KWOK MAN CHAN AND OTHERS v. HANG TAT HEATING SYSTEM CONSULTANT CO. LTD. AND ANOTHER

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JUDGMENT

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Fuad, V.-P.:

1. The action out of which this intended interlocutory appeal arises was started by a writ dated 3rd May 1988. I use the word "intended" for reasons which will appear. There has been a change of parties since the action was first instituted; now there are three plaintiffs and two defendants. The 1st and 2nd plaintiffs claim to be the proprietors of a United Kingdom patent registered in Hong Kong in respect of an invention for a certain type of heater and it is claimed that by an assignment in writing the 1st and 2nd plaintiffs assigned their rights in the Certificate of Registration for the patent to the 3rd plaintiff together with the right to sue in respect of acts of infringement occurring prior to the date of such assignment.

2. The plaintiffs aver that the defendants have infringed, and threaten and intend, unless restrained by the Court, to continue to infringe the privileges and rights in the manner set out in the Particulars of Infringement served with the Statement of Claim. They claim an appropriate declaration regarding that patent, injunctions and other ancillary relief.

3. The Defence is that at all material times the patent was invalid for the reasons set out in the Particulars of Objections. They say in their Defence that the acts complained of do not constitute an infringement and that in any event they rely on invalidity. They deny loss and damage. They counterclaim for a declaration that the patent in question is and always has been invalid. Alternatively, that no exclusive privileges or rights in respect of the relevant Certificate of Registration have been acquired by the plaintiffs.

4. In the Reply and Defence to the Counterclaim it is averred, after issue is joined, that the patent is not and has never been invalid either for the reasons set out in the Particulars of Objections or at all, and there is a particular plea about the assertion of invalidity on the grounds of obviousness.

5. The trial of the action began before Deputy Judge Perrior last month, and on the fourth day of the hearing (25th October) while the first witness called by the plaintiffs was giving evidence, as a result of something that Mr. Andrew Liao for the plaintiffs had said in his opening on the first day, Mr. Anthony Rogers, appearing for the defendants, rose and stated that he would object if the plaintiffs were to run a positive case of forgery and perjury in the light of their pleadings as they then stood. The learned Deputy Judge responded to this intervention and it is from his response that this intended appeal arises. We are told that yesterday was the eleventh day of the hearing of the action. The hearing was riot adjourned on 25th October after Mr. Rogers had made his point and the Deputy Judge had responded; it was merely interrupted this morning to enable the matter before us to be heard. We are also told that the hearing has about two weeks left to run.

6. The Order sought to be appealed against, as approved by the parties, and filed, is in the following terms:

7. Soon after Mr. Liao began to open the appeal, this Court raised the question whether the appeal was rightly brought. As we know, section 13 of the Supreme Court Ordinance, Cap.4, in subsection (12) states:

And the complementary section, section 14(1), provides that subject to certain other provisions, an appeal lies as of right to the Court of Appeal from every judgment or order of the High Court in any civil cause or matter.

8. The word "order" is not defined in the Supreme Court Ordinance; nor is it defined in the Rules of the Supreme Court. I accept that it has a very wide meaning but it cannot be that every decision taken or ruling made by a judge during the course of a trial can be raised to the status of an order. The fact that the parties have agreed to the drawing up and filing of a document headed "Order" does not take the matter any further.

9. I accept that it might well have been convenient to have the matter sought to be raised by Mr. Liao determined by the Court of Appeal before the conclusion of the trial of the action so that he could be certain how to conduct his case and in order to save costs, but I am not persuaded that what the judge said on 25th October, although later dressed up (if I may so call it) in the form of an order, is an order as contemplated by either section 13 or section 14 of the Supreme Court Ordinance. I will not be so presumptuous as to attempt to define what type of ruling or decision is embraced in the word "order" in those sections of the Ordinance. An "order" is provably easier to recognise than define. I will only say that in my judgment it is perfectly clear that the pronouncement upon which this intended appeal is found is not such an order. I would, therefore, strike out this appeal as incompetent.

Penlington, J.A.:

10. I agree with the ruling by the learned Vice President that this is not an appealable order. It is a matter, perhaps, of interest to that under the new O.59, r.1A in England, an order is defined as "a judgment, decree, decision or direction", and at first sight that very wide definition would perhaps include the decision made by the trial judge here. However, on perusal of the very detailed list of orders in O.59, r.1A, both final and interlocutory, I am unable to see that this particular order would fall within any of the categories there set out. O.59, r.1A is not in force in Hong Kong but it is some indication that the decision or ruling here would not be regarded as an "order" in England.

Macdougall, J.A.:

11. I agree with my Lord the Vice President and for the reasons that he has given that this appeal should be struck out as being incompetent.