NINA KUNG v. WANG DIN SHIN

FAMV No. 18 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 18 OF 2001 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 1479 OF 2001)

_____________________

_____________________

------------------------------

DETERMINATION

------------------------------

Mr Justice Bokhary PJ:

1. This application for leave to appeal to the Court of Final Appeal arises out of thoroughly sad circumstances. There is a pending probate action in which the deceased's father seeks to propound a 1968 will bequeathing the entire estate to him, while the deceased's wife seeks to propound a 1990 will bequeathing the entire estate to her. The father-in-law alleges that the 1990 will is a forgery. Pointing the finger at the daughter-in-law, he made a report to that effect to the police. And the police are now investigating that complaint.

2. In March this year the daughter-in-law took out an application for a stay of the probate action pending the determination of the criminal investigation and any criminal proceedings which may arise therefrom.

3. On 20 June Yam J refused a stay but ordered that the probate action be heard in camera. Oddly enough, he has still not yet handed down his reasons.

4. On 11 July the Court of Appeal reversed Yam J's order that the probate action be heard in camera, but affirmed the refusal of a stay. The Court of Appeal gave its reasons in two succinct extempore judgments, one by Mayo VP and one by Rogers VP, with both of which judgments Le Pichon JA agreed.

5. The daughter-in-law now seeks leave to appeal to the Court of Final Appeal against the Court of Appeal's refusal of a stay. She seeks such leave under s.22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. It is submitted on her behalf by Mr Daniel Fung SC that this matter involves four questions which, by reason of their great general or public importance or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6. Mr Fung formulates these questions thus:

"(1) Whether, in a civil trial where the defendant can only succeed if she sets up, and proves by her documentary and oral evidence (including her own), thereby necessarily subjecting herself to cross-examination touching on alleged criminal conduct, her right to silence and privilege against self-incrimination are effectively curtailed or abrogated without any concomitant protection in the form of "direct use immunity" or "derivative use immunity";

(2) Whether, in such a situation, the defendant is afforded sufficient protection notwithstanding such curtailment or abrogation by the Court's discretion in a criminal trial to exclude otherwise admissible evidence affirmed in this Court's decision in the Lam Tat-ming case;

(3) How, in such a situation, the trial court in the civil proceedings should approach the exercise of discretion to stay the civil trial, having regard to the matters, inter alia, set out in (1) and (2) above; and

(4) Whether such an exercise of discretion is affected by the fact that criminal charge has not been laid but, having regard to the current stage of the criminal investigation, is likely to be laid if the civil trial results in a finding of wrongful conduct amounting to a criminal offence pointing directly to the complicity of the defendant and, if so, in what way."

7. In our view, it is plain that the Court of Appeal has rightly recognized that there was a discretion to grant a stay in circumstances such as these, and has carefully and properly approached the exercise of that discretion. It is a discretion to be exercised in the round, having regard to the particular facts of the case, taking all relevant considerations into account and ignoring all irrelevant ones. That approach, it is plain, is the one adopted by the Court of Appeal.

8. We are not persuaded that either the just and proper disposal of the present case or the law's development calls for a further appeal. Accordingly we refuse leave to appeal to the Court of Final Appeal.

[The father-in-law applied for costs, which the daughter-in-law did not oppose and which the Appeal Committee granted]