MAN WA TONG (suing by its manageress for themselves and others) v. SHIH CHAO JUNG AND ANOTHER

CACV 90/2020

[2021] HKCA 1597

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 90 OF 2020

(ON APPEAL FROM HCA NO. 10388 OF 2000)

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JUDGMENT

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Hon Chu JA giving the judgment of the Court:

The applications

1.  There are two applications before the Court.  Having considered the papers and written submission, we are of the view that it is appropriate to determine them without a hearing on the basis of the written submissions only pursuant to Order 59 rule 14A of the Rules of the High Court, Cap. 4A.  

2.  The two applications are:

(1)  An application made by the 1^st defendant to adduce fresh evidence at the hearing of the appeal; and

(2)  An application made by Sik Chiu Yuet (“Yuet”) applying for an order that the plaintiff serves on him a copy of the notice of appeal filed in this appeal.

The Judge’s decision

3.  This appeal was brought by the plaintiff against the decision of G Lam J (as he then was, “the Judge”) given on 11 March 2020.  The background and the dispute leading to the decision have been set out in [1] to [13] of the decision and will not be repeated here. 

4.  The Judge’s decision concerns two summonses:

(1)  A summons issued by Yuet (“Interpretation Summons”) seeking the court’s directions and interpretation of clause 2 of the settlement agreement made between the plaintiff and the 1^st defendant (“Agreement”) and attached to the Tomlin Order dated 27 October 2016; and

(2)  A summons issued by the 1^st defendant seeking injunctive relief against the plaintiff restraining it from obstructing the Yellow Road[1].

5.  At the hearing of the two summonses before the Judge, the plaintiff was represented by counsel.  The 1^st defendant and Yuet were unrepresented, and they appeared in person and made submissions on the applications.

6.  By his decision handed down on 11 March 2020 (“the Decision”), the Judge concluded that[2]:

(1)  The right of way granted under clause 2 of the Agreement includes the right of vehicular access.  This includes the right to stop vehicles in order to turn them round and to load or unload goods or passengers.  The plaintiff is obliged under the Agreement to keep the Yellow Road clear and free from obstruction for both pedestrian and vehicular access.

(2)  The right of way granted under clause 2 of the Agreement includes the right to park vehicles near the end of the vehicular section of the Yellow Road but (a) the exercise of this right is limited to the residents of Kwun Yam Ngam or Guan Yin Grotto (“Grotto”); (b) there is no right to park vehicles on any part of the Yellow Road that forms the emergency vehicular access (“EVA”)[3] for the Hall of 500 Arhats; and (c) vehicles must not be parked such as to block the road. 

7.  As to the plaintiff’s challenge to the standing of Yuet in the proceedings, the Judge considered (at [14]) that as the 1^st defendant is still living, Yuet could not be said to have succeeded to the licence granted under clause 1 of the Agreement as its legal holder or have become the “1^st defendant” as defined in the Agreement.  For the reasons he gave at [15] and [16] of the Decision, the Judge, however, refused to dismiss the Interpretation Summons and treated the 1^st defendant and Yuet as joint applicants.

8.  The Judge also gave liberty to apply and made no order on the costs of the two summonses.

The plaintiff’s appeal

9.  By a notice of appeal filed on 6 May 2020, the plaintiff seeks to set aside the Judge’s above orders and for orders be made that: (1) “the right of way, as a matter of contractual licence, granted under clause 2 of the Agreement does not include the right of vehicular access;” and (2) “the right of way, as a matter of contractual licence, granted under clause 2 of the Agreement does not include the right to park vehicles on any part of the Yellow Road”.

10.  The plaintiff’s grounds of appeal in the notice of appeal can be summarized as follows:

(1)  the Judge was wrong to hold that Yuet was entitled to seek determination of the issues raised in the Interpretation Summons, or to seek redress from the court; and to allow Yuet to participate in the hearing to make submissions (Grounds 1 to 3).

(2)  The Judge was wrong to construe the right of way granted under the Tomlin Order as an easement on the plaintiff’s land; and the Judge ought to have held that the right of way was a mere contractual licence and the rights conferred on the 1^st defendant was confined to what was expressly provided in the Tomlin Order and the Agreement (Grounds 4 to 6).

(3)  The Judge ought to have held that, in the absence of an express contractual right conferred under the contractual licence and as a matter of construction of the Tomlin Order and the Agreement and the express term of express grant, the grant does not include vehicular access to and from the Grotto through the Yellow Land (Grounds 7 to 9).

(4)  The Judge erred in applying the approach adopted in Moncrieff v Jamieson [2007] 1 WLR 2620, and failed to consider or sufficiently consider that, prior to the Tomlin Order, the Grotto had for decades been used as a Buddhist Temple without vehicular access (Grounds 10 and 11).

Application to adduce fresh evidence

11.  The fresh evidence that the 1^st defendant wishes to adduce consists of:

(1)  An extract from a newspaper, Wah Kiu Yat Po (華僑日報), published on 23 January 1961 (“Item 1”);

(2)  A letter from the Transport Department to Yuet dated 3 June 2020 (“Item 2”); and

(3)  Four letters from Yuet to the plaintiff’s solicitors dated 19 April 2020 and 9, 10 and 11 May 2020 with photographs enclosed (“Item 3”).

12.  The 1^st defendant accepted that the principles in Ladd v Marshall [1954] 1 WLR 1489 apply to her application.  They are that: (i) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (ii) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it needs not be decisive; and (iii) the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

13.  Item 1 is an article reporting on the completion of the Yellow Road.  The 1^st defendant argues that it should be admitted because: (i) the 1^st requirement of Ladd v Marshall does not apply in that this new evidence was occasioned by the plaintiff’s notice of appeal, in which the Yellow Road was described as the “Yellow Land” so as to fit in with the plaintiff’s case of dominant and servient tenements when the subject matter of the dispute has always been the Yellow Road; (ii) the new evidence is consistent with the documents produced at the hearing before the Judge (i.e. invoices, plans and records) relating to the paving of the Yellow Road and the erection of the entrance gate in 1959-1960; and (iii) the new evidence shows that the construction of the Yellow Road had the support of the grand master, Yung Chau (融秋), and the Grotto has uninterrupted use of the Yellow Road in the past tens of years.   

14.  The plaintiff objects to the admission of Item 1 on the ground that it fails to satisfy the 1^st and 2^nd requirements of Ladd v Marshall.  The plaintiff argues that: (i) Item 1 was readily available from public libraries; (ii) whether the disputed area is labelled as Yellow Road or Yellow Land is immaterial; and (iii) Item 1 would not have an important influence on the result of the case as the Judge has “construed the right of way given to the 1^st defendant under the 2006 Tomlin Order on the basis of the Moncrieff case whereby a right of easement was granted”[4].

15.  It would appear from the affirmation and submission made on behalf of the plaintiff that “Yellow Land” and “Yellow Road” mean the same thing, although it has not been explained why “Yellow Land” was used in grounds 7 to 9 and 11 of the notice of appeal while “Yellow Road” was used in other part of the notice of appeal (such as the relief sought on appeal).  In light of the plaintiff’s argument that the difference in terminology is immaterial and irrelevant, we would take it that the use of “Yellow Land” in the grounds of appeal is not intended to carry any implication on the plaintiff’s arguments on appeal.  On this basis, Item 1 is not necessary and will not influence the outcome of the appeal.  It will not be admitted as fresh evidence at the appeal.

16.  Items 2 and 3 can be dealt with together.  They both came into existence, and relate to events that occurred, after the Judge’s decision. 

17.  Item 2 is the Transport Department’s reply to Yuet’s request for assistance to put up notice of the judge’s decision.  The second paragraph of the letter mentioned that staff of the Transport Department noticed during their site visit there was a hanging gate at the part of the Yellow Road near the Hall of the 500 Arhats (近五百羅漢殿外「黃色道路」上設置了吊閘), and drivers were required to register before being allowed to enter the road to go to the Grotto, but pedestrians were not required to do so.     

18.  Item 3 comprises letters written by Yuet complaining that the plaintiff had allowed non-emergency vehicles to park on the EVA, contrary to its counsel’s submissions at the hearing before the Judge that any obstruction of the EVA would render the plaintiff “subject to criminal sanction”. 

19.  The 1^st defendant contends that Items 2 and 3 show that (i) people who are not worshippers and visitors of the Grotto can use the Yellow Road as vehicular access; and (ii) after the hearing before the Judge, the plaintiff has allowed vehicles to park on the EVA, which contradicts the plaintiff’s submissions made to the Judge that the Yellow Road could only be used by emergency vehicles and the use of the Yellow Road by non-emergency vehicles would render the plaintiff liable to criminal sanction.  It is said that Item 3 further shows the plaintiff to have breached the order made by Lisa Wong J on 23 August 2018.

20.  The plaintiff’s written submission (at [15] to [19]) suggests that by Items 2 and 3, the 1^st defendant is seeking to argue that no part of the Yellow Road constitutes EVA, and submits that the 1^st defendant’s argument is flawed and irrelevant.  It argues that it had been established by uncontroversial evidence at the hearing before the Judge that the designation of the Yellow Road as an EVA is a condition for the construction of the Hall of 500 Arhats.  It is also said that non-emergency vehicles are not prohibited from using area designated for emergency vehicular access so long as the EVA can provide safe and unobstructed access to emergency vehicles. 

21.  As for Item 3, the plaintiff says that steps have been taken to tackle unauthorized parking by unknown vehicles on the Yellow Road.  It further argues that even if the parking was authorized by the plaintiff, this would not turn the EVA into a public road. 

22.  Order 59 rule 10(2) of the Rules of the High Court provides:

“The Court of Appeal shall have power to receive further evidence on questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an examiner, but no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.” (emphasis added)

23.  Applying rule 10(2), as Items 2 and 3 relate to matters that occurred after the hearing before the Judge, the Ladd v Marshall requirements do not apply.  The Court has a wide discretion to admit fresh evidence as to matters which have occurred after the trial or hearing.  At the same time, the principle that there ought to be finality in litigation must be borne in mind, and evidence could not be admitted of every change that have occurred since the trial: Mulholland v Mitchell [1971] AC 666. 

24.  The plaintiff submits that the new evidence must substantially affect a basic assumption made at the trial.  We do not accept this is invariably the requirement.  The point is made clear by Lord Wilberforce in Mulholland v Mitchell at 679F to 680B, where it was pointed out that while cases are useful as instances of the exercise of discretion, they should not be generalized into a formula, and that in the end it is a matter of discretion and degree.  His Lordship went on to say:

“Negatively, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judge’s estimate has previously been made. Positively, it may be admitted if some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that courts will allow fresh evidence when to refuse it would affront common sense, or a sense of justice. All these are only non-exhaustive indications; the application of them, and their like, must be left to the Court of Appeal. The exceptional character of cases in which fresh evidence is allowed is fully recognized by that Court.”

25.  We also do not agree with the submission that the 1^st defendant’s purpose of adducing Items 2and 3 is to dispute that part of the Yellow Road is an EVA.  It appears to us that the 1^st defendant is primarily seeking to challenge the correctness of the plaintiff’s submissions made to the Judge. 

26.  In our view, the veracity of the plaintiff’s submissions before the Judge is not the focus of the appeal and does not have a material impact on the issues raised by the grounds of appeal.  We are not satisfied that this is a proper case to exercise our discretion to admit Items 2 and 3 as fresh evidence at the appeal.

27.  For the above reasons, we dismiss the 1^st defendant’s summons to adduce new evidence at the appeal.    

Application for service of the notice of appeal on Yuet

28.  In addition to Yuet’s affirmation leading the application, the 1^st defendant had also made an affirmation and written submission in support of this application.  They contend that Yuet should be served with the notice of appeal because he was bound by the Decision which is the subject matter of the appeal, and Yuet would be deprived of the opportunity to contest the appeal and defend the Decision if he were not served with the notice of appeal. 

29.  In opposing the application, the plaintiff argues that Yuet only says that he is bound by the Decision, and this will not bring him within Order 59 rule 8(1) of the Rules of the High Court, which provides that:

“The Court of Appeal or a single judge may in any case direct that a notice of appeal or respondent’s notice be served on any party to the proceedings in the court below on whom it has not been served, or on any person not party to those proceedings.”

30.  We are unable to accept this submission.  It is plain that Yuet is not named as a party in the action below, and is accordingly not a party to it.  When Yuet said he is bound by the Decision, he was providing the reason for requesting that the notice of appeal be served on him.  After all, both the 1^st defendant and Yuet are acting in person, even if they have not properly phrased the basis of their application, this will not disentitle them to rely on Order 59 rule 8(1).

31.  In our view, given that in this appeal, the plaintiff is challenging the Judge’s treatment of the 1^st defendant and Yuet as the joint applicants of the Interpretation Summons, and that grounds 1 to 3 of the grounds of appeal concern Yuet’s entitlement to seek determination of issues and redress or to participate in the hearing before the Judge, Yuet is entitled to be heard at the appeal.  He should therefore be served with the notice of appeal. 

32.  The plaintiff submits that Yuet cannot be the 1^st defendant’s successor until after the 1^st defendant’s demise, and his interest will only arise until then.  The Judge accepted that Yuet could not be said to have succeeded to the licence granted under clause 1 of the Agreement as its legal holder or have become the “1^st defendant” as defined in the Agreement.  However, for the reasons we gave in the preceding paragraph, this is not a relevant reason not to serve the notice of appeal on Yuet.      

33.  Similarly, we reject as irrelevant the plaintiff’s submission that it is not necessary to serve the appeal documents on Yuet because he is in possession, custody or power of the 1^st defendant’s documents.     

34.  Accordingly, we would order that the plaintiff do within 7 days serve on Yuet a copy of the notice of appeal.

Costs

35.  The plaintiff has succeeded in opposing the summons to adduce fresh evidence while the 1^st defendant and Yuet have succeeded in the summons compelling the plaintiff to serve the notice of appeal on Yuet.  As both sides had filed combined affirmations and written submissions dealing with both applications, we consider it appropriate to make no order as to the costs of the two applications.  And we so order.