KWOK HANG KEI v. QUON HING CONCRETE CO LTD AND OTHERS

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RULING

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Hunter, JA :

1. This is an application by appellants for directions as to the admission of a Note of Evidence which differs from the Note of Evidence taken by the Master, this being an appeal from an assessment of damages in open court by the Master. Regrettably the whole problem arises from the administrative deficiencies of this building, in that although this assessment was conducted in open court, the Master had the benefit of neither shorthand writer nor tape recording system.

2. As a general rule this court is emphatic that it will accept and look at only two types of notes. One is the official note taken by the trial judge; and the other is a note prepared by one or other party to the appeal which is agreed by the other side. Beyond that this court has firmly and consistently declined to go when dealing with disputes as to the detailed terms of witnesses' evidence. The sound practical reason for that is that the court has no means of determining which of the two rival scribes is the most accurate. This approach is consistent with that of the Court of Appeal in England recorded in the case of Thompson v Andrews (1968) 1WLR 777.

3. The peculiarity of this case is if I was to follow and apply that general practice, I would in effect be dismissing this appeal, because the main burden of the Notice of Appeal drafted by Mr Loughran who was present at the assessment is to complain of the Master's conduct and of judicial interventions in the course of the hearing. Not surprisingly none of those is recorded in his note. If therefore his note is to prevail at the hearing there would be no material before the court upon which Mr Loughran can found his argument. I think this court has to treat a Notice of Appeal drafted by counsel who is present at the hearing as a serious and responsible document particularly as is the case here, when it is supported in evidence by a detailed note taken by his instructing solicitor which at least purports to record a number of judicial interventions which perhaps go beyond what might be described as the norm.

4. It seems to me essential in this case to try to device some means by which evidence can be put before the court in support of these matters. It necessarily involves seeking to elicit the respondent's help. That necessarily involves the court putting the respondents' advisers in a position of some embarrassment, which will be not be appreciated I am fear by their clients. They will be asked by the court to participate in the perfection of the evidence witnout which this aspect of the appeal would not leave the ground. Therefore this participation may be said not to be in the personal interests, of the respective clients. On the other hand the only way which the court can put it is that they owe a duty to the court in these circumstances, and a duty to the administration of justice to assist in overcoming the mechanical imperfections of the system in this building.

5. The sequence which I propose to direct is this. First the appellants must bring their various versions together. At the present moment I have a detailed Note of Evidence in Exhibit DNB with comments and additions to that suggested by Mr Loughran in an affidavit made only yesterday. The first thing is that the appellants must make up their minds what is the precise version they wish to put before the court. It will basically be that in Exhibit DNB1,and it may be proper to add to that Mr Loughran's own amendments where he is convinced that those are right, and show them to be his amendments.

6. The second stage is to highlight the passages in that evidence which point to judicial interventions which will be the subject of criticism in.the appeal. It seems to me that it is only that matter which it is proper to bring before the court in this way. I wish to do nothing to encourage drawing attention to minute detailed differences between the way in which this record records a witness's answer and the way in which it is recorded in the Master's note. The real issue here, as I see it in the Court of Appeal; is: did these interventions take place and if so to what extent and in what form?

7. The third stage is to submit that document so highlighted to the respondents for their comments. I would simply invite them that in pursuance of what I conceive to be their duty and in the interests of justice to make their comments upon that document, and particularly to say whether they agree or not that interventions along those lines, or precisely in that form, or with such additions or qualifications as they choose to add, took place. The court will then have their best recollection, and by "their" I mean basically Miss Pinto and her instructing solicitor's best recollection of these events. I say that because I think they are much more likely to remember judicial interventions, than the precise detail of any particular witness's answers.

8. Stage four will then be to resubmit that document to the Master for any further comment he may or may not choose to make.

9. The trial is fixed for the 21st.The timetable which has been accepted by the parties is that the appellants will submit their highlighted document by the end of this week, by the 9th; and the respondent will answer it on or before the 15th, ie Thursday of next week. This will just give time for the documents to be prepared for the trial. I thank both counsel for their assistance in this unusual situation.

10. Mr Loughran suggests further that in addition to this document the Master should be sent a copy of the Notice of Appeal which contains criticisms of himself. With that comment I entirely agree.