Admissibility in Hong Kong Civil Proceeding of Facts Finding Made by Another Court Judgement
Inadmissibility of Facts Finding in Earlier Proceedings: Hollington Principle
Under the common law rules in Hong Kong, a judgment and factual finding of another court or tribunal in earlier proceedings, whether civil or criminal, is inadmissible in subsequent proceedings, unless the party against whom the finding is sought to be deployed is bound by it by reason of an estoppel per rem judicatam. See Hollington v F Hewthorn & Co Ltd [1943] KB 587 which, though controversial (and even considered to have been wrongly decided) has never been overruled. In Hong Kong, its application to reliance on a domestic criminal conviction in subsequent civil proceedings has been abolished by s 62 of the Evidence Ordinance (Cap 8) (“EO”). This section has no application to a foreign conviction such as the PRC Judgment. (para 23 of Capital Century Textile Co Ltd v Li Dianxiao, HCA 263/2012)
Rationale of the Hollington Principle
A central part of a judge’s task in a civil case is to evaluate the evidence adduced by the parties and to decide what conclusions may be properly drawn from that evidence. It is a cardinal principle, and an essential ingredient of the right to a fair trail before an impartial and independent tribunal, that in carrying out this task judges must form their own opinions by making their own evaluation of the evidence and must not defer to the opinion of anyone else. …( Rogers v Hoyle [2015] QB 265 , Leggatt J said at [59])
When the Court of Appeal v described the opinion of the criminal court as “irrelevant”, I therefore do not think that the term was being used in the sense defined earlier to denote evidence which is not logically probative. What I believe they meant is that the opinion of another court, like the opinion of a bystander, is not a matter to which a court required to decide the issue ought to have regard. The underlying rationale in my view, …in general: namely, that it is the duty of a court to form its own opinion on the basis of the evidence placed before it; and that it would not be proper for the court in forming that opinion to be influenced by the opinion of someone else, however reliable that person’s opinion is likely to be. In so far as the evidence before the later court is the same as the evidence before the earlier court, the later court is in as good a position to draw inferences and conclusions from the evidence. In so far as the evidence is different, the opinion of the earlier court does not assist the court’s task.( Rogers v Hoyle [2015] QB 265 , Leggatt J said at [93])
Exception to Hollington Principle: Estoppel per rem judicatam
Estoppel per rem judicatam, also known as collateral estoppel, is a legal principle that says if a court has already decided an issue between two parties, they cannot bring up that same issue again in a different case. This applies even if the second case is about a different matter.
In the case of Akayepe V Akayepe (2009) 111 NWLR part 1152 page 217 at Pp. 243-244, paras. E-A where the Supreme Court listed the ingredients of res judicata, as follows:
(a) That the parties or their privies, as the case may be, are the same in the present case as in the previous case;
(b) That the issue and subject matter are the same in the previous case or suit as in the present suit;
(c) That the adjudication in the previous case, was given by a Court of competent jurisdiction; and
(d) That the previous decision finally decided the issues between the parties”.
where estoppel per rem judicatam has been successfully raised as in the instant case, it ousts the jurisdiction of the Court to entertain the matter, cited the case of Zubair V. Kolawole (2019) Vol. 293 LRCN, Page 40 at page 78 PEE
Summary of evidence of another court is admissible
In short, the exclusion of the factual findings and conclusions of an earlier court or tribunal from subsequent proceedings serves to ensure a fair trial, not in any general sense as suggested by Mr Tsang, but in the specific sense that the judge appointed to hear and determine the subsequent case makes his own decision on the evidence and submissions presented to him, without being influenced by the opinion of an earlier adjudicator. (para 28 of Capital Century Textile Co Ltd v Li Dianxiao, HCA 263/2012).
Such concern however does not exist in relation to the evidence referred to in an earlier judgment such as the contents of documents or the evidence of witnesses. In Rogers v Hoyle, the statements or reported statements of fact in the AAIB report, even those unattributed, were admitted as not falling foul of the Hollington rule at all. See also JSC BTA Bank v Mukhtar Ablyazov [2017] EWHC 2906 (Comm) at [26]-[28] (per Sir Ross Cranston) (para 29 of Capital Century Textile Co Ltd v Li Dianxiao, HCA 263/2012)
In Capital Century Textile Co Ltd v Li Dianxiao, HCA 263/2012 at para 30, it is found that the part of summary of the factual evidence in the PRC criminal judgement does not fall foul of the Hollington principle. It is said that the PRC Court’s assessment of the evidence as shown by the words “上述事實，有下列經當庭舉證、質證，本院予以確認的證據證實 ” only goes to the weight to be attached to the summary of evidence in the PRC Judgment and does not provide any basis for contesting its admissibility under Hollington principle. s 49 of the EO requires the court, in estimating the weight, if any, to be given to hearsay evidence in civil proceedings, to have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
Reading the whole judgment and leave out the inadmissible part
Capital Century Textile Co Ltd v Li Dianxiao, HCA 263/2012), at para 35,Lisa Wong J: I do not think it is necessary for me to carry out an immediate editing exercise to precisely identify paragraph by paragraph or even sentence by sentence what comes within or without this ruling of admissibility and inadmissibility. As the trial judge, I shall see the whole of the PRC Judgment and leave out of account any part of it that is inadmissible. Leggatt J adopted the same approach in Roger v Hoyle, supra, at [118].
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