of originating summons for the appointment of receivers of the income of Shang Kiang Yuen. The summons was taken out by Mr. Shang's wife and son; and, for the purpose of this decision, I shall callthem the first applicants.
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HCMP000060A/1968 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION MISCELLANEOUS PROCEEDINGS NO. 60 OF 1968 -----------------
----------------- Coram: Blair-Kerr, J. Date of Judgment: 30 May 1968 ----------------- JUDGMENT ----------------- 1. The proceeding before me is an application in chambers brought by way of originating summons for the appointment of receivers of the income of Shang Kiang Yuen. The summons was taken out by Mr. Shang's wife and son; and, for the purpose of this decision, I shall callthem the first applicants. 2. By summons dated 3rd April 1968, certain other members of his family (whom I shall call the second applicants) applied to have their names added to the originating summons as applicants. I acceded to their application and their names have been added as applicants in the originating summons. 3. As I was about to commence the hearing of the originating summons, the second applicants submitted that I had no jurisdiction to appoint receivers under s. 8 (2)(a) of the Supreme Court Ordinance and that a fresh application should be made under s.7 of the Mental Health Ordinance. I rejected this submission holding that I had jurisdiction to appoint a receiver under s.8(2)(a) of the Supreme Court Ordinance.(1) 4. The second applicants have now filed notice of appeal against that ruling; and, by summons dated 11th May, they have applied for an order that all proceedings on the application for the appointment of receivers be stayed pending the hearing of their appeal against my ruling. 5. In deciding whether to grant or refuse a stay, it seems to me that a relevant consideration is whether my ruling on the question of jurisdiction is an appealable matter at this stage. If, on the authorities, it were to appear that a ruling of this kind is, in all probability, not appealable at this atage (and that the chances are that the Full Court will say so) this is a factor which should weigh with this court in the exercise of its discretion. 6. Mr. Oswald Cheung, counsel for the second applicants, submitted that the decision of the Full Court in Heng To Lin and others v. Heng Kwai Shan(2) is no longer an authority on this question because that case was decided before the enactment of the Rules of the Supreme Court 1967. Counsel laid stress on the present o.58 r.7 which reads:-
Section 29 of the Supreme Court Ordinance reads:-
Mr. Oswald Cheung submitted that the only effect of the words "subject to section 29 of the Supreme Court Ordinance" in o.58 r.7 is to prohibit appeals in criminal matters because such appeals are now brought pursuant to s.81 of the Criminal Procedure Ordinance; and that this court is no longer concerned with the meaning of the word "proceeding" in s.29 of the Supreme Court Ordinance. 7. A provision in substantially the same terms as s.29 was first enacted as s.18 of the Supreme Court (Reconstitution) Ordinance No.12 of 1873. In those days there were no appeals in criminal matters; and in England the Court for Crown Cases Reserved was concerned only with questions of law reserved for its opinion by the court of trial. The words "every question of law reserved for further consideration on any such criminal trial" in s.29 clearly refer to the powers which were conferred upon the court of trial by s.80 of the Criminal Procedure Ordinance and which enabled the trial judge to reserve questions of law arising on the trial of an indictment for the decision of the Full Court long before the enactment of the Criminal Appeal Act, 1907 in England and s.81 of the Criminal Procedure Ordinance in Hong Kong. But in this application I am not concerned with the latter part of s.29. It is the first part of the section which is relevant to the question before me. 8. In framing the Rules of the Supreme Court 1967, we endeavoured to follow the corresponding rules of procedure in England and o.58 r.7 appears to be an adaptation of the corresponding English rule which also contains the words "any judgment, order, or decision". However, it should not be forgotten that the language of s.31 of the Supreme Court of Judicature Act 1925 is very different from that of s.29 of the Supreme Court Ordinance; and although the corresponding English rule contains the words "any judgment, order, or decision", in England appeal against an interlocutory order is, with certain exceptions, by leave only(3). In Hong Kong there is a right of appeal from "every decision of one of the judges ......... on the trial of any action or other proceeding .........;" and it is s.29 which governs rights of appeal to the Full Court. Such rights may not be extended by a rule of procedure. 9. The difficulty, as I see it, springs from the phraseology of s.29. Does the word "on" in the phrase "on the trial of any action or other proceeding" mean "at any stage during"? A similar phrase occurs in s.80 of the Criminal Procedure Ordinance (to which s.29 of the Supreme Court Ordinance makes reference by implication). Section 80 reads:-
From a cursory glance through the law reports, it appears that the last occasion on which a judge reserved a point of law under this section (formerly s.81) was in R. v. To Lam Sin(4) In that case, before arraignment, counsel for the accused moved to quash the indictment on the ground that the court was without jurisdiction. Upon a point of law being reserved, the Full Court ruled that the court had jurisdiction; and the trial of the indictment proceeded. As the accused had not pleaded to the indictment when the judge reserved the point of law, it is arguable that the trial had not, in the strict sense, commenced. But it is clear from s.80 itself that the only purpose in retaining this section in our law is to enable points of law to be referred to the Full Court for decision during the course of the trial at any stage prior to judgment. After judgment, an accused person may raise any point of law by way of appeal under s.81. 10. I do not think that the word 'on' in the phrase "on the trial of any action or other proceeding" in s.29 of the Supreme Court Ordinance carries the same meaning as it does in s.80 of the Criminal Procedure Ordinance. The appellate jurisdiction of the Full Court in civil matters is conferred by s.29. The intention appears to have been to confer a right of appeal from the final decision of a single judge in any proceeding. If the decision appealed against is not one given in a proceeding, the Full Court has no jurisdiction to entertain it. As Huggins, J. said in Heng To-lin(2):-
In my view the only effect of o.58 r.7 is to declare that any final judgment, order or decision in a proceeding heard in chambers may be appealed. 11. In this case, the second applicants having successfully applied to be added as parties to the application under s.8(2)(a) of the Supreme Court Ordinance for the appointment of receivers, then proceeded to object informally to my carrying on with the hearing of the originating summons on the ground that I had no jurisdiction. They did not initiate their objection formally by summons. They simply made an oral submission at the commencement of the hearing of the originating summons and I ruled against their objection. 12. It is true, of course, that a decision as to whether the court has jurisdiction to proceed at all is a far more important decision than, say, a decision on whether to strike out a paragraph in an affidavit. But that seems to be quite beside the point. The question is this: can it be said that the second applicants' informal objection to my hearing the originating summons is a "proceeding" within the meaning of s.29 of the Supreme Court Ordinance so as to make my ruling upon it an appealable matter at this stage? I think the answer must be in the negative. If it were otherwise, where is one going to draw the line? Why should not a judge's ruling as to admissibility of evidence during the hearing of a civil suit not be appealable immediately? The fact that I gave reasons in writing for ruling as I did could not convert the matter into a proceeding; and unless and until the Full Court rules otherwise, it seems to me that this is a factor which I ought to take into consideration in deciding whether to grant a stay of proceedings on the originating summons. 13. It appears from the affidavits that Shang Kiang Yuen is a fairly wealthy man; and that the children of his wife and the children of his concubine do not see eye to eye on how his estate should be administered, one side favouring a committee under the Mental Health Ordinance and the other side favouring the more expeditious procedure of asking the court to appoint receivers, as is the practice in England. Mr. Oswald Cheung's clients favour the appointment of a committee under the Mental Health Ordinance; and his main submission on the application for stay was that, if the Full Court were to hold that this court had no jurisdiction to appoint a receiver, his client's interests might be seriously prejudiced. 14. It seems to me that a receiver (or as in this case, a number of receivers) would be acting under the supervision of the court and under the watchful eye of all those interested in the estate. As at present advised, I do not really see any advantage in holding matters up on the off-chance that a committee under the Mental Health Ordinance may ultimately be appointed; and the application for a stay is accordingly refused. 15. It may be, of course, that this decision will have no practical effect because I was given to understand that since I was unable to hear the originating summons on Wednesday, 22nd May, there are now no dates available for the hearing which are suitable to all counsel concerned in the case prior to the dates which the Full Court have fixed for the hearing of the appeal, namely, 18th and 19th July 1968. 16. The parties will have liberty to argue the question of costs of this application.
Representation: Benjamin Liu & Henry Litton (Hon & Co.) for the 1st Applicants O. V. Cheung, Q.C., & J.D.M. Donnelly (Brutton & Co.) for the 2nd Applicants (1) Ruling handed down on 16th April 1968. (2) (1965) H.K.L.R. p.1144 (3) Supreme Court of Judicature Act 1925 s.31(1)(i) (4) (1952) 36 H.K.L.R. p.1 |