Wong v Grand View Private Trust Company Ltd and Ors

JurisdictionBermuda
Judgment Date10 December 2020
Docket NumberCommercial Jurisdiction 2018 No 44
CourtSupreme Court (Bermuda)

[2020] Bda LR 73

In The Supreme Court of Bermuda

Commercial Jurisdiction 2018 No 44

Between:
Wong, Wen-Young
Plaintiff
and
Grand View Private Trust Company Limited
Transglobe Private Trust Company Limited
Vantura Private Trust Company Limited
Universal Link Private Trust Company Limited
Defendants/Respondents
Estate of Hung Wen-Hsiung, Deceased
Defendant
Ocean View Private Trust Company Limited
Defendant/Respondent
Wang, Ruey Hwa (aka “Susan Wang”)
Wang, Ven-Jiao (aka “Tony Wang”) (as Joint Administrator of the Bermudian Estate of YT Wang)
Wang, Hsueh-Min (aka “Jennifer Wang”) (as Joint Administrator of the Bermudian Estate of YT Wang)
Defendants

Mrs E Talbot Rice QC, Mr D Hagen QC and Mr R Attride-Stirling for the Plaintiff

Mr J Adkin QC, Mr S Pearman and Mr P Smith for the Defendant

The following cases were referred to in the judgment:

Evans v Citibank Ltd [2000] NSWSC 1017

Navigator Equities Ltd v Deripaska [2020] EWHC 1798

Harris v Harris [2001] EWCA Civ 1645

Re Braswell [2001] Bda LR 41

R v Derby Magistrates' Court [1996] AC 487

Fubler v Attorney-General [1994] Bda LR 64

Wentworth v Lloyd (1864) 10 HLC 589

JP Morgan Multi-Strategy Fund LP et al v Macro Fund Ltd [2003] CILR 250

Fortunate Drift Ltd v Canterbury Securities Ltd (Cayman FSD 227/2018 unreported)

Application to purge contempt — Breach of implied undertaking to to use disclosure for collateral purposes — Whether breach intentional or inadvertent — Relevance of remedial steps — Relevance of criminal complaints against potential witnesses abroad — Leave to cross-examine Plaintiff — Further investigation — Governing principles — Costs

JUDGMENT of Kawaley AJ

Introductory

1. In March and July 2020, the Plaintiffs Taiwanese lawyers supplied four documents disclosed by the Defendants in the present proceedings, together with a large number of other documents, to, inter alia, a media outlet and the prosecuting authorities. The publication by the media outlet of one of the documents on July 21, 2020 came to the Defendants' attention. Their Bermudian attorneys Conyers raised the matter with the Plaintiffs Bermudian attorneys, ASW, on July 27, 2020. On August 7, 2020, the Plaintiff filed a Notice of Motion seeking to purge his contempt on the principal ground that the breach of the implied undertaking had been inadvertent. The Plaintiff and one of his Taiwanese attorneys voluntarily revealed that documents covered by the implied undertaking had been disclosed to parties other than the media outlet, a matter of which the Defendants were at that point unaware.

2. The Defendants on November 12, 2020 filed a Summons seeking leave to cross-examine the Plaintiff on his Affidavit filed in support of his Notice of Motion. The Defendants submitted that the Plaintiff should be cross-examined on his Affidavit either before or at trial. The dispute which arose for determination at the hearing of the Notice of Motion was whether the Court should immediately grant the relief the Plaintiff sought, or investigate whether or not the Plaintiff had been guilty of intentional breach of the implied undertaking.

3. On November 18, 2020 I granted the Plaintiffs application and declined to give directions for his cross-examination. Although the Plaintiff had sensibly been willing to pay the costs of his application on the indemnity basis, I ruled that the costs should be taxable and payable forthwith in light of the circumstances in which the breach of the implied undertaking occurred. These are the reasons for that decision.

The Plaintiffs Notice of Motion and the Defendants' Summons

4. The Plaintiffs Notice of Motion sought the following relief based on the following supporting grounds:

“1. A declaration that any contempt which has been or may have been committed by the disclosure of the documents set out at paragraph 6 of the affidavit of Yi-Chun Nien (the “Disclosure”) has been purged;

2. An order that the Applicant be discharged from, and not punished for, any such contempt; and

3. An order that Dr Wong do pay the First to Fourth and Sixth Defendants' costs of and occasioned by the Disclosure and of and incidental to this motion on the indemnity basis.

AND FURTHER TAKE NOTICE THAT the grounds of this application are:

1. Any and all breaches of the implied undertaking by the Disclosure were inadvertent, not intentional.

2. Steps were taken to remedy the situation as soon as breaches or potential breaches were appreciated, by recalling the documents from the 4 recipients of them.

3. The documents have been or are being retrieved from all but one recipient and all but one recipient have agreed not to make use of the documents. A response is awaited from the other recipient.

4. As a result of the foregoing steps the documents and their contents are not now, and will not be, placed in the public domain by virtue of the Disclosure.

5. A full apology has been proffered.”

5. The Defendants' Summons sought an Order that:

“1. Pursuant to Order 38 rule 2(3) of the Rules of the Supreme Court the Plaintiff attend for cross-examination on his First Affirmation dated 7 August 2020.

2. The cross-examination of the Plaintiff on his First Affirmation dated 7 August 2020 take place in the course of his cross-examination during the trial of these proceedings.

3. The Plaintiff's application for relief in his Notice of Motion filed on 7 August 2020 be heard subsequent to the cross-examination of the Plaintiff at trial…”

The factual matrix

6. In the First Affirmation of Yi-Chun Nien (“First Nien Affirmation”), the Taiwanese lawyer deposes that he and a colleague were responsible for what they did not realise at the time was an actual or potential breach of the implied undertaking given by the Plaintiff in respect of documents disclosed by the Defendants in the present proceedings. This occurred when:

  • (a) three documents from the Defendants' disclosure were provided to the Taiwanese prosecuting authorities in March and July 2020;

  • (b) one document from the Defendants' disclosure was provided to the Taiwan Financial Supervisory Commission (“FSC”) and Stock Exchange (“TWSE”) in July 2020;

  • (c) three documents from the Defendants' disclosure were supplied to Yi Media in July 2020.

7. The First Nien Affirmation was not challenged. The deponent explains why he and his colleague did not knowingly breach the implied undertaking by reference to the fact that no similar obligations arise in relation to discovery under Taiwanese law. The documents were supplied (together with other documents) while the lawyers were acting on behalf of the Plaintiff in the course of a retainer through which they from time to time received documents from the Plaintiffs lawyers in Bermuda and England. Mr Nien did not deny ever being told of the implied undertaking. Rather, he states that when supplying the relevant documents to the prosecuting authorities in March 2020, “neither of us had any recollection of the Bermudian undertaking'” and he “did not think to check the position with Dr Wong's English or Bermudian lawyers…as they are not involved in any way with our dealings with the Taiwanese prosecutor…” (paragraph 13). The word “recollection'” was perhaps very appropriately used, because Mr Nien admitted (at paragraph 8) that he did “recall being made aware of the confidentiality obligations in the related Beddoe proceedings”.

8. Nor did the Taiwanese lawyers appreciate the Bermuda law position when the other documents were disclosed in Taiwan in July 2020, including to Yi Media, who published one document in its entirety omitting confidentiality markings alongside a video of the Plaintiff responding to media reports about the prosecuting authorities' initial decision not to pursue the criminal complaints. The First Nien Affirmation does not reveal against whom the criminal complaints were directed. However, it was accepted in the course of argument that the subjects of the criminal complaint (first made on August 20, 2018 before discovery had occurred) included individuals who had at the time of the present disclosures given evidence for the First to Fourth Defendants in the Beddoe proceedings and who now are witnesses slated to give evidence for the Defendants at trial.

9. The First Nien Affirmation also significantly explains the steps which were taken (with some alacrity) to retrieve the impugned documents from their recipients with a view to ensuring (as regards Yi Media in particular) no risk of further publication. Finally, the affiant concluded his Affirmation as follows:

“25 … We apologize wholeheartedly and unreservedly for having disclosed these documents and we will ensure that we do not make use of documents disclosed by others in these proceedings without taking advice from Dr Wong's Bermudian or English lawyers, and we will abide by that advice.”

10. These averments were significant not simply as an apology. It also represented an implicit admission that the impugned disclosure could have been avoided if...

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