Wang v Wong and Grand View Private Trust Company Ltd and Ors
| Jurisdiction | Bermuda |
| Judge | Clarke P,Kay JA,Subair Williams JA |
| Judgment Date | 11 June 2021 |
| Year | 2022 |
| Court | Court of Appeal (Bermuda) |
| Docket Number | Civil Appeal 2021 No 4 |
[2022] Bda LR 115
Clarke P; Kay JA; Subair Williams JA
Civil Appeal 2021 No 4
In The Court of Appeal for Bermuda
Application for leave to appeal — Hearsay evidence alleging professional misconduct in taking witness proof — Whether iniquity is an exception to legal professional privilege — Legal principles on witness preparation — Witness training vs witness coaching — Rule on interrogatories
The following cases were referred to in the judgment:
Ultraframe (UK) Ltd v Fielding [2005] EWHC 1638
Companie de Navegacion Palomar SA v Ernest Ferdinand de la Sal [2017] SGHC 14
R v Momodou (Practice Note) [2005] 1 WLR 3442
Day v Perisher Blue [2005] NSWCA 110
Z v Z [2017] 4 WLR 84
Buttes Gas and Oil Co v Hammer (No 3) [1981] QB 223
Bank of Credit & Commerce International SA v Ali, Husain and Zafar [2001] EWCA Civ 636
Mr D Dowley QC and Mrs F Rana-Fahy for the Appellant
Mr S Midwinter QC for the Respondent
JUDGMENT of Subair Williams JA
1. This is an application for leave to appeal which arises out of a mid-trial interlocutory application from the main action. By a summons dated 29 January 2021, the Applicant (“Tony”) applied to Kawaley AJ for permission to rely on hearsay evidence of his wife's report of her conversation with a witness for the PTC Respondents regarding the pressure he felt during the taking of his witness proof. Under that same summons an application was also made for interrogatories seeking information about the presence of any other persons during the taking of the witness proofs for the other Respondent witnesses.
2. Having found that the application engaged issues of legal professional privilege and that the evidence had not established a prima facie case of iniquitous conduct as an exception to the privilege rule, the learned trial judge refused the whole of the summons application. Dissatisfied with paragraphs 24 to 48 of Kawaley AJ's 22 March Ruling, on 23 March 2021 Tony applied for leave to appeal by way of an ex parte Notice of Motion pursuant to Order II of the Rules of the Court of Appeal. The application was promptly refused on the papers for the reasons outlined in Kawaley AJ's 29 March 2021 Ruling.
3. This brings us to the present application for leave to appeal by Notice of Motion under Order II, Rule 3. Having considered the written and oral arguments eloquently made by Counsel for both the Applicant and the Respondents, I now give my reasons for finding that this application for leave to appeal should be refused.
4. Without having made any factual findings on the plethora of disputed issues, this Court broadly narrated the background to these proceedings in Grand View Private Trust Company Ltd v Wong; Wang intervening[2020] Bda LR 29.
5. The statements made by Tony's wife, Mrs Lin Chien Hui (“Alice”) in her 28 January 2021 witness statement are the fuel for this round of litigation. Tony wishes to rely on Alice's evidence of statements made to her by Dr Chun Chieh Wang (“Dr Wang”) during the course of her telephone conversation with him on 21 January 2021. Dr Wang's evidence is of some relevance to the disputed mental state of Wang, Yung Tsai (“Mr YT Wang”) on 31 October 2012 when, on the Respondents' case, he signed a Power of Attorney empowering his eldest son William W.Y. Wong (“William”) to handle all of his personal financial affairs. That being said, the Respondents do not propose to rely on Dr Wang's evidence as part of their expert evidence of Mr YT Wang's mental capacity on 31 October 2012.
6. Ms Chang Li-Yu (“Attorney Chang”) states in her witness statement of 15 September 2020 [9–11] that she attended Mr YT Wang's hospital room at Chang Gung Memorial Hospital (“CGMH”) on 31 October 2012 when she formally witnessed him affix his signature to the impugned instrument. In addition, she contends that Dr Wang was also present with other nurses in the hospital room on that fateful day when he confirmed his opinion that Mr YT Wang was ‘compos mentis and in a good mental state’.
7. Corroborating parts of Attorney Chang's summary of what occurred in Mr YT Wang's hospital room on 31 October 2012, Dr Wang provided a witness statement dated 31 December 2020 wherein he said, inter alia, that Mr YT Wang “was in good condition on that day”:
“B. EVENTS ON 31 OCTOBER 2012
As I stated above, I have reviewed the witness statements of Attorney Yeh and Attorney Chang. That review has helped me to recall the date on which the events described below took place. I recall that on 31 October 2012, as a matter of routine practice, I arrived at YT Wang's hospital room at 7-ish a.m… Apart from having meetings with the medical team, I also checked the physical condition of YT Wang. I remember that Ms Li-Chu Yang (then Vice President of the Nursing Department of Linkou Chang Gung Memorial Hospital, hereinafter referred to as [(]“Ms Yang”) informed me that later on she would bring Mr Roger Hsiu-Hsiung Yang (“Mr Yang”) and two attorneys to visit YT Wang. I therefore checked and confirmed YT Wang's condition and make sure that it was appropriate for him to meet the visitors.
YT Wang's hospital room was very spacious. On the other side of the hospital room was a sofa area for receiving family members and visitors. The adjacent room was a doctor's working room, which also served as a preparation room for the medical team.
31 October 2012 was a Wednesday. I had at the time fixed cardiology out-patient clinic sections on Wednesday mornings, so I did not stay for very long in YT Wang's hospital room.
However, I recall that sometime after 8-ish a.m. on 31 October 2012, Ms Yang brought Mr Yang and two attorneys to visit YT Wang. One of the lawyers, Attorney Yeh, happened to be my cardiology patient. As I did not know in advance about any relationship between Attorney Yeh and YT Wang (including the Formosa Plastics Group and the Wang Family), when I met Attorney Yeh at the hospital room, both of us were very surprised. Therefore, I am certain that I met Attorney Yeh in YT Wang's hospital room on that day and exchanged greetings with him briefly.
I recall that the two attorneys asked me about YT Wang's condition and I told them that YT Wang was in good condition on that day.
I then went to the adjacent doctor's preparation room. I left shortly after because of my outpatient clinic section in that morning. Therefore, I knew nothing about what they discussed in the hospital room afterwards.”
8. Alice, however, described her more recent contact with Dr Wang in her witness statement as follows:
“… I graduated from the school of dentistry at the Kaohsiung Medical University in 1993. I got to know Dr Chun-Chieh Wang (“Dr Wang”) years before he was appointed as my father-in-law's co-leading physician. Dr Wang was (and still is) the doctor of various members of my family.
Before I spoke to him on 21 January 2021 (and as a result of discussions with Tony) I was aware that Dr Wang had given a witness statement on behalf of the main defendants in this case, and I had read a copy of that witness statement in Chinese.
On 21 January 2021 at 6:04pm, I received a text message on my mobile phone from Dr Wang asking whether I was available for a call. In response to that message. I called Dr Wang at 6:42pm. Dr Wang told me that he had concerns about my brother's health conditions.
After we had discussed concerns about my brother, I raised with Dr Wang my disappointment about his witness statement in support of the main defendants who are against my husband in the claim. Dr Wang then explained to me how his statement was prepared and his recollection of certain matters covered by his witness statement.
He told me that Yang, Hsiu-Hsiung (“Roger Yang”) and Lin Yao (“Angela Lin”) were both present at the meeting at which his witness statement was prepared. At that meeting Roger Yang told Dr Wang that him providing a witness statement “[Chinese writing]”. (I believe that this translates into English as “was the Chairman's intention”). I understood the reference to the “Chairman” to be to William Wong. Dr Wang said to me the following phrase in Chinese “[Chinese writing]”. I believe that the English translation is “I know that the Chairman must have instructed. So I cannot refuse”.
Dr Wang said that they both kept on telling him to include things in his witness statement that he did not wish to include because they did not correspond with his recollection. He told me in Chinese that “[Chinese writing]” (which I believe translates into English as “they [Roger Yang and Angela Lin] kept talking, and honestly, I felt that my memory seemed to be guided [by what they were telling him]”. In addition, he said that he felt that he was being “directed” (in English) to include in his statement certain matters which he did not specifically recall and that he felt “[Chinese writing]” (which I believe translates into English as “brainwashed”) by what was being repeatedly suggested to him by Roger Yang and Angela Lin. I clearly recall the English word “directed” being used in our conversation. I should note that it is common for Taiwanese people to use English words occasionally in conversations spoken in Chinese.
Dr Wang told me that he did not specifically recall a female lawyer being present on 31 October2012. However, he said that it was repeatedly suggested to him by Roger Yang and Angela Lin that a female lawyer, Attorney Chang, was present. Dr...
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