GOLDLION PROPERTIES LTD AND OTHERS v. REGENT NATIONAL ENTERPRISES LTD

CACV 70/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 70 OF 2005

(ON APPEAL FROM HCMP NO. 5273 OF 2003)

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

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

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

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

J U D G M E N T

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

Hon Woo VP:

INTRODUCTION

1. This action arose out of an agreement for sale and purchase dated 23 July 2003 (“the ASP”) made between the defendant as the vendor and the 1^st plaintiff as the purchaser in respect of the Kimberley Hotel in Tsimshatsui (“the Hotel”). 

2. By a judgment handed down on 25 January 2005, Deputy High Court Judge Saunders allowed the plaintiffs’ application by way of summons dated 1 June 2004 and ordered that the defendant do specifically discover and produce to the plaintiffs copies of all legal advice and/or legal opinions requested by, provided to and/or relied upon by the defendant and/or Mr Joseph Kin Ching Lo (“Mr Lo”) in determining whether or not to terminate the ASP, and that the plaintiffs be at liberty to cross-examine Mr Lo on behalf of the defendant for the purpose of being used as evidence at the hearing of the plaintiffs’ originating summons filed on 3 December 2003.  

3. Against the judgment and order, the defendant appeals. 

BACKGROUND

4. The defendant is 100 percent beneficially owned by a BVI company known as Kimberley Hotel Holdings Limited (In Liquidation) (“KHHL”). 

5. KHHL was ordered to be wound-up by the BVI High Court of Justice on 25 November 2002, and Mr Lo and another person of Deloitte Touche Tohmatsu were appointed as the joint and several liquidators of KHHL (“the Liquidators”). 

6. Pursuant to the winding-up order, the Liquidators took over the management of the defendant and replaced the then existing directors of the defendant with nominee directors.

7. The defendant entered into the ASP to sell its largest asset, the Hotel, to the 1^st plaintiff for $700,000,000, with completion to take place on 21 November 2003. 

8. There were subsequently re-sales of the Hotel, and as a result the other three plaintiffs are interested in these proceedings.  It is unnecessary to refer to the re-sales, as they are irrelevant for the purposes of this appeal.

9. The plaintiff’s action against the defendant is to challenge the defendant’s exercise of the power or right to terminate or rescind the ASP provided for in its clause 13.2, the relevant part of which reads:

“… should the [defendant] become unable or fail to complete the sale and purchase of the Property on the completion date due to any matter (including and without limitation to third-party action) beyond the reasonable control of the [defendant] and which in the reasonable opinion of the [defendant] materially hinders, prevents or obstructs the completion of the sale and purchase of the Property, the [defendant] shall, within 3 business days of the date fixed for completion, return all deposits and other monies paid by the [1^st plaintiff] in connection with the purchase of the Property, together with all interests accrued thereon and the actual costs incurred by the [1^st plaintiff] in connection with the purchase, as full and final settlement of the [1^st plaintiff's] claim herein and (conditional upon the receipt of such deposits, interests and costs) the [1^st plaintiff] shall not take any further action to claim for damages ought to enforce specific performance…” (Emphasis added)

10. The events that led up to the exercise of the right to terminate by the defendant are as follows.  In the late afternoon of 19 November 2003, two days before the due date for completion, the defendant was served with a petition for its winding up (“the Petition”) presented by Waygood Investment Ltd (“Waygood”).  On 20 November 2003, one day before the due date for completion, the Liquidators’ solicitors and the defendant’s solicitors were served with a notice of application filed by Mr Lau Hei Wing Stephen (“Mr Lau”), a former director of the defendant, in the BVI for leave to appeal against the winding-up order and for a stay of the winding-up order pending such an appeal, together with Mr Lau’s supporting affirmation.  

11. In the late afternoon of 20 November 2003, the plaintiff’s solicitors received from solicitors acting for Waygood and for Mr Lau a fax (without enclosures), which specially referred to section 182 of the Companies Ordinance, Cap 32, and later received a copy of the Petition with the supporting affirmation. 

12. In the evening of 20 November 2003, the defendant served on the plaintiff a written notice to terminate the ASP, invoking clause 13.2 thereof. 

13. The notice of termination informed the plaintiff that in the defendant’s reasonable opinion an event beyond its reasonable control and which “will materially hinder, prevent or obstruct the completion of the sale and purchase … on the scheduled completion date” had occurred within the meaning of clause 13.2.  It was expressed that the defendant relied upon the following matters:

(a) The presentation of the Petition for the winding-up of the defendant on 19 November 2003 which triggered, inter alia, a prohibition on disposition of the defendant’s assets under section 182 of the Companies Ordinance; and

(b) The filing of the notice of an application on 20 November 2003 to the BVI High Court for a stay of the winding-up of KHHL (the defendant’s 100% beneficial owner) as well as a stay of the sale of the Hotel.  

14. Subsequent to the service of the notice of termination, on 21 November 2003, the defendant was served with an order of the BVI High Court dated 20 November 2003, restraining the defendant and the Liquidators from carrying out any act in furtherance of the ASP. 

15. On 24 November 2003, the defendant’s solicitors returned by cheque the $70 million deposit paid by the 1^st plaintiff and invited the 1^st plaintiff to supply details of its costs so that they might be settled by the defendant once verified. 

16. The plaintiffs did not accept the defendant’s entitlement to invoke clause 13.2 and returned the cheque for the refund of the deposit.  

17. On 3 December 2003, the plaintiffs issued the originating summons herein, seeking as against the defendant, inter alia, specific performance of the ASP.

18. By an affirmation of Mr James Yip (“Mr Yip”) filed on behalf of the plaintiffs on 23 December 2003, Mr Yip affirmed that he was “advised by [his] legal advisers and verily believe that” section 182 of the Companies Ordinance would not prevent the defendant from executing an assignment of the Hotel pursuant to the ASP as the assignment would be pursuant to an unconditional contract for the sale of the Hotel which was concluded prior to the presentation of the Petition, that the application to the High Court of Justice in the BVI for a stay of the winding-up of KHHL and for a stay of the sale of the Hotel would not operate to prevent the defendant from performing its obligations under the ASP, that there was no reasonable bases on which the defendant could have come to the opinion to exercise its power conferred by clause 13.2, and that the purported termination of the ASP by the defendant was wrongfully made. 

19. Mr Lo made an affirmation on 27 January 2004 in reply.  It was the contents of paragraphs 15, 17, 18 and 22 of Mr Lo’s affirmation that gave rise to the plaintiff’s summons dated 1 June 2004 and which referred to the legal advice upon which specific discovery was ordered by the judge in the order under appeal.  These paragraphs are set out in full below:

“15. Upon receiving the Petition, the Defendant sought legal advice and was advised that has a result of the presentation of the Petition, pursuant to section 182 of the Companies Ordinance, it would be necessary to obtain the sanction of the Court for the completion of the sale of the Hotel contemplated by the S & P Agreement, and that failure to obtain such sanction would render the sale void.  Alternatively, the Defendant was advised that it could apply to strike out the Petition on the grounds that (the Petitioner) lacked standing as a creditor of the Defendant.  The Defendant was further advised that neither application, even if successful, could be dealt with by the Court prior to the completion date on 21 November 2003.

17. As explained in paragraph 2 above, the current management of the Defendant was appointed by the Liquidators, through KHHL’s ownership of the Defendant’s 100% parent company, High Pressure.  According to legal advice, if the sale of the Hotel was proceeded with, in the event that the Appeal is successful, the Liquidators’ capacity to appoint the current management to the Defendant, and thus the current management’s capacity to enter into the sale of the Hotel, is likely to be called into question.  This could have implications on the validity of the sale of the Hotel, and could also result in liabilities for the Defendant and the Liquidators.

18. Clause 25 of the S & P Agreement provides that “Time shall in every respect be of the essence of this Agreement.”  In the light of the matters described in paragraphs 14 to 17 above and on the basis of legal advice that it has obtained, the Defendant considered that the Petition and the Appeal were matters beyond the reasonable control of the Defendant which materially hindered, prevented or obstructed the completion of the sale of the Hotel, accordingly, it was not in a position to complete the sale of the Hotel on 21 November 2003.

22. On the basis of legal advice which I have obtained, I verily believed that at the time the Defendant gave notice to the 1^st Plaintiff under Clause 13 .2 of the S & P Agreement, the Petition and the Appeal were matters beyond the reasonable control of the Defendant which materially hindered, prevented or obstructed the completion of the sale of the Hotel by the Defendant.  The potential implications for the Defendant and the Liquidators, and the sale of the Hotel being proceeded with regardless of the Petition and the Appeal, are described in paragraphs 15 and 17 above.  I therefore believe that these events gave rise to a situation under Clause 13.2 of the S & P Agreement, giving the Defendant of the right to invoke the provision.  The Interim Injunction Order reinforced the Defendant’s belief that it was materially hindered, prevented or obstructed from completing the sale of the Hotel. ” (Emphasis added)

20. The interim injunction referred to in the last sentence of paragraph 22 of the affirmation was obtained and served on the defendant after the giving of the notice of termination to the 1^st plaintiff.

WAIVER OF PRIVILEGE – The judge’s holdings and reasons

21. In his judgment, the judge said:

“10. … As I have noted no formal pleadings in the nature of claim and defence are filed but the Defendant’s affidavit sets out its possession [sic].  That position of the Defendant, as demonstrated by the affidavit, is that the state of mind of the Liquidators, in reaching their decision in their capacity as directors of the Defendant, was influenced by the legal advice that they had received.  In the affidavit Mr Lo goes into some detail as to the particular issues of concern and the advice that was received.”

“12. Privilege however can, in certain circumstances, be waived.  A collateral waiver may occur when material which would otherwise be privileged is deployed in court.  The classic statement on collateral waiver appears in the judgment of Mustill J in Nea Karteria Maritime Co. v Atlantic & Great Lakes Steamship Co [1981] Com LR 138, in the following terms:

‘When a party is deploying in court material which would otherwise be privileged the opposite party and the Court must have an opportunity of satisfying themselves what the party has chosen to release from that privilege represents the whole of the material relevant to the issue in question.  To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood.’

The contention of the Plaintiff in the present case is that by the terms of the affidavit that I have set out above the Defendant has deployed the legal advice had received in its defence and so must disclose the contents of the advice.”

“14. The dictum of Mustill J in Nea Karteria was referred to by Mathews & Malek on Disclosure 2000, at para 10.17 in the following terms:

‘The key word here is ‘deploying’.  A mere reference to a privileged document in an affidavit does not of itself amount to a waiver of privilege, and this is so even if the document referred to is being relied on for some purpose, for reliance in itself is said not to be the test.  Instead, the test is whether the contents of the document are being relied on, rather than its effect.  The problem is acute in cases where the maker of an affidavit or witness statement has to give details of the source of his information and belief, in order to comply with the rules of admissibility of such affidavit or witness statement.  Provided that the maker does not quote the contents, or summarise them, but simply refers to the document’s effect, there is apparently no waiver of privilege.’”

“18. That the Defendant is, in effect saying, by the terms of the affidavit it has filed disclosing the basis of its defence, and its position in refusing to disclose the legal advice received is that it was entitled to exercise the rights it had under clause 13.2 of the ASP, upon certain specific legal advice, detailed in the affidavit, which influenced its opinion, but at the same time the plaintiff should not see the precise terms of that legal advice even if it would support what the defendant now says, or, more importantly, show that less than the true nature of the advice was disclosed.  The Defendant’s position is a clear example of ‘cherry picking’ by taking a portion of the advice out of context, precisely the injustice against which Mustill LJ cautioned in Nea Karteria.  By exposing portions of the advice it has received in order to justify the position it has taken the Defendant has deployed the advice in its defence.

19. For these reasons I am satisfied that there should be an order in terms of paragraph 2 of the Plaintiffs’ summons dated 1 June 2004, requiring the Defendant to discover the legal advice referred to therein.

20. That conclusion alone is sufficient to dispose of the application for cross-examination of Mr Lo.  It follows that he must be cross-examined. … ” (Pages 28-32 of Bundle A)

Grounds of appeal

22. On behalf of the defendant, Mr Daniel Fung SC, leading Ms Catrina Lam, has raised a number of grounds to challenge the judge’s conclusion that the defendant had waived the privilege attached to the legal advice referred to in the order on the basis that the defendant has deployed the legal advice in its defence by exposing portions of the of the legal advice in Mr Lo’s affirmation to justify its position.  Basically, it is contended that the central issue in this case is the reasonableness of the opinion held by the defendant that the Petition and notice of application were matters that would materially hinder, prevent or obstruct the completion of the ASP on the scheduled completion date.  It is contented that reasonableness of the defendant’s opinion must be determined objectively by reference to all relevant circumstances of the case and not the subjective view of the defendant when exercising its power under clause 13.2 of the ASP.  Thus, the motive of the defendant in serving the notice of the termination is irrelevant and the plaintiff’s attempt to put in issue the defendant’s motive under the guise of a convoluted argument as to credibility amounts to nothing more than a fishing expedition in the hope that the disclosure of the legal advice and the cross-examination of Mr Lo may reveal material that may cause prejudice or cast doubt on the defendant’s case.

23. The grounds of appeal also challenge the judge’s conclusion of the defendant having deployed the legal advice as being wrong.  The four paragraphs of Mr Lo’s affirmation, in their context, only referred to or relied upon the effect of the legal advice, as opposed to the contents of the legal advice and the defendant had not deployed the legal advice so as to amount to a waiver of the legal professional privilege.  

The law – fundamental right

24. Legal professional privilege has been well established under the common law.  It is a privilege that is not only enjoyed by the client in his relationship with the lawyer but also important for the due administration of justice.  In R v Derby Magistrates Court, ex parte B [1996] 1 AC 487, Lord Taylor of Gosforth CJ observed:

“Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case.  It is a fundamental condition on which the administration of justice as a whole rests.” (P 507D)

“… I am of the opinion that no exception should be allowed to the absolute nature of legal professional privilege, once established.” (Pp 508H-509A)

25. In Paragon Finance plc v Freshfields [1999] 1 WLR 1183 Lord Bingham of Cornhill CJ stated at page 1188A:

“The nature and basis of legal professional privilege have been often and authoritatively expounded, most recently in Reg. v. Derby Magistrates’ Court, Ex parte B. [1996] A.C. 487.  At its root lies the obligation of confidence which a legal adviser owes to his client in relation to any confidential professional communication passing between them.  For readily intelligible reasons of public policy the law has, however, accorded to such communications a degree of protection denied to communications, however confidential, between clients and other professional advisers.  Save where client and legal adviser have abused their confidential relationship to facilitate crime or fraud, the protection is absolute unless the client (whose privilege it is) waives it, whether expressly or impliedly.”

26. This principle is also recognised in Ireland.  In Fyffes plc v DCC plc and Ors, Supreme Court of Ireland, 27 January 2005, Fennelly J said:

“The principle of privilege arising in the preparation or conduct of a case is based on the proper administration of justice.  This requires that a litigant must be in a position to communicate freely with his or her legal advisors, and further must be entitled to obtain expert evidence from third parties to assist, not only in the preparation of the case, but in the assessment as to whether there is any case to be made.  While there is not now any issue in this case as to whether the documents in question were privileged prior to their disclosure to the Stock Exchange, nevertheless in considering the question of waiver it is important to remember at all times that privilege does not exist merely for the protection of a party, but also exists to ensure the proper administration of justice.” (Pp 6-7 of the Lexis Transcript)

27. The right to legal professional privilege is also enshrined in article 35 of the Basic Law, the relevant part of which provides:

“Hong Kong residents shall have the right to confidential legal advice ….”

28. Mr Fung referred us to paragraph 66 of the judgment in Hakansson and Sturesson v Sweden (1991) 13 EHRR 1 to liken the importance of legal professional privilege to the right to a public court hearing, and to support his submission that waiver of such a right must be unequivocal.  Paragraph 66 reads:

“66. The public character of court hearings constitutes a fundamental principle enshrined in paragraph (1) of Article 6.  Admittedly neither the letter nor the spirit of this provision prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to have his case heard in public.  However, a waiver must be made in an unequivocal manner and must not run counter to any important public interest.”

29. The privilege has been recognised as a fundamental human right in the courts of Hong Kong.  In Pang Yiu Hung Robert v Commissioner of Police [2002] 4 HKC 579, at 588, Hartmann J stated:

“16. LPP [legal professional privilege] is today recognised as a fundamental human right, one protected in such conventions as the International Covenant for Civil and Political Rights (the ICCPR).  In R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] 2 WLR 1299, Lord Hoffmann expressed it thus (at 1302):

LPP is a fundamental human right long established in the common law.  It is a necessary corollary of the right of any person to obtain skilled advice about the law.  Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice.”

30. As to how the courts should pay regard to this fundamental right, Mr Fung referred us to Ming Pao Newspapers Ltd v AG of Hong Kong [1996] AC 907, where Lord Jauncey of Tullichettle stated at p 917:

“These decisions established the following propositions.  (1) A Constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction: …  (2) Any restrictions on the guaranteed right of freedom of expression which constitutes one of the essential foundations of a democratic society must be narrowly interpreted.  … (3) Any restrictions on the guaranteed right of freedom of expression must be proportionate to the aims sought to be achieved thereby. …”

31. Thus, Mr Fung submitted, Mr Huggins SC for the plaintiff did not gainsay, and I accept that the approach to statutory interpretation employed by the courts in dealing with fundamental human rights should be adopted in the application of the law of waiver of legal professional privilege.  If there is any doubt as to whether there was any waiver of the privilege, the question should be resolved in favour of upholding the privilege.

Test of Waiver

32. In the present case, there was no express waiver and the issue with which we are concerned is whether the four subject paragraphs of Mr Lo’s affirmation amounted to a tacit waiver of the legal professional privilege.  

33. As the judge acknowledged in paragraph 13 of his judgment, there has been a divergence in judicial views between England and Australia as to how the problem of waiver is to be approached.  The Australian and New Zealand courts generally adopted the “putting in issue” approach whereas the English approach was based on unfairness caused by the conduct of a party attempting to use privileged evidence to advance his position but at the same time claims privilege against the opponent.  An interesting and detailed discussion can be found in the article Implied Waiver of Privilege by DL Mathieson QC and Julian Page [2000] NZLR 355.  As counsel for the parties before the judge and before us were and are content to rely upon the law as declared in England, it is unnecessary for me to go into the Australian and New Zealand authorities, save to say that my tentative view is that the English authorities should be followed because their approach prohibits an easy inroad into this fundamental right to legal professional privilege that may be provided by the employment of the “putting in issue” approach. 

34. Mr Fung did not challenge the principle stated by Mustill J in Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation (No 2) [1981] Com LR 138, and in Matthews and Malek on Disclosure, 2^nd Ed, para 10.17 that was referred to in paragraphs 12 and 14 of the judge’s judgment, cited above, as applicable to the present case.

35. In Paragon Finance Lord Bingham also commented on waiver at 1188C:

“A client expressly waives his legal professional privilege when he elects to disclose communications which the privilege would entitle him not to disclose.  Where the disclosure is partial, issues may arise on the scope of the waiver.  Practical difficulties occur in determining such issues, as in Nea Karteria Maritime Co. Ltd. v. Atlantic & Great Lakes Steamship Corporation (No. 2) [1981] Com.L.R. 138, General Accident Fire and Life Assurance Corporation Ltd. v. Tanter [1984] 1 W.L.R. 100 and Reg. v. Secretary of State for Transport, Ex parte Factortame (1997) 9 Admin.L.R. 591.  But the law is clear.  While there is no rule that a party who waives privilege in relation to one communication is taken to waive privilege in relation to all, a party may not waive privilege in such a partial and selective manner that unfairness or misunderstanding may result.” (Emphasis added)

36. As for the proper test to be applied for considering whether there is waiver, paragraph 10.17 of Matthews and Malek on Disclosure, adopted by the judge is repeated below:

“The key word here is ‘deploying’.  A mere reference to a privileged document in an affidavit does not of itself amount to a waiver of privilege, and this is so even if the document referred to is being relied on for some purpose, for reliance in itself is said not to be the test.  Instead, the test is whether the contents of the document are being relied on, rather than its effect.  The problem is acute in cases where the maker of an affidavit or witness statement has to give details of the source of his information and belief, in order to comply with the rules of admissibility of such affidavit or witness statement.  Provided that the maker does not quote the contents, or summarise them, but simply refers to the document’s effect, there is apparently no waiver of privilege.”  (Emphasis added)

37. This test is borne out in a number of cases.  

38. In Marubeni Corporation v Alafouzos, 6 November 1986, the question of waiver was raised in respect of an affidavit filed for supporting an application for leave to serve out of the jurisdiction under Order 11 of the Rules of Supreme Court (similar to Order 11 of our RHC), which stated:

“The Plaintiffs have obtained outside Japanese legal advice which categorically states that this agreement does not render performance of the sale contract illegal in any way whatsoever.” 

In rejecting the contention that there was a waiver of privilege, Lawton LJ discussed counsel’s arguments in some detail.  He said:

“The argument has mainly turned upon where there was waiver of privilege on such document as there was.  Mr. Hamilton submitted that all that the affidavit stated was the effect of advice given by Japanese lawyers.  He pointed out that affidavits are frequently sworn and used in this court which give the effect of legal advice.  The most common way in which it is done is in affidavit in opposition to a summons for legal advice.  The most common way in which it is done is in affidavit in opposition to a summons for judgment under Order 14 in which the defendant sets out the facts and ends by saying: “I have been advised by my solicitor and verily believe that on these facts I have a defence in law to the plaintiff’s claim.”  As far as I know, it has never been suggested that that kind of wording entitles the plaintiff to call for and inspect any document there may have been containing that advice; and in practice there must almost always is a document because prudent solicitors giving that kind of advice usually put it into a letter so that there is a record of it.

Mr Gee accepted that it might be difficult for a plaintiff in the kind of situation to which I have just referred to call for the production of any document that there might be; but he went on to submit that this case is different because what the solicitor was doing in the affidavit was setting out the effect of the advice, which is another way of saying he was summarising or paraphrasing the advice and he was using the affidavit on behalf of his client to persuade the court hat there ought to be an order for service out of the jurisdiction.  The gravamen of Mr Gee’s argument was that, once you put into an affidavit the effect of legal advice which you have obtained and you use the affidavit in evidence in support of whatever application you are making to the court, by necessary implication you waive any privilege you may have in respect of the document which contained the advice.

This argument seems to have been accepted by Mr Justice Leggatt.  He was of the opinion that, because the affidavit with this paragraph in it had been relied upon by the plaintiffs, it followed that they have waived the privilege.

We have had our attention invited to a number of cases in which questions about the waiver of privilege have arisen.  It is clear from the authorities that a mere reference in a pleading to a document and its effect does not necessarily amount to a waiver of privilege.  The first of the line of cases in which this proposition was set out was Roberts v Oppenheim (1884) 26 Ch D 724.  More recently, the same proposition was enunciated by this court in the case of Buttes Gas and Oil Co v Hammer [1981] QB 223, [1980] 3 All ER 475 per Lord Justice Donaldson (as he then was) at page 490H and Lord Justice Brightman at [1980] 3 All ER 475, page 502.

Mr Gee submitted that those cases are irrelevant to what we have to consider because they were dealing with pleadings.  He drew a distinction between a pleading which is merely a document containing contentions and an affidavit which is a document used as evidence.  He said that, where an affidavit is used by way of evidence, then the very fact of using it must mean that the party putting it forward is waiving privilege.

Unfortunately for him, an analysis of the decision of this court in Infields Ltd v P Rosen & Son [1983] 3 All ER 591 shows that that argument is unsound.  What had happened in that case was that an affidavit had been put in in support of a summons which contained this statement:

‘There has furthermore been disclosed by the plaintiffs a bundle of documents for which privilege has been claimed by them, which trace the history of the development of the various clip designs supplied by the firm of Karl Veith to the plaintiffs and which are quite inconsistent with the defendants’ said allegations.’

If Mr Gee’s submission had been right, then the moment hat affidavit was used in evidence the party putting it forward would have waived any privilege which might have attached to it.  But it is clear from the judgment of the then Master of the Rolls, Sir Wilfred Greene, that the mere reliance on the document did not amount to a waiver of privilege.  That is clear from the following passage at [1980] 3 All ER 475, page 597.  After having referred to Roberts v Oppenheim (1884) 26 Ch D 724, which dealt with pleadings, he went on to say:

‘It seems to me that, on the same principle as was laid down there, the mere reference to these documents in this paragraph does not in any way amount to a waiver of the privilege.’

The same approach was used by this court in the case of Government Trading Corporation v Tate & Lyle (unreported) decided on 19 October 1984.  In that case a solicitor had sworn an affidavit which he had used in support of an application to the court.  A paragraph of that affidavit set out some provisions of Iranian law and ended with these words:

‘The information contained in this paragraph is derived from a firm of lawyers practicing in Teheran whom my firm has consulted, and I believe it to be correct.’

An application was made for the product of that document.  This court refused the application.  In a long and careful judgment delivered by Lord Justice Robert Goff he examined the problems which arose.  He referred to the case of Infields v Rosen [1938] 3 All ER 591 and he summarised his judgment in this way:

‘He’ – that is the deponent of the affidavit – ‘was referring to a certain matter, he was setting out the substance of it and he was (I fear inadequately) giving the source of his information.  I do not read that, in the context of the interlocutory application then before the Commercial Judge, as amounting to anything like a waiver of privilege.’

In my judgment, the same principle applies here.  All that the deponent was doing was saying: ‘Well, I am asking the court to allow service out of the jurisdiction.  I am being frank with the court.  I have received certain information from Japan and I believe it provides no defence to the defendants.’  In other words, he was not relying on the contents of the document: he was relying on the effect of the document.  He had to refer to Japanese lawyers because he was under a duty to give the source of his information and he could only do so by referring to what they had told him.” (Pp 2-3 of the Transcript) (Emphasis added)

39. Lloyd LJ also had the following to say:

“The judge held that there had been a waiver of privilege in relation to that document on the ground that the document was one on which the plaintiffs were placing reliance.  But, with respect, that is not the right test.  There cannot often be a case in which a document is referred to in an affidavit in interlocutory proceedings on which no reliance is placed.  If, therefore, reliance on the document is in every case an implied waiver, then that would indeed have very far reaching consequences.  It would mean, as my Lord has pointed out, that a defendant in Order 14 proceedings who refers to the advice of counsel that he has a good defence to the claim would have implied waived privilege in respect of that advice.  That could not be right.  If reliance were indeed the correct test, there would be no practical scope for the claim of privilege at all in these cases.  Yet it is clear that Order 24 Rule 11 contemplates that a claim for privilege can be made out.

I regard this case as being covered by the principles stated by this court in the case of Government Trading Corporation v Tate & Lyle (unreported – 19 October 1984).  In that case the defendants referred in a affidavit to the advice of an Iranian lawyer.  They acted on that advice to defeat an application for a preliminary issue.  Nevertheless, the court held that there was no waiver of privilege.  I would quote from the judgment of Lord Justice Oliver (as he then was):

‘Of course, each case must depend on its own individual facts, but I am bound to say I find it impossible to conclude that compliance with the rules in this way constitutes, in the ordinary case, a waiver of any privilege which may attach to a conversation from which the deponent derives the facts to which he deposes.’

The rules to which he referred are the rules set out in Order 14 Rule 5(2) under which a deponent is obliged in interlocutory proceedings to disclose the source and grounds of his information and belief.

Mr Hamilton submitted before us that the true contrast is not between a mere reference to the document in the affidavit and reliance on the document, which is the contrast which the judge drew, but between a mere reference to the document and the quotation of its contents.  I agree with that submission.” (P 4 of the Transcript) (Emphasis added)

40. I cite a substantial part of the judgment in Marubeni because Mr Fung relied heavily on this case to ground his contention that the four subject paragraphs in the present case did not amount to a waiver of the privilege.

41. Another case on which Mr Fung placed great reliance was Government Trading Corporation v Tate and Lyle Industries Ltd., unreported, 24 October 1984.  This was a case that concerned whether the reference to information derived from Iranian lawyers should be disclosed because of an alleged waiver of the legal professional privilege.  What was in issue was whether paragraph 8 of an affidavit sworn by a Mr Patton, solicitor acting for Tate & Lyle, used for the purpose of a preliminary issue as to the effect of Iranian law on the incorporation of a government trading corporation in that country, that set out various facts and Iranian statutory law amounted to a waiver of the privilege.  The last sentence of paragraph 8 of the affirmation stated:

“The information contained in this paragraph is derived from a firm of lawyers practicing in Teheran whom my firm has consulted, and I believe it to be correct.” (Page 2 of transcript).

42. Goff LJ stated:

“The question is whether, having regard to the circumstances in which Mr Patton came to swear paragraph 8 of his affidavit and to what is there deposed to, this constitutes a disclosure of a document or communication which amounts to a waiver of privilege, or whether it is what has been called in the authorities a mere reference to a document or conversation which does not amount to a waiver of privilege.” (P 3 of the Transcript)

“He [Mr Patton] was referring to a certain matter, he was setting out the substance of it and he was (I fear inadequately) giving the source of his information.  I do not read that, in the context of the interlocutory application then before the Commercial Judge, as amounting to anything like a waiver of privilege.  I share the instinct which, I think, prompted the learned judge to reach his conclusion in the present case.  Time and time again it must happen in interlocutory applications that it is necessary to refer to certain facts or certain advice, and it may be that it is necessary, at the same time, to refer to the origin of those facts or the origin of that advice.  It does not follow that, simply because a person does so, he is waiving privilege in respect of the relevant conversation or documents from which the facts were derived.” (P 3 of the Transcript) (Emphasis added)

43. In Bourns Inc. v Raychem Corporation [1999] FSR 641, after referring to Marubeni, Tate & Lyle and other authorities, Aldous LJ summed up at p 676:

“As stated in Marubeni, mere reference to a document does not waive privilege in that document: there must at least be reference to the contents and reliance.”  (Emphasis added)

44. The test whether there is waiver in its practical application can be found in Hollander’s Documentary Evidence, 8^th Ed, para 17-14, which reads:

“There is a distinction to be drawn between a reference to the fact of legal advice and to its contents.  Referring to the fact that legal advice has been taken will not normally give rise to a waiver of privilege.  Similarly, reference to the existence of a privileged document will not be sufficient: there must be reference to or reliance on its contents.  Thus to state that before attending interview with the police I had taken legal advice is not a waiver of privilege.  But to say that I did not tell the police where I was on Tuesday because my solicitor advised me not to, does rely on the contents of the legal advice: here the point of the reliance on the privileged advice is to provide an explanation or justification for the failure to provide an answer to the police.  What is important here is not whether legal advice was taken, but what was the content.”

45. To this practical application must be added the effect of Marubeni and Tate & Lyle referred to above.

46. The justification for the court treating the privilege being waived is based on fairness in a situation created by the use made by a party of a privileged document but who claims the privilege over the other parts of the document.  The “unfairness” is restricted within this narrow scope, apparently because the courts have been jealously safeguarding the privilege that is recognised as a fundamental right.  In Bucknell v British Transport Commission (cited in New Karteria), Denning LJ (with whom the other members of the Court agreed) described the unfairness:

“It seems to me that the judge was correct, because although this statement may well have been privileged from production and discovery in the hands of the Transport Commission at one stage, nevertheless when it was used by cross-examining counsel in this way, he waived the privilege, certainly for that part which was used; and in the case of this kind, if the privilege is waived as to the part, it must, I think, be waived also as to the whole.  It would be most unfair that cross-examining counsel should use part of the document which was to his advantage and not allow anyone, not even the judge or the opposing counsel, a sight of the rest of the document, much of which might have been against him.”

47. This is also consonant with the view of Wigmore, Evidence in Trial at Common Law (1961), Vol. 8, paragraph 2327, which reads:

“When his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended it or not.  He cannot be allowed, after disclosing so much as he pleases, to withhold the remainder.”

48. Fairness to the opposite party has been the basis for the courts to hold for a waiver of the privilege: see Derby & Co Ltd v Weldon [1991] 1 WLR 660, Burnell v BTC [1956] 1 QB 187 and Wing Fat Construction Co Ltd (In liquidation) v Benefit Holdings, HCA 810/2003.  In Wing Fat, the issue was whether the defendants had waived legal professional privilege in respect of certain instructions to their former solicitors because of what was stated in their witness statement.  Reyes J said:

“12. … The defendants are expressly challenging the obvious meaning of their own agent’s letter.  The defendants are saying that the letter should be ignored because it was written in error.  They may be right that there is a perfectly innocent explanation for how the alleged error came about.  That explanation needs to be tested at trial and fairness demands that the liquidators should be given discovery in relation to the defendants’ contentions.”

The present case

49. I have highlighted the important parts of the four subject paragraphs of Mr Lo’s affirmation.  The judge found that the defendant had relied on the legal advice “deployed” in these paragraphs to influence its opinion for its exercise of its rights under clause 13.2 of the ASP.  The judge took the view that “certain specific legal advice” were “detailed in the affidavit”.  I consider that the judge must be correct as a matter of fact.  The legal advice that was stated in paragraphs 15 and 17 of the affirmation was that:

“It would be necessary to obtain the sanction of the Court for the completion of the sale of the Hotel contemplated by the S & P Agreement, and that failure to obtain such sanction would render the sale void.”

“it [the defendant] could apply to strike out the Petition on the grounds that (the Petitioner) lacked standing as a creditor of the Defendant.”

“neither application, even if successful, could be dealt with by the Court prior to the completion date on 21 November 2003.”

“if the sale of the Hotel was proceeded with, in the event that the Appeal is successful, the Liquidators’ capacity to appoint the current management to the Defendant, and thus the current management’s capacity to enter into the sale of the Hotel, is likely to be called into question.”

50. Paragraph 18 of the affirmation states that the defendant’s consideration whether to exercise its right to terminate the ASP was made in the light of the matters described in, inter alia, paragraphs 15 and 17 of the affirmation and on the basis of the legal advice. 

51. Paragraph 22 of the affirmation states that it was based on the legal advice and “the potential implications” as described in paragraphs 15 and 17 of the affirmation that the defendant believed the events described gave rise to a situation under clause 13.2 of the ASP, giving it the right to invoke that provision. 

52. Although I agree with the judge that no useful purpose can be served by comparing the facts of the present case with the facts of the cases in the authorities, Mr Fung relied heavily on Marubeni and Tate & Lyle to say that the reference to foreign lawyers’ advice in both of those cases, in terms not quite different from those used in the four subject paragraphs in the instant case, had been held only to refer to or rely on the effect of the legal advice and did not amount to a waiver of the privilege.

53. In their written submissions, Mr Huggins and Mr Harris with him, submitted that Marubeni is distinguishable from the case before us because the plaintiff in that case was not relying on the contents of the advice at all; he was relying simply on its effect.  The plaintiff had to refer to the Japanese lawyers because he was under a duty to give the source of his information and he could only do so by referring to what they had told him.  In the instant case, however, the facts are very different: Mr Lo stated the various items of the content of the legal advice that the defendant received and on which the defendant based in its consideration that there were matters beyond its reasonable control and which resulted in the defendant forming the reasonable opinion as provided for in clause 13.2 of the ASP.  Moreover, the issue in Marubeni did not turn in any way on the precise nature of the legal advice given, and it was not necessary for the court to know what the precise nature and terms of the advice was in order to determine fairly the application before it.  There was no need or duty at all upon the defendant in the present case (as there was upon the plaintiff in Marubeni) to refer to any legal advice at all, but nevertheless it had chosen to do so.  It had chosen to contend that its state of mind (its opinion) was based on or at least influenced by legal advice, and it had chosen to contend that therefore the opinion was reasonable.  I agree.

54. Counsel for the plaintiff also distinguished Tate & Lyle.  The court there was dealing with the question of fact as to whether the reference to legal advice was simply a statement that such advice had been obtained or whether the contents of the advice were material to the resolution of the application under consideration.   Both the courts at first instance and on appeal held that it clearly fell into the former category.  But in the present case, the facts fall clearly in the latter category.

55. I consider the facts of the present case are clearly different from those in Marubeni and Tate & Lyle.  Each of those cases involved an interlocutory application where the deponent of an affidavit had to disclose the source of information referred to in the affidavit.  In the present case, the defendant chose to state a number of items of legal advice (as opposed to factual matters) that it relied on to form its own opinion.  The affidavit in Marubeni referred to effect of a legal advice.  In Tate & Lyle, paragraph 8 of the affidavit of Mr Patton that was relied upon as a waiver of privilege only referred to the factual and legal information as having been derived from a firm of lawyers in Teheran.  No part of the content of the legal advice was disclosed.  It seems reasonably clear from Tate & Lyle that even if the deponent of the affidavit relied on the facts and the statutory law as disclosed in the foreign lawyer’s advice, he did not waive the privilege because he did not rely on or refer to any legal advice to which the privilege was attached.  That was very different from the present case, where not an insubstantial portion of the legal advice had been disclosed in paragraphs 15 and 17 of Mr Lo’s affirmation.  The defendant’s case of the events of the Petition and the notice of application being beyond its “reasonable control” and of its “reasonable opinion”, both of which were required for the exercise of its right to serve a notice of rescission pursuant to clause 13.2 of the ASP and as such were the only issues to be determined by the court whether the defendant had breached the ASP in not completing the sale on due day, was expressly stated to be based on such legal advice.  I do not accept the grounds of appeal or the contention that the defendant was not asserting reliance on the contents of the legal advice and was merely relying on its effect and the fact that it had been obtained as the basis for forming the defendant’s own view.

56. Mr Fung also argues that the reference to legal advice in Mr Lo’s affirmation was necessitated by and made in response to the plaintiffs’ own reference to and reliance on contrary legal advice received from the plaintiffs’ own lawyers.  However, the plaintiffs’ reliance on the legal advice they had obtained was, as understood by the defendant, used to form two bases, namely, that the defendant did not genuinely form an opinion for the purported exercise of its right under clause 13.2 of the ASP, and that if the defendant did genuinely form the opinion, that opinion was unreasonable.  The defendant’s reasonable opinion was stated by Mr Lo in his affirmation as being based on the events of the Petition and the notice of application that it had received shortly before the completion date.  There has been no dispute that those events had occurred.  The necessity of disclosing the source of information and belief that prevailed in Marubeni and Tate & Lyle did not arise in the instant case.  The defendant could, if it wished, only rely on those events as the basis for its rescission of the ASP, but it had chosen to rely on the legal advice and disclose its contents so as to bolster its defence.  It cannot fairly be said that the defendant was led to disclose the legal advice that it had received because the plaintiffs had referred to their legal advice.

57. The issue of genuineness concerns credibility on the part of the defendant, and as such, the motive for the defendant to give the notice of termination would be relevant.  In such circumstances, the reasonableness of the defendant’s opinion, which depends on the careful examination of the surrounding circumstances at the time of giving of the notice of termination on the basis of an objective test, as submitted by Mr Fung, would only be one of the issues to be decided by the court, while the issue of genuineness has also to be examined and decided.

58. The issue of genuineness has been squarely raised by the plaintiff as can be seen from the second affirmation of Mr Yip which stated:

“8. The Plaintiffs have the following reasons to question whether the Defendant truly or reasonablyformed the opinion on 20^th November 2003 that events have happened which materially hindered, prevented or obstructed the completion of the sale and purchase of the Property:- …”  (Emphasis added)

59. The defendant has joined these two issues of truthfulness and reasonableness of the opinion with the plaintiff.  The issues, once raised by the plaintiff and denied by the defendant, will have to be decided by the court hearing this action.  It would, therefore, create unfairness to the plaintiff if the defendant were to be allowed to deploy the disclosed portions of the legal advice that it had received to its advantage but to claim privilege in respect of the rest of the legal advice unless the legal advice in its entirety is disclosed to the plaintiff and the court to ensure that there was no “cherry picking”.

CROSS-EXAMINATION – The judge’s holding

60. I now turn to the propriety or otherwise of the order for cross-examination made by the judge.

61. On this subject, the judge stated:

“20. That conclusion [on specific discovery] alone is sufficient to dispose of the application for cross-examination of Mr Lo.  It follows that he must be cross-examined.  However there are other sound reasons why there ought to be an order for cross-examination.  It is right that the ASP provides that time shall be of the essence of the contract.  The position taken by the Defendant was that there was insufficient time to obtain the orders sought to resolve the difficulties raised.  The Defendant also relied upon the ‘time of essence’ provision in the contract.  I bear in mind the admonition of Litton PJ in Mexon Holdings Ltd v Silver Bay International Ltd [2000] 1 (sic) HKC 1 at 8, albeit given in relation to an issue of title, but in my view equally applicable to issues of the enforcement of a contract namely:

(they) ‘must be approached from the stand-point of a willing purchaser and a willing vendor, both possessed of reasonably robust commonsense, both intending to see the transaction through to completion in terms of their own bargain.’

I put it to Mr Fung that the purchaser, being a willing purchaser, would undoubtedly agree to an extension of time to enable the necessary orders to be obtained from the court to clear the way to complete the purchase and for any other matters to be resolved.  There is no evidence that the vendor Defendant sought any such extension of time and it ought to explain why.  Further, when pressed to make any suggestion as to why, in the present circumstances, the Court might not sanction the ASP, on an application under s 182 Companies Ordinance, Mr Fung was quite unable to offer any reason.  Again, the Defendant ought to explain why in those circumstances it found the need for sanction a barrier to the ASP.

21. For these reasons there will be an order in terms of paragraph 1 of the Plaintiff’s summons dated 1 June 2004, that the Plaintiff may at trial cross-examine Mr Lo on his affirmation of 27 January 2004.”

The grounds of appeal

62. A number of grounds have been raised by Mr Fung to challenge the propriety of the cross-examination order.

63. He contented that it was premature for the cross-examination of Mr Lo to be allowed before the plaintiffs and the court have sight of the legal advice ordered to be specifically discovered.  If the entirety of the legal advice shows that there was no cherry picking, there was no justification to cross-examine Mr Lo in that respect.  I agree.  However, there are other matters in relation to which cross-examination should be allowed. 

64. Mr Fung objected vehemently to the judge’s reliance on the question of extension of time and reasons regarding a court sanction under section 182 of the Companies Ordinance since these steps were not stipulated in clause 13.2 of the ASP for the defendant’s exercise of its rights thereunder.  These were matters outside the scope of clause 13.2 and were directed at the motive and subjective reasoning of the defendant, extraneous to whether its opinion to serve a notice of rescission was reasonable or otherwise.  The reasonableness of the defendant’s opinion was a matter for the court’s decision by applying the objective test having regard to all the surrounding circumstances relevant to the exercise of such rights by the defendant. 

65. Mr Fung contended that the judge fundamentally erred in principle by placing excessive reliance on Litton PJ’s statement in Mexon Holdings Ltd v Silver Bay International Ltd [2002] 2 HKC 1 at 8 as the basis for concluding that Mr Lo ought to be cross-examined to explain why the defendant did not seek an extension of time for the completion.  Mexon Holdings related to whether the vendor had shown good title by refusing to answer the purchaser’s requisitions and what Litton PJ said was this:

“A good title does not mean a perfect title, free from every possible blemish.  Whenever a question like this arises, it must be approached from the stand-point of a willing purchaser and a willing vendor, both possessed of reasonably robust commonsense, both intending to see the transaction through to completion in terms of their own bargain.”

66. Mr Fung referred us to Tai Wai Kin v Cheung Wan Wah Christine [2004] 3 HKC 198, where the court was concerned with whether the plaintiff purchaser’s requisitions had been satisfactorily answered.  Tang J (now Tang JA) had this to say at pp 212-213:

“59.        … Mexon Holdings Ltd requires me to approach the matter with common sense.  I am concerned with a modest property and a purchaser who was applying for a Homestarter’s loan from HKHS.  I do not believe the vendor could refuse to do its part, wait for the time for completion to arrive and then forfeit the deposit when the purchaser failed to complete, putting the heavy burden on the purchaser to seek to recover the deposit paid.  In this case, the deposit paid was $165,000.  The costs of litigation in this case must be quite a heavy burden on the plaintiff already.  Vendors must recognise that the duty is on them to show and prove good title.  A falling property market does not relieve them from this duty.  If anything, it behoves them to be more vigilant.  Here I am not concerned with a falling market but that is an irrelevant consideration anyway.  Depending on the circumstances, the purchaser may be expected to do more or less in order to see the bargain through.  But that does not mean the vendor can shift his burden onto the purchaser.”

67. I do not see this passage from Tang J’s judgment as having the effect of advancing Mr Fung’s arguments.  What Tang J said was that market movements are irrelevant for deciding on the duty whether it should be placed on the vendor or the purchaser to do certain things to make the title good.  He did not rule out the commonsense approach as adumbrated by Litton PJ.

68. In normal circumstances, the reasonableness of an opinion as alleged by a party to litigation must be considered by applying the objective test and the examination of all the material circumstances will enable the court to make its decision.  Even in that case, sometimes the market movement at the material times cannot be brushed aside as not being a circumstance required to be examined.  In the present case, however, market movements, whether an extension of time to complete had been considered by the defendant, whether it had considered sanction could be obtained from the court and its motive to terminate the ASP by relying on clause 13.2 must necessarily feature in view of the issue raised by the plaintiffs as to the genuineness of the opinion (reasonableness aside) that the defendant affirmed that it had allegedly formed.

69. Mr Fung suggested that the fact that the issue was raised demonstrated the weakness of the plaintiffs’ case, and it was raised in a convoluted argument to provide a guise in an attempt to put in issue the defendant’s motive for terminating the ASP.  It was but a fishing expedition on the part of the plaintiffs to try to find out some material by way of cross-examination to bolster their weak case.  He also contended that a plaintiff is not entitled to an order for cross-examination as of right and no special circumstances have been identified by the plaintiffs rendering the cross-examination necessary in the interests of justice.  He referred us to Wendy Wenta Seng Yuen v Philip Pak-yiu Yuen [1984] HKLR 431, 436 where Fuad JA stated:

“As regards affidavits in general, there will be cases where the interests of justice dictate that a deponent should be subject to cross-examination.  For example, where the motives of directors in exercising their powers is in issue, as in Smith and Fawcett [1942] 1 Ch 304.  In other cases, in my judgment, the true rule must be that the court has an unfettered discretion to permit cross-examination on an affidavit but the applicant is not entitled to this right as of course.  He has to establish that in all the circumstances of the case there is a good and sufficient reason for the application.  He will not find this difficult where the evidence on the affidavits will result in what I might call a final order.  He will find it more difficult in interlocutory matters, perhaps, for, as the judge below had in mind, great delay and expense might be entailed.  It seems to me that what is essential for the applicant to show is that the proposed cross-examination might be productive of a useful result at the stage that the application is made.  If no reason can be suggested for supposing that the cross-examination will then be helpful, the application will be refused in the discretion of the court, indeed, in certain circumstances it might be regarded as oppressive and, as such, an abuse of the process of the court.”  (Emphasis added)

70. This statement of how the court’s unfettered discretion to allow cross-examination is to be exercised, in fact, assists the plaintiffs’ arguments.  As I said before, this issue of genuineness had been raised by the plaintiffs and joined by the defendant.  They raised this issue and also the issue of reasonableness of the defendant’s opinion, without which issues in a final order against them would certainly result. 

71. Mr Huggins’ response is terse and forceful, and in my view correct, which is that the plaintiffs do not necessarily have to accept everything that the defendant stated in affirmation, or else there would be no litigation.  The plaintiffs’ position is very clear, they say that by failing to complete, the defendant was in breach of the ASP and they are seeking specific performance of the ASP.  The defendant had no reasonable basis for exercising its right under clause 13.2, and Mr Yip’s affirmations had provided reasons for this alleged lack of reasonable basis, and thus they did not accept that the defendant truly formed the so-called reasonable opinion.  Without the necessity of expressing a firm view on this, I cannot say that the reasons given in Mr Yip’s affirmations are totally devoid of merit.  Once the question of genuineness of the defendant’s alleged opinion is raised, supported by the reasons, in my judgment, the plaintiffs must be allowed to cross-examine Mr Yip on the issue, and all the relevant circumstances to test the genuineness of the opinion, such as the questions of extension of time to complete, market movements, whether sanction could be obtained from the court, the defendant’s bona fides, Mr Lo’s true subjective understanding as to the significance of the matters that allegedly were relied on to form the opinion, etc must be relevant.  The necessity to cross-examine Mr Lo has arisen, quite apart from the contents of the legal advice that he had received that was ordered to be disclosed.

72. In the circumstances, I consider that the judge’s order for cross-examination cannot be faulted.

CONCLUSION

73. For the above reasons, I would dismiss the appeal and make an order nisi that the defendant pay the costs of this appeal to the plaintiffs.

Hon Burrell J:

74. I agree in all respects with the reasons given by Woo VP for dismissing the appeal and there is nothing that I can usefully add.