Kwan Chui Kwok Ying and Another v. Tao Wai Chun and Others

CACV000194/2002

CACV 194/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 194 OF 2002

(ON APPEAL FROM HCMP NO. 2996 OF 1990)

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THIRD PARTY PROCEEDINGS

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Coram : Hon Woo and Cheung JJA in court

Dates of Hearing : 27 and 28 November 2002

Date of Judgment : 13 December 2002

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J U D G M E N T

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Hon Woo JA (giving the judgment of the Court):

This is an appeal by the 6th Defendant ("D6") against the Order dated 12 March 2002 made by Deputy High Court Judge To ("the Order") in favour of the 15th Defendant ("D15") in the Third Party proceedings. The Order was made on the application of D15 to set aside the Judge's previous order made on 14 May 1999 granting leave to D6 to issue a letter of request to the judicial authority of Macau. The Order also included an order that D6 pay D15's costs of the application, including the costs thrown away.

Background

2.The litigation was originally a probate action in which inheritance rights were the main issue, which had concluded a long time ago. What was left was the Third Party proceedings between D6 and D15, whereby D6 challenged D15 as being the natural and son of Mr Kwan Kai Ming (the deceased) and Madam Wong and his (D6's) brother. D6's case was that D15 was the son of his uncle and aunt, Mr Kwan Heng and Madam Lok Shi. Eventually, by reason of the production by D15 of DNA test results that he could not have been the son of Mr Kwan Heng and Madam Lok Shi, on 9 February 1999 D6 accepted D15 being his brother and took out a summons to discontinue the Third Party proceedings. That should have brought about the conclusion of the Third Party proceedings.

3.However, the dispute between D6 and D15 has continued purely for resolving the parties' dispute as to the costs of the Third Party proceedings. Before D6 took his position on 9 February 1999 accepting D15's status as his brother, D6 had taken out a summons dated 28 October 1996 to apply for a letter of request to be issued to the judicial authorities of Macau for the examination of the Director of the Macau Identification Services ("the Macau Director") for production by him of various documents relating to one "Daniel Kwan" who was believed by D6 to be D15. These documents were believed to be able to help D6 prove that D15 was not his brother. On 14 May 1999, D6 sought leave to withdraw his summons to discontinue on the basis that the question of costs could not be disposed of unless the Third Party proceedings were to continue. Counsel for D15 consented to this application. At the same hearing on the same day, the Judge also acceded to D6's application for the letter of request to be issued.

4.On 17 December 1999, the solicitors for D6 filed, instead of lodged, a letter of request with the Registry of the High Court. The letter of request got filed away and there was no process on it until a year later when the matter was drawn to the attention of the Registry by the Chief Secretary for Administration ("CS") resulting from enquiries from D6's solicitors. The CS at first refused to forward the letter of request as there was no arrangement between Hong Kong and Macau for processing such a letter. As a result of repeated pressure from D6's legal representatives, the CS sent a revised letter of request to the Macau SAR on an ad hoc basis in July 2001. The revised letter of request was executed by the judicial authorities in the Macau SAR, returned to the Registry and then forwarded to D6's solicitors on 9 January 2002.

5.D15 had by then taken out three summonses, one dated 16 January 2001, the second dated 28 May 2001 and the third dated 10 July 2001. The Judge only dealt with the second summons resulting in his making the Order now subject to this appeal. By the Order, he set aside his former order dated 14 May 1999 and the letter of request under that order.

The basis of the setting aside

6.Before the Judge, six grounds for setting aside the letter of request were argued. He rejected five of the grounds, namely, D6 had never shown that the Macau Director was unwilling and unable to be present in court in Hong Kong to give evidence; serious delay in pursuing the letter of request; the application for the letter of request had not been made bona fide; the Macau Director was unlikely to be able to give helpful, material or cogent evidence to assist the Hong Kong court; and the evidence to be obtained by the letter of request was entirely irrelevant and unhelpful in determining costs. The Judge, however, accepted the ground that the Hong Kong court had no jurisdiction to issue the letter of request.

7.The Judge's reasoning referred back to the basis upon which he made the order of 14 May 1999 to issue the letter of request.

(a) The application for the letter of request was made under Order 39, rule 2 of the then Rules of the Supreme Court, which is the same as Order 39, rule 2 of the present Rules of the High Court ("RHC"). D6 filed an affidavit of Ms Ana Maria Faria da Fonseca, a practising lawyer in Macau, giving expert evidence on the law and practice of Macau. The passage in her expert opinion relied on by the Judge in granting the order of 14 May 1999 was as follows:

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

(b) In his decision dated 12 March 2002, based on which he made the Order appealed against, the Judge stated in para 16:

"... I proceeded to hear the application on the basis that all requirements under Order 39 rule 2 had been met, that is, while Macau was not a territory to which the Hague Convention applies, the use of letter of request was permitted by its local law. The only issue in dispute is (sic) the relevance of the evidence to be obtained by the Letter of Request."

(c) In para 19 of the decision, the Judge went on:

" Whether Hong Kong court has jurisdiction to issue the Letter of Request to the judicial authority in Macau has been overlooked or happily assumed by Mr Harris, acting for the 6th Defendant, and Mr Callaghan, acting for the 15th Defendant. This question of lack of jurisdiction is now raised by Ms Chih [for D15]."

(d) In para 23 of the decision, the Judge considered that a letter of request is a solemn request by a judicial authority. The High Court expects the request will be acceded to and executed by the recipient judicial authority in earnest, and expects that its request will not be ignored or disregarded at will. The expectation is not based on international or judicial comity, but upon either a reciprocal international obligation or the existence of legislative framework in the recipient country to process such letters of request.

(e) In para 26 of the decision, the Judge said:

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

(f) In para 27 of his decision, after examining the Macau Director's refusal to accede to Ms da Fonseca's petition of 30 April 1996 for access to documents, the Judge said:

"I am driven to the conclusion that Ms Ana da Fonseca's opinion is incorrect and that the local law in Macau does not provide for execution of letters of request or for release of the information sought under the Letter of Request for the use in civil proceedings."

(g) In para 29 of his decision the Judge concluded that

"The existence of such an obligation is a pre-requisite, without which a Hong Kong court has no jurisdiction to order the issue of the letter of request. As such the order was made without jurisdiction. It is void ab initio and should be set aside."

8.The Judge also dealt with the argument raised by D6 that as the order of 14 May 1999 had been drawn up and perfected the court would have been functus officio and had no further jurisdiction over the case. In paras 34, 35 and 36 of his decision, the Judge gave detailed reasons:

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

35. ... It brings our Court into disrepute by making a request of the recipient judicial authority when there is no obligation on the part of that recipient authority to accede to our request. Not only that, to request the judicial authority of Macau to take evidence under circumstances when its local law does not permit the taking of such evidence, particularly for the purpose of civil proceedings, is a serious breach or transgression of the law and administrative practice both in Macau and in Hong Kong. It amounts to requesting the judicial authority of Macau to commit an act ultra vires its own law. It could not be right for a judicial authority to make such a request of another. It could not be right for our court to have done so.

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

Grounds of appeal

9.By the notice of appeal, Mr Bleach SC, for D6, has raised a number of grounds to challenge the Judge's ruling that the order of 14 May 1999 had been made without jurisdiction, both on factual and legal bases. As far as facts are concerned, the Judge erred to find that the information requested of the Macau Director could not be accessed pursuant to a letter of request from outside Macau to the Macau judicial authorities because he failed to have regard to the fact that the letter of request sent pursuant to his order of 14 May 1999 had been fully complied with by the Macau judicial authorities following a full judicial hearing at which both D6 and D15 were represented (ground 2). Ground 4 challenges the finding that as at 14 May 1999 there was no procedure in Macau for the processing of letters of request. Ground 5 also contends that the Judge failed to have regard to the information from D6's expert on Macau law, put before the Judge during the 22-24 January 2002 hearing, that although the Hague Convention of 1970 on the taking of evidence abroad in civil and commercial matters had not been extended to Macau on 14 May 1999, the earlier Hague Convention of 1954 on Civil Procedure, which provides, like the 1970 Convention for the issue of letters of request by a contracting party, was in force in Macau on 14 May 1999.

10.The other grounds challenge the Judge's ruling on questions of law, in that:

(a) He erred in revisiting the same issue whether the law of Macau permitted letters of request (ground 3).

(b) He erred in holding that the existence of a legislative framework in the recipient country permitting the processing of letters of request must be a pre-requisite before the court of the requesting country may order the issue of a letter of request (ground 6) and that a recipient country must be under an international obligation to execute such a letter before a requesting country may issue the letter (ground 7).

(c) He erred in law or on fact in finding that the application before him on 14 May 1999 was an abuse of process (ground 8).

(d) He erred in holding that he had jurisdiction to set aside his order of 14 May 1999 (ground 9).

(e) He failed to take into account adequately or at all the public policy consideration that the court should assist and encourage the obtaining of relevant evidence from Macau (ground 11). He failed to take into account adequately or at all Article 95 of the Basic Law of the HKSAR which provides that the HKSAR may, through consultations and in accordance with law, maintains juridical relations with the judicial organs of other parts of the country and they may render assistance to each other (ground 12).

(f) If the Judge had jurisdiction to set aside his order of 14 May 1999, he was wrong to exercise his discretion to do so as (a) the order of 14 May 1999 had been fully complied with by the date of the Order of 12 March 2002, and (b) no injustice had been done by the order of 14 May 1999 or the compliance with it (ground 10).

11.D15 has issued two respondent's notices. The one dated 18 April 2002 seeks to vary the part of the Order of 12 March 2002 relating to costs, in that instead of the costs order (on a party and party basis) against D6, there should have been an order for costs on an indemnity basis on the ground that when D6 took out the application for the letter of request, such application was not within the jurisdiction of the court and it was an abuse of the court's process. The respondent's notice dated 25 April 2002 seeks to affirm the Judge's decision of 12 March 2002 on the five grounds (grounds 1 to 5) that D15 had argued before but all rejected by the Judge, referred to in para 6 above. Ground 6 contends that the court of Hong Kong is not conferred with any power by the Evidence Ordinance, Cap 8 or the High Court Ordinance, Cap 4 or other enabling ordinance to issue a Letter of Request for the Taking of Evidence Abroad in Civil or Commercial Matters in Hong Kong and Order 39 of the RHC is therefore ultra vires in respect of civil proceedings for the Taking of Evidence Abroad in Civil or Commercial Matters.

Jurisdiction to make the Order

12.The crux of this appeal is jurisdiction. Jurisdiction was involved in two aspects: (1) whether the Judge had jurisdiction to make the Order dated 12 March 2002 now subject to appeal setting aside his order of 14 May 1999, and (2) whether he had jurisdiction to make the order of 14 May 1999.

13.We first examine whether the Judge had power or jurisdiction to reopen and rectify the order of 14 May 1999, which had been perfected on 29 May 1999. A summary of the circumstances for rectification of a perfected order can be found under paras 20/11/6-20/11/8 of the Hong Kong Civil Procedure 2002, Vol 1.

14.Ms Chih, for D15, refers us to Re Ng Fook (decd) [1998] 1 HKC 489 and Jetour Holiday Ltd v Lee Shek Yu, Small Claims Tribunal Appeal No 8 of 1988 (27 May 1988, unreported) to demonstrate that the court can set aside its prior order. These cases fall within the first two categories of cases mentioned under para 20/11/6 referred to above: the court has power to alter or vary an order after it having been perfected where the order is a nullity owing to failure to comply with service of process, or where the order was made against a party in default. Apart from those circumstances, to which the present case is very dissimilar, Ms Chih is not able to put this case in any of the other categories under paras 20/11/6-20/11/8.

15.Indeed, even in a case where a judgment or order has been obtained by fraud, the proper way to impeach it is by way or a fresh action or arguably an appeal. See category (4) under para 20/11/7.

16.Ms Chih has been harping on the lack of jurisdiction on the part of the Judge to make the order of 14 May 1999. She submits that the law of Macau did not permit the letter of request for evidence to be taken for use in Hong Kong civil proceedings and therefore it was unlawful under Macanese law to execute the letter of request issued pursuant to the order of 14 May 1999, based on which, the application for the letter of request was a serious abuse of the court's process and thus it went to the root of and displaced the Judge's jurisdiction in making that order. This, she contends, entitled the Judge to make the Order of 12 March 2002 to set aside his earlier order of 14 May 1999. We do not think it necessary to definitely decide the point whether the lack of jurisdiction in the sense of this case as argued by Ms Chih had that effect. We would, however, observe that lack of jurisdiction is not included in paras 20/11/6-20/11/8 as a circumstance for the same court rectifying an earlier order. Lack or excess of jurisdiction on the part of a court in making an order is always raised as a ground of appeal for an appellate court to set aside the order, not as a ground for entitling the dissatisfied party to return to the judge to ask him to set aside the order which has already been perfected. Assuming that the lack of jurisdiction in making the order of 14 May 1999 entitled the Judge to set aside the order, we now turn to examine whether that order was made without jurisdiction.

Jurisdiction to make the earlier order and the pre-requisite of a letter of request

17.Whether there was power or jurisdiction on the part of the Judge to reopen and rectify his order of 14 May 1999 may therefore depend on whether he had jurisdiction to make that earlier order, because if he had jurisdiction to make the order he would have been functus officio and had no jurisdiction to rectify the order which had been perfected. See Andayani v Chan Oi Ling [2000] 4 HKC 233 at 237D.

18.The order of 14 May 1999 was made pursuant to Order 59, rule 2(1)(a) of the RHC. The relevant provisions in Order 59, rules 1 and 2 read as follows:

"1. Power to order depositions to be taken

(1) The Court may, in any cause or matter where it appears necessary for the purposes of justice, make an order (in Form No. 32 in Appendix A) for the examination on oath before a judge, an officer or examiner of the Court or some other person, at any place, of that person.

(2) An order under paragraph (1) ... may contain an order for the production of any document which appears to the Court to be necessary for the purposes of the examination.

2. Where person to be examined is out of the jurisdiction

(1) Where the person in relation to whom an order under rule 1 is required is out of the jurisdiction, an application may be made-

(a) for an order (in Form No. 34 in Appendix A) under that rule for the issue of a letter of request to the judicial authorities of the country in which that person is to take, or cause to be taken, the evidence of that person, or ..."

19.Mr Bleach has drawn our attention to Panayiotou v Sony Music Ltd [1994] Ch 142, which involved an objection to the English court issuing a letter of request pursuant to Order 39, rule 2 of the RSC to a New York court to require a company in the USA to produce documents for evidence in a civil case before the English court. After going through the history of the practice of taking evidence overseas, Sir Donald Nicholls VC, as he then was, said at 149G:

"... The jurisdiction of the High Court to make a request to the court of another country for assistance in obtaining evidence does not derive from statute, or even from the Rules of the Supreme Court. These rules regulate and prescribe 'the practice and procedure' to be followed in the Supreme Court: section 84 of the Supreme Court Act 1981. They regulate the exercise by the court of its jurisdiction; they cannot extend the court's jurisdiction or confer a jurisdiction which, in the absence of the rules, the court would otherwise lack. In my view the court's power to issue a letter of request stems from the jurisdiction inherent in the court. Inherent in the court is power to do those acts which the court needs must have to maintain its character as a court of justice: see Lord Diplock in Bremer Vulkan Schiffbau and Maschinenfabrik v. South India Shipping Corporation Ltd. [1981] A. C. 909, 977. It is important to keep in mind that when a letter of request is issued, the English court is doing no more than making a request to a foreign court for assistance. It is not making an order. It is not making an order addressed to a foreign court or to witnesses. ..." (emphasis added)

20.At p 150F, Sir Donald Nicholls continued:

"The English court would not normally embark on such a course unless there was reason to suppose the foreign court would be receptive to the request."

21.It is clear from the passages cited above that the issue of letters of request is part of the inherent jurisdiction of the English Supreme Court. We do not see why our High Court whose duty is, similar to that of the English court, to administer justice in accordance with evidence, should not have the power within its inherent jurisdiction to issue letters of request to foreign courts for assistance in obtaining evidence. Support can also be found in Coch v Allcock (1888) 21 QBD 178 at 181 and Armour v Walker [1884] 25 Ch D 673 at 677 that the granting of a commission to take evidence abroad, similar to the purpose of a letter of request, was a matter of the court's discretion, to be exercised according to the particular circumstances of each case. This also disposes of ground 6 in the respondent's notice.

22.The Judge held that discretion of the Hong Kong courts to issue a letter of request should only be exercised if there is an obligation on the part of the recipient judicial authorities (such as where the recipient country is a party to a treaty agreeing to be so obligated, or is a party to a bilateral agreement with the issuing country) to execute the letter, or there must be at least the existence of local law in the recipient jurisdiction providing for the execution of the letter. This is a reasonable way to exercise the discretion and a safe course to take but if, obliged or not, the recipient court has an established practice of executing letters of request from foreign countries, that in our view will be sufficient, though this course is not as sound and safe as where there is an obligation on the part of the recipient court. But this does not affect jurisdiction, for it is where there is jurisdiction that there can be discretion. In making the order of 14 May 1999, the Judge allowed a request to be made from the court to the Macau court for assistance, not making an order that the letter must be complied with. We hold that on the basis of the passage cited in Ms da Fonseca's expert evidence, there was sufficient foundation for the Judge when making the order of 14 May 1999 to have supposed that the Macau court would be receptive to the request. Indeed, the practice Ms da Fonseca deposed to might have been established because of the application of the 1954 Hague Convention to which Macau was a party. The relevant articles 8 and 11 of Part IV of that Convention state:

"Article 8. In civil and commercial matters, a judicial authority of a contracting State may, in conformity with the provisions of its legislation, communicate by letter rogatory with the competent authority of another contracting State in order to request that the latter should, within its jurisdiction, effect either an examination or other judicial acts.

Article 11. The judicial authority to which a letter rogatory is addressed shall be obligated to comply therewith ..."

23.Mr Bleach has shown to us that the Macau SAR Government website records that the 1954 Hague Convention was extended to Portugal's overseas territories, including Macau, on 23 April 1968 and that the Convention remains applicable to Macau. Ms da Fonseca's view as to legal practice in Macau, as it turned out, appears also to be well supported by the fact that the letter of request issued pursuant to the order had been executed by the Macau judicial authority which had first conducted a full judicial hearing on 20 November 2001 at which the parties in dispute, D6 and D15, were represented, although there was in the meantime the coming into force of Article 95 of the Basic Law of the HKSAR and also the Basic Law of the Macau HKSAR. The argument raised by Ms Chih is that Hong Kong was at no material time a party to the 1954 Hague Convention, but this was all along known to D15's legal advisers at the hearing before the Judge on 14 May 1999. Nor did Fonseca's expert evidence state otherwise. Yet the absence of treaty obligations on the requesting country and the recipient country did not create any concern on the part of the Judge when he made that earlier order. This also helps to demonstrate that this case justifies the operation of issue estoppel, which we will address below.

Transgression of or ultra vires Macanese law and administrative practice

24.The Judge said that to request the judicial authorities of Macau to take evidence when its local law does not permit the taking of such evidence is a serious breach or transgression of the law and administrative practice both in Macau and in Hong Kong and it amounts to requesting the Macanese judicial authority to commit an act ultra vires its own law. Those statements were made on the basis that Macanese law did not permit the judicial authority of Macau to respond to and execute a letter of request. That basis was not sound. The Macanese judicial authority did hold a hearing and comply with the letter of request issued pursuant to the order. On the basis of the presumption of correctness (praesumuntur rite esse acta), the execution of the letter of request signifies that it was a permitted act under the law of Macau. It would be far-fetched and unreasonable to assume that the judicial authority of Macau acted ultra vires of its own law or could have been compelled to act ultra vires. On the facts including the law and practice of Macau as deposed to by Ms da Fonseca, the Judge could not be said to be wrong in making the order of 14 May 1999.

25.The letter of 12 January 2001 of the CS confirming that there was at the time no arrangement in place between Hong Kong and Macau for the taking of evidence in Macau for use in civil proceedings instituted in Hong Kong does not in any sense indicate that Macau law and practice did not allow letters of request to be processed and executed in Macau. The letter merely stated what it stated, ie, there was no such arrangement in place. We do not think it proper to conclude that the CS by sending the letter of request to Macau was acting against administrative practice or against the law of Hong Kong. Indeed, Ms Chih has not been able to demonstrate otherwise.

26.By reason of the above, the argument that the 14 May 1999 order was made against public policy or that it was an abuse of process is not made out.

27.We have examined the above points in order to deal with the arguments of Ms Chih that the Judge was entitled to reopen the issues between the parties because of the new evidence contained in the CS's response to D6's request for the transmission of the letter of request to Macau. She contends that this new evidence shows that the execution of the letter of request was illegal under Macanese law and thus there was a serious abuse of process so that it went to displace the court's jurisdiction in making the order of 14 May 1999. We are not persuaded that these arguments have any merit.

Issue estoppel

28.We also consider that issue estoppel should have operated against D15 to prevent him from seeking to set aside the order of 14 May 1999. It was an order that was never appealed. It was made by the Judge on the basis of the evidence adduced by the two parties in contention before him mainly, as the Judge himself said, on the expert opinion of the Macau law expert, Ms Ana da Fonseca, especially the passage cited in para 7(a) above. Counsel for the parties then before the Judge did not dispute that he had jurisdiction. They assumed that the Judge had jurisdiction. See para 7(b) and (c) above. Obviously the parties' stance, especially the stance of D15 who had not adduced any evidence on the law of Macau relating to whether it permitted its judicial authorities to comply with the letter of request sought by D6, was based on the opinion of Ms da Fonseca. Similarly the Judge accepted that evidence as the basis for his assumption or implicit holding that he had jurisdiction to order the letter of request to issue. The issue between the parties whether the court should issue the letter of request was decided by the Judge who made the order of 14 May 1999. The was a final determination of both issues of law and fact between the parties. They were bound by it and it would not be just or reasonable for either party to turn around to raise the identical issues again.

29.As far as jurisdiction of the Hong Kong courts is concerned, what has to be noted is that the Judge made the order of 14 May 1999 on the basis of the evidence of Macanese law presented to him by one of the parties and not disputed by the other party. The Macanese law as represented by Ms da Fonseca's expert opinion is as a matter of fact and not a matter of law. See para 38/7/1 of the Hong Kong Civil Procedure, 2002, Vol 1 and Lazard Bros & Co v Midland Bank Ltd [1932] AC 289 at 297. Based on that fact, the Judge must have (at least implicitly) come to the conclusion that he had jurisdiction to order the issue of the letter of request sought by D6. That fact, in the Judge's view, founded the jurisdiction. This must be distinguished from a case where there was a mistake of law made by the court as to its jurisdiction. D15 should have been estopped from challenging that fact upon the final determination made by the Judge by his order of 14 May 1999. The evidence of the CS's reluctance and his reason for his reluctance in transmitting the letter of request to the Macau judicial authorities and his letter of 12 January 2001 (referred to in para 7(e) above) should not justly be used to vary or set aside the order. Nor could it be justified that the Judge used the evidence of the Macau Director's stance in rejecting Ms da Fonseca's petition for access to the information (which evidence was before him when he made the order of 14 May 1999) to reopen the issue that he had already determined by the order.

30.It is also significant to note that the Judge held that the so-called misrepresentation of Macanese law by Ms da Fonseca, adduced by D6, was an innocent misrepresentation. It is clear that no fraud was ever proved relating to the misrepresentation, or otherwise the principle of "fraud unravels all" would doubtless apply. But even in such a case, there was no justification for returning to the Judge to ask him to set aside the order after it has been perfected (see para 15 above). The passage of her expert opinion cited in para 7(a) above in fact did not misrepresent Macanese law, in view of the fact that Ms da Fonseca did mention that the 1970 Hague Convention had not been formally extended to Macau. What she continued to say was that "the use of letters of request is well recognised in the jurisdiction" of Macau and that it was "the correct procedure" for D6 to follow to obtain access to the information required. She did not say, nor should she be properly understood to say, that Macau law provided "for execution of letters of request or for release of the information sought under the Letter of Request for the use in civil proceedings" as the Judge stated (see para 7(f) above). She was merely talking about legal practice in Macau. It would be straining her language to hold that she had made a misrepresentation as to the law of Macau.

31.Indeed, in our judgment, this issue estoppel point also disposes of this appeal completely. The five grounds raised in the respondent's notice that had been rejected by the Judge in his decision of 12 March 2002 would not have arisen for consideration because of the operation of issue estoppel, with possibly the exception of the ground that there was delay in the transmission and execution of the letter of request. The delay point will be dealt with later. Similarly ground 6 raised by the respondent's notice cannot now be raised. Whether these matters or arguments had been put forward in the opposition of D6's application for a letter of request resulting in the 14 May 1999 order would be quite irrelevant as they were all arguments that could and should have been raised in those proceedings: see Yat Tung v Dao Hang Bank [1975] AC 581 and the cases cited under para 18/19/11 of the Hong Kong Civil Practice 2002, Vol 1. They are covered by the wider scope of issue estoppel and could not be raised subsequently to contradict the final determination contained in the 14 May 1999 order.

32.The delay in the issuance of the letter of request by the Registry was caused, as found by the Judge, by D6's solicitors filing, instead of lodging, the letter of request with the Registry, resulting in the Registry filing away the letter without taking any action to send it to the CS for transmission to Macau. The Judge opined that this delay should not be held against D6 as that was an innocent mistake made by his solicitors. The further delay was caused by the CS's reluctance in transmitting the letter to Macau, and he only did so eventually upon the insistence of and pressure from D6's legal representatives. This delay could not in any sense be used against D6. This delay ground was rejected by the Judge and we agree with him.

33.The making of the Order of 12 March 2002, the subject matter of this appeal, setting aside the order 14 May 1999 order was contrary to the well-established principles of issue estoppel by which both parties before the Judge and before us should properly have been and are bound.

Conclusion

34.In the circumstances, the appeal must be allowed. The Order of 12 March 2002 is set aside and the order of 14 May 1999 is restored. We make an order nisi that D15 bears the costs of the appeal, the respondent's notices and the costs below.

Representation:

Mr John Bleach SC and Mr Paul Harris, instructed by Messrs Barnes & Daly, for the 6th Defendant.

Ms Vivian Chih, instructed by Messrs T C Lau & Co, for the 15th Defendant.