KWAN CHUI KWOK YING AND ANOTHER v. TAO WAI CHUN AND OTHERS

HCMP 2996/1990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2996 OF 1990

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D E C I S I O N

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Background

1. I have before me three summonses issued by the 15th Defendant against the 6th Defendant. The circumstances leading to the issue of these summonses are as follows.

2. The 15th and 6th Defendants were Defendants in the original probate action which had been concluded. The issue now between them in the Third Party Proceedings is whether the 15th Defendant was the natural son of Mr Kwan Kai Ming and Madam Wong and the brother of the 6th Defendant. The 6th Defendant's case was that the 15th Defendant was the son of his uncle, Mr Kwan Heng and Madam Lok Si. In the Third Party Proceedings, the 6th Defendant did not give evidence but his affirmations and documents exhibited therein were admitted as evidence. The documents comprised the Macau birth certificate of "Daniel Kwan", whom the 6th Defendant says is the 15th Defendant, showing that he was not the son of Kwan Kai Ming, and an order by the Judicial Court in Macau excluding the 15th Defendant as heir of Kwan Kai Ming. The 15th Defendant denied that he was the "Daniel Kwan" referred to in the Macau birth certificate and denied ever lived or studied in Macau. On 30 December 1994, the Hon Mr Justice Patrick Chan, as he then was, found in favour of the 15th Defendant and ordered costs against the 6th Defendant. The 6th Defendant appealed.

3. At the appeal, the 6th Defendant produced new documents. These were firstly, a group of new documents from the Baptist College tending to establish that the 15th Defendant studied in Chung Tak Middle School in Macau, using his name Kuan (which the same as "Kwan") Tan Lau (which sounds similar to "Daniel" in English); secondly, the 1962 student index showing that the 15th Defendant was indeed called "Kuan (Kwan) Tan Lau" because next to his photograph in that index was printed in Chinese "Kuan (Kwan) Tan Lau" and in English "Daniel Kwan"; and thirdly, the press reports and certificate of trial showing that the 15th Defendant had registered himself as an alien, holder of a Portuguese passport. On 3 November 1995, the Court of Appeal allowed the appeal, set aside the order of the Hon Mr Justice Patrick Chan and ordered a re-trial. It also ordered that the costs of the Third Party Proceedings and the costs of the Appeal to abide by the result of the new trial.

4. Nine months later, on 30 July 1996, the 15th Defendant obtained a DNA report from Ms Morris of Long Beach Genetics USA showing that from the DNA tests conducted on the 15th Defendant, Lok Si and her children, that the 15th Defendant could not have been the son of Kwan Heng and Lok Si. Then on 28 October 1996, the 6th Defendant issued a summons applying for a letter of request to be issued to the judicial authority of Macau for the examination of the Director of Macau Identification Services and for his production of a signed application by "Daniel Kwan" for Macau identity card and related documents and a card bearing the fingerprints of the said "Daniel Kwan". The 15th Defendant then sought to have the application for letter of request adjourned.

5. While the application for letter of request and the DNA reports came to a halt, the matter took a sudden turn on 3 March 1998 when the 15th Defendant was arrested and charged of two counts of perjury and one count of making contradictory statements on oath relating to the Baptist College documents. The prosecution was the result of a complaint by the 6th Defendant to the Commercial Crimes Bureau. Eventually, on 20 January 1999, Deputy Judge Geiser in the District Court ordered a permanent stay of prosecution against the 15th Defendant.

6. On 9 February 1999, the 6th Defendant came to accept that he and the 15th Defendant are brothers and issued a summons to discontinue the Third Party Proceedings against the 15th Defendant. Then on Mr Harris' advice, the 6th Defendant sought leave to withdraw the summons to discontinue the Third Party Proceedings on the basis that the question of costs could not be disposed of unless the Third Party Proceedings were to be continued. That application was consented by Mr Callaghan on behalf of the 15th Defendant on 14 May 1999. On the same day, after hearing counsel on both sides, I granted the 6th Defendant's application for the issue of a letter of request.

7. On 17 December 1999, the solicitors for the 6th Defendant filed the Letter of Request (hereinafter called "the Letter of Request") with the Registry of the High Court. It was simply filed away by the Registry staff in the relevant file without further processing by the Registry. I must hasten to add that no fault at all could be attributed to the staff of the Registry for filing away the Letter of Request. Order 39 rule 3(2), Rules of High Court requires the party obtaining the order to "lodge" (not "file") the letter of request and other documents with the Registry. There are hundreds or even thousands of documents presented to the Filing Counter for filing every day, such as affidavits, witness statements and pleadings. Normally, these documents would require no attention by the Registry and would only be referred to when the matter next comes up for hearing. If action is required in respect of a document, it should be "lodged" with the Registry, i.e. either addressed to the appropriate action officer who would take follow up action or sent to the Registrar with a covering letter detailing the action required. In the present case, the Letter of Request should have been sent under a covering letter either to my clerk or to the Registrar requesting for it to be signed by the Registrar and then forwarded to the Chief Secretary for Administration for onward transmission to the judicial authority in Macau. But this step has not been taken and the Letter of Request lay dormant in the Registry.

8. The Letter of Request was only brought to the attention of the Registry by the Chief Secretary for Administration in December a year later as a result of enquiries from the solicitors for the 6th Defendant to the Chief Secretary. The Chief Secretary for Administration refused to forward the Letter of Request as there was no arrangement between Hong Kong and Macau for processing such Letter of Request. Then as a result of repeated pressure from those acting for the 6th Defendant, the Chief Secretary for Administration sent a revised Letter of Request to Macau SAR on an ad hoc basis in July 2001. That Letter of Request was executed by the judicial authority in Macau SAR, returned to the Registry and then forwarded to the solicitors for the 6th Defendant on 9 January 2002.

9. On the other hand, while the Letter of Request was lying inactive in the Registry, the 15th Defendant issued the three summonses referred to above. The first one was issued on 16 January 2001 in which the 15th Defendant sought an order that all evidence to be adduced under the Letter of Request be ruled inadmissible or alternatively an unless order that unless all such evidence be made available within 14 days the said Letter of Request shall be discharged and set aside, and consequential directions including trial of the Third Party Proceedings be proceeded on affidavit evidence. In the second summons issued on 28 May 2001, the 15th Defendant sought an order that my order for the issuance of the Letter of Request be set aside. On 10 July 2001, the 15th Defendant issued the third summons under Order 14 rule 5 seeking to have the 6th Defendant's claims in the Third Party Proceedings against the 15th Defendant dismissed with costs including the costs of the appeal on an indemnity basis; a declaration that the 15th Defendant is the legitimate child of Kwan Kai Ming and other alternative reliefs. The 6th Defendant resists the costs application on the ground that as the 15th Defendant had brought litigation on himself by reason of the Macau documents and the Baptist College documents, and should therefore be deprived of his costs.

10. All these summonses were set down for hearing before me on 4 October 2001 for one day, an estimate which is wholly inadequate in view of the issues involved and would result in nothing but delay and added costs. Apart from agreeing that the Third Party Proceedings against the 15th Defendant be dismissed and that a declaration be granted that the 15th Defendant is the legitimate child of Kwan Kai Ming, the applications sought in the three summonses are contested. On the assurance of Ms Chih that the second summons, i.e. the application to set aside my order for the issue of Letter of Request, could be disposed of within the day, I proceeded to hear the second summons. However, by the end of the day, Ms Chih could not even finish her submission and the hearing of all the summonses had to be adjourned. At the resumed hearing, the parties were only able to conclude their submissions in respect of the second summons. The hearing of the first and third summons had again to be adjourned. This decision is only related to the second summons.

Grounds for setting aside the Letter of Request

11. Ms Chih advances six grounds for setting aside the Letter of Request. These are:

(1) lack of jurisdiction to issue the Letter of Request;

(2) the 6th Defendant has never shown that the Director of Identification Services of Macau was unwilling and unable to be present in the Hong Kong Court to give evidence;

(3) serious delay in pursuing the Letter of Request;

(4) application for the Letter of Request was not made bona fide;

(5) the Director of Identification Services of Macau is unlikely to be able to give helpful, material or cogent evidence to assist the court; and

(6) the evidence to be obtained by the Letter of Request is entirely irrelevant and unhelpful in determining costs.

12. My order for the issuance of the Letter of Request was made on 14 May 1999. There was no appeal against that order. It would not be permissible for the 15th Defendant to seek to have it set aside in the absence of an appeal, except in very exceptional circumstances. In fact, it would not be open to the 15th Defendant to re-litigate on those issues which have or should have been argued. For these reasons, I shall not entertain the application on Grounds (2), (4) and (6).

13. As for delay, the solicitors for the 6th Defendant had promptly filed, though not lodged, the Letter of Request with the Registrar. That was their fault, but the 6th Defendant should not be penalised for the fault of his solicitors. In any event, as at the last hearing, a date has been fixed for the taking of the evidence before the judicial authority of Macau SAR and as at today, the Letter of Request has been executed and returned. There is no merit in setting it aside on the ground of delay. The question whether the Director of Identification Services of Macau is unlikely to be able to give helpful, material or cogent evidence is now academic. That has to be determined in the light of the evidence obtained from Macau SAR and in the light of the substantive hearing on the question of costs. It is really a question of weight to be decided in the light of the totality of the evidence. I shall not entertain the application to set aside the Letter of Request for Grounds (3) and (5).

14. That leaves the 15th Defendant with only Ground (1) for setting aside the order, i.e. whether I had jurisdiction to issue the Letter of Request; and if not, whether in the light of the circumstances, I shall set the order aside.

The basis for ordering the issue of the Letter of Request - relevance

15. To put the matter in its proper perspective, it would be appropriate to set out briefly the reasons for ordering the issuance of the Letter of Request. The application for Letter of Request was made under Order 39 rule 2. The 6th Defendant filed an affidavit of Ms Ana da Fonseca, a practising lawyer in Macau, as expert evidence that the use of letter of request is the correct procedure for obtaining access to the documents. In her affidavit, she gave the following expert opinion:

"Although the 1970 Hague Convention on the Taking of Evidence Abroad, signed by Portugal, has not been formally extended to Macau, the use of letters of request is well recognised in the jurisdiction. I am in a position to state from my professional experience that this is the correct procedure for the 6th Defendant to follow to obtain access to the documents referred to above."

By giving her opinion as an expert of Macau law that the use of letters of request is well recognised in Macau, Ms Ana da Fonseca must be taken to mean that the law of Macau provided for the processing of letters of request.

16. No affidavit in opposition was filed by the 15th Defendant. Mr Callaghan, who appeared on behalf of the 15th Defendant only sought to argue on the relevance of the evidence to be obtained by the Letter of Request. Accordingly, I proceeded to hear the application on the basis that all requirements under Order 39 rule 2 had been met, that is, while Macau was not a territory to which the Hague Convention applies, the use of letter of request was permitted by its local law. The only issue in dispute is the relevance of the evidence to be obtained by the Letter of Request.

17. In the light of the DNA evidence, the 6th Defendant now accepts that he and the 15th Defendant are brothers. His basis for resisting the costs application is that it was not until the DNA evidence had been presented did he realise they were brothers and that because of the Macau documents of 1957 and the Baptist College documents of 1959 he was led to the belief that the 15th Defendant was his cousin. Hence, he says the 15th Defendant has put litigation on himself and should not be awarded costs. During the third party proceedings, the 15th Defendant denied that he was the "Daniel Kwan" referred to in the Macau birth certificate. He refused to admit that he had falsely applied for a Macau passport or that he had used a certificate of attendance at Chung Tak Middle School to obtain admission to Hong Kong Baptist University. Release of Daniel Kwan's fingerprint card and application form for Macau identity card held by the Director of Identification Services of Macau will enable the signature on the application form to be compared with the 15th Defendant's signature on the application for entry to the Baptist College and for those fingerprints to be compared with the 15th Defendant's. The comparison will enable the 6th Defendant to establish that the 15th Defendant falsely applied for a Macau passport and hence put litigation on himself.

18. Usually, costs would follow the event. As the 6th Defendant now agrees that the Third Party Proceedings against the 15th Defendant be dismissed, he would have to pay the 15th Defendant's costs including the costs in the earlier Third Party Proceedings and the costs of the appeal, unless he can show that the 15th Defendant put litigation on himself. The burden is on the 6th Defendant. He has to show that unknown to the 6th Defendant, the 15th Defendant masqueraded himself as Daniel Kwan of Macau. Despite the Baptist College documents and the certificate of trial, the 15th Defendant was not prepared to admit anything other than that the Baptist College documents are false. He says he had no recollection about signing the documents. On the basis that the 15th Defendant was born on 15 October 1935, he was 22 years old when the documents relating to the application for Macau identity card were created and 24 years old when the Baptist College documents were created. It is hardly credible that a young man of his age was not able to realise then and not able to recollect now, the nature of the Baptist College documents he signed or if he had applied for Macau identity card and signed documents and made fingerprints for that purpose. That of course is a matter entirely for him. If he chose to conduct his litigation in this fashion, it is only reasonable that the 6th Defendant should have access to the evidence sought under the Letter of Request so as to prove that the 15th Defendant was the maker of the Baptist College documents and had knowledge of their falsity and that therefore he put litigation on himself by masquerading himself as Daniel Kwan of Macau. On that basis, I considered the evidence requested relevant. Of course, in addition, the 6th Defendant would still have to show that in conducting the Third Party Proceedings he relied on the Baptist College documents and had no knowledge of their falsity.

Jurisdiction to issue the Letter of Request to Macau

19. Whether Hong Kong court has jurisdiction to issue the Letter of Request to the judicial authority in Macau has been overlooked or happily assumed by Mr Harris, acting for the 6th Defendant, and Mr Callaghan, acting for the 15th Defendant. This question of lack of jurisdiction is now raised by Ms Chih. There is no dispute that Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (hereinafter called "the Hague Convention") did not apply to Macau at the time when order for the issuance of the Letter of Request was made in May 1999. To that extent, Ms Ana da Fonseca's opinion is correct.

20. The method and procedure for obtaining evidence abroad as stated by the learned authors of the then available Supreme Court Practice 1999 at paragraphs 39/3/3 and 39/3/7 are as follows:

"39/3/3 Method of obtaining evidence abroad (rr.2 & 3) Non-Convention countries - If it is desired to obtain the taking of evidence under r. 2 (i.e. before a special examiner) in a country with which no convention has been made, enquiry should be made of the Masters' Secretary's department (Room E218, R.C.J.) as to whether the local law permits it. It is an available method in the case of Egypt, ......"

"39/3/7 Procedure on letter of request to Non-Convention countries (rr. 2 & 3) - A letter of request is required from the High Court to a foreign Court to cause the evidence to be taken, and it may either ask for the interrogatories which accompany it to be put by the examiner (the usual procedure in many foreign Courts, where the Court alone puts the questions) or for the witnesses to be examined via voce upon the matters in question. The method by letters of request is now available for all countries, including Her Majesty's Dominions, and in some countries (such as Egypt) it is the only available method. Letters of request are dealt with in the office of the Masters' Secretary, Room E218 R.C.J."

"39/3/10 Practice in Ch. D. and Q.B.D. (rr.2 & 3) -

.........

In cases within this rule the letter of request is then signed by the Senior Master and transmitted to the Foreign and Commonwealth Office, for transmission to the proper Court; but where the matter is urgent it may be sent direct to a Court in Her Majesty's Dominions."

There are now similar statements in the Hong Kong Civil Procedure 2002 with the "Foreign and Commonwealth Office" replaced by the "Chief Secretary for Administration".

21. While the learned authors seemingly suggested in paragraph 39/3/7 that in the case of application for appointment of a special examiner to take evidence under rule 2(1)(b) enquiries should be made with the Masters' Secretary's department as to whether the local law of the recipient country permits it, I do not see any reason why similar enquiry should not be made in respect of application for letters of request under rule 2(1)(a) where no special examiner is to be appointed. It is a rule of prudence. In paragraph 39/3/2 of The Hong Kong Civil Procedure 2002, the authors suggested enquiries should be made in respect of applications under either rule 2(1)(a) or rule 2(1)(b).

22. Adapting the English practice to the Hong Kong situation, it would have required the 6th Defendant to enquire from the Practice Master as to whether the local law of Macau permitted the processing of letters of request. Apparently, this enquiry has not been done. While the enquiry itself is not a pre-requisite, the existence of a legislative framework in the recipient country permitting the processing of letters of request must be a pre-requisite before the court of the requesting country would order the issuance of a letter of request. Mr Harris argues otherwise. He submits that a letter of request is precisely what its name suggests: to make a request and see if it would be acceded to by the recipient jurisdiction. With respect, I differ from that view.

23. A letter of request issued by any judicial authority is a solemn request. In Hong Kong, it is issued upon the order of a High Court Judge. The Court expects the request will be acceded to by the recipient judicial authority and executed in earnest. It expects its request will not be ignored or disregarded at will. This expectation is not based upon international or judicial comity, but upon either a reciprocal international obligation or the existence of legislative framework in the recipient country to process such letters of request.

24. Furthermore, it is not just an ordinary request to probe the will of the recipient. It is a solemn and serious request. It is sent through diplomatic channel. In the United Kingdom, such letters of request, whether to Convention or non-Convention countries, are transmitted to the Foreign and Commonwealth Office for transmission to the proper Court. In Hong Kong, the letters of request are not sent direct to the recipient judicial authority by the Judiciary, but by the Chief Secretary for Administration to the "Central Authority" of the recipient country.

25. The power to order the issuance of a letter of request is a discretionary one under Order 39 rule 1. Such discretion must be exercised judicially. A letter of request, being a solemn request, is one which the Court expects will be respected by the recipient judicial authority and executed in earnest. The Court must not and will not expose itself to ridicule by sending such a solemn request to countries where it may be ignored or disregarded at will. In view of the above analysis, the discretion to order the issuance of a letter of request should only be exercised if there is an obligation on the part of the recipient judicial authority to execute the letter of request. The obligation may be an international obligation under a multilateral treaty, such as the Hague Convention, or a bilateral agreement in the form of an arrangement between the requesting and the recipient countries. At the minimum, there must be at least the existence of local law in the recipient jurisdiction providing for the execution of a letter of request. Thus, the Court will not order the issuance of a letter of request to a non-Hague Convention country with whom there is neither a bilateral agreement nor arrangement for its execution or whose local law does not provide for the execution of such letters of request.

26. There is no dispute that the Hague Convention had not been extended to Macau by Portugual when the order was made. The 6th Defendant's expert on Macau law could point to no multilateral or bilateral agreement creating an international obligation on Macau to execute letters of request. Quite on the contrary, in his letter dated 12 January 2001, the Chief Secretary for Administration confirmed that there is currently no arrangement in place between Hong Kong and Macau SAR for taking of evidence in Macau for use in civil proceedings instituted in Hong Kong. As the Chief Secretary for Administration is the central authority for forwarding letters of request to Convention or non-Convention countries, his opinion must be conclusive. Thus, there was no international obligation on Macau to execute the Letter of Request.

27. When Ms Ana da Fonseca's opinion is read with the above caution in mind, it appears that her opinion does not support the existence of any local law providing for execution of a letter of request. She deposes on her affidavit that on 30 April 1996 she petitioned for access to documents relating to the 15th Defendant held by the Director of Macau Identification Services who confirmed that he had the documents requested. She said her petition was refused with the following handwritten note from the Director:

"In terms of article 32 of Law Decree nr.79/84/M of the 21st July, information about civil identification can only be accessed by judicial magistrates, the Public Prosecutor and entities with competence to exercise powers relating to criminal investigations such as police investigations, denial of request. Notice."

According to the above opinion, the law of Macau permits release of identification information, which is the information sought under the Letter of Request, for use in criminal investigations only and not for purpose of civil proceedings. The Director's view must be more authoritative than that of Ms Ana da Fonseca's. He referred to authority in support of his proposition while Ms Ana da Fonseca's assertion now appears to be a bald one, unsupported by authority and inconsistent with the practice adopted by the authority in Macau. In the light of the above and of the opinion of the Chief Secretary for Administration, I am driven to the conclusion that Ms Ana da Fonseca's opinion is incorrect and that the local law in Macau does not provide for execution of letters of request or for release of the information sought under the Letter of Request for the use in civil proceedings.

28. Mr Harris relies on the comment by the learned authors in The Hong Kong Civil Procedure 2002 that "the method by letters of request is now available for all countries" as support for his proposition that the existence of an obligation or an arrangement for the execution of letters of request is not a necessary pre-requisite. I think such interpretation of the comments of the learned authors is out of context. While the procedure by letter of request is available to all countries, it remains in the Court's discretion whether to order the issue of the letter of request. For reasons as explained above, the Hong Kong court will not exercise the discretion in the absence of an obligation to execute letters of request on the part of the recipient country.

29. By reason of the above, I come to the conclusion that at the time of application for the issue of the Letter of Request in October 1996 to the time when its issue was ordered in May 1999 until 20 December 1999 when the People's Republic of China ("PRC") resumed exercise of sovereignty over Macau, Macau was not under any international obligation or domestic obligation by virtue of its local law to execute the Letter of Request. The existence of such an obligation is a pre-requisite, without which a Hong Kong court has no jurisdiction to order the issue of the letter of request. As such the order was made without jurisdiction. It is void ab initio and should be set aside.

30. As events turned out, the Chief Secretary for Administration forwarded the Letter of Request in July 2001, well after Macau became a special administration region of the PRC. Mr Harris refers to Articles 8, 18, 93 and 94 of the Macau Basic Law and submits that firstly these articles indicate that the laws previously in force in Macau continue as part of the laws of Macau SAR and secondly that in accordance with these articles Macau SAR may enter into judicial relations with and render judicial assistance to other parts of the PRC through consultation without the need for any prior arrangement.

31. I have no doubt what Mr Harris submits represents the present state of the law in Macau SAR. However, his first proposition has no relevance to the present situation. Whether I have jurisdiction to order the issue of the Letter of Request has to be determined according to the law at the time the order was made and whether the Letter of Request may validly be transmitted has to be determined as at the time when it was transmitted to the recipient country. The position at the time of making of the order is clear. Macau was under no international obligation or domestic obligation by virtue of its own laws to execute Letters of Request. The position at the time when the Chief Secretary for Administration actually transmitted the Letter of Request in July 2001 is interesting. The Hague Convention was only extended to Macau by Portugual while it was still responsible for its international relations and to enter into force on 14 December 1999 for a period of six days until 20 December 1999 when Macau became a special administrative region of the PRC. Thereafter, the Hague Convention was extended to Macau SAR as part of the PRC. Thus, Macau was not under any international obligation as part of Portugual to execute letters of request except during the window of 6 days from 14 to 19 December 1999. Thereafter, it is under an international obligation to execute letters of request as part of the PRC. Interestingly and regrettably for the 6th Defendant, the Letter of Request was filed but not lodged or transmitted during that window of 6 days. However, when the Letter of Request was transmitted in July 2001, both Macau and Hong Kong are part of the PRC. What used to be Macau's international obligation towards Hong Kong under the Hague Convention during those 6 days was extinguished when Macau became part of the PRC, as the Convention could have no application as between territories of the same sovereign power. Thus, despite that the Hague Convention was extended to Macau SAR at the time when the Letter of Request was actually forwarded, Macau was under no international obligation as respects Hong Kong to execute the Letter of Request.

32. Mr Harris' second proposition that Macau SAR has power as at the date of receipt of the Letter of Request to render judicial assistance to other countries cannot remedy the lack of jurisdiction on the part of the Hong Kong court in making the order. In any event, even if Macau had power to render judicial assistance to other countries, that could in no way affect how the Hong Kong Court is to exercise its discretion in ordering the issuance of a letter of request. For reasons as explained above, a letter of request is a solemn request and the court will not order its issue unless there is in place an arrangement for its execution. The court will not order its issuance and then await the administration to negotiate its execution before actually transmitting it to that foreign jurisdiction. That would be putting the cart before the horse and rip a letter of request of its solemnity.

Jurisdiction to set aside seal and perfected order

33. Whatever may have been the situation, Mr Harris submits that once the order has been drawn up and perfected the court would be functus officio and had no further jurisdiction over the case. He relies on Andayani v Chan Oi Ling [2000] 4HKC 233 as authority in support of his proposition. While that proposition is in general correct, the court has undoubted inherent jurisdiction to review itself if its order was obtained as result of abuse of the process of court. In Re Ng Fook (Deceased) 1998 1 HKC 489, the executor obtained an order in the absence of the appellant caveator striking out his caveat (the "1996 order"). Unknown to the master making the order, the caveator had applied for legal aid and hence did not attend the hearing expecting that legal aid notification would invoke an automatic stay of proceedings. The caveator's application to set aside the 1996 order was refused (the "1997 order"). In allowing the appeal, Waung J held at 493:

"In my view, an abuse of process does give rise to the inherent jurisdiction of the court to set aside an order such as the 1996 order. I did not think much of Mr Pow's submission that Master Jennings would have no jurisdiction three days after he made his 1996 order to hear an application to set aside his own order because it seems to me an insult to proper administration of justice that in a situation such as the making of the 1996 order which was plainly an abuse of the court process that the parties and the court are forced and restricted to the far greater burden of an appeal to judge in chambers (within seven days)."

34. I agree entirely that an abuse of process does give rise to the inherent jurisdiction of the court to set aside its own order. The order was made without jurisdiction. It is void ab initio and must be set aside, no matter by which route. It is an insult to the administration of justice if the court should give effect to an order which was made without jurisdiction and as a result of an abuse of process merely because it has been sealed and perfected. This court has been misled into making the order on the basis of the expert opinion of Ms Ana da Fonseca presented by the 6th Defendant, which has been shown to be incorrect. In an application such as this, involving foreign law, the court relies on the applicant to provide a correct statement of the law of that foreign jurisdiction. It is an abuse of process, if in so doing the applicant makes misrepresentation as to the law of that foreign jurisdiction, albeit innocently. The order thus obtained by misrepresentation of foreign law which formed the basis of the grant of the order must be set aside. This is an abuse of process. It makes no difference whether the order has been sealed and perfected. In my view, no nullity could ever be perfected.

35. Furthermore, letters of request are a peculiar category of document. They are solemn judicial documents sent through diplomatic channel obligating another judicial authority to take evidence because it is under an international or domestic obligation to render assistance. It would be a serious abuse of process to make such a request when there is no basis for making it. It brings our Court into disrepute by making a request of the recipient judicial authority when there is no obligation on the part of that recipient authority to accede to our request. Not only that, to request the judicial authority of Macau to take evidence under circumstances when its local law does not permit the taking of such evidence, particularly for the purpose of civil proceedings, is a serious breach or transgression of the law and administrative practice both in Macau and in Hong Kong. It amounts to requesting the judicial authority of Macau to commit an act ultra vires its own law. It could not be right for a judicial authority to make such a request of another. It could not be right for our court to have done so.

36. It is unfortunate that the Chief Secretary for Administration has succumbed to counsel's pressure and sent the Letter of Request which has now been executed and returned. Despite that, if the order for its issue is a nullity, the order remains a nullity and must be set aside, notwithstanding that the judicial authority of Macau has acceded to the request. It would be contrary to public policy to allow the order to stand merely because the Letter of Request has been executed. To do so would encourage unscrupulous attempts to abuse our legal process, thereby bringing our courts to disrepute and eroding the trust foreign judicial authorities have in our legal and judicial system. The order must be set aside.

Conclusion

37. Accordingly, I set aside my order of 14 May 1999 for the issuance of the Letter of Request. I also make an order nisi that the 6th Defendant shall pay the 15th Defendant's costs of this application, including the costs thrown away on a party and party basis, to be taxed if not agreed.