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

Headnote

    The usual interrogatories practice applies to interrogatories sought in support of a Mareva injunction by an inter-partes summons. Any suggestion by the proposed deponent of self incrimination gives rise to no objection to the making of the order if the point is to be taken it must be taken on oath in the answer. Different considerations apply to orders made ex parte eg of the Anton-Piller type.

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J U D G M E N T

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Hunter, J.A.:

1. This is an appeal by George Tan Soon Gin, the first Defendant, against that part of the order of Mortimer J made on 9th January 1989 which ordered him to disclose on affidavit the identity of the holder, the money held and all transactions passing through four named Swiss bank accounts namely :-

(i) Account No. 88106 with TDB, American Express Bank, Zurich;

(ii) Account No. 188788 with Credit Suisee, Zurich;

(iii)   Account No 27505 with Swiss Bank Corporation, Zurich; and

(iv)   Account No 27696 with Swiss Bank Corporation, Zurich.

2. The background is exceedingly complex. For an understanding of this appeal a short summary suffices. The third plaintiff was formerly known as Bumiputra Malaysia Finance Limited (BMFL). The first plaintiff, Petronas, and the second plaintiff (BB MB), are formal parties to the proceedings by reason of assignments. On 4th & 9th February 1983 BFMF advanced a total of US$40m to/ the Bank of Communications (BOC). Agency and loan agreements of 9th & 11th February 1983, and guarantees of the same dates given by the appellant, purported to show that this total sum was loaned by BOC, as agent for BMFL, to Carrian Nominees Limited (CNL) against the security of the said guarantees. In December 1983 BMFL sued CNL to judgment upon the basis of these agency and loan agreements, and also sued the appellant Under the said guarantees. The claims were resisted by the appellant, and by further order of Mortimer J that action has been consolidated with the present proceedings.

3. By the present action, which was commenced on 13th December 1988, the plaintiffs claimed (inter alia) that the documents above referred to were the product of a fraudulent conspiracy described in the consolidated Statement of Claim as follows:

"THE FIRST CONSPIRACY

"13.    Between October 1982 and the 31st of October 1983 Osman and Shamsuddin (servants of BMFL) conspired in Hong Kong with each other and with George Tan and Jafaar (another servant) to defraud BMFL and BBMB by dishonestly causing and permitting BMFL to advance and the Carrian/George Tan Group to receive the sum of US$40 million and by dishonestly causing and permitting the same to remain unpaid in the circumstances hereinafter pleaded".

In addition to claiming against the appellant damages for conspiracy, the plaintiffs allege that the total fund of US$40m was by direction of the appellant transferred into the name of two corporations. Spartan Investment Limited and Paris Ride Limited, which are alleged to be owned and controlled by the appellant, so that the appellant became a constructive trustee of the fund.

4. It is further alleged that the said fund was intended to be used to constitute an escrow account associated with an attempt to rescue the Carrian/George Tan Group of Companies. As soon as this rescue attempt failed in September 1983, it is alleged that the appellant was party to what the consolidated Statement of Claim describes as a "Second Conspiracy" in these terms :

"30 (i) Further, between late September 1983 and late October 1983 George Tan, L P Leong and other persons unknown conspired together and with each other to defraud BBMB and BMFL by dealing with and disbursing the moneys represented by the balance of the escrow fund returned to Spartan, with the intention of hindering its identification and recovery by BMFL and BBMB".

5. The balance of the escrow fund so returned to Spartan was alleged to amount to US$167,793,326. This, it was alleged was distributed in or through the accounts named in the order namely:

(i) No 88106: US$1,584,733 in the code name of "Tramp"

(ii)    Account No 188788: US$10,667,713 in the code name "Barley".

(iii) & (iv) Accounts 27505 & 27693: US$2,057000 in the name of the fourth and other defendants.

It is further averred that the appellant controls the first and second code named accounts.

6. On 13th December 1988 Mortimer J granted the plaintiffs relief by way of injunction freezing the said accounts, which relief was later extended until trial or further order without objection from the appellant. The appellant filed no evidence, but through the mouth of his solicitor :

(i) Asserted that he did not "own, either legally or beneficially, or control the four accounts referred to in the Order of 13th December 1988 and that he had no interest in them".

(ii)    Objected initially to the making of the disclosure order upon the ground that there was no basis for it in fact or law.

(iii)    Later objected that the making of any such order was "pointless" or "oppressive" because he could do no more than put on an oath the matter asserted in (i) above.

The was no substance in objections (ii) and (iii) which were not pursued before us.

7. The sole objection to the order now advanced by Mr Robin Potts, QC, on behalf of the appellant, was first raised upon an application for a stay made to Penlington JA on 23rd January when leave to effect the following amendment to the Notice of Appeal was granted :

"(aa)    The 1st Defendant had prior to the commencement of these proceedings been charged with conspiracy to defraud contrary to common law. The said charge alleges that he did between October 1982 and the 31st October 1983 conspire with Lorrain Esme Osman, Tan Man Kou Mohammed Hashim Shamsuddin, Rais Saniman, Ibrahim Jaafar and David Pyott and others unknown to defraud Bumiputra Malaysia Finance Limited (BMFL) by dishonestly causing the permitting BMFL to Carrian Nomiees Limited (CNL). The said charge remains outstanding. In the present civil proceedings the Plaintiffs claim damages as against the 1st Defendant for fraudulent conspiracy in respect of the same transaction. In such circumstances the older aforesaid made by the Honourable Mr. Justice Mortimer on 9th January 1989 ought to be set aside against the 1st Defendant in that it violates the privilege of the 1st Defendant to refuse to answer questions the answers to which might tend to incriminate him".

8. The facts alleged down to the phrase "the said charge remains outstanding" are not in issue. At the hearing leave to make a further amendment to the Notice of Appeal was given by adding after that phrase the following :

"There is a risk, which is neither remote nor fanciful, that further charges may be Iaid against the first defendant in respect to the same transaction, including a charge of conspiracy to steal, contrary to common law, from BMFL the aforesaid sums totalling US$40 million".

9. The first, and really preliminary, point taken by Mr Charles Ching, QC, for the plaintiffs on this appeal was that the appellants objection, despite its lateness in fact was still premature. The order made was sought by an interpartes summons dated 29th December 1988. Most unsatisfactorily, the order appealed from has not been put before us, and does not appear to have been drawn up. But we have been told that the oral order gave the appellant 14 days for compliance. In such circumstances submits Mr Ching, the ordinary interrogatories practice described in note 26/1/17 to the Annual Practice applies namely:

"The fact that the answer to interrogatories sought to be delivered would or might tend to incriminate the party interrogated is no ground for objecting to leave being given to deliver them ....; but any objection to answer on this ground must be raised in the answer".

10. In the leading case of National Association of Operative Plasterers v Smithies [1906] AC 434, the House of Lords upheld this practice. Lord MacNaghten quoted with approval from the judgment of Cotton LJ in Allhusen v Labouchere 3 QBD 654 where he said :

"He may say, if he thinks fit, 'I refuse to answer on the ground that the answer may tend to criminate me'; but then he must take the objection on his oath, and if he does raise that objection on his oath in the proper way he is not bound to answer the interrogatory".

11. This, says Mr Ching, is more than a procedural objection. There are, he suggests, serious questions as to whether the appellant genuinely fears self-incrimination, and whether any such fear can be shown to be founded upon reasonable grounds. It is therefore, he suggests, important for the appellant, if he is so minded, both to take the point and to explain himself, on oath.

12. Mr Potts concedes that note 26/1/17 describes the general practice. But he submits that this is an exceptional case.

13. First and foremost, he relies upon the decision in Rank Film Limited v Video Information Centre [1982] AC 380, where he can fairly assert that both the Court of Appeal, by a majority, and the House of Lords disallowed similar interrogatories at a stage equivalent to the present. But that decision in our view is of no help to him for a number of reasons.

14. First the report of the argument at P 433F shows that in that case, the appellants, who were seeking to uphold the order, far from taking this point, had agreed with the respondent to invite the court not to take it, and to deal with the point of principle raised in relation to Anton Piller type orders.

15. Secondly in the Court of Appeal, Templeman LJ, at P 419, regarded the normal practice, which Lord Denning MR wished to apply, at p 411, as inapplicable, on the grounds that the order in question was made ex parte, and took effect almost at once giving the deponent no real opportunity for taking or considering legal advice. Lord Wilberforce seems to have agreed with this, at p 443, and regarded both that and the first point as sufficient for the House not to follow the usual practice.

16. Before the Rank case reached the House of Lords, the selfsame point arose before the Court of Appeal in A J Bekhor & Co Ltd v Hilton [1981] QB 923 Both Ackner LJ (p 945) and Griffiths LJ (p 949) expressed the view that the Court of Appeal decision in the Rank case in no way detracted from the general principle, and that it was the special circumstances of that case which made it exceptional. The House of Lords decision is wholly consistent with this.

17. Secondly Mr Potts submitted that this case was except ional because everything relevant was known and it would be a waste of time to require the appellant to go on oath. We reject this submission, first, because it amounts to a denial of the principle itself. The suggested exception would be as wide as the principle. Secondly it is not weir founded in fact. We accept Mr Ching's submission that there are a number of serious questions which are outstanding. These include, first, the problem of reconciling the turth of the affirmation made by the appellant in the guarantee proceedings with a genuine present fear. Secondly there is the remoteness between the criminal conspiracy charged, which is directed to "causing and permitting BMFL to make advances totalling US$40m to CNL", and the information sought by the interrogatory which goes to the dispersal of the balance of the fund after the rescue operation tied failed. Thirdly in relation to the most recent amendment to the notice of Appeal, there is the question of the reality or likelihood of any further charges being added to the 23 which we are told are already outstanding affidavit Mr Hoare of 15th December 1988.

18. For these reasons this appeal fails and must be dismissed. AS it is dismissed with costs, it is unnecessary to deal with the cost order made by Penlington JA.