JOHN BAPTIST WU v. TSOI KAY AND ANOTHER

CACV 3/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 3 OF 1998

(ON APPEAL FROM HIGH COURT ACTION NO. A 4983 OF 1987)

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J U D G M E N T

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Liu, J.A.:

1. Mr Wu was the sales agent of silk flowers in the European market. He left Hong Kong for Belgium in 1970, working for a spell in restaurants. He was able to set himself up as a sales agent for silk flowers, otherwise known as funeral flowers, the orders for which had to be at low cost and in high volume. His first Hong Kong manufacturer was Win Wah. Apparently, he was not at all pleased with Win Wah and he turned to Good Years, the defendants. He was to receive 15% from his Hong Kong suppliers who would have his 15% commission built into their invoice price. In fact, in 1982, in a Kwun Tong factory, Mr Wu spoke to the Tsoi brothers of Good Years. They came to an arrangement I have described for the exportation of funeral flowers to Europe. The partnership went well to the benefit of both Mr Wu and Good Years, but in 1986, Mr Wu found Good Years at times less than satisfactory and he contacted Lee Wan Fung and Lee Ping Hark of Wah Mei Trading Company (Wah Mei). The Lees were ex-employees of Good Years. Lee Wan Fung had been its Production Manager. Unknown to the defendants, the 1986 All Saints Day orders for Good Years were partly switched over to Wah Mei. It is claimed that the defendants had innocently processed the switched orders. According to Mr Wu, about 25% of the orders were switched, totalling $800,000. There were another $150,000 fresh orders brought by Mr Wu to Wah Mei. At all times during the collaboration between Mr Wu and Good Years, for every sale to Mr Wu's introduced customers, a commission was duly be paid to him by the defendants.

2. In 1986, the defendants heard rumours of Mr Wu's defection. In mid 1986, outside Yip On Industrial Building in Kowloon, the Tsois saw packed export cartons with exterior colour display and shipping marks identical with those in which they shipped to Mr Wu's European customers. The defendants lost no time in contacting Mr Wu in Belgium, who gave a non-committal reply. By a telex dated 10 July 1986, Mr Wu who had previously been evasive admitted his switched patronage over to Wah Mei on the instructions of the European customers. On 3 August 1986, the parties met in Hong Kong, followed by a dinner. Mr Wu confirmed his association with Wah Mei under the pretext that the defendants' shipments had been problematic. Different versions were given for the moods of Mr Wu and the defendants, both at the meeting and the dinner afterwards. Mr Wu told the judge that he agreed with the defendants to stop going to Wah Mei but that he said so simply for not making the evening awkward. In his heart, he said, he had decided on Wah Mei. After the meeting and the dinner, Good Years saw no change in attitude and it called Mr Wu in Belgium on 20 August 1986 but, again, to no avail. Next day, by a letter dated 21 August 1986, Good Years gave Mr Wu a 5-week notice to terminate the Agency Agreement on 30 September 1986 unless Mr Wu would provide them with a formal note of severance from Wah Mei. The call made to Belgium on 20 August 1986 and the letter sent the next day, 21 August 1986, were the last communications until proceedings were instituted.

3. During the subsistence of the Agency Agreement, Mr Wu was paid a 15% commission for the orders placed by his introduced European customers. After mid 1986, Mr Wu found Wah Mei unable to fulfill his commitments and he advised his European customers to return some of the switched orders to Good Years. Mr Wu was disappointed with the commission situation and litigation ensued.

4. In the action commenced in the Court of First Instance, Mr Wu claimed that Good Years had misused confidential information, that is to say, unauthorised use had been made by the Tsois of details of introduced customers imparted to Good Years during the subsistence of the 1982 Agreement. In very broad terms, Mr Wu sued Good Years for wrongful termination of the 1982 Agreement and he insisted on, at least, a one-year reasonable termination notice. A claim was also made for unpaid commission. Mr Wu further claimed damages for unauthorised use of details of introduced customers. A consequential injunction was also sought, restraining Good Years from selling to customers hitherto brought to them by Mr Wu.

5. In their defence, the defendants maintained that there was no express or implied term for the introduced customers of Mr Wu to remain forever his business "property" and that Mr Wu was not entitled to continue to receive commission for sales to these customers after the termination of the 1982 Agreement. Issue was specifically joined with Mr Wu's claim of customers' details as being trade secrets or confidential information.

6. By a counterclaim, the defendants maintained that the 1982 Agreement was determinable at will or by Mr Wu's breach in going over to Wah Mei with respect to the All Saints Day orders for 1986 or by a reasonable notice. The defendants also counterclaimed a return of commissions which had been paid in advance to Mr Wu. The trial took eleven days before Stone, J.

7. On 14 November 1997, preferring the evidence given by Tsoi Kay, the judge dismissed Mr Wu's claims. As to the counterclaim, the defendants succeeded only in their claim for the return of advanced commissions together with interests. From these determinations adverse to the plaintiff, he appeals.

8. There are eight Grounds of Appeal. The last is, briefly stated, an assertion that the plaintiff had no fair trial. It is said that the judge's conduct of the proceedings fell far short of the best traditions of the Judiciary. In a Commercial Court, disputes are or are intended to be expeditiously and efficiently resolved without unnecessary formality. But Lord Hailsham LC once said :

"It is not only important to realise that litigation is an evil; it is also important to realise that neither speed, nor cheapness nor universality are the ultimate ends of litigation. The ultimate end is justice ..." Hansard, H.G. Debates, 5th series, Vol. 465 Col. 1378.

The English Commercial Court celebrated its centenary in March 1995. Our Commercial List has only a recent history but is expected to be run on the same format. In a Practice Direction (Commercial Court) issued by the Lord Chief Justice of England, Lord Taylor, on 28 July 1994, it was stated that "an informal dialogue between the judge and the parties' representatives was seen as an important feature of the court's practice." See Times Law Reports 15 August 1994. However, the functions of counsel must not be positively or actively obstructed. It is always to be remembered that "the very gist of cross-examination lies in the unbroken sequence of question and answer" and that the cross-examiner should not be "prevented from following a preconceived line of inquiry". Jones v. National Coal Board [1957] 2 QB 55 at p.65. Also, an early expressed view of a trial judge may likely affect subsequent evidence. In this case, the judge was vocal and he was heard 1,690 times in the examination-in-chief of the plaintiff. Counsel spoke merely 655 times. In the cross-examination of the plaintiff, after asking 62 introductory questions, the judge spoke 490 times as against the combined 226 times from both defendants. What really matters is the degree and nature but not the frequency of judicial intervention. Basically it is prejudicial interposing which should be avoided. Ultimately, on a complaint being made, the appeal court must consider if the complainant had a fair trial.

9. This case was a case in the Commercial Court with one side unrepresented. A judge sitting in the Commercial Court with parties in person is expected to be even more closely involved, but he must still hold the balance between the contending parties. In this case, the court would appear to have been overzealous and the judge intervened with unusual frequency. The intervention was excessive. But one must not lose sight of the question central to this appeal, and that is: did the plaintiff have a fair trial? A fair trial is a juridical elephant which is plain to see but difficult to describe. One would be best guided by the general feel of the case having regard to the grievances aired.

10. It is quite unnecessary to set out the passages in the transcript for the conclusion I have reached. To these interventions, interspersed with less than apt or sound comments, no real protest was made by the plaintiff, Mr. Wu. He was apparently not overawed by the judge's participation and constantly re-asserted his stance. He seemed to be undaunted in his inquiry made of the judge: "Why are you shouting, Sir?". At all times, he was able to ventilate points with which the judge was unimpressed. Also, as can be seen from the transcript, at no time did counsel find it necessary to voice his concern. Counsel himself was undeterred in his forensic pursuit. He invariably managed to return to and complete his line of questioning, in which the judge seemed to show little interest. On the whole, counsel did not seem to have been unduly deflected. What is more important is that the flow of the evidence and the orderly procession of an adversarial hearing were maintained. Despite all the imperfections, the hearing retained the core features of an impartial trial, albeit that the adjudicator expressed, not infrequently, a lobe-sided view, but these can be and are being made capital of in the other grounds of appeal. In the course of counsel's submissions, I had anxious moments because of these interventions which should be viewed with disapproval, but in the end I am unable to say that counsel had been prevented from adequately and effectively discharging his duties or that the plaintiff has had no fair trial.

11. In explaining the way in which the English Commercial Court did its work to the University Law Society on 18 November 1920, Lord Justice Scrutton observed: "The founders of the Commercial Court said: 'Our object shall be this: Get the parties before us the moment the writ is issued'." See Cambridge Law Journal (1921) Vol I, No.1 p.7. The parties seemed to have paid no heed to this advice. The oral agreement in this case was made in 1982. 1986 saw its alleged breach and termination. The writ in this case was issued in August 1987 but the trial did not take place until 10 years later on 6 October 1997. Any retrial on the terms of an oral agreement concluded 15 years ago cannot assure justice to the parties. For the conclusion I have reached, this court is relieved from having to consider that grim prospect. The last ground fails.

12. Grounds 1 and 2 are based on an alleged wrong evaluation of Mr Wu's credibility and the 1st defendant's credibility. Ground 3 of the Grounds of Appeal complains of wrongful rejection of the alleged express agreement to pay commission on the sales to Mr Wu's introduced customers for all time to, so to speak, the crack of doom. Ground 4 deals with the judge's refusal to treat the identity of introduced customers and contract details as trade secrets or confidential information. Ground 5 raises a claim by the plaintiff for damages on repeat orders.

13. Grounds 1 to 5 are largely credibility questions. Counsel appreciates his difficulties and I am not persuaded that we can properly interfere. The judge was inaccurate regarding the aggregate sum of $6.4 m and he seemed also to have fallen into error in his interpretation of Mr Wu's evidence on the switch of Good Years' 1986 All Saints Day orders to Wah Mei. Mr Wu simply testified that he had been instructed by all the European customers to make a switch but that of the $3 m orders only part were switched. However, the material circumstances were generally not in dispute. Further, in his judgment, at the bottom of page 30 to page 31, the judge spoke of the evidence of Mr Wu on the 1986 switched orders from Good Years to Wah Mei in these terms :

"Mr Wu did not think that Wah Mei was ready for the 'big show', to use his own phrase, and he said that Wah Mei was ill-equipped and was without the requisite number of moulds necessary for large scale production; indeed, in terms of 'switched' orders he persisted with the figure of $800,000 out of the some $3 million worth of orders placed with Good Years, whilst no reference was made as to other, new business. However, this oral evidence did not seem to me to gel with other available documentary material. In the mass of paper placed before the court, there was a separate file containing, in major part, Wah Mei Sales Confirmations and invoices, and a rough calculation by the Court of the figures therein yielded a rounded-down figure of some HK$6.4 million in terms of overall business, within which figure was a sum in excess of $800,000 for the 'switched' All Saints Day 1986 orders; in this connection, Mr Tsoi Kay maintained that this Wah Mei documentation in terms of the 'switched' All Saints Day orders was in fact incomplete, and that other orders that also had been taken away from him and given to Wah Mei were not included in the relevant Wah Mei Sales Confirmations. Be that as it may. Mr Wu did not satisfactorily deal with questions relating to the sheer volume of business he had given to Wah Mei, and although in the circumstances there is perhaps no need to make any specific finding, I mention it at this point because Mr Wu sought to paint an image of himself as an agent abruptly cast adrift by his Hong Kong manufacturer, leaving him no time to reorganise his affairs with another source or sources; indeed, in one outburst he complained bitterly of being, in effect, marooned as the result of Good Years' sudden termination in the letter of 21st August 1986 giving notice effective as at 30th September 1986; as he put it: '5 weeks was too short notice, if they were to terminate [I required] at least one year. I needed to find a new factory.' " (Emphasis supplied).

14. The judge was alive to this possible grey area. In any case, he made no finding and found no necessity for doing so. His conclusion cannot be said to be plainly wrong.

15. Mr Wu had never suggested to the defendants before, by word of mouth or in writing, that the defendants were to be held to what they allegedly agreed in 1982 i.e. not to deal with introduced customers without consent or commission or commission for a year. For Mr Wu's silence or total indifference in the events that followed, it must appear to the judge sitting in the Commercial Court wholly irrational for anyone to suggest these terms as having been so agreed. What is telling is that at the time the plaintiff left for Wah Mei, he never brought up for discussion with the defendants future arrangements such as trade secrets, confidential information or repeat orders for the post-termination period. This was enough for a Commercial Court to find for the defendants. In the end, the judge was virtually driven by what remained of the material undisputed to conclude that no more than a month's notice was necessary and that there were no such agreed terms as alleged by the plaintiff. Nothing like a restraint of trade clause was discussed. The plaintiff was free to change manufacturers from Win Wah to Good Years and to Wah Mei. There was no reciprocity. The defendants themselves felt obliged to serve a notice of termination. A dismissed employee should not take away a list of customers from his former employers but it would be open to him to approach them for orders. See Roberts v. Elwells Engineers Ltd. [1972] 2 QB 586 at p.595B, per Lord Denning, MR. In the absence of any express undertaking, there was no reason why the defendants could not take orders from the introduced European customers. If an agreement or course of dealing so provides, a dismissed agent may claim commission on repeat orders for substantially the same merchandise. Roberts v. Elwells, ibid at p.594B. But the evidence of oral terms was less than cogent and no mention was made of course of dealing. Even when Wah Mei failed to deliver, the plaintiff himself advised the European customers to return to Good Years but without reserving any post-termination commission for himself. He must have regarded himself as having no further tie with or claim on Good Years after his termination. In commercial reality, the judge was right to reach the conclusion in the way he did. Grounds 1 to 5 being credibility questions, on the matters not in dispute the judge's conclusions cannot be, in my view, overturned. Speaking globally, Grounds 1 to 5 cannot succeed.

16. Ground 6 concerns a year's notice. The notice given by the defendants on 21 August 1986 was in these terms:

"Your right of sale in our firm will be terminated on 30th September this year, unless we have formal notice from you that you have terminated all your business dealings with Wah Mei Trading Company."

The plaintiff chose to keep Wah Mei and drop Good Years. He must have had then full confidence in Wah Mei as a good instant substitute for all his needs. The meeting before the letter with the dinner following was the last personal contact between the plaintiff and the defendants. In the circumstances in which the plaintiff left Good Years, no demand could be sensibly made for any or a year's notice. As a matter of fact, he sought no such long notice or any notice from the defendants in response to the defendants' letter of 21 August 1986. The length of a reasonable notice was generally pre-determined by the circumstances prevailing at the time when a contract was made. But the oral 1982 agreement was silent on notice and termination. The plaintiff explained to the judge that he had throughout expected a year's notice of termination for locating a replacement. The year's notice was allegedly envisaged in 1982 for that purpose, but the plaintiff made no and apparently did not need to make any such claim when he was served with the 5-week notice of termination. The plaintiff was content to part company with the defendants after their letter of 21 August 1986 with no pre-conditions, and for the length of a good notice, it was open to the judge to allow only one month. This court cannot interfere.

17. Ground 7 is a ground with reference to orders switched over to Wah Mei and later re-directed to Good Years. As they were orders switched without Good Years' knowledge, the quantities in them could have been completed ready for shipment. In fact, this is what the defendants claimed. There was no evidence that the plaintiff ever liaised with Good Years to reserve commission for himself in any redirected "switched" orders. In his judgment, the judge allowed commission on one re-directed order against an invoice issued prior to the date of termination, 30 September 1986. Five other re-directed orders had invoices sent after 30 September 1986. It is submitted that the judge should also have allowed commission on these five re-directed orders, the invoices of which were issued subsequent to the date of termination, 30 September 1986. The judge did not. It is pressed upon us that an inference should have been drawn by the judge from the date of the plaintiff's letters to the European customers, such as that to GERVIT dated 2 September 1986, that the re-directed orders were placed again with Good Years very soon thereafter before termination, but it is an equally reasonable inference to be drawn from the invoice dates that the re-directed orders were accepted by the defendants only upon issuance or despatch of the respective invoices. After all, orders were switched without notice and goods under the switched orders could have been made ready for shipment. The evidence was that invoices were to immediately precede or accompany shipments. Part of the 1986 All Saints Day orders were switched before shipment and apparently before the issuance of invoices. The switched orders must have been mutually regarded as cancelled, and when they were redirected the defendants would have an option to accept or refuse them. There was no evidence as to precisely when the defendants contractually re-assumed obligation for the re-directed "switched" orders. The judge saw fit to draw an inference of acceptance from the invoice dates, and in my view, he cannot be faulted. Just as in the case of the length of notice, I must decline an invitation to substitute a co-existing inference for the one drawn by the judge. Therefore Ground 7 also fails.

18. For all these reasons, I would dismiss the appeal.

Mortimer, V.-P.:

19. I agree that this appeal must be dismissed. But having with regard to the nature of the grounds advanced in the supplemental notice of appeal, I will add some comments of my own.

The delay

20. The writ in these proceedings was issued on 20 August 1987. The statement of claim was dated the same day. Ten years and six weeks later, 6 October 1997, the action came on for trial before Stone J in the commercial court. The chief issue for his decision concerned an oral agreement made between the parties in informal circumstances in April 1982. There was no contemporaneous documentary support for that agreement which was said by the plaintiff to have detailed commercial terms. The action depended upon some of those terms. Breaches of the agreement were said to have taken place in 1986.

At trial

21. The two defendants appeared in person. The judge heard oral evidence of conversations leading to the agreement which had taken place 15 years before. He heard evidence about the termination which had taken place 11 years before. He was required to resolve issues of fact without the assistance of counsel for the defendants. The judge's task in understanding the evidence and resolving those issues - resting in the mist of time - must have seemed nearly impossible. We have not inquired into the reasons for the wholly unacceptable delay in bringing this matter to trial or into the history of the pleadings. In normal circumstances, such a delay would have been an abuse of process. The pleadings had become so chaotic over those years that in the end the action was tried upon documents which are described as "replacement" pleadings.

22. In his anxiety to understand the evidence, to discard untenable allegations and to reach a just conclusion in the absence of assistance from counsel for the defence, this careful and talented judge intervened much more in the conduct of the trial than he would have done in normal circumstances. But this case was far from normal.

23. At a relatively early stage in this trial which lasted for 11 days, the judge explained to counsel and the parties why he was intervening. He first said at p.170:

"...because I am faced with a situation where I've got no representation on the other side, I've got to look at it hard."

Shortly thereafter he said:

"Mr Leong, SC I pay you the courtesy of simply letting you know where the judge's mind is at because I will do you no service by keeping that to my breast."

To which Mr Leong, SC said he was grateful.

The submissions

24. Mr Alan Leong SC, who appears also on this appeal, contends that the judge went too far. He says that he intervened so much and in such a manner that the plaintiff was deprived of a fair trial. This particular ground of appeal was not advanced until very recently in the supplemental notice of appeal dated 17 July 1998. We commenced the hearing of this appeal yesterday, 22 July 1998. Mr Leong, SC tells us that he was reluctant to advance such a ground without reading the transcript first. For my part, I applaud his care before advancing such a serious ground. But I bear in mind that if this was such an obvious case, I feel that the ground would have appeared in the original notice of appeal in January. Counsel could still abandon the appeal after receipt of the transcript.

25. Mr Leong, SC said at the outset of the hearing that he felt some natural embarrassment about advancing this ground, but we told him that in these circumstances he should not feel embarrassed, having concluded after careful consideration that this ought to be advanced. We said this because the holding of a fair trial is so fundamental. If a party has not had a fair trial because of a judge's interventions this must be advanced firmly and we must consider the matter carefully. We must examine what is shown in the transcript.

26. We find ourselves in this appeal in one respect in the same position as the judge. We do not have the advantage of having the assistance of counsel for the defendants.

27. Mr Leong, SC has given us a rather remarkable statistic. He says that the transcript shows that the judge intervened 1,690 times during the plaintiff's examination in chief whereas counsel asked questions or spoke on 655 occasions. But like all statistics, these figures have the potential to mislead.

28. It has been necessary for this Court to examine the transcript with some care. The transcript shows that most of those interventions were for the purpose of clarification, elucidation or to indicate difficulties with the evidence which the judge thought it right to ventilate early. At times the judge's approach was very robust. He told counsel what he thought of the case. It is right to give some flavour of what he said. As an example I choose a particular passage relied upon by counsel. It appears on p.168 of the transcript. The judge said to counsel:

"... Now, this is a commercial court. I want you to understand. You're not dealing with a Sha Tin court now. I want you to understand that. Now, the fact is, you had Wah Mei. You were told by your main clients to switch. You did. Now, I'm telling you what I've seen so that you can address it, either today or tomorrow - I don't care. But I'm not going to hear this airy-fairy nonsense, 'I may have given them 800,000', when on your own documents, there's 6.4 million, minimum. That's entirely consistent because you've told me that your major clients told them to - told you to switch away from Good Year.

Do you think you can come into this court and say, 'I used them. My commission will stretch into infinity, for as long as I want, and then tell me some cock-and-bull story about $800,000? So I'm taking a good hard look at your case and I'm giving you notice.

Mr Leong, SC, I'm losing interest."

29. Robust indeed, but we must examine the effect of such robust interventions when he was addressing counsel, to explain his thoughts so that counsel could take them on board. In fact, as Mr Leong, SC has told us, the judge may have been in error about the sum of 6.4 million. Mr Leong, SC in consequence examined his witness on that matter with some care and went through the documents. The judge may have remained in error but I will return to that point.

30. So far as this Court is concerned, being robust with counsel is not a matter that we would criticise unless in consequence the trial becomes unfair.

31. On the other side of the coin, one can see other passages, about which complaint is made, which are, in my view, perfectly proper, helpful comments made by the judge when he noticed some omission in the evidence that had been adduced. On p.82 he said this to counsel:

"Court: Well, you seem to have covered everything but the main bit, haven't we? Mr Leong, SC I don't want to be awkward but on my note, at the moment, you case, as I understand it, is based upon the Choi Goodyear not selling to Mr Wu's clients. But I don't seem to have a note of that. Have you dealt with that?

Mr Leong, SC: Yes, very well."

The matter was in consequence resolved.

32. At times the judge expressed firm views about the evidence. It is not necessary to go to those passages. He expressed views about the case and about the credibility of the witness. But having examined the whole transcript, he is not to be criticised for this provided that he remained impartial and did not allow his view to be clouded by what he said. An examination of his judgment demonstrates that he retained his impartiality and did not allow his view to be clouded.

33. Nor is it said by Mr Leong, SC that at any stage when the judge intervened, he either stopped counsel asking questions, or he stopped the witness from giving evidence, although from time to time he did indicate, - fairly strongly -, that the questions were not of great assistance to him. Most of the interventions were interventions which, in the particular circumstances of this case, were justified and helpful.

34. Further, Mr Leong, SC was not able to say that he had been prevented from adducing evidence which he needed, nor was he stopped from cross-examining about matters he wished to ventilate.

35. For my part, I find nothing in the criticism of the judge which leads me to say that this was an unfair trial.

36. I return to a point I mentioned earlier. There was a misunderstanding, apparently by the judge, about the amount of orders which were switched from the defendants to the company, Wah Mei. This was relied upon by counsel. Following answers given by the plaintiff to the judge, it is said that the judge misunderstood the witness. He had added up some figures in the documents and had reached a figure of 6.4 million. But it is said he had duplicated some figures in a way that has been explained. This point was dealt with by the judge in his judgment. He thought the oral evidence, as he put it, "did not seem to me to gel with other documentary material". But that is as far as he went, he made no finding which ultimately could have had any effect upon the result. So, that is not a matter on which this Court should intervene.

Conclusion on the Supplemental Notice

37. In the result, an examination of the transcript and the judgment do not demonstrate that the plaintiff had an unfair trial. In spite of what he said from time to time, the judge clearly remained impartial. His judgment was certainly not clouded. Counsel adduced such evidence as he wanted to adduce. The witnesses were not subdued by the judge's interventions. Of course, there can be no absolute standard. Different cases require different approaches. This case was unquestionably an unusual one for the reasons I have set out. Provided that the trial remains fair, the judge remains impartial, and his judgment is not clouded by descending into the arena, this Court should not intervene. For these reasons I would dismiss the appeal on this ground.

Generally

38. But having said all that, the judge would himself agree in retrospect that in total he intervened too much and his language was not always as dignified as he would have wished. At the same time, we understand the pressures on a judge in his anxiety to do justice and to find the right answer. We would not criticise a judge for intervening when it is required.

39. We remind ourselves that the high standard of justice which judges seek to attain and their concern to find where the truth lies - often in difficult circumstances - may lead them from time to time to exceed the ideal in their robust interventions or in their observations about the case. Some cases call for robust intervention otherwise time is wasted. This may have been such a case. Afterall, the plaintiff was contending "once his customer always his customer" and that he was entitled on the agreement to commission from the defendants in relation to his customers 'forever and a day'. Yet the pleading alleged an implied term that the agreement could be terminated on reasonable notice. I have no doubt that inconsistency troubled the judge and led to some of his interventions.

Practical guidance

40. Turning to more general matters, particularly the high standard we set ourselves. Practical guidance is found in Jones v National Coal Board [1957]2 QB 55. This is beautifully expressed by Lord Denning at p.63:

"If a judge, said Lord Greene, should himself conduct the examination of witnesses, 'he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict': see Yuill v Yuill.

Yes, he must keep his vision unclouded. It is all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth: and the less dust there is about the better. Let the advocates one after the other put the weights into the scales - the 'nicely calculated less or more' - but the judge at the end decides which way the balance tilts, be it ever so slightly. So firmly is all this established in our law that the judge is not allowed in a civil dispute to call a witness whom he thinks might throw some light on the facts. He must rest content with the witnesses called by the parties: .... So also it is for the advocates, each in his turn, to examine the witnesses, and not for the judge to take it on himself lest by so doing he appear to favour one side or the other: ... And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost: ... The judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well."

Later, he said:

"Such are our standards. They are set so high that we cannot hope to attain them all the time. In the very pursuit of justice, our keenness may outrun our sureness, and we may trip and fall."

In this case the judge did not 'outrun his sureness and trip and fall'. It is only when the judge falls so far below those standards that an unfair trial has taken place that we must intervene. But, having said that, in a proper case this Court should intervene without hesitation. So important is the principle.

The remaining grounds

41. So far as the other grounds are concerned, as Liu JA has said, much of the argument in reality goes to questions of credibility. These were for the judge, and for the judge alone. Where it has been demonstrated that the judge may have been in error, those errors were not material to his decision.

42. For the reasons Liu JA has given, I would reject the other grounds of appeal, including those on the length of notice and the commission said to be owing. I agree with both Liu JA and the judge.

A final point

43. Before I leave the matter, I would just add that in all save the last two grounds, the only relief which we could have given would have been to order a new trial. I am not sure how we would have approached this. I am relieved that we do not have to tackle the problem for it may well be said that so much time has passed now since the making of that agreement that no fair trial is possible and that a new trial would have been an abuse of process. But, as I say, fortunately that is not a problem which we have to tackle.

Nazareth, V.-P.:

44. I agree with my Lords that the appeal must be dismissed and with their reasons for that conclusion. My Lords have covered all aspects of the matter and there is nothing I wish to add in relation to grounds 6 and 7. However, in relation to the subject matter of the supplementary notice of appeal and the extent to which the appellant relies upon the matter raised therein, that is his complaints as to the nature and frequency of the judge's interventions, I would add this.

45. There is no specific criteria laid down in relation to interventions by a judge. Perhaps the closest judicial guidance available is that provided in Jones v National Coal Board [1959]2 QB 55. But even in regard to that, the matter must depend very much upon the particular circumstances and the view taken by an appellate tribunal. I, therefore, add these words of my own.

46. The interventions and questions here are said to total 1,690 between pages 37 and 250 of the transcript of the plaintiff's evidence in chief. This is compared to 655 questions and interventions by the plaintiff/appellant's counsel. That, on its face, does suggest an exceptionally large number. However, the matter of whether the scale of intervention was excessive, as my Lords have pointed out, must depend on the circumstances, the context and the nature of the questions and interventions. When those matters come to be examined, it has to be said that they do cast a different light upon first impressions. To an almost overwhelming degree the interventions can be seen to have been of a proper or innocuous nature, primarily to clarify matters in the ordinary way although occasionally going a bit further, perhaps not without justification given the obscure nature of the evidence and the fact that the two defendants appeared in person before the judge.

47. Some of the questions, it has to be said, went further than might be thought to be appropriate in probing the plaintiff's case and version of events, to the extent that it has not without reason been contended before us that they were in the nature of cross-examination.

48. A number of interventions by the judge were made rather forcefully, notably while expressing his scepticism of aspects of the plaintiff's claims and version of events and even credibility. However, the judge did express more than once that this was to enable Mr Leong to deal with those matters. Other interventions clearly must have rendered Mr Leong's task in eliciting evidence and probing the 1st defendant's evidence rather more difficult.

49. Overall, I have to say notwithstanding that the defendants were unrepresented, the judge would have been better advised not to have intervened to the exceptional extent that he did here, if for no other reasons than that he laid open the way for the plaintiff to make his complaints. I say that notwithstanding that the judge's concern seems to me to have been to see where the truth lay without undue delay, and to give the plaintiff and his counsel some indication of his doubts and developing views so that they could be corrected, and at the same time to see that the defendants' case was not overlooked.

50. However that may be, at the end of the day and notwithstanding the somewhat excessive extent of the judge's interventions, I have no doubt that the fairness of the trial was not undermined. The plaintiff himself was certainly not inhibited in presenting his evidence and version of the matter. Far from being inhibited, he even felt free to ask the judge at one stage why he was shouting at him. Counsel for his part was clearly able to fully present the plaintiff's case and to probe the defendants' evidence. Nor do I think that matters at any stage got anywhere near the point that the trial could be said to have been conducted in such a manner as to raise to a real apprehension or perception that the plaintiff was not receiving a fair trial in the sense that justice was not seen to be done.

51. While, therefore, I would not wish to be taken as encouraging or condoning unnecessary or excessive intervention, I have no hesitation in rejecting the plaintiff's complaints of excessive intervention and as to the nature of some of the interventions; in particular they do not provide the plaintiff the support he seeks to derive from them.

52. The appeal is accordingly dismissed.