In re Chinascreen Ltd.

1992, MP No.4154

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. On the 24th December 1992, Deputy Judge Chan made a number of orders in favour of the applicant Chinascreen Ltd. including an order for leave to issue committal proceedings against the respondent Mr Layton. However, the formal order was not approved and entered until the 8th March 1993.

2. Pursuant to the leave that was granted, a motion for committal was filed on behalf of the applicant on the 6th January 1993. The motion specifically states that it was issued pursuant to leave granted by Deputy Judge Chan on the 24th December 1992. By a summons issued on the 4th March, as amended yesterday, the respondent seeks inter alia an order to strike out the motion on the grounds that the leave that was granted was not effective until the order made had been drawn up and filed. No point has been taken that the order for leave was not served upon the respondent, for there is no requirement in the rules to do so. However, I do not accept the argument of Mr Keane who appeared for the respondent that the motion is invalid because of the failure to draw up the order for O.42, rule 3(1) of the Rules of the Supreme Court provides that a judgment or order of the court takes effect from the day of its date. Support is also found in two cases cited by Mr Tong, counsel for the applicant, Holtby v. Hodgson [1889] 24 QB 103 and Guardians of the Poor of West Ham Union v. Churchwardens, Overseers, and Guardians of the Poor of St. Matthew, Bethnal Green [1895] 1 QB 662.

3. Mr Keane went on to submit from the bar table as no summons had been issued but without a great deal of enthusiasm that the leave granted by Deputy Judge Chan should be set aside. I would merely say that upon the evidence there was no merit in that submission.

4. A further submission was made by Mr Keane that the filing of evidence of Mr Mayo, a witness in the United States, filed within the last few days was without the leave of the court. Whilst O.52 that relates to the present proceedings does not provide any provision for the filing of additional evidence as compared with O.53 that relates to judicial review, I consider, in my judgment, that the court may under its inherent jurisdiction grant such leave if necessary. Indeed, Mr Tong said he would not, if the hearing proceeds, rely upon that evidence. However, in the circumstances of this case, I shall grant leave to the applicant to file the evidence of Mr Mayo.

5. Mr Keane also sought in the alternative, an order for cross-examination of three witnesses, two of whom, Mr Opperman and Mr Mayo reside abroad. Whilst such an order is a matter for the discretion of the court, and it was opposed by Mr Tong, it would only be in exceptional circumstances that an order would be refused. Here, there are factual matters in dispute that cannot properly be dealt with upon the affidavits and I consider that it is appropriate that an order for cross-examination should be made so that I grant leave to the respondent in this respect.

6. It is quite clear that having regard to the matters raised in argument this morning and the order that I have just made for cross-examination that the motion cannot be heard today. Both counsel in fact indicated that if the case is to be adjourned, the hearing should take place after the trial of the action to which the present allegations relate which would obviate the necessity for the witnesses concerned to travel to Hong Kong on two occasions thereby effecting a saving in costs and time. That appears to me to be an eminently sensible course to adopt.

7. Accordingly, I shall adjourn the motion sine die with liberty to restore and I shall reserve the costs of today's proceedings. There will be liberty to apply for further directions if necessary. I consider that it would be appropriate that further proceedings in this matter be reserved to my list unless, of course, I am unavailable.