TANG MAN KIT AND ANOTHER v. HIP HING TIMBER CO LTD

CACV 137/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 137 OF 2002

(ON APPEAL FROM HCA NO. 8000 OF 1990)

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REASONS FOR DECISION

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Hon Rogers VP:

1. This action commenced in 1990. It is an action by which the plaintiffs claim possession of land which, on the plaintiffs' case, was let on a yearly tenancy to the defendant. The defendant's defence is that it is entitled to remain on the land by reason of permission which has been given to it on behalf of the plaintiff. Part of the history of this action has already been set out in the judgment of this court of 11 December 2002. The order made by this court on that occasion was that paragraphs 1, 2 and 3 of Madam Justice Yuen's order of 21 December 2001 be set aside, the Notice of Motion amended on 24 May 2000 be dismissed and the matter be remitted to the Court of First Instance. The Court thus ordered the action to proceed.

2. It is to be noted that the arguments raised in the amended Notice of Motion did not relate to issues that arose on the pleadings in the action. The sealed copy of the order made following the appeal was filed on 27 May 2003. That followed an application for leave to appeal to the Court of Final Appeal. That application was heard on 30 April 2003 and the decision refusing the leave to appeal was handed down on 16 May 2003. Subsequently, on 17 July 2003, an application was made to the Court of Final Appeal for leave to appeal. That application was successful and we have the benefit of a transcript of those proceedings.

3. The hearing of the appeal before the Court of Final Appeal was listed for 25 May 2004. However, on 22 April 2004 the acting Registrar of the Court of Final Appeal wrote to the parties raising a concern as to whether the judgment of Yuen J (as she then was) appealed from was an interlocutory judgment or a final judgment in the light of Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co. Ltd & Another (2003) 6 HKCFAR 222. The parties were invited to attend a chambers directions hearing before a single judge to explore how "... if at all possible, the pending appeal can proceed on a firm and unquestionable jurisdictional footing...."

4. The outcome of that directions hearing appears to have been that the parties were directed to be prepared to argue the question as to whether the decision of Yuen J was final or interlocutory and on the substantive merits of the appeal.

5. The appeal before the Court of Final Appeal came on for hearing on 25 May 2004. We do not have the benefit of a transcript of those proceedings however it appears that at the outset of the proceedings the court suggested that the appeal before them should be stood down to enable parties to:

"(i)	file a consent order under section 34B(4)(c) of the High Court Ordinance, Cap. 4; and to then
(ii)	go back to the Court of Appeal (Rogers VP and Le Pichon JA) to invite it to hand down afresh, without hearing further argument, the judgment which it had handed down on 11 December 2002, and to grant leave to appeal."

At the conclusion of that hearing, the resumed hearing of the appeal was fixed for 8, 9 and 10 June with 11 reserved as a precaution.

6. It is clear from the Decision, handed down 2 days later, that although the Court of Final Appeal indicated that there were reasons upon which it might find that Yuen J's judgment was a final judgment, it made no such finding and, importantly, did not set aside the judgment of this court as having been a nullity.

7. It might, therefore, be gathered from the Decision and from the order which was made, that the Court of Final Appeal was disposed to hear the appeal without deciding whether Yuen J's judgment was interlocutory or final. No doubt it was considered that any decision in that regard would not, in itself, assist the parties nor the due disposal of the case. The Court of Final Appeal was looking for a course which it regarded as expedient. Unfortunately, in its effort to find an expedient course the Court of Final Appeal appears to have overlooked the fact that, since this court has given its judgment and the order on that judgment has been perfected, sealed and filed, this court has no jurisdiction to deal with the matter unless it was shown that Yuen J's judgment was final. Moreover, the matter has gone to the Court of Final Appeal. That court has commenced hearing the appeal and has stood over the hearing.

8. It would be fundamentally wrong for any court which has completed its task by hearing a matter before it and making its order to reopen the matter except on grounds where its judgment has to be set aside or, perhaps, where it is possible to make some further order under the slip rule. This court is not aware of any power in this court to deliver any further judgments after its task has been completed and counsel before us did not direct our attention to any. Indeed, it is not clear what status the judgment of 11 December 2002 and any later judgment to be handed down would have. The Court of Final Appeal's endeavour to put itself on what has been referred to as a firm and unquestionable jurisdictional footing cannot be accomplished by asking this court to do something which it has no jurisdiction to do.

9. Whatever the circumstances, this court, when called upon to deliver a judgment will give its fullest consideration to that judgment and to all arguments which are directed towards its judgment being correct. In the present case, if the judgment of 11 December 2002 were to be held to be a nullity, there are clearly reasons for this court to consider the matter again prior to giving any further judgment. There have been arguments raised in the Court of Final Appeal. There are, no doubt, arguments in the cases submitted to that court. Those are documents which this court has, as yet, not seen. There is also a further judgment of another division of this court which bears on some of the matters which have been raised. There have been comments made that this court has not dealt with certain issues. It would be desirable for this court to consider in any further judgment whether it was correct in not dealing with those matters and to explain why it did not do so. And so the matter rests.

10. The matter came before this court on a summons with the marginal note indicating that it had been taken out under section 34B(4) of the High Court Ordinance. The summons was a consent summons of both parties. The orders sought were that:

"1. The appeal be heard and determined by Two Justices of Appeal; and

2. The costs of this application be in the cause of the appeal to the Court of Final Appeal."

11. By a letter written on behalf of the Registrar of the High Court dated 31 May 2004, the attention of the parties was drawn to the difficulties posed by the fact that this court had fulfilled the functions of its office in hearing the appeal and unless and until its judgment and order were set aside, it had no jurisdiction to take any further action in the matter. Furthermore, the parties' attention was drawn to the fact that if this court were in a position of having to deliver a further judgment, it would have to consider the matter properly before handing down any judgment.

12. Subsequently, on 2 June 2004, the parties filed a "Notice of Consent". That referred to the parties giving their consent on the following terms "... the Appeal herein is to be heard and determined by the Court of Appeal with Two Justices of Appeal pursuant to Section 34B(4)(c) of the High Court Ordinance." The notice concluded with a statement that both parties would adopt the arguments previously made in front of the Court of Appeal and that they were intending to present no further submissions. That, as already indicated, is a course which this court is not prepared to sanction.

13. When this matter was called on for hearing, the court raised the question of its jurisdiction to make the orders sought in view of the fact that it had concluded its function in hearing the appeal and the order had been drawn up and entered. It appeared that both parties appreciated the difficulty and at the court's invitation there was a short adjournment so that counsel could consider amongst themselves and with their clients as to what course they wished to adopt.

14. After the short adjournment, counsel informed this court that neither party wished to take the point that the judgment of Yuen J had been other than an interlocutory judgment and that the appeal before this court had been other than an interlocutory appeal. It was said that the parties had consistently treated the matter as being interlocutory and although the question as to whether the matter had been a final decision was raised by the Court of Final Appeal itself, neither party wished to argue that the matter was other than interlocutory. In those circumstances it would seem that if the matter were to proceed in the Court of Final Appeal no point could thereafter be taken by either party that there had been a lack of jurisdiction. The decision on the appeal would not be a precedent and would not be binding on any other party.

15. In those circumstances the application by consent summons was not pursued and neither party wished to apply to set aside the judgment and order of this court on the basis that it was a nullity.

16. I would simply add that whether the Court of Appeal can be duly constituted by 2 judges is dependent on whether the particular appeal is against an interlocutory judgment or order: see section 34B(4). The question of whether any matter is interlocutory or final is thus of some importance. As is acknowledged on both sides the test of whether a matter is final or interlocutory is a question of applying what has been called the application test. That is, of course, a judge made test. It has been referred to in the Shell case referred to above. It is often said to be unsatisfactory, but until there is a change in the law it is important that there is some certainty about its application.

17. In deciding whether a matter is an interlocutory matter or final matter the court looks to see whether the position finally disposes of an issue in the case whichever way the decision goes. The simplest way of determining what are the issues is to make reference to the pleadings. This case has now proceeded for 14 years. In those circumstances it might be assumed that the issues have been pleaded. The issues in a case are defined in the pleadings as they stand, not in some way that they might stand if one or other of the parties had been bolder or better advised.

18. The importance of the matter to the proper functioning of this court can be seen in its practical application. Given the volume of cases which come before this court, there were 404 civil appeals in the 2003 (in comparison to 198 civil appeals in 1990 when this case was first launched) in addition to the 555 criminal appeals the court must make best use of the 8 appellate judges (in comparison to 9 appellate judges in 1990). Indeed, this is emphasised by the fact that of the 404 appeals heard in 2003, 221 were interlocutory appeals. It is thus in the interests of the efficient operation of this court that it applies the application test in a straightforward and easily comprehensible manner.

Hon Le Pichon JA:

19. I agree.