SUN CHEONG CONSTRUCTION CO LTD v. THE INCORPORATED OWNERS OF KING FU, HO FU, KI FU & KA FU BUILDINGS

CACV 67/2019

[2019] HKCA 488

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 67 OF 2019

(ON APPEAL FROM HCCT NO 27 OF 2010)

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J U D G M E N T

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Hon Kwan VP (giving the judgment of the Court):

1.  On 8 February 2019, we held a rolled‑up hearing of an application for leave to appeal, and, if leave be granted, the hearing of the appeal proper. The question we were concerned with relates to whether nine reports (“the 9 Reports”) prepared by Wong & Cheng Consulting Engineers Limited (“Wong & Cheng”) should be excluded as inadmissible expert evidence in a trial in the Construction List which was to commence on 13 February 2019[1]. The trial judge, Mimmie Chan J, had ruled against the admissibility of the 9 Reports on 28 January 2019 (“CFI Decision”; [2019] HKCFI 236).

2.  At the conclusion of the hearing, we granted leave to the defendant incorporated owners (“the IOs”) to appeal against that decision in respect of the first ground of appeal and, treating the hearing as the appeal proper, allowed the appeal of the IOs and substituted the judge’s order with an order that the 9 Reports are admissible as expert evidence save and except for certain parts in one of the reports as stipulated.  We handed down the reasons for our judgment on 12 February 2019 (“CA Reasons”; [2019] HKCA 167).

3.  On 21 February 2019, the plaintiff contractor, Sun Cheong Construction Company Limited, filed a notice of motion for leave to appeal to the Court of Final Appeal against our judgment.  These four questions are raised as questions of great general or public importance:

“1. Whether as a matter of law a leave to call an expert on an issue granted under Order 38, rule 36 of the Rules of the High Court operates retrospectively to permit or include pre‑existing expert evidence on the same issue to be adduced at trial without the need for separate leave.

2. Whether as a matter of law a leave to call an expert on an issue granted under Order 38, rule 36 of the Rules of the High Court permits or includes pre‑existing expert evidence on the same issue to be adduced at trial without the need for separate leave, when the pre‑existing expert evidence was constituted by the work of expert(s) other than the expert appointed under that leave.

3. Whether as a matter of law a leave to call an expert on an issue granted under Order 38, rule 36 of the Rules of the High Court permits or includes pre‑existing expert evidence on the same issue to be adduced at trial without the need for separate leave, when the pre‑existing expert evidence was constituted by the work of other expert(s) with the personal involvement on the part of the expert appointed under that leave.

4. If the answer to any of the above questions is positive, whether as a matter of law there should be pre-conditions for the admission of the pre‑existing expert evidence at trial.”

4.  The plaintiff also seeks to rely on the “or otherwise” limb, alleging that the effect of the Court of Appeal judgment would enable a party to adduce undisclosed pre‑existing expert evidence thereby taking the other party and the court by surprise, facilitating the proliferation of uncontrolled expert evidence and promoting unfairness.  It was submitted that the court should be persuaded to a position of “considerable unease” at its ruling.  Further, there is a “procedural lacuna” which must be addressed by the Court of Final Appeal.

5.  Pursuant to Practice Direction 2.1, we think it appropriate to determine this application on paper without an oral hearing.  In any event, the plaintiff has indicated that it does not seek an oral hearing unless otherwise directed by the court.

6.  On behalf of the IOs, it was submitted that as judgment in the substantive action is pending, “the way forward” is for this court to wait until the trial judge has delivered judgment, to see whether the plaintiff would wish to proceed with this leave application depending on the outcome of the trial.  The plaintiff however takes a bullish stance.  Even if it succeeds fully or partially at the trial, it would still wish to pursue this application for leave to appeal, so that if it should succeed in this intended appeal in the Court of Final Appeal, “there will be no appeal option for [the IOs]”.  The plaintiff maintains it is “wishful thinking” to say that it may not choose to appeal, and has stated clearly there is no need for this court to withhold disposition of the present leave application until judgment in the substantive action is handed down.

7.  That being the plaintiff’s position, there is no point to defer our determination of the present application.

8.  This is an interlocutory appeal on a procedural issue and concerned case management powers.  It is only in rare and exceptional cases that leave to appeal to the Court of Final Appeal would be granted (CSAV Group (Hong Kong) Ltd v Jamshed Safdar (2007) 10 HKCFAR 629).

9.  In light of the plaintiff’s submissions and the manner the questions are framed in the notice of motion, it is vital to put things in the proper context.

10.  For the circumstances giving rise to the plaintiff’s summons issued less than two months before trial to exclude the 9 Reports, we refer to the CFI Decision, §§1 to 8, 13 to 17 and the CA Reasons, §§2 to 9.  We do not propose to set them out except to mention some salient features.

11.  The 9 Reports were prepared between August 2009 and October 2013, and came into existence before an order was made by the judge on 26 November 2015 giving leave to adduce expert evidence (“the 2015 Order”).  The 9 Reports comprised findings of on‑site examinations by visual inspection, water test and hammer tapping test of the four buildings carried out by the personnel of Wong & Cheng over the years.  They were annexed to Dr Chan’s report prepared in February 2017 and formed the basis of his opinion and conclusions in his 2017 report.  Thus, the 9 Reports contained expert evidence, even though it might be described as factual, which is used to support the opinion evidence in the 2017 report.

12.  As stated by the judge, the effect of her decision in excluding the 9 Reports as inadmissible is as follows:

“To the extent that references are made to the Assessment/Survey Reports in Chan’s Reports, and to the extent that Chan’s expert evidence is purely reliant on hearsay evidence, without his own detailed and expertise analysis and explanation, that will be a question that goes to the weight (if any) to be attached to Chan’s Report, and what value remains of his evidence.”[2]

13.  We differed from the judge and held that the 9 Reports do not constitute hearsay evidence for these reasons:

“Given the nature and extent of the work involved, we think it would suffice in respect of each of the tests carried out that there is evidence from a witness who had personal involvement in the process and could speak to the methodology deployed and the collation of the results.”[3]

14.  We went through the 9 Reports and gave excerpts of the relevant parts showing Dr Chan’s involvement in the tests carried out and the preparation of the 9 Reports[4].

15.  We concluded as follows:

“In light of Dr Chan’s personal involvement in the previous investigations and inspections and the preparation of the 9 Reports, we are of the view that his expert evidence concerning the previous inspections and hammer tapping tests contained in the 9 Reports is admissible under the 2015 Order and no separate leave is required.”[5]

16.  We excluded as inadmissible those parts in one of the 9 Reports in which reference was made to infrared testing which is not within Dr Chan’s expertise[6].

17.  The plaintiff contended that the effect of our judgment is to give “carte blanche” to a party to adduce “retrospective (and by necessary logic prospective) expert evidence at trial, whether already in existence or to be obtained, that they wish without reference to the other party and the court” and hence question 1 was as framed.  That is just not the effect of our ruling, properly understood.

18.  Another complaint is that our finding of Dr Chan’s personal involvement was “imprecise” and “unspecified”, allowing the 9 Reports to be “transformed” as his evidence and facilitating expert evidence to be admitted without going through the court’s vetting and the expert evidence procedural regime.  It was submitted that the questions as framed concern procedural justice, fairness and case management and a decision from the Court of Final Appeal on the “clear meaning and workings of the expert procedural regime” would promote “procedural certainty, fairness and economy”.

19.  There is no substance in this complaint.  As we have indicated to the parties at the rolled‑up hearing, this goes to the quality and weight of the expert evidence (yet to be decided by the trial judge), not its admissibility.  In any event, we are given to understand from the IO’s submissions in this application that the plaintiff chose not to challenge the nature of Dr Chan’s personal involvement in the 9 Reports when he was tendered for cross-examination at the trial.

20.  The plaintiff made a few distinctions which it submitted that this court has failed to draw: that the question framed in the CA Reasons at §2 (whether leave has been granted under the 2015 Order) is different from the IO’s first ground of appeal in the notice of appeal (that the 9 Reports had already been covered by the leave granted under the 2015 Order); that there is a difference between “leave required for the 9 reports” and “leave required for Dr Chan’s own evidence based on the 9 reports”.  We doubt if these are real distinctions, and in any event they are not to the point.

21.  We are not persuaded that the proposed appeal genuinely raised any questions of great general or public importance.  Question 1 is so widely framed that it does not reflect the decision of this court.  Questions 2 and 3 are case specific and fact specific, and do not qualify as questions of great general or public importance.  Question 4 has not been argued at the rolled‑up hearing.  We do not think this is a rare and exceptional case to grant leave to appeal to the Court of Final Appeal in an interlocutory appeal on a procedural issue concerning case management powers.

22.  As for the “or otherwise” limb, we see no basis to exercise our discretion to grant leave.  We fail to see any “procedural lacuna”.  As submitted by the IOs, the precise formulation of expert direction is a matter to be decided upon by the court at first instance in the exercise of its general case management powers to cater for the particular circumstances of a case.  Insofar as the element of surprise or ambush is relied on, this is not a complaint of substance here.  The 9 Reports were disclosed to the plaintiff in February 2016.  The Experts’ Joint Statement, the Plaintiff’s Expert Report and the Defendant’s Expert Reports were all prepared with the knowledge of the 9 Reports.  The plaintiff’s expert agreed with the findings of a number of items in the 9 Reports in the Plaintiff’s Expert Report.  At the pre-trial review on 21 November 2018, the plaintiff confirmed that there was no other interlocutory application.  Its summons to exclude the 9 Reports was issued only on 24 December 2018, returnable on the first day of the trial on 13 February 2019, causing the judge of her own motion to bring forward the hearing of the summons to 21 January and provide a ruling on 28 January before the commencement of trial.

23.  There are no exceptional circumstances to warrant the exercise of discretion to grant leave under this limb.  In any event, we would leave it to the Appeal Committee to decide whether leave should be given under this limb, in accordance with usual practice.

24.  We refuse to grant leave to appeal to the Court of Final Appeal.  Costs of this application should follow the event.  We have considered the statement of costs submitted by the IOs’ solicitors for summary assessment.  We will allow the amount claimed in full and order the plaintiff to pay the IOs costs of $135,900.