Wong, Wen-Young (Winston Wong) v Grand View Private Trust Company Ltd

• Jurisdiction: Bermuda
• Judge: Clarke, P,Subair Williams, JA
• Judgment Date: 12 April 2021
• Neutral Citation: BM 2021 CA 4
• Docket Number: CIVIL APPEAL No. 1 of 2021
• Court: Court of Appeal (Bermuda)

The Court of Appeal for Bermuda

Before:

Clarke, President

Smellie, JA

Subair Williams, JA

CIVIL APPEAL No. 1 of 2021

Between:

Wang, Ven-Jiao (Tony Wang) (as joint administrator of the Bermudian estate of YT Wang)

Appellant / 8th Defendant

and

Wong, Wen-Young (Winston Wong)

Plaintiff

Grand View Private Trust Company Limited

1st Respondent / 1st Defendant

Transglobe Private Trust Company Limited

2nd Respondent / 2nd Defendant

Vantura Private Trust Company Limited

3rd Respondent / 3rd Defendant

Universal Link Private Trust Company Limited

4th Respondent / 4th Defendant

The Estate of Hung Wen-Hsiung, Deceased

5th Defendant

Ocean View Private Trust Company Limited

5th Respondent / 6th Defendant

Wang, Ruey-Hwa (Susan Wang)

7th Defendant

Wang, Hsueh-Min (Jennifer Wang) (as joint administrator of the Bermudian estate of YT Wang)

9th Defendant

Appearances:

Mr. Richard Wilson QC of Counsel and Mrs. Fozeia Rana-Fahy, MJM Limited for the Appellant

Mr. Jonathan Adkin QC of Counsel and Mr. Scott Pearman, Conyers Dill & Pearman Limited for the Respondents

Shared Interest Privilege — Joint Interest Privilege — Whether the Donor of a Power of Attorney had Joint Interest Privilege with Private Trust Companies who retained a law firm to prepare the Power of Attorney — Whether there was a joint interest in the subject matter of the privileged materials and communications — Relevant Legal Principles

INDEX
TOPIC	Page No.
SUBAIR WILLIAMS, JA
INTRODUCTION	4
THE BACKGROUND	7
FPG Shares held in Holding Companies	8
FPG Shares in the Holding Companies placed into the First Four Trusts	8
The Senior Employees of the FPG Finance Department	8
Retirement of the Founders and Succession at FPG	9
The Founders' Children Informed about the First Four Bermuda Purpose Trusts and Winston Commences Litigation Proceedings in the USA	9
Tony's Evidence of Mr. YT Wang's Testamentary Intentions and Declarations	12
William's Evidence of Mr. YT Wang's Intentions and Oral Mandate	15
Mr. YT Wang's Deteriorating Health	18
Mr. Hung's Proclamation to Transfer the FPG Shares in Chindwell BVI and Vanson BVI into a Bermuda Purpose Trust	19
Decision and Purpose for obtaining a Power of Attorney and Instructions to Angela Lin of Lee and Li for an Instrument of Power of Attorney to be drafted	22
Execution of the Instrument of Power of Attorney	25
Formation of Ocean View Trust and Transfer of the FPG Shares in Chindwell BVI and Vanson BVI into Ocean View Trust	31
ANALYSIS AND FINDINGS	33
Tony's Grounds of Appeal	34
The Evidence filed in the Discovery Application	36
The Relevant Legal Principles	42
Analysis and Findings on Tony's Appeal	62
Analysis and Findings on the Respondents' Notice	66
CONCLUSION	75
CLARKE, P	76

Subair Williams, JA

INTRODUCTION

1 These judgments are the product of the collaborative work of three.

2 The coil of ongoing litigation in these proceedings ensues from a dynastic conflict over several billions of dollars' worth of assets held in five Bermuda purpose trusts which were funded from the wealth accumulated by Wang, Yun Ching (“Mr. YC Wang”) who died on 15 October 2008 and his brother Wang, Yung Tsai (“Mr. YT Wang”) who died on 27 November 2014. These are the two Taiwanese-born brothers (“the Founders”) who founded Formosa Plastics Group (“FPG”) which is eminently classified as one of the largest and most prosperous business establishments in Taiwan.

3 Mr. YC Wang had three wives 1. His first wife was Wang, Yueh Lan who died on 1 July 2012 without having had any children. Mr. YC Wang's second wife, Yang Chiao Wang is the mother of Wong, Wen-Young (also known as Winston Wong) (“Winston”), the eldest son of Mr. YC Wang. The other siblings of this marriage are Wang, Kuei Yung (“Margaret”); Wong, Xue Ling (“Charlene”); Wang, Xue Hong (“Cher”) and Wong, Wen-Hsiang (“Walter”). Wang, Ruey-Hwa (“Susan”) is the eldest daughter of Mr. YC Wang and his third wife, Pao-Chu Lee. The second eldest daughter of this marriage is Wang, Ruey-Yu (“Sandy”), followed by Wang, Ruey Huei (“Diana”) and Wang, Ruey-Jorn (“Lora”).

4 Mr.YT Wang had two wives 2. Mr.YT Wang's first wife, who died on 5 May 2019, was Pi-Ruang Wang. The children of this marriage are William W.Y. Wong (“William”); Wilfred W.T. Wang (“Wilfred”); Sara H.C. Wang (“Sara”); Wang, Hsueh-Min (“Jennifer”) and Hsiueh-Kuang Wang (“Hsiueh-Kuang”). Mr.YT Wang's

second wife is Yu-Mei Chou (“Madam Chou”). Their children are Ven-Jiao, Wang (“Tony”); Tammy W.Y. Wang and Janis H.J. Wang

5 In this appeal the Court is ultimately concerned with whether a donor of a power of attorney had joint interest privilege in attorney-client communications and related documents preparatory to the drafting and execution of the power of attorney instrument itself. It is common ground between the parties that the communication and the correlating documents qualified for protection under the rule of legal professional privilege.

6 Mr. YT Wang was the putative donor of the relevant power of attorney, said to have been executed on 31 October 2012 (“the POA”), whereby at the age of 91 years he gave his eldest son, William, broad and unfettered powers to handle and dispose of all of his assets. The POA was drafted by Yao Lin, also known Ms. Angela Lin (“Ms. Lin”) of the law firm Lee and Li Attorneys-at-Law located in Tapei, Taiwan (“Lee and Li”).

7 Some two and a half months after the execution of the POA, the 5 ^th Respondent was incorporated as a private trust company on 15 January 2013 and by Deed of Trust dated 8 March 2013, the Ocean View Trust was established and the 5 ^th Respondent was declared its trustee. Thereafter, as the Respondents aver, FPG shares indirectly owned by Mr. YT Wang were transferred into the Ocean View Trust by reliance upon the POA, in circumstances which are examined further below.

8 William is one of three other family members who serves as a member of the Board of Trustees for the 1 ^st — 5 ^th Respondents in these proceedings, which are each private trust companies. The other three family members of the Boards of the Respondents are Wilfred, Susan and Sandy. Together they represent the children of Mr. YC Wang and his third wife (to the exclusion of any of the children of Mr. YC Wang's second wife) and the children of Mr. YT Wang and his first wife (to the exclusion of any of the children of Mr. YT Wang's second wife).

9 The Respondents are the trustees of five Bermuda purpose trusts settled by the Founders, namely the Wang Family Trust; China Trust; Vantura Trust; Universal Link Trust and Ocean View Trust (“the five Bermuda purpose trusts”). Moreover, it was the first four Respondents who retained and instructed Lee and Li for the purpose of creating and executing the POA. (I shall in due course outline the evidence of the purposes for the making of the POA.) Collectively, the Respondents reject Tony's assertion that Mr. YT Wang, the donor of the POA, had joint interest privilege in the communications and documents prepared by Lee and Li in respect of the POA.

10 In the underlying pending Supreme Court action (Case No. 44 of 2018) before the learned Assistant Justice, Mr. Ian Kawaley (“the main action”), Mr. YC Wang's eldest son, Winston, is the Plaintiff. Winston challenges the validity of the Bermuda purpose trusts and the transfer of the Founders' assets into those Bermuda purpose trusts. The Appellant, Tony, is the youngest son of Mr. YT Wang. Tony is the 8 ^th Defendant in the main action and is supporting Winston's case challenging the legitimacy of the Bermuda purpose trusts.

11 By summons dated 3 December 2020, Tony applied before Kawaley AJ in a hearing held on 17–18 and 21 December 2020 3 for production and inspection of all documents held by Lee and Li relating to the creation and execution of what was termed “the purported Power of Attorney”. I shall refer to these documents as “the POA documents”.

12 In his written ruling delivered on 30 December 2020 (intermittently referred to as “the Ruling”) Kawaley AJ refused Tony's application for disclosure and inspection of the POA documents. Aggrieved by the Ruling, Tony filed a Notice of Appeal dated 14 January 2021 appealing to this Court for an order setting aside Kawaley AJ's decision and an order requiring the Respondents to produce the POA documents for Tony's

access and inspection. The Respondents in turn filed a formal Notice on 25 January 2021 for the Ruling to be affirmed on grounds other than those relied on in the Ruling itself

13 Having considered the written and oral arguments from Counsel for Tony and the Respondents, I now give my reasons for finding that this appeal should be allowed.

THE BACKGROUND

14 The assets of the impugned five purpose trusts are FPG shares held in various holding companies previously owned by an agent of the Founders, Wen-Hsiung Hung (“Mr. Hung”), who was at all times acting pursuant to the direction of the Founders in respect of those shares and is said effectively to have held them on trust for such purposes as the Founders might direct. On the averments of Winston and Tony under the main action, the Bermuda trusts were always intended by the Founders to be family beneficiary trusts, holding its assets for equal division and enjoyment between each of the Founders' children. The case against Winston and Tony, which is primarily being prosecuted by the Respondents, is that the Founders' expressed wishes and intentions were for their FPG shares to be placed into Bermuda purpose trusts for the exclusive benefit of specified charitable and non-charitable purposes.

15 The administration of the financial aspects of those Bermuda purpose trusts were partly handled by senior employees of the FPG Finance Department under the...