FAIRVIEW PARK PROPERTY MANAGEMENT LTD. v. SUN WAI CHUN

HCA 5782 of 1994

IN THE HIGH COURT OF THE HONG KONG SAR

COURT OF FIRST INSTANCE

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REASONS FOR DECISION

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1. This Action is brought by the Plaintiff Manager of a large estate in the New Territories whereby the Plaintiff sought against the Defendant owner of a house, an injunction that three walls unlawfully removed in breach of the Deed of Mutual Covenant and Estate Rules should be reinstated. The Trial started on 2nd of November 1998 and by day 5, the 6th of November 1998, all the factual witnesses for both sides (some 7 in number) had been called and it remained to hear two experts for the Plaintiff and one expert for the Defendant. The expert engaged by the Defendant is one Bing Choy ("Choy") and the Defendant had filed four factual witness statements made by Choy and one expert report signed by Choy. The unusual situation of Choy being both a factual as well as expert witness was a matter noted and discussed between the Court and Counsel from an early stage of the Trial. On day 4 of the Trial, the Defendant Madame Sun gave evidence which revealed that Choy had been running the whole case for her from the very beginning in 1993 and that she had paid neither Choy nor the Defendant solicitors any money for the proceedings. On day 5 of the Trial, I indicated to the parties that there had been an earlier application by the Defendant's solicitor to cease to act and the material filed therein and what took place at the hearing on the 16th October 1998 might have a relevance to the forthcoming consideration of how to deal with the matter of Choy giving evidence as an independent expert witness.

2. What happened on the 16th of October application by the Defendant's Solicitor to cease to act was that Miss Chung and Choy appeared before me. Choy was the representative of the Defendant Sun. The material filed by the parties (2 Affirmation by Miss Chung and one Affirmation by Choy) and the course of the proceedings indicted an unusual involvement of an "expert" in the conduct and finance of the Defendant's case. The application to cease to act as solicitors was withdrawn at the hearing upon Choy agreeing to pay immediately a certain sum of money to the Defendant's Solicitors.

3. What followed upon the Court on the 6th of November bringing up the matter of the cease to act application was that there was heated debate between Mr. Woo on behalf of the Defendant and Mr. Lam on behalf of the Plaintiff with one side resisting the material being inspected by the Plaintiff and the Plaintiff wishing to see it. This in turn led to Mr. Woo suggesting that the Trial Judge is biased because of his reference to the cease to act material, to Mr. Woo saying that the Trial Judge should withdraw from the Trial and to Choy in open Court shouting to the Trial Judge that the Trial Judge had falsely accused Choy of being guilty of the criminal offence of champerty and maintenance and that he Choy was making an immediate complaint to the Chief Justice against the Trial Judge.

4. In the light of the suggestion by Mr. Woo that the Trial Judge is biased and should therefore withdraw from the Trial, at the invitation of Mr. Lam and with the apparent concurrence of Mr. Woo, I as the Trial Judge gave directions for the proper hearing of the two pressing issues before the Court, namely the application by the Defendant that the Trial Judge should be disqualified from continuing with the Trial Action and the application by the Plaintiff for the cease to act material. I gave direction for the hearing of the Defendant's Motion and the Plaintiff's Summons which included the timing of the filing of the supporting affidavits, the opposing affidavits, the reply affidavits and the skeleton argument in support of the applications. Originally the Motion and the Summons were to be heard on Tuesday, 10th November 1998 but at the special request of Mr. Woo and to accommodate him I amended the time, so that the two applications could be heard on Wednesday the 11th November 1998 and the Trial accordingly adjourned to that date.

5. What then following was a bizarre sequence of events with the following correspondence:-

1. Complaint letter dated 6th November 1998 from Choy to the Chief Justice ("Complaint Letter);

2. Letter dated 7th November 1998 from Hong Lee & Co. to the Trial Judge (received by the Clerk to the Trial Judge at 12.30 p.m.) enclosing copy of the Complaint Letter and copied to the Chief Justice, the Chief Judge, Choy, Madame Sun and Kwan & Chow (without enclosure of Complaint Letter);

3. Fax dated 7th November 1998 from Clerk to the Trial Judge to Hong Lee & Co. (transmitted at 2.00 p.m.) copied to the Chief Justice, the Chief Judge and Kwan & Chow;

4. Fax of 3 pages dated 9th November 1998 from Choy to Hong Lee & Co. copied to the Trial Judge, the Chief Justice, the Chief Judge and Madame Sun (received by Clerk to the Trial Judge at 2.15 p.m. on 9th November 1998);

5. Letter dated 9th November from Hong Lee & Co. to the Trial Judge enclosing copy of a second Fax (2 pages) dated 9th November 1998 from Choy to Hong Lee & Co., which letter was copied to the Chief Justice, the Chief Judge, Choy, Kwan & Chow, Madame Sun and Mr. Hubert Woo (received by Clerk to the Trial Judge at 3.25 p.m. on 10th November 1998).

6. In terms of court documents, the Defendant filed the Motion returnable 11th November 1998 but there was no supporting affidavit by the Defendant and accordingly in relation to that Motion, the Plaintiff did not file any opposing affidavit. In relation to the Plaintiff's Summons for inspection under Order 67 rule 6A, the Plaintiff filed its Affirmation in support (Affirmation of Kwan Tong Hong) on 9th of November 1998 and the Defendant by the 3rd Affirmation of Miss Chung, filed her Affirmation in opposition on 10th November 1998.

7. When this matter resumed on 11th November 1998, there were two issues which required to be resolved before the Trial could continue that day:-

1. Defendant's Motion that the Trial Judge be discharged from continuing with the Trial;

2. Plaintiff's Summons for inspection of the documents and transcripts relating to the Cease to Act application on the 16th October 1998.

8. Mr. Woo on behalf of the Defendant at the outset asked for the Defendant's Motion to be adjourned on the basis that the transcript of the whole Trial would be required for the preparation of the hearing of the Motion and that therefore the Defendant's Motion, the Plaintiff's Summons and the Trial should all be adjourned generally until such time as the Motion could be restored namely some 30 days after the Trial Transcript had been made available to the Defendant. This application to adjourn was opposed by the Plaintiff who wanted to get on with the Trial. The Plaintiff's experts have been standing by since the 6th of November.

9. A proper consideration of the Defendant's request for adjournment of her own Motion must start with the nature of the Motion. In civil proceedings, it is extremely rare to see an application made in the middle of the Trial (in our case more than half way) to have the Trial Judge discharged and for the Trial to start all over again. In the normal course of things, if a Trial Judge overstepped the line of what the law considered permissible and such overstepping resulted in an unfair trial to one party, the recourse is for the Court of Appeal to correct such error on appeal from the Judgment. It is not the practice of our system to encourage or to permit an interim application for a different tribunal. The safe guard is at the end of the process, not in the middle. What the Defendant is seeking is therefore a most unusual and drastic remedy and the Motion must be examined in that light.

10. It was because the proposed application to disqualify the Trial Judge was so unusual that in the interests of all parties, the direction was given on Friday 6th of November 1998 for the proper filing of Affidavits and lodging of skeleton argument. But that course agreed to by Mr. Woo for the Defendant at the hearing on 6th November 1998 was disavowed on Saturday 7th November 1998 at a time when everyone was going away for the weekend, by the Fax dated 7th November 1998 from the Defendant's Solicitor.

11. The reason given for this change of front is that the Defendant required the Transcript of the 5 day Trial and sufficient time to study these transcripts before it could proceed with the application. However, the Defendant's Solicitor and Choy were able to write full allegation letters on 6th, 7th and 9th November 1998 and the Defendant's Solicitor was able to issue the Motion with some 10 grounds without the Trial Transcript. The question on the Defendant's application for adjournment is whether the so called necessity to study the Transcript is essential to the Motion. I do not believe so. Affidavit can and should be filed by the Defendant deposing to the essential particular aspects of the Trial or the conduct of the proceedings which gave rise to each of the particular grounds in the Motion. The Defendant's Affidavit may be opposed in whole or in part by the Plaintiff's Affidavit. There may be a great deal of common ground or there may be some small areas where the conflict of evidence might have to be resolved by reference to either the Trial Judge's notes or the tape of the proceedings but there is simply no good reason why the application desired by the Defendant could not proceed in the absence of the official Trial Transcript.

12. In the course of the argument, the question of what happens in everyday litigation was discussed. It is of course almost unheard of for an application by a party to adjourn its own application on the ground that the party taking out the application is unable to support its own application until the production of the transcript. It is to be noted here that the parties in an action generally have no right to a transcript of the proceedings and it is only on appeal that for the assistance of the Court of Appeal, in addition to the judgment from the court below the Court of Appeal has the added assistance of the Judge's notes of the Trial or in modern days a transcript of the trial approved by the trial judge. The time for the lodging of the Notice of Appeal therefore does not stop merely because a party is waiting for the transcript and in fact without a proper Notice of Appeal there is no reason even for the Court to permit the production of a transcript.

13. This Trial has reached its sixth day and the Plaintiff wishes to have the Trial concluded as soon as possible. The Defendant has made open allegations and has issued the Motion but is unwilling to proceed with the Motion and seeks an adjournment of the Motion and of the Trial. I see no justification for such a course. The Plaintiff has its experts now standing by for a number of days and is extremely anxious and committed to complete this Trial. I am of course not unconscious that in reaching this Decision, it might seem that I am shutting out a complaint of unfairness which requires serious investigation but I am relieved that the nature of our legal system is such that if there is substance in the Motion which the Defendant is not prepared to prosecute now, then there will be a time and place in the Court of Appeal where the Defendant could justify her complaint, if that should ever arise. I therefore refuse the application of the Defendant for the adjournment of her own Motion. So far as the disposal of the Motion is concerned, I order that the Motion be dismissed, rather than withdrawn since the Defendant has objected to that course which I had suggested as being more beneficial to her.

14. I now turn to the Plaintiff's application for inspection of the 3 Affidavits filed in relation to the 16th October 1998 application of Cease to Act. The position in law on inspection of court documents is that a party to an Action is entitled under Order 63 rule 4 to inspect all court documents but that this right is somewhat curtailed by Order 67 rule 6A (which is unique to Hong Kong and not present in the English Rules). The Court has a discretion to permit inspection and the question on the Plaintiff's application is how should I exercise my discretion. In a very helpful submission, Mr. Lam has very fairly submitted (the Defendant in the course of the argument has dismissed the Counsel (Mr. Woo) so that Madame Sun could be said to be at an disadvantage which she chose to inflict on herself at a critical time) that the material sought to be inspected is admissible and relevant for the Plaintiff. Is Mr. Lam right.

15. The Defendant's expert evidence to be adduced by Choy covered several areas such as:-

1. whether the walls removed and erected were structural alterations;

2. whether the alterations would have any adverse effect;

3. whether the building plans produced by the Plaintiff are so inadequate as to affect the right of the Plaintiff to enforce the DMC;

4. whether the alterations made to the house will cause a loss of the plot ratio.

Choy is an important expert witness to the Defendant and as an expert witness in civil proceedings, he is supposed to be independent, objective, unbiased and not assume the role of advocate. (see The Ikarian Reefer [1993] 2 Lloyd's Rep. 69 at 81). From the Trial Bundles it might be said that Choy has played a significant role in the defence of the Action. His exact involvement however remains to be explored and this will have an important bearing in two ways:-

(a) whether the extent of the involvement of Choy was such as to lead the Plaintiff to successfully ask the Court to exclude his evidence completely;

(b) whether the extent of the involvement of Choy was such as to lead the Plaintiff to be able to demonstrate to the Court that no weight should be given to his evidence at all even if such evidence is admitted, on the basis that no Court could safely rely on an expert who is so much an advocate of the Defendant's cause.

The Cease to Act application heard by me on the 16th October contained material which will enable both the Plaintiff as well as the Court to better understand Choy's exact involvement and how the two questions referred to earlier should be decided. I start therefore with the premise that this is not a frivolous application by a party simply to know some irrelevant material about fees. This is a serious application by a Plaintiff who has a substantial and material interest in the documents filed by the Defendant and her solicitors which could have a serious bearing on the progress of the Trial.

16. Once relevance is established, then in the absence of any credible argument on non-admissibility (none was advanced to me), it seems to me that really the exercise of the discretion must proceed on the basis set out by Mr. Lam in his skeleton argument, namely balancing the relevance of the material for the fair progress of the Trial against any possible prejudice which inspection will cause to the Defendant, Madame Sun. In this context, I should emphasise that it is only the prejudice to Madame Sun, the Defendant and not the prejudice to any other person such as the Defendant's Solicitors firm or Choy that I should have regard to. What then is the prejudice to the Defendant by the Plaintiff's inspection. It was suggested in the 3rd Affirmation of Miss Chung that the material was privileged but this cannot be the case as the Defendant and the Defendant's solicitors by their own acts of placing the documents openly in the Court file have given up the privilege. By placing the documents in the Court file and therefore putting them in the open domain, the Defendant had made the material no longer confidential or secret. The Defendant in fact recognised that only one document was considered legally privileged and that is the Advice on Merits of Counsel by Mr. Y.T. Yeung which was referred to in paragraph 8 of the 2nd Affirmation of Miss Chung dated 15th October 1998 and which was therefore deliberately not exhibited to her Affirmation. Further, on the matter of revealing the Defendant's internal view on merits, Mr. Lam has in fact indicated that the Plaintiff is not interested in that aspect and does not wish to rely on anything in the material bearing on that question.

17. It seems therefore to me that in all the circumstances, I should accede to the application of the Plaintiff and I do so order that copy of the three Affidavits (two of Miss Chung and one of Choy) be made immediately available to the Plaintiff.

18. As for the Transcript of what occurred during the hearing on the 16th October 1998, I think it must follow from what I have said that if the Affidavits are revealed to the Plaintiff, then for the sake of completeness and good order the Transcript of the hearing on the 16th October 1998 should also be made available both to the Plaintiff and to the Defendant. The Trial would simply become most unsatisfactory if not impossible, should only part of the material be made available to the Plaintiff.

19. The Plaintiff Summons therefore succeeds and the Defendant's application to adjourn the Motion and the Motion itself fail. I order that the costs of the applications be borne by the Defendant and that these costs should be paid forthwith. In the special circumstances of the case, I exercise my discretion and access these costs under Order 62 rule 9(4)(b) in the gross sum of $133,000.