Allen Pat Yung Waung v. Sir Yue Kong Pao

CACV000045/1984

HEADNOTE

It is desirable that a judge should give reasons for his decisions, even in interlocutory matters.

Should he omit to do so it is the duty of counsel in the case to invite him to remedy the defect.

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Cons, Fuad, JJ.A. & Kempster, J.

Dates of hearing: 17th & 18th May, 1984

Date of judgment: 18th May, 1984

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JUDGMENT

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Cons, J.A. delivered the judgment of the court.

1. The defendant to these proceedings is a person who, since his arrival in Hong Kong in 1949, has become an exceedingly well-known and successful businessman. The plaintiff appears to have been, for a short while, the defendant's colleague in Shanghai, and was then employed by the defendant after he too came to Hong Kong.

2. Put very briefly the plaintiff's present case is that in 1950 he gave a certain sum of money to the defendant for the defendant to employ in his business as he thought fit, but for their joint benefit. The plaintiff believes that certain other persons similarly gave money to the defendant and that those several sums form part of the foundation on which the defendant's present prosperity has been built.

3. The plaintiff alleges that the arrangement was brought to an end in 1970, and that although certain payments were then made, and others had been made prior thereto, there has as yet been no proper accounting, an accounting which would in the plaintiff's view show that much more money is now due to him.

4. The defendant denies any agreement of this kind. He alleges instead that in 1952 he offered to his staff, including the plaintiff, the opportunity to purchase shares in a company that he had then newly formed, and that the offer was accepted by the plaintiff; that in the course of various transactions over the years he plaintiff's shares had by 1970 become an interest in a Bahamanian Company, also incorporated by the defendant, with the name of Summit Holdings Limited; that in 1970 the defendant purchased the plaintiff's interest in Summit for cash, together with an option to purchase shares in yet another of his companies, the East Asia Nevigation Limited, at a reduced price; and that nothing more is now due to the plaintiff.

5. The plaintiff's Statement of Claim was served and filed in December 1981, amended in 1982. It is 24 pages long and consists of 48 paragraphs. The Defence was filed in October 1982. It is 21 pages long, with 67 paragraphs. The Reply came in June of 1983, amended in March of this year - 16 pages with 37 paragraphs. On the 2nd of August last year the plaintiff, at the request of the defendant, filed further and better particulars of the Amended Statement of Claim which added a further 25 pages to the pleadings. We mention these matters not by way of criticism of Counsel but to indicate the complexity of the details that are involved.

6. On the 1st of August last year the plaintiff served notice requiring further and better particulars of the Defence. The notice listed 49 items, but some of the items were sub-divided so that the actual total requested was more than that. The defendant declined to give the particulars and the dispute was brought before Mr. Justice O'Connor. On the 9th of March the judge made his Order. He allowed some of the requests but refused 28 particular items. It is with those 28 items that the present appeal is primarily concerned, although we are to some extent also concerned with the Reply, for the defendant had asked for 19 basic particulars of what was alleged there, all of which were refused by the judge. In general the defendant has accepted the judge's decision, but he challenges two of the items.

7. In refusing the particular 28 requests the judge below gave no indication of the reasons for his decision. That is perhaps unfortunate. We have to decide whether or not to interfere with a matter which is within his discretion, and it would have assisted us to know why he chose to exercise it in the way that he did. It would also have assisted counsel for the appellant and the respondent, who quite apart from being deprived of the knowledge why part of their respective submissions had failed, found themselves forced to draft grounds of appeal based on speculative reasons.

8. We do not propose to repeat them here, but we venture to draw attention to remarks made earlier by this court(1), as to the desirability of giving reasons in every case, including interlocutory matters. What is needed in those matters, we there suggested, was not necessarily a lengthy discussion of the issues involved, but just a brief and simple, and we would add now, perhaps only a general indication, of what was in the judge's mind. Should he in any instance not give that indication we consider it to be the duty of counsel, and in particular if there is a possibility that the matter will be taken further, to invite the judge to do so.

9. It has been suggested that as in the present case we have no idea what influenced the judge to his decisions, we should approach the questions today de novo, as would a single judge hearing an appeal in chambers. We do not think that would be right. It would run directly counter to the basic principles upon which this court will normally review the exercise of a judge's discretion. Those principles are too well-known to require repetition.

10. The considerations with regard to particulars are equally well-known. Perhaps they are most concisely set out in the White Book, 1982 edition, at note 18/12/2, where it is said that "The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises and incidentally to reduce costs." It is only where the refusal of the judge below has in our view so clearly offended against that overriding principle, that we feel he must in these instances, have overlooked that principle that we have thought it right to interfere.

11. We turn then to the actual requests and we make use of the numbers which were very conveniently set out in the document annexed to the notice of appeal.

12. We dismiss the appeal in respect to the following. numbers : 1, 11, 16, 18, 19, save for sub-paragraph (1)(i), 20 and 40. The judge's order in respect of these items can be supported on the ground that the requests are not relevant to the material issues in the action.

13. We dismiss the appeal in respect of numbers 21, 22, 23 and 24. The judge's order here can be supported on the ground that the particulars are not relevant in view of the plaintiff's acceptance of the 1963 evaluation. To order particulars in that circumstance would be oppressive.

14. We dismiss the appeal in respect of the following particular requests :- No. 3, which relates to an averment that has not in fact been made; No. 9, which does not further the case of either party; No. 10 - in this instance we are not prepared to interfere with the discretion of the judge; No. 17, which has not been pursued; with regard to No. 43 counsel for the defendant has expressly disowned any suggestion that paragraph 43 of the Defence could support an application for rectification of the agreement, and in that circumstance we agree with the judge that particulars are not required; No. 45 has not been pursued; No. 46 is a matter of evidence rather than of material fact.

15. We allow the appeal in respect to the following numbers : 12, 13, with sub-paragraph (2) amended to read "If not so alleged stating any other consideration given by the plaintiff therefor"; 14, 15, 19 (1)(i), 47 (2) & (3) amended to read "What is meant by the expression 'calculated valuation'?" All these relate to positive averments in the Defence of which particulars ought to be given, and they may also throw light on the nature of the relationship between the parties.

16. We allow the appeal in relation to these particular items :- No. 7 - by reason of what is pleaded in paragraph 18 of the Defence, in answer to paragraph 14 of the Amended Statement of Claim, it is clear that the plaintiff's definition of "capital" is in issue, and therefore the meaning of that word in paragraph 20 of the Defence warrants clarification; No. 28 - these are alternative positive allegations of which. particulars ought to be given. Mr. Li has in effect given them orally, but that is not sufficient; No. 44(1) amended to form three parts "(i) How such payments were respectively made; (ii) and if personally, the identity of the person or persons alleged to have made each such payment by or on behalf of Summit; and (iii) if in some other manner, defining the same and identifying any relevant documents." These should be given as they will assist in establishing the relationship, if any, between the plaintiff and Summit; and No. 48 - the rules provide that a matter of this nature shall be pleaded and a mere allegation does not give sufficient particularity.

17. That we hope deals with all matters raised by the appeal and we turn then to the Cross Appeal.

18. We dismiss the Cross Appeal. The request under paragraph 13 is purely a matter of construction. As to the request under paragraph 14, it is already clear from the Reply what case is put forward by the plaintiff.

19. We shall be pleased to hear counsel as to costs.

(1) Ever Finance Ltd. v. Yuen Wai Piu, (unreported) Civil Appeal 53 of 1982

Representation:

Mr. Robert Ribeiro (M/s Deacons) for Plaintiff/Appellant

Mr. Andrew Li (M/s J.S.M.) for Defendant/Respondent