WANG DIN SHIN v. NINA KUNG

CACV 460/2002

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 460 of 2002

(on appeal from HCA P8 of 1999)

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REASONS FOR DECISION

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Hon Yeung JA:

1.  On 17 November 2004, we unanimously granted leave to the Applicant to appeal to the Court of Final Appeal against our judgment, and we reserved on the costs of the application. These are the reasons for our decision and the costs order we make.

2.  Our judgment, handed down on 28June 2004, was a majority decision by which we dismissed the Applicant’s appeal against the judgment of Yam J.

3.  The Applicant seeks leave under section 22 (1) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (the Ordinance) to appeal to the Court of Final Appeal.

4.  The application is premised on both limbs of section 22(1) of the Ordinance, namely (a) that the matter in dispute amounts to or is of the value, and/or involves, directly or indirectly, some claim or question to or respecting property or civil right exceeding $1 million; and (b) that the questions involved in the appeal are those which, by reason of their great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

5.  Having considered the joint written submission of Mr Thomas SC, Mr Chang SC, and Mr Sujanani, on behalf of the Applicant, but without the benefit of any oral argument, I am not persuaded that the case involves any question of great general or public importance.

6.  Despite the various issues raised both at trial and on appeal, the central issue was and remains to be “whether the purported signatures appearing on the 1990 documents are those of the deceased”. On that issue, there is a concurrent finding of facts against the Applicant.

7.  Issues relating to Chinese wills cease to have any significance by reason of the revocation of the former section 5(2) of the Wills Ordinance (Cap. 30).

8.  However, the case concerns the right to inherit an “enormous estate” of the deceased.

9.  Mr Edward Chan SC, on behalf of the Respondent argues that the dispute between the parties is not who is entitled to the property composing the estate of the deceased, but the right to administer the estate and as such the size of the estate could never be an issue for determination. He suggests that the court should adopt a narrow approach to the interpretation of section 22(1)(a) of the Ordinance.

10.  Mr Chan refers to a number of authorities to support his contention that for unliquidated claims for damages for breach of contract and tort, there is no automatic right to appeal even though the damages awarded in the judgment exceeding $1 million.

11.  I accept that the dispute between the Applicant and the Respondent, as in every probate action, primarily concerns the right to administer the estate of the deceased.

12.  However, it is not disputed that as between the Applicant and the Respondent, whoever succeeds in the probate action, would be entitled to the entire estate of the deceased. There could be no other beneficiary.

13.  It is not a case of a party making a claim for unliquidated damages or making a claim exceeding $1 million and has to rely on the court’s assessment to determine his actual entitlement.

14.  As between the Applicant and the Respondent, it is “a winner takes all situation” and there can be no dispute that the estate of the deceased far exceeds the amount prescribed in the Ordinance.

15.  I am persuaded that the appeal does involve, directly or indirectly, some claim or question to or respecting property or some civil right exceeding $1 million and as such, the Applicant is entitled to appeal to the Court of Final Appeal as of right.

16.  In any event, a huge estate worth “billions of dollars” is at stake and the decision of this court, being a majority decision is also a judgment in rem. In the circumstances, I am also persuaded that the “otherwise” provision should be invoked.

17.  I would therefore grant leave to the Applicant on both limbs under section 22(1) of the Ordinance to appeal to the Court of Final Appeal.

18.  I see no reason to depart from the usual costs order that costs of the application should be in the cause of the appeal.

Hon Yuen JA:

19.  I have had the benefit of reading in draft the reasons for judgment of Hon Yeung JA and Hon Waung J.  My reasons for giving leave are set out below.

20.  I consider the Appellant (Applicant) should be given leave to appeal to the Court of Final Appeal under s.22(1)(a) of the Hong Kong Court of Final Appeal Ordinance as it is at least reasonably arguable on the Australian and New Zealand cases to which we have been referred that "the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1,000,000 or more". 

21.  Although the High Court of Australia in Tipper v Moore (1911) 13 CLR 248 referred only to the "matter at issue" limb (i.e. s.35(1)(a)(1) of the Judiciary Act 1903), Latham CJ in the same court in Oertel v Crocker [1947] 75 CLR 261 explained the decision (at 268) by holding that the judgment in Tipper "directly determined claims to property of a value exceeding £300" (i.e. s.35(1)(a)(2) of that Act).

22.  Particularly apposite in the circumstances of the present appeal is, in my view, the observation of O’Leary CJ of the New Zealand Court of Appeal in In re White (Deceased), Brown and others v Free and others (No.2) [1951] NZLR 428 at 431:

"The application of the text of the Rule to litigation which was in respect of testamentary capacity is not easy.  It is not apt to fit such a case.  But in the Court’s view, the real issue is whether the directions of a testatrix regarding the disposition of approximately £8,000 were valid in law, and the real interest of the respondents is that the testamentary document containing the directions, which was propounded by them, should be upheld.  To regard the case as not one in which ‘directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of five hundred pounds sterling or upwards’ seems to us to ignore the realities of the position".

23.  Even if the above view is wrong, and s.22(1)(a) cannot apply to a probate action by reason of a narrow construction of the statute, I consider that the court should exercise its discretion to give leave to appeal under the "or otherwise" ground in s.22(1)(b).  Historically, the courts have always attached great importance to the grant of probate, whatever the size of the estate.  Indeed, s.3(2) of the Probate and Administration Ordinance, Cap. 10 (which is derived from s.2(1) Administration of Justice Act 1932, now s.25 Supreme Court Act 1981) gives the court jurisdiction to issue a grant of probate even where the deceased person left no estate.  It is common ground that the estate involved here is very large, many times more than the sum where leave to appeal to the Court of Final Appeal is given as of right in a simple debt action.  It would in my view be incongruous not to grant leave in a probate action involving such a large estate.

24.  As to costs, this case has since its inception been hard-fought at every turn and it was not at all surprising that three counsel appeared for each party.  Although leave has been given, I for one cannot say that Mr Edward Chan SC’s submission against the grant of leave as of right was so devoid of merit as to be frivolous.

25.  I see no reason to deviate from the usual order that the costs of the application for leave be in the cause of the appeal.

Hon Waung J:

26.  I agree with the Judgment of Yeung JA relating to “appeal as of right” and “or otherwise”.  I also agree with the Judgment of Yuen JA except as to costs.  I would however like to give my additional reasons why leave to appeal to the Court of Final Appeal ought to be granted.

27.  This Application for Leave to Appeal to the Court of Final Appeal is based firstly on the ground that an appeal lies as of right under Section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance (“Ordinance”) and alternatively on two separate discretionary grounds firstly of “or otherwise” under Section 22(1)(b) and secondly that the questions involved on the proposed appeal are of great general or public importance under Section 22(1)(b) of the Ordinance.

28.  Section 22(1) of the Ordinance provides as follows:-

“	(a)	as of right, from any final judgment of the Court of Appeal in any civil cause or matter, where the matter in dispute on the appeal amounts to or is of the value of $1,000,000 or more, or where the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1,000,000 or more;
	(b)	at the discretion of the Court of Appeal or the Court, from any other judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court for decision; and”

29.  Section 22(1) is in the same format containing materially the same provisions as the previous Order in Council governing appeals from Hong Kong to the Privy Council, which itself was also in the same format with materially same or similar statutory provisions providing for appeals to the Privy Council from the various colonies and British Dominion territories. (see Bentwick on Privy Council Practice, 3^rd ed. at page 103 which said:  “in nearly every place where the Sovereign has jurisdiction, the conditions of appeal  in accordance with the royal grant have been laid down by Orders in Council on a uniform scheme.”)  

30.  The Application for leave to appeal on both grounds is opposed by the Respondent.  There is no dispute between the parties that the Judgment of the Court of Appeal, the subject matter of the proposed appeal, is (1) in a civil cause or matter and (2) is final.  Mr. Edward Chan SC for the Respondent however disputes everything else in Section 22(1)(a) and (b) as being applicable to the proposed appeal.

APPEAL AS OF RIGHT

31.  The case of the Applicant that she has a statutory right of automatic appeal under paragraph (a) of Section 22(1) is put on 2 separate basis by Mr. Thomas for the Applicant:-

(A)	The matter in dispute exceeds $1 million;
(B)	The appeal involves a claim/question respecting property worth in excess of $1 million or a claim/question respecting some civil right of a value exceeding $1 million.

Matter In Dispute Over 1 Million

32.  What is the matter in dispute between the parties.  Of course the validity of the two wills is the subject matter of the contest.  But what the two parties are disputing is not merely the validity of the two wills but the entitlement under the two wills to the beneficial interest in the estate of Teddy Wang (“the Estate”).   This is not a case where the Estate was given to various persons under the will.  In the 1968 Will the Estate was given to the Father.  In the 1990 Will the Estate was given to the Wife.

33.  The matter in dispute in this civil cause (and also on appeal) is therefore the beneficial interest of the Wife and the Father in the Estate.  That this is so is clearly brought out by the pleadings (see paragraphs 2,3 and 6 of the Statement of Claim and paragraphs 3,4 and 6 of the Amended Defence and Counterclaim.)  That is not only the issue in the pleadings but that is also the reality of the protracted litigation.

34.  The matter in dispute in the appeal is therefore the entitlement to the Estate or the beneficial interest in the Estate and there is no doubt that the Estate is in excess of $1 million in value.  It seems to me therefore clearly established by the Applicant that the proposed appeal falls within the clear ambit of paragraph (a) of Section 22(1) of the Ordinance.

35.  Authority supports this view of the appeal “as of right” when the dispute is over the entitlement to the estate of a deceived under a contested will.  In Tipper v Moore [1911] 13 CLR 248 the dispute is over the validity of a will whereby the estate of ₤1,034 value was given by the deceased wife testatrix to her husband.  One of the three sons contested the will and if successful he would on intestacy be entitled to less than ₤300.  Under the Judiciary Act of 1903 (in similar terms as the traditional Order in Council or statute governing jurisdiction of appeal to Privy Council) the limit for appeal as of right is ₤300.  Chief Justice Griffith held that the appellant is a competent suitor because the matter at issue being the estate is of a value over the statutory limit. An appeal therefore lies as of right.     

Directly Or Indirectly Some Claim Or Question To Or Respecting  Property Or Some Civil Right

36.  The compendium double-headed alternatives under the second part of paragraph (a) of Section 22(1) makes it clear the very wide basis upon which the statute confers the right of appeal to the highest appeal court. The question is whether the proposed “appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1,000,000 or more”.

37.  The pleadings which I referred to earlier clearly show that there was a claim to property namely the Estate, as well as civil right, which in value is over the $1 Million limit.  The discussions in the authorities starting from Macfarlane v Leclaire (1862) 15 Moore’s P.C. Cases 181, 187 through Oertel v Crocker (1947) 75 CLR 261 (see pages 268, 270, 275) by way of Becker v Marion City Corporation [1977] AC 271 at 283-4 (confirming Meghji Lakhamshi v Furniture Worshop [1954] AC 80 at 88) all revolve on the criterion of applying the statutory limit value.  Is the statutory limit value to be applied to the whole of the value of the property simpliciter or to the value of what is to be gained or lost by the judgment sought to be appealed.  The Estate in our case and what is to be gained or lost by the Applicant, is of such enormous value that by whatever tests applied, there is no risk that it might fall outside the text of paragraph (a) of Section 22(1)(a).   

38.  Paragraph (a) of Section 22(1) has a wide ambit, contrary to the narrow way, unsupported by authorities, which Mr. Chan seeks to read down that provision. In this context, the judgment of Re White (No.2) [1951] NZLR 428 of the New Zealand Court of Appeal is of interest.  There, the directions in the will regarding disposition of  ₤8,000 was held by the New Zealand Court of Appeal to be invalid.  The appellant seeks leave to appeal to the Privy Council and contends that appeal lies as of right because the matter in dispute is above the statutory limit.  Against the opposition of the respondent, the New Zealand Court of Appeal accepts that there is appeal as of right.  At page 431 this is said:-

“… and the real interest of the respondents is that the testamentary document … which was propounded by them, should be upheld.  To regard the case as not one in which “directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of … or upwards” seems to us to ignore the realities of the position.”

39.  Mr. Chan valiantly sought to argue that there is no right of appeal in this case.  His resort to authorities on limited jurisdiction in respect of divorce appeals and appeals in relation to claims for unliquidated damages does not assist either in the task of reaching proper construction of the statutory words or in understanding the statutory jurisdiction limit to probate actions involving a deceased person leaving a substantial estate.            

40.  If I have understood the arguments of Mr. Chan correctly, he is contending that no matter how large is the contested estate of the deceased, all probate actions where the will is contested, fall outside the “as of right” appeal given by Ordinance.  The proposition is so extreme and seems to fly against all common sense that I personally have the greatest difficulty in accepting the proposition and the argument supporting that proposition.  Dispute over wills throughout centuries have been one of the most important features of the common law proceedings.  The passing of a large estate is of such enormous significance that it is difficult to envisage that the Crown and the legislature in all the British Dominion somehow deliberately left it outside the “as of right” category and yet no great cases had been argued against such proposition.

41.  In my view, the opposite is the case.  This explains why there is no authority in support of Mr. Chan’s proposition or argument.  There is no authority in support of the jurisdictional exclusion in respect of probate actions contended by Mr. Chan.

42.  A cursory look into the Law Reports for the period, say the early twentieth century when the Privy Council was occupied with large varieties of appeals from territories in the British world, reveal the existence of many probate appeals heard by the Privy Council where the subject matter was contested will. In each of these cases, the appeal seemed to have been brought “as of right” and not pursuant to discretionary special leave being given:-

(1)	Allan v Morrison (1900) AC 604 (appeal from New Zealand on lost will);
(2)	Perrera v Perrera (1901) AC 354 (appeal from Ceylon on execution);
(3)	Karunaratne v Ferdanandus (1902) AC 405 (appeal from Ceylon on partial invalidity of will);
(4)	Baudains v Richardson (1906) AC 169 (appeal from Jersey on undue influence);
(5)	Craig v Lamoureux (1920) AC 349 (appeal from Canada on undue influence).

43.  Against this historical fact, Mr. Chan seeks to argue that by reason of what is called a detected recent change of practice of the Court of Final Appeal (as sought to be extracted from recent decisions of the Court of Appeal and of the Court of Final Appeal), it is open to us to read down the statutory provision under paragraph (a) so as to shut out all probate appeals from the “as of right” privilege previously conferred by all British Dominion courts and by the Privy Council. With the greatest respect to Mr. Chan I am of the view that he errs both on his premise as well as his conclusion.  The perceived change of practice if any (which I doubt) is in the context of unliquidated damages appeal.  Even if there was a change of practice, that cannot by itself elevate to a totally opposite construction of paragraph (a).  This is certainly not a course open to us in the Court of Appeal.

44.  In my judgment, the Applicant has plainly made out a clear case of the proposed appeal being competent and “as of right” pursuant to Section 22(1)(a) of the Ordinance.  Leave to appeal to the Court of Final Appeal therefore must be given.

45.  In addition to the Applicant having satisfied the requirement of paragraph (a), in my view the Applicant has also correctly relied on paragraph (b), both in respect of “or otherwise” as well as by reason of questions of great, general and public importance sought to be raised in the proposed appeal.

OR OTHERWISE 

46.  I deal with “or otherwise” first because it seems to me that even on the very high burden required for this head, the Applicant has clearly shown that leave to appeal ought to be given.

47.  It is of course well known, as was said by Bokhary PJ in Hui Yiu Wing v Regional Council (FAMV 16/2002) that leave under that limb “or otherwise” is “an exceptional course”.  Le Pichon JA said in Fu Lok Man James v Chief Bailiff of the High Court (No. 2) [2003] 2 HKC 687 “Only exceptional circumstances would warrant such leave.”  The same sentiment was also expressed in Hui Shiu-wing v Cheung Yuk-lin [1968] HKLR 176 where reference was made to “circumstances must be exceptional” (per Blair-Kerr J. at page 188) and “present any unusual feature either of law or fact” (page Mills-Owens J. at page 191).  An example of this unusual features being present can be found in Swire Properties v S-J [2002] 4 HKC 134 where Rogers VP granted leave to appeal under the “or otherwise” head. 

48.  By any standard, this case and its appeal must be called exceptional, not only as to the facts, not only as to the persons, not only as to the amount, not only as to the law but also in terms of everything connected with the proceedings and what have been said to be unprecedented in practically everything connected with the case.  In many ways, it can be said to be the model of what should not happen in Hong Kong proceedings, probate or otherwise.

49.  Having lived with this case now for some time, speaking for myself, I can only say that if this is not an “or otherwise” case then no case in Hong Kong can ever properly qualify.  For me, it meets even the most stringent requirement set by the Court of Final Appeal.   

GREAT GENERAL PUBLIC IMPORTANCE

50.  In the light of Yeung JA not accepting the “great general public importance’ ground, it is necessary for me to say briefly a few words on this discretionary ground.  The Applicant has identified 7 questions under this limb of paragraph 22(1)(b) of the Ordinance.  I agree with the Written Submission of the Applicant that these questions, either individually or collectively, by reason of their great general or public importance ought to be considered by the Court of Final Appeal.

51.  I am of the view that this proposed appeal raises serious and exceptionally important questions of probate law and practice.  Hong Kong can substantially benefit from guidance from the Court of Final Appeal as to the correct approach in contested cases to the proof of wills and to the inter-relationship between due execution, defence to execution, forgery, pleadings (or lack thereof) and evidence.  What is also of great general public importance is the apparent miscarriage of justice which is alleged (where the Court of Appeal was divided) and raised for Hong Kong the fundamental question of the constitutional requirements of a fair trial.

52.  It seems to me that having regard to the complexity of the case, the decision and the reasoning of the Court of Final Appeal on the proposed appeal is likely to be looked at closely in the future by the legal community of Hong Kong and issues which will be dealt with by the Court of Final Appeal will not be merely confined to the narrow question of whether the signatures in the 1990 Document were those of the deceased.  For these reasons, I am of the view that the questions sought to be raised in the proposed appeal are deserving of consideration by the Court of Final Appeal by reason of their great, general or public importance.  

COSTS

53.  I am finally of the view (unfortunately in the minority) that the Applicant is entitled to the costs of the hearing of this Application which has been substantially increased by reason of the wholly unsuccessful resistance of the Respondent to the Application.  In my view, this is a case where it had been staring in the face of all parties that the Court of Final Appeal must inevitably have to look at the whole matter and it is wholly unreasonable for the Respondent to erect the stiff barricade resistance to the Application.  Having regard to the fact that a normal application will have to be made in any event to the Court (attended by junior counsel) and that therefore not 100% of the costs of the Application should be borne by the Respondent, I believe it is only right in the circumstances, that 90% of the costs of the Application should be awarded to the Applicant against the Respondent. 

Hon Yeung JA:

54.  By a majority decision, costs of the application for leave be in the course of the appeal in the Court of Final Appeal.