Kung Wong Sau Hin v. Kung Kwok Sun and Another

CACV000128A/1983

Natural justice - communication between judge and counsel out of court - "brief and jocular conversation" on a matter connected with a pending case but which could not by an unbiased person be thought to have affected the judge's decision - full extent of conversation known - out of court communication undesirable, but all the circumstances (including time, place and relationship between the persons concerned) had to be considered and there was here no breach of rules of natural justice.

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A.

Date of Hearing: 20 - 21 December 1983 & 28 February 1984

Date of Judgment: 30 April 1985

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. The suit tried before Jones J. was for probate of a will dated 29th October 1970. The Defendants set up a later will, dated 20th August 1980, and (in the alternative) the 1st Defendant propounded a codicil to the first will. The judge held in favour of the earlier will and rejected the codicil.

2. We heard an appeal against Jones J.'s decision on 20th and 21st December 1983, and we reserved our decision. On 10th January 1984 our judgment was ready and we gave directions for a date to be fixed for its delivery. Also on 10th January 1984 an application was filed by the 2nd Defendant for a further hearing of the appeal on the ground that new evidence was available relating to the later will We thought that the further evidence ought to be heard and directed a further trial. At the same time we thought it undesirable that the further proceedings in the High Count should be prejudiced by anything we said in relation to the evidence at the first trial. We, therefore, said that we would deliver our judgment on the appeal only if the later will were not admitted to probate. The later will having now been rejected we are called upon to give the judgment we had prepared in   relation to the appeal of the Defendants in relation to the will of 29th October 1970 and to the codicil dated 23rd July 1981. The judgment is as follows:

3. The respondent Defendants appeal against a decree granting probate of a Will dated 29th October 1970. It has never been seriously contested that that Will was duly executed, but the Defendants contend that it was not the last Will of the Testator and they propound a Chinese Will dated 20th August 1980. In the alternative, the 1st Defendant propound a Chinese codicil dated 23rd July 1981.

4. On behalf of the Defendants it is alleged that the judge erred in his approach to, and assessment of, the evidence. He came to the conclusion that there was no evidence that a Chinese Will was engrossed or executed, although he accepted that five drafts had been prepared and that the Deceased intended to make a will in the terms of the final draft. No one appears to have seen a will in those terms and the whole case for the Defendants rests upon an inference that one was in fact executed. The judge not only declined to draw such an inference, but, on the contrary, inferred that the Deceased did not execute a new will. It was, of course, not necessary for him to go so far.

5. The five draft wills were prepared by Mr. Fong Ming, a friend of the Deceased. He said that the first three drafts were destroyed by the Deceased and he produced copies of the last two drafts. The original of the final draft was not forthcoming. That is of no consequence, because Mr. Fong's evidence was that the Deceased told him he would make a formal will when he had a satisfactory draft. The fifth draft was not itself intended to be a testamentary document.

6. The main ground upon which it is argued that the execution of anew will should be inferred is that the Chinese codicil purported to make a gift to the 2nd Defendant "apart from what he is entitled to from my estate". Since the 2nd Defendant was not entitled to anything under the will dated 29th October 1970, it is argued that there must have been a later will under which he was entitled to something, and it was further suggested that on a balance of probabilities that later will was one in the terms of the fifth draft, which terms were in keeping with the known character of the Deceased.

7. I turn, therefore, straight to the evidence ralting to the Chinese codicil. The only material evidence was that of Mr. Kung Pui-ying, an accountant in the firm of which the Deceased was "Managing Director" and in a company of which the Deceased was apparently a substantial shareholder.  Mr. Kung testified that he prepared the Chinese codicil on the Deceased's instructions and that the Deceased signed it in his presence. That evidence was rejected by the judge, but the Defendants submit that it was wrongly rejected. Not only do I find it impossible to upset the conclusion of the judge on this matter, but I would have been surprised had he come to any other conclusion, even though I did not have the advantage of seeing and hearing the witness give his evidence. The judge found him to be "shifty, devious and at times verbose" and decided that he was neither convincing nor reliable. Verbosity is a failing found even in honest witnesses but is by itself unlikely to be indicative of unreliability. Shiftiness and deviousness are in a different category and it is impossible for us to say that the judge's view was unjustified even on a reading of the transcript there are indications that the criticism was fair.

8. Complaint is made that in the same paragraph in which the judge assessed the witness he says "The reasons set out in the codicil for making the gift are not convincing, and in my opinion do not reflect the character of the Deceased". That statement, it is said, was unjustified and invalidates the assessment of the witness. In my view the assessment of the witnesses is not invalidated even if the statement was wholly without foundation. What makes it quite impossible for us to interfere with the judge's assessment of Mr. Kung Pui-ying's evidence is that the witness admitted that, being under the mistaken impression that a codicil would be invalid unless witnessed by two persons, he induced, a Mr. Kung Chuan-wah to add his signature as a witness four days after the death of the Deceased. A man who deliberately sets out to mislead the court in that way should not be surprised if a judge views the rest of his evidence in an unfavourable light. It would, of course, still have been open to the judge to accept his evidence of the execution of the Chinese codicil, but he did not do so and he was the judge of fact. The fact that Mr. Kung Pui-ying had custody of the receipt for the fixed deposit which was the subject matter of the codicil was entirely equivocal as to the fact of execution of the codicil.

9. It was urged that the rejection of Mr. Kung Pui-ying's evidence as to the execution of the codicil was tantamount to a finding that he  had forged the codicil, and counsel argued that such a finding was not open on the pleadings. With respect I think that is a wholly fallacious argument. There is no doubt that if the Plaintiff had sought to establish that Mr. Kung Pui-ying had forged the codicil, or even that he had uttered the codicil knowing it to have been forged, that would have required an express allegation and strong evidence to support it. That was not the Plaintiff's case and it was unnecessary for the judge to make any such finding. The Defendants relied upon the codicil and it was for them to prove due execution. All that the judge said was that he was not satisfied with the evidence of execution. That is not a finding that the Deceased did not execute the codicil, let alone a finding that Mr. Kung Pui-ying or anyone else forged the Deceased's signature.

10. The rejection of the codicil undermines this part of the appeal against the rejection of the Chinese Will and I need say no more about it.

11. That leaves the application for a new trial on the ground that there has been a breach of the rules of natural justice. After the judge had reserved judgment and before he delivered his judgment he met junior counsel for the Plaintiff in the street. We are  told that there then ensued a conversation which related to the present case. I emphasise that, although the parties are agreed as to what was said, the judge has not been approached for his comments thereon and nothing which I say should be regarded as any criticism of the judge.

12. What we are told is that the judge inquired how much the estate was worth.  Counsel replied that he did not know but that his solicitors had been reluctant to put a figure on it, and he said no more than that it was worth more than $5,000,000.00. The judge then said something further which counsel took to be asking whether the solicitors' figure was in addition to the amount of the codicil. Counsel replied that he could not say what the estate was worth. Counsel has stated that "the conversation was a brief and jocular one, though admittedly embarrassing". It is agreed that nothing further was said about the case. Counsel was sufficiently embarrassecd by the conversation to mention it to his opponent, although the full terms of the conversation were not reported until after judgment had been give.

13. It is obvious that the value of the estate was entirely irrelevant to the issues before the judge and any such conversation as is alleged could properly have no effect whatever upon the judge's decision.  It is, however, suggested d that the judge might have been wrongly influenced by what he was told and that, in any event, the mere fact that a conversation concerning the case took place was enough to require this court to set aside the judgment.  

14. The basic principles are not, I think, in dispute.  Justice must not only be done but manifestly be seen to be done and a judge should not receive representations material to any matter in issue from one party in the absence of another. Even an appearance of a breach of this second principle is sufficient to invalidate a decision. The difficulty in any particular case may be to decide whether it might appear to a fair-minded person that something improper had taken place. All the circumstances must be taken into account and, if there remains a possibility of injustice, the appellate court will interfere even though it may be firmly of opinion that the ultimate decision of the trial court was right.

15. The mere fact that a party or his professional representative is seen talking to the judge before judgment is given is not of itself enough to suggest impropriety. The time, the place and any relationship between the persons concerned are relevant. It is because complete isolation of a judge would ensure that no possible ground of complaint could arise that judge's do tend to restrict their associations and thereby incur the (often unjust) criticism of being out of touch with the realities of life. However, complete isolation is impossible and is not reasonably to be expected. Common-sense will usually dictate that some situations are to be avoided.  It is asking for trouble if a police prosecutor or a witness enters the justices' room when the justices have retired to consider their verdict (Reg. v Stratford on Avon Justices ex parte Edmonds (1973) R.T.R.356: R. v Justices of Bodmin ex party McEwen 1947 1 K.B.321), although if such entry were in response to a call for help to deal with an outbreak of fire it might be that the case would take on a very different complexion. On the other hand the fact that a lay justice finds himself sitting next to a witness, or a judge is seen sitting next to a juror, in a train would not be good ground for pulling the emergency cord.

16. Whilst the same principles apply whether a trial is proceeding before lay magistrates or a judge of the High Court, the relationship between judges and practising members of the Bar is a factor which,depending upon the other circumstances, may be important. That is not to say that it is to be assumed that they would never do anything which was unfair: the relationship merely increases the opportunities for innocent association.

17. Where an association is shown to have taken place in circumstances which raise reasonable suspicion of impropriety, one still has to inquire whether the possibility of impropriety can be negatived. Obviously it is wise that a judge should not discuss a case in any way with counsel for one of the parties. If the two of them, upon a casual encounter, do no more than express the mutual hope that a case in which they are involved will finish before the start of the Christmas vacation, no reasonable person would suspect impropriety. However, if (as here) they are known to have referred specifically to the substance of the case, the question arises whether the appellate court can be sure that nothing passed which could conceivably have affected the decision of the trial court. Often a doubt may remain, and ex debitor justitiae a new trial will be ordered. Here it has been agreed that we know the full extent of the conversation which took place. Nothing was said which had any relevance at all to the issues before the court: a grant of probate is in no way affected by the value of the estate, nor could the judge have thought that it was. Mr. Beloff submits that the matter goes further than this and that the value of the estate might have thrown light on matters which were in fact in issue. For example, if the value of the estate was small, it might be very unlikely that the gift in the codicil would be made: the judge having found the reasons for making the gift "not convincing", he might have been influenced by his finding as to the size of the estate. I have already said that the rejection of Mr. Kung Pui-ying's evidence was based upon the judge's assessment of the witness's demeanour and it was upon that evidence that the case principally turned. Nevertheless, the question is whether, if the judge had thought the reasons for making the gift in the codicil to be convincing, he might possibly have been prepared to believe Mr. Kung. The Appellant may believe that he might, but I am satisfied that no unbiased person could believe that the judge might have come to a different conclusion. It would certainly have been much better had the judge restrained his curiosity, but in all the circumstances, I think it would be wrong to put the parties to the expense of a new trial.

18. I would dismiss the appeal.

Yang, J.A.:

19. I too would dismiss the appeal for the reasons given by My Lord.

Barker, J.A.:

20. I agree

30th April 1985

Representation:

M. Beloff Q.C. & W. Chan for 1st Appellant/1st Defendant.

R. Tong for 2nd Appellant/2nd Defendant.

C. Ching Q.C. & R. Ribeiro for Respondent/Plaintiff.

(at the hearing on 20th and 21st December, 1983.)

D. Chang Q.C. & D. Fung for 1st Appellant/1st Defendant.

R. Wei Q.C. & K. John Cheng for 2nd Appellant/2nd Defendant.

C. Ching Q.C. & M. Blunting for Respondent/Plaintiff.

(at the hearing on 28th February, 1984)