Mid Pacific Services Inc and Others v. Crown Soliciton

CACV000109/1991

BETWEEN

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Coram: Hon. Sir Derek Cons, Ag. C.J., Kempster & Power, JJ.A.

Date of hearing: 10 July 1991

Date of delivery of judgment: 11 July 1991

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JUDGMENT

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Sir Derek Cons, Ag. C.J. delivered the judgment of the court:

1. This is an appeal from the order of Master Jennings, sitting as a deputy judge of the High Court, by which he refused to set aside the order made by Master Woolley on the 14th of last month under Part VIII of the Evidence Ordinance, Cap. 8 appointing an examiner and requiring, by virtue of s. 76 of the Ordinance, three witnesses to attend upon the examiner at a specified place and time to be examined viva voce and to produce specified documents.

2. The terms of Master Woolley's order were taken from the order made by Mr. Justice Trainor in the Supreme Court of British Columbia, dated the 28th of February this year and submitted in support of letters of request relating to proceedings already instituted in that jurisdiction against eight natural persons and one corporation for offences in the nature of commercial crime. The corporation and one of the natural persons are the 1st and 2nd appellants in this appeal. The remaining two appellants are corporations which have not been charged in British Columbia, but are affected by Master Woolley's order in that documents relating to them are among those ordered to be produced. Miss Harstein, who appears for the Crown Solicitor, expressly declines to question their locus standi. The order of Mr. Justice Trainor was made after consultation with and approval by counsel for all nine defendants.

3. The procedure for conducting examinations of this kind is provided by orders 74 and 39 of the Rules of the Supreme Court. Rule 5(1) of the latter order provides: -

4. In the instant circumstances this procedure was preempted by para. (viii) on p. 9 of Master Woolley's order which, as some might think sensibly, having regard to the time that might be saved and being, as it is, consistent with Order 70 rule 6, provides:

The effect is that any dispute as to privilege will be resolved by the courts of British Columbia rather than the courts of this jurisdiction.

5. At this stage we must observe that the 2nd, 3rd and 4th appellants are clients.of a Miss Sok Inn Hwang, a solicitor practising in this jurisdiction with the firm of Hwang & Co. These appellants have instructed her, emphatically she says, not to breach her obligation of solicitor and client confidence; in other words to claim in the examination on their behalf privilege against revealing their communications with her or their documents.

6. Proceedings commenced before the examiner on the 3rd of this month. That morning Canadian counsel representing the various defendants were supplied with a copy of Master Woolley's order. However it was not until the 8th of July that the present four appellants, through Hong Kong counsel Mr. McCoy, applied to have the order set aside. The judge below refused the application and it is against his refusal that this appeal is brought. As Miss Hwang is expected to be called as a witness today we treated the matter as urgent and set aside for the time being the business of this court which had been planned for yesterday.

7. Mr. McCoy's first submission is that the appellants did not in fact consent to the terms incorporated in the order of Master Woolley as he was led to believe and as the judge below so found. The approval which was endorsed on the record of the British Columbian court was, he suggests, only as to the form and not as to the content of the order. The suggestion is supported by affidavits from Anthony Paul Serka and John Deryk Banks, respectively Canadian counsel for the 2nd appellant and one of his co-defendants not concerned in this appeal, which we hereby receive as further evidence under Order 59 rule 10(2) following the application made yesterday by Mr. McCoy.

8. There is no affidavit evidence as to how the order of Mr. Justice Trainor came to be made, but Miss Hartstein has outlined to us her instructions of what took place and Mr. McCoy, upon instructions, has agreed them to be correct. It seems that on the 28th of February counsel for the prosecution and all defendants named in the charges appeared before the judge. A first draft of the order was prepared. On the 22nd of March there was substantial discussion between the same parties with regard to administrative matters such as the date of and accommodation for those involved in the examination to be included in the draft and all agreed. There were subsequent drafts produced which incorporated variations from the original, but in all the drafts from the second draft onwards para. (viii) was included. On the 8th of May by a letter, which by consent has been shown to us, counsel for the prosecution furnished a final draft to all defence counsel who signified their approval of the draft on the record of the British Columbian court between then and the 10th of May.   On the 14th the judge made the order which, according to the practice of that court, was backdated to the 28th of February. In those circumstances we are unable to accept the contention that the order did not embody an agreement by those who gave their approval to it.

9. That does not include in express terms the 3rd and 4th appellants who, not being charged, were not then directly represented by counsel. However top affidavit of Maurice K.C. Ma, a special investigator attached to the Vancouver District Office of the Department of National Revenue Taxation, details an intimate connection between the 2nd personal appellant and the 3rd and 4th corporate appellants. Having regard to that, and to the participation of counsel for the 2nd appellant throughout the consultation that led to the judge's order, we are satisfied on a balance of probabilities that approval of the order was also given on behalf of the 3rd and 4th appellants.

10. Even so, continues Mr. McCoy, the appellants are entitled to and, although he executes his instructions not without some personal reluctance, do resile from their agreement. His authority is Goldman v. Hesper [1988] 1 WLR 1238 @ 1240 where in proceedings relating to taxation of costs the English Court of appeal firmly observed that a suggestion that once the plaintiff had waived her privilege against production of documents, she could not go back on it, was untenable. But Lord Justice Taylor added:

11. The present situation bears little comparison with that of Goldman v. Hesper. There, in addition to nothing having been done following the waiver, the plaintiff was the ex-mistress of the defendant, a solicitor, and had given a waiver apparently without legal advice on a form of consent provided by him. In the present instance all interested parties were represented by counsel, who allowed the agreement to be embodied in an order of the court of British Columbia which they knew would be transmitted to the court in Hong Kong for the purposes of the examination. The  examination has now been in progress for some time and indeed many of the documents required, i.e. those to be produced by the manager of The Hong kong and Shanghai Banking Corporation, have already been produced; and considerable expense has been incurred by all parties. In these circumstances we cannot accept that the appellant should be allowed to resile from in agreement so freely made.

12. The final attack upon the order is that it is excessive in breadth, thereby contravening s. 76(4) of the Ordinance which provides, by para. (b) that an order under the section shall not require a person to produce any documents "other than particular documents". These words were construed   by Lord Fraser in In re Asbestos Insurance [1985] 1 WLR 331 @ 337:

13. Applying this approach to the relevant parts of the order, which are to be found between pp. 3 and 7, we conclude that although some of the documents fall within Lord Fraser's permitted "compendious description", others clearly do not. The suggestion that nevertheless the appellants have agreed to their production is met by reference to the wellknown principle that parties cannot by consent give to a court jurisdiction which it does not otherwise possess. It is not a submission that we hear with any pleasure following a consent given in the circumstances we have already outlined. But being satisfied that this is indeed a question of jurisdiction, and not a question of the discretion of the court below, we must give effect to it. In our judgment, therefore, parts of the order cannot stand.

14. They are most easily demonstrated by adopting a blue pencil approach. We set out now the whole of the relevant passage of the order. Those words or passages that we have underlined are those parts which must be set aside. We find no fault in the remainder.

"(A) The Manager,

(B)      Sok-inn HWANG and Sie-huong TING of Hwang & Co., Solicitors

15. For these reasons the appeal is allowed only to the extent that we have just indicated.

Representation:

G.J.X. McCoy (M/s Hampton, winter & Glynn) for applicants (appellants)

Miss V. Hartstein & Miss R. Gunasekera, Crown Solicitor for respondent