Eugene Mah Yau Chim v. C. King Lee and Others
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CACV000016A/1969 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CIVIL APPEAL NO. 16 OF 1969 -----------------
----------------- Coram: Hogan, C.J. and McMullin, J. Date of Judgment: 4 October 1969 ----------------- DECISION ----------------- 1. The parties endeavoured through their counsel to reach an agreement on the apportionment of costs as a result of our decisions on the appeals but they have been unsuccessful in this endeavour and have returned to this court seeking an order as to costs. They are, however, agreed on one point. They estimate, and we would accept, that 1 1/2 days were spent on argument dealing with the applications for the admission of new grounds of appeal and this period should be dealt with and determined separately. 2. Two committal orders were made, one in respect of the first defendant alone and the other in respect of the first and third defendants. It will be convenient for the purpose of our decision to take separately the arguments on each of these orders. The first related to the alleged breach, on the 21st December, 1968, of the injunction granted on that day restraining the removal of certain goods from the premises of the 4th defendant. Our decision on this was based, not directly on the original ground of appeal filed by the first defendant, but on a point which arose out of the additional grounds of appeal although consideration of the counter argument touched on certain elements involved in the original ground of appeal. 3. The additional ground in question claimed that personal service of the injunction was necessary. Mr. Litton for the plaintiff did not seriously contest the argument that personal service was necessary but claimed to meet it by saying that such service could be dispensed with by order of the court and that such dispensation need not be obtained in advance but could be obtained ex post facto in circumstances such as prevailed in the present case. Mr. D'Almada, for the first defendant, claimed that the granting of an ex post facto dispensation would be wrong in any circumstances. He did not dwell on a separate and further argument that even if such a concession could be given in some circumstances it would not be justified in the circumstances of this case but this was implicit and developed almost inevitably from his earlier argument that the injunction as framed and as conveyed to the first defendant by telephone was so uncertain and ambiguous that nobody should be sent to jail for an infringement or alleged infringement of it. In the course of argument on these points our attention was directed to a discrepancy between the first defendant's account of what precisely was said to him on the telephone and an account of the same conversation given by his solicitor although the significance of this discrepancy in the context of the claim for a dispensation was not elaborated. We did not rule on the broad argument that a dispensation could in no circumstances be granted ex post facto but on the narrower basis that, in the circumstances of this case, having regard to the terms of the injunction and the undisputed assertion that the first defendant had asked his solicitor on the telephone for the precise terms of the injunction and the solicitor had replied that these were not yet known to him but would be communicated later, we did not think that it was a case in which a dispensation could or should be granted. Consequently the requirement for personal service had not been satisfied and the appeal succeeded. 4. We need not here recapitulate the problem presented to us by the question whether this point was raised but abandoned in the court below. It was said there, although possibly only in the context of mitigation, that the first defendant thought he was not bound by the order until he had been served with it, but, unhappily, his counsel at the hearing thought this was not a good defence to the application for committal and it was not pursued, although there was a reference to it in the judgment which seemed to leave the point in the air. In effect, the first defendant has been successful on his appeal on what was virtually a new point and a point which if it had been raised and fully argued in the court below might well have made an appeal unnecessary. 5. Mr. Litton adverted to the possibility of an order that the plaintiff should have the costs of the appeal whilst the costs in the court below would be given to the defendant but made it plain that the plaintiff was not anxious to have an order of this kind. He argued instead that his client should retain the benefit of the order in the court below where costs had been awarded to him on a solicitor and client basis. Mr. Litton recognized, however, that if this order remained undisturbed, it would not be appropriate to ask the defendant to pay the costs of his successful appeal and suggested that, instead, there should be no order as to costs on the appeal. 6. Mr. Ching, counsel for the first defendant, on the other hand, maintained that as his client had succeeded, after considerable argument, in the Court of Appeal, he should have his costs both there and in the court below less only the 1 1/2 days devoted to the determination of the question whether this new ground should or should not be admitted for argument. 7. We have carefully considered whether, in such circumstances, the most appropriate order would be to allow the appellant the costs of the hearing in the court below where he should have succeeded if the relevant issues had been raised and determined but to make him responsible for the costs of the appeal or a proportion of them since the need for the appeal was largely due to the failure of his counsel to put these issues to the court below. In making such an order, however, it would be necessary, also, to take account of the arguments advanced at some length before us by the respondent and the issues raised in an unsuccessful effort to persuade us that the order in the court below should be sustained. To the extent to which the appeal was lengthened and extended by such issues it would seem wrong to put this extra burden on the shoulders of the successful appellant. In the circumstances, we think the most appropriate order to make, and, one which belongs to a type that has frequently been made when an appeal is successful on a new point, not argued in the court below, is that each party should bear his own costs both in this court and in the court below in respect of the first order of committal. 8. We turn then to the costs on the appeal against the second order of committal. 9. Here again Mr. Litton has sought to retain the order for costs in the court below whilst submitting that he should also get an order for costs on the appeal. Mr. Ching has sought an order for costs in both courts. 10. Mr. Litton opened his address to us on both committals by saying that he was not concerned to seek from this court or indeed the court below any particular period of imprisonment for the first and third appellants or either of them; that his concern throughout had simply been to uphold the dignity and authority of the court by bringing to its attention what he submitted was a clear defiance of its orders. How far this attitude of objective detachment survived the strains and stresses of argument and contention may be open to question. Certainly, in so far as the second committal is concerned, Mr. Litton spent a substantial portion of the time arguing that the breach by the first and third defendants of the court's order was not a mere technical infringement but was a serious and wanton breach fully deserving of punishment. To this end much time was spent on matters that had little direct relevance to the breach complained of; e.g. the allegation that any difficulty which the defendants might have experienced in seeking out and paying the workmen was entirely due to their own default in not paying those men at an earlier stage when they were readily available; and the contention that the defendants had endeavoured to mislead his client and, indirectly, the court by suggesting that payment for the wigs had not been received and by not disclosing that the bill accepted in payment had been discounted by the Hong Kong and Shanghai Bank. The conduct of the defendants did not emerge from this treatment in colours as repellent as counsel sought to paint it and we have, in our judgment, drawn attention to the apparent desire not so much to ensure payment of the wages as to get the first and third defendants into gaol. The latter found it necessary to come to this court to secure their release and although the plaintiff may not have made a request for any specific term of imprisonment, he clearly devoted much time and effort to advancing considerations directed towards rejecting any such request or and suggestion that the offence was not very serious and ill-intended. These contentions were, to a very great extent, rejected and we do not think it would be appropriate to make the first and third defendants pay the costs of their consideration, analysis and rejection. Moreover, there is, we think, a considerable element of doubt as to whether it was necessary, in all the circumstances, to move for committal in order to ensure the appropriate application of the monies provided by the defendants. 11. In the circumstances we think that on the second committal also the parties should bear their own costs both in this court and the court below. 12. Finally then we come to the costs of the additional grounds of appeal. Since the application for their inclusion was, in its origin, due to the failure of the defendants or their legal advisers to file these grounds at the proper time, the initial costs of this application clearly should be paid by them but the application was strenuously resisted and the arguments arising from this resistance spread over a considerable period. If the costs occasioned by this resistance were to be paid by the successful applicantion then, the more strenuous the resistance and the more points taken unsuccessfully against them the more they would have to pay. This seems unreasonable and could encourage the proliferation of bad arguments. Presumably, a fairer order would be that the costs of the application apart from the arguments should be borne by the first and third defendants but that the costs of the individual issues raised unsuccessfully in opposition to it should be borne by the plaintiff. Orders of this kind were common in earlier days but in the circumstances of this case, such an order would lead to more trouble and expense and possibly much argument before the Taxing Officer, without necessarily producing a result very different from what would follow an order that each party should bear his own costs on this application. Consequently we think that in this instance, also, a fair order to make and one which would avoid further unnecessary trouble and expense is that each party should bear his own costs on this application also. 13. In effect, therefore, our order briefly is that each of the plaintiff, first defendant, third defendant will pay his own costs here and in the court below. 14. The orders in the court below are varied accordingly. Representation: Charles Ching (Philip Remedios & Co.) for the Appellants. Henry Litton (T. S. Tong & Co.) for the Respondent. |