Lam Choi King v. Yeung Fook Chi and Others

CACV000010/1991

Headnote

When in an "order" not an order: interlocutory appeals

BETWEEN

------------

Coram: Silke, V.-P., Power & Macdougall, JJ. A.

Date of hearing: 9 April 1991

Date of handing down judgment: 3 May 1991

------------------

JUDGMENT

------------------

Silke, V.-P.:

1. On 7th October 1984, Lam Choi King - "the plaintiff" - went to a wood yard operated by Yeung Fook Chi who traded as the Yeung Yat Fat Wood Company - "the 1st defendant" - to buy some wooden planks for his personal use. It is his pleaded case that he was assisted in making his purchase by Hui Kee Yau - "the 2nd defendant" - a casual employee of the 1st defendant.

2. The plaintiff met with an accident when planks fell upon him and he was seriously injured. Those injuries rendered him a quadriplegic. He claims against the occupiers for a lack of duty of care and in negligence and against the Crown - the Attorney General is the 3rd defendant - the wood yard being situated on Crown land, as occupier. The issue between himself and the Crown was: what duties did the Crown owe to the plaintiff and was it in breach of those duties.

3. The trial commenced before Saied, J. on 2nd January 1991. After some preliminary matters Mr. Mills-Owens, with him Mr. Bharwaney assigned by the Director of Legal Aid, opened his case and called the plaintiff and a second witness, Mrs. Yung Wong So Fong. Mrs. Yung, who at the time of the accident was a medical social worker at the United Christian Hospital, was concerned with the personal circumstances of the plaintiff and his family. He was a construction worker with a wife and two very young children and was unable to provide for his family as a result of his injuries.

4. A matter of controversy arose in the course of her evidence from which this interlocutory appeal stems. After the wife of the plaintiff was called as the third witness, the trial was adjourned. That adjournment was, apart from the issue which has been placed before us for our decision, caused by the trial having overrun its allotted time, counsel having commitments elsewhere and the trial judge being obliged to deal with a part heard matter which had been fixed for the following week. A further ten days has been set aside for the resumed hearing.

5. The evidence sought to be adduced from Mrs. Yung was of a visit by her to the site on the 3rd November 1984, and of a second visit she had paid some weeks later, during the course of which she observed the condition of the site. She was said to be able to give evidence as to whether or not there were warning notices. Amongst the particulars of negligence pleaded - and this also impinged on the duty of care owed by the Crown - was the allegation that this site was dangerous and that there was a failure to warn the plaintiff of its dangerous condition. The defendants in turn alleged in their amended defence that the plaintiff had been verbally warned of the dangerous nature of the yard by the 2nd defendant; that danger signs had been placed in different locations in the wood yard; that the plaintiff ignored both of these and an instruction to leave given to him by the 1st defendant.

6. There had earlier been introduced into evidence an agreed bundle. That bundle contained photographs of the general site taken in 1985 and 1989 on behalf of the defendants and, in 1990, on behalf of the plaintiff. The 1985 photographs purported to show the position of six individual warning notices couched in differing terms written in Chinese characters.

7. The plaintiff was examined both in chief and in cross examination as to the presence or non-presence of such warning notices. He denied having seen any. It was his further evidence that the state of the yard on 7th October was different from that shown in the 1985 photographs.

8. Mrs. Yung commenced her evidence by making reference to her visit on 3rd November 1984 and her reasons for it. She was asked when she arrived at the wood yard "did she see anything interesting". At that point an objection was taken by Mr. Faulkner, who appeared for the Attorney General, to her continuing to give evidence of what she saw on 3rd November. He submitted that the state of the premises on 3rd November was not relevant. This was supported by Mr. Ozorio who, on the instruction of the Director of Legal Aid, appeared for the 1st and 2nd defendants at trial. At the hearing before this court, the defendants were represented by Mr. Charles Wong. In answer to the objection Mr. Bharwaney informed the court that the relevance of Mrs. Yung's evidence was, first, whether she had seen any of the warning signs as depicted in 1985 photographs; second, whether she was refused entry at the time of her visit - this in connection with an issue as to whether the plaintiff was visitor or trespasser; third, whether what she saw of the condition of the wood yard on her site visit differed from that shown in 1985 photographs and, if so, to what extent. He suggested that her evidence was relevant to a presumption of continuity in relation to the state of the premises and to the Crown's Knowledge of that state. This Knowledge was alleged to have been imported to the Crown from the very strict squatter control maintained by Squatter Control Offices in the area in which the wood yard was situated.

9. Mr. Faulkner maintained his relevance objection and the judge then ruled. On the transcript of the judge's note which we have before us he prefaced his ruling with the word "Order" (p.161). He upheld the objection on the basis that the court was concerned with "the one particular day and the one particular time of the accident and the state of the wood yard then''. Evidence of that could, he thought, only come from persons who were there at the time or who had gone there on the same day shortly after the accident. He held that the visit of Mrs. Yung on 3rd November could not be said to be so proximate in time to the accident "so as to be able to provide acceptable evidence of continuity or to make her testimony relevant and admissible."

10. The trial judge did not consider any argument based on the fact that the photographs were before the court to assist Mr. Bharwaney because only their production was agreed and not their accuracy and he gave it as his opinion that the evidence which the plaintiff proposed to adduce from Mrs. Yung was not pertinent or relevant to the time of the accident, nor was it sufficiently proximate to it to accurately reflect the true state of the wood yard at that time.

11. On the following day Mr. Mills-Owens, who was absent at the time when submissions were made, informed the court that his instructions were to take the ruling to the Court of Appeal by way of an interlocutory appeal. He felt that this was the most convenient way of dealing with the matter, an adjournment appearing inevitable, for, were the trial to proceed and were the matter eventually to come to the Court of Appeal should the plaintiff lose, it might well be that the Court of Appeal would take the view that the evidence had been wrongly excluded and order a retrial with the consequence of increased and unnecessary costs.

12. Mr. Faulkner questioned the jurisdiction of the Court of Appeal to consider an interlocutory appeal but, as he felt that that only arose were there to be an adjournment of the trial specifically for the purpose of an interlocutory appeal being mounted, which was not the case here, he did hot pursue the point.

13. The evidence of the wife of the plaintiff was to the effect that she had gone to the scene shortly after the accident when her husband was still there. She also was examined from the photographs, in particular the 1985 ones.

14. We would emphasise that at no time was objection taken to any of the witnesses being asked questions in relation to the condition of the yard as shown in any of the photographs.

15. A document entitled "Ruling" was made up which simply stated in the same terms that which the judge had said in giving his ruling in open court. The plaintiff then drew up an "Order" which reads:

"IT IS HEREBY ORDERED that the evidence which the Plaintiff proposes to adduce from PW2 Mrs. Yung Wong So Fong and the use which it is proposed to put it to ought not be admitted or allowed on the oasis that it is not pertinent or relevant to the time of the accident, nor is it so proximate to it as to accurately reflect the true state of the woodyard at that time."

16. Subsequent to the Notice of Appeal being filed on 18th January 1991 two Respondent's Notices were also filed, that of the 1st and 2nd defendants on 1st February 1991 and that of the 3rd defendant on 31st January 1991. In their Respondent's Notice the 1st and 2nd defendants now concede that Mrs Yung should have been permitted to testify as to the absence of warning signs on the premises during her first visit on 3rd November. However, they seek to uphold the ruling of the trial judge as to the rest of the evidence. The Respondent's Notice of the 3rd defendant seeks to uphold the ruling on the alternative basis that the state of the premises after the accident in 1984 and in 1985 was not relevant in the light of the plaintiff's own evidence as to how the accident occurred.

17. This last needs explanation. The 3rd defendant's position is that, while it was pleaded in the Amended Statement of Claim that a stack of planks had collapsed and fallen on the plaintiff while the 2nd defendant was selecting planks for him his evidence was to the effect that he was attempting to hold up some planks while the 2nd defendant extracted from the stack the planks which the plaintiff wished to purchase and that it was the planks which the plaintiff was holding up which became dislodged and fell upon him causing the injury.

18. With respect to the trial judge we think the concession made by the 2nd and 3rd defendants in their Respondent's Notice to be a proper one. Clearly, whether Mrs. Yung did or did not see warning notices on 3rd November had considerable relevance to the issues. Given the pleading that the yard was in a dangerous state and given the course the trial had taken, evidence as to the condition of the yard in November of 1984 would have been equally admissible and relevant. It will be a matter for the trial judge having heard all the evidence - and it is one of Mr. Mills-Owens' contentions that, at the very least, he should have heard Mrs. Yung's evidence de bene esse and ruled if he thought necessary upon its relevance at the end of the trial - to place what weight he thinks fit on the varying descriptions the state of the yard at different times - and the site of the accident - in coming to his findings of fact as to what the conditions actually were. This would be so even if there were a difference, as Mr. Faulkner suggests exists, between the plaintiff's pleaded case and the evidence at trial. But that is not the end of the matter for the real issue for us is: Is this appeal a competent one?

19. Mr. Mills-Owens has drawn our attention to ss.13 and 14 of the Supreme Court ordinance, Cap. 4.

Section 13(2) reads:

"(2)    The civil jurisdiction of the Court of Appeal shall consist of -

Section 14(1) reads:

"14.  (1)    subject to subsection (3) , an appeal shall lie as of right to the Court of Appeal from every judgment or order of the High Court in any civil cause or matter."

20. Neither the rules nor the legislation in Hong Kong require, as is the case in England, the grant of leave for the bringing of an interlocutory appeal. If there is a "judgment" or "order" then there is an appeal as of right without any intervening block. Mr. Mills-Owens submits that, in most cases an effective filter can be provided by a trial judge refusing to adjourn a trial. To this, Mr. Faulkner replies that it would be wrong for a judge, by refusing an adjournment, to erect a clog on the right of appeal for which the legislation does not provide. The issue for us is what is an order and does the ruling here, for want of a better word, fall within the meaning to be attributed to that word.

21. Mr. Mills-Owens, in seeking to persuade us that it does, prays in aid the provisions in English legislation similar in terms to our ss. 13 and 14. In addition he seeks to rely on the English O.59, r.1A which does not figure in the Rules of the Supreme Court in Hong Kong. O.59, r.1A relates to final and interlocutory orders and its sun-rule (2) (a) defines an order as including "a judgment, decree, decision or direction". It is his submission that, while this definition does not exist in Hong Kong, nevertheless, given the use of precisely similar phrases in the main legislation - "judgment or order" - the elaboration of what "order" means in O.59, r.1A(2) (a) has equal relevance to Hong Kong practice. It would, he submits, include the "Ruling" which the judge gave. It is his further contention that in Atkin's Encyclopedia of Court Forms in Civil Proceedings, Vol.1, 2nd Ed., 1984 issue, paragraph 39, p.46 the phrase "judgment and order" is referred to as meaning "a judgment, which includes a decree, is a decision obtained in an action, and every other decision is an order.  Conversely, an order is a direction other than a final judgment." And he has drawn our attention to Onslow v. I.R.C. (1890) 25 QBO 465 and Benson v. Benson [1941] P. 90 for the source of this passage.

22. Onslow was considering the decision of a Divisional court upon a case stated by the Commissioners of Inland Revenue. It was held that the decision was an order and not a judgment and that therefore an appeal to the Court of Appeal must be brought within the twenty-one day time limit applicable to "an interlocutory order or from any order" in a matter not being an action. This also with special leave of the Court of Appeal. The whole issue in Onslow was what timeous provisions in the rules applied, for if it were a judgment in an action the period was 14 days as opposed to 21.

23. Benson v. Benson decided that a direction of the Board of Control set up under the Mental Treatment Act of 1930 was the equivalent of an order under that Act. The husband had brought a petition under the Matrimonial Causes Act 1937 for the dissolution of his marriage on the basis that his wife was incurably insane and had been continuously under care and treatment for a period of at least five years immediately preceding the presentation of that petition. The duration of the period spent by the wife under the direction of the Board of Control in a mental hospital was relevant to the continuous period of five years. The wife had been a voluntary patient for less than five years before the Board made its decision, the effect of which was to extend the treatment period beyond the five year limit and the finding that the decision was an order satisfied the provision of the Act.

24. Mr. Mills-Owens referred us to Cluett H.K. Ltd.t/a Six Continents v. Hercules Knitters Ltd. [1986] HKLR 1112 and Nguyen Ho and Others v. Director of Immigration and the Refugee Status Review Board, Civil Appeal No. 185 of 1990 (unreported) as examples where the courts in Hong Kong have dealt with interlocutory appeals brought in the course of a continuing trial - and both related to the admission of evidence. In neither was the point of what is an order raised or argued. In both the appeal against the judge's decision was dismissed.

25. In another decision of this court, Kwok Man Chan and Others v. Hang Tat Heating System Consultant Company Limited and Another, Civil Appeal No. 164 of 1990 (unreported) in which the judgment of the court was delivered on 7th November 1990 - prior to the decision in Nguyen Ho - the court had considered an interlocutory appeal brought in the course of a lengthy trial. Fuad, J.P., in delivering the judgment of the court in holding that the appeal was incompetent, said at p.4:

26. We accept that an "order", like an elephant, is easier to recognise than to describe. We would respectfully agree with that which was said in Kwok Man Chan that not every ruling made in the course of a trial can be raised to the status of an order.

27. Section 15 of the Supreme Court Ordinance provides for applications to the Court of Appeal for a new trial. Order 59, r.11(2) provides that the Court of Appeal shall not be bound to order a new trial on the ground of improper admission or rejection of evidence unless, in the opinion of the Court of Appeal, some substantial wrong or miscarriage of justice had been thereby occasioned. It is clear that the wrongful admission or rejection of evidence, by itself, is not a ground for the granting of a new trial.

28. While we have sympathy for the plaintiff in the evidential dilemma which faced him - how partially resolved by the concession made by the 2nd and 3rd defendants and not departed from by the Crown - and while in this particular case it was convenient to mount an interlocutory appeal as the trial would necessarily have been adjourned and recommenced at a later date, nevertheless, we find it difficult to hold with Mr. Mills-Owens' submission that the ruling given in the court below amounted to an "order" from which an appeal as of right would lie. A great many of the difficulties which we faced in this hearing have been occasioned by the lack in Hong Kong of the requirement that leave be given to bring interlocutory appeals. We do not accept that it is for a judge to place a clog on the bringing of appeals which, if properly grounded, are by right and are unrestricted by legislation.

29. In the Annual Practice at p.369 20/5-8/12 it is said that, in exceptional circumstances where there is an application for the amendment of pleadings which is substantial or crucial and which, whether granted or refused, will or may affect the final outcome of the action or is likely to be decisive after litigation, the parties be given leave to appeal with the trial judge adjourning a trial for that purpose provided that any such interlocutory appeal be brought with expedition. The commentary goes on that it is undesirable that there should be appeals to the Court of Appeal in the course of the trial of actions. It suggests that it is altogether better that matters of an interlocutory nature should work themselves out in the course of the trial without interlocutory recourse to the Court of Appeal before the facts have been completely determined and the trial concluded. We accept that the editors of the Annual Practice are there considering amendments to the pleadings in a system of litigation which envisages the grant or refusal of leave to bring interlocutory appeals. Nevertheless, we think the views expressed as to the undesirability of interlocutory appeals are apposite to the situation here.

30. We are not prepared to import the wording in O.59 r.1A 2(a) of the English Rules into our Rules and treat it as being a definition, which we should then adopt, of the phrase "judgment or order". In any event even if we did accept Mr. Mills Owens' contention we would still have to decide what is an order.

31. Mrs. Yung's evidence was relevant to one aspect of the many issues which the trial judge will have to decide in this trial. It might, or it might not, be of assistance to him. It cannot in our view be elevated to the status of being "decisive" nor can it be described as "substantial or crucial" to the success or failure of the plaintiff.

32. In the light of that which we have said it may be that the trial judge would wish to reconsider his ruling. That is a matter for him. But we are not persuaded that the ruling was an "order". This appeal is not competent. We would therefore strike it out.

33. In order to save further costs, in handing down this judgment we make an order nisi that there be no order for costs.

Representation:

Richard Mills-Owens, Esq., Q.C. & Mohan Bharwaney, Esq. (D.L.A.) for Plaintiff/Appellant

Charles Wong, Esq. (Wilkinson & Grist) for D1 & D2/ 1st & 2nd Respondents

R. J. Faulkner, Esq. (A.G.) for D3/3rd Respondent