TANG WAI CHO v. TANG WAI LEUNG

CACV 289/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 289 OF 2011

(ON APPEAL FROM HCA NO. 2207 OF 2007)

________________________

BETWEEN

	TANG WAI CHO	Plaintiff
	and
	TANG WAI LEUNG	Defendant

________________________

Before: Hon Cheung JA in Chambers

Date of Hearing : 3 October 2013

Date of Decision : 3 October 2013

Date of Reasons for Decision: 28 October 2013

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REASONS FOR DECISION

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1.  On 3 October 2013 I ordered security for costs of the appeal in the sum of $300,000 to be furnished by the plaintiff. As the prospective costs covered two appeals, I ordered the payment in to be made in two tranches.

2.  The application for security was based on the impecuniousity of the plaintiff who was legally aid in the trial below and now legally represented. His counsel Mr Maurice Chan asked for an adjournment of the application for security on the ground that the plaintiff had appealed against the refusal by the Director of Legal Aid to grant him legal aid and the Master who heard the appeal had reserved his decision.  In my view this was an irrelevant consideration and I refused to adjourn the application.

3.  Apart from requesting time, the plaintiff had not really put forward any substantial grounds in opposition to the application both in terms of his financial condition and the merits of his appeal.

4.  I was satisfied that proper grounds had been made out for the application, accordingly I granted the relief.

	(PETER CHEUNG)
	Justice of Appeal

Mr Maurice J. Chan, instructed by Fung, Wong, Ng & Lam, for the plaintiff

Mr Wilfred Tsui, instructed by Simon C. W. Yung & Co., for the defendant

CACV 289/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 289 OF 2011

(ON APPEAL FROM HCA NO. 2207 OF 2007)

________________________

BETWEEN

	TANG WAI CHO	Plaintiff (Appellant)
	and
	TANG WAI LEUNG	Defendant (Respondent)

________________________

Before : Hon Lam VP and Lunn JA in Court

Date of Hearing : 11 October 2013

Date of Judgment : 11 October 2013

Date of Reasons for Judgment : 18 October 2013

__________________________

REASONS FOR JUDGMENT

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Hon Lam VP (giving the Reasons for Judgment of the court):

1.  This is an appeal against the decision of Yuen JA refusing leave to the Plaintiff to adduce fresh evidence on appeal. In the judgment of 30 May 2013, Her Ladyship refused the application of the Plaintiff on the ground that the Plaintiff did not satisfy the first limb of the test in Ladd v Marshall [1954] 1 WLR 1489. At para 8 of the judgment, she said:

“There is no reasonable explanation why documents (1) to (3) … were not obtained, and why the authorities whose responses are contained in documents (4) and (5) were not approached, prior to the trial.”

2.  We shall not repeat the background of the appeal which had been adequately set out in the judgment of Yuen JA and the judgment of Deputy High Court Judge Carlson.

3.  The trial lasted for 13 days at different periods, stretching from 4 March 2010 to 29 June 2011.  The judgment of Deputy High Court Judge Carlson was handed down on 30 November 2011.  Because of the application for admission of fresh evidence, no date has been set for the hearing of substantive appeal notwithstanding that it is now almost 2 years since the judgment below.   We were told at the hearing that the property in question had been sold.

4.  Her Ladyship also said, by way of obiter, that she would have found the other 2 conditions in Ladd v Marshall satisfied.

5.  The Plaintiff issued a summons for this appeal on 15 July 2013. He accounts for the lapse of time between the judgment of Yuen JA and the issue of summons by reference to his unsuccessful attempt to get legal aid for this appeal.  

6.  In the summons of 15 July 2013, the Plaintiff indicated he intended to rely on his affirmations before Yuen JA for the purpose of this appeal. Rather belatedly, Mr Chan (counsel for the Plaintiff) indicated in his late skeleton submissions (which was only lodged on 10 October at the request of this court) that the Plaintiff would rely on a further affirmation of the Plaintiff. In the 3^rd Affirmation of 10 October 2013, the Plaintiff attempted to further explain why he and his lawyers had not obtained the proposed new evidence due to his own mistaken recollection of what had happened in 1990 and 1991.  A summons was also taken out on 10 October 2013 for leave to the Plaintiff to use this 3^rd Affirmation.

7.  After hearing counsel for the parties, we dismissed the summonses of 15 July 2013 and 10 October 2013.  We also ordered the Plaintiff to pay the costs of the Defendant in respect of both summonses, such costs are to be taxed if not agreed.  The following are the reasons for our decision.

8.  There is no clear explanation in the 3^rd Affirmation as to why this document could not have been prepared and filed earlier.  The closest to it was what he said at para 20 in that affirmation. In addition, Mr Chan said at para 7 of his late skeleton submission:

“P is of very low intelligence, bordering on the mentally incapacitated. It has been extremely difficult for his lawyers to understand him, or to explain matters to him for his acceptance. Thus, his previous solicitors WK To, who also had the disadvantage of not representing him before or during trial, could not have caused him to depose much as to why the fresh documents could not have been discovered earlier. His present solicitors, FWNL, who did represent him before and during trial, also had great difficulty in extracting accurate, coherent and consistent information out of him, or in putting to him plausible accounts as to what might have happened to him. For this reason, the supplementary affirmation, which elaborates more sufficiently of the material periods of the historic past, could not be ready, I am told, until now. P therefore seeks the Court’s indulgence for leave to file and serve the supplementary affirmation out of time. A copy thereof is attached hereto.”

9.  We must say that this is not a satisfactory explanation, given that the judgment of Yuen JA was delivered on 30 May and the summons for this appeal was issued on 15 July which had already fixed the hearing date of the appeal, viz 11 October.  Whilst we would not underestimate the difficulties faced by the Plaintiff and those representing him in getting the relevant information for the preparation of the 3^rd Affirmation, we do not think that could be an excuse for not having the evidence in place well before the hearing date.  There is no credible account as to why the affirmation could not be ready at a time which would give the Defendant a decent opportunity to respond to it.  There is also no explanation as to why skeleton submission was not filed in accordance with Practice Direction 4.1. Actually, Mr Tsui had to lodge his skeleton submission on 9 October without sight of Mr Chan’s skeleton submissions on the basis that the evidence would be the same as the evidence before Yuen JA.  There was no attempt on the part of the solicitors for the Plaintiff to forewarn the Defendant’s solicitors that contrary to the indication in the summons of 15 July, a further affirmation was being prepared.

10.  Mr Chan explained in his oral submissions that he was only brought in when the Defendant took out an application for security for costs in mid-August.  We do not think the late instruction of counsel can be an excuse for not having the relevant evidence for the summons of 15 July in place at a much earlier stage.  It is the duty of the Plaintiff to put his house in order in respect of his application in the summons of 15 July.  He (and the solicitors acting for him) should have appreciated way back in July that counsel should be instructed for the hearing of the summons and the necessary evidence should be filed in good time.  If he decided to instruct counsel at so late a stage that it become too late for further evidence to be filed, the court would not be sympathetic to a late application for such evidence to be admitted, particularly when it would patently be unfair to the other party to do so. 

11.  Not surprisingly, Mr Tsui opposed the use of the 3^rd Affirmation.  He informed us that he only had sight of this new affirmation after 2:00 pm on 10 October 2013 and he did not have sufficient time to take proper instructions from the Defendant to prepare a proper response, including the possibility of putting in an affirmation in reply.  He also submitted that if leave were to be granted for the use of this affirmation, the summons of 15 July should be adjourned in order to give him an opportunity to take proper instructions from the Defendant and if necessary file an affirmation in reply.  In that event, he said the Plaintiff should pay for the costs of the adjournment, which he estimated to be more than $100,000.

12.  Mr Chan properly accepted that an adjournment should be given and the Plaintiff was willing to pay for the costs of the adjournment.

13.  Though that might address some of the unfairness occasioned by the admission of the late affirmation, we do not think we should permit such course to be taken in the present circumstances in light of what we say below.  We are of the view that there had already been too much delay in the hearing of the substantive appeal and unless there are good reasons for not doing so, there should be a determination of the summons of 15 July at the hearing before us.

14.  Having read the 3^rd Affirmation, we do not think it could assist the Plaintiff in this appeal.  As explained by Yuen JA at para 8 of her judgment, the Plaintiff and those representing him at the trial should have appreciated that the genuineness of his marriage was an important element in his case and in light of what was said in the assessment report attached to the letter of 5 April 1991 the Plaintiff (and those acting for him) should have investigated into the subsequent determination of his application for migration before the trial.  Such investigation should have entailed enquiries with the Australian Consulate General and Immigration Department.  This is particularly so when the Plaintiff was able to produce the letter of 17 May 1991 in the course of trial (which he should have produced to his lawyers before the trial) and there were ample opportunity for the lawyers to make the necessary enquiries after he finished giving his evidence in the witness box. If necessary, they could apply for the re-opening of the evidence at the trial. But they did not do so. The documents which he now sought to adduce were all documents which did not take any unusual efforts to obtain and, had there been reasonable diligent efforts made on the part of the Plaintiff together with those acting for him, they would have procured such documents as evidence at trial.

15.  Mr Chan explained that the new evidence were not obtained or adduced as evidence at trial because Plaintiff mistakenly believed that the migration application was made by his wife and he had no standing to obtain such documents.  We agreed with Yuen JA that the low intelligence of the Plaintiff was not an acceptable excuse for not exercising due diligence in seeking the production of all relevant evidence at trial.  The extent of investigation and the evidence put before the court at trial are matters for the Plaintiff and those advising him. In respect of a litigant of low intelligence, it is the duty of those acting for him to ensure (if necessary, with the aid of specialist assistance) that such litigant fully understand the importance of producing all relevant evidence which he may wish to rely upon at trial.  They must take the consequences of their errors of judgment in those respects.  It is important to bear in mind that an appeal is not the avenue for a litigant to supplement gaps in his evidence which he should have dealt with at the trial. Mistaken belief on the part of the Plaintiff (which consequently might have misled his lawyers) cannot be an excuse for an exception to this principle.  Otherwise there would be no end to litigation.  With reasonable diligence the Plaintiff (with the assistance of his lawyers) should have been able to make the same enquiries and obtain the new documents before the trial as those made and obtained by his relative (who after all had less interest in the trial then the Plaintiff) after the trial.

16.  We do not discern any errors in principle on the part of Yuen JA in refusing leave.  As held in Mok Pak Keung v Wong Ip Ming CACV 78 of 2000, 8 Sept 2000, this court would only interfere the exercise of discretion by a single judge when it is satisfied that the judge had applied wrong principles of law or had given a wholly erroneous weight to some matters or failed to take into account some other matters or if the decision was plainly wrong. We do not think this is such a case.

17.  For these reasons, we refused leave to admit the 3^rd Affirmation and the appeal against Yuen JA’s decision was dismissed with costs. 

(M H Lam) Vice President

(Michael Lunn) Justice of Appeal

Mr Maurice J Chan, instructed by Fung, Wong, Ng & Lam, for the Plaintiff/Appellant.

Mr Wilfred Tsui, instructed by Simon C W Yung & Co, for the Defendant/Respondent.

CACV 289/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 289 OF 2011

(on appeal from HCA NO. 2207 OF 2007)

____________

BETWEEN
	TANG WAI CHO	Plaintiff (Appellant)
	and
	TANG WAI LEUNG	Defendant (Respondent)
____________

Before : Hon Yuen JA in Chambers

Date of Hearing and Judgment: 30 May 2013

______________

J U D G M E N T

______________

 

Hon Yuen JA:

1.  This is an application on the part of the plaintiff (appellant) for leave to adduce fresh evidence at the hearing of his appeal against the judgment of Deputy Judge Carlson given on 30 November 2011.

The action

2.  First, a brief word on the action. 

2.1   The plaintiff and the defendant are brothers. 

2.2   The defendant is the registered owner of a property in Caine Road.  It would appear that the sums for the purchase price were paid between 11 May 1991 and 31 July 1991.  

2.3   The plaintiff claimed to be the beneficial owner of the property.  He had been running a business at the property as a sole proprietor since 1980 but had gone to Australia in 1985 on a Temporary Entry Permit, thereafter overstaying there.  He married an Australian citizen in October 1990 and thereafter applied for extension of the Temporary Entry Permit as a spouse.  However that application was rejected and he returned to Hong Kong on 5 May 1991. 

2.4   It was the plaintiff’s case that even though he had provided all the money for the purchase of the property, he put the property in the defendant’s name for 3 reasons:

(1)     he did not wish his wife to know he owned a property as he knew her only briefly before marriage;

(2)     he feared that if his sole proprietorship business in Hong Kong got into trouble in the future, his personal assets would be at risk;

(3)     he had heard that “even overseas properties were required to be declared to the Australian Government and be subjected to various kinds of taxes or levies”

(para. 49 of the plaintiff’s witness statement dated 21 January 2009).

Judgment

3.  The learned judge gave judgment in favour of the defendant.  In rejecting the 3 reasons given by the plaintiff for putting the property in the defendant’s name, he held that:

(1)     the authorities in Australia had held the plaintiff’s marriage to be a sham, that it was not a genuine marriage, and that the plaintiff knew that what he had contracted was a marriage of convenience; the learned judge considered it “not worth reasoned contemplation” that the woman would seek to litigate, in ancillary relief proceedings in the Australian divorce court, a share in the value of the property (para. 62 of the judgment);

(2)     the plaintiff’s business in Hong Kong had not contracted any indebtedness of any size, and in any event there were many ways in which he could protect the property from creditors of the business, eg by having the business incorporated, or by having the property held by an overseas company (para. 63);

(3)     the plaintiff had been ordered to leave Australia, his marriage had been held to be a sham, and the Australian authorities “did not want anything further to do with him” (para. 64).

Appeal

4.  The plaintiff, then acting in person, lodged a notice of appeal on 28 December 2011.  Ground 4 of his intended grounds of appeal is that the learned judge was wrong in finding that the marriage was of no legal effect and therefore the plaintiff had no need to put the property in the defendant’s name so as to avoid sharing it with his wife.   

Application to adduce fresh evidence

5.  The plaintiff now has the benefit of legal representation and has lodged an application to adduce fresh evidence in the form of the following documents:

Document

(1)     his certificate of marriage dated 31 October 1990;

(2)     a memorandum dated 12 March 1991 written by an officer of the Australian Department of Immigration, to the effect that the plaintiff should return to Hong Kong and that his wife could sponsor his return to Australia;

(3)     a letter dated 17 May 1991 from the Australian Consulate in Hong Kong, advising the plaintiff to obtain a character certificate for his application for entry to Australia;

(4)     a letter dated 20 February 2012 from the Australian Consulate in Hong Kong, referring to records that the plaintiff had applied for a partner migration visa on 14 May 1991 which application was refused on 12 September 1991; and

(5)     an email dated 6 March 2012 from the Australian Consulate in Hong Kong, advising that “assessment on the genuineness of the relationship for a visa application is different and independent to the legality of a marriage certificate”.

6.  The plaintiff has also sought to supplement his evidence with a fresh affirmation dated 23 April 2013.  The fate of this affirmation must follow that of the documents sought to be adduced.

Principles

7.  The principles governing the exercise of the court’s discretion whether to permit fresh evidence to be adduced are well established.  Where there has been a hearing on the merits, fresh evidence will generally not be admitted on appeal unless the three conditions set out in Ladd v Marshall [1954] 1 WLR 1489 are satisfied:

(1)     it must be shown that the evidence could not have been obtained with reasonable diligence for use at the hearing;

(2)     the evidence must be such that, if given, would probably have an important influence on the result of the case, though it need not be decisive;

(3)     the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible though it need not be incontrovertible. 

Discussion

8.  In my view, with respect the present application falls at the first hurdle.  There is no reasonable explanation why documents (1) to (3) listed in para. 5 above were not obtained, and why the authorities whose responses are contained in documents (4) and (5) were not approached, prior to the trial. 

8.1   It is clear from the plaintiff’s witness statement that 2 of the reasons he proffered for his decision to put the property in the defendant’s name had to do with his marriage and his wish to return and settle in Australia.  They were obviously important elements of his case.

8.2   Document (1) (the marriage certificate) is neither here nor there in terms of helping his case but clearly this was a document that could have been obtained from the Australian marriage registry before trial had it been sought.      

8.3   Document (2) might support the argument advanced by Miss Yang now that the reference to “reg. 126(1)(b)” in the record of decision might have been mistaken and that the Australian authorities had not in fact intended to reject the plaintiff’s application on the ground that his relationship with his wife was not a genuine or continuing one.  However a letter dated 5 April 1991 from the Australian authorities enclosing the record of decision dated 2 April 1991 was in fact available at the trial.  It provided a file reference number which, had it been followed up, would have led to document (2).  However there is no evidence that anyone from the plaintiff’s team sought to follow it up at the relevant time.

8.4   The plaintiff’s allegation was that notwithstanding the fact that he had not been allowed to remain in Australia and had to lodge an application from Hong Kong, he was pursuing an application to return to settle in Australia on the basis of spouse migration.  That allegation could have been supported had he brought forward document (3) at or even during the trial.  That document was in the plaintiff’s possession throughout. There was ample time for the plaintiff to look for it.  Unusually, the trial took place over the course of 15 months from 4 March 2010 to 29 June 2011.  There was ample time for the plaintiff to look for documents and his legal advisers to do the necessary investigations.

8.5   The same comment applies to documents (4) and (5).  There is an allegation in the plaintiff’s last affirmation that he had been informed that the file of the 1991 application at the Australian Consulate in Hong Kong had been destroyed.  However no particulars have been given as to who had given him that information, and more importantly, when he asked and when he was given that information.  For the purposes of an application to adduce fresh evidence, those particulars are crucial.

8.6   I do not think it relevant that the plaintiff was found to be of low average intelligence.  The 3 reasons were there in his witness statement before the trial.  All that was necessary was some “legwork” to find supporting evidence.

8.7   In any event it does not seem that it took any unusual efforts on the part of the plaintiff’s relatives to find these documents.  Unfortunately they only did so after the judgment.

8.8   In other words, the plaintiff has failed to show that the evidence could not have been obtained with reasonable diligence for use at the hearing.  I can only apply the law and it is clear that the first condition in Ladd v Marshall has not been satisfied.

9.  Although not necessary for this decision, I take the view that had the plaintiff satisfied the first condition, I would have found the other 2 conditions in Ladd v Marshall satisfied. For the reasons I have given however, I must dismiss this summons.

[Submissions on costs]

Order on costs

10.  The plaintiff is to pay the defendant’s costs of this application to be taxed if not agreed.  The plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.

(MARIA YUEN) Justice of Appeal

Ms Elizabeth Yang, instructed by W. K. To & Co., assigned by the Director of Legal Aid, for the Plaintiff (Appellant)

Mr Wilfred Tsui, instructed by Simon C. W. Yung & Co., for the Defendant (Respondent)