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    104 (1998) 2 HKLRD: Hong Kong Law Reports & Digest

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    JYhk
    This document summarizes a court case regarding an appeal of a trial judge's dismissal of an application to discharge subpoenas. The Court of Appeal allowed the appeal and discharged the subpoenas. The plaintiffs then applied for leave to appeal to the Court of Final Appeal. The Court of Final Appeal considered two points: (1) whether the Court of Appeal had jurisdiction to hear the interlocutory appeal, and (2) if so, whether the Court of Appeal wrongly interfered with the trial judge's case management. The Court of Final Appeal found that the Court of Appeal did have jurisdiction, and agreed with the Court of Appeal's conclusion that the trial judge had erred in principle by allowing such broad subpoenas for

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    104 (1998) 2 HKLRD: Hong Kong Law Reports & Digest

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    JYhk
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    This document summarizes a court case regarding an appeal of a trial judge's dismissal of an application to discharge subpoenas. The Court of Appeal allowed the appeal and discharged the subpoenas. The plaintiffs then applied for leave to appeal to the Court of Final Appeal. The Court of Final Appeal considered two points: (1) whether the Court of Appeal had jurisdiction to hear the interlocutory appeal, and (2) if so, whether the Court of Appeal wrongly interfered with the trial judge's case management. The Court of Final Appeal found that the Court of Appeal did have jurisdiction, and agreed with the Court of Appeal's conclusion that the trial judge had erred in principle by allowing such broad subpoenas for

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    To Kan Chi v. Pui Man Yau [1998] 2 H.K.L.R.D. 104

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    This document summarizes a court case regarding an appeal of a trial judge's dismissal of an application to discharge subpoenas. The Court of Appeal allowed the appeal and discharged the subpoenas. The plaintiffs then applied for leave to appeal to the Court of Final Appeal. The Court of Final Appeal considered two points: (1) whether the Court of Appeal had jurisdiction to hear the interlocutory appeal, and (2) if so, whether the Court of Appeal wrongly interfered with the trial judge's case management. The Court of Final Appeal found that the Court of Appeal did have jurisdiction, and agreed with the Court of Appeal's conclusion that the trial judge had erred in principle by allowing such broad subpoenas for

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    39 views2 pages

    104 (1998) 2 HKLRD: Hong Kong Law Reports & Digest

    Uploaded by

    JYhk
    This document summarizes a court case regarding an appeal of a trial judge's dismissal of an application to discharge subpoenas. The Court of Appeal allowed the appeal and discharged the subpoenas. The plaintiffs then applied for leave to appeal to the Court of Final Appeal. The Court of Final Appeal considered two points: (1) whether the Court of Appeal had jurisdiction to hear the interlocutory appeal, and (2) if so, whether the Court of Appeal wrongly interfered with the trial judge's case management. The Court of Final Appeal found that the Court of Appeal did have jurisdiction, and agreed with the Court of Appeal's conclusion that the trial judge had erred in principle by allowing such broad subpoenas for

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    of 2

    104 HONG KONG LAW REPORTS & DIGEST [1998] 2 HKLRD

    To Kan Chi & Others Plaintiffs A

    and
    Pui Man Yau & Others Defendants

    B
    (Court of Final Appeal)
    (FAMV No 11 of 1998)

    C
    Li CJ, Litton and Ching PJJ
    7 July 1998

    Practice and procedure — Court of Appeal — jurisdiction — application


    to have subpoenas discharged was dismissed — appeal — whether dismissal D
    was “order” under s.13(2)(a) — jurisdiction of Court of Appeal to entertain
    interlocutory appeal — such appeals were to be discouraged but might be
    necessary where judge erred in principle — High Court Ordinance (Cap.4)
    s.13(2)(a)
    E
    Practice and procedure — courts — case management by trial judge —
    whether Court of Appeal wrongly interfered with trial judge’s management
    of trial

    Words and phrases — “order” — High Court Ordinance (Cap.4) s.13(2)(a) F


    [High Court Ordinance (Cap.4) s.13(2)(a)]

     !   ! !"#$%  


     NPEOFE~F  !"#$%& !"#$%&'( )* G
     !"#$%&'()*+,$-.,/0$  !"#$%
     Q  NPEOFE~F 

     !        !"#$%&'()* +,-
     H
     ! !"#$% & Q  NPEOFE~F 
    
    x  !"#$%
    & Q  NPEOFE~F z

    Legislation mentioned in the judgment: I


    High Court Ordinance (Cap.4) s.13(2)(a)
    Hong Kong Court of Final Appeal Ordinance (Cap.484) s.23(1)(b)

    Mr Justice Litton PJ:


    This application for leave to appeal to the Court of Final Appeal concerns a J
    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.

    R-H11_p.104-105 104 4/11/05, 4:46 PM


    To Kan Chi & Others v Pui Man Yau & Others
    CFA Litton PJ 105

    A 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.
    B
    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
    C 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.
    The plaintiffs now renew their application before us, pursuant to s.23(1)(b)
    D of the Hong Kong Court of Final Appeal Ordinance (Cap.484).
    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
    E
    process.
    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 s.13(2)(a) of the High Court Ordinance (Cap.4).
    Whilst interlocutory appeals of this nature are to be strongly discouraged – a
    F 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 the High Court Ordinance (Cap.4) empowers the Court of Appeal
    to do that.
    This brings us to point (ii), whether the Court of Appeal has arguably erred
    G 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
    H 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.
    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
    I so concluding are fully set out in the Court of Appeal’s judgment of 18 June
    1998, and need not be repeated here.
    The application is dismissed, with costs.

    Mr Barrie Barlow, instructed by Miller & Peart, for the applicants.


    J
    Mr Benjamin Yu SC, instructed by the Department of Justice, for the
    respondents.

    R-H11_p.104-105 105 4/11/05, 4:46 PM

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