Clifford Lun Kee Tang v. Chan Sze Sum

Case No.HCA 457/1980

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA000457/1980

HCA 1980 No. 457

Headnote

Practice and procedure - parties consented to an order for trial of preliminary issue under 0.33 r.3 which could not be resolved in absence of agreed facts - court satisfied that application before Registrar resulting in order was misconceived - inherent jurisdiction to stay proceedings and direct trial to proceed in ordinary way.

	IN THE SUPREME COURT OF HONG KONG	1980 No. 457
	HIGH COURT

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BETWEEN
	CLIFFORD LUN KEE TANG	Plaintiff
	and
	CHAN SZE SUM	Defendant

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Coram: Hon. Fuad, J.

Date of Judgment: 8th July, 1981

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ORDER

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(Transcribed from dictating machine)

1. The writ in this action was issued on 25th of January 1980 and by the Statement of Claim which accompanied it the plaintiff avers that a partnership was entered into between himself and the defendant in May 1978, and he asks for -

	(a)	a declaration that it be dissolved;
	(b)	an order of it to be wound up;
	(c)	necessary accounts and inquiries be taken and made; and
	(d)	a receiver to be appointed.

2. The defendant by his Defence denies the existence of the partnership but in any case pleads in para. 1 as follows -

"At all material times the defendant was and still is the Consul for the Republic of Paraguay at Hong Kong accredited to the Court of St. James's. The matters complained of in the Statement of Claim were in respect of acts performed in his exercise of consular functions; and/or arose out of a contract as alleged (which is denied) concluded by the defendant in which he expressly or impliedly contracted as an agent of the said Republic of Paraguay. By reason of the matters aforesaid, the defendant is entitled to immunity from suit brought by the plaintiff herein."

3. As regards the question of immunity, in his Reply the plaintiff avers as follows, in para. 2 -

"In further reply to para. 1 of the Defence the plaintiff says that the plaintiff and the defendant formed the said partnership business before the defendant's appointment as Consul of the Republic of Paraguay and at all material times the defendant had contracted with the plaintiff in his personal capacity and not as an agent of the Republic of Paraguay as alleged."

4. The defendant took out a summons on the 4th of July 1980 under o.33 r.3, asking for the following "question or issue" to be tried as a preliminary issue -

"Whether upon the facts pleaded in the Statement of Claim and para. 1 of the Defence, the defence so alleged discloses a good defence in law to all the claims causes of action pleaded by the plaintiff in his Statement of Claim."

5. In passing it is to be noted that the issue as framed ignores the Reply. On the 15th of July 1980 the parties were represented before the Registrar at the hearing of the summons by their solicitors only and an order by consent was made in terms of the summons. On the 5th of January this year, for the first time Mr. Charles Ching for the plaintiff and Mr. Martin Lee for the defendant became concerned with this case and appeared before my brother Mr. Justice Liu. Mr. Ching told the learned judge that he had been misinformed about the nature of the application and had come unprepared for he thought that the matter for the court's decision was whether or not there should be a trial of the preliminary issue before the rest of the hearing. Upon Mr. Ching understanding the true position, the hearing was then adjourned by consent.

6. At the outset of the proceedings today, I addressed certain remarks to Counsel. I explained that it seemed to me that on the face of it the application made by the defendant before the Registrar for the trial of a preliminary issue of law which had resulted in the consent order had been misconceived. I said that I felt that on the pleadings as they stood that in the absence of an agreed statement of facts (and by the position taken in the pleadings it seemed to me unrealistic to hope that facts could be agreed) as presently advised I did not see how it would be possible for the court to reach a decision on the preliminary issue as framed that would assist the parties. I explained my view that it was plain that such jurisdictional immunity as is afforded to a consular officer was not absolute and no finding that would not be purely hypothetical could be made until the precise facts were ascertained. I went on to say that I could not believe that the interests of either of the parties would be served by pursuing what appeared to be so sterile a course. I invited argument on the point and said that if Counsel agreed that to attempt to answer the question further at this stage would be pointless, I would welcome guidance on what should now be done. I asked could the court on its own motion vary an interlocutory order made by consent? I also asked if the court was bound to carry on with the hearing when it felt (subject to any submissions on the matter Counsel might wish to make) that an improper recourse to the 0.33 r.3 procedure had been made. I ventured the opinion that it might be that the court had inherent jurisdiction to stay proceedings of this kind where it was satisfied that the Registrar should not have made the order, albeit that it was made by consent, and again under inherent jurisdiction, issue directions for the trial of the action to proceed in the ordinary way.

7. Mr. Ching told me that the views I had expressed had come as no surprise to him, and this would have been a major point he would have taken at the hearing. He felt in any event that the point could have decided in his client's favour. He thought the proper course for the court to take was to make no order. Mr. Lee was in some difficulties for although he understood the position taken by the court and did not wish to make any submission to the contrary, his instructions did not permit him to consent to any order the court proposed to make.

8. There is no doubt this is somewhat unusual situation for the parties by consent have given the court jurisdiction to decide a preliminary issue which they had agreed upon and framed. With the utmost respect to the solicitors who appeared before the learned Registrar on the 15th of July 1980, it would have been wise if they had borne in mind the notes of caution that have been struck by the courts for many years on the desirability of exercising the utmost care when selecting and deciding upon a preliminary issue to be tried in this way. It is also as well to remember the words of Lord Scarman in Tilling v. Whiteman [1979] 2 W.L.R. 401, at p.410, when he said in his speech "Preliminary points of law are too often treacherous short cuts. Their price can be, as here, delay, anxiety and expense."

9. Had Counsel (if I may say so, of great experience) suggested to me that I was wrong, of course I would have heard the matter out but in the circumstances I think it would be quite wrong to attempt to decide the issue in the way that has been presented to me. As I earlier explained, the court would have to give a decision hedged in by all sorts of alternative propositions depending on what the true facts were later found to be. I remain convinced that the original application was entirely misconceived and should never have been made. I have considered Mr. Charles Ching's helpful suggestion but I think probably the safest way for me to deal with the matter would be to pray in aid the inherent jurisdiction of the court to stay proceedings where a particular procedure is relied upon which in the court's opinion cannot possibly serve the interests of justice. And therefore I stay these present proceedings and direct that the trial should proceed in the normal way. I will now hear Counsel on costs.

	(K.T. Fuad)
	Judge of the High Court

Representation:

Mr. Charles Ching, Q.C. with Mr. K.K. Pang instructed by Woo, Kwan, Lee & Lo for plaintiff.

Mr. Martin Lee, Q.C. with Mr. Winston Poon instructed by James C.M. Tsang & Co. for defendant