WALTON WAI TAT LI v. EVELYN MAN YORK LI

IN THE COURT OF APPEAL

1997, No. 192
(Civil)

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J U D G M E N T

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Mortimer, V.-P.:

1. Ancillary relief proceedings under ss 4 and 6 of the Matrimonial Proceedings and Property Ordinance are being conducted before Deputy Judge Saunders. The wife believes that the husband will in due course inherit from his father and that then the husband will benefit from family trusts.

2. In considering ancillary relief the judge is required by s7(1)(a) of that Ordinance to have regard to resources which each of the parties to the marriage has - or is likely to have - in the foreseeable future. The husband has apparently indicated that he is not aware of his prospects. So in order to establish part of her case related to resources which the husband is likely to have in the foreseeable future, the wife applied to the judge to issue seven subpoenas to compel witnesses, including the husband's 95-year-old father to attend with relevant documents.

3. The judge considered this application for leave under O32 r7. He examined the evidence those witnesses might give and its effect. He weighed the merits and concluded that he would give leave for one subpoena. He refused leave in relation to five others and adjourned one application.

4. The matter is governed by O32 r7. That is because of s3 of the Matrimonial Causes Rules Cap. 179 which provides that:

"... the Rules of the Supreme Court shall apply with the necessary modifications to the commencements of proceedings in and to the practice and procedure in matrimonial proceedings pending in the High Court or in a District Court. These proceedings are in chambers in the District Court."

5. Order 32 r7 provides:

"(1) A writ of subpoena ad testificandum or a writ of subpoena duces tecum to compel the attendance of a witness for the purpose of proceedings in chambers may be issued out of the Registry, if the party who desires the attendance of the witness produces a note from a judge or from the Registrar or a master, as the case may be, authorising the issue of the writ."

The necessity for the note is the basis upon which the party has to apply to a judge, a master or the Registrar, for leave. This provision for requiring the attendance of a witness in chambers is to be contrasted with the issue of a subpoena for attendance of a witness in court which is issued as of right. Of course, if a subpoena is issued, it is open to the witness to apply to the court to set aside the subpoena if he feels he has good grounds for doing so. The usual grounds are that the subpoena is an abuse of the process.

6. Mr Poll, for the wife, submits that the judge's approach to the giving of leave was wrong. He went into the merits of the evidence that the witnesses may give when he should not have done so. Consequently he refused subpoenas when otherwise he might have granted them.

7. The question which has troubled me is why should a note from the judge be required signifying the judge's leave for the issue of the subpoena for proceedings in chambers whereas in proceedings in open court, the party is entitled to the issue of the writ as of right. The answer to that, I am not able to give with certainty. It may be that the matter is rooted in history and the nature of hearings which used to take place in chambers when it was very unusual, and rarely appropriate to call a witness to give evidence.

8. Be that as it may, Mr Poll submits that a party is entitled to call the oral evidence of witnesses who will assist him in presenting his case as a general right, I accept that at once. So, what is the basis of the Rule? As I see it is simply this. In proceedings in chambers the judge has the duty of filtering an application for a subpoena. But it is only a filter process. He will ask himself such questions as: are the proceedings of such a nature as one would expect evidence to be called? Is this a cause or matter being heard in chambers in which oral evidence is appropriate? Is the application for a subpoena an abuse of process? Provided the answers to such questions are in favour of the applicant, he should give his note and grant leave. That filter process is one in which the judge should not and cannot take it upon himself to decide issues relating to the relevance of any evidence that may be given and its usefulness.

9. Turning to this particular case, it seems to me, therefore, that the judge did go wrong. He conducted a very careful inquiry into the evidence that these witnesses may give and ruled about it. What he should have done was to approach the matter as I have indicated, considering his role as simply to provide a preliminary filter to ensure that these applications are not an abuse of process, and that they relate to a cause or matter in which oral evidence is appropriate.

10. Those questions are not questions for this Court, but in my judgment, the judge's approach was wrong. I would, for my part, set aside his rulings on the applications which he refused. The matter should go back to him so that he could consider the matter in the manner I have indicated.

11. In those circumstances I would allow the appeal and make an appropriate order.

Godfrey, J.A. :

12. I, too, am of the opinion that the rule which requires a note from a judge or master authorising the issue of a subpoena is intended to provide a filter, so that, where it is plain and obvious that the case is one in which it would be an abuse of the process of the court to issue the subpoena, the judge or master can nip it in the bud.

13. In England and Wales, as in Hong Kong, a praecipe for the issue of the subpoena must first be filed in the office from which the subpoena is to issue.

14. There are, however, differences, in England and Wales, between subpoenas to attend proceedings in open court and subpoenas to attend proceedings in chambers. In England and Wales, where the proceedings are in open court, any party may procure the issue a subpoena for the examination of a witness, or witnesses, or for the production of documents, without the leave of the court. (See Form 28 in Appendix A to the Rules of the Supreme Court). On the other hand, a subpoena may not issue to compel the attendance of a witness for the purpose of proceedings in chambers (see Form 29) except with leave; see the Supreme Court Practice, 1997, Vol. 1, 38/14 -19/4.

15. In Hong Kong, the relevant rule is also O.38 r.14. Sub-rule (1) provides for a writ of subpoena to be in Form No. 28 or 29 in Appendix A, whichever is appropriate. As in England and Wales, Form No. 28 is the appropriate form in the case of proceedings in open court and Form No. 29 is the appropriate form in the case of proceedings in chambers.

16. Sub-rule (5) of the local rule, however, is unique to Hong Kong. Sub-rule (5) provides as follows :

"(5) Before a writ of subpoena is issued a praecipe for the issue of the writ must be filed in the Registry together with a note from a judge or master authorizing the issue of such writ and the sum of $500 shall be deposited in the Registry, in addition to any fee payable in respect of such issue, as a deposit in respect of the witness' reasonable expenses; and the praecipe must contain the name and address of the party issuing the writ, if he is acting in person, or the name or firm and business address of that party's solicitor and also (if the solicitor is the agent of another) the name or firm and business address of his principal."

17. So it appears that a note from a judge or master is required here for the issue of a subpoena in the case of proceedings in open court as well as proceedings in chambers. That is different from the practice in England and Wales. But that is not a point which needs further consideration today, since the proceedings with which we are concerned are proceedings in chambers anyway.

18. For my part, I am satisfied that such a note from a judge or master is required in the case before us, where the proceedings are proceedings in chambers. But I agree that the judge or master ought to give such a note authorising the issue of the subpoena unless he decides that the issue of the subpoena would be an abuse of the process of the court. That does not require an inquiry into the value or otherwise of the prospective deponent's evidence.

19. In the result, I agree entirely with the Vice-President and I too would make an order in the terms he has indicated.

20. I would add only this. Some of the subpoenas sought to be issued in the present case appear to be directed, not at a proposed witness by name, but by reference to his office. I do not, for my part, think that is appropriate. I think that the person seeking to issue the subpoena must first ascertain who it is that he wishes to subpoena, and then insert the name of that person in the subpoena before it is served.

Findlay, J. :

21. I agree with nothing to add.

Mortimer, V.-P.:

22. The appeal is allowed. The orders of the judge refusing leave in respect of those applications in which he refused leave are set aside. Those matters are remitted to the judge for his re-consideration.

23. We order that the costs be costs in the cause of the ancillary relief proceedings.