Chinachem Charitable Foundation Ltd v. Chan Chun Chuen and Another

CACV 62/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 62 OF 2010

(ON APPEAL FROM HCAP NO. 8 OF 2007)

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BETWEEN

Before: Hon Rogers VP in Chambers (Open to Public)

Date of Hearing: 9 September 2010

Date of Decision: 9 September 2010

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1.I have given directions as to the preparation of the bundles and the filing of the skeleton arguments. The only matter which remains to be considered this morning is the question of the custody of the exhibits.

2.The matter seems to have arisen in this way. The judge gave judgment in this appeal on 2 February 2010.  On 19 March, a notice of appeal was filed by the first defendant and application was made to set down the appeal then.  A respondent’s notice was filed on 9 April 2010.  It seems that on 16 April, application was made on behalf of the Secretary for Justice for release of the exhibits, but of course if it was to be made to the trial court it had to be made in a separate set of proceedings, because the order in the action to which this appeal relates had already been drawn up.

3.The judge was really functus officio.  He had performed everything he had to do and he had no more function in the case. Nevertheless, the application was made, what he was doing was that he was dealing with the custody of the exhibits pending appeal.  That really was a matter for this court, not a matter for the court below and the judge should really have declined to have dealt with that.  Nevertheless he did and he produced a useful judgment in the process.  He made an order that three of the exhibits should be released and his order is dated 18 June.  It is that:

“ The following exhibits produced by the 1st Defendant at the trial of HCAP8 of 2007:

(a) the Will referred to in the judgment of the Honourable Mr Justice Lam handed down therein on 2 February of 2010 as the ‘2006 will’;

(b) the Unsigned Document as referred to therein; and

(c) the envelope marked Beijing University which the 1st Defendant produced with the ‘2006 will’;

be released to the Plaintiff for the purpose of criminal investigation by the investigators from the Commercial Crime Bureau of the Hong Kong Police.”

4.It appears that the first defendant did not object to that, but what was contended on behalf of the first defendant, both in the court below and in this court, was that the release should be subject to a protocol.  That protocol essentially entailed that the first defendant’s appointed experts should really look over the shoulders and be able to conduct experiments at the same time as the police when they conducted their investigation.

5.I do not consider the protocol is workable because, in any event, there are provisions in that which require agreement between the parties.  It is suggested that the matter should come back to court if the parties cannot agree.  I consider the whole thing is a nonsense and, having considerable experience of experiments in the course of civil proceedings, I can hardly see that a protocol like this would function.

6.Nevertheless, the important matter in this case seems to me to be this: that these three documents are in the court’s custody and in the custody of the Court of Appeal pending this appeal, but there was no suggestion in the court below and it is confirmed in this court there is no suggestion, that any results of any experiments or investigations in relation to these documents will be of use in this appeal.  The judge below said in paragraph 2 of his judgment, when the matter came before him on 18 June:

“At today’s hearing, none of the parties has made any suggestion that the release of the relevant exhibits to the police for their investigation would impede the course of the appeal.”

7.So as far as I can see, as far as this appeal is concerned, there is no impediment upon these documents being released for police investigation.  Having regard to the terms of the judgment below, I can well see why the judge thought it was appropriate that they should be so released.

8.My attention has been drawn to the fact that a similar protocol, or not quite similar, but a protocol, was in existence when the will of the late Nina Wang’s husband was being contested, but the point of that was that the proceedings in respect of that will were still going on.  It was a question of how the exhibits should be handled before the matter came to trial and so, as far as I am concerned, that is irrelevant.

9.My attention has also been drawn to the case of R v Lambeth Metropolitan Stipendiary Magistrate ex parte McComb [1983] 1 QB 551 and to various statements which were made by Sir John Donaldson MR in the course of giving his judgment, particularly those at pages 564 and 565, where he says that the court has a responsibility.  He defines it as:

“ (1) to take all proper care to preserve the exhibits safe from loss or damage;

(2) to co‑operate with the defence in order to allow them reasonable access to the exhibits for the purpose of inspection and examination; and

(3) to produce the exhibits at the trial.”

10.But the whole circumstances in which he said that were quite different.  That was in the course of a case where there were criminal proceedings which were both extant in Northern Ireland and in England.

11.I do not see that any such statement prevents these documents, or leads me to consider that these documents, should not go to the police.  What course the police take with regard to the documents is another matter.  If the documents are so destroyed that if criminal proceedings then follow and the defendant is put in a position that he cannot defend himself, no doubt the appropriate orders will be made and, no doubt, the defendant will be able to defend himself on the basis that there has been a destruction of the documents.

12.But that is not a matter for this court to consider.  All this court should consider is whether these documents should be retained by this court pending this appeal.  As far as I am concerned, there is no need for this court to retain these documents pending this appeal.  Therefore, I decline to order that there should be any protocol as suggested.

13.As regards costs of today, I will just put it as costs in the appeal.

(Submissions on costs)

14.The costs of the plaintiff and first defendant should be costs in the appeal.  The Secretary for Justice should get the costs of today, because the only reason they were here was in respect of the protocol and not for any other reason.

Mr Jeremy S K Chan, instructed by Messrs Wilkinson & Grist, for the Plaintiff/Respondent

Mr Godfrey Lam SC and Ms Frances Lok, instructed by Messrs Richards Butler, for the 1st Defendant/Appellant

Mr R G Turnbull SADPP, of Department of Justice, for the 2nd Defendant/ Respondent