Wong Kwong Lung v. Wong Ming Yau

HCA 1111/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1111 OF 2011

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HCMP 1810/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1810 OF 2011

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(Heard Together)

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D E C I S I O N

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1.This is an application for exclusion of without prejudice materials from the evidence proposed to be adduced at the trial by the siblings of Mr Wong Ming‑yau.  The subject matter of the application is the transcript of an audio visual recording of a family meeting held on 12 March 2011.

2.The law on without prejudice privilege can be found at Phipson on Evidence, 18th Edition, paragraph 24-09 and Cross and Tapper on Evidence, 12th Edition, pages 470 to 474.

3.There is no dispute that if the purpose of the meeting was to negotiate for a settlement of a dispute then the matters said by the parties therein cannot be used as evidence at the trial.  This is so regardless of whether the meeting had been conducted expressly on a without prejudice basis.  Both sides asked me to look at the transcript to decide the application and neither side has called any other evidence.

4.Having considered various parts of the transcript, I am of the view that the parties, at the time of the family meeting, did have a dispute.  The subject matter of the dispute is the interest in a shop held by the deceased mother and the eldest son of the family, Wong Ming‑yau.  Wong Ming‑yau thought that he could have a claim for the whole interest of the shop (see page 114, entry 375, to page 117, entry 401).  The other siblings did not agree.  There were arguments on how did Wong Ming‑yau become a joint tenant of the shop and where did he find the money to pay the mortgage instalments. 

5.Different proposals on dividing the interest of the shop were raised.  These proposals, if considered in isolation, could be regarded as proposals to divide the family property to everybody’s satisfaction rather than for settling a dispute.  But the transcript clearly shows that there was a dispute; hence, these were proposals for settling the dispute.

6.In the premises, I hold that the meeting was a without prejudice meeting and the matters discussed therein are subject to protection by the without prejudice privilege and cannot be disclosed at the trial without the agreement of both sides.

7.Ms Yue, for the other siblings, further argued that Wong Ming‑yau had waived the privilege.  She relied on the delay of the application when the original homemade transcript had been disclosed in the lists of documents in 2012.  She also relied on the joint efforts of both sides to procure a professionally prepared transcript of the meeting.  However, the transcript, either in the original form or in the professionally prepared form, has not been deployed in court by Wong Ming‑yau.  He therefore has not waived the privilege (see paragraph 26-09 of Phipson on Evidence).

8.In the premises, I allow Wong Ming‑yau’s application and exclude the transcript as well as the various paragraphs of the witness statements of the siblings, the father and the uncle which refer to the transcript and the meeting.

(Submissions on costs and privilege)

9.Naturally, Wong Ming‑yau should have the costs with certificate for counsel.  However, because of his delay in taking this matter up, it has produced at least inconvenience and it has also restricted the scope of the consideration.  I would therefore make some allowance for these matters.

10.I would order that Wong Ming‑yau be given 70% of the costs with certificate for counsel also at 70%.  These costs are to be similarly assessed by me.  Wong Ming‑yau’s solicitors should file and serve a bill of costs for summary taxation within the next 14 days.  The other siblings should file their list of objections, if any, within the next 14 days and then I will proceed to assess the costs on paper.

Ms Percy Yue, instructed by Leung, Tam & Wong, for the plaintiff (in HCA 1111/2011) and the 1st defendant (in HCMP 1810/2011)

Mr Simon Wong, instructed by Tang, Lee & Co, for the defendant (in HCA 1111/2011) and the plaintiff (in HCMP 1810/2011)