TANG SIU WING AND ANOTHER v. THE COMMISSIONER OF ESTATE DUTY

HCED 1/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ESTATE DUTY APPEAL NO 1 OF 2013

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D E C I S I O N

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1.  This is an application by the Executors for leave to appeal against this court’s decision on 23 October 2017 dismissing the Executors’ appeal against the assessment for stamp duty made by the Commissioner.

2.  In order to obtain leave, the applicant has to show that the appeal has a reasonable prospect of success or that there is some other reason in the interest of justice why the appeal should be heard.  Reasonable prospect of success involves the notion that prospects of succeeding must be reasonable and therefore more than fanciful without having to be probable.  See the cases of SMSE v KL [2009]4 HKLRD 125 at §17; Wynn Resorts (Macau) SA v Mong Henry [2009]5 HKC 515 at §19.

3.  Three intended grounds of appeal are being put forward. 

4.  In respect of ground 1, in my view it is in substance a challenge to the court’s finding of facts and credibility.  All the analyses in the judgment concerning the credibility of Mr Nyandoro, Uncle Chiu, the inherent probabilities of the case and the authenticity of documents are to assist the court in deciding on the sole single issue of where the originals of the 3 Documents were.

5.  The appellant now purports to pick only those parts of the evidence which works to their best advantage without taking into account the qualifications this court highlighted in assessing the credibility of their case.  By way of example, and I accept the submission of Mr Leung, there is a great difference between a person who deliberately lies, which I do not find Mr Nyandoro to have done, and a person who does not come up to proof despite trying to be honest.  So by way of example, Mr Nyandoro could have been honest but still mistaken as to certain facts, like the existence of a skeleton file prepared without authority.  Or his notion of what was original might have been very different from what the court expects.

6.  The appellant now seeks to challenge the inferences from the basic findings of facts.  However, the appeal court would only overturn a conclusion of the first instance court where the trial judge was clearly wrong in the findings, ie where there was no evidence to support, or was based on misunderstanding of the evidence, or taking into account irrelevant factors, or reached a conclusion which no reasonable judge could have reached. In my view, the appellant is still far from showing that this test will be met.

7.  Ground 2, as is evident from the judgment itself (under Section J), is just a fallback position.  If the Executors cannot overturn the finding of facts, ground 2 does not assist them.  In paragraph 86 of the judgment onwards, this court analysed the legal effect of the assignment.  Paragraph 89 recorded the court’s rejection that this was an outright assignment.  And in coming to that conclusion this court did consider the expert evidence, at the same time construing the words of the assignment and the effect of reading it with the 1996 Letter.  I am unable to see any error of law involved in this approach to the evidence.

8.  As to ground 3, Mr Chen pointed out to me that I may have erred in saying in paragraph 69 that the joint expert report stated that there was no such database.  This may affect the court’s finding on credibility of Mr Nyandoro. 

9.  However, with respect, whether one describes the joint expert report as mentioning no such database, or there being a database or online register, the experts’ evidence was very clear – there was no record in any of the electronic database or otherwise of the Companies Registry relating to Wasonga.  The skeleton file, reconstructed no later than 2013, could not be traced despite enquiries by the respondent’s solicitors in Kenya for at least one year up to the date of the trial.  In those circumstances, the court’s finding that it cannot place weight on the company records as showing the truth of the contents was a finding based on evidence existing before the court.  There was ample evidence, even if this court had erred in stating that there was no database, to support the findings of the court not to accept Mr Nyandoro’s evidence that the original was with him.

10.  Considering the three grounds, I am not satisfied that any of them have reasonable prospect of success and I decline to grant leave to appeal.

11.  Costs be to the respondent to be taxed if not agreed.