Leung Ping Chiu, Roy, Appointed By Order Dated 12 May 2020 To Represent the Estate of Yang Foo-oi, Since Deceased v. Wai Wai Chen and Another

CACV 241/2016

[2022] HKCA 1730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 241 OF 2016

(ON APPEAL FROM HCA NO 1739 OF 2010)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1.This is an application for leave to appeal to the Court of Final Appeal against our judgment dated 30 June 2021 (“CA Judgment”[1]). Save as otherwise stated, we will adopt the terms and expressions in the CA Judgment.

2.By the CA Judgment, we dismissed (1) the appeal (“Main Appeal”) of the defendants against the judgment of Anthony Chan J on 29 November 2016 (“CFI Judgment”), and (2) the application of the defendants by summons dated 19 April 2021 (“Evidence Summons”) for leave to adduce additional evidence on appeal and to re-amend the Amended Notice of Appeal.

3.The defendants issued two Notices of Motion both dated 28 July 2021 to seek leave to appeal to the Court of Final Appeal against the CA Judgment.

The Notice of Motion regarding the Main Appeal

4.In the Notice of Motion regarding the Main Appeal, the following questions are formulated as questions of great general or public importance:

Sham

(1)  Question 1: “Whether an estate duty saving scheme entered into pursuant to professional advice given in the light of the Court of Final Appeal’s decision in Shiu Wing Ltd v Commissioner of Estate Duty [2000] 3 HKLRD 76, with the clear understanding that to be an effective scheme the transfer of assets in question must be an unconditional gift, was or could be properly regarded as a ‘sham’, and if so, in what circumstances?”

(2)  Question 2: “Without prejudice to the generality of Question 1, what is the proper test for finding that the estate duty avoidance scheme was a ‘sham’ and contrary to the express purpose of the scheme (i.e. to avoid estate duty liabilities)? In particular, where the allegation of intention to deceive the tax authority was never put to the defendant at trial, is the court entitled to conclude that the scheme was a ‘sham’?”

Imposition of fiduciary duties

(3)  Question 3: “Does the ‘agency type of situation’ considered in Libertarian Investments Ltd v Hall (2013) 16 HKCFAR 681 at paras 63 to 65 apply to the situation where the alleged principal did not confer any authority to the alleged agent to receive property on her behalf, such that the alleged agent should owe fiduciary duties to the alleged principal?”

(4)  Question 4: “Where Party A directed the transfer of assets to Party B and directed Party B to transfer some unidentified or fractional part of such assets to Party C, does the acceptance of the assets by Party B create or impose fiduciary duties on Party B to Party C, and on what basis?”

Undue influence

(5)  Question 5: “To constitute undue influence, is it necessary to establish that the non-disclosure was deliberate?”

(6)  Question 6: “On the need to establish a causal link between the undue influence and the consent of the complainant to the transaction, should the ‘but for’ standard be applied, or should a lower standard (requiring only that the undue influence was a significant, or substantial or contributing cause, or even that it was only a factor in the production of the complainant’s consent) be applied?”

Family arrangement

(7)  Question 7: “Generally: Whether the doctrine of binding contractual family arrangement applies in Hong Kong, and if so, in what circumstances would family arrangements be treated as binding?”

(8)  Question 8: “Interpretation: What principles govern the construction of a putative family arrangement? In particular, what if any requirement is there to have regard to connected family arrangement documents and achieve consistency between them (so that in the present case (i) both Proposal A and Proposal Y3/Y5 should be read as dealing with fractional shares not cash sums and (ii) the direction contained in Proposal A was that Vivien should transfer to Yang only that part of 1/3 of the assets that Yang designated)?”

(9)  Question 9: “Intention to create legal relations: Where a party to a putative family arrangement can always amend its terms or otherwise revoke it altogether, and the affected parties would as a matter of course not object to such unilateral decision, was the document intended to have legal effect and be binding for the purposes considered in the CA Judgment?”

(10)  Question 10: “Consideration: Is giving up a non-legal, expectant entitlement sufficient consideration to support a contractually binding family arrangement? When the family arrangement sought to be contractually enforced is said to be supported by consideration which was promised to move from the promisee in a related contract, but which would move back to the promisee as such related contract is sought to be rescinded, was there valid consideration?”

5.The defendants also seek leave to appeal on the “or otherwise” limb contending that this court and the judge have made various fundamental errors in mis-apprehending the true nature of the proceedings (that in reality the action was instigated and driven by Angela) and the evidence and have made errors in law, thus resulting in a serious miscarriage of justice. Further, the Court of Final Appeal’s intervention is warranted because the case exceptionally concerns a very prominent family in Hong Kong, with very large financial stakes involved and very serious findings being made against Vivien and Chen.

The Notice of Motion regarding Evidence Summons

6.In the Notice of Motion regarding the Evidence Summons, the following questions are formulated as questions of great general or public importance:

(1)  Question 1: “What is the proper approach when the new evidence raises a strong prima facie case of abuse or deliberate concealment, and whether the issue of abuse and deliberate concealment should be remitted to be tried at the Court of First Instance in accordance with the approach in Noble v Owens [2010] 1 WLR 2491?”

(2)  Question 2: “Whether the trial process was inherently unfair when a person instigating the proceedings was not joined as a party by reason of her failure (be it deliberate or innocent) to disclose relevant documents which would lead to joinder of the correct parties?”

Questions 1 and 2 of the Main Appeal

7.Questions 1 and 2 both concern the issue of sham and can be conveniently addressed together.

8.Mr Jat Sew Tong, SC[2] submitted for the defendants there is a strong and natural presumption against a finding of sham. Applying such presumption to the present context, the court ought to have approached the evidence on the basis that the parties to a tax scheme would have intended the scheme to be effective. Cogent evidence is required to rebut the presumption against any finding of sham, especially where the parties are professionally advised.

9.Mr Jat further submitted that this court as well as the judge were wrong to hold that the Scheme was a sham because the very purpose of the Scheme would be defeated if, contrary to appearances, Vivien was holding the shares or assets of CHL on trust for Chen. Mr Jat also identified various aspects in the evidence suggesting that the Scheme could not have intended to be a sham by Vivien and Chen.

10.It was also his contention that the allegation of intention to deceive the tax authority was never put to Vivien and properly explored at trial. It is therefore reasonably arguable that the case of “sham” cannot be made out.

11.We are not satisfied that Questions 1 and 2 would give rise to any arguable questions of general or public importance.

12.We agree with the submissions of Mr Benjamin Yu, SC[3] for Yang that Question 1 does not arise on the appeal. The issue in this case is whether the Scheme, in all the circumstances as found by the judge, was a sham or not. This does not give rise to the issue of whether or in what circumstances professionally advised estate duty saving schemes could generally amount to a sham.

13.As for Question 2, it contains 2 sub-questions.

14.The first sub-question asks what the test is for finding an estate avoidance scheme to be a sham.

15.As pointed out by Mr Yu, in determining whether an estate avoidance scheme is a sham or not, general principles for finding a sham are to be applied. The authorities on this are well established: Snook v London and West Riding Investments Ltd [1967] 2 QB 786; Hitch v Stone [2001] EWCA Civ 63 and Shalson v Russo [2005] Ch 281. Mr Jat did not suggest any different legal test.

16.It seems to us the defendants are effectively seeking to mount a factual challenge to the finding of sham by the judge. This finding was based on the live evidence of Vivien and senior Nan Fung staff, as well as contemporaneous documents, many of which were created by Vivien herself. Bearing in mind that it was the concurrent finding of the judge and this court that Vivien and Chen had intended the Scheme to be a sham, we do not think there is any sufficient basis to challenge such a finding before the Court of Final Appeal.

17.As for the second sub-question of Question 2, we are not satisfied that it arises on the intended appeal because it is based on the erroneous premise that the intention to deceive the tax authority was not put to Vivien. As submitted by Mr Yu, it was in fact expressly put to Vivien at trial that the Scheme was a sham for the purpose of avoiding estate duty (“是將來是為了這個遺產稅而成立的一個假局來的”).

18.In any event, whether there is any unfairness because a proposition is not put to a witness must depend on all the circumstances of a case. No question of general or public importance can be said to arise therefrom.

19.Accordingly, we are not satisfied that Question 1 or 2 gives rise to any arguable question of general or public importance.

Questions 3 and 4 of the Main Appeal

20.Questions 3 and 4 concern the basis upon which the court can impose fiduciary duties on a party.

21.Regarding Question 3, Mr Jat submitted for the defendants that the “agency type of situation” referred to in Libertarian Investments Ltd v Hall (2013) HKCFAR 681 at §§63 to 65 should not be extended to the present case.

22.Mr Jat cited Daly v Sydney Stock Exchange (1985-6) 160 CLR 371, which was referred to in footnote 49 of §65 in Libertarian. He submitted that Daly concerned a stockbroker receiving money for his client and was therefore a quintessential case of principal-agent relationship. In contrast, in the present case, no principal-agent relationship could be said to arise between Vivien and Yang because Proposal A was not drafted on Yang’s directions, but on Chen’s directions. Even if Yang did agree to Proposal A, there was no agreement between Yang and Vivien such that Vivien would be empowered to receive property, or to alter Yang’s legal position, on Yang’s behalf.

23.In our view, Question 3 is not reasonably arguable.

24.As Vivien was directed by Chen under Proposal A to transfer to Yang one-third of what had been given to her, Vivien must be regarded as receiving assets for and on behalf of Yang, which was the type of agency relationship in §65 of Libertarian. As held in §123 of the CA Judgment, there is clear evidence that Proposal A was discussed among family members beforehand and it was directed by Chen that the terms of the draft Proposal must be agreed to by Yang, Angela and Vivien. As such, it must follow that Yang had agreed that Vivien would receive and then transfer one-third of the assets received to her. This would be sufficient to create a principal-agent relationship between Vivien and Yang.

25.Question 4 deals with the imposition of fiduciary duties based on the de Bruyne^[4] type of trust. Mr Jat made the point that before the present case, this type of trust has not been considered by the courts of Hong Kong and guidance from the Court of Final Appeal would contribute to our jurisprudence.

26.He contended that the de Bruyne type of trust should have no application to the present situation because Chen’s instructions on the distribution of assets may be amended unilaterally by him. By reason of the inherent lack of finality of Proposals A and B, Yang could not have any expectation (let alone equitable entitlement) to compel Vivien to transfer to her one-third of the assets received from Chen and no de Bruyne type of trust can arise on the facts.

27.It should be noted that the defendants did not appear to dispute that the principles are rightly stated in de Bruyne, as summarised in Lewin on Trusts (20^th ed) at §§8-016 and 8-019. Effectively, the only point made by the defendants is that this case does not fall within the principle of de Bruyne because Chen’s directions allegedly lacked finality.

28.We agree with Mr Yu that this point is unarguable for two reasons. First, the point is contrary to the concurrent findings of this court and the judge that Chen’s directions were final and immediately binding in the sense that his directions could only be changed with the agreement of other family members[5]. Further, there was no change of mind by Chen in relation to Proposal A. It is therefore wrong for Mr Jat to assume that Chen’s directions may be changed unilaterally by him.

29.Second, whether Chen’s directions may be changed by him unilaterally has nothing to do with the content of the principle in de Bruyne. The principle in de Bruyne provides that a trust arises where a person acquired property on terms that required him to hold it for the benefit of another, such that it would be unconscionable for him to assert personal beneficial interest in the property. Whether the terms upon which property was acquired may be changed unilaterally by a third party is irrelevant to the question of whether it would unconscionable for the acquirer of property to assert personal beneficial interest in the property acquired.

30.Accordingly, we are not satisfied that Question 4 gives rise to any arguable question of general or public importance.

Questions 5 and 6 of the Main Appeal

31.The remainder of the Questions of the Main Appeal only provide further bases upon which liability may be imposed on the defendants. As we have held that Questions 3 and 4 do not give rise to any arguable questions of general or public importance, it is not strictly necessary to consider whether the rest of the Questions of the Main Appeal are arguable or not. Given that full arguments have been received from the parties, we will nonetheless express our views on them.

32.Questions 5 and 6 deal with undue influence.

33.Question 5 asks whether it is necessary to establish that a non-disclosure was deliberate to constitute undue influence.

34.Mr Jat submitted that the issue of whether a non-deliberate non-disclosure can lead to a finding of undue influence has not been considered in the Hong Kong courts before. This is therefore a question of general or public importance on which clarification from the Court of Final Appeal may be desirable.

35.He relied on Royal Bank of Scotland v Chandra [2010] EWHC 105 (Ch) (affirmed in [2011] EWCA Civ 92) for the proposition that deliberate concealment should be distinguished from inadvertent non-disclosure; whereas deliberate concealment can found undue influence, inadvertent non-disclosure should not lead to a finding of undue influence. As there was no finding by the judge that the non-disclosure by Vivien was deliberate, there was no basis for a finding of undue influence to be made on the facts of the case. Reliance was placed on the judge’s rejection of Yang’s case on misrepresentation.

36.We are unable to accept the above submissions, as we do not consider Question 5 relates to the actual circumstances of the case.

37.As we have observed at §162 of the CA Judgment, we do not think that the courts in Chandra were laying down a requirement that only deliberate suppression of information would amount to undue influence. The material question is whether the relevant conduct would be regarded as unconscionable and hence unacceptable behaviour. The making of misleading statements can amount to unconscionable non-disclosure and hence unacceptable behaviour.

38.As a matter of fact, this court and the judge have found that in light of Vivien’s knowledge about the value of the assets distributed to her, what Vivien told Yang about the appreciation of the assets was in the circumstances positively misleading and amounted to unconscionable non-disclosure and unacceptable behaviour[6]. In other words, the finding of undue influence was based on the fact that Vivien had acted in a misleading and non-innocent way. It also follows that the implication of an inadvertent non-disclosure is not an issue that would need to be determined in the circumstances of this case.

39.It is wrong to rely on the judge’s rejection of Yang’s case on misrepresentation. Vivien’s statement that was found to be misleading is not the same as the pleaded misrepresentations[7].

40.We think it is wholly academic and divorced from the findings in the present case to debate whether non-deliberate non-disclosure could or would amount to undue influence. Accordingly, we are not satisfied that Question 5 give rises to any arguable question of general or public importance.

41.Question 6 asks whether it is necessary to establish a “but for” causal link between the undue influence and the consent of the complainant to a transaction, or whether some lesser standard suffices.

42.Mr Jat relied on Snell’s Equity (34^th) Ed §§8-003 and 8-020 and submitted that the law is unsettled as to the correct approach to causation in the context of undue influence. He submitted that a “but for” causal link between undue influence and the consent of the complainant should be established before a transaction may be set aside for undue influence. The “a factor” test should only apply in cases where dishonest behaviour was involved.

43.We are not satisfied that Question 6 is reasonably arguable. We dealt with the arguments at §§166 to 172 of the CA Judgment. BCCI v Aboody [1990] 1 QB 923 at 971D to F is the only authority which suggests a more stringent approach to causation for undue influence. As pointed out by Mr Yu, no authority was cited in that decision to justify that stance.

Questions 7 to 10 of the Main Appeal

44.Mr Jat submitted that the law relating to contractual family arrangement has never received proper consideration by the Hong Kong courts, so Questions 7 to 10 are clearly of general and public importance. Whilst Question 7 is in relation to the duty of disclosure in family arrangement, Questions 8 to 10 raise issues dealt with under general contract law principles and there is no different rule in family arrangement, as rightly pointed out by Mr Yu.

45.In respect of Question 7, Mr Jat contended that contracts of compromise are no longer regarded as uberrimae fidei. As family arrangement is only a special species of compromise, there is no basis to impose a duty of disclosure under a family arrangement.

46.He further submitted it is unsound for the judge and this court to seek to justify such a duty of disclosure on the premise that family members do not deal with each other on a commercial basis and so must act with fairness and openness. In modern times, family members often deal with each other on a commercial basis with the assistance of professional advisors, and Angela and Vivien had engaged solicitors to deal with each other on the distribution of assets.

47.We do not consider the above contention reasonably arguable for the reasons set out at §§180 to 182 of the CA Judgment. Vivien has not been able to cite any authority to suggest that the doctrine that family arrangement comes with a duty of disclosure should no longer be the law.

48.As regards Questions 8 to 10, Mr Jat essentially repeated his submissions on appeal on the construction of various proposals, the intention to create legal relations and consideration.

49.We are not satisfied they give rise to any questions of general or public importance.

50.As submitted by Mr Yu, these issues have been resolved by this court by the application of general contract law principles to the particular facts of the case. They cannot raise any questions of general or public importance.

51.In any event, we do not consider them to be arguable for the reasons already canvassed in the CA Judgment (as regards Question 8, see §§201 to 206 of CA Judgment; as regards Question 9, see §§102 to 106 of the CA Judgment; and as regards Question 10, see §§107 to 109, 188 to 191 of the CA Judgment).

52.For the above reasons, we decline to give leave to the defendants to appeal to the Court of Final Appeal on Questions 7 to 10.

‘Or otherwise’ limb of the Main Appeal

53.We agree with Mr Yu that in Question 11 the defendants are simply attempting to re-run various substantive arguments for which Vivien cannot formulate questions of general or public importance. Those questions have been considered and rejected in the CA Judgment.

54.The mere fact that a large financial stake is involved, or that a serious finding is made against a particular defendant, cannot constitute exceptional circumstance for invoking the “or otherwise” limb.

55.In any event, it is the practice of the Court of Appeal to defer to the Appeal Committee of the Court of Final Appeal whether leave to appeal should be granted on the ‘or otherwise’ limb.

56.For the above reasons, we decline to give leave to appeal to the Court of Final Appeal on the “or otherwise” limb as well.

Question 1 of the Evidence Summons

57.Mr Jat submitted that where the new evidence proposed to be adduced raises a strong prima facie case of abuse or deliberate concealment, the proper approach is to remit the issue of fraud to the court below for determination. This is the approach suggested in Noble v Owens [2010] 1 WLR 2491 at §§29 to 30.

58.As clarified in Dale v Banga [2021] EWCA Civ 240 at §§42 to 43, the Noble v Owens approach entails a two-stage test:

(1)  At the first stage, it is necessary to decide whether the new evidence is capable of showing that the judge was deliberately misled and that the judgment may have been obtained by fraud. It must be sufficient to justify pleading a case of fraud. It must be capable of showing that there was conscious and deliberate dishonesty which was causative of the judgment being obtained in the terms it was.

(2)  If the threshold test in the first stage is satisfied, then the court must determine whether on the facts and in the circumstances of the particular case, it is appropriate that the fraud issue should be remitted or otherwise dealt with within the same proceedings.

59.Mr Jat submitted that whether it is open to the court to make a “Noble v Owens order” is a question of general or public importance because it has never received proper consideration in this jurisdiction. He cited Lu Yongliang v Bank of China Ltd, Dongguan Branch [2021] HKCA 1047, where Lam VP (as he then was) observed at §22 there is no provision in the Rules of the High Court (Cap 4A) equivalent to the English Civil Procedure Rules rule 52.10(2)(b), which expressly empowers the appeal court to remit an issue to the lower court for determination without setting aside the judgment below. It was also noted in Lu Yongliang that the jurisdiction of the Court of Appeal to make a “Noble v Owens order” must be considered on another occasion.

60.Mr Jat further contended it is reasonably arguable that this court fell into error in refusing to admit the new evidence because the defendants have clearly raised a triable issue of fraud or deliberate concealment on the part of Angela. It was argued that notwithstanding that the Deed of Trust[8] had been provided to Angela’s legal advisors in 2012 and 2017 respectively, Angela may have provided it for reasons such as inadvertence, rather than out of a lack of intention to conceal the documents. It was also suggested that Angela had the motive for, and a history of, concealing relevant documents from the court.

61.Mr Jat argued that the Deed of Trust would have an important influence on the case. In particular, if the judge had found that Angela deliberately concealed the Deed of Trust, it would be reasonably arguable that these proceedings should be struck out or dismissed for abuse of process because:

(1)  where a person starts or pursues a claim in the knowledge that the cause of action was vested in someone else, the claim is an abuse: Pickthall v Hill Dickinson LLP [2009] EWCA Civ 543 (CA) at §§15, 23 to 24 per Mann J;

(2)  further or alternatively, a litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial: Arrow Nominees Inc v Blackledge [2001] BCC 591 at 640H §54 per Chadwick LJ. Contumacious conduct such as deliberate suppression of a document might justify a striking out even if a fair trial were still possible: Landauer Limited v Comins & Co. (A firm) (unrep., 7 August 1991) at p 6 per Lloyd LJ.

62.We are not satisfied that leave to appeal should be given in respect of Question 1.

63.The intended appeal is against an interlocutory order of this court and appeals of this kind are rare and exceptional. Leave will generally be refused unless it can be clearly seen that: (1) the proposed appeal genuinely raises a question of law of great general or public importance; (2) the result of the appeal would indeed turn on how that question is answered; and (3) such result is likely to make a significant contribution to the just disposal of the litigation (CSAV Group (Hong Kong) Ltd v Jamshed Safdar (2007) 10 HKCFAR 629 at §1).

64.The Evidence Summons was dealt with in §§66 to 78 of the CA Judgment. It was argued before this court by the defendants only on the basis of traditional grounds in Ladd v Marshall [1954] 1 WLR 1489 at 1491. We held that the defendants failed to satisfy the Ladd v Marshall criteria for the admission of fresh evidence and refused the application to amend the notice of appeal to raise additional grounds based on the new evidence. As the defendants have not identified any questions of general or public importance regarding the principles in Ladd v Marshall, or how those established principles should be applied differently in the present case, we agree with Mr Yu that the defendants’ application for leave to appeal must fail in limine. In Lu Yongliang, one of the reasons for refusing leave to appeal to the Court of Final Appeal was that the application for admission of new evidence was not argued in the Court of Appeal on the Noble v Owen basis (at §23).

65.Furthermore, it is well-established that the Court of Final Appeal would not consider a new point not pursued in the Court of Appeal, save in “very exceptional circumstances” (Flywin Co. Ltd v Strong Associates Ltd (2002) 5 HKCFAR 356 at §39). Given that whether a “Noble v Owens order” should be made in the present circumstances was not argued before this court at the appeal hearing, Mr Yu submitted that leave to appeal should not be given on Question 1. In any event, the Court of Appeal would leave it to the Appeal Committee to decide whether a new point not argued before the Court of Appeal should be heard by the Court of Final Appeal (Ageas Insurance Company (Asia) Limited v Lam Hau Wah Inneo, CACV 65/2014, 19 May 2015 at §§7 to 9). We agree with these submissions.

66.In response, Mr Jat submitted that the application to adduce new evidence was made in the first instance to this court. In these circumstances, there is no “intermediate appeal”, and it cannot be said that the Noble v Owens point was not considered on intermediate appeal.

67.We are not persuaded by the submissions of Mr Jat. As stated at §39 in Flywin Co Ltd v Strong Associates Ltd (2002) 5 HKCFAR 356, one of the reasons for the “not considered on intermediate appeal” hurdle is that having the intermediate appellate court’s view on a point of law involved, especially when the new point would constitute a major development of the law, would be of assistance to the final appellate court. This rationale applies, irrespective of whether the relevant application is made in the first instance to the Court of Appeal or not.

68.The above should be sufficient to dispose of Question 1. For completeness, we are not satisfied that the Noble v Owens approach could assist the defendants anyway. As we have held at §73 of the CA Judgment, we are not satisfied that Angela had deliberately concealed the Deed of Trust and the Trust Documents. There is no conceivable reason why Angela would provide the Trust Documents to her lawyers if she had any intention to conceal them from the court. There is also no basis for Vivien to assert that Angela had consistently suppressed documents, which is an argument rejected by the judge at the locus trial[9]. There is no appeal against that decision given on 20 January 2020. We are also not convinced that Angela had any motivation to conceal the Deed of Trust, especially when Angela had never shied away in assisting Yang to pursue her rights. The new evidence sought to be admitted would not have an important influence on the outcome of this case, for the reasons set out in the CA Judgment at §§74 to 76. The court’s finding is fact-sensitive and no question of general public importance can arise.

69.In light of our ruling that there was no deliberate concealment on Angela’s part, it is not necessary to deal further with Mr Jat’s argument on abuse of process.

70.For the above reasons, we decline to give leave to appeal on Question 1 regarding our decision on the Evidence Summons.

Question 2 of the Evidence Summons

71.Mr Jat contended that whether the misapprehension of the identity of the proper party to the court process may render a trial unfair is an issue that has never been considered by the Hong Kong courts. It is therefore a question of general public importance.

72.He submitted that had the Deed of Trust been disclosed by Angela in a timely manner, Angela would likely have been joined as a party to this action and that the non-joinder of Angela had prejudicially affected Vivien’s approach and strategy to litigation. Mr Jat suggested, as an example, that had Angela been joined as a party to the action, Vivien could have considered obtaining evidence of what had happened with regard to Angela’s dealings with Yang pursuant to the alleged family arrangement.

73.We are not satisfied that Question 2 gives rise to any arguable question of general or public importance.

74.We agree with Mr Yu whether a trial process was inherently unfair by reason of the misapprehension of the identity of the plaintiff must depend on all the circumstances of the individual case. This is highly fact-sensitive and cannot raise any question of general or public importance.

75.We further accept Mr Yu’s submission that it is plainly unarguable that the non-joinder of Angela had rendered the trial of this action unfair. It should be noted that Vivien had all along been alleging that Angela was the person who instigated Yang to bring the present claims against Vivien. Given Vivien’s impression of Angela as the real instigator of this action, it is difficult to imagine her approach and strategy could have been prejudicially affected by the non-joinder of Angela.

76.For the above reasons, we refuse leave to appeal on Question 2 of our decision on the Evidence Summons.

Conclusion and costs

77.In conclusion, we decline to give leave to appeal to the Court of Final Appeal on our decisions regarding both the Main Appeal and the Evidence Summons.

78.We order the defendants to pay Yang’s costs on the two Notices of Motion, with a certificate for three counsel.

79.Having considered Yang’s two statements of costs for summary assessment, we allow the costs of Yang in full for the Main Appeal at $248,610 and for Evidence Summons at $246,400.

Mr Benjamin Yu SC, Mr Bernard Man SC and Mr Keith Lam, instructed by Clifford Chance, for the Plaintiff (Respondent)

Mr Jat Sew Tong SC, Mr Victor Dawes SC and Mr James Man, instructed by Mayer Brown, for the 1^st and 2^nd Defendants (Appellants)