XCHRX The Commissioner of Customs and Excise v. Golden Science Technology Ltd. and Others

CACV 104/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 104 OF 1999

(ON APPEAL FROM HCMP NO. 6968 OF 1998)

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D E C I S I O N

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Rogers, J.A. :

1. This is an application by the Commissioner of Customs and Excise for an order that there should be cross-examination at a forthcoming appeal which is to take place in less than a fortnight's time and for leave to administer interrogatories. The appeal which is shortly to arise is an appeal from an interlocutory decision of Chung, J.

2. Briefly, the facts of the case are that slightly over a year ago, there was a raid at a CD making factory. As a result of other proceedings, the Customs and Excise Department was forced to bring forfeiture proceedings and these are the proceedings which are now in being.

3. As an interlocutory step in those proceedings, the Respondents have applied for leave to use the machines which had been seized. That order was granted by Chung, J. subject to various safeguards, that is the order which is under appeal.

4. I am told that at the last minute on the application below, an affidavit, which the Customs and Excise regard as being incredible, was filed. The correct course, in those circumstances, was to apply for an adjournment. Possibly the Commissioner could have applied for cross-examination but I have to say that cross-examination at the interlocutory stage is, perhaps, rare but also very often is ineffectual. It is often a good idea not to cross-examine at the interlocutory stage because very often without full discovery and so forth, the matter cannot be completely decided.

5. Apparently, the objections of the Customs and Excise Department as to the admission of that evidence and the application for an adjournment, I know not what, was refused. But there has been no appeal against that refusal nor if there was an application to cross-examine is there an appeal against the refusal to allow cross-examination.

6. Turning to the application to cross-examine. In my view, this is misconceived. This cross-examination is clearly designed to go to the root of the case and to the credibility of the Respondents' witness. The Court of Appeal is not in a good position to assess credibility of witnesses on cross-examination. It seems to me impossible for 3 Judges to decide amongst themselves as to credibility. Each Judge may form a completely different view. It is part of our process that when credibility is assessed by Judges, as opposed to a Jury, it is assessed by one Judge and then that decision may be reviewed on appeal but, of course, in very limited circumstances.

7. I, for my part, sitting as a single judge in the Court of Appeal, would most certainly not order cross-examination before the Court of Appeal. If such an application has to be made, it will have to be renewed in front of the Judges who will be hearing the appeal and if they, in their decision, decide that they are prepared to permit cross-examination, so be it, but I, for my part, would not be prepared to do so.

8. Turning to the application for interrogatories. Again, this goes to the root of the merits of the case. It may well be a suitable case for interrogatories. But Order 26 rule empowers interrogatories to be served at any time. It is not a matter for the Court of Appeal to decide as a decision of first instance. It is very important that the Court of Appeal is, and should be, kept as a body for appeal, to review decisions which have been made, not to make decisions at first instance. I do not say that the Rules of High Court do not permit the Court of Appeal to make orders for interrogatories but the process the Court of Appeal is to look at decisions which other Courts have made. The whole process of the common law is that one Court builds on what the other Court has done. If it were a case that original applications should be made in the Court of Appeal, there would be no purpose in having a Court of First Instance. This Court should only exercise such a power as is being requested here, if it is impossible for the Court of First instance to exercise it.

9. As regards the interrogatories, again, it is not something for me to order. If the Customs and Excise wish to administer interrogatories, no doubt they can do so. If and when the interrogatories are available and application is made to use those on the appeal, so be it.

10. In coming to my conclusion, I will say two things. First, nothing that I have said today in any way affects the merits of this appeal. I have not considered at all the merits of the appeal against the interlocutory order which permits the Respondents to continue operating on machines which have been seized. Secondly, I do not under-estimate one jot the importance of clamping down on piracy. The political pressure which has been put on Hong Kong to introduce legislation designed to eradicate piracy, in particular CDs, has resulted in the legislation which is now being used in the course of these proceedings. I do not under-estimate the importance of enforcing it. But that is not to say that the procedure of this Court can be turned on its head simply for the purpose of trying to clamp down on piracy.

11. For these reasons, I regret this application has to be refused.