Cheung Ting Kau, Vincent v. Koo Siu Ying and Another

HCAP 4/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 4 OF 2011

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D E C I S I O N

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Introduction

1.There are two applications for the discovery of documents, taken out by the defendants against non-parties (relying on s 42(1), High Court Ordinance (Cap 4) and RHC Ord 24 r 7A(2)).

2.Similar applications have been taken out by the defendants earlier.  They led to a decision dated 11 December 2015 (respectively “the earlier discovery applications” and “the Dec 2015 decision”).  The same abbreviations used in the Dec 2015 decision will be used below.  Mdm U and Peter Lam were two of the opposing parties in one of the earlier discovery applications.  They will be called “the opposing parties” below for convenience.

3.In gist, one application seeks Mdm U to: 

(a)  disclose by affidavit whether she has had documents concerning the medical treatment, and/or the health condition, of the dec’d from July 2004 to the time of his death (February 2005);

(b)  produce the above documents.

4.The other application seeks Peter Lam to:

(1)  disclose by affidavit whether he has had documents concerning the preparation of the 2004 will (including instructions, distribution list or distribution proposal, notes, attendance note and communications);

(2)  disclose by affidavit whether he had had documents similar to those summarized in para 3(a) above (the proper period seems to be that mentioned in para 3(a) above);

(3)  disclose by affidavit whether he had had documents recording the circumstances about the execution of the 2004 will (on 3 December 2004) (“the 3 Dec 2004 documents”);

(4)  produce the above documents.

(collectively “the requested documents”)

5.The opposing parties resist the above applications essentially on the following grounds:

(a)  res judicata (only in relation to the part of the applications seeking disclosure);

(b)  lack of necessity.

Background

6.The background leading to the earlier discovery applications has been summarized in the Dec 2015 decision.  The part of the background relevant to the present applications is quoted below:

“3. The plaintiff commenced this action in February 2011 (claiming to be the executor of a will dated 3 December 2004 of the late Mr Lim (‘the dec’d’ and ‘the 2004 will’)) against the defendants, respectively the dec’d’s concubine and daughter, who have earlier entered caveats against the 2004 will. He seeks the 2004 will to be pronounced in solemn form.

4. The defendants deny the claim on the following grounds:

(1) the dec’d lacked testamentary capacity at the time of the 2004 will;

(2) the dec’d was acting under the undue influence of his other concubine (‘Mdm U’) and his son (‘Peter Lam’);

(3) the dec’d did not know or approve of the contents of the 2004 will (he having in late 2003 expressed a wish inconsistent with the 2004 will);

(4) the dec’d’s signature on the 2004 will was different from his other signatures;

(5) the righteousness of the 2004 will is not admitted by reason of the above matters.

Further, the defendants counterclaim based on a Chinese will dated 2 February 1973, a Chinese codicil dated 20 January 1974 and/or an English will dated 23 September 1967.”

7.As stated in the above quote, Mdm U and Peter Lam were two of the dec’d’s close relatives.  More importantly for present purposes, they are also two of the beneficiaries named in the 2004 will.

Res judicata

8.Reliance is placed in this connection on the following part of the Dec 2015 decision:

“The summons seeks in gist:

(a) the opposing parties to each file an affidavit stating whether they have (or have had) possession, custody or power the requested documents;

(b) the opposing parties to produce the ‘transfer’ documents for inspection and permit copies to be taken.

As the opposing parties correctly point out, s 42(1), Cap 4 only empowers the court to order a non-party to disclose and produce the requested documents (para 28(1) above). For this reason, as between the defendants and the opposing parties, no order will be made as regards the relief summarized in sub-para (a) above.” (para 41 thereof)

(“the quoted part of the 2015 decision”)

9.Based on the above, the opposing parties contend that:

“… it is no longer open to [the defendants] to contend for the grant of the order sought”.

This is because (so it is contended):

“The Court [has] already given a decision on a previous occasion involving the same parties on the same question of jurisdiction from which there was no appeal, the principle of res judicata applies”. (para 4, opposing parties’ written submissions)

10.In order to properly determine this objection, it is necessary to examine in some details what in law constitutes res judicata.  Spencer Bower & Handley: Res Judicata (2009) 4^th Ed made the following observations:

“The issue estoppel created by a dismissal is limited to ‘the actual ground upon which the existence of the right was negatived.’ If this cannot be determined the dismissal will only decide that relief was refused. The availability of the court’s reasons and the diminished role of the civil jury make it possible in most cases to determine the actual basis of a dismissal. An important question is involved. As Lord Cranworth LC explained [Moss v Anglo-Egyptian Navigation Co (1865) 1 Ch App 108, 115; paras 8.17, 8.26], it was necessary:

‘… to show that the question raised in the second suit had been adjudicated upon in the first … this is not … a technical rule at all, but is one of substance, and unless it is strictly adhered to plaintiffs who have a clear title to relief on account of the breach of an agreement may, by failing to prove a breach, lose all right to complain of future breaches’.”

(para 2.28 thereof);

“A decision will create an issue estoppel if it determined an issue in a cause of action as an essential step in its reasoning. … ”

((para 8.01 thereof);

“A fuller statement in the judgment of Dixon J in Blair v Curran [(1939) 62 CLR 464, 531-533] merits quotation:

‘A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion … in [issue estoppel], for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is … necessarily decided by the prior judgment, decrees or order.

Nothing but what is legally indispensable to the conclusion is thus finally … precluded.

… Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation.’ ”

(para 8.02 thereof)

(all emphases above are supplied)

11.Of the quoted part of the 2015 decision relied upon as founding the estoppel, the first thing to note is that it has not stated that the related parts of the earlier application had been dismissed. Rather, it merely stated that no order had been made thereon.

12.It cannot be correct that when “no order made” is on an application, this is legally the same as a “dismissal” of such an application.  The language used, which is easily comprehensible, is different; the intended consequence cannot be the same.  The former order effectively means the court has declined to determine the application (whether such an outcome can give rise to a locus to appeal by its applicant alone, or the applicant as well as the respondent, is a moot point which need not be dealt with at present).

13.But assuming (in favour of the opposing parties) that such an order tantamount to a dismissal, the quoted part of the 2015 decision did not state whether the “dismissal” was based on a lack of jurisdiction, or only as an exercise of the discretionary powers conferred by the statute.

14.There were two sentences in the quoted part of the 2015 decision (after a summary was given about the nature of the earlier application).  The first sentence simply gave a summary of the purport of s 42(1), High Court Ordinance (Cap 4).  The second sentence recorded the court’s agreement with the purport so summarized, and stated that no order would be made.

15.Two other provisions are also important to the court’s jurisdiction in this regard.  First, s 43(1), Cap 4 has conferred further powers to the rules committee:

“The power to make rules of court under section 54 shall include power to make rules of court as to the circumstances in which an order under section 41 or 42 can be made; and any such rules may include such incidental, supplementary and consequential provisions as the Rules Committee may consider necessary or expedient.” (emphasis supplied)

Thus, the rules which can be enacted are not limited to the powers specified by s 42(1), Cap 4, but can also cover incidental, supplementary and consequential powers. Secondly, RHC Ord 24 r 7A(5) provides (among other things):

“An order under section … 42(1) for the disclosure of documents … shall require the person against whom the order is made to make an affidavit stating whether any documents specified or described in the order are, or at any time have been, in his possession, custody or power and, if not then in his possession, custody or power, when he parted with them and what has become of them.” (emphasis supplied)

16.Any dismissal of the related parts of the earlier application, if founded on the lack of jurisdiction, would (at least) have to be based on either of the following:

(1)  Ord 24 r 7A(5) is ultra vires because its provisions have exceeded s 43(1), Cap 4;

(2)  While Ord 24 r 7A(5) may not have exceeded the ambit of s 43(1), Cap 4, the latter provision is somehow inconsistent, and thus cannot stand together, with s 42(1), Cap 4.

17.There is no indication the quoted part of the 2015 decision had intended to declare either or both of the above provisions to be ineffective (let alone in fact doing so).  That kind of decision, which obviously can have important repercussions, cannot properly be made without detailed and considered analysis, and with accompanying reasons.

18.A further look at the background leading to the quoted part of the 2015 decision will show why no reason had been given in it.

19.The opposing parties’ written submissions relied exclusively on s 42(1), Cap 4 and a concession made by counsel in Liu Hing Sang v Estate of Li Kwan, deceased and another HCPI 665/2009 (31 August 2012), para 20 and 21.  Those paragraphs of the decision recorded:

“Initially at the Hearing, Mr A Cheung submitted that [the non-party] should further state on affidavit whether any of the Non-existent Documents has been but is no longer in their possession, custody or power, and if so, when they have parted with such document and what has become of it.

But, unlike the provision for inter partes specific discovery under Order 24 rule 7 of the RHC, section 42 of the HCO for non-party discovery provides that the court has power to order a non-party who appears to be likely to have had in his possession, custody or power any documents which are relevant to an issue arising or likely to arise out of that claim ‘to disclose whether those documents are in his possession, custody or power’ only. In the circumstances, Mr [Cheung] concedes there is no basis for the 2^nd defendant to pursue the request in the above paragraph.” (emphasis supplied)

(See also para 2(a) and 4, opposing parties’ written submissions dated 23 November 2015).  No detailed analysis has been advanced in support; neither s 43(1), Cap 4 nor Ord 24 r 7A(5) has been mentioned.

20.On the other hand, the defendants did not put forth any submissions for use during the earlier discovery application (be it written or verbal) in this regard.  During the present hearing, they said they did not consider the disclosure part of the earlier application to be of crucial importance.

21.There was therefore a lack of thorough discussion by the parties regarding a jurisdictional issue which can have impact beyond the present action.  The outcome of the earlier application (“no order made”) was brought about by such a background.

22.By reason of the above matters, I conclude that no issue estoppel has arisen between the defendants and the opposing parties.

23.To avoid doubt, by reason of the provisions of s 43(1), Cap 4 and Ord 24 r 7A(5), I conclude that there is jurisdiction to make the disclosure sought in the above applications.  Insofar as it is necessary to do so, I also conclude that the concession made in the Liu Hing Sang decision has been wrongly made.

Necessity for discovery

24.The opposing parties sensibly do not argue against the relevance of the requested documents.

25.Instead, they rely on Ord 24 r 8(2) which provides:

“No order for the disclosure of documents shall be made under section 41 or 42 … unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.” (emphasis supplied)

26.While the opposing parties have not filed evidence stating that they never had possession of the requested documents, their written submissions made the contention below:

“… it is highly improbable that [the opposing parties] would have … anything relevant to the issues which cannot be obtained from the persons or entities against whom orders for discovery have already been made (reference was then made to ‘the hospital’ and ‘the attending physicians’)” (para 11 thereof).

27.Further, the opposing parties submitted in effect that the present applications are premature; the defendants should have waited until the completion of the discovery of documents against other persons or entities (such as the medical professionals) and then decide if there is a genuine need to seek further documents from the opposing parties (para 12, the opposing parties’ written submissions).

28.As regards the probability of the opposing parties having possession of the requested documents, I agree with the defendants:

(a)  in relation to documents concerning the preparation of the 2004 will, the opposing parties were intimately involved in that process, and were involved in the preparation of some (and signed at least one or two) of those documents;

(b)  in relation to the documents concerning the dec’d’s medical history, part of the medical treatment was carried out in Mdm U’s residence and Peter Lam appeared to have paid for some of the medical reports;

(c)  in relation to the 3 Dec 2004 documents (concerning the execution of the 2004 will), Peter Lam was present on that occasion.

29.As stated above, the opposing parties have not argued that the requested documents are not relevant.  For reasons similar to those given in the Dec 2015 decision (para 14(a) and (b) and 15 thereof), I am satisfied that they may shed light on the issues summarized at para 4(1) to (3), Dec 2015 decision (see also Hunt v Anderson (1865-69) LR 1 P&D 476, 480-1).

30.As regards necessity for the requested documents, the plaintiff has only disclosed a limited quantity of documents, and claimed that other documents had been lost.  A claim of lost records has also been made by one medical practitioner and the dec’d’s senior colleagues at work.  The opposing parties’ submissions (summarized at para 27 above) have overlooked the handicap from which the defendants must have suffered as a result of these claims.

31.In light of the above, I am satisfied my discretion should be exercised in the defendants’ favour.

Conclusion

32.There will be an order in terms of the present applications, subject to the time limits mentioned in the paragraphs above.

Other matters

33.The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the decision and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

Costs order

34.The defendants accept that the costs of the non-party disclosure applications are to be paid by them to the opposing parties, to be taxed if not agreed.

Reed Smith Richards Butler, for the plaintiff, did not appear

Mr Jose Maurellet, instructed by Stephenson Harwood, for the 1^st and 2^nd defendants

Mr Michael Yin, instructed by Woo, Kwan Lee & Lo, for Mr Lam Kin Ngok, Peter and Madam U Po Chu