XCHRX SO KAM WING AND ANOTHER v. SEAPOWER RESOURCES INTERNATIONAL LTD.

HCA 9811/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 9811 OF 1999

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J U D G M E N T

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1. This is the Plaintiffs' appeal against the order of Master Jones dated 23 March 2000 whereby the learned Master gave leave to the Defendant to file and serve "fresh" evidence in the Defendant's appeal against the summary judgment given by Master Barnes on 24 February 2000. I understand the Defendant's appeal is scheduled to be heard on 3 May 2000. According to Master Jones' order, the Defendant will have until 5 April 2000 to file and serve the "fresh" evidence.

2. At the beginning of the Plaintiffs' appeal, I enquired with Mr Shum for the Plaintiffs whether it would be more convenient for the Plaintiffs' appeal to be dealt with together with the Defendant's appeal. Mr Shum contends it would not. The principal reason for his contention is that if the court should allow the Defendant to use the "fresh" evidence, the Plaintiffs may need to adjourn the Defendant's appeal to deal with it. I do not understand why that should necessarily happen. The Plaintiffs have already taken out an appeal against Master Jones' order. In these circumstances, even if the Plaintiff should later on file an affidavit in reply, they cannot be regarded to have "waived" their rights to challenge that order by responding to the "fresh" evidence. If the Plaintiffs want to put the matter beyond argument, it is open to them to make it clear in the reply evidence (if any) that it is filed without prejudice to their appeal.

3. The reasons why I consider it is more convenient for this appeal to be dealt with together with the Defendant's appeal are as follows.

4. In Core Resources (Far East) Ltd v. Sky Finders Ltd (1992) 1 HKLR 193, Kaplan J considered that leave is needed from the court for a litigant to adduce "fresh" evidence on appeal from the Master to the Judge in chambers. The exercise of that discretion will depend inter alia on whether the "fresh" evidence consists of "some additional documents or another deponent to deal with a matter which should have been dealt with ..... [or] where it is sought to place before the court a completely different defence which it is said arose only after the hearing before the Master."

5. In Jindal Exports Ltd v. Waco Trading Co. Ltd, HCA 15404 of 1999, Deputy Judge Chu considered that the court's discretion should be exercised (among other things) in the light of the explanation (if any) given by the party adducing the "fresh" evidence.

6. Because the Defendant has not yet filed any "fresh" evidence up to now (the time for doing so will expire after 5 April 2000), I do not consider that the court's discretion can be properly exercised at present.

7. Further, it is not Mr Shum's argument that if I should decide in the Plaintiffs' favour in this appeal, this should shut the Defendant out from trying to adduce "fresh" evidence at the time of the Defendant's appeal. This is because if I do so today, it would have to be on the basis that Master Jones has wrongly exercised his discretion in granting leave to the Defendant on 23 March 2000 without requiring the Defendant to give an explanation for adducing the "fresh" evidence belatedly. Thus, even if the Plaintiffs should succeed in their appeal today, they may still face a similar difficulty of whether to respond to the Defendant's "fresh" evidence (which may be filed and served at any time between today and the date of the Defendant's appeal).

8. For the above reasons, I consider it appropriate to adjourn the Plaintiffs' appeal to be heard together with the Defendant's appeal.