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Chinachem Charitable Foundation Ltd V.chan Chun Chuen And Another

Judgment Cited authorities 9 Cited in Precedent Map Related
Vincent
Judgment Date28 October 2011
Subject MatterMiscellaneous Proceedings (Civil)
Judgement NumberFAMV20/2011
CourtCourt of Final Appeal (Hong Kong)
FAMV20/2011 CHINACHEM CHARITABLE FOUNDATION LTD v.CHAN CHUN CHUEN AND ANOTHER

FAMV No. 20 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 20 OF 2011 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 62 OF 2010)

_______________________

Between

CHINACHEM CHARITABLE FOUNDATION LIMITED
(華懋慈善基金有限公司)		 Plaintiff
(1st Respondent)
and
CHAN CHUN CHUEN (陳振聰) 1st Defendant (Applicant)
THE SECRETARY FOR JUSTICE 2nd Defendant
(2nd Respondent)

_______________________

Appeal Committee: Mr Justice Chan Acting CJ, Mr Justice Bokhary PJ, and Mr Justice Ribeiro PJ

Hearing and Decision: 24 October 2011

Handing Down of Reasons: 28 October 2011

_________________________

DETERMINATION

_________________________

Mr Justice Ribeiro PJ :

1. At the hearing, we dismissed this application for leave to appeal with reasons to be delivered later. These are our reasons.

A. The proceedings below

2. After the death of Mrs Nina Wang in 2007, probate proceedings were commenced by the first respondent (“the Foundation”) seeking the court’s pronouncement in solemn form for the force and validity of her will dated 28 July 2002 (“the 2002 will”) which names the Foundation as beneficiary. The Foundation also sought the court’s pronouncement against the validity of an alleged will dated 16 October 2006 (“the 2006 Will”) propounded by the Applicant which, he claimed, entitled him to Nina Wang’s entire estate as sole beneficiary and legatee. The Applicant counterclaimed for an order declaring the validity of the 2006 Will. The authenticity of the 2002 Will was not in dispute and the controversy centred on the authenticity of the 2006 Will.

3. After a 40 day trial, Lam J held in favour of the Foundation, finding that the 2006 Will was a forgery.[1] The Applicant’s appeal to the Court of Appeal was dismissed,[2] as was his application to the Court of Appeal for leave to appeal to this Court.[3]

B. The present application

4. The Applicant now seeks leave to appeal under section 22(1) of the Court’s statute[4] which relevantly provides as follows:

(1) An appeal shall lie to the Court in any civil cause or matter

(a) as of right, from any final judgment of the Court of Appeal, where the matter in dispute on the appeal amounts to or is of the value of $1,000,000 or more, or where the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1,000,000 or more; and

(b) at the discretion of the Court of Appeal or the Court, from any other judgment of the Court of Appeal, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court for decision.

5. The Applicant claims to be entitled to leave as of right under both limbs of section 22(1)(a). Reliance on the first limb is surprising, to say the least. On well-known and firmly established authority, it applies only to claims for liquidated monetary sums. The probate claims in this case are self-evidently not within that category and we will spend no further time on such an unarguable proposition.

6. The Applicant relies also on the second limb of section 22(1)(a), applying for leave to appeal on the basis that “the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1,000,000 or more” (“the as of right ground”).

7. Alternatively, the Applicant seeks discretionary leave under section 22(1)(b) contending that the proposed appeal involves a question “which, by reason of its great general or public importance ... ought to be submitted to the Court for decision” (“the important question ground”).

8. In the further alternative, the Applicant seeks leave on the basis that the question which arises in the case “otherwise ought to be submitted to the Court for decision” under section 22(1)(b) (“the or otherwise ground”).

C. The as of right ground

9. Much of the debate on the as of right ground has focussed on the two leading decisions regarding the ambit of the second limb of section 22(1)(a), namely China Field Ltd v Appeal Tribunal (Buildings) (No 1)[5] and WLK v TMC (No 1).[6] However, before turning to them, two preliminary arguments advanced by the Applicant should be addressed.

C.1 Probate cases

10. The first is that the approach adopted in those decisionsshould not be applied in the present instance because of the unique character of probate cases. The special position of probate actions is said to be illustrated by the rule that a witness to the execution of a will is regarded as the court’s witness on that issue, entitling the court in its inquisitorial capacity to require production by that witness of documents which are legally privileged.[7]

11. That principle is of course applicable in Hong Kong, being a rule assisting the Court in the exercise of its inquisitorial jurisdiction in probate actions. It is relevant to the fact-finding stage of the process. As Scarman J stated: “... the court in its inquisitorial capacity is seeking the truth as to execution”.[8] The rule was invoked by Lam J who ordered discovery of draft witness statements by the attesting witnesses, particularly Mr Winfield Wong (discussed below), pursuant to his ruling of 15 December 2008.

12. However, we can see no reason for thinking that the principle has any bearing on whether leave to appeal to the Final Court should be granted, far less for thinking that the rule helps in some way to qualify a probate case as one entitled to leave as of right.

C.2 Commonwealth authorities

13. The Applicant’s second preliminary argument is that the Court should adopt the construction of similar words[9] in the 1951 New Zealand Court of Appeal decision in Re White (No 2).[10] That was a case involving a challenge to the deceased’s testamentary capacity where the appeal was held to be within the equivalent of the second limb of section 22(1)(a).

14. The Court is also invited to adopt certain approaches to leave to appeal as of right to be found in Australian cases like Beard v Perpetual Trustee Co,[11] and Ballas v Theophilos (No 1),[12] cases decided in 1918 and 1957 respectively.

15. We do not accept these suggestions. As we noted in China Field,[13] reliance on such Commonwealth decisions is problematical because the numerous reported cases concerning leave to appeal to the Privy Council do not speak with one voice, so that it is often possible to find decisions going in opposing directions, as the authorities there cited demonstrate. We concluded that:

“The rules regarding such appeals as of right must be construed in the social and historical context of the Court itself in the light of its intended role, its resources and the interests of litigants and of the administration of justice.”[14]

16. It is no coincidence that the cases relied on by the Applicant in this context are of a considerable vintage. As we noted in Chao Keh Lung v Don Xia,[15]it is quite exceptional for courts of final appeal to entertain appeals as of right. The major Commonwealth jurisdictions have all moved on and abandoned appeals as of right to their final appellate courts. This is true of appeals to the Australian High Court,[16] to the Supreme Court to New Zealand[17] and to the Canadian Supreme Court.[18] It is also true of appeals from England and Wales and from Northern Ireland to the United Kingdom Supreme Court.[19]

17. An exception in the United Kingdom relates to certain Scottish judgments by virtue of section 40(1)(a) of the Court of Session Act 1988. Subject to certain filtering safeguards developed by the courts, as discussed in Wilson v Jaymarke Estates Ltd,[20] such judgments can be appealed without seeking the Supreme Court’s permission. Concern was expressed in the House of Lords as to the survival of this right of appeal. Lord Hope (with whom other members of the panel agreed) stated:

“The public interest is served, in the case of appeals from the Court of Appeal in England and Wales and Northern Ireland, by the rule that leave to appeal is granted only where the case raises an arguable point of law of general public importance which ought to be considered by the House at the time when the appeal is brought: House of Lords Practice Directions (2007), para 4.7. This rule ensures that the time which is available for the consideration of appeals in this House is devoted to appeals which require consideration at this level. It is contrary to the public interest that the time of the House should be taken up with appeals which do not raise an arguable question of general public importance, as this is liable to cause delay in the disposal of appeals which merit its attention.”[21]

18. His Lordship noted that despite suggestions to the contrary, the legislation transferring jurisdiction to the United Kingdom Supreme Court would allow that practice to continue. His Lordship cautioned:

“... the debate on this issue must not be regarded as closed. If it is at risk of being abused, the public interest may require that the privilege be looked at again.”[22]

19. We see little attraction in the suggestion that we should align our jurisprudence to Commonwealth case-law which has been overtaken and very largely jettisoned in the relevant jurisdictions.

C.3 The proper approach to section 22(1)(a)

20. The proper approach to an application for leave to appeal based on...

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