KWAN CHUI KWOK YING AND ANOTHER v. TAO WAI CHUN AND OTHERS

KWAN CHUI KWOK YING AND ANOTHER v. TAO WAI CHUN AND OTHERS

The order for issuance of the Letter of Request (14 May 1999) was void ab initio because at the time it was made Macau was under no international obligation nor did its local law provide for execution of letters of request for civil proceedings; the order was procured on the basis of an incorrect expert statement of foreign law constituting an abuse of process, and therefore the court had jurisdiction to set the order aside and did so.

Citation
KWAN CHUI KWOK YING AND ANOTHER v. TAO WAI CHUN AND OTHERS
Parties
1st Plaintiff: KWAN CHUI KWOK YING; 2nd Plaintiff: KWAN SAU HANG SUZANNA; 1st Defendant: TAO WAI CHUN; 2nd Defendant: KWAN SAU SAN SUSAN; 3rd Defendant: KWAN SAU FUN SYLVINE; 4th Defendant: KWAN WAI ON LAWERENCE; 5th Defendant: KWAN LAI ON WARREN; 6th Defendant / Third Party Defendant: KWAN CHI ON; 7th Defendant: KWAN SAU YUNG; 8th Defendant: KWAN SAU KI; 9th Defendant: KWAN TONG ON JOHN; 10th Defendant: KWAN CHEE ON also known as JOHN KUAN YANG; 11th Defendant: KWAN YAN ON KENNETH; 12th Defendant: KWAN YEE ON; 13th Defendant: KWAN KWOK ON; 14th Defendant: KWAN SAU WO WINNIN; 15th Defendant / Applicant: KWAN TIT ON DANIEL; 16th Defendant: KWAN KIN ON NORRIS
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
12 March 2002
Case Number
HCMP2996/1990
Procedural Posture
Probate/estate Third Party Proceedings (high Court, Court of First Instance) / Interlocutory Application in Chambers to Set Aside Letter of Request (application to Strike Down Order; Costs Order Nisi)
Outcome
Order of 14 May 1999 for issuance of Letter of Request set aside; order nisi for costs against the 6th Defendant
Legal Topics
Letters of Request, Hague Evidence Convention, Jurisdiction to Order Foreign Assistance, Abuse of Process, Relevance and Admissibility of Foreign Evidence, Costs and Indemnity Costs
Source Language
EN
Civil Procedure Private International Law Probate and Succession Evidence Law Judicial Assistance / Mutual Legal Assistance Letters of Request Hague Evidence Convention Jurisdiction to Order Foreign Assistance +3 more

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Parties

KWAN CHUI KWOK YING

1st Plaintiff

KWAN SAU HANG SUZANNA

2nd Plaintiff

TAO WAI CHUN

1st Defendant

KWAN SAU SAN SUSAN

2nd Defendant

KWAN SAU FUN SYLVINE

3rd Defendant

KWAN WAI ON LAWERENCE

4th Defendant

KWAN LAI ON WARREN

5th Defendant

KWAN CHI ON

6th Defendant / Third Party Defendant

KWAN SAU YUNG

7th Defendant

KWAN SAU KI

8th Defendant

KWAN TONG ON JOHN

9th Defendant

KWAN CHEE ON also known as JOHN KUAN YANG

10th Defendant

KWAN YAN ON KENNETH

11th Defendant

KWAN YEE ON

12th Defendant

KWAN KWOK ON

13th Defendant

KWAN SAU WO WINNIN

14th Defendant

KWAN TIT ON DANIEL

15th Defendant / Applicant

KWAN KIN ON NORRIS

16th Defendant

Procedural Posture

Probate/estate Third Party Proceedings (high Court, Court of First Instance) / Interlocutory Application in Chambers to Set Aside Letter of Request (application to Strike Down Order; Costs Order Nisi)

Legal Issues

  1. 1 Whether the Hong Kong court had jurisdiction to order issuance of a Letter of Request to Macau
  2. 2 Whether an international obligation, bilateral arrangement or local law in Macau existed to require execution of letters of request at the time the order was made
  3. 3 Whether delay, bona fides or relevance justified setting aside the order

Ratio Decidendi

The order for issuance of the Letter of Request (14 May 1999) was void ab initio because at the time it was made Macau was under no international obligation nor did its local law provide for execution of letters of request for civil proceedings; the order was procured on the basis of an incorrect expert statement of foreign law constituting an abuse of process, and therefore the court had jurisdiction to set the order aside and did so.

Court Disposition

Order of 14 May 1999 for issuance of Letter of Request set aside; order nisi for costs against the 6th Defendant

Orders

  • Order setting aside the order of 14 May 1999 for the issuance of the Letter of Request
  • Order nisi that the 6th Defendant shall pay the 15th Defendant's costs of this application, including costs thrown away, to be taxed if not agreed