PETROLIAM NASTIONAL BERHAD AND OTHERS v. GEORGE TAN SOON GIN AND OTHERS

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J U D G M E N T

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1. This is an application to stay an order made by Mortimer J. on the 9th January whereby the 1st defendant was required to file an affidavit regarding his interest or control over certain Swiss bank accounts. Mortimer J. had refused to order such a stay of execution pending appeal but it seems clear that the matters argued before me today were not taken in the application before him which was principally concerned with the position of the 2nd and 3rd defendants and that the ground which has been argued today on the basis of an amended Notice of Appeal was also not before him. That sole ground is that the 1st defendant faces criminal proceedings for conspiracy to defraud and those proceedings being virtually identical to this claim in respect of the basis on which they are prosecuted, the 1st defendant should not be required to file an affidavit which may contain material which would breach his right against self-incrimination.

2. It is not necessary, having regard to the view which I have came to on this application, to go into the background of this matter in any detail. Suffice it to say that in 1983 when the Carrian Group, of which the 1st defendant was Managing Director, was in financial difficulty funds amounted to some US$40 million were made available by the plaintiffs. It is the case for the plaintiffs that these funds were channelled through various other companies and eventually finished up in the Swiss Bank accounts. It would also seem clear chat both in the civil claim and in the criminal proceedings it is alleged that the 1st defendant conspired to achieve this objective with other defendants some of whom were senior officials of the plaintiffs companies.

3. The 1st defendant relies very substantially on the dicta in Rank Film Distributors Ltd. and Others v. Video Information Centre and Others [1982] A.C. 380. There the allegation was that the defendants had been obtaining films by bribing the projectionists in cinemas and making illegal video copiers from them which they would then distribute in very large quantities, particularly to customers in the Middle East. An Anton Pillar order was made requiring the defendants to surrender illicit films and to allow for a search of their premises for that purpose. They were also obliged to discover any document concerning their activities for inspection by the plaintiffs. It was held that the orders made under these categories did not infringe the rule against self-incrimination but that the third part of the order which required the defendants to swear affidavits as to how they had obtained the pirated films and what they had done with theca did so offend and that part of the order was struck out. Here it is argued by Mr. Potts, leading counsel for the 1st defendant, that criminal proceedings are not only threatened against the 1st defendant based on exactly the same grounds as the civil proceedings but they have in fact been commenced. It is also submitted that this appeal will come on for hearing on the 25th January i.e. in two days' time any that as the order made by Mortimer J. expires today there should be a stay the matter can be fully argued before the Court of Appeal.

4. Leading counsel Mr. Charles Ching appears for the plaintiffs and submits that here there is already an affidavit sworn by the 1st defendant's solicitor which said that the 1st defendant had instructed him that he has no proprietory or beneficial interest in these bank accounts and has no control over them. He has also referred me to an affidavit sworn by the 1st defendant in other proceedings in which he also said that the manner in which the money obtained from the plaintiffs for the rescue efforts did not involve him in any wrongdoing. If this is so it is argued for the plaintiffs that there can be no harm done to the 1st defendant by his swearing an affidavit to that effect. It is argued that this is a discretionary remedy and the 1st defendant seeks from this Court an indulgence. Such an indulgence should not be granted unless there is clear and cogent evidence to support it and here there is none.

5. That the law on this matter is unsatisfactory it appears to be quite clear from the decisions of the Court of Appeal and the House of Lords in Rank Film Ltd. However I am satisfied that on the authority of that case as it stands and on Section 10 of the Evidence Ordinance there is a case to be argued here that the 1st defendant should not be compelled to comply with the order until the criminal proceedings have been concluded.

6. With some reluctance I consider that I should grant the stay which is songht by the 1st defendant and I would therefore grant leave to amend the Notice of Appeal as applied for by Mr. Potts and I grant the application and order that there be a stay of execution of the order of the 9th January made by Mortimer J. until the determination of the appeal by the 1st defendant against that order.

7. The costs of this application will be costs in the appeal and there will be a certificate for two counsel.