TANG FOOK WING v. TANG CHUN KEE AND OTHERS

HCA 1294/2014

[2024] HKCFI 3017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1294 OF 2014

_______________________

_______________________

(By original writ and orders to carry on made by Master K. Lo on 27^th October 2016)

_______________________

________________________

DECISION

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Introduction

1.  By my decision dated 16 July 2024 (“the 16/7/24 Decision”), I allowed the appeal of the defendants from an order of a master and dismissed the two summonses of the plaintiff dated 9 August 2023 and 16 October 2023 respectively for his applications to adduce additional witness statements.

2.  By summons dated 29 July 2024 (“the Summons”), the plaintiff applies for leave to appeal against the 16/7/24 Decision.

3.  By a letter dated 1 August 2024, I directed that the Summons should be disposed of on paper and both Mr Mak, for the plaintiff, and Mr Wong, for the defendants, have filed their written submissions.

4.  In this Decision, I shall adopt all the abbreviations used in the 16/7/24 Decision unless otherwise stated. I shall also refer to the 16/7/2024 Decision for the background facts which will not be repeated here.

5.  The applicable principles relating to applications for leave to appeal against interlocutory orders are well established and need no elaboration. Suffice it to say, in such applications pursuant to section 14AA of the High Court Ordinance, Cap. 4 and O.59 r.2B of the Rules of the High Court, the applicants are required to show that the intended appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the intended appeal should be allowed.

6.  Annexed to the Summons is a document entitled “Draft Grounds of the Proposed Appeal” consisting of 4 broad grounds. I shall examine each of them in light of the parties’ helpful submissions.

Ground 1

7.  The first ground is that I erred in holding that the contents of the 2^nd SWS are inadmissible, irrelevant and non-probative. In coming to this conclusion, it is submitted that I made four mistakes.

8.  First, Mr Mak submits that in assessing the relevance and thus admissibility of the 2^nd SWS, I failed to distinguish primary and collateral issues. He refers to the explanation given by Lord Phillips of Worth Matravers NPJ in HKSAR v Kong Wai Lun (2015) 18 HKCFAR 7 at §§27-28.

9.  In short, evidence that an alleged event did or did not occur is primary issue. A collateral issue does not bear directly on whether a primary fact in issue occurred. It bears on the reliability of the primary evidence. In relation to evidence that goes to a collateral issue, the common law principle that evidence should not be admitted if its probative weight is insufficient to justify the complexity that it will add to the trial applies.

10.  As Mr Mak puts it in his written submission, §§2-7 of the 2^nd SWS are comments of Madam Tang on the credibility of D7 or the reliability of his views about local adoption and inheritance practices. Mere comments are not factual evidence.

11.  I observed (at §26 of the 16/7/2024 Decision) that, in the 2^nd SWS, Madam Tang casts doubt on D7’s neutrality and credibility. I went on to find her criticisms and assessment of D7’s credibility inadmissible, irrelevant and non-probative. A factual witness can adduce factual evidence only. Madam Tang’s opinion on D7’s views is neither here nor there.

12.  Without those comments and analysis of Madam Tang, the plaintiff can still make exactly the same attack on the evidence of D7 by way of cross-examination.

13.  The differences between primary and collateral issues are not really engaged. Madam Tang’s opinion evidence regardless of whether it relates to primary issues or collateral issues is objectionable.

14.  The second alleged error is about my conclusion that Madam Tang’s observation of the contents of the genealogy compiled by D7 referred to in §3 of his 2^nd supplemental witness statement “freshly disclosed on 14 June 2023” are wholly unnecessary and irrelevant (at §27(2) of the 16/7/2024 Decision).

15.  It is submitted that I failed to consider that Madam Tang in her earlier witness statement stated that she was previously involved in helping D7 to compile the genealogy. Mr Mak relies on O.38 r.2A in his submission that it is only fair for Madam Tang to have a chance to answer the evidence of the opposite party.

16.  First, when D7 referred to the genealogy in his 2^nd supplemental witness statement, D7 made it clear that he had referred to the same document in his earlier witness statement dated 15 September 2016. D7 also stated that the genealogy was published in 2015 (after the commencement of these proceedings in 2014). Indeed I have found this evidence in §9 of D7’s witness statement dated 15 September 2016.

17.  More than 2 years later, Madam Tang made her supplemental witness statement on 11 October 2018. In that document, Madam Tang already gave her response to the said genealogy by setting out her involvement in the compilation of the same.

18.  The observations of Madam Tang in the 2^nd SWS are again opinion evidence. Such observations are largely the inferences suggested by Madam Tang based on her surmise and speculation. They are not factual evidence of any probate value. The fact that Madam Tang was involved at some stage in the compilation of the genealogy cannot turn her opinion evidence into admissible evidence.

19.  The third error is that I erred in law in finding Madam Tang has no personal knowledge of local customs regarding adoption and inheritance practice in the Village (at §27(4) of the 16/7/2024 Decision). Mr Mak submits that I failed to consider the evidence which could equip Madam Tang with such personal knowledge including her membership of the Village, her personal network in the Village and her participation of the various social occasions of the Village, etc.

20.  I pointed out that Madam Tang did not state how she had acquired any such knowledge before she gave all the explanations about the alleged local custom. Without disclosing the basis of her knowledge, her explanations are of no probative value. I do not agree that her knowledge should be established by cross-examination at trial.

21.  The fourth error identified by Mr Mak is that I erred in concluding that Madam Tang’s own ignorance of the local custom alleged by D7 could not be of much probative value on the authority of Lee Sun Kiu v Ho Kay Fuk (unreported, HCA 195/2001, 20.8.2004). Mr Mak submits that Madam Tang’s ignorance of local customs should be a matter to be investigated at trial. I believe I have explained clearly my reasoning in §27(5) of the 16/7/2024 Decision as to why an individual’s ignorance of the alleged local customs is insufficient to disprove such local customs. I fail to see why Madam Tang’s professed ignorance is relevant.

Ground 2

22.  This ground concerns my refusal to allow the plaintiff to adduce the 3^rd SWS. The 3^rd SWS relates to the circumstances under which the late Madam Tang Yin signed her witness statements. There are also video recordings capturing her signing of the witness statements and her competence is confirmed to be a non-issue.

23.  Mr Mak submits that I erred in conflating weight and admissibility of Madam Tang Yin’s witness statements. He submits that the 3^rd SWS contains evidence that can add weight and probative value to Madam Tang Yin’s witness statements. By reason of the demise of Madam Tang Yin, her witness statements would be sought to be adduced as hearsay evidence and in the assessment of the weight of her witness statements, the court shall have regard to all the relevant circumstances including those when Madam Tang Yin signed her witness statements.

24.  I am unable to understand, given the fact that Madam Tang Yin’s competence is not in issue, how Madam Tang Yin signed her witness statements in the presence of her solicitors and Madam Tang has anything to do with the weight of the evidence contained in her witness statements. I also fail to understand how Madam Tang’s detailed description of the circumstances shown in the video-recordings in the 3^rd SWS has any probative value.

25.  I am unable to find any merit in Ground 2.

Ground 3

26.  This ground concerns my citation of Ho Wai Tung v Ho Fung [2020] 4 HKLRD 508. Mr Mak makes an effort to distinguish the present case from Ho Wai Tung and submits that I failed to consider the specific context of Ho Wai Tung.

27.  With respect, I find no substance in this ground. I referred to Ho Wai Tung, which was cited to me by Mr Wong, only for the well-settled legal principles. Mr Mak did not and still does not argue against such legal principles.

28.  Mr Mak, however, at the same time, relies on §49 of Ho Wai Tung where Marlene Ng J said,

“… supplemental statement evidence may be required if … there is a need to respond to freshly discovered documents after the 1^st round of witness statements.”

29.  Mr Mak then stresses that the 2^nd SWS is necessary to deal with the freshly discovered evidence disclosed on 14 June 2023 and the 3^rd SWS is required to deal with the demise of Madam Tang Yin on 5 September 2023.

30.  The genealogy was referred to in the witness statement of D7 dated 15 September 2016 and not really freshly discovered. Further, the video-recordings have already covered the circumstances under which Madam Tang Yin signed her witness statements. I do not accept that there is a need for Madam Tang to adduce further evidence.

31.  Even if the plaintiff believes that there is such a necessity, any supplemental witness statements must be admissible, relevant and of probative value. I have already explained why I think the 2^nd SWS and 3^rd SWS are not.

Ground 4

32.  The last ground is about the costs order I made in §41 of the 16/7/2024 Decision.

33.  Mr Mak submits that I did not give the parties any opportunities to make submissions on costs.

34.  But the costs order I made is a costs order nisi. Parties could have taken out a summons to apply for variation with supporting evidence within 14 days after the making of the order nisi pursuant to O.42 r.5B(6).

35.  This ground is unmeritorious.

Conclusion and order

36.  For the reasons given, I am not satisfied that the intended appeal of the plaintiff has any reasonable prospect of success and there is no other reason in the interests of justice that this matter should be heard by the Court of Appeal.

37.  Accordingly, I refuse to grant leave to appeal and I dismiss the Summons.

38.  There is no reason why costs should not follow the event. I make a costs order nisi that the defendants’ costs of and occasioned by the Summons be paid by the plaintiff, to be taxed if not agreed.

39.  Lastly, I thank Mr Mak and Mr Wong for their assistance in this matter.

Mr Andrew Mak, instructed by Adrian Yeung & Cheng, for the Plaintiff

Mr Simon Wong, instructed by Huen & Cheung, for the 1^st to 12^th Defendants

HCA 1294/2014

[2024] HKCFI 1873

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1294 OF 2014

_______________________

(By original writ and orders to carry on made by Master K. Lo on 27^th October 2016)

_______________________

________________________

DECISION

________________________

Introduction

1.  By summons taken out by the plaintiff dated 9 August 2023 (“the 1^st Summons”), the plaintiff seeks leave to file the second supplemental witness statement of 鄧美蓮(“the 2^nd SWS”).

2.  By another summons taken out by the plaintiff dated 16 October 2023 (“the 2^nd Summons”), the plaintiff seeks leave to file the third supplemental witness statement of 鄧美蓮(“the 3^rd SWS”).

3.  A master heard the two Summonses on 3 January 2024 and the Master allowed both applications with costs to the plaintiff. This is an appeal of the defendants against the order of the Master (“the Order”) by their Notice of Appeal dated 16 January 2024.

4.  This is the hearing of the appeal of the defendants, which takes the form of a de novo hearing of the two Summonses.

Relevant legal principles

5.  There is no dispute about the well-settled legal principles governing applications for leave to file additional evidence. Mr Mak, for the plaintiff, helpfully refers to Re Cao Zhong[2021] HKCFI 3143 in which Mr Recorder William Wong SC cited the following dicta of Bharwaney J in Gurung An Parsad v Great Wealthy Engineering Co Ltd & Anor. [2012] 3 HKLRD 705 at para.6:

“Whilst the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties, and which must include the right of a party to rely on admissible, relevant and probative factual evidence, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the late application. These matters have to be considered and weighed in the light of and against the underlying objectives of Civil Justice Reform to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.”

6.  In Ho Wai Tung v Ho Fung [2020] 4 HKLRD 508, after citing the foregoing dicta of Bharwaney J, Marlene Ng J said the following (at para.35),

“The guidance that fell from Bharwaney J in Parsad makes clear that first and foremost the supplemental witness statement that a party intends to serve must be admissible, relevant and probative. Logic dictates that any supplemental witness statement intended to be served must satisfy such criteria before the court brings the underlying objectives into the weighing exercise because leave should not be given for any party to introduce inadmissible, irrelevant or non-probative evidence at trial.”

7.  Marlene Ng J went on to say this (at para.38),

“In the circumstances, a witness as to fact cannot give statements of information of belief and/or expressions of opinion. The primary objection to opinion evidence by witnesses as to fact is that (a) if the opinion rests on no evidence or inadmissible evidence it is worthless, but (b) if the opinion rests on admissible evidence it usurps the function of the trial judge who is the trier of law and fact. On such basis, non-expert opinion is generally inadmissible.”

Relevant disputes in this action

8.  It is necessary for me to give a brief introduction of the disputes between the parties relevant to these applications first.

9.  The plaintiff and the defendants are indigenous villagers of San Wai Village (“the Village”), Ha Tsuen Heung, New Territories.

10.  The plaintiff’s case is that the late Mr Tang Yiu Chung (“the Deceased”) passed away in 1929 leaving behind his spouse Madam Man and his daughter Madam Tang Yin without any male issue. Since about 1970, the plaintiff became the adopted son and hence the heir /successor of the Deceased.

11.  In or about May 1930, Madam Man established a traditional Tso in the name of the Deceased known as Tang Yiu Chung Tso (“the Tso”).

12.  In November 1995, Madam Man passed away. In March 1996, the plaintiff in the capacity of the manager of the Tso applied to the Yuen Long District Office for consent to divide and sell certain lands owned by the Tso. The 1^st defendant opposed his application.

13.  In 2012, the 1^st defendant alleged that he was the adopted son of the Deceased and opposed the intended sale of a property by the plaintiff.

14.  The plaintiff refuses to accept that the 1^st defendant was validly adopted in accordance with the Chinese customary law.

15.  The plaintiff further points out that the 1^st defendant in April 2005 actually applied to Yuen Long District Office for secession to the property of his natural and lawful father the late Mr. Tang Lok Cheong. The plaintiff says that this application shows that the 1^st defendant knows that he could not be the adopted son of the Deceased.

16.  The 1^st defendant states his contention in the Amended Defence and Counterclaim (“the Contention”) that he is the successor to the three branches (一子嗣三房), namely the Deceased, Tang Yiu Tso and his deceased father.

17.  In his Amended Reply and Defence to Counterclaim, the plaintiff denies the Contention and avers that it ignores the effect of adoption under Chinese customary law.

18.  For all other defendants, the plaintiff alleges that they slandered the title of the plaintiff by signing a letter sent to the Yuen Long District Office in 2004 (“the 2004 Document”) in which they alleged that they had witnessed the purported adoption of the 1^st defendant. The 2004 Document was used by the 1^st defendant to support his application to the Yuen Long District Office for succession purposes.

19.  As between the plaintiff and the 1^st defendant, the central issue identified by Mr Mak is where the plaintiff or the 1^st defendant is entitled to succeed to the landed properties of the Deceased as his adopted son under Chinese customary law. The landed properties are situated in the Village.

20.  The present action was commenced in 2014 and still has not yet set down for trial.

21.  Both parties allowed the present action to be in the sleep mode from November 2017 to November 2022.

The applications

22.  Neither the 1^st Summons nor the 2^nd Summons is supported by affidavit evidence.

The 2^nd SWS

23.  Mr Mak explains that the 2^nd SWS relates to the new allegations in the 2^nd Supplemental Witness Statement of Tang Yau Ming (“D7”). Mr Mak draws my attention to the fact that the said Supplemental Witness Statement is dated 12 November 2017 (“D7’s 2^nd SWS”) whilst it was only disclosed to the plaintiff for the first time by way of exchange on 14 June 2023.

24.  I have read D7’s 2^nd SWS. It consists of 13 short paragraphs only. There, D7, having been the village head for 5 terms, claims to have some knowledge of the local custom of the Village. Basically, he supports the Contention and cites four instances within his personal knowledge in which male villagers succeeded to the properties of their natural fathers in addition to those of their adopted fathers (“the 4 Instances”).

25.  I have studied the two previous witness statements of 鄧美蓮 (“Madam Tang”) in addition to the 2^nd SWS. She is the youngest child of the natural and lawful parents of the plaintiff. She was born in 1962 and she resided in Yau Ma Tei when she started her primary education. She remembers attending a poon choi banquet in the Village in November 1976 to celebrate the adoption of the plaintiff by the Deceased and Madam Man.

26.  In the 2^nd SWS, she casts doubt on D7’s neutrality and credibility. She seeks to explain the local custom of the Village by way of 4 cases with different factual scenarios and points out the fallacy of the Contention.

27.  I accept the submission of Mr Wong, for the defendants, that the lion share of the 2^nd SWS contains inadmissible, irrelevant and non-probative evidence.

(1)  It contains a fair amount of Madam Tang’s criticisms about D7’s evidence and her assessment of his credibility. This is not to be expected from a factual witness and this is not the function of a witness statement.

(2)  Her observations of the contents of the genealogy compiled by D7 are wholly unnecessary and irrelevant.

(3)  Mr Mak submits that the 2^nd SWS is necessary to deal with the specific allegations of the 4 Instances. However, Madam Tang does not show any personal knowledge of the 4 Instances at all. Nor does she deny their occurrences. She adduces not a shred of factual evidence relating to the 4 Instances. What she has done is her illustration of the alleged local custom by way of four hypothetical examples. And then she concludes that the 4 Instances do not fit in any one of those hypothetical examples.

(4)  Mr Mak submits that Madam Tang’s personal knowledge about the local inheritance and adoption practice and hence customs are premised on her daily life experiences and observations over the years in the Village. He further submits that there is no dispute that Madam Tang is a member of the Village and so she should know the local custom. I am unable to accept these submissions. This is not the evidence of Madam Tang in the first place. She has never stated how she has acquired any knowledge of the local custom relating to inheritance and adoption matters. Being a member of the Village does not mean that she has such knowledge especially when she has resided in town since at least she became a primary school student of 8 years old. There is no evidence that she has ever resided in the Village for any significant period thereafter. It would be inconceivable that she had acquired personal knowledge of any matters concerning the adoption and inheritance practice in the Village before she moved to Yau Ma Tei. Her attendance at the various social occasions with her parents in the Village and the meeting held on 19 April 2012 does not necessarily equip her with such knowledge. Nor has she suggested so. Her explanation about, as opposed to her actual personal knowledge of, what the local custom is inadmissible, irrelevant and of no probative value.

(5)  Mr Mak further submits that Madam Tang should be allowed to indicate her lack of knowledge of the local custom alleged by D7 to disapprove its existence. However, whilst obviously Madam Tang does not accept the alleged local custom, the 2^nd SWS does not exactly contain such an indication. In any event, one member’s ignorance of the local custom could not be of much probative value on the authority of Lee Sun Kiu v Ho Kay Fuk, HCA 195/2001 (unreported, 20.8.2004) per Lam J (as he then was), which was cited to me by Mr Mak. The judge held that the views of one man, or even one generation of elders was insufficient to show local custom.

28.  On the other hand, Mr Mak seems to suggest that the D7’s SWS also lacks probative value on the authority of Lee Sun Kiu. He also points out that D7 gives his views on the local custom in the D7’s SWS in a similar vein.

29.  This submission cannot advance the case of the plaintiff to my mind. If the plaintiff has any conviction in this suggestion, the right course to do is to apply for the same to be expunged. If the making of D7’s SWS is a mistake, the plaintiff simply should not compound the mistake by making the 2^nd SWS.

The 3^rd SWS

30.  Now I turn to the 3^rd SWS. Mr Mak explains that the 3^rd SWS is intended to provide evidence of the surrounding circumstances of the making of the witness statement and the supplemental witness statement of Madam Tang Yin filed in 2016 and 2018 respectively (collectively “the TY Statements”) in support of the plaintiff’s claim. Madam Tang Yin passed away in September 2023.

31.  Madam Tang in the 3^rd SWS explains that to avoid any attack on the competence of Madam Tang Yin when she made her witness statement on 18 September 2016, video recordings capturing the circumstances under which Madam Tang Yin signed the document at her home in the presence of both the solicitor of the plaintiff and Madam Tang were prepared.

32.  In the 3^rd SWS, Madam Tang gives a detailed account of the signing of the witness statement despite the video recordings. Likewise, she gives a similar account of the signing of the supplemental witness statement of Madam Tang Yin and her affidavit in her presence. Madam Tang Yin made her affidavit containing exactly the same contents of the TY Statements in anticipation of her inability to attend the trial of the present action.

33.  A copy of the video recordings has been provided to the defendants. Mr Wong indicates that the defendants will not challenge the authenticity and admissibility of the video recordings.

34.  Mr Wong expressly indicates that the defendants do not accept the admission of the TY Statements as hearsay evidence despite the demise of Madam Tang Yung. He argues that the plaintiff should have taken her evidence by way of disposition under O.39 r.1.

35.  Mr Mak submits that what is at issue here is the admissibility of the 3^rd SWS and not that of the TY Statements. He highlights to this court the lack of any counter-notice or opposition issued by the defendants in response to the relevant hearsay notice issued by the plaintiff. He submits that the admissibility of the TY Statements cannot be disputed.

36.  Mr Mak refers to O.38 r.21(1)(b) which provides that “where a party tenders as hearsay evidence a statement made by a person but does not propose to call the person who made the statement to give evidence, the Court may, on application, allow any party to call additional evidence to attack or support the reliability of the statement”. Mr Mak says the 3^rd SWS is relevant in that it can show the competence of Madam Tang in making the TY Statements and hence supports the reliability of the TY Statements.

37.  However, competence of Madam Tang has never been an issue, as confirmed by Mr Wong. In any event, the video-recordings are already sufficient and the 3^rd SWS is simply redundant.

38.  In the premises, I find the 3^rd SWS to be irrelevant and of no probative value. It is inadmissible.

39.  For completeness, Mr Wong confirms that the defendants do not complain about any delay of these applications and any prejudice caused to the defendants if the two supplemental witness statements are admitted. As pointed out above, no weighing exercise is needed when the proposed new evidence is inadmissible, irrelevant or non-probative.

Conclusion and orders

40.  For the reasons given above, I am not convinced that the contents of the 2^nd SWS and the 3^rd SWS are admissible, relevant and probative. The appeal of the defendants must be allowed and I set aside the Order accordingly. The 1^st and 2^nd Summonses fall to be dismissed.

41.  There is no reason why costs should not follow the event. I make an order nisi that the plaintiff should pay the defendants their costs of and occasioned by the 1^st and 2^nd Summonses including the present appeal and any costs reserved, to be taxed if not agreed.

42.  Lastly, I thank Mr Mak and Mr Wong for their helpful submissions.

Mr Andrew Mak, instructed by Adrian Yeung & Cheng, for the Plaintiff

Mr Simon Wong, instructed by Huen & Cheung, for the 1^st to 12^th Defendants