Kung Wong Sau Hin v. Kung Kwok Sun and Another

CACV000128/1983

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Coram: Sir Alan Huggins, V.-P., Barker, J.A. & Garcia, J.

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JUDGMENT

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1. This is a motion for leave to appeal to Her Majesty in Council.

2. The Notice of Appeal does not state the grounds which it is sought to argue before the Board. Also it must be mentioned that the order of this court has not yet been perfected and there was some doubt earlier this morning as to precisely what we had crdered.  As a result of correspondence Mr. Ching says that he understood this application to be limited to the seeking of leave to ask for a new trial in relation to the codicil, that application presumably being made on the basis of new evidence if the further action is successful. We have, however, been informed by Mr.Chang that he seeks leave not only on the basis of whatever new evidence may be forthcoming but also on the natural justice and that the judge was wrong to find as he did on the evidence then before him, these last two grounds being the grounds upon which we would have delivered judgment on 20th February.

3. The argument today has brought to light a difficulty which was not present to my mind on 20th February. On that occasion Mr. Chang asked us for a new trial so that he could attempt to prove the new will which has been filed. He further asked that his claim for the admission of the cedicil to probate be re-heard but that request was, as I understood it, on the basis that all the issuse in relation to the codicil should be re-opened: it was not suggested that there should be a limited re-hearing in respect of the codicil, Our anxiety was that it was being sought to re-litigate the matter on grounds which we were satisfied should be rejected, namely the natural justice point and the contention that the judge had been wrong to find as he did on the evidence then before him. I did not appreciate that it was sought to have the codicil re-litigated on the basis of new evidence which might have affected the view of the trial judge on credibility. Had I done so I might have agreed to such a limited order. As it is, I think we are functus officio. It may be that a new trial of the codicil will have to be granted if the further trial succeeds in establishing the 1980 will. If that action fails, there will be no new evidence and therefore no new trial of the codicil on the basis of new evidence. In that event the defendant could still come back to us and apply for leave to appeal on the basis of the reasons which we shall then deliver for having dismissed the appeal against the judge's decision in the first trial.

4. The proper course therefore seems to be that we should adjourn this application until the new trial of the 1980 will has been heard. If appropriate tire Defendants can then resume their application before us. Being functus officio in respect of the codicil we shall not be able to order a new trial but we could (and possibly would) give leave to appeal to Her Majesty in Council and the view have just expressed could be conveyed to the Beard.

22nd March 1984