CHAN YING WAH v. CHIEF EXECUTIVE AND OTHERS

CACV 215/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 215 OF 2008

(ON APPEAL FROM HCAL NO. 136 OF 2005)

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JUDGMENT

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Hon Lam JA (giving the judgment of the Court):

1.  This is an appeal against the decision of Fok JA on 26 September 2012 on two summonses of the Applicant dated 10 July and 14 September 2012 seeking leave to adduce new evidence for the purpose of this appeal. Fok JA dismissed the summonses on the ground that the Applicant did not satisfy Conditions 1 and 2 of Ladd v Marshall.

2.  Pursuant to Order 59 Rule 14(12), a party can appeal against a determination of a single judge in an application of this nature.  The relevant principle governing such appeal is set out at Hong Kong Civil Procedure 2012, para 59/14/6.  The full court would not exercise the discretion afresh.  In Mok Pak Keung v Wong Ip Ming CACV 78 of 2000, Rogers VP said at para 7,

“When the appeal is thus brought to the Court of Appeal on appeal from a decision of a single judge, what the Court of Appeal is doing is reviewing on appeal the exercise of discretion by the single judge. In my view the same rules apply in that respect as apply to the Court of Appeal in other cases when it is reviewing the exercise of a discretion by a judge. They can be summarised that the Court of Appeal will not interfere with the exercise of a discretion unless it is satisfied that the judge had applied wrong principles of law or had given a wholly erroneous weight to some matters or failed to take into account some other matters or indeed if the judgment was plainly wrong.”

3.  In the present case, the Applicant submitted that Fok JA erred in his application of Conditions 1 and 2.  He also submitted that there are exceptional circumstances in the present case which warrant relaxation of the rule in Ladd v Marshall.

Condition 1: evidence could not have been obtained with reasonable diligence

4.  The Applicant contended that Fok JA failed to have regard to Rules 3 and 6 of the Public Records (Access) Rules 1996 and the refusal of the 3^rd Respondent to supply information requested by him under an application for access to information dated 7 December 2003.  Because of the restriction imposed under Rule 6 and the stance taken by the 3^rd Respondent, the Applicant said he was unable to obtain the relevant evidence before the end of the trial before Hartmann J.

5.  He said he only learnt after the trial that he could obtain documents from the Public Record Office.  It was through that avenue that he, as deposed in his 7^th Affirmation, obtained the documents which he now wishes to adduce as evidence.

6.  But the application of 7 December 2003 was made in respect of different documents from those which the Applicant now seeks to produce.  There is no proper basis for suggesting that the new evidence which the Applicant seeks to produce have been subject to a restriction under Rule 6.  Thus, Rule 6 and the refusal of the 3^rd Respondent in 2003 cannot assist the Applicant.

7.  Fok JA did deal with the point about Rule 3 at paras 16 and 17 of his judgment.  He also gave reasons for coming to his conclusion on Condition 1.

8.  We agree with Fok JA that the Applicant has not satisfied Condition 1.  The real problem he had was his ignorance about the possibility of obtaining documents from the Public Record Office.  But he was legally represented throughout the trial which, as Fok JA noted, had been adjourned several times and fresh evidence was admitted in the course of it.  In such circumstances, such ignorance cannot be regarded as an excuse for not exercising reasonable diligence.

Condition 2: new evidence would probably have important influence on outcome

9.  The Applicant said the new evidence is to show the process leading to formulation of the Ex-Gratia Allowance [EGA] policy and to explain the meaning of the “miscellaneous permanent improvement” [“MPI”] in such policy. 

10.  In his 7^th Affirmation, he explained the significance of the new documents by three categories,

(a)  Documents showing the rationale behind the head of MPI;

(b)  Documents recording EGA being paid for substantial MPIs;

(c)  Documents bearing the description of “and other minor annexures to land” in 1975, 1977 and 1987.

11.  This case is about the EGA policy for termination of licence. The policy document is a Memo dated 16 December 1964.  The question is whether a head of claim under MPI is qualified by the following description in the remarks column so that only minor items can be allowed,

“This item to cover wells, fences and other minor annexure to land not covered under other items in this schedule.”

12.  Fok JA dealt with the relevance of these documents at paras 20 to 22 of his judgment.  We agree with his analysis.

13.  In respect of the rationale for the policy, the Applicant wished to rely on the new documents to contend that the reference to “minor” was to limit the delegated authority of the lower level staff in deciding on compensation under EGA.  He placed strong emphasis on some memos shortly before the issue of the policy document of December 1964.

14.  Having read those documents, we do not think they are of such nature that it could be said they would probably have important influence on outcome.  We do not see any reason why the interpretation of the policy document should depend on what had been said in those memos.  The policy document itself referred to the rationale of the policy in the General Conditions. 

15.  The other document in category (a) is a memo dated 3 January 1977 which put forward a revised version of the General Conditions and Schedule of Compensation.  However, there was no revision on the material parts of the policy for the purpose of this appeal.

16.  As regards documents in category (b), compensation for resumption (in the context of the Crown Lands Resumption Ordinance) should not be confused with what we are concerned in this appeal, viz compensation under the 1964 EGA scheme regarding land occupied under licence.  Though it is accepted by Mr Lam on behalf of the Respondents that there was a similar EGA scheme for resumption of land, counsel pointed out that most of the documents which the Applicant seeks to admit as fresh evidence were calculations in respect of the statutory compensation.  The Applicant can only refer to one document (a memo dated 29 Oct 1984 at p.225-228 of the hearing bundle) with regard to EGA.  He referred, in particular, to some cases where compensation for MPIs exceeded $80,000.

17.  In our view, documents about compensation for miscellaneous permanent improvements in the context of resumption are not relevant.

18.  As regards the memo of 29 Oct 1984, at the highest it established that there were 12 cases in 1982-84 where EGA for MPIs were awarded over $50,000.  Without any details regarding those cases, we do not think the document is of much assistance to the substantive appeal.

19.  We also agree with Fok JA that the documents did not establish that the Government has consistently been paying substantial EGA for MPI in the context of licensed land.

20.  As regards documents in category (c), the long usage of the expression “and other minor annexures to land” in the policy is neither here nor there in relation to the issues that this court has to decide in the substantive appeal.

21.  We see no ground for interfering with the conclusion of Fok JA that Condition 2 is not satisfied in the present case.

Exceptional circumstances

22.  The Applicant submitted that there are exceptional circumstances warranting departure from the strict rule of Ladd v Marshall because the 3^rd Respondent stands to gain from his non-disclosure of material documents. He also commented upon the undesirable consequences of upholding the judgment of Hartmann J.

23.  This court would not embark on the consideration of the merits of the substantive appeal against the judgment of Hartmann J at this stage.  We are only dealing with the summonses for admission of new evidence.

24.  Given our conclusion under Condition 2, there is no basis for suggesting that the 3^rd Respondent has been put in a more advantageous position by withholding material documents.  The new evidence, as discussed above, does not assist the Applicant in his substantive appeal.

Disposition

25.  For these reasons, the appeal is dismissed with an order that the Applicant shall pay the Respondents’ costs, such costs to be taxed if not agreed.