Easey Garment Factory Ltd v. Attorney General

HCMP000432/1979

1979, No. MP432

Inadmissible but relevant evidence led by plaintiff - objection not taken till after close of plaintiff's case - waiver.

Action for discovery - Postmaster General - information as to holder of Post Office Box.

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS

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Coram: O'Connor, J. in Chambers.

Date of Judgment: 19 December 1979

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JUDGMENT

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1. The plaintiff who is a clothing manufacturer in a large way of business, markets clothing bearing distinctive labels and a trademark. The plaintiff discovered evidence that a firm Shing Kwong Trading Co. was using G.P.O. Box 10271 Hong Kong in order to pass off goods as the plaintiff's, which goods also infringed the trademark. The plaintiff wishes to take action against that firm, and for that purpose wishes to know the names and addresses of the persons who applied for and are operating the box. The plaintiff made efforts to get further information about that firm and in particular to discover who were members of it and what was its address. A search of the Register of Business Names did not reveal the information as the only firm registered in that name was a dealer in electrical goods and the registration of which is recorded as having been cancelled on 27th February 1979, with the notation 'business untraceable'. The plaintiff had a letter written under a pseudonym to the firm, hoping thereby to obtain the information, but without success. The plaintiff, by its solicitors, therefore wrote to the Postmaster General requesting disclosure of the identity of the renter of P.O. Box 10271. The Postmaster General replied that in principle he would not disclose the information. The plaintiff therefore issued an originating summons seeking a declaration that the Postmaster General should reveal to the plaintiff the names and address of the persons who applied for and have been operating Post Office Box Number 10271. The plaintiff also sought a number of more general declarations, which it is unnecessary for me to set out, as the plaintiff abandoned them at the hearing. Both parties agree, as do I, that this is not a suitable case to consider whether or not the more general declarations should be made.

2. The plaintiff served the defendant with a copy of the affidavit by the plaintiff's manager, whereupon Crown Counsel wrote a letter to the plaintiff's solicitor indicating that he thought that Originating Summons procedure was not appropriate when bringing an action for discovery and that the matter should have been begun by writ. The plaintiff's solicitors replied that they considered Originating Summons procedure appropriate as it was unlikely that there would be any dispute as to facts. There does not appear to have been a reply to that letter. It is to be noted that no inkling was given to the plaintiff's solicitors that any point arose or would be taken as to the contents of the affidavit.

3. When the matter came before me, the plaintiff's counsel opened his case, referred me to various paragraphs of the affidavit, indicated he relied on the affidavit, dealt with the law as to an action for discovery, and closed his case. Counsel for the defendant then submitted that a lot of the contents of plaintiff's affidavit was hearsay and ought not to be admitted in evidence, or if admitted was of no probative value. I mentioned that I thought that point ought to have been taken before the plaintiff's affidavit was opened, and that I considered that by sitting by the defendant's counsel may have waived the point. Defence counsel said that the affidavit having been filed was physically before the Court, and that there was no point in taking the point at the beginning as I would already have read the affidavit. He further said that in any event the plaintiff's counsel had not read the affidavit but had merely summarised it, so it had not really been opened to the Court. The plaintiff's counsel was taken by surprise at this point being taken. Neither counsel referred me to any case law. I told them I would look into the case law and I asked them would they wish me recall them to address me on any cases, I turned up. They each indicated they did not wish to address me on any such cases.

4. The plaintiff was correct in adopting the Originating Summons procedure, see 1979 White Book page 402 para. 24/1/1B.

5. An affidavit which has been placed on the file does not become part of the proceedings until it has been opened to the court, either by being read or it being indicated to the court that it is relied on; Barristers Board of Western Australia v. Tranter Corporation Pty. Ltd., 1976 Western Australian Reports 65. If counsel wishes to object to the admissibility of evidence, it is his duty to do so promptly giving grounds for his objection; Bain v. Whitehaven & Furness Junction Railway Co., (1850) 3 H.L.C. 1; McLennan v. Taylor (1966) 85 W.N. (N.S.W.) 525 at 537-538. An objection to the admissibility of relevant but inadmissible evidence led by a plaintiff, is too late if it is not taken until after the close of the plaintiff's case; Reed v. Lamb (1860) 29 L.J. Ex. 452; Green v. Patten (1894) 15 Australian Law Times 254. (I have only been able to see a note of this case). See also R. v. Banks 1972 1 All E.R. 1041.

6. For these purposes hearsay may be very relevant though inadmissible.

7. The reason for this rule or practice is that if objection is taken at the time that the evidence is tendered, the party producing the evidence may at once take steps to remedy the matter, as by example tendering admissible evidence, or seeking an adjournment in order to obtain admissible evidence, or by seeking to rely on the statutory provisions as to the admissibility of hearsay in civil proceedings. The position is different where the evidence is not only inadmissible but is also irrelevant, because failure to object cannot make such evidence relevant, and if objection were taken the tendering party could not remedy the matter, and is therefore not prejudiced by the court allowing the objection to be taken at a later stage.

8. Of course there is a duty on the Court itself to reject inadmissible evidence, but this duty is not as strict in civil as in criminal cases and in practice much evidence, strictly inadmissible, is admitted by agreement, or by waiver by the party entitled to object. The admissibility by agreement of otherwise inadmissible evidence has now been given statutory recognition by S. 46 of the Evidence Ordinance Cap. 8 and R. v. Banks above was a case of waiver. Where a party does not object to relevant facts being proved in an inadmissible or irregular manner, there should not be much emphasis put on the duty of a judge to exclude inadmissible evidence, and objection should be taken as waived by the party entitled to make it. I am of course referring to where the party is represented, the position may well be different in respect of an unrepresented party. Furthermore I confine my remarks to civil cases. The authorities including the English cases, dealing with failure to object to the admissibility of relevant but inadmissible evidence are reviewed in re. Lilley 1953 Victorian Law Reports 98; King v. Bryant (No. 2) 1956 Queensland Reports 570; McGregor Lowndes v. Collector of Taxes (1968) 11 Federal Law Reports 349; and see McLennan v. Taylor (1966) 85 W.N. (N.S.W.) 525 in particular the judgment of Asprey J.A. In Roof & Ceiling Construction Co. v. S.A. Wigan & Co. Pty. Ltd. 1972 QWN 14 (reported at page 23 at the back of 1972 Queensland Reports) it was held by the Full Court of Queensland that when in a civil case, inadmissible though relevant evidence is tendered without objection, it may be given such probative value as the court thinks it is worth.

9. In the instant case I consider the hearsay evidence has considerable probative value. It derives support from a number of documents which appear to be genuine and which on their face indicate that a firm Shing Kwong Trading Co. of G.P.O. Box 10271 Hong Kong is trading in and passing off garments not manufactured by the plaintiff as being those of the plaintiff and bearing the plaintiff's mark. I give weight to the hearsay assertions and find they establish, for the purposes of this case, that Shing Kwong Trading Co. is so passing off goods and infringing the plaintiff's legal rights. The plaintiff wishes to bring an action against Shing Kwong Trading Co. and for the bringing such an action and serving the firm the plaintiff seeks from the Postmaster General disclosure of the identity and address of the holder of the box number. As the plaintiff points out, even if they get an order for substituted service, they would be unable to execute if the box holder simply ignored the proceedings. The plaintiff is interested in finding out the whereabouts of the tortfeasor and the membership of the firm.

10. The defendant does not claim Crown privilege but argues against giving the information, firstly because the information sought was obtained from the box holder in pursuance of a contract, secondly that the box holder acted under a form of compulsion in giving the address to the defendant as any applicant for a box must fill in a form giving his address, and thirdly that there is an element of confidentiality in that the box holder was entitled to expect that this information would not be given without his permission. As regards the first reason I note that the contract between the Postmaster General and a box holder contains no term restricting either party from revealing its terms. It would be unusual to read any such term as being implicit in the contract. If an applicant for a box wished for such a term he could negotiate with the Postmaster General, but ought not to be surprised if the Postmaster General refuses such a term. As to the second reason I see no more element of compulsion in that the applicant for a box has to reveal his name and address, than in any other term in the contract. There are obvious good reasons why the Postmaster General would wish to know his name and address and should refuse to let a box unless that information is supplied. As to the third reason there may be a slight element of confidentiality, in that an applicant for a box may expect that the Postmaster General would not reveal his name and address without good cause. However, I cannot see how the box holder can expect to be allowed to use any shield there may be of confidentiality, as a sword with which the box holder may commit tortious acts. Any shield of confidentiality that there may be is only to protect the box holders rights, not to enable him to unlawfully attack with impunity the rights of others. It is to be noted that the application form for a post office box requires an applicant firm to give its Business Registration Licence number and full particulars of the nature of the business and indeed the Postmaster General can demand production of a business registration certificate. It does not appear that the box holder has given the required particulars as the Business Names Register shows no clothing business has been registered under that name, and indeed no business of any kind registered under it since February 1979. Further one of the conditions under which a post office box is allocated is that the box may not be rented for an improper purpose.

11. The plaintiff relies on Norwich Pharmacal Co. v. Commissioners of Customs and Excise 1974 A.C. 133, the headnote of which says that where a person, albeit innocently and without incurring any personal liability becomes involved in the tortious acts of another he comes under a duty to assist the one injured by those acts by giving him full information by way of discovery and disclosing the identity of the wrongdoers, and for that purpose it mattered not that such involvement was the result of voluntary action or the consequence of the performance of a duty statutory or other wise. In that case the information sought and ordered to be given was not only the names but also the addresses of the wrongdoers. The defendant submits that in the present case the Postmaster General is in the position of a mere witness and so not covered by the principle. I do not consider that to be so. The Postmaster General has provided facilities, which have enabled the box holder to commit wrongful acts damaging to the plaintiff, in such a manner that difficulties are caused to the plaintiff in his efforts to hold the box holder accountable for his actions. His position is rather like that of a car hire firm who rented a car to a hit and run driver and the injured party wishes to know to whom it was hired. It may be that the Postmaster General has acted innocently in the matter but that does not alter the principle. Another point taken by the defendant is that this case is not within the principles of the Norwich Pharmacal Co. case because those principles only apply where no case could be brought against the wrongdoer unless discovery is granted. The defendant says that the present plaintiff could start an action against the firm and his difficulty is only in relation to service. In my view the defendant is putting too narrow a construction on the Norwich Pharmacal's case. A party in the position of the Postmaster General in this case is under a duty to provide full information to assist the injured party in enforcing his rights. In the instant case the plaintiff is in doubt as to who is behind the firm, who constitutes the firm and whereabouts it or they are located which by not being registered under the Business Registration Regulations deprives the plaintiff of the normal source where he could obtain that information. The plaintiff is effectively hindered in exercising a proper judgment in relation to bringing proceedings against the wrongdoers and in my view in these circumstances the Postmaster General is under a duty to assist the plaintiff to right a wrong and that duty is heavier than any small degree of confidentiality that may apply to the information. By not revealing that information the Postmaster General is not only assisting a past wrongdoer to avoid the consequences of his wrongdoing, but is enabling the wrongdoing to continue. The Postmaster General will not be prejudiced in any way by giving the information. The overriding public interest and the interests of justice coincide and are that this wrongdoing be stopped and the plaintiff be enabled to obtain justice.

12. I will make the declaration. It seems that the plaintiff should pay the costs as the Postmaster General was justified in saying he would not reveal the information without the matter being tested in court, see Norwich Pharmacal's case. I will hear the parties.

Representation:

Robert G. Kotewall (Deacons) for Plaintiff.

B.G.J. Barlow, Crown Counsel and Winston Leung, Assistant Crown Counsel for Crown/Respondent.