Chan Yiu Wah and Another v. The Hongkong and Shanghai Banking Corporation

Civil Appeal No. 92 of 1986

Courts, practice and procedure – divided opinions in the Court of Appeal

Where an uneven number of Justices of Appeal decide an appeal and, by reason of divided opinions, there is no order that the Court could make by a majority which would modify or affect the judgment given by the trial judge, his judgment will be the judgment of the Court of Appeal so that the appeal is dismissed.

IN THE COURT OF APPEAL

1986, No. 92
(Civil)

BETWEEN

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Coram: Fuad, Kempster & Hunter, JJ.A.

Date: 21^st December 1987

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RULING

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Kempster J.A.:

1.  I have considered the arguments specifically addressed or re-addressed me as the case may be in the extraordinary and unhappy circumstances of the three conflicting judgments of this Court. In the event, I am not persuaded to accept the invitation extended to alter my judgment.

Fuad, J.A.:

2.  Last Saturday, after a hearing which last about 15 days, we delivered our reserved judgments in this appeal. Sadly the Court could not agree. I was for allowing the appeal in its entirety. My Lord Kempster J.A. would have allowed the appeal to the extent of reducing the damages awarded from $375,000 to $250,000, while my Lord Hunter J.A. was for dismissing the appeal.

3.  Counsel asked for an adjournment to consider the unusual situation and we heard arguments today on the order we should make.

4.  Until the enactment of the Supreme Court (Amendment) Ordinance (No. 52 of 1987), which came into force on 10 July 1987, the situation with which we are faced (though extremely rare and, we understand, unheard of either in the United Kingdom or in Hong Kong) was covered by specific provision. Section 34(4) as it then stood applied to both the civil and criminal jurisdiction of this Court, and was in the following terms:

“(4) Subject to subsection (6), where a Court of Appeal consisting of 3 or more judges sits, the judgment or order which is that of the majority of the judges sitting shall be deemed to be the judgment or order of the Court of Appeal, but if there is no judgment or order which is that of a majority of the judges sitting, the judgment or order appealed from shall be deemed to be the judgment or order of the Court of Appeal.”

5.  As a result of the amendments made, this provision is now entrenched in a section which deals only with the criminal jurisdiction of the Court of Appeal and nothing of the kind features in other sections of the Ordinance, as amended, which deal with the civil jurisdiction of the Court.

6.  It has been submitted to us by Mr. Rodway, who appeared for the Banks, that it could not be right where two members of the Court are for allowing the appeal that the appeal should stand dismissed. I fully understand the sense of grievance that the Bank will feel if this happens but I am forced to the conclusion that in all the circumstances there is no alternative but to direct that the order of Mortimer J. shall be the judgment of this Court so that the appeal is dismissed.

7.  I do not know why the Ordinance was amended in the way that it has been. It may be that the legislature thought that specific provision needed only to be made for criminal appeals. Be that as it may, I can conceive of no order that we could make by a majority which would modify or affect in any way the judgment given by Mortimer J.. Indeed, I think it is fair to say that Mr. Rodway saw the difficulties for, apart from submitting that the only fair course would be to make an order allowing the appeal in accordance with the majority opinion of the Court, he was unable to suggest how the order should continue in relation to the only matter which was really before this Court: the quantum of damages.

8.  For these reasons, I would make an order that the appeal be dismissed.

Kempster, J.A.:

9.  I, too, would make a like order relying on what was described by Lord Reed in Kennedy v. Spratt [1972] A.C. 83, at page 99, as an ancient rule.

Hunter, J.A.:

10.  I agree.

Fuad, J.A.:

11.  After hearing arguments from counsel on the question of costs, we have decided that the Respondents shall have the costs of the appeal save in so far as they were occasioned by the Cross-Notice of Appeal in its original form. This is on the basis that the Appellants have not succeeded in persuading the majority of this Court that the damages to be awarded should not exceed the face value of the destroyed $1,000 note.

12.  Mr. Gilbert Rodway, Q.C. and Mr. Michael Bunting (Johnson, Stokes & Master) for Appellant/Defendant.

Mr. Anthony Rogers, Q.C. and Mr. Benjamin Yu (A.C.Y. Tong & Co.) for Respondents/Plantiffs