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

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 117
(Civil)

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J U D G M E N T

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Nazareth, V.-P.:

1. This is an application for leave to appeal to the Court of Final Appeal. It is made by the plaintiffs. A short, if over simplified, outline of the background is of assistance in addressing the grounds relied upon. The 2nd plaintiffs, i.e. the To Clan in the New Territories made claims to certain properties, part of which are occupied by a temple, the rest are said to be used by the temple in associated activity. All of these are said to belong to the Tsing Wan Kun, a sort of religious trust. It is the latter aspect that brought in the Secretary for Justice and her predecessor in their capacities of protectors of public charities or technically representatives of the SAR as parens patriae to protect the rights or claims of the Tsing Wan Kun as a public charitable trust.

2. The 1st defendant Pui Man-yau, alias Sik Kwok-wah is the present abbot of the temple. He makes his own claims to the property by way of counterclaim. Others referred to as dignitaries in the New Territories concerned about the proper administration of the religious trust, also became involved. Originating summonses were taken out by the 2nd plaintiffs and the Secretary for Justice. There was then also a monk, one Tat On, since deceased involved in the matter. The 2nd plaintiffs complained that he acted wrongly in dealing with some of the properties and so his estate was brought into action.

3. The 2nd plaintiffs also complain against five Government Departments, particularly the Home Affairs Department and the District Office Tuen Mun. They, primarily, are said to have dealt with Tat On's application for registration as manager of the properties under s. 15 of the New Territories Ordinance, with approval of the sale of certain properties by Tat On, with the refusal to register another monk, Mun Sang, as manager, and with the acceptance by the Crown of the surrender of certain properties by Mun Sang.

4. The originating summonses were consolidated and the To Ka Yi Tso and the 2nd plaintiffs became the plaintiffs and the others are defendants.

5. There have been protracted hearings at first instance. A long hearing first before the late Jerome Chan J which was aborted by his untimely death, and then a long hearing before Yam J which has been interrupted by, inter alia, the present appeal to this Court from whose decision leave is now sought to appeal to the Court of Final Appeal.

6. In those proceedings before the court at first instance, the Secretary for Justice as parens patriae made discovery of 305 documents in two batches, the second being a supplementary list of documents ordered to be produced by Jerome Chan J. In addition, leading counsel representing the Secretary for Justice as representative of the parens patriae allowed leading counsel for the plaintiffs to inspect four Government Departmental files. Subsequently the plaintiffs asked the Secretary for Justice for 32 files belonging to five Government Departments from which the 305 documents discovered had come. The Secretary for Justice as representative of the five Government Departments refused. The plaintiffs then obtained writs of subpoena duces tecum from Yam J directed to the five Government Departments seeking production of all the 32 files in their entirety. The Secretary for Justice as representative of the five Government Departments applied by motion to Yam J to set aside the writs. Yam J dismissed that motion. The Secretary for Justice as representative of the five Government Departments appealed to this Court against that motion, asking this Court to set aside the five writs. This was primarily upon the basis that the five Government Departments were not parties to the action and that what was sought was not production of identified documents as required material evidence but in fact discovery of all that was in the 32 files. This Court allowed the appeal and set aside those writs; the reasons are in the judgment. The plaintiffs now seek leave to appeal to the Court of Final Appeal.

7. There are two questions set out in their Notice of Motion:

"1. That the appeal involves a question of great general or public importance which should be submitted to the Court of Final Appeal for decision, namely, the question of whether the Court of Appeal has jurisdiction to hear interlocutory appeals which are brought during the course of a High Court civil trial from a ruling by the Trial Judge concerning the reception of evidence.

2. Additionally and alternatively the appeal involves a question which otherwise should be submitted to the Court of Final Appeal for decision namely the clear public injustice which has arisen in the High Court trial, as a result of the intervention by the Court of Appeal, whereby the Secretary for Justice, by invoking the assertion that she is acting in parens patriae, is able to avail herself of evidence in the hands of government departments without providing discovery to the other parties whilst being permitted to set aside subpoenas which were issued by the Trial Judge in order to ensure that the documents concerned were produced in evidence and thereby made available to all of the parties to the trial."

Mr Barlow who again appears for the plaintiffs seeks leave for both grounds under the second limb of s.22(1) of the Hong Kong Court of Final Appeal Ordinance. This reads:

"(1) An appeal shall lie to the Court in any civil cause or matter -

...

(b) at the discretion of the Court of Appeal or the Court, from any other judgment of the Court of Appeal whether final or interlocutory, if. in the opinion of the Court of Appeal or the Court, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court for decision."

8. In respect of the first question, Mr Barlow submits, and that is apparent from the question itself, that the first question is a question of great or general public importance which should be submitted to the Court of Final Appeal for decision. I do not accept that submission. It seems to me that the present position is clear and is set out in both the cases he refers to, i.e. Kwok Man Chan v Hang Yat Heating System [1990]2 HKC 261 and Lam Choi King v Yeung Fook Chi [1991]1 HKC 219. This is in substance, as Mr Barlow recognises, that the sort of order intended by the relevant legislation to be appealable is one that can be recognised but is not a simple matter to define.

9. Moreover the circumstances in those two cases are far removed from those here, and may accurately be categorised as being concerned with the reception of evidence. To so identify the character of the matter here, is materially inaccurate. The Departments in fact appealing were not parties to the action. That fundamental position was formally conceded by leading counsel for the plaintiffs below, after an adjournment to consider the matter, and then reflected by amendments made to the pleadings by the plaintiffs. Had the concession not been made, the point would clearly have been strongly contested on behalf of the Government Departments. Besides the unusual and narrow circumstances and the question posited upon them are not of great general or public importance.

10. In those circumstances it does not seem to me that the first question is one for which leave should be granted.

11. The second question is one that on its very terms I find some difficulty in understanding. However, Mr Barlow has on his feet helpfully clarified it as being:

"Whether the courts will assist representatives of the Secretary for Justice in the technical exploitation of her dual capacities as the representative of Government on the one hand, and as the parens patriae on the other, when her obligation is to act in the public interest in both capacities, by using one capacity to avail herself of documents for use at trial and exploiting the other capacity to prevent the trial being conducted fairly by use of interlocutory proceedings."

If there is any looseness in this formulation, it is entirely understandable as counsel had to formulate it on his feet. However, the thrust of it is reasonably clear. It does not, in my view, present a question as such, nor a question that arises in these proceedings, nor one that seems to me that should be referred to the Court of Final Appeal, on any consideration that I can see, which would properly come within s.22(1)(b).

12. For those reasons, I would refuse leave. It seems to me in any case that if leave is to be granted upon such a question raising so incidental and broad a matter of policy, it should come from the Court of Final Appeal itself.

Liu, J.A.:

13. I agree. I merely wish to add this: a litigant, including the Secretary for Justice, may appear and act in a capacity of his own choice with attendant legal and procedural obligations and consequences. There is nothing exceptional, which would call for the exercise of our discretion under s. 22(1)(b) so as to send what is claimed to be a question involved in this appeal, albeit framed by counsel on his feet, to the Court of Final Appeal.

Wong, J.:

14. I agree that leave should be refused.

Nazareth, V.-P.:

15. The application for leave to appeal is accordingly refused.

16. [After hearing counsel] The respondent is to have her costs of the application.