LAM CHIT MAN t/a YAT CHEONG ELECTRIC CO v. THE PACIFIC INSURANCE CO LTD AND ANOTHER

[English Translation – 英譯本]
CACV 2795/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 2795 OF 2001

(ON APPEAL FROM HCPI NO. 521 OF 2001)

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BETWEEN

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JUDGMENT

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Hon Woo JA (delivering the judgment of the Court):

Background

1. On 11 September 2001, upon applications by the 1^st Defendant and the Plaintiff, Yeung J made an order to the effect that the Plaintiff was to file and serve, within 7 days of the order, an affirmation setting out further and better particulars of an alleged conversation between the Plaintiff and the solicitor for the 1^st Defendant in which that solicitor allegedly conceded liability to pay damages.  Yeung J was then in fact dealing with an appeal by the Plaintiff against an order made by Master Au-yeung upon applications by the parties.

2. On 27 September 2001, the Plaintiff brought an appeal against the order of Yeung J.

3. On 15 November 2001, the Plaintiff sent a letter to this Court by fax, applying for a transcript of the judgment delivered by Yeung J.  The letter stated that the application was made pursuant to Order 59 Rule 14(12) and Order 68 Rule 1 of the Rules of the High Court.

4. On 29 November 2001, Cheung JA issued the following orders:

(1)        Order 59 Rule 14(12) of the Rules of the High Court does not apply.  The “single judge” under that Rule refers to a judge of the Court of Appeal and not a judge of the Court of First Instance.

(2)        If the trial judge did not give any reason for judgment, the transcript will not show any reason either.  The application is hereby refused.

5. On 30 November 2001, the Plaintiff appealed to this Court against the orders of Cheung JA, and it is this appeal that forms the subject matter of this judgment.  The appeal was also brought pursuant to Order 59 Rule 14(12) and Order 68 Rule 1 of the Rules of the High Court.

The relevant law

6. It is clear from the provisions of Order 59 of the Rules of the High Court that Order 59 only applies to the Court of Appeal.  In the context of Rule 14, the “single judge” under Order 59 Rule 14(12) plainly refers to a single judge of the Court of Appeal.  Order (1) given by Cheung JA is, therefore, absolutely correct.  This notwithstanding, the Plaintiff’s application to this Court on 15 November 2001 can, in our view, be treated as an ex parte application by the Plaintiff to the Court of Appeal, which can properly be made pursuant to Order 59 Rule 14(3).  The reason is that the Plaintiff said that his application to Yeung J for a transcript was refused, and thereafter he applied to the Court of Appeal, and the application was dealt with and refused by Cheung JA.  This appeal is also an ex parte appeal and is correctly brought pursuant to Order 59 Rules 14(12). 

7. This appeal concerns the Plaintiff’s application for transcripts of the judgments delivered by Master Au-yeung and Yeung J.  It is therefore necessary for us to examine the provisions of Order 68 of the Rules of the High Court in order to determine whether Cheung JA legitimately and reasonably refused the Plaintiff’s application.

8. The relevant rules under Order 68 of the Rules of the High Court read as follows:

1. Official shorthand note of all evidence, etc. (O. 68, r. 1)

(1)     In every action or other proceeding in the Court of First Instance which is tried or heard with witnesses, an official shorthand note shall, unless the judge otherwise directs, be taken of any evidence given orally in court and of any summing up by the judge and of any judgment delivered by him, and, if any party so requires the note so taken shall be transcribed and such number of transcripts as any party may demand shall be supplied to him at the charges authorized by any scheme in force providing for the taking of official shorthand notes of proceedings in the Court of First Instance.

(2)     Nothing in this rule shall be construed as prohibiting the supply of transcripts to persons not parties to the proceedings.

(3)    The powers of the Court of Appeal under this Order may be exercised by a single judge of that Court or by the registrar of civil appeals.

2. Evidence when not to be transcribed (O. 68, r. 2)

(1)     If the judge intimates that in the event of an appeal his note will be sufficient, the shorthand note of the evidence need not be transcribed for the purposes of an appeal.

(2)     If the parties agree or the judge is of opinion that the evidence or some part of the evidence of any witness would, in the event of an appeal, be of no assistance to the Court of Appeal, the shorthand note of such evidence need not be transcribed for the purposes of an appeal.

(3)     If any party requires a transcript of any such evidence as aforesaid the charge therefor shall be borne by that party in any event.

3. …

4. …

5. Payment for transcript for poor respondent (O. 68, r. 5)

(1)     Where the judge by whom any such proceeding as is referred to in rule 1 was tried or heard or the Court of Appeal is satisfied that the respondent to an appeal in that proceeding is in such poor financial circumstances that the cost of obtaining a transcript, or a specified part thereof, for the purpose of resisting the appeal would be an excessive burden on him, the judge or the Court of Appeal, as the case may be, may certify that the case is one in which it is proper that the cost of the transcript or that part thereof, as the case may be, should be borne by public funds, and where such a certificate is given the respondent shall not be required to pay the said cost.

(2)     …

[underlining added]

9. The Plaintiff relied on a judgment dated 26 July 2001 in CACV 633/2001, in which this Court explained the provisions of Order 68.  The relevant part of the judgment reads as follows:

9. It can be seen from the aforesaid Order 68 Rule 1 that the plaintiff, being a party to the proceedings, is entitled to apply for a transcript, whether or not in relation to an appeal, but has to pay, pursuant to Rules 1(1) and 2(3), the charges of preparing the transcript.  In our view, Rule 1(1) is not expressly made subject to Rule 2(1) and (2) and is not to be so construed.  In other words, the underlined portion of Rule 1(1), which requires that transcripts be prepared upon request by a party, is not to be displaced or undermined by Rule 2(1) and (2).

10. In that case, this Court concluded that the plaintiff could apply for a transcript but could not be exempted from paying the charges.  The plaintiff in that case is also the Plaintiff in the present case.  Despite the aforesaid judgment, the facts of that case were substantially different from those of the present case.  That case concerned the transcript of a digital recording by the court of the testimony of witnesses at trial (see paragraph 4 of the Judgment).  In the present case, what the Plaintiff applied for is not the transcript of a record of evidence given orally in the court.  Yeung J was dealing with an interlocutory procedure which did not involve any record of oral evidence.  A careful reading of Order 68 Rule 1(1) will reveal that the provision does not apply to any interlocutory procedure which does not involve oral evidence.  The reason is that the proceedings before Yeung J were not proceedings “tried or heard with witnesses”, this being a requisite for Order 68 Rule 1(1) to apply.

11. The issue before Master Au-yeung was whether the Plaintiff was required to provide further and better particulars of the Statement of Claim.  This was also the issue before Yeung J, although he also dealt with the costs order made by Master Au-yeung.  The Master did not have to provide reasons for her decision on the issue, because on an appeal from a Master’s decision, the issue is dealt with afresh by a judge of the Court of First Instance, and this is different from the way in which appeals are generally dealt with by the Court of Appeal.  As far as Yeung J was concerned, the issue before him was a general one, namely whether a party was required to provide further and better particulars of his pleadings so that the opposite party could understand the contents and particulars of the pleadings and consider how to deal with and respond to the pleadings.  In these circumstances, it was not necessary for Yeung J to provide reasons for his judgment: his judgment per se suggested that it was in his view appropriate to require the Plaintiff to provide further and better particulars of the relevant parts of the Statement of Claim.  The Plaintiff’s ground of appeal goes no further than that Yeung J’s judgment is erroneous or improper.  Reasons for judgment are not needed to put forward that ground.

12. Therefore, in our judgment, the Applicant cannot request a transcript pursuant to Order 68 of the Rules of the High Court.  Since the Applicant does not have any valid ground for this appeal and has neither any reason for requesting a transcript nor the right to request it, there is no need for us to address the question of charges of preparing the transcript.  Even if it is necessary to address this question, Order 68 Rule 5 will not apply as the Order only applies to the respondent to an appeal.

Conclusion

13. For the above reasons, this appeal is dismissed.  As this appeal is an ex parte appeal, no order is made as to costs.