TSE KWONG LAM v. WONG CHIT SEN AND OTHERS

1966, No. 2102

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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RULING

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1. An unusual situation has developed. I need not rehearse the whole of the background, which goes back a very long way. Suffice it to say that this action was eventually heard on appeal by the Privy Council and one matter was left undecided; that was quantum of damages. The question was remitted by the Privy Council to the Court of Appeal in Hong Kong for the giving of directions as to how that assessment was to be made by a Judge of the High Court. The Court of Appeal, having heard argument, in particular with regard to the number of expert witnesses to be called on matters of valuation, ordered that the number be limited to a maximum of two on each side. The Defendant by counterclaim now wishes for an Order varying that Order of the Court of Appeal so that it might be possible for three expert witnesses to be called. The point has been taken by Mr. Lee for the Plaintiff by counterclaim, that I do not have jurisdiction to vary an Order made by the Court of Appeal. At first blush, that submission would seem to be right particularly since the Order was made after argument and did not, in terms, invest the Judge of the High Court charged with hearing the assessment of damages with any further discretion to make directions in relation to matters covered by the Order of the Court of Appeal. And nothing said to me in argument has persuaded me otherwise. Therefore, I decline to exercise jurisdiction in this matter.

2. I indicate now, as I did at the beginning, that had the parties been prepared to agree that I should have jurisdiction in this matter, I would have exercised it as it seems to me to be right that, in a matter of this sort, it should be open to the Judge hearing the assessment to make further directions as seem necessary.