GOLDEN TECH (ASIA) LTD v. PO YUEN (TO'S) MACHINE FACTORY LTD

HCA4517/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.4517 OF 2001

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REASONS FOR DECISION

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1. On 16 March 2004 Master Levy ordered the plaintiff to give security for the defendant's costs in the sum of $500,000 within 21 days. The plaintiff's appeal against that order will be heard on 18 May 2004. This is the plaintiff's application for leave to adduce further evidence in the form of the fourth affirmation of Chan Wing Man, Arthur.

2. The application is opposed on the ground that the plaintiff is seeking thereby to present a new case on appeal. It is also said that leave should be refused because the plaintiff had taken its stand on the evidence before the Learned Master.

3. As was pointed out in Wong Hung Yu v. Wu Ming Fat [2002] 1 HKLRD 555 the court is much more ready to admit further evidence on an appeal from a master's decision than an appeal to the Court of Appeal since an appeal from a master's decision to a judge is by way of rehearing as though the matter was before the judge for the first time. Of course, whether leave should be granted is a matter of discretion and depends on the circumstances of the case.

4. Whilst I must not be taken to encourage parties not to present their case fully before the master, I believe so long as appeals from masters are by way of rehearing, leave to adduce further evidence may be readily granted. An appropriate cost order should be a sufficient deterrent. Thus, if the appeal would not have succeeded without the additional evidence, the successful party may be held responsible for the wasted costs.

5. Whether leave to adduce evidence should be granted must depend on all the circumstances, thus in a suitable case, leave may be granted even when the party seeking leave had taken a stand on the evidence before the master.

6. I believe that to allow interlocutory orders made on the wrong footing to stand may not be conducive to the just and expeditious resolution of litigation. That may be one reason why appeals from masters are by way of true rehearing. Finality in interlocutory proceedings can be achieved by making appeals from judges and above difficult.

7. The fourth affirmation contains materials which are relevant to the exercise of discretion. Since the judge hearing the appeal will be exercising his discretion afresh, I think he should have the benefit of such evidence. If this evidence makes a difference to the outcome of the appeal any prejudice to the defendant can be addressed when costs are considered.

8. For these reasons I have granted leave to the plaintiff to serve and file the fourth affirmation.