TO KAN CHI AND OTHERS v. PUI MAN YAU AND OTHERS

FAMV No. 11 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 11 OF 1998 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV 117 OF 1998)

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D E T E R M I N A T I O N

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Mr Justice Litton, PJ (giving the determination of the Appeal Committee):

1. This application for leave to appeal to the Court of Final Appeal concerns a trial currently taking place in the Court of First Instance before Yam J. That trial had commenced in March 1997 before the late Jerome Chan J and started afresh in March this year before Yam J because of Jerome Chan J's untimely death. It has been going on ever since.

2. In May this year, whilst the trial was into its second month, the plaintiffs caused five subpoenas duces tecum to be issued, directed to five government departments, requiring a total of 32 files and their contents to be produced. Those departments applied through counsel to have the subpoenas discharged on the broad ground that their issue was contrary to established legal principles. Yam J determined the matter against the departments concerned and by his order of 12 May 1998 dismissed the application. The departments appealed to the Court of Appeal against Yam J's order. By its judgment dated 18 June 1998 the Court of Appeal allowed the appeal and ordered that the subpoenas be discharged. The plaintiffs then applied to the Court of Appeal for leave to appeal to the Court of Final Appeal, on the ground that the appeal raised two questions of great general or public importance. By its ruling of 26 June 1998 this application was dismissed.

3. The plaintiffs now renew their application before us, pursuant to s23(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.

4. Two points are taken by counsel for the plaintiffs. They concern (i) the jurisdiction of the Court of Appeal to entertain an interlocutory appeal against Yam J's order and (ii) if such jurisdiction exists, the correctness of the Court of Appeal's judgment in interfering with the trial judge's management of the trial process.

5. As to point (i) there can be no doubt that Yam J's order of 12 May 1998 is an "order" within the terms of s13(2)(a) of the High Court Ordinance, Cap 4. Whilst interlocutory appeals of this nature are to be strongly discouraged - a point which the Court of Appeal recognized - where a trial judge has erred in principle it may be necessary for the Court of Appeal to intervene. Section 13(2)(a) of Cap 4 empowers the Court of Appeal to do that.

6. This brings us to point (ii), whether the Court of Appeal has arguably erred in interfering on a matter of case management by the trial judge, to the extent that the matter should be considered fully by the Court of Final Appeal. As to this, there can be no doubt that the five government departments are strangers to the litigation. What is sought by the subpoenas is wide ranging discovery relating to the contents of 32 files, without any attempt to identify what documents within those files might be relevant to the issues to be tried. This is clearly far too wide.

7. In our judgment the Court of Appeal was right to conclude that the trial judge had erred in principle in allowing the subpoenas to stand; the reasons for so concluding are fully set out in the Court of Appeal's judgment of 18 June 1998, and need not be repeated here.

8. The application is dismissed, with costs.