WANG DIN SHIN v. NINA KUNG

CACV 1479/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1479 OF 2001

(ON APPEAL FROM HCAP 8 OF 1999)

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J U D G M E N T

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Hon Mayo VP:

1. This is an appeal from a decision from Yam J when he declined to order a stay of this Probate Action. The order was made on 20 June 2001 and as at the date of this appeal no reasons have been given for this decision. The Probate Action is due to commence on 6 August 2001 and is set down to last some time. The Judge also ordered that the hearing be in camera.

2. The stay was applied for by the defendant who is the widow of the deceased.

3. It is necessary to consider shortly the history of this litigation.

4. The deceased was kidnapped on 10 April 1990 and has not been seen since. Prior to his kidnapping he was chairman and a substantial shareholder in the Chinachem group of companies.

5. On 22 September 1999 the Court granted leave to the plaintiff to swear to the death of the deceased having occurred on 10 April 1990 or thereafter. Following this, leave was granted to the plaintiff to commence this Probate Action.

6. In the action the plaintiff is seeking to prove in solemn form the deceased's Will dated of 15 March 1968. The plaintiff is named as the sole executor of this Will and the sole beneficiary.

7. The defendant filed a defence and counterclaim in which she claims that the deceased made a Chinese Will dated 12 March 1990 and that she is named as the sole executrix and beneficiary. In the counterclaim she seeks a declaration that this Will be proved in solemn form against the validity of the 1968 Will.

8. It should perhaps be added that until 1998 the defendant has been claiming that the deceased was still alive. She has his power of attorney and has been acting on his behalf since 10 April 1990.

9. Concurrent with the prosecution of the Probate Action the plaintiff lodged a complaint with the police alleging serious misconduct surrounding the emergence of the 1990 Will. Perjury and the forgery of the Will were alleged.

10. The police have been conducting investigations and making enquiries. The 1990 Will was lodged with them and has been examined by Dr Patrick Cheng in the Government Chemist's Office. The examination was conducted in the presence of representatives of both parties. A report has been issued a copy of which has been supplied to the parties. It is apparently the case that the report refers to incriminating matters.

11. The plaintiff has, in the Probate Action, subpoenaed Dr Cheng to appear as a witness but Mr Griffiths SC, for the plaintiff, has informed the Court that his client will not be calling upon Dr Cheng to give expert evidence on his behalf. He will be calling upon his own expert for this purpose.

12. At the hearing before Yam J, Mr Zervos, Government Counsel, applied for an order for the release of 1990 Will for fingerprint examination. This application was adjourned on account of the agreement between all parties that if the Will is tested in the required manner, it was likely to cause damage and make it impossible to scientifically examine the document by handwriting experts.

13. For the purposes of the present appeal the important point to bear in mind is that while it is true to state that investigations and enquiries are still proceeding at the present time no decision has been made to charge anyone in connection with 1990 Will. It is by no means certain that anyone will be charged or that a decision in this connection was in any way imminent.

14. The plaintiff is anxious for the trial to proceed without further delay. A number of reasons have been given for this. These include the fact that he and his wife are elderly and in poor health.

15. Dates were fixed for the trial last October for May 2001 and then to accommodate the convenience of the defendant's three handwriting experts re-fixed for 6 August 2001. Witnesses for both sides including experts will come from abroad.

16. It is feared that if a stay of the proceedings is ordered it may not be possible for the adjourned hearing to take place for some considerable time.

17. It is not known when the criminal investigation will be completed and, indeed, whether the defendant will ever be charged.

18. Even if proceedings are instituted against the defendant, it would inevitably be the case that it would take a considerable period of time for them to be concluded including any appeals there may be from the proceedings.

19. Mr Daniel Fung SC for the defendant submitted that a "three-fold legal conundrum" arises from the facts of the case.

20. The first was that the defendant is a very well-known local personality. She is subjected to considerable media attention and in the event of the Court making adverse findings against her in the Probate Action this was likely to make a deep impression upon the minds of any jurors who may serve in criminal proceedings which may ensue.

21. The second limb of the conundrum was that the burden of proving the 1990 Will lay on the defendant. This would necessitate her leading evidence the disclosure of which would impinge upon her constitutional right of silence.

22. The third related to the dual and conflicting role of the Government Chemist who was assisting and giving advice in the criminal investigation. The defendant in the course of the civil litigation would be required to make disclosure of her case and this would be passed on to the investigating authority. Mr Fung also drew attention to the fact that his instructing solicitors had endeavoured to obtain copies of notes from the Government Chemist and copies of correspondence exchanged with the plaintiff's solicitors. Their requests had been refused consequent upon the police's assertion of a public interest in the confidentiality of the police investigation.

23. For all of these reasons Mr Fung contended that a stay of the Probate Action should be ordered so that the interests of the defendant could be safeguarded.

24. As authority for the propositions he was advancing, he referred to Guinness plc v. Saunders Times 18 October 1988 (CA), Re DPR Futures Ltd [1989] 1 WLR 778, and Polly Peck International plc v. Nadir [1992] BCLC 746 and Petroliam Nasional Berhad v. Tan Soon-gin [1991] 1 HKLR 4.

25. It is convenient to consider first the question of publicity and the possible adverse effect this may have upon jurors who may serve on any jury.

26. What is apparent is that it is only in very clear cases where there is a real danger that the proceedings would cause a miscarriage of justice that it would be appropriate for a Court order that proceedings should be stayed. Securities and Futures Commission v. Nomura International (Hong Kong) Ltd. [1998] 2 HKC 503.

27. Ribeiro PJ pointed out the measures which could be taken to obviate the difficulties envisaged by Mr Fung in HKSAR v. Lee Ming-tee Unreported being FACC 8/2000.

28. What needs to be borne in mind is that as stated earlier in this judgment it is highly unlikely that any criminal trial will take place in the foreseeable future. Accordingly the risks of serious prejudice arising are minimal.

29. It is necessary next to consider Mr Fung's submissions in relation to Article 11 of the Bill of Rights. There can be little doubt that the Rights referred to by Mr Fung are incorporated in Article 11.

30. However, these Rights are only applicable as and when a criminal charge is laid against a person. This was held in R v. Charles Cheung Wai-bun (1992) 2 HKPLR 123. This decision was upheld by the Privy Council.

31. As no charge has been laid against the defendant it is premature to consider the Rights she undoubtedly has in any criminal proceedings.

32. The question as to whether or not a stay should be granted is a discretionary matter. The burden of establishing that a stay should be granted rests with the party contending for it. On the basis of the material before us the defendant has failed to demonstrate that the Judge was plainly wrong to decline to grant the stay.

33. That then leaves one outstanding matter. That is the order made by the Judge that the hearing should be in camera. As has been shown by Mr Fung, it would almost inevitably be the case that the protection which the Judge was attempting to provide the defendant would be ineffectual. One of the reasons for this is that it is provided in Article 10 of the Bill of Rights that any judgment delivered in relation to proceedings which have taken place in camera must be made public save for a few isolated exceptions, which would not be applicable to the present case. Over and above this, it does not seem to me that it would be appropriate for a trial of this nature to be heard in camera. But, having said this if it is necessary to make any particular orders during the currency of the trial there is nothing in the order which I propose should be made which would prevent adequate measures being taken.

34. In my view this appeal should be dismissed save that the order that the hearing should be in camera should be set aside.

Hon Rogers VP:

35. I agree. Grounds for a stay have not, in my view, been made out. No charges have been brought against any party; still less is any prosecution pending.

36. Mr Fung SC, on behalf of the defendant, has asked this Court to infer that there is a realistic danger that evidence will emerge which would assist the prosecuting authority in bringing a criminal prosecution against the defendant. I do not see that that should be so.

37. Although the trial is less than a month away, nothing has been drawn to our attention other than the fact that the plaintiff's expert witnesses are to give evidence that, in their view, the 1990 Will is a forgery and will give their reasons therefor. These reasons are, it is understood, based upon their technical examination of the document, and others, and their deductions from their examination and experiments thereon.

38. In the circumstances, I do not consider that there are constituted grounds for a stay of these proceedings.

Hon Le Pichon JA:

39. I agree with both judgments.

Hon Mayo VP:

40. Accordingly this appeal is dismissed save that the order that the hearing should be in camera is set aside.