Tang Kwok Pang v. Kot See for

FAMV No. 255 of 2021

[2021] HKCFA 31

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 255 OF 2021 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 536 OF 2019)

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Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Fok PJ and Mr Justice Stock NPJ

Date of Hearing and Determination: 17 August 2021

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.We are satisfied that the questions involved in the appeal are of the requisite importance and ought to be submitted to the Court for decision, namely:

Question 1:

In the light of section 33 of the Theft Ordinance, Cap 210, what is the proper approach to a claim in civil proceedings for privilege against disclosure on the ground of self-incrimination where the potential exposure is not only to a charge for a substantive offence under the Theft Ordinance but also for:

(i)    a conspiracy to commit a Theft Ordinance offence, and

(ii)   any other offence?

Question 2(a):

In the absence of statutory abrogation of the privilege against self-incrimination in any particular case, on what basis may a person be precluded from refusing disclosure ordered in civil proceedings notwithstanding such person invoking the aforesaid privilege?

Question 2(b):

If there be such a basis, subject to what measures, if any, by way of protection against the risk of exposure to criminal proceedings as a result of such disclosure might such preclusion be directed?

2.We refuse leave on the “or otherwise” basis.

3.The appeal will be listed for hearing on 30 November 2021.

4.We also direct that there be a stay of execution of paragraphs 2 to 5 of the Injunction Order made by DHCJ M K Liu dated 3 May 2019 pending the Court’s determination of the Applicant’s appeal on the condition that the Affirmation filed by the Applicant on 23 July 2021 pursuant to the directions of the Honourable Mr Justice Ribeiro PJ made on 16 July 2021 do remain with the Registry of this Court pending the determination of the Applicant’s appeal.

Mr Ambrose Ho SC and Mr Jeff Chan, instructed by Li & Lai, for the 2^nd Defendant (Applicant)

Mr Rimsky Yuen SC and Ms Esther Mak, instructed by Mayer Brown, for the Plaintiff (Respondent)