CHOW LILY v. CHOW WAI WAI VIOLET AND ANOTHER

HCAP 22/2019

[2026] HKCFI 1148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 22 OF 2019

________________________

________________________

________________________

________________________

DECISION

________________________

A.  INTRODUCTION

1.  This Decision deals with the defendants’ appeal against the decision of a Master who dismissed their application to subpoena Professor Lo Chung-mau (“Professor Lo”)  who treated the Deceased in 2015.

B.  THE RELEVANT BACKGROUND

2.  The background of the present case has been summarised by Deputy High Court Judge Leung (as he then was)  in [1] – [21] of his Decision dated 30 July 2020 ([2020] HKCFI 1792).  For the purpose of this appeal, it suffices for me to highlight the followings.

3.  By the Re-Re-Amended Statement of Claim, the plaintiff sought, inter alia, a declaration that the Deceased’s will dated 29 October 2015 (“the 2015 Will”)  is invalid as it was executed by the Deceased without knowledge and approval of its contents and/or without the requisite testamentary capacity, and/or executed without the requisite animus testandi.

4.  The plaintiff subsequently applied to amend the said pleading by adding an additional ground of undue influence in her attempt to set aside the 2015 Will.

5.  By the Decision of this Court dated 30 October 2024 (“the Amendment Order”), the plaintiff was granted leave to further amend her Re-Re-Amended Statement of Claim pursuant to her application.   Consequential to the granting of such leave, this Court further directed the parties to exchange their respective witness statements covering matters relating to the plaintiff’s amendments in relation to the claim of undue influence.

6.  On 14 February 2025, the plaintiff took out a summons and sought leave to adduce an expert report of Dr Robert Ho.  This summons was heard on 2 July 2025 and was eventually dismissed by virtue of this Court’s Decision dated 11 July 2025 (“the July 2025 Decision”).

7.  On 27 June 2025, the defendants also took out a summons for numerous directions, which were described by their counsel at the time to be consequential to the grant of leave to the plaintiff to adduce further expert evidence from Dr Robert Ho[1]. One of those directions was for leave to file a witness statement of Professor Lo (“the Earlier Application”).  At the end of the day, no order was made on the Earlier Application by virtue of the July 2025 Decision.

8.  On 30 July 2025, the parties exchanged further witness statements pursuant to the Amendment Order.

9.  On 17 September 2025, the defendants filed draft Praecipe for Writ of Subpoena Ad Testificandum for Professor Lo.

10.  On 19 November 2025, a Master refused the application for subpoena to Professor Lo in view of the following comments made by this Court in the July 2025 Decision:

“48(2)  The proposal of introducing Professor Lo Chung Mau as a witness apparently comes too late, bearing in mind his involvement in the matter had already been mentioned all the way back in the first version of the Defence and Counterclaim filed on 6 November 2019;

48(3)  Insofar as it is the defendants’ argument that there are other witnesses who should give additional factual evidence which may constitute ‘clinical evidence’ for the benefit of their independently instructed experts, such an argument must be rejected.  This is because there is no acceptable reason why these witnesses should not be asked to give their witness statements when the parties first exchanged witness statements.  I do not see how it can be argued that the defendants did not see the need in the past.  In light of the amount of money at stake and the financial strength of the parties, it is not reasonable to suggest that the defendants had deliberately withheld from preparing for the case at 100% effort.  With respect, they are simply making use of this opportunity to further ‘perfect’ their case.”

11.  The defendants then appealed against the said decision of the learned Master.

C.    LEGAL PRINCIPLES

12.  Parties have no dispute on the applicable legal principles.

C1.  Appeal from Master’s decision

13.  In relation to an appeal brought against Master’s decision, it is well established that such an appeal is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time.  The judge will give the weight it deserves to the previous decision of the Master, but he is in no way bound by it.  The judge in chambers is in no way fettered by the previous exercise of the Master’s decision (Hong Kong Civil Procedure 2026, Volume 1, paragraph 58/1/2).

C2.  Subpoena

14.  In Big Island Construction (HK)  Limited v Wu Yi Development Company Limited & Another [2010] 2 HKC 356, Poon J (as his Lordship then was)  explained that the proper practice for subpoenaing a witness is as follows:

“2. Generally speaking, a party is entitled to call the oral evidence of witnesses who will assist him in presenting his case as a general right : see Li Man York Evelyn v Li Wat Tat Walton [1997] 3 HKC 532. However, he must act with due diligence in approaching his witnesses well in advance before the trial begins. Based on the witnesses’ response, the following practice should be adopted.

3. If the witness is willing to assist, the party intending to call him should properly prepare his witness statement and exchange it with the other side in accordance with the court’s directions. If he fails to do so, he may not be allowed to call the witness : see Order 38 rule 2A(10)  of the Rules of the High Court.

4. If the witness is unwilling to testify and the party has decided to subpoena him nonetheless, he should so inform the court and the other side at the case management conference. And he should apply to issue the subpoena once the trial dates are known. Upon the issue of the subpoena, he should inform the other side forthwith. The other side should then decide if he wishes to apply to set aside the subpoena on grounds such as that the witness’s evidence is irrelevant or that the trial will be unduly expanded beyond the issues raised in the pleadings and matters necessarily ancillary thereto : see Phipson on Evidence (16^th edn), paragraphs 8-05, 8-08 and 8-20. Any setting aside application should be taken out as soon as practicable. All the applications pertaining to the subpoena should be disposed of before the pre-trial review.

5. The above practice for subpoenaing a witness is to facilitate the more efficient, expeditious and fair management and disposal of cases and to ensure that the trial proper will not be impeded.

6. After the CJR, as well as before it, the parties are expected to carefully and thoroughly think through all the preparatory steps leading up to the trial, including the decision whether to subpoena an unwilling witness. All interlocutory applications, including the one pertaining to a subpoena, should be disposed of before the pre-trial review. A late application may be dismissed on the basis of delay alone : see paragraph 34 of the Practice Direction 5.2 on Case Management. Dismissing a late application for delay alone applies with even greater force when it is taken out in the course of the trial. The applicant must justify the late application with good, strong reasons.

15.  In Chan Cheung Ming Jacky v Siu Sin Man [2014] 5 HKLRD 89, Lam VP (as Lam PJ then was)  had also discussed at length on the principles in this respect:

“19. Since 1997, the role of the court in case management has assumed a greater prominence in our administration of civil justice. Even before the CJR, in L v L HCMC 1 of 2003, 20 April 2005, the court considered the application for leave to issue subpoena from a case management angle when such application was made after the evidence had been closed. In that case, the court conducted a balancing exercise before allowing the case to be re-opened and granted leave for the issue of subpoena. Various factors were considered: the potential disruption to the trial, the prejudice that the other party may suffer, the explanation for the late application, the significance of the new evidence, the overall justice of the matter.

20. Under CJR, Orders 1A and 1B were added to our rules (both the Rules of the High Court as well as the Rules of the District Court). Order 1A rule 2 provides that whenever the court exercises its power under the rules (and that would include the power to grant leave to issue a subpoena), it must seek to give effect to the underlying objectives set out in rule 1. Order 1A Rule 2(2)  is also important:

‘In giving effect to the underlying objectives of these Rules, the Court shall always recognize that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties.’

21. Since the introduction of the CJR, the power to grant leave for the issue of subpoena in a case management context has been considered in Big Island Construction (HK)  Ltd v Wu Yi Development Co Ltd HCA 1957 of 2005, 29 Jan 2010 (Poon J); upheld on appeal in FBC Construction Co Ltd v Lee Ben [2014] 2 HKLRD 1054 at para 223 and Waddington Ltd v Chan Chun Hoo Thomas CACV 136 of 2013, 19 July 2013. Those were cases decided in the context of ordinary civil trials and the courts emphasised that the proper stage to deal with questions relating to the issue of subpoena for witnesses is at the case management conference.

22. By now, it should be recognised that in the exercise of the power to grant leave to issue a subpoena, at least in respect of late applications, in addition to the matters Mortimer VP alluded to in Li Man York Evelyn v Li Wai Tat Walton, supra., the court must also bear in mind its case management duty.

[…]

25. Subject to two caveats, we are in broad agreement with the observations of Poon J in Big Island Construction (HK)  Ltd v Wu Yi Development Co Ltd HCA 1957 of 2005, 29 Jan 2010 paras 2 to 6 on the practice regarding application for leave to issue subpoena in the context of general civil litigation. As we said above, judges and practitioners in Family Court should adopt a similar approach, with necessary modifications having regard to the procedures in the family proceedings.

26. The first caveat we have is about the scope in which the other party to the litigation may apply for the setting aside of a subpoena. We do not intend to delve into the topic at length in this judgment (as it is not necessary to do so in light of the neutral stance of Mr Li). We would only invite attention to the following comments of Phipson on Evidence 18^th Edn para 8-21 and para 4 of the judgment of Poon J should be read in that light:

‘It is not necessarily the case that the other party to the litigation has a right to apply to set aside a witness summons, although the authorities indicate that in specific instances he may object. It has been recognised that an opposing party in litigation may have a limited interest in setting aside a witness summons or subpoena, namely an interest that the hearing should not be allowed to expand beyond the trial of the issues raised by the pleadings and matters necessarily ancillary thereto. If a general right were recognised in an opposing party to raise objections to the witness summons, this may encourage ancillary litigation. An opposing party may object to the production and admissibility of the documents when the witness summons is complied with in court.’

27. The second caveat we have is about the comment of Poon J at para 6 of his judgment on the possibility of an application being dismissed on the basis of delay alone. Whilst we would not rule out this possibility entirely, one must always bear in mind Order 1A Rule 2(2). As with the exercise of other kinds of discretion, the exercise of case management power must be with reference to the facts and circumstances of the case before the court. There is no place for the application of a mechanical rule that the court will invariably refuse an application simply because a party is guilty of serious delay without any good explanation. The court must conduct an overall balancing exercise.

28.  Further, we need to emphasise this: case management by the court does not mean that the judge will dictate the evidence to be adduced.  Even in the context of family proceedings, our system is still primarily operated on an adversarial basis.  In general, subject to the questions of admissibility and relevance, each party in the proceedings is at liberty to call whatever evidence he or she considers necessary provided that procedural requirements are complied with.  Thus, in respect of an application for leave to issue a subpoena made in good time, the approach of Mortimer V-P should prevail.  However, in respect of a late application, the court will have to examine all the relevant circumstances and the significance of the intended evidence to be adduced is one factor to be taken into account.”

D.  DISCUSSION

16.  With the above in mind, I would now look at the relevant factors which this Court should weigh when conducting its balancing exercise.

D1.  Significance of the new evidence

17.  In the plaintiff’s new claim of undue influence, it is alleged that the Deceased was mentally and emotionally vulnerable due to his advanced age and sharply declining health in 2015.  The plaintiff also alleges, inter alia, that the Deceased was of poor medical condition, and that his cognitive functions had been impaired after his minor stroke on 20 August 2015, which rendered him susceptible or more susceptible to undue influence and coercion by the defendants.

18.  To answer the plaintiff’s claim of undue influence, the defendants would like Professor Lo to testify about the following matters:

(1)  His consultations with the Deceased on 27 and 28 October 2015 (i.e. 1 – 2 days before the making of the 2015 Will), including what information had been conveyed regarding surgical options and risks;

(2)  The Deceased’s responses and questions (if any);

(3)  The events leading up to the surgeries scheduled for 5 November 2015 and 12 November 2015;

(4)  The post-operative consultations;

(5)  His observations of the Deceased’s condition and behaviour during the foregoing periods and occasions, including the Deceased’s ability to understand, process and make decisions in relation to the proposed treatment.

19.  It is undisputed that, when considering the issue of undue influence, one of the legal principles which this Court should bear in mind is that the physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will: Re Edwards [2007] EWHC 1119 (Ch)  at [47].

20.  Viewed in such light, I agree that Professor Lo’s evidence is potentially highly relevant to the issue of undue influence because he was the surgeon who treated the Deceased in 2015.  He was the one who explained the surgery options and risks to the Deceased at a time which was very close to the making of the 2015 Will.  He should therefore be able to tell the Court about the Deceased’s ability to understand the information conveyed at the consultation sessions and his ability to make independent decisions concerning his treatment.  The probative value is further added because Professor Lo is prima facie an independent witness.

D2.  Potential disruption to the trial

21.  It was stated by the defendants’ counsel team that Professor Lo’s evidence should not take up more than an hour of the Court’s time, which is minimal given the trial has been scheduled to last for 25 days (not counting 2 other days reserved for closing submissions).

22.  The plaintiff’s counsel did not dispute about the said estimation.

D3.  Defendants’ explanation of the timing of the application

23.  The plaintiff submitted that the defendants’ conduct in seeking the subpoena falls well short of the standard of due diligence.  Reliance has been placed on the fact that this action has been commenced for over 5 years.  It is also said that the new undue influence claim has not changed the “factual landscape” in such a way as to justify the need for Professor Lo to give evidence.

24.  First of all, I disagree with the plaintiff’s submissions that the new case of undue influence does not change the “factual landscape” of the case.  As the defendants pointed out, the plaintiff’s new allegation of undue influence has extended the issues far beyond the original issues concerning testamentary capacity and knowledge and approval.  As the defendants put it, they engage broader questions of mental fitness, emotional state, capability of making independent judgment and general health condition.

25.  As a result, I am of the view that the present application has to be viewed in light of the fact that the plaintiff’s case of undue influence is only introduced relatively recently.  The deadline for the exchange of witness statements on the new issue of undue influence was eventually extended to 31 July 2025.  The defendants have tried to invite Professor Lo to give a witness statement but in vain.  They therefore applied for the issuance of subpoena on 17 September 2025, which was 8 months before the trial which in turn has been scheduled to commence on 26 May 2026.  While it may be said that the application could have been made earlier, I do not think it can be said that the application was made so late that the Court has to attach heavy weight on this factor.

D4.  Prejudice

26.  The plaintiff has not suggested that she would suffer from any prejudice should the defendants be allowed to subpoena Professor Lo.  This is not surprising, because as the plaintiff’s counsel fairly accepted, there still remains some time before the trial commences in late May 2026. 

27.  On the other hand, I am of the view that the defendants would be seriously prejudiced if the subpoena application is dismissed.  I have already explained above why I hold that Professor Lo’s evidence is potentially highly relevant to the issue of undue influence, particularly when he is an independent witness who has had the opportunity to talk to the Deceased very shortly before the making of the 2015 Will.  His evidence is therefore potentially valuable to the defendants.

D5.  Abuse of process of the court

28.  The plaintiff submitted that this application constitutes a clear abuse of process because this Court has already dismissed the defendants’ application to file Professor Lo’s witness statement in the July 2025 Decision.

29.  With respect, this objection is misconceived.

30.  This is because the Earlier Application was made consequential to the plaintiff’s application for further expert directions.  In fact, as pointed out by Mr Yu SC, Ms Wu and Ms Law, the defendants do not even require leave to adduce Professor Lo’s witness statement (if the defendants managed to get one from him)  for the purpose of adducing evidence which is relevant to the issue of undue influence because they have been given a blanket leave to do so pursuant to the Amendment Order.  Applying for leave to issue subpoena in such circumstances is therefore clearly not an abuse of process.

31.  It should also be pointed out at this juncture that, because the defendants have been granted leave to serve witness statement(s)  on the new issue of undue influence, the learned Master’s reliance on [48(2)] and [48(3)] of the July 2025 Decision (which was expressed in another context)  as the reasons for dismissal of the defendants’ application herein (see [10] above)  is not justified. 

D6.  Overall justice of the matter

32.  Looking at the matter in the round, I am of the view that the potential high relevance of Professor Lo’s evidence would no doubt tilt in favour of the court exercising its discretion in granting the application to issue a subpoena.  After all, it must be borne in mind that the Court shall always recognize that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties: Order 1A rule 2(2)  of the Rules of the High Court (Cap.4A, Laws of Hong Kong).

E.  ORDER

33.  For reasons of the aforesaid, I allow the defendants’ appeal, and make the following orders:

(1)  Paragraph 2 of the learned Master’s order dated 19 November 2025 be set aside;

(2)  The defendants’ application to issue a subpoena to Professor Lo be granted.

F.  COSTS

34.  As proposed by the defendants, I make costs order nisi that the costs of this appeal and of the application below be in the cause.

35.  The above order nisi shall become absolute in the absence of application to vary (which, if any, will be disposed of on paper)  within 14 days hereof.

Mr Charles Sussex SC leading Mr Abel Lam, instructed by Lily Fenn & Partners, for the plaintiff

Mr Benjamin Yu SC leading Ms Teresa Wu and Ms Jacqueline Law, instructed by P C Woo & Co, for the defendants

HCAP 22/2019

[2026] HKCFI 1147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 22 OF 2019

________________________

________________________

________________________

________________________

DECISION

________________________

A.  INTRODUCTION

1.  This Decision deals with the plaintiff’s summons filed on 24 November 2025 (“the Summons”)  by which she seeks to strike out the following parts of the witness statements recently served by the defendants:

(1)  Paragraphs 4 to 22 of the Supplemental Witness Statement of Kuok Hoi Sang dated 30 July 2025 (“Kuok’s Supp WS”);

(2)  Paragraphs 6 to 47 of the Supplemental Witness Statement of Ma Chi Wing dated 29 July 2025 (“Ma’s Supp WS”);

(3)  Paragraphs 5 and 7 to 26 of the Supplemental Witness Statement of Tam Kwok Wing dated 30 July 2025 (“Tam’s Supp WS”);

(4)  Paragraphs 13, 22 to 33 of the Supplemental Witness Statement of Chow Wai Wai Violet dated 29 July 2025 (“D1’s Supp WS”); and

(5)  Paragraphs 9 to 18, 23 to 25 and 35 to 42 of the Supplemental Witness Statement of Chow Vi Vi dated 29 July 2025 (“D2’s Supp WS”).

2.  These witness statements were served pursuant to the decision of this Court dated 30 October 2024 (“the Amendment Decision”, or “the Amendment Order”, as the case may be), under which, among other things, the plaintiff was granted leave to further amend her Re-Re-Amended Statement of Claim for the purpose of introducing a new plea of undue influence in her challenge of the Deceased’s Will dated 29 October 2015.  Consequential to the granting of such leave, this Court further ordered on the same occasion that:

“Parties shall exchange their respective witness statements covering matters relating to the amendments only […]”[1]

(emphasis added)

3.  The plaintiff submits that the aforementioned parts of the further witness statements served by the defendants should be struck out on the grounds that they:

“[…] go beyond the scope of Paragraph 3(c)  of [the Amendment Order], or they are irrelevant or otherwise scandalous or oppressive”[2]

B.  LEGAL PRINCIPLES

4.  The approach which this Court should follow in this application has been set out by Keith Yeung J in his Decision dated 22 March 2024 given in the present probate action ([2024] HKCFI 887)  (“the K Yeung J’s Decision”):

“44. […]

(a)  The first step is to identify what facts and imputation the Disputed Paragraphs concerned seek to establish and support;

(b)  Then, with the pleaded issues in mind, consider whether those identified facts and imputations are relevant to any primary issues;

(c)  If yes, the evidence may be admitted;

(d)  If not, than bearing in mind the “cardinal test of relevance”, whether the identified facts and imputations are relevant to the collateral issue of credibility, veracity, reliability or objectivity:

(i)  The question is whether the identified facts and imputations materially bear upon the collateral issue;

(ii)  If not, the evidence should not be admitted;

(iii)  But as relevance in this context is a matter of degree, cases are not always clear cut. Hence other than in clear cut cases, considerations will be given as to whether any probative weight of the identified facts and imputations is insufficient to justify the complexity that they will add to the trial, bearing in mind at all times in particular (hence not exhaustive)  the Underlying Objectives, the need to confine the ambit of a trial within proper limits so as to ensure that the trial is focused on the primary issues, the notion of fairness to both the parties and the witness, procedural economy and cost-effectiveness;

(e)  Evidence at this stage is only expunged in clear cases upon the application of the above.”

C.  DISCUSSION

C1.  General observations

5.  Before I go into the disputed parts of the witness statements, I would like to make the following general observations.

6.  Firstly, as submitted on behalf of the plaintiff, when considering the claim of undue influence in the present context, one of the legal principles which this Court should bear in mind is that the physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will:Re Edwards [2007] EWHC 1119 (Ch)  at [47].

7.  Secondly, the plaintiff has drawn this Court’s attention to the K Yeung J’s Decision, particularly to the defendants’ stance at the time that certain parts of the plaintiff’s Supplemental Witness Statement were irrelevant, and K Yeung J’s acceptance of such an argument. Insofar as it is the plaintiff’s submissions that the defendants’ stance has changed and that K Yeung J’s view should be followed, such submissions are rejected. This is because the relevant issues as defined by the pleadings at the time of the K Yeung J’s Decision have been expanded be virtue of the plaintiff’s introduction of a new case of undue influence.  For the present purpose, the question of “relevance” must be considered by reference to the pleaded case of the parties as of now, rather than as of 2024.

8.  For the same reason, the comments made by K Yeung J on relevance of certain evidence should also be viewed with the above context in mind.

9.  In other words, insofar as the reasoning in the K Yeung J’s Decision is relied on as directly applicable herein, the Court has to bear in mind the circumstances under which his Lordship reached his conclusion.

10.  Thirdly, in the course of the plaintiff’s argument, this Court was referred to the Amendment Decision, in which this Court expressed doubt as to:

“whether the defendants would be required to adduce a great deal of evidence consequential to the introduction of the new claim of undue influence, since many of the events relied on by the plaintiff have already been dealt with by the existing witness statements and affirmations.”[3]

11.  It goes without saying that that was only an initial assessment which in no way pre-judged any matter.  It is thus futile for the plaintiff to rely on this statement for the purpose of supporting her arguments herein.

12.  Fourthly, the plaintiff submitted that she would be greatly prejudiced if the defendants are allowed to introduce the disputed witness statements at such a late stage without an opportunity to respond.  It was further said that, because of the additional evidence, the time required to complete the trial would have to be extended, and may even render the trial part-heard.  With greatest respect, I am of the view that the plaintiff is simply not entitled to complain at all, for it was she herself who very belatedly introduced the new claim of undue influence.  The defendants were on the other hand in a passive position.  Indeed, they had objected against the plaintiff’s amendment application, just that they were unsuccessful in doing so.  But once leave has been granted for the plaintiff to rely on the new ground of undue influence, the defendants should be allowed to adduce evidence in their defence of the claim pursuant to the Amendment Order, so long as such evidence is relevant. 

13.  It should also be reiterated that “relevance” is the only criteria in the present application.  It is thus unhelpful for the plaintiff to emphasize that the defendants have adduced supplemental witness statement “totalling 222 paragraphs straddling some 70 pages”.

14.  I now turn to consider the disputed parts of the defendants’ newly served witness statements.

C2.  Kuok’s Supp WS

C2.1  Paragraphs 4 – 9

15.  These paragraphs have been put under the sub-heading “Dr Chow’s Physical and Mental Fitness in 2015”.

16.  In gist, by virtue of these paragraphs, Kuok gives evidence on the Deceased’s having displayed no sign of vulnerability at the material time.  To the contrary, it is said therein that his condition in 2015 was still so good that he had been actively engaged in high-level decisions.

17.  It has been submitted on behalf of the plaintiff that:

“40. In none of the paragraphs covered by Kuok Supp WS, Ma Supp WS, and Tam Supp WS do they show that there are new factual matters relevant to the plea of undue influence being introduced.

(1)  In the case of Kuok Supp WS, the key evidence includes ‘mental sharpness’, ‘mental clarity’, ‘full knowledge and understanding’, ‘informed decisions, and ‘showing no signs of cognitive decline or emotional fragility’.

(2)  […]

(3)  […]

41.  Based on the above, not only is this personal opinion evidence for which there is already existing expert medical evidence, these are matters clearly relevant to and directed at the issue of physical and mental fitness of the Deceased rather than the alternative case of undue influence. There is no independent relevance and there is no explanation why this information is not covered in earlier witness statements. Allowing this evidence to remain only serves to obfuscate the main issues at trial, and permits Ds to fill in the gaps in their evidence.”

18.  Paragraph 61B of the Re-Re-Re-Amended Statement of Claim which is one of the newly added paragraphs in support of the undue influence claim pleaded that:

“The Deceased was mentally and emotionally vulnerable due to his advanced age and sharply declining health in 2015. The Plaintiff relies upon the poor medical condition and state of the Deceased, including his capacity being impaired including the minor stroke on 20 August 2015 and depression in 2015, which impaired his cognitive functions by rendering him susceptible, if not more susceptible, and subject to undue influence and coercion by the 1^st and 2^nd Defendants. The Plaintiff refers to §34 of Dr. Helen Chiu’s Report dated 25 August 2023.”

19.  In my view, paragraphs 4 – 9 of Kuok’s Supp WS clearly cover “matters relating to the amendments” as they serve to negate the plaintiff’s case that the Deceased was mentally and emotionally vulnerable and had had a sharply declining health in 2015 and that his capacity and cognitive functions had been impaired.  Those matters are also undoubtedly relevant because they are related to the Deceased’s physical and mental strength at the material time, which are relevant factors in determining how much pressure is necessary in order to overbear the 2015 Will:Re Edwards: See [6] above. 

20.  The plaintiff argued that since the state of the Deceased’s intellect, comprehension, cognition and mental agility in 2015 is not a fact which is directly provable but can only be inferred from other facts, those other primary facts must be pleaded.  It was also said that the evidence in question is precisely part of those matters which must be pleaded. With respect, I disagree.  In my view, the subject parts of Kuok’s Supp WS are evidence which are introduced in support of the defendants’ plea that the Deceased had been both active and mentally fit and capable at work and in his personal matters in 2015 (this is pleaded in paragraph 86I(2)  of their Re-Re-Re-Amended Defence to Counterclaim), and those matters, being evidence, need not be pleaded.

21.  The plaintiff also submitted that part of the evidence newly introduced by the defendants are also relevant to the long-standing issue of testamentary capacity, which, it was said, should have been included in the previous witness statement, and therefore the defendants should not be allowed to make use of this opportunity to bolster their case on mental capacity. 

22.  This argument can be dealt with quickly by reference to the Amendment Order, which allows parties to put in further evidence so long as they are relevant to the issue of undue influence.  In other words, “relevance” is the only criteria.  There is nothing in the Amendment Order which stipulates that the new evidence must be relevant to the issue of undue influence exclusively.

23.  Insofar as it is the plaintiff’s submissions that it is not open to non-medical experts to give evidence on what they perceive to be the condition of a testator at the material time, such submissions are not understood, for it is trite that such evidence is admissible.  See for example Chiu Man Fu & Others v Chiu Chung Kwan Ying(HCAP 9/2005, unreported, 31 January 2012), in which Poon J (as Poon CJHC then was)  received and accepted evidence from family members of the testator on the testator’s mental conditions and whether there was any impairment of mind: at [99 – 101], [121], [123] and [128] thereof.

24.  Moreover, as pointed out by the defendants’ counsel, the evidence contained in paragraphs 4 – 9 of Kwok’s Supp WS is clearly admissible pursuant to section 58(2)  of the Evidence Ordinance (Cap.8, Laws of Hong Kong), which provides that:

“(1)  […]

(2)  Where a person is called as a witness in any civil proceedings a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.

(3)  In this section, relevant matter (有關聯的事宜)  includes an issue in the proceedings in question.”

25.  For the above reasons, paragraphs 4 – 9 of Kuok’s Supp WS should be allowed to remain.

C2.2  Paragraphs 10 – 21

26.  In these paragraphs. Kuok specifically refers to the Galaxy Macau project and Chevalier’s fresh produce business in Australia in 2015 so as to demonstrate the Deceased’s responsiveness and soundness in decision-making and active involvement in Chevalier Group’s affairs.

27.  The plaintiff’s primary complaint in relation to these paragraphs is that these are unpleaded matters and therefore the defendants should not be allowed to rely on them at the trial.

28.  As explained in the preceding section, with respect, this complaint has no merit at all.  Quite apart from the fact that the defendants’ witness is dealing with the plaintiff’s pleaded case that the Deceased’s health has sharply declined in 2015, the defendants have actually pleaded in paragraph 86I(2)  of their Re-Re-Re-Amended Defence to Counterclaim that the Deceased has been both active and mentally fit and capable at work and in his personal matters in 2015.  This paragraph was added in defence to the plaintiff’s claim of undue influence.  The matters relating to the Galaxy Macau project and Chevalier’s fresh produce business in Australia, in my view, are clearly evidence in support of the said plea, and evidence is not required to be pleaded.

29.  Mr Sussex SC and Mr Lam then relied on K Yeung J’s comments that since the present action is not a corporate action, to delve into matters concerning the Chevalier Group is too far from the probate action. 

30.  However, one has to read K Yeung J’s comments in the right context.  In the appeal before his Lordship, the question which had to be resolved was whether the plaintiff should be allowed to mention, among other things, the followings in her supplemental witness statement:

(1)  “Ma has received substantial increments in his salary (of 2.53 folds from 2015 to 2022), which was the result of Mr Kuok’s proposal to the Remuneration Committee”[4];

(2)  “For some causes which defied reasoning, since 2015, the work of Mr. Ma seemed to be particularly impressive to Mr. Kuok.  It is unwarranted and totally disproportionate to Mr. Ma’s poor and disappointing performance at Chevalier since 2015.”  She gave the “Senior Housing Project” as an example of “disappointing performance”[5];

(3)  Ma’s request for and Kuok’s approval of payment of Ma’s entrance fee into the Hong Kong Jockey Club be borne by Chevalier[6];

(4)  Personal benefits to Ma with the approval of Kuok disproportionate to Ma’s competence and performance[7].

31.  His Lordship had the following to say:

“49. In his submissions, Mr Chan [for the plaintiff] points out that Ma and Kuok are put forward as independent witnesses. He submits that the paragraphs in this group raise ‘a very important and relevant matter which will require resolution by the trial judge’. He submits that ‘the issue raised is obvious and relevant: Ma had received corporate benefits and substantial salary increments in spite of his work performance at Chevalier. The substantial increment was approved by the Remuneration Committee in response to Kuok’s proposal. Whilst whether this was part of a quid pro quo arrangement or otherwise are matters which P is entitled to raise and ought to be allowed to speak to these factual matters within her knowledge.’ He submits that those factual allegations “are evidently relevant to Ma’s credibility and objectivity”, that the ‘Supp WS in this regard lays down the factual basis for P to raise issues on the credibility and reliability of their evidence’, and that the ‘matters raised in the Disputed Paragraphs provide the factual foundation for P to mount a challenge in cross-examination as to their credit and independence.’ He submits that Ma’s evidence was relied upon by P’s medical expert. He submits further that those paragraphs provide context to §309.

50.  Ms Wu submits that those paragraphs are not relevant to the ‘real issue in dispute, viz the validity of the [Disputed] 2015 Will’, and that they are also irrelevant ‘even regarding the credibility of Ma on the health and condition of the Deceased.’

51.  This is not a corporate action.  The disagreements are not corporate disputes.  The primary issue raised by P is the validity of the Disputed 2009 Will and the Disputed 2015 Will, the latter of which turns on Father’s mental capacity, his knowledge and approval of its terms, and his animus testandi.  Ds’ Counterclaim raises the additional primary issues as to whether P should be passed over.

52.  Clearly, the factual allegations in this group of Dispute Paragraphs are not relevant to any of the primary issues.

53.  In my view, the allegations are not relevant to the collateral issue of credibility, veracity, reliability or objectivity of Ma or Kuok […]”

(emphasis added)

32.  It can therefore be seen that what the plaintiff was trying to adduce back then was evidence which she said would be relevant to a collateral issue of the present case, namely, Ma’s credibility and objectivity.

33.  However, in the present application, what the defendants would like to adduce is evidence on a primary issue, namely, the mental state and vulnerability of the Deceased at the material time.

34.  It is thus futile to refer to K Yeung J’s reasoning which was given in a totally different situation.

35.  The plaintiff further submitted that she would be prejudiced if these paragraphs may remain because she is denied an opportunity to respond to such content.  It was said that in order to properly address the matter, she needs to put together significant listed company materials to isolate and explain the role (if any)  played by the Deceased in the project.

36.  I do not accept the plaintiff’s submissions.  As explained, the prejudice, if any, was caused by the plaintiff’s own delay in seeking to introduce a new claim of undue influence.  She only has herself to blame.  The alleged prejudice (if any)  should not debar the defendants from adducing relevant evidence in countering the plaintiff’s new claim.

C2.3  Paragraph 22

37.  In the plaintiff’s Supplemental Witness Statement, which was filed on 18 July 2023[8], she mentioned about 2 cheques of HK$1.5 million each which were drawn in favour of Kuok paid out of an account of the Deceased. 

38.  In response, Kuok explains in paragraph 22 of Kuok’s Supp WS the reason why those cheques were issued.  The defendants submitted that this paragraph is relevant and probative to the collateral issue of his credibility, objectivity, independence and reliability, and that such an issue was first raised by the plaintiff and one that continues to form part of her undue influence case.

39.  I am unable to accept the defendants’ submissions in this regard.  In my view, the effect of the Amendment Order is clear. Parties have only been allowed to put in further supplemental witness statements which cover matters which are directly relevant to the plaintiff’s case of undue influence.  It is not enough to say that the further evidence is relevant on the collateral issue of credibility, objectivity, independence and reliability.

40.  I would therefore strike out paragraph 22 of Kuok’s Supp WS.

C3.  Ma’s Supp WS

C3.1  Paragraphs 6 – 9

41.  In these paragraphs, Ma claims that he has not teamed up with Kuok and Tam against the plaintiff, whether in this action or in the Board. He claims his evidence is not misleading as alleged, nor is it lacking in credibility or objectivity, nor has it been influenced by personal interests or benefits. He further confirms that he did not collaborate with Kuok or Tam to pursue any hidden agenda. 

42.  To answer the plaintiff’s evidence in her Supplemental Witness Statement that Kuok, along with Ma and Tam, had suggested her to withdraw her application for the appointment of Administrators Pendente Lite, Ma further explains in paragraph 9 of Ma’s Supp WS that the said request for withdrawal was not driven by any ulterior motive, and that he did not collaborate with Kuok or Tam to pursue any hidden agenda.  Rather, it was a business decision made in good faith, based on legitimate concerns about safeguarding investor confidence and protecting the Chevalier Group from unnecessary disruption.

43.  The plaintiff submitted that such evidence is wholly unrelated to undue influence and therefore should not have been included.

44.  In principle, I agree with the plaintiff.  As explained in Section C2.3 above, matters covering collateral issue rather than the primary issue of undue influence are not covered by the Amendment Order.

45.  However, I note that in paragraph 7 of Ma’s Supp WS, he states that:

“As set out in my First Witness Statement, in the period before Dr Chow’s stroke in January 2016, I met with him regularly and frequently in both official and unofficial settings and contexts. These meetings and interactions formed a routine part of our business practice and took place consistently, except when Dr Chow was away on travel […]”

46.  In my view, the above part of paragraph 7 of Ma’s Supp WS is relevant to the matters which Ma would further explain under paragraphs 10 – 24 thereof which concerns his observation on the Deceased’s mental capacity and involvement in the business.  Therefore, such a part should be allowed to remain.

47.  I therefore order to strike out paragraphs 6, 7 (last sentence only), 8 and 9 of Ma’s Supp WS.

C3.2  Paragraphs 10 – 24 and 27 – 47

48.  In these paragraphs, Ma says, in gist, that the Deceased had consistently demonstrated sound judgment and effective leadership resulting in Chevalier’s good financial results in 2014 – 2016, and that the Deceased did not exhibit signs of frailty or mental incapacity during Board meetings in 2015.  Ma also refers to a number of business projects including 3 senior housing projects in the United States, business relating to the Café Deco Group, the fresh produce supply business in Australia, the sale of Chevalier Engineering Service Centre, and business in Chengdu, in an attempt to prove that the Deceased demonstrated sharp judgement and decisive leadership in key investment decisions, actively fulfilling his duties as Chairman with full mental acuity and hands-on involvement.

49.  For the reasons set out in Section C2.2 above, the plaintiff’s submissions that these matters are not pleaded and that she would be prejudiced if the subject evidence is allowed to be adduced are rejected.

50.  In relation to the 3 senior housing projects in the United States, the plaintiff further submits that matters relating thereto have been held by K Yeung J to be matters which are wholly irrelevant to the probate action.  As explained in Section C1 above, such a submission is misconceived, because “relevance” should be considered in light of the current state of the pleadings. 

C3.3  Paragraphs 25 – 26

51.  These paragraphs have been put under the sub-heading “Dr Chow’s cognitive function in 2015”.  By these paragraphs, Ma gives evidence that he observed no signs of the Deceased’s health sharply declining, or his cognitive functions being impaired. It is also said that the Deceased exhibited no symptoms of depression or any signs of being mentally and emotionally vulnerable.  He concludes that there was nothing to suggest that he had become mentally or emotionally vulnerable. He has also given examples which, he says, demonstrate the Deceased’s strategic involvement in the Chevalier Group’s business and activities in 2014 and 2015.

52.  I have already explained why the plaintiff’s grounds of objection in relation to evidence of the same nature should be rejected in Section C2.1 above.  The same reasoning should apply.

53.  These paragraphs should therefore be allowed to remain.

C4.  Tam’s Supp WS

C4.1  Paragraphs 5 and 14 – 17

54.  By these paragraphs, Tam gives evidence that there was no sharp or rapid deterioration in the Deceased’s mental capacity at the material time as alleged, nor any indication that his capacity was impaired.  He states that he sees no basis to question the Deceased’s mental health or cognitive functions.

55.  Similar grounds of objection raised by the plaintiff have been rejected by reasons of explanations given in Section C2.1 above.  The same reasoning should apply.

56.  These paragraphs should therefore be allowed to remain.

C4.2  Paragraphs 7 – 13 and 18 – 25

57.  In these paragraphs, Tam refers to his experience with the Deceased in Board meetings, official functions and public events, in an attempt to show that the Deceased was not “mentally and emotionally vulnerable” at the material time.  He also highlights the Deceased’s duties as an Honorary Consul, so as to demonstrate his “full mental engagement”, “sound mental capacity and professional competence”, and “mental sharpness”.

58.  The plaintiff’s complaints in this regard have been dealt with in Section C2.2 above.  For the same reasons, the plaintiff’s submissions that these paragraphs should be struck out are rejected.

C4.3  Paragraph 26

59.  The content of paragraph 26 is similar to those contained in paragraphs 8 and 9 of Ma’s Supp WS.  For reasons which I have already explained in Section C3.1 above, this paragraph should be struck out.

C5.  D1’s Supp WS

60.  The plaintiff seeks to strike out paragraphs 13 and 22 to 33 of D1’s Supp WS.

61.  Paragraph 13 of D1’s Supp WS refers to the Deceased’s handwritten note dated 26 April 2015 (“the Handwritten Note”)  by which he expressed his intention to gift properties and/or cash to his children.

62.  Paragraphs 22 to 33 thereof contain evidence on:

(1)  the Deceased’s alleged active life (including his attendance to business, community and public duties and frequent travelling)  during 2015;

(2)  Dr Lo Chung Mau’s interaction with the Deceased in October – November 2015.

63.  The plaintiff submitted that:

(1)  D1 is not entitled to rely on the Handwritten Note because it was not pleaded;

(2)  Evidence in paragraphs 22 to 33 (such as “no signs of cognitive decline, emotional vulnerability, or depression”)  is related to mental capacity rather than undue influence;

(3)  Insofar as the evidence on Dr Lo is concerned, it is irrelevant to the case on undue influence.

64.  With respect, I disagree with the plaintiff.  In my view, the above evidence is plainly relevant as to the Deceased’s alleged vulnerability and susceptibility to undue influence, and the defendants are clearly entitled to adduce such evidence to meet the plaintiff’s case of undue influence, as permitted by the Amendment Order.

65.  Further, I disagree with the plaintiff that the defendants should have pleaded the Handwritten Note in the Re-Re-Re-Amended Defence and Counterclaim.  In the circumstances of the present case, I do not think it is a material fact which has to be pleaded.  It is just a piece of evidence in support of the defendants’ case that the Deceased had been mentally fit and capable in his personal matters in 2015[9].

C6.  D2’s Supp WS

66.  The plaintiff seeks to strike out paragraphs 9 to 18, 23 to 25 and 35 to 42 of D2’s Supp WS.

67.  As a matter of convenience, paragraph 25 of D2’s Supp WS would be considered first.  It reads:

“Lily’s current allegations of undue influence are unsubstantiated, as are other aspects of her evidence. For instance, she inaccurately attributes Mother with a role in Chevalier’s Toshiba dealership, alleging ties to senior executive at Japan’s Toshiba and Hitachi, claims for which no supporting evidence have been provided and do not exist. Furthermore, she has repeatedly challenged matters that are not reasonably in dispute, including the authenticity of Father’s handwriting and signature on corporate, formal and personal documents, including credit card slips for medical consultations with Dr. Middleton (such as items 142, 144, 145-150, 151-159, 160, 161, 162-164, 165-167, 168 in the Defendants’ List of Documents). She has notably gone so far as to dispute a photograph of Father taken in Taipei alongside deathbed of his friend from the Taiwanese Air Force who was obviously sick and in fact did pass away shortly after that photos were taken as disclosed as items 102 and 103 in the Defendant’s Supplemental List of Documents.”

68.  It was submitted on behalf of the plaintiff that this paragraph is entirely irrelevant to the issue of undue influence, but is simply argumentative.

69.  I agree with the plaintiff.  This paragraph does not relate to the defendants’ case on undue influence at all, but the plaintiff’s litigation conduct generally.  It should therefore be struck out.

70.  As for the other paragraphs of D2’s Supp WS, the plaintiff submitted that they are mere repetition of content already spoken to in D2’s witness statement, and do not contain any new information specifically relevant to undue influence.

71.  I do not agree with the plaintiff’s observation.  While parts of the contents are indeed repetitive of D2’s previous witness statement, I would not go as far as to say that the new witness statement “[does] not contain any new information specifically relevant to undue influence”.  More importantly, it seems to me that they are relevant to the issue of undue influence because they set out the alleged active life of the Deceased at the material time and his alleged ability to make independent judgement.  The evidence is also relevant to the question of whether the Deceased had had sharply declining health and impairment of cognitive function which rendered him susceptible to undue influence in 2015 as alleged by the plaintiff.

72.  I therefore do not think that any other part of D2’s Supp WS should be struck out.

C7.  Striking-out vs further witness statement 

73.  At the hearing, both senior counsel have made submissions on what the appropriate order should be in the event this court upholds the plaintiff’s challenges – whether the subject evidence should simply be struck out or whether the plaintiff should be given an opportunity to respond.

74.  Mr Sussex SC submitted that, in the face of the trial that is so close, the appropriate order should be a striking-out order.  Apparently, Mr Sussex SC appreciated, quite rightly, that it would not be appropriate to introduce new evidence at this very late stage.

75.  Mr Yu SC agreed.  He also pointed out that, apart from the fact that the plaintiff has not sought leave in the Summons to serve further witness statement(s), it is the norm that the Court would only consider granting leave for a party to serve supplemental witness statement(s)  if the application for leave is accompanied with the relevant draft witness statement(s), and there is none here.

76.  I agree with both senior counsel.

D.  ORDER

77.  For reasons of the aforesaid, I order that the following paragraphs be struck out:

(1)  Paragraph 22 of Kuok’s Supp WS;

(2)  Paragraphs 6, 7 (last sentence only), 8 and 9 of Ma’s Supp WS;

(3)  Paragraph 26 of Tam’s Supp WS; and

(4)  Paragraph 25 of D2’s Supp WS.

78.  I also grant leave for the defendants to file and serve revised witness statements accordingly on or before 16 March 2026.

E.  COSTS

79.  Having taken into account the defendants’ success in defending most of the paragraphs in the new witness statements which have been challenged by the plaintiff, and also bearing in mind the categorisation of the arguments made, I make a costs order nisi that the plaintiff shall bear 75% of the defendants’ costs of the Summons, with certificate for two counsel. 

80.  The defendants’ costs shall be summarily assessed in lieu of taxation.  Unless any application for variation of the aforesaid costs order nisi is made within time, the defendants shall lodge and serve their statement of costs within 7 days after the expiry of the 14-day period referred to in the following paragraph.  The plaintiff shall lodge and serve her statement of objection within 7 days thereafter.  Summary assessment of the defendants’ costs will be conducted on paper (no matter whether any statement of objection is lodged by the plaintiff within time)  thereafter.  The costs assessed shall be paid by the plaintiff within 14 days after assessment.

81.  The above order nisi shall become absolute in the absence of application to vary (which, if any, will be disposed of on paper)  within 14 days hereof.

Mr Charles Sussex SC leading Mr Abel Lam, instructed by Lily Fenn & Partners, for the plaintiff

Mr Benjamin Yu SC leading Ms Teresa Wu and Ms Jacqueline Law, instructed by P C Woo & Co, for the defendants

HCAP 22/2019

[2025] HKCFI 4898

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 22 OF 2019

_________________

_________________

_______________

DECISION

________________

INTRODUCTION

1.  By a Decision dated 11 July 2025 (“the Decision”)[1], this Court, inter alia, dismissed the plaintiff’s Expert Summon (“the Order”).

2.  By summons filed on 25 July 2025 (“the Leave Summons”), the plaintiff applied for leave to appeal against the Order.

THE APPLICABLE LEGAL PRINCIPLES

3.  The requirement for granting leave to appeal is set out in section 14AA(4) of the High Court Ordinance (Cap 4, Laws of Hong Kong). It is trite that leave to appeal shall not be granted unless the court is satisfied that the intended appeal has a reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard.

4.  It is also well established that a reasonable prospect of success means an appeal with prospects that are more than fanciful without having to be probable (SMSE v KL [2009] 4 HKLRD 125 at [17]).

5.  In the case where the intended appeal is made against a case management decision of the court, what Kwan JA (as she then was) stated in Mimi Kar Kee Wong Hung v Severn Villa Ltd & Others [2012] 1 HKLRD 887 at [31] is instructive:

“[…] Case management decisions are only subject to appeal in rare circumstances. The appellant faces a ‘very high hurdle’ and must show that the judge ‘has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task’, or if the judge ‘erred in principle or the order was irrational having regard to the issues that had to be resolved’. It need hardly be emphasised that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible.”

6.  In Li Xiao Yun & Another v China Gas Holdings Limited (CACV 38/2013, unreported, 11 March 2013), Lam JA (as he then was) further explained at [19] that:

“To justify an interference with the Judge’s case management discretion, it is not enough that members of the appellate court may make a different decision had they been the primary judge who exercised the discretion. […]”

7.  Paragraph 38 of Practice Direction 5.2 also provides that:

“The parties should note that case management decisions are matters within the discretion of the master or the judge making that decision and are generally not susceptible to appeals.”

THE GROUNDS OF APPEAL

8.  The plaintiff’s grounds of appeal may be summarised as follows:

(1)  This Court had failed to give proper regard to:

(a)  the important probative value of Dr Ho’s Report, without which the plaintiff would be seriously prejudiced;

(b)  the fact that neither party suggested that the trial could not be effective on the fixed dates;

(c)  the defendants had withdrawn their objection to the admission of Dr Ho’s Report;

(d)  these were not straightforward adversarial but probate proceedings.

(2)  This Court had failed to weigh the probative value of Dr Ho’s Report against the other factors.

(3)  The Court’s proposal that a shortened version of Dr Ho’s Report (without reference to the witness statements) (“the Shortened Version of Dr Ho’s Report”) be admitted is inappropriate.

(4)  There was no basis for the Court to hold that the probative value of the Shortened Version of Dr Ho’s Report is questionable.

(5)  This Court wrongly held that the plaintiff should have made an application for relief from sanctions.

(6)  This Court had placed unjustified reliance on concerns as to whether the trial could be completed in time.

(7)  This Court had placed unjustified and disproportionate weight on the alleged delay on the part of the plaintiff.

DISCUSSION

9.  At the outset, it should be pointed out that this is a case in which the plaintiff is trying to ask the Court of Appeal to interfere with this Court’s exercise of its case management power, which the appellate court would not do unless it can be shown that this Court has, inter alia, gone clearly wrong or erred in principle. However, it can be seen that, generally speaking, the plaintiff’s current complaints are that this Court has not given sufficient weight to certain factors, whilst at the same time given too much weight on other factors. The plaintiff is not contending that this Court has taken irrelevant matters into account, nor that it has not taken relevant matters into account. In these circumstances, the intended appeal clearly does not have any reasonable prospect of success, and therefore leave to appeal should not be granted.

10.  I will further deal with the plaintiff’s individual complaints in turn below.

Probative value of Dr Ho’s Report

11.  The plaintiff has emphasised in her written submissions that this Court has lost sight of the “important probative value” of Dr Ho’s Report, and that the plaintiff would be prejudiced by the Court’s refusal to grant leave to adduce such expert evidence.

12.  It is unclear as to the plaintiff’s basis for alleging that the Court has “lost sight” of the probative value of Dr Ho’s Report. It appears that such a point was made purely because her application for leave to adduce such a report was refused.

13.  In fact, it was because of this Court’s awareness of the probative value of Dr Ho’s Report that it was thought fit to specifically refer to the primary aim in exercising the powers of the Court, namely, to secure the just resolution of disputes in accordance with the substantive rights of the parties (Order 1A rule 2(2) of the Rules of the High Court (Cap.4A, Laws of Hong Kong) (“RHC”)), at [40] of the Decision.

14.  Moreover, it had been expressly mentioned in the Decision that the aforesaid primary aim had to be balanced against the underlying objectives.

15.  Furthermore, it is not enough for the plaintiff to say that she would be prejudiced, which was brought about by her way in conducting the case.

The trial dates

16.  It was submitted on behalf of the plaintiff that:

“Further, the Judge was equally wrong to speculate that there is a great risk of the trial over-running (§39(2) of the Decision) by disregarding P’s confirmation through counsel that the trial would not over-run and would complete within the allotted time. The reason for [P’s confirmation through counsel that the trial would not over-run] was P’s intention to substitute her handwriting expert Ms Ellen Radley with Dr Ho, so as to ensure that the trial would complete within the allotted time. P at all times retains conduct of the trial and is at liberty to call and not call certain witnesses, and the confirmation was given in light of this.”[2]

(emphasis added)

17.  With greatest respect, the allegation that this court had “speculated” that there is a great risk of the trial over-running is clearly without basis. The risk is apparently a very real one as explained in [39(2)] of the Decision. For the sake of completeness, I should also mention that the worry about not being able to complete the trial within the scheduled period if further witness(es) were to be called was already raised at [17] of the Decision on the plaintiff’s Undue Influence Amendment Summons ([2024] HKCFI 3027).

18.  Furthermore, I do not think it can be said that the plaintiff had “confirmed through counsel” that the trial would not over-run. All that the plaintiff’s counsel had said at the hearing was that the plaintiff “remained optimistic” that the evidence could be completed within 25 days.

19.  Even if counsel’s optimism can be described as a “confirmation”, this Court would of course have to assess the weight to be attached to such a “confirmation”, which the Court was not bound to accept. This apparently is something which is within this Court’s discretion to decide.

20.  It should also be noted that it is now said that the so-called “confirmation” was given upon the plaintiff’s alleged intention to substitute her handwriting expert Ms Ellen Radley with Dr Ho. However, with greatest respect, 2 important points must be highlighted here:

(1)  While the plaintiff’s counsel did mention at the hearing about not calling handwriting experts at the trial, that was done so upon his misunderstanding of Mr Yu’s submission. At the hearing, Mr Yu submitted that, in case the trial over-runs, then the handwriting experts might be “shelved” and called to give oral evidence later (in the second truncated part of the trial). Mr Yu had never said that he thought the handwriting experts need not be called[3]. It was upon such misunderstanding on the part of the plaintiff’s counsel that he said this (not calling the handwriting experts) was something which parties could further explore. In other words:

(a)  the “suggestion” of not calling the handwriting experts was actually not made by the plaintiff’s counsel in the first place;

(b)  it is an overstatement to say that the plaintiff had the intention at the time of the hearing not to call her handwriting expert at the trial;

(2)  Further, it was expressly confirmed by the plaintiff’s counsel at the hearing that there was no commitment on the part of the plaintiff not to call her handwriting expert at the trial.

21.  Hence, with greatest respect, it is quite unreasonable for the plaintiff to allege that the Court had “disregarded” the plaintiff’s “confirmation” in such circumstances.

22.  The plaintiff reiterated that she had the right to call or not to call certain witnesses. This is of course true. However, in my view, this Court would have failed in its duty for proactive case management if it had simply left the matter to be handled by the plaintiff’s legal team without proper assurance (which, in the present circumstances, means the express representation as to how the plaintiff would conduct the trial, for example, not to call certain witness(es)).

23.  The plaintiff, in her draft Notice of Appeal, went further and suggested in Ground 5b that:

“[…] In failing to enquire the reason for the confirmation, the Judge failed to have regard to the fact that the Plaintiff retains conduct of the trial and is at liberty to call (and not call) certain witnesses. Had he enquired, the Judge would have appreciated that the Plaintiff intends to substitute her handwriting expert Ms Ellen Radley with Dr Ho, so as to ensure that the trial would not over-run.”

(emphasis is mine)

24.  It is unclear why this Court is said to have a “duty to enquire”. The plaintiff has engaged counsel and it is counsel’s duty to make all the relevant points in support of the plaintiff’s application and to address the Court’s concern.

25.  The plaintiff also submitted that the Court had placed unjustified reliance on concerns as to whether the trial could be completed within time. This Court had already explained why it is important to finish the trial within the scheduled period. Indeed, it is not alleged by the plaintiff that the Court needs not take this matter into consideration. Therefore, this complaint is without merits.

The consensus between the parties

26.  The plaintiff accepted that this Court was not bound by the consensus of the parties regarding expert directions[4].

27.  That being the case, it is not apparent what the plaintiff’s complaint in this regard is about. The Court has duty to manage cases actively (Order 1A rule 4 of the RHC).

The Shortened Version of Dr Ho’s Report

28.  The plaintiff submitted that:

“The judge had originally been minded (§39 of the Decision) to admit [Dr Ho’s Report] without permitting reference to witness evidence. That was, with respect, entirely inappropriate because to the extent that Dr Ho needed to refer to witness evidence in order to form his opinions, it was entirely appropriate for him to do so and it did not involve ‘a second bite of the cherry’.”[5]

29.  It is not understood (and the plaintiff did not explain) why giving her another chance to adduce an expert report and comment on the Deceased’s condition by referring to the witness statements does not amount to “a second bite of the cherry”, given Professor Chiu (the plaintiff’s own expert) has already done so.

30.  It is also difficult to understand why, in principle, it is inappropriate to limit Dr Ho’s evidence to the Shortened Version of Dr Ho’s Report, given Professor Chiu’s limitation was only her lack of expertise in the comparison of MRI images of the Deceased’s brain. It must be borne in mind that it was confirmed by the plaintiff’s counsel at the hearing the only basis upon which another application for expert directions was made was the lack of expertise on the part of Professor Chiu to compare the MRI scan images.

31.  In any event, this discussion is academic, given this Court’s subsequent conclusion that even the Shortened Version of Dr Ho’s Report should not be admitted.

32.  In this regard, it was submitted by the plaintiff that the Court had no basis to conclude that the probative value of such a shorter report is questionable. However, this conclusion was reached upon the frank admission on the part of the plaintiff’s counsel that he could not be sure whether it is feasible for Dr Ho to give his opinion purely on the basis of MRI images without references to the clinical evidence. Insofar as it is alleged that it is unfair for the Court to raise such a question with the plaintiff’s counsel at the hearing, such a submission is rejected. If counsel was of the view that further instruction had to be sought from Dr Ho so as to answer the Court’s query, it was up to him to ask for time at the hearing. However, if he did not do so at the time, it is not open to the plaintiff to make a complaint subsequently.

Relief from Sanctions

33.  The plaintiff submitted that this Court was wrong to conclude that the plaintiff should have applied for relief from sanctions, and that there was no basis for thinking that the application required such relief.

34.  This Court had already explained at [29] of the Decision as to why relief from sanctions was required. In any event, even if the plaintiff is correct in this regard, it cannot salvage her application anyway.

Delay

35.  The plaintiff also stated that the Court had placed unjustified and disproportionate weight on the alleged delay on the part of the plaintiff.

36.  Delay is plainly a matter which this Court was entitled to take into account, especially when the plaintiff had simply failed to give satisfactory reason for such delay.

37.  Further, the plaintiff’s focus on the fact that the application was made 15 months before the trial is beside the point, because this application was said to be made “extremely late” on the bases that the previous expert directions had been given long time ago and that the trial dates had been fixed for a long time.

Nature of probate action

38.  Lastly, the plaintiff relied on the inquisitorial nature of this probate action and submitted that since the Court has a duty to give effect to the testamentary wishes of the Deceased, it ought to allow the admission of Dr Ho’s Report.

39.  As the defendants pointed out, proper case management is still required to be exercised despite the fact that this is a probate case:

(1)  In Chiu Man Fu & Others v Chiu Chung Kwan Ying (HCAP 9/2005, unreported, 31 March 2011) which was a probate action, Poon J (as he then was) held that:

“8. […] In our civil justice system, it is the parties who must carefully and thoroughly prepare their case for trial. If a party has failed to do so, and if after carefully considering all the circumstances, the court thinks that in the overall justice of the case, it should decline to grant him indulgence to make good his slip, he must then bear all the consequences.”

Indeed, with respect, the above comment is entirely apt in the circumstances of the present case.

(2)  In Order 76 rule 1 of the RHC, it is provided that other rules therein (which must include the underlying objectives and the application thereof by the court under Order 1A rules 1 and 2, and the court’s duty to manage cases under Order 1A rule 4) shall be applicable to probate actions. In other words, there is no separate procedural regime which is applicable to probate actions.

DISPOSITION

40.  For reasons of the aforesaid, the Leave Summons is dismissed.

COSTS

41.  I make a costs order nisi that the plaintiff shall bear the defendants’ costs of the Leave Summons. For the avoidance of doubt, I grant certificate for two counsel.

42.  The above order nisi shall become absolute in the absence of application to vary (which, if any, will be disposed of on paper) within 14 days hereof.

43.  The defendants’ costs of the Leave Summons shall be summarily assessed in lieu of taxation.

44.  Unless any application for variation of the aforesaid costs order nisi is made within time, the defendants shall lodge and serve their statement of costs within 7 days after the expiry of the said 14-day period. The plaintiff shall lodge and serve her statement of objection within 7 days thereafter. Summary assessment will be conducted on paper (no matter whether any statement of objection is lodged within time) thereafter. The costs assessed shall be paid by the plaintiff within 14 days after assessment.

Mr Charles Hollander KC leading Mr Abel Lam, instructed by Lily Fenn & Partners, for the plaintiff

Mr Benjamin Yu SC leading Ms Teresa Wu, instructed by P C Woo & Co, for the defendants

HCAP 22/2019

[2025] HKCFI 2945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 22 OF 2019

_________________

_________________

_______________

DECISION

________________

INTRODUCTION

1.  There are 3 summonses before this Court:

(1)  The plaintiff’s summons filed on 14 February 2025 for further expert directions (“the plaintiff’s Expert Summons”);

(2)  The defendants’ summons filed on 12 June 2025 for extension of time to exchange further witness statement (“the defendants’ Time Summons”); and

(3)  The defendants’ summons filed on 27 June 2025 for numerous directions (“the defendants’ Miscellaneous Summons”).

THE RELEVANT BACKGROUND

2.  The directions sought by the parties are case management directions.  In my view, the following background is relevant and would affect the Court’s exercise of its case management powers.

3.  This action was commenced in 2019.  The plaintiff filed her Statement of Claim on 9 July 2019, and the defendants filed their Defence and Counterclaim on 7 November 2019.  The main issue which the Court has to resolve in this action is the validity of a will purportedly made by the Deceased in October 2015 (“the 2015 Will”).

4.  Pursuant to expert directions given by Master Yee and Master Hui on 16 February 2022 and 28 April 2022 (“the Masters’ Expert Directions”) respectively:

(1)  The defendants were granted leave to file and serve Professor Raymond Cheung’s expert report (“Professor Cheung’s Report”) on:

“i Expert’s opinion and assessment on the mental state and condition of the Deceased during the following specific period : -

(a) 1 April 2015 to 29 October 2015

(b) 30 October 2015 to 8 January 2016

(collectively ‘the specific periods’).

ii. During the specific periods, expert’s opinion and assessment on whether the Deceased was mentally fit and capable of carrying out the following activities: -

(a)  […]

(b)  […]

(c) Preparing a testamentary note distributing his assets and properties upon death and making of a will in late October 2015; in relation thereto, whether the Deceased

(i) was capable of understanding the nature of the acts of writing a testamentary note and making a will and their effects;

(ii) was capable of understanding the extent of the property of which he was disposing by those documents; and

(iii) was able to comprehend and appreciate the claims to which he ought to give effect by those documents;

[…]”

(2)  The plaintiff was granted leave to file and serve a Rebuttal Expert Report within 90 days after the defendants’ filing of Professor Cheung’s Report;

(3)  The parties’ experts were required to meet and prepare a joint expert report.

5.  The defendants filed and served Professor Cheung’s Report on 12 May 2022.  Therefore, the plaintiff should have filed her Rebuttal Expert Report by 10 August 2022. 

6.  On 10 July 2023, Master Matthew Leung made an unless order (“the Unless Order”), and required the plaintiff to file and serve the Rebuttal Expert Report of Professor Helen Chiu by 4pm on 31 August 2023.

7.  The plaintiff eventually filed Professor Helen Chiu’s expert report (“Professor Chiu’s Report”) on 28 August 2023.

8.  Subsequently, the joint statement of Professor Cheung and Professor Chiu was filed on 16 November 2023.

9.  At the Initial Case Management Conference held on 1 February 2024, this Court directed the parties to file and serve their respective certificates for estimation of time together with a table of availability of trial counsel by 6 March 2024.  This Court further indicated that it would set the case down on paper and fix the trial dates and pre-trial review accordingly.

10.  By virtue of the said certificates, the plaintiff and the defendants gave an estimated time of 20.5 days (inclusive of 3 days for closing submissions) and 7.6 days (inclusive of 4 – 5 hours for closing submissions) respectively.  In other words, as far as evidence is concerned, the estimation of the parties was that it would take a total of around 24.1 days[1] to finish.

11.  In light of the busy schedules of the senior counsel engaged by both sides, the trial was at the end of the day fixed on 8 March 2024 to be heard from 26 May 2026 to 30 June 2026 (a total of 25 days[2] for evidence) and 8 – 9 September 2026 (a total of 2 days for closing submissions).

12.  On 10 May 2024, the plaintiff took out a summons (“the Undue Influence Amendment Summons”) to amend her Re-Re-Amended Statement of Claim.  In a gist, by virtue of the proposed amendments, the plaintiff sought to introduce an additional ground of undue influence in her attempt to set aside the 2015 Will.

13.  The call-over hearing of the Undue Influence Amendment Summons was heard on 7 June 2024, at which the defendants’ counsel indicated that the plaintiff’s application would be opposed.  While the trial was still around 2 years away at the time, this Court expressed concerns that pleadings were still not finalised 5 years since the commencement of this action.  This Court therefore enquired with both sides as to whether counsel’s advice had been given on whether further applications for amendment of pleadings would be required to be made.  Upon such enquiry, both sides gave an undertaking that no further application for amendment of pleadings would be made herein. As a result, this Court made an express order that no further application for amendment of pleadings may be made by the parties in this action.

14.  The Undue Influence Amendment Summons was then fixed to be argued on 9 October 2024.  At the hearing, the defendants’ counsel argued that, if the proposed amendments were allowed, there would be a risk that the trial cannot finish within the scheduled time.  To answer this question, leading counsel for the plaintiff, inter alia, accepted that in the event the Court has to cut down the time for cross-examination so as to fit in the first period of 25 days (during which the witnesses are examined), the Court should cut down the time available to the plaintiff’s counsel first because such reduction of time is necessitated by the plaintiff’s late introduction of a new issue.

15.  By a Decision handed down on 30 October 2024, this Court allowed the Undue Influence Amendment Summons.  It was further ordered, among other things, that:

(1)  Leave be granted to the defendants to make consequential amendments to their Re-Re-Amended Defence and Counterclaim filed on 27 July 2021;

(2)  Parties shall exchange their respective witness statements covering matters relating to the amendments on undue influence only.

16.  Pursuant to the above order, the defendants filed and served their Re-Re-Re-Amended Defence and Counterclaim on 17 February 2025.

17.  However, the defendants had not been able to exchange their further witness statements covering the plaintiff’s case of undue influence.  As a result, extensions of time had to be sought from and granted by this Court.  The latest application was made by virtue of the defendants’ Time Summons.

18.  As aforesaid, the plaintiff filed a summons for further expert directions on 14 February 2025.  Pursuant to this summons, the plaintiff sought to adduce the expert report of Dr Robert Ho (“Dr Ho’s Report”).

19.  The defendants initially opposed this application.  However, by a letter dated 18 June 2025, the defendants’ solicitors changed their stance and stated that:

“[…]

We are instructed that our clients no longer oppose the Expert Summons. We shall require more time to consider the consequential directions in relation to the Expert Summons and we shall provide you with our proposed directions in due course.

All of our clients’ rights are hereby expressly reserved.”

20.  However, the parties could not agree on the consequential directions as proposed by the defendants, who therefore took out the defendants’ Miscellaneous Summons.

THE PLAINTIFF’S EXPERT SUMMONS

21.  By virtue of the plaintiff’s Expert Summons, the plaintiff asked for, inter alia, the following expert directions:

“Leave be granted to the Plaintiff to adduce, file and serve within 7 days from the Order made herein, the medical report of Dr Ho Ting Kwok Robert dated the 13^th day of February 2025 (‘Dr Robert Ho’s Report’) […] addressing the precise issues as follows: -

i. Expert’s opinion and assessment on the mental state and condition of the Deceased during the following specific periods : -

(a) 1 April 2015 to 29 October 2015

(b) 30 October 2015 to 8 January 2016 (collectively ‘the specific periods’).

ii. In studying, examining and analyzing the MRI Images and existing medical reports on the Deceased, which have already been disclosed by the parties hereto, Dr Robert Ho’s opinion and assessment on whether the Deceased was mentally fit and capable of carrying out the following activities during the specific periods: -

Preparing a testamentary note distributing his assets and properties upon death and making of a will in late October 2015; in relation thereto, whether the Deceased

(a) was capable of understanding the nature of the acts of writing a testamentary note and making a will and their effects;

(b) was capable of understanding the extent of the property of which he was disposing by those documents; and

(c) was able to comprehend and appreciate the claims to which he ought to give effect by those documents.”

22.  The application was supported by the 18^th Affirmation of Fenn Kar Bak Lily, in which it was deposed that:

“3. A Rebuttal Medical Expert Report prepared by Psychiatrist, Professor Helen Fung Kum CHIU (for the Plaintiff) was filed on the 28^th August 2023 (‘Professor Chiu’s Report’), pursuant to Paragraphs (2) and (3) of the Order made by Master Kent Yee on Medical Expert Evidence dated the 16^th day of February 2022 (‘Order of Master Kent Yee’). During and after the preparation of Professor Chiu’s Report, Professor Chiu indicated to us that there were many (over 4,000) MRI scan images on the brain of Dr. Chow Yei Ching (‘the Deceased’) taken from the year 2010 to 2015. However, her medical training in psychiatry did not equip her with adequate knowledge and expertise in studying, interpreting and analysing in detail the MRI scan images of a patient’s brain, which would be highly relevant to determine the cognitive functions and mental capacity of a patient.

[…]

4. In this regard, we have instructed Neurologist Dr. Ho Ting Kwok Robert (‘Dr. Robert Ho’) to supplement Professor Chiu’s report and prepare an independent medical report, for the benefit of the Court. Dr. Robert Ho’s report provides a more in-depth account and summary of the Deceased’s medical conditions, specifically his neurological status, for the period from February 2010 to December 2015. Dr. Robert Ho’s Report gives an in-depth and comprehensive analysis, by comparing and contrasting various MRI images of the Deceased’s brain, taken in July 2010 and August 2015 respectively. As a result, Dr. Robert Ho opines that the Deceased was suffering from Cerebral Amyloid Angiopathy (‘CAA’) from 2010 to 2015 […] Besides, Dr. Ho also compares and contrasts the Deceased’s Cerebral Small Vessel Disease (‘CSVD’) progression from the MRI scan images of the Deceased’s brain taken in July 2010 and August 2015. […] Therefore, it is necessary to call Dr. Robert Ho, as a medical expert witness, to give evidence at the trial to assist the Court.

5. Besides, Dr. Robert Ho also offers his comments and rebuttal on the Medical Report of Professor Raymond Cheung (for the Defendants), filed on the 11^th May 2022 […]

6. […]

7. In the circumstances, Dr. Robert Ho’s Report is necessary to supplement Professor Chiu’s Rebuttal Medical Expert Report […]

8. Specifically, the issues mentioned in Paragraph 7 above are already encompassed in Paragraphs (2)(i) and (2)(ii)(c) of the Order of Master Kent Yee, as well as the Medical Report of Professor Raymond Cheung.  Therefore, Dr. Robert Ho’s Report serves to supplement Professor Chiu’s Rebuttal Medical Expert Report, and is probative to determining the mental capacity of the Deceased when the 2015 Purported Will was allegedly made.”

23.  Before I discuss the merits of the plaintiff’s application, I would deal with the question of whether the defendants’ solicitors had in fact indicated that they won’t object against the plaintiff’s Expert Summons.

24.  For this purpose, I should refer to the letter of the defendants’ solicitors dated 18 June 2025.  The relevant part thereof had been quoted in [19] above.

25.  Mr Benjamin Yu SC submitted on behalf of the defendants that the defendants’ indication was only made on the basis that the reasonable and necessary case management directions proposed by the defendants would not be objected to, because the “no objection” stance and the consequential directions should be considered as a “package”.  Therefore, he said, in the circumstances where the plaintiff did not agree to the defendants’ proposed directions, the defendants should not be described as having changed their stance as such.

26.  With greatest respect, I disagree, because it is clearly stated in the said letter that the defendants “no longer oppose the Expert Summons”.  There was no indication that such a stance would hinge upon the plaintiff’s agreement to the consequential directions to be proposed by the defendants.

27.  Be that as it may, while the defendants’ stance might affect the Court’s exercise of discretion on costs, this Court is not bound by the consensus reached between the parties when case management directions are made, even though such consensus, if any, would be one of the factors which should be taken into account. 

28.  In the present case, even though it has at one stage been agreed between the parties that further expert directions should be given as per the plaintiff’s Expert Summons, this Court would depart from such consensus.  The reasons are set out below.

29.  First, a comparison of the expert issues defined under the Masters’ Expert Directions (see [4] above) and the expert issues as proposed in the plaintiff’s Expert Summons (see [21] above) would reveal that the plaintiff is in fact minded to adduce expert evidence on the same expert issues under the Masters’ Expert Directions, even though she is now trying to deal with those same issues from a different angle – by asking her new expert (Dr Robert Ho) to compare the MRI images of the Deceased’s brain taken in 2010 and 2015 respectively.  In my view, she should have produced Dr Ho’s Report pursuant to the Masters’ Expert Directions.  In other words, she should have done so pursuant to the Unless Order, which she did not.  In such circumstances, before the plaintiff is allowed to adduce Dr Ho’s Report, she should apply for relief from sanction, which she has not done so. 

30.  Second, even if there is no requirement that Dr Ho’s Report should be adduced within the time limit as per the Unless Order, it is undeniable that the present application has been made extremely late, and there is no acceptable explanation given by the plaintiff.

31.  According to Ms Fenn, the plaintiff’s solicitor, Professor Chiu had “during and after the preparation of Professor Chiu’s Report”[3] indicated to the plaintiff’s solicitors that there were many (over 4,000) MRI images on the brain of the Deceased taken in 2010 and 2015, but she did not have the expertise to study, interpret and analyse in detail those MRI images. 

32.  In her 20^th Affirmation, Ms Fenn also stated that since September 2023, she had approached a few neurologists for the purpose of preparing an expert report.  However, none of them agreed to take this task up for personal reasons.  Ms Fenn then mentioned that, in July 2024, she approached Dr Robert Ho, who declined to take up this appointment because he was too busy.  It was only in November 2024 that Dr Ho finally agreed to be appointed in the present case. 

33.  Such an explanation for delay is simply unacceptable:

(1)  It should not take long for the plaintiff’s solicitors to approach neurologists and ask them to accept appointment as an expert.  The plaintiff’s solicitors have simply failed to explain why they were unable to locate a single expert who was willing and available to take up this appointment even with due diligence for 14 months (September 2023 – November 2024);

(2)  The plaintiff’s solicitor did not state how many neurologists they had approached since September 2023.  She only stated that she had approached “a few”.  That is certainly not enough.  If she did not spend enough effort in looking for a willing and available expert, then the plaintiff should bear the consequence;

(3)  There is no explanation as to why, upon Dr Robert Ho’s rejection in July 2024, the plaintiff’s solicitors did not look for someone else immediately (there is no evidence that they had done so);

(4)  Ms Fenn’s explanation also contradicts the plaintiff’s Listing Questionnaire filed on 18 January 2024 (which she herself signed), in which it was not mentioned at all that the plaintiff was in the course of looking for a neurologist as an additional expert.

34.  The delay on the part of the plaintiff has caused great difficulty in terms of case management because the trial date has been fixed for a long time and it is important to make sure that the trial would not over-run (see further below).

35.  The plaintiff’s solicitors now try to shift the blame to Professor Cheung.  They accused him for, among other things:

(1)  not making specific reference in his expert report to any analysis of the MRI images taken in August 2015 when he came to his conclusion on the Deceased’s mental capacity;

(2)  “evading or ignoring” those MRI images, and simply opined that it was not necessary to conduct any mental state examination on the Deceased in 2015;

(3)  failing to produce or exhibit any MRI images of the Deceased’s brain taken in 2015;

(4)  failing to do any detailed analysis of the impact of the stroke which the Deceased suffered in 2015 on his cognitive functions.

36.  The plaintiff’s solicitor (Ms Fenn) also alleged that:

(1)  Had Professor Cheung referred to the plethora of MRI scanned images of the Deceased’s brain taken in August 2015 in his analysis, it would have been necessary for the plaintiff to instruct a neurologist to view, examine and analyse those images in the Rebuttal Medical Expert Report to be prepared;

(2)  Neither the plaintiff nor herself had any knowledge or information that the Deceased had had a stroke in August 2015, let alone the massive body of information and MRI scanned images of the Deceased taken in August 2015, and it was not until August 2023 that Professor Chiu drew her attention specifically to the fact that the Deceased had had a stroke in August 2015, and that there were a lot of MRI scanned images.

37.  I regret to say that these points are made to be rejected:

(1)  Ms Fenn’s explanation is self-contradictory. If she (and Professor Chiu – the plaintiff’s expert) had really been “misled” by Professor Cheung on the usefulness of the MRI scanned images as alleged, Professor Chiu would not have alerted Ms Fenn about the large number of MRI scanned images and her own lack of expertise in analysing them in the course of the preparation of her expert report.  Neither would Ms Fenn have started looking for a neurologist in September 2023.  The apparent fact is that Ms Fenn and Professor Chiu considered it necessary no later than September 2023 to have expert opinion on comparison and analysis of MRI scanned images.

(2)  Even though Professor Cheung did not analyse the MRI scanned images, there was nothing which stopped the plaintiff’s expert from doing so (and for that matter, seeking court’s leave to do so if necessary).

(3)  It is in fact unfair for Ms Fenn to make her accusations against Professor Cheung.  This is because he had in his expert report referred to “MRI stroke protocol” for a number of times. 

(4)  Ms Fenn must also have had knowledge about the Deceased’s stroke in 2015 no later than the time when she perused Professor Cheung’s Report which was served on the plaintiff on 12 May 2022.  Indeed, in her 20^th Affirmation, Ms Fenn accepted that Professor Cheung had “only very generally glanced over the Deceased’s August 2015 stroke”. Whatever this quoted phrase means exactly, it is undeniable that she knew the Deceased had suffered from stroke in 2015 at least by virtue of Professor Cheung’s Report.

38.  Third, given Ms Fenn’s explanation that the new expert report is necessary only by reason of Professor Chiu’s lack of expertise in the comparison of MRI images of the Deceased’s brain, there is no reason why Dr Robert Ho had to go into the “clinical evidence” as revealed in various witness statements which, as he himself admitted, had been comprehensively discussed by Professor Chiu in her report.

39.  Fourth, I have initially inclined to allow Dr Ho’s Report to be adduced but on the condition that it is to be edited such that he would only confine his opinion on the comparison of MRI images without referring to the witness statements (because there is no reason why the plaintiff should be given the chance to have a second bite of the cherry).  However, in the end, I have decided against this initial thought because:

(1)  When this idea was first raised in Court, Mr Lam for the plaintiff frankly admitted that he could not be sure whether it is feasible for Dr Ho to give his opinion purely on the basis of MRI images without references to the clinical evidence.  The probative value of such an edited report is therefore questionable;

(2)  More importantly, one must bear in mind that there is only around 1 day’s buffer in the trial period: 25 days have been reserved for opening submissions and the taking of evidence while the estimation of the parties was that it would take 24.1 days for the above procedures to complete.  Such a trial length was fixed before the plaintiff added “undue influence” as part of her case.  Now that the plaintiff’s Undue Influence Amendment Summons had been allowed, parties had been given leave to exchange further witness statements to cover this aspect of the case.  It is unclear how much longer the evidence will take, but what is certain is that the additional evidence would eat into the buffer.  In such circumstances, allowing the plaintiff’s Expert Summons (even if only on a more limited scope) would necessarily mean that there would be at least 1 more (if not 2) expert who would have to give evidence at the trial.  That would create a great risk of causing the trial to over-run, which will be disastrous, given the busy schedules of both leading counsel in the present case.  What this Court does not want to see is that the trial would have to be truncated, and that is something which should be avoided.

40.  I have always borne in mind that the Court shall always recognize that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties (Order 1A rule 2(2) of the Rules of the High Court). However, we do not live in a perfect world.  Hence, such primary aim has to be balanced with the underlying objectives.

41.  Having conducted such a balancing exercise and considered the matters mentioned above, I hold that the plaintiff’s Expert Summons should be dismissed.

THE DEFENDANTS’ MISCELLANEOUS SUMMONS

42.  The defendants’ counsel (in their written submissions) and the defendants (in Chow Vi Vi’s 10^th Affirmation) described the defendants’ Miscellaneous Summons as a summons which contains directions consequential to the grant of leave to the plaintiff to adduce further expert evidence from Dr Robert Ho.  To summarise, these directions include:

(1)  Leave for the defendants to adduce an expert report from an independent psychiatrist in reply to Professor Chiu’s Report;

(2)  Leave for the defendants to adduce an expert report from an independent neurologist in reply to Dr Ho’s Report;

(3)  Joint meeting and joint statement of experts;

(4)  Consequential amendments to the Re-Re-Re-Amended Defence and Counterclaim;

(5)  Filing of witness statements covering factual matters relevant to the mental condition issues set out in paragraph 2 of the plaintiff’s Expert Summons.

43.  Now that the plaintiff’s Expert Summons is dismissed, theoretically there is no need to discuss the defendants’ Miscellaneous Summons further, and no order should be made thereon.

44.  Unfortunately, the matter is not as straight-forward as it first appears, because Mr Yu SC admitted in Court that in fact the proposed  amendments to the Re-Re-Re-Amended Defence and Counterclaim are not consequential upon the grant of leave to the plaintiff to adduce Dr Robert Ho’s expert evidence, but consequential upon the plaintiff’s addition of a case of undue influence.

45.  On the other hand, Mr Lam for the plaintiff submitted that the proposed amendments do not only cover the plaintiff’s case of undue influence.

46.  In my view, no matter whether those amendments are made consequential to the addition of the plaintiff’s case of undue influence, they should not be allowed:

(1)  If they indeed do not only relate to the case of undue influence, then such amendments should not be allowed because the defendants are bound by:

(a)  The undertaking given by the defendants’ counsel to the Court on 7 June 2024 that they shall not make any further application for amendment of pleadings herein; and

(b)  This Court’s order of even date that no further application for amendment of pleadings may be made by the parties in this action.

(2)  Even if they only relate to the new case of undue influence, it should be borne in mind that the defendants have already amended their pleading pursuant to the consequential directions given by this Court when leave was given to the plaintiff to add a case of undue influence. There is no reason why the defendants should be given a second chance to do so.

47.  From the case management point of view, I consider that given the long history of this case, there is simply no further room for the parties to further “perfect” their case, which should have been done long time ago.  They should concentrate on what they have already placed before the Court and prepare for the upcoming trial accordingly.

48.  With the above in mind, I should also say a few words on some of the defendants’ other proposed consequential directions:

(1)  The suggestion that there is a need to appoint a new expert for the purpose of replying to Professor Chiu’s Report is bound to be rejected, since Professor Cheung should have already done so, if he thought fit, in the Joint Statement filed on 16 November 2023;

(2)  The proposal of introducing Professor Lo Chung Mau as a witness apparently comes too late, bearing in mind his involvement in the matter had already been mentioned all the way back in the first version of the Defence and Counterclaim filed on 7 November 2019; 

(3)  Insofar as it is the defendants’ argument that there are other witnesses who should give additional factual evidence which may constitute “clinical evidence” for the benefit of their independently instructed experts, such an argument must be rejected.  This is because there is no acceptable reason why these witnesses should not be asked to give their witness statements when the parties first exchanged witness statements.   I do not see how it can be argued that the defendants did not see the need in the past.  In light of the amount of money at stake and the financial strength of the parties, it is not reasonable to suggest that the defendants had deliberately withheld from preparing for the case at 100% effort.  With respect, they are simply making use of this opportunity to further “perfect” their case. 

THE DEFENDANTS’ TIME SUMMONS

49.  The plaintiff does not oppose this summons, save that she would ask for the usual costs of $1,040.

ORDER

50.  For reasons of the aforesaid, I make the following orders:

The plaintiff’s Expert Summons

(1)  The plaintiff’s Expert Summons be dismissed.

The defendants’ Miscellaneous Summons

(1)  The defendants’ application to make amendments to their Re-Re-Re-Amended Defence and Counterclaim be dismissed.

(2)  Time for service of this Summons be abridged.

(3)  Subject to the above, no order be made on the Summons.

The defendants’ Time Summons

(1)  Order in terms of the Summons.

COSTS

51.  The costs of the defendants’ Time Summons should not be controversial.  As it was the defendants who were seeking indulgence from the Court, there is no reason why the defendants should not bear the plaintiff’s costs thereof, which the plaintiff suggested to be summarily assessed at $1,040.  I make an order accordingly, and the defendants shall pay such assessed costs forthwith.

52.  In relation to the plaintiff’s Expert Summons and the defendants’ Miscellaneous Summons, having taken into account the following matters:

(1)  The result of the applications;

(2)  The change of stance on the part of the defendants;

(3)  The litigation conduct on the part of the defendants in that they initially described the proposed amendment to their pleading as consequential upon the plaintiff’s proposed expert directions when they apparently are not,

I take the view that there should be no order as to costs in relation to both summonses. I therefore make a cost order nisi accordingly, and this order nisi shall become absolute in the absence of application to vary (which, if any, will be disposed of on paper) within 14 days hereof.

HCAP 22/2019

[2025] HKCFI 810

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 22 OF 2019

_________________

_________________

_______________

DECISION

________________

BACKGROUND

1.  This probate action concerns the estate of Chow Yei Ching, deceased (“the Deceased”). 

2.  The Deceased founded the Chevalier Group in Hong Kong in 1970, which has a wide range of businesses employing a total of 10,000 employees in various parts of the world.  The shares of Chevalier International Holdings Limited (“Chevalier”) are listed in the Hong Kong Stock Exchange, and over 62% of those shares were owned beneficially by the Deceased and now his estate (“the Chevalier Shares”).

3.  Since 2019, the parties herein have, by way of various consent summonses, applied to the Court for orders that administrators pendente lite (“APLs”) be appointed for the sole purpose of exercising the voting right attached to the Chevalier Shares at the Annual General Meetings of Chevalier.  The Court has invariably approved those consent summonses, and as a result, Ms Lily Fenn of the plaintiff’s solicitors and Mr Simon Tang (or Ms Chan Sze Man, as the case may be) of the defendants’ solicitors have been appointed as Joint APLs (“the Joint APLs”), pursuant to 6 court orders made on 9 August 2019, 14 August 2020, 30 July 2021, 3 August 2022, 10 August 2023 and 31 July 2024 respectively (“the Joint APLs Orders”). 

4.  It is noted that while the Joint APLs Orders have provided that the costs of the Joint APLs shall be paid out of the estate of the Deceased, the respective hourly rates of the APLs have not been specified, nor have the said orders provided for how such costs are to be assessed.

5.  On 26 September 2024, the plaintiff commenced taxation proceedings on the basis of the Joint APLs Orders (“the Taxation Proceedings”).  From the Bill of Costs filed thereunder, it can be seen that the plaintiff asks therein for taxation for not only Ms Fenn’s costs as one of the Joint APLs but also the plaintiff’s costs of the applications for the Joint APLs Orders.

6.  On 24 October 2024, the defendants filed a summons and asked for a stay of the Taxation Proceedings (“the defendants’ Stay Summons”).  It was contended by the defendants that, pursuant to Order 62 rule 9D of the Rules of the High Court (“RHC”), the Taxation Proceedings have been commenced pre-maturely.

7.  By consent, the defendants’ Stay Summons was adjourned for substantive argument before Master Maurice Lam on 17 January 2025.

8.  Shortly before the hearing on 17 January 2025, the learned Master issued a note containing certain requisitions (“the Note”). The Note drew parties’ attention to sections 40 and 60 of the Probate and Administration Ordinance (Cap.10, Laws of Hong Kong) (“PAO”), and requested parties to make submissions on, inter alia, the applicability of section 60 of the PAO and the way forward of the Taxation Proceedings in the event the said section is applicable.

9.  The hearing before the learned Master then proceeded as scheduled, and the parties’ legal representatives had made their respective submissions thereat.  However, upon Ms Fenn’s request, the hearing was adjourned part-heard to 25 February 2025, so as to allow time for the plaintiff to lodge further submissions.  Leave was granted to the plaintiff to lodge and serve such further submissions by 11 February 2025.

10.  The plaintiff did not lodge any further submissions pursuant to the learned Master’s order.  Rather, on 17 February 2025, she took out another summons (“the plaintiff’s Summons”) returnable before this Court this morning for a number of orders.  In a gist, the orders sought provide that:

(1)  Parties shall propose or agree on the scales or rates or amounts of professional charges payable to the Joint APLs;

(2)  In the event agreement cannot be reached, the plaintiff and the defendants shall lodge and serve their respective Statement of Costs covering the Joint APLs’ charges followed by Statement of Objections;

(3)  The costs of the Joint APLs be summarily assessed;

(4)  The defendants’ Stay Summons be adjourned sine die with liberty to restore before this Court, to be heard together with the plaintiff’s Summons if necessary;

(5)  The hearing before the learned Master on 25 February 2025 be vacated.

11.  While the hearing for the plaintiff’s Summons was only fixed to be heard for 15 minutes, there is no reason why it should not be disposed of right away, for reasons which will be made apparent below.

THE COURT’S VIEW

12.  In support of the application, Ms Fenn for the plaintiff has made a number of arguments.

13.  Firstly, it was argued that in the circumstances where sections 40 and 60 of the PAO are invoked, and the remuneration of the Joint APLs is contested by the defendants, the matter is no longer non-contentious in nature, and therefore the learned Master has no jurisdiction to deal with the matter.

14.  With respect, there are 2 misconceptions on the part of Ms Fenn:

(1)  While the learned Master has drawn the parties’ attention to the provisions of sections 40 and 60 of the PAO, what he has done was to ask parties to make further submissions thereon, rather than having made any ruling that those provisions are applicable.  It is therefore pre-mature for Ms Fenn to state that the said provisions are “invoked”;

(2)  It cannot be said that “remuneration of the Joint APLs is contested by the defendants” because, properly understood, the defendants’ main argument in support of the defendants’ Stay Summons is that the plaintiff should not have commenced taxation proceedings in relation to her own cost, given there is no order for “forthwith” taxation.

15.  In any event, even if the learned Master no longer has jurisdiction to deal with the matter, the appropriate way for the plaintiff to handle the matter is to cause the proceedings before the learned Master to be properly disposed of first, rather than asking this Court to order for the vacation of the hearing before the learned Master while the application has been adjourned part-heard.

16.  Ms Fenn explained that what the plaintiff is doing is simply for the purpose of “saving time and cost”.  With greatest respect, it has become a common phenomenon that such a phrase would be deployed whenever a party attempts to explain away his/her non-compliance of court procedures.  This is totally unacceptable.

17.  Secondly, the plaintiff relies on Practice Direction 5.7 (Long Cases), and submitted that once this Court has been assigned as the trial Judge, all interlocutory applications should be assigned to this Court, and therefore the defendants’ stay application should not be heard by the learned Master.[1]

18.  With greatest respect, this argument has been made in total disregard of the purpose of Practice Direction 5.7.  Paragraph 2 thereof reads:

“The aim of this Practice Direction is to set in place a system for the prompt and efficient preparation for and the hearing of trials of cases where the hearing is likely to be lengthy. The directions are for the guidance of the Court and the parties. Because the cases to which this Practice Direction will apply will be varied and the cases themselves will be exceptional, in particular as to their length and often as to the issues involved, the Court may make special orders and instigate exceptional procedure as the nature of a particular case requires.” (emphasis added)

19.  The taxation or assessment of costs, and the question of stay of the taxation or assessment procedure, would not have any impact on the “preparation for and the hearing of” the trial.  The reliance on the said Practice Direction is therefore futile.

20.  Indeed, such reliance is apparently an after-thought on the part of the plaintiff, because she has never raised this point before the adjournment of the stay application part-heard before the learned Master.

21.  Thirdly, Ms Fenn argued that the plaintiff’s Summons and the stay application are interrelated and therefore should be heard together. 

22.  I am of the view that this is an over-simplification of the situation.

23.  In my view, the applications under the plaintiff’s Summons are totally misconceived and the said Summons should not have been taken out at all.

24.  Putting aside the question of whether the Taxation Proceedings are the correct procedure to be used in the current situation, the undisputed fact is that such taxation proceedings have already been commenced for the purpose of quantifying the costs chargeable by one of the Joint APLs.  In such circumstances, it is an abuse of process for the plaintiff to start another procedure for the same purpose.

25.  It is an even more apparent abuse for the plaintiff to make an application before a Judge and ask for an order to vacate the part-heard hearing on the defendants’ stay application before the learned Master. 

26.  If it is the plaintiff’s view that the matter should be dealt with in a way other than by way of the Taxation Proceedings, it is for her to take step in causing the withdrawal or discontinuance of the Taxation Proceedings first before seeking relief elsewhere.

ORDER

27.  For reasons of the aforesaid, I dismiss the plaintiff’s Summons. 

28.  If it is considered necessary, it is up to Ms Fenn, as one of the Joint APLs rather than as the plaintiff’s solicitor, to liaise with the parties as to how her costs as one of the Joint APLs should be assessed.

COSTS

29.  Costs should follow the event. 

30.  The defendants ask for an indemnity costs order.

31.  Ms Fenn submitted that while it is true that the plaintiff was trying to take a short-cut, she was not doing it for her own benefit but for the benefit of the estate.  Therefore, no indemnity cost order should be made against her.

32.  Firstly, while I think the plaintiff is right to say that the Joint APLs Orders were obtained for the benefit of the estate, I do not think the same can be said of the plaintiff’s Summons, which is the subject matter that is being dealt with by this Decision.

33.  In any event, what this Court is focusing herein is not whether it is right for an application to be made for the quantification of the Joint APLs’ remuneration (in respect of which I express no view herein).  What I hold against is the way the plaintiff handled this matter, which, as explained, must be an abuse of the process of the Court.

34.  I see no reason why the defendants should be dragged into this kind of application. 

35.  In my view, the circumstances of the present application is so exceptional that justifies the making of an indemnity costs order against the plaintiff.

36.  The defendants’ costs are therefore assessed accordingly at $110,111. 

37.  By consent, the plaintiff shall pay such costs by 21 March 2025.

HCAP 22/2019

[2024] HKCFI 3027

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 22 OF 2019

_________________

_________________

________________

DECISION

________________

INTRODUCTION

1.  This is the plaintiff’s application to further amend her Re-Re-Amended Statement of Claim which was made by virtue of a summons filed on 10 May 2024 (“the Summons”). 

BACKGROUND

2.  The background of the present case has been summarised by Deputy High Court Judge Leung (as he then was) in [1] – [21] of his Decision dated 30 July 2020 ([2020] HKCFI 1792).  I do not propose to repeat the same here, save to highlight the followings:

(1)  The Deceased had executed the following (purported) wills during his lifetime:

(i)   A will dated 26 February 1987;

(ii)  A will dated 2 June 1989;

(iii) A will dated 27 April 2009;

(iv) A will dated 29 October 2015 (“the 2015 Will”).

(2)  By the Re-Re-Amended Statement of Claim, the plaintiff sought, inter alia, a declaration that the 2015 Will is invalid as it was executed by the Deceased without knowledge and approval of its contents and/or without the requisite testamentary capacity, and/or executed without the requisite animus testandi.

3.  The plaintiff now seeks to add paragraphs 61A to 61Z and Prayer (1) (“the Proposed Amendments”) to her Re-Re-Amended Statement of Claim so as to introduce an additional ground of undue influence in her attempt to set aside the 2015 Will.

LEGAL PRINCIPLES

4.  The legal principles are trite.  They have been summarised by Ng J in Hsu Ming Chi v Lam Shu Chit & Others(HCCL 8/2013, unreported, 22 October 2014) as follows which I gratefully adopt:

“13. It is a guiding principle of cardinal importance on the question of amendment that generally speaking, all such amendments ought to be made ‘for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings’: Re Playmates Investments Ltd [1996] 4 HKC 577 at 582E-H (per Le Pichon J as she then was); Natamon Protpakorn v Citibank NA [2009] 1 HKLRD 455 at para. 25 (per Cheung JA); Hong Kong Civil Procedure 2014 Vol. 1 para. 20/8/6.

14. Leave is readily granted to amend before trial unless it can be shown that the new claim based on the proposed amendment is bound to fail. While the court is entitled to have regard to the merits of the case, it should only do so when the merits are readily apparent, and are so apparent as not to require prolonged investigation: Natamon Protpakornv Citibank NA supra at para. 25 (per Cheung JA).

15. If the proposed amendments are bound to fail, no leave to amend should be granted. In this regard, the court will take the applicant’s proposed pleaded case to the highest: Bank of China v Leigh Hardwick unrep., HCA 1110 of 2006, 28 August 2013, per Anthony Chan J at para. 2.

16. Absent any real prejudice, an application for amendment, albeit late, must be decided upon the general principle that a court of law seeks to adjudicate on the real issues and disputes between the parties and, if possible, technical and procedural rules should not stand in the way of allowing the parties to raise their real claims or defences before the court for adjudication: VSC Building Products Co Ltd v Kono Insurance Ltd., unrep. HCA 947/2005, 9 September 2009, per A Cheung J (as he then was) at [22].

17. Where prejudice is claimed, the burden is on the party opposing the amendment to show prejudice. There is no injustice to the opposing party if he can be compensated by appropriate orders as to costs: Re Playmates Investments Ltd supra at 582H, 584C (Le Pichon J as she then was).

18. Lastly, in giving effect to the underlying objectives of the Rules of the High Court, including those concerning amendments, the court shall always recognize that the primary aim in exercising the powers of the court is to “secure the just resolution of disputes in accordance with the substantive rights of the parties”: RHC O 1A r 2(2).”

THE DEFENDANTS’ OBJECTIONS

5.  It has been argued on behalf of the defendants that the plaintiff should not be allowed to make the Proposed Amendments for the following reasons:

(1)  There is inexcusable delay in the making of this amendment application;

(2)  It would be unfair to the defendants if the Proposed Amendments are allowed because those amendments would cause serious prejudice to them;

(3)  The plaintiff’s new case of undue influence is bound to fail.

DISCUSSION

Inexcusable delay

6.  To understand the defendants’ arguments in this regard, it is necessary to refer to the following chronology of the relevant events:

(1)  The plaintiff issued the generally endorsed Writ herein on 10 May 2019;

(2)  The plaintiff filed the original Statement of Claim on 9 July 2019;

(3)  The plaintiff amended the Statement of Claim on 15 July 2019;

(4)  In the Decision of DHCJ Simon Leung (as he then was) dated 30 July 2020 (supra) (on application to appoint administrator pendente lite), his Lordship specifically mentioned that there was no allegation in the present action that the Deceased had been subject to duress or undue influence;

(5)  The plaintiff further amended her Statement of Claim on 20 November 2020;

(6)  The plaintiff amended her Statement of Claim for the third time on 29 June 2021;

(7)  Parties exchanged their witness statements in July 2022;

(8)  The plaintiff applied for leave to file, inter alia, a supplemental witness statement in May 2023;

(9)  A trial Judge had been assigned pursuant to Practice Direction 5.7 on 25 September 2023;

(10)  Medical expert reports had been filed and exchanged and a joint expert report had also been filed in November 2023;

(11)  The Initial CMC had been heard on 1 February 2024;

(12)  This Court proceeded to fix the trial dates on 8 March 2024. However, due to (a) the proposed length of trial – being 27 days with the last 2 days reserved for final submissions, and (b) the necessity to accommodate the diaries of this Court as well as leading counsel for both sides, the trial has been fixed to commence in late May 2026.

7.  With the above background, Ms Wu and Ms Law for the defendants submitted that the plaintiff’s delay in the making of this application is inexcusable (indeed, the plaintiff has not filed any Affidavit to explain the delay), because she has had plenty of chances to raise the issue of undue influence in the past 5 years. 

8.  The defendants have also referred this Court to a number of authorities which set out well known principles that:

(1)  A party must raise all the issues it wishes to raise to be dealt with at the trial by way of pleadings and the other party is entitled to know, from a clear pleading, what is the entire case that he has to meet: Sinoearn International Ltd v Hyundai-CCECC Joint Venture (2013) 16 HKCFAR 632 at [30];

(2)  It would be rare for the Court to grant late indulgence even on terms as to costs without a satisfactory explanation being given to justify the delay and the grant of such indulgence.

9.  I am of the view that even though the present application has been made admittedly late without any reason, this should not be a factor which the Court should give too much weight because:

(1)  Even though the present application for leave to amend has indeed been made quite late (5 years since the commencement of this action), the reality is that the commencement of the trial is still more than 18 months away, and there is little doubt that parties, despite such lateness, should still have enough time to complete all procedural steps for the preparation of the trial;

(2)  In the particular circumstances of the present case, the Court should give more weight to the general principle that, absent any real prejudice, the Court should seek to adjudicate on the real issues and disputes between the parties and, if possible, technical and procedural rules should not stand in the way of allowing the parties to raise their real claims.  It should be borne in mind that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties (Order 1A rule 2(2) of the Rules of the High Court (Cap.4A, Laws of Hong Kong) (“the RHC”));

(3)  The authorities cited by the defendants do not assist them because:

(a)  Sinoearn International Ltd (supra) only demonstrates that all issues must be pleaded.  As far as the issue of “undue influence” is concerned, while it has never been pleaded, the purpose of this application is exactly to have the same included as part of the plaintiff’s pleaded case;

(b)  All the authorities cited by the defendants on refusal of the grant of leave to amend on the ground of lateness concern applications made shortly before trial.  The application before this Court does not fall within the same category of cases.

10.  I should also specifically mention that, even though there is no justifiable reason for the delay, this is just one of the matters which the Court should take into account, and the lack of reason herein is in my view not fatal.

11.  The defendants’ counsel have reminded this Court that it should be slow to allow a party taking advantage of the fact that the trial is still more than 18 months away.  However, in my view, the Court must still look at the reality of the matter.  The length of time before the commencement of the trial must be something which the Court should take into consideration.

12.  The defendants also seem to be suggesting that the plaintiff has been applying delaying and scattergun tactics.  It suffices for me to say that this (even if it were true) should no longer be a concern because:

(1)  The trial date has been fixed and there is now a milestone date which normally cannot be moved;

(2)  Upon the confirmation given by both sides at the call-over hearing of the Summons that no further amendment to the pleadings shall be required (except consequential amendments if the present application is allowed), this Court has ordered that no further application for amendment of pleadings may be made by the parties herein. 

Serious prejudice to the defendants

13.  It was submitted on behalf of the defendants that if the plaintiff is allowed to introduce a new case of undue influence, the defendants would be seriously prejudiced in having to incur substantial time and costs for the purpose of preparing additional evidence to counter this new case, for it has been stated by the learned author of Enonchong on Duress, Undue Influence and Unconscionable Dealing (4^th Ed) at paragraph 13-016 that:

“If the party opposing the will alleges facts suggesting the possibility of undue influence as suspicious circumstances, the party propounding the will must produce evidence to rule out the possibility of undue influence […]”

14.  In my view, even if the claim of undue influence has been introduced earlier without delay, the defendants would still have to adduce evidence to meet this new case.  The only difference is that the defendants have to incur costs and time on this matter later rather than sooner.

15.  In such circumstances, the only possible argument which is available to the defendants is that their attention has to be distracted to deal with this matter at this stage.  However, in the circumstances where the trial date is still more than 18 months away, this argument does not have much force.

16.  The defendants’ counsel have also emphasised that it is difficult for the plaintiff to establish this new case of undue influence.  For reasons which I will further explain in the next section of this Decision, I do not think the Court should decide on this matter at this stage. 

17.  In my view, the strongest argument made by the defendants is that, with the new evidence to be adduced, there is a risk that the trial cannot finish within the scheduled time.  It may be recalled that 25 days (from 26 May 2026 to 30 June 2026) have been allocated for the opening submissions and the witnesses to be examined, and then another 2 days (8 – 9 September 2026) have been set aside for closing submissions.  However, the problem is that the leading counsel who has been engaged by the defendants is not free immediately before 26 May 2026.  Neither is he available in the entirety of July 2026.  That means if the evidence cannot be concluded by 30 June 2026, the possibility is that the dates of 8 – 9 September 2026 cannot be used for closing submissions and that in turn means that further dates would have to be fixed for the part-heard trial.  As both sides have engaged leading counsel, it will be difficult to find another two days which may on one hand accommodate their diaries (as well as the court’s diary), and on the other hand are relatively close to 8 – 9 September 2026.   In short, if the case cannot finish within the scheduled time, the completion of the trial is very likely to be seriously delayed.

18.  In this regard, Mr Edward Chan SC for the plaintiff argued that in fact all but one of the factual matters relied on by the plaintiff in support of her case of undue influence have been covered by the pleadings of either of or even both parties, as well as witness statements of the defendants’ witnesses.  The only new factual matter which is now sought to be raised is in relation to a family meeting held in 2015 at Ningbo Residents Association in Central (“the Family Meeting”), which was attended by the Deceased, Lina Chow, Lisa Chow, the plaintiff and the defendants.  He therefore submitted that there should not be much further evidence which is required to be adduced.

19.  On the other hand, the defendants’ counsel submitted that the new evidence is not limited to the Family Meeting and there will be much further evidence to be adduced so as to explain the full background and context of each and every factual event relied on by the plaintiff with a view to dispel any insinuation that there were “suspicious circumstances” capable of supporting an inference that the defendants had exerted undue influence on the Deceased to coerce him into executing the 2015 Will.  There may also well be additional witnesses to be called.

20.  While I do not agree that the new evidence to be adduced should necessarily be limited to covering the Family Meeting, I have doubt whether the defendants would be required to adduce a great deal of evidence consequential to the introduction of the new claim of undue influence, since many of the events relied on by the plaintiff have already been dealt with by the existing witness statements and affirmations. 

21.  In any event, Mr Chan accepted that:

(1)  In the event the Court has to cut down the time for cross-examination so as to fit in the total of 25 days (during which the witnesses are examined), the Court should cut down the time available to the plaintiff’s counsel first because such reduction of time is necessitated by the plaintiff’s late introduction of a new issue;

(2)  He as the plaintiff’s trial counsel shall be bound by the Court’s decision on the maximum amount of time of cross-examination for the purpose of making sure that the trial shall finish within time.

22.  With these clear understandings, I am of the view that the defendants’ concern is gone.

Merits of the new case

23.  In their skeleton submissions, the defendants’ counsel had referred to a number of features of the plaintiff’s application, to the effect that if the new claim of undue influence is genuine, then it would have been made long time ago rather than 5 years since the commencement of this action.  It was then said that, as a result, the Proposed Amendments would not facilitate the determination of the “real” question in controversy between the parties, nor to be necessary either for disposing fairly of the cause or matter or for saving costs. 

24.  However, the defendants’ counsel also stated therein that it is not necessary for the Court to come to a conclusive view one way or the other on whether the plaintiff’s new case of undue influence is bound to fail in order to dispose of the present application.

25.  It was therefore not entirely clear to this Court upon reading the defendants’ skeleton submissions as to whether the defendants were relying on the proposition that the Proposed Amendments should be disallowed because the claim of undue influence is bound to fail. 

26.  The defendants’ position has since then been clarified by the defendants’ counsel at the substantive hearing – I have been told that they are indeed relying on the aforesaid proposition.

27.  On this matter, it should be noted (and accepted by the defendants’ counsel) that undue influence in the probate context is rarely capable of direct proof, and must usually be inferred from the surrounding circumstances. 

28.  I have considered the Proposed Amendments and take the view that it cannot be said that the plaintiff’s case on undue influence is not sustainable as a matter of law or liable to be struck out.  While I appreciate that the defendants’ counsel have put forward a number of matters and seek to demonstrate that the plaintiff’s undue influence is an after-thought, I am of the view that these matters should be considered at the trial rather than at this stage, because in effect the defendants are asking this Court to make a finding of fact that there was no undue inference now. That is not something that the Court should do.

29.  I therefore refuse to disallow the Proposed Amendments on this ground. 

Conclusion

30.  Having balanced all relevant factors, I am of the view that the Court should exercise its discretion in allowing the Proposed Amendments. 

ORDER

31.  I therefore grant leave to the plaintiff to make amendments to her Re-Re-Amended Statement of Claim filed on 29 June 2021 as per the draft annexed to the Summons.

32.  I also give leave to the plaintiff to file and serve her Re-Re-Re-Amended Statement of Claim within 7 days hereof.

CONSEQUENTIAL DIRECTIONS

33.  I also give the following consequential directions on a nisi basis:

(1)  Leave be granted to the defendants to make consequential amendments to their Re-Re-Amended Defence and Counterclaim filed on 27 July 2021 within 28 days hereof;

(2)  Leave be granted to the plaintiff to make consequential amendments to her Re-Amended Reply and Defence to Counterclaim filed on 23 August 2021 within 28 days thereafter;

(3)  Parties shall exchange their respective witness statements covering matters relating to the amendments only within 56 days thereafter;

(4)  A 2^nd Case Management Conference shall be fixed for 23 May 2025 at 10am (with 1 hour reserved).

(5)  Parties shall seek counsel’s advice on the overall conduct of this action and do take out all interlocutory application(s) at least 2 weeks before the 2^nd Case Management Conference, if any.

34.  The above nisi directions shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on paper) within 14 days hereof.

COSTS

35.  In matters relating to costs, it is trite that the Court has a wide and general discretion.  How the discretion ought to be exercised in any given case must depend on the facts and circumstances of the case: China Medical Technologies, Inc & Others v Wu Xiaodong[2024] HKCA 310, at [8].

36.  Order 62 rule 3(2A) of the RHC specifically empowers the court to order the costs of and incidental to any interlocutory proceedings to follow the event or to make such other order as it sees fit.

37.  In other words, as far as interlocutory applications are concerned, ordering costs to follow the event is just an option for the Court.  This applies to amendment applications as well, even though it has been said that, where an application for leave to amend has been resisted but is allowed, the usual order is for the costs of and occasioned by the amendment to be awarded to the other side but the costs of the hearing before the court be awarded to the party who is ultimately successful in obtaining leave.  For example, in the circumstances where the Court considers it not unreasonable for the application to be resisted, the Court may depart from the said usual order: Wong Wai Lung & Ho Lai Heung v Bondfield Development Limited & Another (CACV 214/2006, unreported, 31August 2006), at [15].

38.  In the present case, the amendment application has been admittedly made late, and the plaintiff has not put forward any reason by way of Affidavit to explain her delay, particularly when the lack of plea of undue influence has been specifically mentioned by DHCJ Leung in his Decision dated 30 July 2020 (yet the application was not made until May 2024).

39.  I have not lost sight of the plaintiff’s citation of a number of matters mentioned in the various witness statements and affirmations in the Proposed Amendments.  It may therefore be said that the plaintiff has actually got the idea of running the new case of undue influence after seeing the defendants’ witness statements.  However, it is noted that the witness statements concerned had been exchanged back in July 2022.  Hence, the taking out of the amendment application in May 2024 is by any standard very late.

40.  It is thus reasonable for the defendants to oppose this application.

41.  Furthermore, the Proposed Amendments are on a distinct issue – undue influence.  I hold the tentative view that, in the circumstances of the present case, it would not be fair if the defendants are ordered to bear the plaintiff’s costs of the hearing forthwith.  The fairer order would be for the plaintiff’s entitlement of her costs of the substantive hearing to be linked with the ultimate success of this distinct issue.  Since the defendants have failed to persuade the Court in dismissing the Summons, I do not think they should be able to get their costs of the hearing no matter what happens at the trial.

42.  With the above in mind, I make the following costs order nisi:

(1)  The plaintiff’s costs of the substantive hearing on 9 October 2024 be in the cause of the “undue influence” issue (that means the plaintiff can only recover her costs from the defendants if she succeeds in her new claim of undue influence), with certificate for 2 counsel;

(2)  Costs of and occasioned by the amendments (including the costs of the call-over hearing) be to the defendants in any event.

43.  The above order nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on paper) within 14 days hereof.

44.  For the avoidance of doubt, I should make it clear while I consider tentatively that the plaintiff’s entitlement of the cost of the substantive hearing for the Summons should be hinged upon her success of the issue of undue influence at the trial, this costs order should not be interpreted as fettering the trial Judge’s decision on the costs order to be made after trial.

HCAP 22/2019

[2024] HKCFI 1251

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 22 OF 2019

____________________

__________________

____________________

DECISION ON COSTS

____________________

1.  By my Decision handed down on 22 March 2024[1] (the “Decision”), I make a costs order nisi that P shall bear 60% of the costs of and occasioned by the Summons and this appeal, with certificate for 2 counsel when 2 were involved, to be summarily assessed (the “Costs Order Nisi”).

2.  By letter of 26 March 2024, Ds sought an order that the Costs Order Nisi be varied to the extent that P’s costs liability should be increased to 90%.

3.  Pursuant to directions which this Court subsequently gave, parties have filed their written submissions in support and opposition.  I have considered those submissions.

4.  As I have stated in §90 of the Decision, in making the Costs Order Nisi, I have considered the overall conclusion which I had reached, the number of the Disputed Paragraphs which appeal I had dismissed and their relative importance.

5.  In relation to the relative importance of the Disputed Paragraphs, I repeat §§52, 65, 73 and 79.  §311 goes to the primary issues.  P is successful in that regard.  To this extent, I agree with P’s submissions.

6.  Ds submit that those of the Disputed Paragraphs which relate to Ma, Kuok and Tam have been excluded entirely, that P was unreasonable in introducing them in the first place, and that P disregarded the underlying objectives in doing so.

7.  In my view, those factors have adequately been reflected by P being required to bear 60% of the costs here and below.

8.  In all the circumstances, I refuse the application to vary the Costs Order Nisi, and make the same absolute.

9.  I order that Ds shall bear the costs of this application to vary, also to be summarily assessed.  

10.  Ds shall within 14 days from the date of this decision lodge their statement of costs, P to lodge her statement of objection 7 days afterwards, and Ds to lodge their reply within 7 days afterwards.

11.  In that same time frame, P shall lodge her statement of costs for this application to vary, Ds to lodge their statement of objection, and P to lodge her reply.     

HCAP 22/2019

[2024] HKCFI 887

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 22 OF 2019

__________________

__________________

__________________

_________________________

DECISION

_________________________

A.  Introduction

1.  This is the appeal by the plaintiff (“P”) against the part of the Order made by Master Matthew Leung (“Master Leung”) on 10 July 2023 (the “Expunging Order”) expunging from P’s supplemental witness statement (“Supp WS”) §§275-278, 302-308, 310-311, and 321 (the “Disputed Paragraphs”).

2.  Mr Edward Chan SC leading Mr Abel Lam appeared for P. Ms Teresa Wu with Ms Jacqueline Law appeared for the defendants (“D1” or “Violet”, “D2” or “Vi Vi”, and collectively “Ds” when appropriate).

B.  The background facts

3.  For general background of the present case, reference may be made to the Decision of Deputy Judge Leung handed down on 30 July 2020 dismissing P’s application for the appointment of administrators pendente lite. For the present purpose, I highlight the following facts, which are gleaned primarily from the pleadings and witness statements filed:

(a)  The pleadings before me comprise P’s Re-Re-Amended Statement of Claim (“RRA-SoC”) and Re-Amended Reply and Defence to Counterclaim (“RA-R&DC”), and Ds’ Re-Re-Amended Defence and Counterclaim (“RRA-D&C”);

(b)  The witness statements before me include:

(i)  For P:

(1)  P’s witness statement of 14 July 2022 (“P/WS”), and her revised Supp WS of 14 July 2023 (“Revised Supp WS”)[1];

(2)  Ko Chan Gock William’s statement of 2 May 2023 (“Ko”, and “Ko/WS”). Ko was a Non-executive Director of Chevalier International Holdings Limited (“Chevalier”, and together with its subsidiaries the “Chevalier Group”);

(ii)  For Ds:

(1)  One statement each of D1 and D2 (“D1/WS” and “D2/WS”), both dated 30 June 2022;

(2)  One statement each of:

(a)  Ma Chi Wing dated 13 May 2022 (“Ma” or “Mr Ma”, and “Ma/WS”). Ma is an Executor Director of Chevalier;

(b)  Kuok Hoi Sang dated 18 May 2022 (“Kuok” or “Mr Kuok”, and “Kuok/WS”). Kuok is an Executive Director and the Chairman and Managing Director of Chevalier; and

(c)  Tam Kwok Wing Ivan dated 25 May 2022 (“Tam” or “Mr Tam”, and “Tam/WS”). Tam is the Deputy Managing Director and an Executive Director of Chevalier;

(3)  The statement of Cheuk Chiu Wah (“Mandy Cheuk”) of 29 June 2022 (“Cheuk/WS”). Mandy Cheuk is a practising solicitor. She was the attesting solicitor of the Disputed 2015 Will (as defined below).

4.  P and Ds are sisters. Their father was Chow Yei Ching (the “Deceased” or “Father”).

5.  The Deceased was the founder of the Chevalier Group. The shares of Chevalier are listed in the Hong Kong Stock Exchange. The Deceased during his lifetime held a substantial amount of shares in Chevalier.

6.  On 29 October 2015, the Deceased executed what is on its face a will (the “Disputed 2015 Will”). He had a major stroke in January 2016[2]. He passed away on 29 July 2018 at the age of 82. The shares he held in Chevalier during his lifetime form a valuable portion of his estate (the “Estate”).

7.  The Deceased was survived by his wife (the “Wife” or “Mother”) and their 7 children. The 7 children are 6 daughters and one son. They are, insofar as being relevant for the purpose of this appeal, as follows:

(a)  P is the eldest daughter. According to P/WS, she first joined the Chevalier Group in 1989 in Canada. Since December 2011, she has been an Executive Director of Chevalier;

(b)  Lina Chow (“Lina”) is the 3^rd daughter;

(c)  Lisa Chow (“Lisa”) is the 4^th daughter, twin sister of Lina;

(d)  D1 is the 5^th daughter. According to D1/WS, she had for almost 20 years been the Deceased’s Personal Assistant as the Chairman of the Chevalier Group;

(e)  D2 is the 6^th daughter. According to D2/WS, she was qualified as a solicitor, and had been in private practice or an in-house lawyer till 2015 when she joined Chevalier upon the Deceased’s request;

(f)  The son is the youngest of the 7 children (the “Son”).

8.  The present action concerns the validity of the Disputed 2015 Will.

9.  Parties differ as to whether the Deceased had executed any will prior to the Disputed 2015 Will. P says that the Deceased did on 26 February 1987, 2 June 1989, and 27 April 2009. The one said to be executed on 27 April 2009 will be referred to below as the “Disputed 2009 Will”. Ds on the face of pleadings do not accept that, and aver that in any event, those prior wills would have been revoked and superseded by the Disputed 2015 Will.

10.  A copy of the Disputed 2015 Will, albeit not amongst the hearing bundles, was handed up in the course of the hearing. On its face:

(a)  The Wife, D1 and D2 was appointed executrixes and trustees, and Lina, P and Lisa (in that order) as substitutes. As things turn out, the Wife and later Lina renounced their right and title to probate and execution of the Disputed 2015 Will. Despite the terms of the Disputed 2015 Will, and as pleaded in §20B RRA-SoC, Lily “does not admit the validity of the [Disputed 2015 Will], and for that reason Lily would not, and does not intend to, accept the office of executrixship of the [Disputed 2015 Will] pending judgment of the Court in this Action”;

(b)  Father made an absolute gift of all his shares in Chevalier to D1;

(c)  The residuary estate was divided into 100 parts or shares: 30 parts or shares of which to the Wife, 20 to D1, and 10 to each of P and her other 4 sisters. The Son was not given any.

11.  P challenges the validity of the Disputed 2015 Will. She avers[3] that the Deceased (1) did not have the requisite mental capacity, (2) did not have knowledge and approval of the terms of the Disputed 2015 Will, and (3) did not have the requisite animus testandi. P seeks instead to propound the Disputed 2009 Will albeit in the form of an unsigned copy. Alternatively, P seeks a declaration that the Deceased has died intestate.

12.  In their RRA-D&C:

(a)  Ds deny P’s claim. §88(1) thereof sums up their case, that

“The [Disputed 2015 Will] was duly executed by the Deceased with testamentary capacity and knowledge and approval of its contents on 29 October 2015 and is valid and effective.”

(b)  They counterclaim for a Declaration that the Disputed 2015 Will is the last valid will of the Deceased;

(c)  They further aver that[4]:

“the Court should not exercise its power to appoint and accordingly seek an Order, that [P] should not be appointed an executrix or trustee of the Estate … by reason of (i) her conduct in acting contrary to the testamentary intentions of the Deceased and the interest of the Estate … and (ii) that it is otherwise necessary or convenient that [P] should not be appointed as an executrix or personal representative of the Estate; and accordingly that only [D1] and [D2] be appointed and constituted executrices and trustees of the Estate.”

They accordingly counterclaim for an Order that P be passed over from acting as an executrix or trustee, and that only D1 and D2 be appointed as such.

13.  Ma/WS comprises only 6 pages. Therein, Ma gives his view on the Deceased while at work. He says that he did not see any significant change in the Deceased throughout 2015 and up until he suffered a stroke in January 2016. He describes his knowledge on the children and his working relationships with them.

14.  Kuok/WS comprises only 7 pages. Therein, Kuok describes himself as being independent of any party in these proceedings. He gives some description of the Chevalier Group. He gives his view on the Deceased whilst at work. He gives his observation on the Deceased’s health and mental state before his stroke. He states how he was asked to step up and continue with the management of the Chevalier Group after the Deceased’s stroke, and briefly how the Chevalier’s Board continues with its work after the Deceased’s death.

15.  Tam/WS comprises only 5 pages. Therein, Tam describes his working with the Deceased. He gives his view on the Deceased’s physical and mental conditions in 2015 and 2016. He states that he did not note anything unusual with the Deceased’s health condition during 2015 and up until he had the stroke.

C.  P’s Summons

16.  By summons of 25 May 2023 (the “Summons”), P sought inter alia leave to file the Supp WS (§1 of the Summons) and Ko/WS (§2).

17.  The Summons is supported by the 10^th affirmation of Fenn Kar Bak Lily. Ms Fenn is P’s solicitor. Several bases for the application have been put forward, principally: (1) to provide new factual evidence in response to Kuok/WS, Ma/WS and Tam/WS, which factual evidence is said to be relevant to the mental state and conditions of the Deceased, (2) to respond to Ds’ answers to P’s interrogatories, (3) to provide factual information to facilitate preparation of further psychiatric evidence, and (4) to clarify certain facts set out in P/WS.

18.  The call-over hearing took place on 16 June 2023 before Master Leung. Ds objected to the Disputed Paragraphs, principally on the basis of irrelevance[5]. Having heard parties, Master Leung allowed §2 of the Summons, but adjourned §1 for argument.

19.  The substantive hearing took place on 10 July 2023. After a contested hearing, Master Leung made inter alia the Expunging Order.

20.  Without prejudice to any appeal against the Expunging Order, the Revised Supp WS was on 18 July 2023 filed.

21.  On 21 July 2023, P filed her Notice of Appeal herein. She seeks thereby to set aside the Expunging Order.

D.  The applicable legal principles on the filing of supplemental witness statements

22.  I have been cited a number of authorities[6]. The following considerations are beyond dispute:

(a)  Issues are defined by pleadings. They dictate what issues being live;

(b)  A witness statement on facts is the witness’ narrative account of the live issues;

(c)  The Court has power under Order 32 to regulate the filing and exchange of witness statements. Those powers shall be exercised for the purpose of disposing fairly and expeditiously the cause or matter before it, and saving costs. Regard should be made to all circumstances, including the facts in dispute and the issues as defined, relevance of the contents, their probative value, expedition, proportionality and fairness between the parties. The Underlying Objectives should always be given effect to;

(d)  Whilst there is no express provision in the Rules to this effect, the Court has power to direct the filing of supplemental witness statements. The above considerations equally apply. Indeed more so, as parties have by then filed at least one round of statements;

(e)  Allowing a supplemental witness with little or tangential probative value to be filed unnecessarily blur or confuse the real issues, and distract the Court and the parties from them.

E.  Parties’ stances

23.  Mr Chan’s position in summary is that “the Disputed Paragraphs are plainly relevant as they raise matters which are necessary and will require resolution by the trial judge in order to properly resolve the core disputes in the probate action.”

24.  Ms Wu’s position is that they are not. She points in particular to Ms Fenn’s 10^th affirmation. She submits that in respect of the Disputed Paragraphs, the bases put forward in support are not made out.

25.  I will as appropriate consider below further their submissions on the individual Disputed Paragraphs.

F.  P’s overarching submissions

26.  Mr Chan in his written submissions deals with the Disputed Paragraphs in groups. I will adopt his grouping in the subsequent discussions. But before doing so, I deal with a number of overarching submissions he has made in relation to all the Disputed Paragraphs.

F.1.  Overarching submissions#1

27.  First[7], Mr Chan submits that the Ma/WS, Kuok/WS and Tam/WS are put forward by Ds as independent witnesses, that P had no prior knowledge of D’s intention to call them, so that “as a matter of procedural fairness, P should be allowed an opportunity to speak to those individuals who intend to give evidence as independent witnesses”.

28.  Whilst what Mr Chan has submitted is factually and chronologically correct, whether the contents of the Disputed Paragraphs should be allowed in is still dependent upon what about “those individuals” which P wants to “speak to”. The considerations discussed in section D above will still have to be considered.

F.2.  Overarching submissions#2

29.  Second[8], Mr Chan points to §309 of the Supp WS, which Ds did not object to. §309[9] reads as follows:

“[V] LACK OF IMPARTIALITY OR OBJECTIVITY

309. The allegations of [Kuok], [Ma] and [Tam] about Father’s mental and physical fitness in 2015 and January 2016 are not credible or objective. Their comments are affected by their personal interests and benefits received as stated above which are not exhaustive. I respectfully ask this Honourable Court to approach their evidence with caution.”

Mr Chan hence “invites this Court not to view the Disputed Paragraphs in absolute isolation vis-à-vis the issues likely to be disputed at trial. Instead, it is through the prism of credibility and/or objectivity that the Disputed Paragraphs ought to be considered and assessed.”

30.  Two points arise from those submissions. Firstly, as submitted by Ms Wu, apart from the Disputed Paragraphs, there are other parts within the Supp WS wherein P makes the allegation of personal interests and benefits against Kuok – see §268 of the same. Ms Wu informed the Court that that was the reason why §309 was not objected to. I accept Ms Wu’s submissions in this regard.

31.  The second point is a more substantial one, arising from the case of HKSAR v Ng Fan Ying (2021) 24 HKCFAR 428.

32.  I noticed that Ng Fan Ying (and the authorities and principles discussed by the Court of Final Appeal therein) was originally not dealt with in counsel’s written submissions. By written directions issued on the day before the hearing, I requested counsel to do so.

33.  At the outset, it is important to appreciate that the label of “credibility and/or objectivity” does not give any party the carte blanche entitlement to adduce evidence without regard to relevance and proportionality. Appreciation of the distinction between “primary issues” and “collateral issues”, albeit mostly discussed in the context of cross-examination in criminal trials, is equally important in civil cases. As explained by Lord Phillips of Worth Matravers NPJ in HKSAR v Kong Wai Lun (2015) 18 HKCFAR 7 at [27] to [28][10] (with emphasis added):

“27. Two basic common law principles as to the admission of evidence are in play on this appeal. The first is that no evidence is admissible unless it is relevant to an issue in the case. The second is that evidence should not be admitted if its probative weight is insufficient to justify the complexity that it will add to the trial. Whether in a criminal or a civil trial the judge should be astute to prevent the primary issues becoming obfuscated as the result of the admission of evidence of insufficient significance to justify the additional burden that it will impose on the hearing. These principles apply as much to a voir dire as they do to the trial itself.

28 In applying these principles it is helpful to distinguish between primary issues and collateral issues. Whether an event upon which the prosecution relies in fact occurred is a primary issue. Evidence that such an event did or did not occur is primary evidence. A collateral issue does not bear directly on whether a primary fact in issue occurred. It bears on the reliability of the primary evidence. The second principle normally applies only in relation to evidence that goes to a collateral issue.”

34.  In this same context, the 5 general principles explained by Li CJ in HKSAR v Wong Sau Ming (2003) 6 HKCFAR 135 at [23] to [26][11] should be reiterated. They may be summarised and understood as follows:

(a)  Firstly, where the veracity of the witness is challenged on cross-examination as to credit, cross-examination about discreditable acts is widely permitted. That is however subject to the judge’s discretion to disallow improper questions;

(b)  Secondly, the “cardinal test of relevance” applies. The subject matter of the cross-examination must be relevant to the witness’s veracity. Relevance is a matter of degree;

(c)  Thirdly, in applying the test of relevance, and in the exercise of the court’s discretion, the main consideration is materiality, in the following sense which Li CJ explained:

“… if the truth of the imputation conveyed would materially affect the court’s opinion as to the witness’s veracity on the subject matter of his testimony. Conversely, questions in cross-examination as to credit are usually not permissible if the truth of the imputation conveyed would not have any material impact on such opinion. The imputation may relate to matters which are so remote in time or are of such a kind that the truth of the imputation would not have any material impact on the court’s assessment of the witness’s veracity.”

(d)  Fourthly, the “finality rule” applies to answers to such cross-examination, because, as explained by Li CJ at [26]:

“The rule is conducive to a fair trial. Its rationale is that, as a matter of commonsense, a criminal trial should be kept within proper limits. The court should focus on the issues in the case. Its attention should not be diverted to collateral issues such as credit, the exploration of which may unnecessarily blur or confuse the real issues in a cloud of detail. Although the rule has sometimes been criticized, it is well-established and necessary.”

(e)  Fifthly, the “finality rule” is subject to established exceptions. They allow proof by independent evidence of matter which tend to affect the credibility of the witness. The learned Chief Judge however did not find it necessary to go into details of those exceptions in Wong Sau Ming.

35.  In the subsequent case of Kong Wai Lun, Lord Phillips NPJ at §§31-33 referred to those five general principles. At §34, His Lordship summarized the position as follows:

“Cross-examination as to credit should be permitted in relation to any matter that, if proved, will diminish a witness’s credibility. This may be a failure to tell the truth on an earlier occasion, or some quite different type of misconduct, providing only that it bears logically on the weight that should be accorded to the witness’s word. Where a prosecution witness denies, under cross-examination as to credit, that he has been guilty of misconduct of a kind that would damage his credibility, evidence that unequivocally rebuts his denial, such as a finding by a court or tribunal to this effect, should normally be admitted for that purpose. Where, however, the truth of the allegation of misconduct made against the witness cannot be determined without what is, in effect, a separate trial relating to that issue, the finality rule will normally preclude the calling of evidence to challenge his denial.”

36.  I pause here and make one observation. Mr Chan in his oral submissions made reference to the above summary of Lord Phillips NPJ. He highlighted the words “diminish a witness’s credibility” and “providing only that it bears logically on the weight that should be accorded to the witness’s word.” To the extent of Mr Chan seeking to argue that Lord Phillips NPJ propounded criteria different from those explained by Li CJ as part of the third general principle, I do not accept those submissions. Lord Phillips NPJ was there only summarizing the observations and explanations made by Li CJ in Wong Sau Ming. His Lordship did not in my view seek to propound any different considerations. The consideration remains one of materiality as explained by Li CJ.

37.  The position is revisited by Lam PJ in the later case of Ng Fan Ying:

(a)  His Lordship stressed that the rationale for permitting cross-examination on credit stems from the materiality of a line of questioning on the assessment of a witness’s veracity, but since the ultimate benchmark is relevance which is a matter of degree, it would be unwise and indeed impossible to lay down hard and fast rules ([32]);

(b)  His Lordship however highlighted the requirement of laying a proper foundation for casting an imputation of misconduct against a witness ([33]-[34]), that:

“33. Recently, the Judicial Committee of the Privy Council examined the common law principles governing cross-examination of a witness as to credit in Clarke v Trinidad and Tobago. Lord Lloyd-Jones succinctly summed up the position as follows at [40]:

At common law, therefore, the judge had a discretion to permit cross-examination as to credit. In exercising that discretion he was required to have regard to whether such questions would seriously affect the jury’s view of the credibility of the witness, to whether the misconduct relied upon had a solid foundation, to the fairness to the witness of permitting such cross-examination and to whether such cross-examination would be a distraction from the real issues in the case. An appellate court may not interfere with the exercise of such a discretion unless it is clearly wrong or wrong in principle.

34. The need for having a solid foundation for an imputation of misconduct was explained in Persad v Trinidad and Tobago which was cited at [39] of Clarke v Trinidad and Tobago:

Behind all this is the necessity of securing a fair trial for the accused person consistently with fairness to a witness. It is not fair for a witness to be assailed with unproven allegations of misconduct or with mere suspicions of past malpractice. Nor is it acceptable for the time of the court to be taken up with matters extrinsic to the case in hand nor for the jury to be distracted from the issue before them by inquiries into uncertain and unresolved issues about the earlier conduct of a witness. The investigation of a witness’s reliability in the course of cross-examination must be kept within bounds. It cannot be allowed to degenerate into a ranging and speculative inquiry into any or all of the occasions on which the witness has given evidence in the past.”

(c)  His Lordship at [37] again stressed the significance of the distinction between primary and collateral issues, that:

“Whilst judges at times find the distinction between cross-examination on primary issues and cross-examination as to credit difficult to draw, it is recognised that such distinction is important and necessary in order to confine the ambit of a trial within proper limits and to ensure that the trial is focused on the central issues instead of being side-tracked by collateral issues. The principles governing cross-examination on credit and the finality rule are premised on such distinction.”

(d)  His Lordship at [45] to [46] states again the principles and considerations:

“45. On the other hand, in cases where the cross-examination is relevant only to a challenge on the credibility of a witness, the usual restriction and the finality rule should be applied even when the evidence of the witness is of crucial importance to the prosecution case. At the same time, whilst it is essential to prevent the primary issues becoming obfuscated as a result of unrestricted admission of evidence on collateral issues, a trial judge should pay regard to fairness and justice in the particular circumstances of the case. When it is demonstrated that the probative value of a line of cross-examination on credit clearly outweighs any potential for confusion or obfuscation by the introduction of collateral issues, the discretion should be exercised in favour of permitting cross-examination.

46. In making the abovementioned assessment, the proximity or remoteness of the topic for cross-examination in connection with the subject matter of the charge is relevant. But it is also relevant to consider whether there is a solid foundation for casting an imputation on the credibility of a witness by reference to that topic. This approach is reflected in the two threshold requirements laid down in Wong Sau Ming in the context of cross-examination by reference to a previous acquittal.”

38.  In my view, all the discussions summarized above equally applies, if not a fortiori, to civil cases. Mr Chan’s second overarching submissions have to be considered with the authorities and principles discussed above borne in mind.

F.3.  Overarching submissions#3

39.  In the course of his oral submissions, Mr Chan repeated on a number of occasions that the question of relevance should be left to the trial judge.

40.  Whilst the trial judge will no doubt in the course of the trial need to resolve disagreement on relevance or irrelevance of evidence and lines of cross-examination, it does not mean that the Court during the interlocutory stage in discharge of their case management functions have no role to play. If the Disputed Paragraphs fall foul of the considerations as discussed above, it is only right that the Court should intervene at this stage. The contrary (or leaving the determination to the trial judge) would in effect be putting Ds through the predicament of incurring time and costs on preparing for distracting collateral issues with insufficient probative value. Ds would thereby also be unfairly distracted from the real issues. Such an approach is contrary to the Underlying Objectives, and are against the interest of justice.

41.  I however accept Mr Chan’s submission that at this stage when considering whether leave should be granted for a supplemental witness statement to be filed, paragraphs may only be expunged in clear cases upon the application of the principles and considerations discussed above. The position, I agree, may be likened with a position of striking out.

F.4.  Overarching submissions#4

42.  In his supplemental written submissions, and with the benefit of Ng Fan Ying and the authorities therein discussed, Mr Chan submits that the matters raised in the Disputed Paragraphs provide the factual foundation for P to mount a challenge in cross-examination as to the credit and independence of Ma, Kuok and Tam.

43.  In my view, the provision of factual foundation in the context of a collateral issue is not by itself a valid and sufficient reason which justifies the adducing of those facts. The question remains whether the allegation and imputation which P says the facts may provide foundation for may be received in accordance with the principles and considerations discussed above. If not, the provision of any foundation for them will fall foul of the common law principles explained by Lord Phillips NPJ in Kong Wai Lun.

G.  The approach

44.  With the discussion on the law above in mind, in deciding this appeal, I adopt the following principled approach:

(a)  The first step is to identify what facts and imputation the Disputed Paragraphs concerned seek to establish and support;

(b)  Then, with the pleaded issues in mind, consider whether those identified facts and imputations are relevant to any primary issues;

(c)  If yes, the evidence may be admitted;

(d)  If not, than bearing in mind the “cardinal test of relevance”, whether the identified facts and imputations are relevant to the collateral issue of credibility, veracity, reliability or objectivity:

(i)  The question is whether the identified facts and imputations materially bear upon the collateral issue;

(ii)  If not, the evidence should not be admitted;

(iii)  But as relevance in this context is a matter of degree, cases are not always clear cut. Hence other than in clear cut cases, considerations will be given as to whether any probative weight of the identified facts and imputations is insufficient to justify the complexity that they will add to the trial, bearing in mind at all times in particular (hence not exhaustive) the Underlying Objectives, the need to confine the ambit of a trial within proper limits so as to ensure that the trial is focused on the primary issues, the notion of fairness to both the parties and the witness, procedural economy and cost-effectiveness;

(e)  Evidence at this stage is only expunged in clear cases upon the application of the above.

H.  §§275 to 278

45.  I consider first §§275 to 278 amongst the Disputed Paragraphs.

H.1.  Their contents in gist

46.  They are in the Supp WS under the sub-heading of “Ma”, which sub-heading is in turn under the heading of “KUOK, MA AND TAM: EXECUTIVE DIRECTORS OF CHEVALIER”.

47.  In gist:

(a)  In §275, P states that “Ma has received substantial increments in his salary (of 2.53 folds from 2015 to 2022), which was the result of Mr Kuok's proposal to the Remuneration Committee”. Ma’s annual salaries from 2015 to 2022 are then set out in a table;

(b)  In §276, P states her view that “For some causes which defied reasoning, since 2015, the work of Mr. Ma seemed to be particularly impressive to Mr. Kuok. It is unwarranted and totally disproportionate to Mr. Ma’s poor and disappointing performance at Chevalier since 2015.” She then gives the “Senior Housing Project” as one (but only one) example of “disappointing performance”, and gives figures on its accumulated operational loss for several years, including the “anticipated operation loss” revealed in the unaudited report in March 2023;

(c)  In §§277 and 278, P raises Ma’s request for and Kuok’s approval of payment of Ma’s entrance fee into the Hong Jockey Club be borne by Chevalier, Chevalier’s usual practice in that regard, and Chevalier’s ultimate payment of HK$575,000 for that purpose;

(d)  In short, §§275 to 278 allege personal benefits to Ma with the approval of Kuok disproportionate to Ma’s competence and performance.

H.2.  Discussion

48.  I have summarized the contents of Ma/WS and Kuok/WS.

49.  In his submissions[12], Mr Chan points out that Ma and Kuok are put forward as independent witnesses. He submits that the paragraphs in this group raise “a very important and relevant matter which will require resolution by the trial judge”. He submits that “the issue raised is obvious and relevant: Ma had received corporate benefits and substantial salary increments in spite of his work performance at Chevalier. The substantial increment was approved by the Remuneration Committee in response to Kuok’s proposal. Whilst whether this was part of a quid pro quo arrangement or otherwise are matters which P is entitled to raise and ought to be allowed to speak to these factual matters within her knowledge.” He submits that those factual allegations “are evidently relevant to Ma’s credibility and objectivity”, that the “Supp WS in this regard lays down the factual basis for P to raise issues on the credibility and reliability of their evidence”, and that the “matters raised in the Disputed Paragraphs provide the factual foundation for P to mount a challenge in cross-examination as to their credit and independence.” He submits that Ma’s evidence was relied upon by P’s medical expert. He submits further that those paragraphs provide context to §309.

50.  Ms Wu submits that those paragraphs are not relevant to the “real issue in dispute, viz the validity of the [Disputed] 2015 Will”, and that they are also irrelevant “even regarding the credibility of Ma on the health and condition of the Deceased.”

51.  This is not a corporate action. The disagreements are not corporate disputes. The primary issue raised by P is the validity of the Disputed 2009 Will and the Disputed 2015 Will, the latter of which turns on Father’s mental capacity, his knowledge and approval of its terms, and his animus testandi. Ds’ Counterclaim raises the additional primary issues as to whether P should be passed over.

52.  Clearly, the factual allegations in this group of Dispute Paragraphs are not relevant to any of the primary issues.

53.  In my view, the allegations are not relevant to the collateral issue of credibility, veracity, reliability or objectivity of Ma or Kuok:

(a)  Ma and Kuok are put forward as witnesses independent of the parties to the action. The allegations cannot change that;

(b)  The allegations are highly speculative. They also ignore, as submitted by Ms Wu, the involvement of the Remuneration Committee. They hardly provide any basis for the imputation P seeks to make;

(c)  Ma/WS and Kuok/WS go principally to the general health and mental of the Deceased. The allegations and imputations are remote, and relate to matters of such a kind that the truth of the imputation would not have any material impact on the court’s assessment of Ma’s and Kuok’s credibility, veracity, reliability or objectivity vis-à-vis the evidence they intend to give;

(d)  Any reference by P’s medical expert of any contents of the Supp WS does not per se make those contents relevant.

54.  In any event:

(a)  The allegations and imputations, if to be established, would involve the investigation of a lot of issues outwith the primary issues, some being:

(i)  Whether the increments to Ma’s salary was indeed “unwarranted ” and “disproportionate”, and whether Ma’s performance had been “poor and disappointing”;

(ii)  The performance of the Senior Housing Project in the US, and whether its accumulated operational loss was attributable to Ma’s performance;

(iii)  P has given only the Senior Housing Project as an “instance” of Ma’s alleged “poor and disappointing” performance. Are there other instances? Are there other counter-instances?

(iv)  In respect of the payment of Jockey Club entrance and other fees, Chevalier’s related practice, and the rationale behind acceding to Ma’s request for payment would have to be looked into;

(v)  The propriety (or otherwise) of revealing in the Supp WS information which was not yet in the public domain (namely information in the unaudited report of 2023), thereby giving rise to the concern of revelation of “inside information”;

(b)  Relevance is a matter of degree. Any relevance which the contents of those paragraphs bear is, assuming any in P’s favour, at best minimal. Their probative value is far from being sufficient to justify the complexity which the additional enquiries would bring to the trial;

(c)  The primary issues should not be permitted to be blurred and confused thereby.

H.3.  Conclusion on this group

55.  For the reasons set out above, I am of the view that this is a clear case. I agree with Master Leung that this group of the Disputed Paragraphs should be expunged from the Supp WS.

I.  §§302 to 308, and 310

I.1.  Their contents in gist

56.  These paragraphs are under the heading of “CHEVALIER’S DECLINING CORPORATE GOVERNANCE AFTER FATHER’S SERIOUS STROKE”.

57.  §§302 and 303 are in turn under the sub-heading of “Vi Vi’s Direct Reporting to Mr. Kuok”.

58.  §302 talks about the role Father assigned to Vi Vi when she first joined in 2015, the small office she was arranged to use with Violet, the change of Vi Vi’s reporting to Kuok after Father’s stoke, and Vi Vi’s exposure to Chevalier’s business afterwards.

59.  In §303, P says that during the years after Father’s stroke, Kuok was the one who nurtured Vi Vi, that they worked closely together in 3 departments, that it was “intriguing and very unusual” that the officer who originally led those departments was by-passed, that although Vi Vi failed to prove her competence, Kuok repeatedly assigned her to be in charge of certain tasks and to report to him directly, and that “This is totally inappropriate for Mr. Kuok, as a Chairman to attend to such matters in person.”

60.  §304 is under the subheading of “Vi Vi’s relocation of office endorsed by Mr. Kuok”. P therein talks about how she says Vi Vi unreasonably, against P’s recommendation, but with Kuok’s endorsement, relocated herself and a team of staff to a different office, resulting in loss of rental income for Chevalier.

61.  §§305 to 307 are under the sub-heading of “Exclusion from Interview Panel for the Recruitment of Chief Financial Officer”. P describes her involvement in the recruitment of the Chief Financial Officer in 2016, that that officer resigned in 2022, but that she was in 2022 not “invited to sit on the interview panel over a period of half a year”, and that “I believe Mr Kuok has already put me on the side-lines and ostracised me from the top management of Chevalier, as opposed to the situation in 2016.”

62.  §308 is under the sub-heading of “Surprise Dinner Party for Mr. Kuok”. P describes therein how Vi Vi organized and give a surprise party to Mr Kuok in December 2022 at the expense of Chevalier. P says that Vi Vi “took matters into her own hands ignoring the established corporate governance of Chevalier and established an unnecessary precedence”, and that “This is another example of favouritism she tried to win from Mr. Kuok and a benefit in kind offered to and accepted by Mr. Kuok.”

63.  §310 is under the heading of “LACK OF IMPARTIALITY OR OBJECTIVITY”. P says that Kuok, Ma and Tam “can form a majority … on the Board of Chevalier”, that they “working as a team, can secure de facto majority control”, that they “can team-up together to attain their self-interests”, and that “As years passed by and my Father’s deteriorating mental capacity and health, he became the ‘elephant in the room’, the influence and power of Kuok within Chevalier became increasingly obvious with the assistance of Ma and Tam, they formed a small circle amongst themselves especially after Father’s death.”

64.  In short, those paragraphs concern Kuok’s alleged role after Deceased’s stroke, how he is said to have been nurturing Vi Vi despite her lack of competence, how he endorsed Vi Vi’s conduct in relation to her room location said to be detrimental to Chevalier’s interest, how Vi Vi gave him a surprised party contrary to established practice, how P was allegedly kept away from the interview panel for the engagement of CFO, and how Kuok, Ma and Tam can form a majority on the board.

I.2.  Discussion

65.  Again, clearly, none of those facts and allegations are relevant to any primary issues.

66.  In my view, they are also not relevant to the collateral issue of credibility, veracity, reliability or objectivity of any of the witnesses:

(a)  Again, the nature of Kuok/WS has to be borne in mind. It is on the general health and mental conditions of the Deceased;

(b)  The allegations and imputations are speculative. The named events of Kuok allegedly nurturing Vi Vi, giving her exposure to company works, endorsing relocation etc, are so remote and so different from his views on the Deceased’s health and mental conditions that they hardly bear on his objectivity vis-à-vis those views;

(c)  In the course of oral submissions, Mr Chan went further and submitted that Vi Vi is going to be a very powerful person within Chevalier, so that in effect Kuok was siding with her. In my view, such attempted imputations go even further away from any primary and collateral issues, and fade further down the scale of relevance;

(d)  The reasons behind P not being invited into the interview panel hardly supports P’s alleged belief that “Mr Kuok has already put me on the side-lines and ostracised me from the top management of Chevalier”. The imputation is speculative. Equally speculative is P’s allegation and imputation that (with emphasis added) Kuok, Ma and Tam “can form a majority”, “can secure de facto majority”, and “can team-up together to attain their self-interests”, leading somehow to her further view that “they formed a small circle amongst themselves”;

(e)  Again, I stress that this is not a company case. The allegations and imputations in those paragraphs are remote, and relate to matters of such kinds that the truth of the imputations would not have any material impact on the court’s assessment of Ma’s and Kuok’s credibility, veracity, reliability or objectivity vis-à-vis the evidence they intend to give.

67.  In any event:

(a)  The allegations and imputations, if to be established, would involve the investigation of a lot of issues, some being:

(i)  Whether Kuok has nurtured Vi Vi;

(ii)  Whether Vi Vi lacked competence;

(iii)  The relative interests of Chevalier when Vi Vi’s options of relocation are compared;

(iv)  Chevalier’s practice on giving parties to its officers;

(v)  Why P was not invited to the interview panel;

(vi)  Whether P has been side-lined and ostracized;

(vii)  Whether Kuok, Tam and Ma have teamed up for personal self-interest;

(viii)  Whether there have been breaches of fiduciary duties by Kuok, which allegations and imputation Kuok may be compelled to defend. The making of such allegations and imputations against Kuok and Vi Vi where the primary issues do not call for, and where the foundation is speculative, is highly unfair to them;

(b)  I repeat. Relevance is a matter of degree. Any relevance which the contents of those paragraphs bear is, assuming any in P’s favour, at best minimal. Their probative value is far from being sufficient to justify the very complex additional enquiries which those allegations and imputations would bring to the trial;

(c)  The primary issues should not be permitted to be blurred and confused, and the trial unnecessary laden, thereby.

I.3.  Conclusion on this group

68.  For the reason set out above, I am of the view that this is a clear case. I agree with Master Leung that this group of the Disputed Paragraphs should be expunged from the Supp WS.

J.  §311

J.1.  Its contents in gist

69.  §311 is under the heading of “MANDY’S SERVICES RENDERED TO THE CHOW FAMILY”. There, P is talking about Mandy Cheuk. P says that Vi Vi and Mandy Cheuk were law school classmates, that owing to Mandy Cheuk’s “unhappy marriage, and out of my sympathy with Mandy’s situation”, P instructed her to perform some minor legal work in conveyancing, that Father had his close and trusted friends in the legal professionals (whom she gave some examples), and that “Mandy and her firm was never considered as a family lawyer of the Chow family to be entrusted with any important work or advice at all.”

J.2.  Discussion

70.  As mentioned above, Mandy Cheuk was the attesting solicitor of the Disputed 2015 Will. I accept Mr Chan’s submission that Mandy Cheuk’s “testimony will be closely dealt with at trial.”[13]

71.  I mention one matter lest I be misunderstood. The fact that the testimony of a particular witness is important does not provides the cross-examiner with unrestricted freedom to cross-examine on the collateral issue of credit. As observed by Lam PJ in Ng Fan Ying at [40]:

“Whilst the restriction on cross-examination as to credit should be applied with flexibility, I cannot accept that once it is demonstrated that the credibility of a witness is of crucial importance the court should give free rein to counsel in the cross-examination on credit and the calling of evidence in rebuttal.”

72.  The importance of Mandy Cheuk’s evidence apart, I note that D2 in D2/WS at §40 has set out her version of facts as to why and how Mandy Cheuk was engaged to prepare the Disputed 2015 Will. Mandy Cheuk has also in Cheuk/WS herself stated some background facts leading to her engagement to prepare the Disputed 2015 Will.

73.  I can therefore see the relevance of §311 on the primary issues.

74.  Further, D2 and Mandy Cheuk having introduced such background facts, and whilst appreciating that it is not the function of witness statements to rebut points and exchange punches, I see the force of Mr Chan’s submission that the notion of fairness justifies P’s introduction of §311.

75.  I have considered, despite my view above, specifically the relevance of the words “unhappy marriage, and out of my sympathy with Mandy’s situation”. One way to look at it is this, that P is not introducing as any issue Mandy Cheuk’s marital status, but only P’s own view on it to justify what she subsequently did. In this sense, I see the relevance.

76.  Having considered all matters, I am of the view that in respect of §311, this is not a clear case for expunging.

J.3.  Conclusion on §311

77.  For the above reasons, I allow §311 to remain.

K.  §321

K.1.  Its contents

78.  It is under the heading of “VIOLET’S ACCUSATION AGAINST ME”. Therein, P says:

“In response to Paragraph 122 of [D1/WS], I believe Father raised Violet’s salary to comfort her owing to the wide salary gap between that of Violet’s and Vi Vi’s. Such salary increment was not necessarily an indication, of Father’s appreciation of Violet’s work performance or her importance. I had never heard Father mention Violet and Vi Vi as his ‘最後兩隻棋’ in front of anyone or myself. As the eldest daughter of the Chow Family and one of the long-serving Executive Directors in Chevalier, I have never had to scramble for power among my siblings. Violet and Vi Vi were only treated by Father as subordinates in the hierarchy of Chevalier and in the Chow family throughout the years, let alone giving all his shares in Chevalier to Violet absolutely, which contradicts his true intention of putting all his shares of Chevalier into a family trust and in good hands. Violet and Vi Vi were not involved in the management of Chevalier, and they were not considered by Father as his successors, otherwise they would have been appointed Executive Directors of Chevalier.”

K.2.  Discussion

79.  The contents of §321 are not relevant to the primary issues.

80.  As stated on its face, §321 is introduced in response to §122 of D1/WS.

81.  §122 of [D1/WS] reads as follows:

“It was in or about November 2015 when Father mentioned to me that he would like to get me more involved in the business of Chevalier. He also substantially raised my salary to the level commensurate with that of senior management personnel. Father had previously said several times to Vi Vi and me that we were both his ‘最後兩隻棋’. In September 2015, Vi Vi joined Chevalier upon Father's request. Seeing Vi Vi and me getting more involved in the business of Chevalier at Father's request, Lily’s hostility and hatred against me escalated.”

82.  D1 has introduced §122. Again, whilst appreciating that it is not the necessary function of witness statements to rebut points and exchange punches, I see the force of Mr Chan’s submission that the notion of fairness justifies P’s introduction of §321, and in particular to state her case as to her belief, and what she has or has not heard,

83.  Apart from alleged irrelevance, Ms Wu objects to §321 on that basis that its contents are “Not facts within the person knowledge of Lily but her own subjective belief or speculations”.

84.  The statement of subjective beliefs may or may not be objectionable. It is dependent upon the purpose for which such beliefs are introduced.

85.  D1 has introduced in §122 the facts of her perception that “Lily’s hostility and hatred against me escalated ”. I see the relevance of §321 to the collateral issue of the credibility, veracity and reliability of D1. In my view, the introduction of §321, confined principally to the relationship between Father and P, D1 and D2, will not unduly obscure or obfuscate the primary issues.

K.3.  Conclusion on §321

86.  For the above reasons, I allow §321 to remain.

L.  Overall Conclusion

87.  I have considered above the Disputed Paragraphs in groups, in the way Mr Chan approaches them. I have also considered them together. Doing so does not alter my views and conclusions as stated above.

88.  For the above reasons, I expunge §§275-278, 302-308 and 310. I allow §§311 (together with the heading) and 321 to be introduced, and grant P leave to do so. A new revised supplemental witness statement may be filed within 7 days from the date hereof. I leave parties to decide whether the section and paragraph numbering of the Revised Supp WS after the relevant insertions need to be redone, or whether to insert the 2 paragraphs using suffixes after the inserted paragraph numbers.

89.  In respect of §§275-278, 302-308 and 310, the appeal is dismissed. In respect of §§311 (together with the heading) and 321, the appeal is allowed.

M.  Costs

90.  To reflect the overall conclusion, but noting the number of the Disputed Paragraphs which appeal I have dismissed and their relative importance, I make a costs order nisi that P shall bear 60% of the costs of and occasioned by the Summons and this appeal, with certificate for 2 counsel when 2 were involved, to be summarily assessed. Any application for variation may be made by letter to this court within 7 days from the date of this Decision, upon receipt of which this Court will hand down further directions, with the view of dealing with the same on the papers. In the absence of any application for variation, Ds shall within 14 days from the date of this decision lodge their statement of costs, P to lodge her statement of objection 7 days afterwards, and Ds to lodge their reply within 7 days afterwards.

Mr Edward Chan SC leading Mr Abel Lam, instructed by Lily Fenn & Partners, for the Plaintiff

Ms Teresa Wu and Ms Jacqueline Law, instructed by P.C. Woo & Co, for the 1^st and 2^nd Defendants

HCAP 22/2019

[2024] HKCFI 423

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 22 OF 2019

_________________

BETWEEN

_________________

________________

DECISION

________________

INTRODUCTION

1.  Two summonses filed by the plaintiff and the defendants respectively (“the Summonses”) have been fixed to be heard at the Initial Case Management Conference today, for the purpose of seeking further expert directions.

2.  This is the Decision for the Summonses.

BACKGROUND

3.  The background of the present case has been set out by Deputy High Court Judge Leung in [1] – [21] of his Decision dated 30 July 2020 ([2020] HKCFI 1792), and I do not propose to repeat the same here.

4.  On 16 February 2022, a Master gave, among other things, the following expert directions (“the February 2022 Order”):

(1) Leave be granted to the defendants to appoint Mr Leung Sze Chung (“Mr Leung”) as their handwriting expert;

(2) Leave be granted to the defendants to adduce an expert report to be prepared by Mr Leung within 12 weeks on the authenticity of a number of signatures and handwritings;

(3) Leave be granted to the plaintiff to file and serve a Rebuttal Expert Report within 90 days thereafter;

(4) Leave be granted to the defendants to file a Supplemental Expert Report in reply to the plaintiff’s Rebuttal Expert Report within 60 days thereafter.

5.  On 1 April 2022, Master Hui enquired with the parties as to, among other things, whether it would be more helpful to the trial judge to have a joint report from the experts.

6.  By a joint letter dated 14 April 2022, parties expressed their agreement that a joint report identifying issues on which the parties have reached a common consensus and those on which they have not reached such consensus would be more useful to the trial judge. The relevant part of the said joint letter reads:

“[…] The parties agree that it would be more useful to the trial judge to have a joint report from the parties’ respective experts identifying the issues on which the parties have reached a common consensus on and the issues on which the experts have failed to reach a common consensus on.

In view of the above, please find enclosed a copy of the parties’ agreed proposed directions for the Court’s consideration”

7.  The proposed directions read:

“1. It is no longer necessary for the 1^st and 2^nd Defendants to file and serve an expert report in reply to the Plaintiff’s Rebuttal Expert Report;

2. The Parties shall within 42 days after the service of the Plaintiff’s Rebuttal Expert Report make arrangements for their experts to meet either physically or virtually by way of video conference on a without prejudice basis and with a view to agreeing or narrowing down the expert issue(s) to be decided by the Court. The joint meeting of the experts shall be held within 42 days thereafter;

3. Within 42 days after the joint meeting, the experts are to prepare a signed joint report which succinctly identifies:

(a) the issue(s) on which the experts have reached a common opinion and in respect of each issue what that common opinion is; and

(b) the issue(s) on which the experts have failed to reach a common opinion and their competing views on each such issue. The experts shall state the reasons for their disagreement with the opposing views.” (emphasis added)

8.  On 28 April 2022, Master Hui made, among other things, order in terms of the above proposed directions (“Master Hui’s Order”).

9.  Pursuant to Master Hui’s Order, the defendants filed and served their handwriting expert report on 31 August 2022 (“Ds’ Expert Report”), whereas the plaintiff filed a Rebuttal Expert Report (prepared by her expert Ms Ellen Radley (“Ms Radley”)) on 28 July 2023 (“P’s Rebuttal Expert Report”).

10.  A without prejudice meeting had been held between the experts on 5 September 2023. There were also further communications between them thereafter.

11.  However, the experts could only reach consensus on the “Areas of Agreement” but were unable to reach any consensus on the “Areas of Disagreement” in the Joint Report.

12.  Ms Radley initially prepared a draft Joint Report with a short “Areas of Disagreement”, in which she stated that:

“28. There are no further areas of agreement between the experts. Mr Leung and Ms Radley disagree with each other’s findings and opinions.

29. Mr Leung has fully detailed his reasoning for the opinions he proffers within his report. Ms Radley has fully detailed her reasoning for the opinions she proffers within her report. Consequently, these reasons are not repeated in this Joint Report.”

13.  On 11 September 2023, Mr Leung proposed to Ms Radley that he would prepare his reasons for disagreeing to P’s Rebuttal Expert Report, and that it was up to Ms Radley to decide if she would do the same.

14.  On 10 October 2023, Mr Leung informed Ms Radley that he had completed his contributions to the “Areas of Disagreement” section of the draft Joint Report and invited her to opine how their respective contributions could be exchanged and inserted into the draft Joint Report. However, Ms Radley did not reply to Mr Leung on this.

15.  On 12 October 2023, Ms Radley called Ms Lily Fenn, the plaintiff’s solicitor, and explained her difficulty in reaching a consensus with Mr Leung. The difficulty stemmed from Ms Radley’s understanding that there should be no reply to her Rebuttal Expert Report. This tallied with Ms Fenn’s understanding. In Ms Fenn’s own words:

“10(5) […] Pursuant to [Master Hui’s] Order, they should engage in discussions and consolidate their competing views, agreeing on the issues/areas where they have agreed and issues/areas where they failed to reach a consensus, in order to assist the trial judge in narrowing down the expert issues.

(6) To allow Mr Leung to open new fronts of debate in the disguise of ‘Areas of Disagreement’ would have defeated the whole purpose of [Master Hui’s] Order, and contradicted parties’ common (as well as Master Hui’s) understanding in the Joint Letter as evidenced by the said Order.

(7) After Ms Radley informed me of the above, I confirmed her understanding that Mr Leung appeared to be going beyond what was permissible to be included in the Joint Report as directed in [Master Hui’s] Order.

(8) I provided her with a copy of the Joint Letter and [Master Hui’s] Order, and drew her attention to their contents, and asked her to provide the same to Mr Leung for his consideration.

(9) While Ms Radley did not immediately reply to Mr Leung, this, by itself, does not allow Mr Leung to disregard [Master Hui’s] Order.

(10) On 12 October 2023, Ms Radley called me twice to further explain her difficulty in reaching a consensus with Mr Leung regarding the drafting of the section on ‘Areas of Disagreement’.

(11) It was agreed between Ms Radley and myself that in the interest of time, she would send Mr Leung a signed version of the Joint Report that excluded the section on ‘Areas of Disagreement’ as the final version of the signed joint expert report on handwriting (‘Radley’s Version without Areas of Disagreement’).

(12) As a result, Ms Radley sent her Version without Areas of Disagreement dated 12 October 2023 to Mr Leung.

(13) I was informed by Mr Radley that she emailed her Version without Areas of Disagreement to Mr Leung at 12:47 on 12 October 2023 (UK time) for Mr Leung’s signature.

(14) I was also informed by Ms Radley that she did not intentionally leave the entire ‘Areas of Disagreement’ section blank for Mr Leung’s insertion of his reasons for ‘Areas of Disagreement’ as alleged by Mr Leung.”

16.  On 13 October 2023 (Friday) at 5:31pm, the plaintiff’s solicitors sent a letter to the defendants’ solicitors, enclosing a draft Joint Report prepared by Ms Radley for Mr Leung’s consideration (It should be noted that Ms Radley did not sign on this version of the draft). Mr Leung was asked to provide his comments on this draft Joint Report before 5pm on the following Monday (16 October 2023). In the “Areas of Disagreement” section of the draft Joint Report, there were only 2 paragraphs – see [12] above.

17.  On 16 October 2023, the defendants’ solicitors wrote to the plaintiff’s solicitors and stated that:

(1) They were informed by Mr Leung that he had received from Ms Radley another version of the draft Joint Report on 12 October 2023, which:

(a) bore Ms Radley’s signature on the Declaration page; and

(b) had intentionally left the “Areas of Disagreement” section blank for Mr Leung’s insertion of his reasons for “Areas of Disagreement”;

(2) On 13 October 2023, Mr Leung acknowledged receipt of the signed draft Joint Report by Ms Radley, and further confirmed that he would incorporate his reasons for the “Areas of Disagreement” between the “Areas of Agreement” section and the “Declaration” section in the Joint Report;

(3) On 16 October 2023, Mr Leung further sent a completed scanned Joint Report which was duly signed by him[1].

18.  Pausing here, it should be noted that the signed draft Joint Report (which was subsequently attached to the letter dated 27 October 2023 issued by the defendants’ solicitors to the plaintiff’s solicitors) indeed shows that Ms Radley had signed thereon, and that there was no “Areas of Disagreement” section contained.

19.  On the same day (16 October 2023), the plaintiff’s solicitors sent a letter to the defendants’ solicitors, and complained that Mr Leung has “essentially attached a signature page from a different document to his purported report dated 14 October 2023 without Ms Radley’s knowledge and consent”. It was further asserted that the said report dated 14 October 2023 is a forged document.

20.  On 27 October 2023, the defendants’ solicitors sent another letter to the plaintiff’s solicitors. Apart from denying that the Joint Report (dated 14 October 2023) sent on 16 October 2023 was a forged document as alleged, the defendants’ solicitors proposed that Ms Radley might provide her reasons for disagreement by 30 October 2023, so that the experts could come to a further agreed version of final draft Joint Report.

21.  On 30 October 2023, the plaintiff’s solicitors replied to the defendants’ solicitors and made, among others, the following points:

(1) As Ms Radley was at the time away from office, only a preliminary reply could be given;

(2) While Ms Radley did send her version of the Joint Report dated 12 October 2023 without the section on “Areas of Disagreement” with her signature appended thereto on the Declaration page to Mr Leung by email, she did not intentionally leave the entire “Areas of Disagreement” section blank for Mr Leung’s insertion of his reasons for “Areas of Disagreement”, as alleged by the defendants’ solicitors;

(3) Ms Radley very strongly objected to Mr Leung’s version of the Joint Report, to which she had never agreed to be filed in Court;

(4) The section on “Areas of Disagreement” was not agreed by Ms Radley;

(5) The format of the 14 October 2023 Report was never agreed by Ms Radley and Ms Radley did not agree that Mr Leung could incorporate or insert his reasons for the “Areas of Disagreement” which was not discussed or agreed;

(6) Mr Leung’s attempt to insert his unilateral version of the section on “Areas of Disagreement” contradicts the agreement reached by the parties, as explicitly stated in Paragraph 1 of Master Hui’s Order;

(7) The defendants’ proposal to introduce the “Areas of Disagreement” section is in violation of the agreed terms outlined in the parties’ joint letter to Master Hui and Master Hui’s Order.

22.  As a result, the joint expert report could not be finalised.

23.  This led to the filing of the Summonses.

THE SUMMONSES

24.  On 1 December 2023, the defendants filed a summons (“Ds’ Summons”) and asked for the following order:

“Leave be granted to the 1^st and 2^nd Defendants to file and serve a statement prepared by Mr Leung Sze Chung stating the reasons for disagreement in compliance with the Order made by Master Hui dated 28 April 2022.”

25.  On 11 January 2024, the plaintiff filed a summons (“P’s Summons”) and asked for the following orders:

“Paragraphs 3(a), (b), and 4 of the Order of Master Hui dated the 28^th day of April 2022 be superseded and replaced by the following order:-

(1) Within 28 days from the date of this Order, the handwriting expert of the 1^st and 2^nd Defendants, Mr Leung Sze Chung, and the handwriting expert of the Plaintiff, Ms Ellen Radley, are to prepare a signed joint report which succinctly identifies: -

(a) the issue(s) on which they have reached a common opinion and in respect of each issue what that common opinion is; and

(b) the issue(s) on which they have failed to reach a common opinion and their competing views on each such issue. They shall state the reasons for their disagreement with the opposing views.

(2) In preparing the signed joint report, the respective experts shall be confined only to reasons, arguments, references, materials, and/or citations already included in the Handwriting Expert Report prepared by Mr Leung Sze Chung filed on 31 August 2022, and the Rebuttal Handwriting Expert Report prepared by Ms Ellen Radley filed on 28 July 2023, and shall not go beyond the ambit of those said Reports.

(3) The Plaintiff shall file the signed joint report within 14 days thereafter.

DISCUSSION

26.  I regret to say that the whole saga was caused by the misunderstanding on the part of the plaintiff’s expert and the plaintiff’s solicitor of the expert directions and the requirement of joint statement (referred to as Joint Report herein) to be prepared by the experts:

(1) The plaintiff’s solicitor alleged in her Affirmation that the Joint Report was intended to be akin to a Scott Schedule, which would assist in identifying and narrowing the issues, and locating experts’ competing views which they should have already set out in their previous expert reports in a table format. With greatest respect, the function of the Joint Expert Report is more than that. It does not only serve to summarise the two expert reports in a table format. In fact, while a Scott Schedule may be useful in some cases in comparing the views of the experts, it does not necessarily mean that a Scott Schedule should always be used. It depends on the circumstances;

(2) The plaintiff’s solicitor said she believed that Master Hui also had the intention that the Joint Report should be akin to a Scott Schedule which would assist in identifying and narrowing the issues, and in locating the competing views in the previous expert reports. Such intention, in my view, was not borne out from Master Hui’s Order at all, and I do not think Master Hui had the alleged intention. In my view, what Master Hui did by his order was to improve the February 2022 Order previously given by another Master, under which the defendants’ expert was asked to prepare a Supplemental Expert Report in reply to the plaintiff’s Rebuttal Expert Report. That set of expert directions was in fact quite otiose, in that it did not provide for the without prejudice meeting of the experts and the preparation of a joint statement;

(3) Ms Radley’s draft “Areas of Disagreement” (see [12] above), with greatest respect, is totally unhelpful, apart from confirming that the experts could not agree on any other matters (save those contained in the “Areas of Agreement”). That is not the only purpose of the Joint Report. It is not enough for the experts to ask the Court to refer to the individual expert reports;

(4) The sequence of the filing of the individual expert reports also highlights the (un)fairness of the proposed approach of the plaintiff, namely, that Mr Leung should, in the “Areas of Disagreement” section of the Joint Report, be limited to the “reasons, arguments, references, materials and/or citations already included” in his own expert report. This is because while Ms Radley had the chance to deal with Mr Leung’s expert opinion in P’s Rebuttal Expert Report, Mr Leung apparently could not have done so in Ds’ Expert Report which was filed before P’s Rebuttal Expert Report. As pointed out by Ms Wu for the defendants, by the time when Mr Leung prepared his own report, it was not possible for him to speculate the points to be made by Ms Radley.

27.  The plaintiff complained that if one reads through Mr Leung’s draft “Areas of Disagreement”, one can see that it is more skin to him producing a new report rebutting Ms Radley’s Rebuttal Report, instead of stating succinctly his competing views alongside Ms Radley’s, and as such, Mr Leung’s comments deviated from the agreed purpose of the Joint Report. In support of this argument, Mr Lam for the plaintiff cited the remarks made by Lam J (as Lam PJ then was) in Chinachem Charitable Foundation Ltd v Chan Chun Chuen (HCAP 8/2007, unreported, 2 February 2010) at [492] as follows:

“Worse still, there are occasions where expert uses the joint meeting and reply reports as platforms for putting forward new arguments and open new fronts for debate. Confronted with such a report, the other side would retaliate by putting in further materials in the name of rebuttal. More issues are raised. A vicious cycle is perpetuated. Instead of narrowing down the differences, expert issues are proliferated. The presentation of too many (including some unnecessary) expert issues not only adds to the costs and time of a trial, it also creates a risk of diverting the court’s attention away from the central issues in a case. It is not conducive to the effective resolution of the dispute. In many instances, the proliferation of issues is the hallmark of an expert struggling to defend an indefensible position by generating new issues as smokescreen.”

28.  With respect, I do not think Lam PJ’s remarks are applicable herein because I do not see that, generally speaking, Mr Leung was raising more issues. He was only trying to explain why he did not agree with Ms Radley. Although he had relied on reasonings which did not appear in Ds’ Expert Report, there is nothing wrong with it. Having said that, I should mention that Mr Lam had drawn this Court’s attention to a comment made by Mr Leung in his draft Joint Report which suggested that “Ms Radley’s assignment under instruction is biased”. I agree that this sort of comment is inappropriate. All the experts should do is to give their opinion on the expert issues according to their expertise. They should therefore only comment on the expert opinion of the other expert according to their expert knowledge in the handwriting area.

29.  I should also say that I disagree with the plaintiff that Master Hui’s decision to vary the expert directions as contained in the February 2022 Order should be construed as the Court’s disapproval of Mr Leung rebutting Ms Radley’s opinion. In my view, Mr Leung must be allowed to do so. The effect of Master Hui’s Order is only that such opinion of Mr Leung should not be contained in another Rebuttal Report prepared by himself, but in a joint report to be prepared after a joint meeting with Ms Radley.

30.  Ms Wu for the defendants has referred this Court to the case of Leung Wai Kee v Tam Yuet Sheung (DCCJ 5716/2007, unreported, 11 May 2009), in which HH Judge Mimmie Chan (as her Ladyship then was) had made the following observations:

“6. […] [The experts] were only able to supply to the Court a joint statement which sets out a total of 10 bullet points of their respective conclusion on the source and cause of the water leakage into the Plaintiff’s premises […]. These conclusions were already readily apparent from their respective expert reports filed on 15 August 2008.

7. As the Court explained to the parties and their experts, the joint statement filed on 8 May served no assistance whatsoever to the Court and was not in compliance with the Order made on 4 May 2009. They should indicate those parts of their evidence, namely their reports, on which they are in agreement, and those parts of their reports on which they are not in agreement. […]

8. […] I had drawn the attention of the experts to paragraph 12(c) of the Code of Conduct for Expert Witnesses, whereby the experts, when specifying matters agreed and matters not agreed, should state the reasons for any non-agreement. To simply repeat their different conclusions without stating the reasons for their disagreement by reference at least to their reports is not only unhelpful, but also not in compliance with the Order of the Court made on 4 May 2009. Further, it is a dereliction of the experts’ paramount and overriding duty to help the Court impartially and independently on matters relevant to the experts’ area of purported expertise - a duty which is highlighted in paragraph 2 of the Code.”

31.  I respectfully agree with the learned Judge.

32.  For joint statement (or Joint Expert Report) to be useful to the Court, it must contain the reasons as to why the experts do not agree with each other.

33.  For the above reasons, I do not accept that it is appropriate to make the orders as proposed under paragraph 2 of P’s Summons, which sought to limit the materials which Mr Leung may rely on in the Joint Report.

34.  Neither do I accept that the order as proposed in D’s Summons is appropriate. This would amount to switching back to the February 2022 Order. I do not think it is right for the Court to “give up” so easily. Despite the previous disputes between the experts, I am still hopeful that Ms Radley and Mr Leung can put behind what had happened in the past and assist the Court independently and professionally. As I pointed out to the parties at the hearing, the expert directions given under the February 2022 Order are not as helpful to the Court as those contained in Master Hui’s Order (provided the experts can always bear in mind their overriding duty to the Court).

35.  So what should be the way forward?

36.  In my view, now that:

(1) this Court has made it clear what the experts are expected to do;

(2) both of them have a much better idea as to the rebuttal opinion held by the other side,

they should meet in further without prejudice meeting(s) with a view to agreeing or narrowing down the expert issues to be decided by the Court.

37.  After the meeting(s), they shall prepare a Joint Report as directed under Master Hui’s Order.

38.  In this regard, what Lam J said in Chinachem Charitable Foundation Ltd (supra) is instructive and the experts should bear the following in mind:

“484. An expert should not advance an argument or use a piece of information or data to support his opinion unless he is professionally convinced of the validity of the argument or the appropriateness of the use of that supporting material. The inclusion of something the validity of which the expert himself considered doubtful in his report inevitably undermines his credibility in the court’s assessment [150]. An independent and impartial professional expert should not resort to a tactic of putting forward some plausible arguments in favour of his client which he personally has difficulty in vouchsafing and leaving it to his counterpart to convince the court that the arguments should be rejected. In my view, such an expert has not discharged his overriding duty to the court, which is to use his own professional expertise to assist the court without regard to the exigencies of litigation.

485. Here lies the crucial distinction between an advocate and an expert witness. Even though counsel and solicitor also owes an overriding duty to the court in certain respects, the court understands that as advocates they are not impartial as they also have a duty to present the case of their respective clients. But the position of an expert witness is different. His evidence is admitted to assist the court on a subject which requires expertise he has acquired (but not the court). Therefore, what the court wishes to hear is the expert’s own independent professional opinion on the topic instead of a biased view constructed and put forward for the purpose of advancing a party’s position. Given the court’s lack of expertise on the subject which an expert gives his evidence, the strict adherence by expert to the duty of independence is important for the proper administration of justice. Whilst there might still be bona fide reasonable disagreements between two experts, the disagreements should only be based on independent professional judgments instead of being client interest driven.

486. Sometimes, the line between professional divergence in opinion and biased partisan debate may not be easy to draw. But the court is vigilant in ensuring that the integrity of the legal process would not be tainted by evidence of an expert who put a party’s interest above his professional duty to the court. If it can be shown that an expert persistently adopted a stance which he himself had obvious difficulty in sustaining, most of the time this is the hallmark of the expert’s failure to adhere to the duty of independence.

487. Further, a judge is assisted by counsel (who in turn are assisted by their own expert) at the trial. Counsel’s cross-examination of an expert witness will assist the court in forming a view as to the reliability of his evidence. Very often, the most telling indicia of the professionalism and impartiality of an expert witness is how he deals with his weakest point under cross-examination. In Best Origin,I have set out what this court expects from an expert witness when he is faced with his own mistake after he produced his report. Instead of keeping silent and hoping that the point would not be discovered, he should correct it on his own volition as soon as practicable.

488. Another acid test on the reliability of an expert witness is the way in which he deals with the arguments of his counterpart. Nowadays, the court expects expert witnesses to act responsibly and professionally in meeting the points raised by the experts on the other side. The whole point of requiring expert reports to be served or exchanged and directing meetings of experts and the preparation of joint statements/reports is to facilitate independent and frank communications between the experts in order to narrow down their differences through a dialogue on a professional level. The objective is to focus on the real issues that need to be adjudicated by the court. Unnecessary and unhelpful arguments should be trimmed down through these pre-trial procedures.

489. No matter how experienced and well qualified an expert may be, it is always possible that he misses some salient points in the preparation of his first report despite the exercise of due care and diligence. Further, with the accelerated growth and development of human knowledge, new techniques or learning may emerge. Also, especially in areas where an opinion depends a lot on subjectivity, whilst there is always scope for reasonable disagreement, every expert would appreciate that amongst the arguments he relied upon, some is of greater force than others. An impartial and responsible expert, after studying the report of his counterpart, should re-assess his own views and if there are valid points against his opinion, he should acknowledge them instead of finding other new material to salvage an exposed weakness.

490. The joint meeting is an opportunity for the experts to narrow their differences. It takes two to tango. It requires both experts to focus on the objective of the meeting and act responsibly and frankly with each other. At such meeting, an expert should bear in mind his overriding duty to the court to act independently without any fear of compromising his client’s position. Thus if his professional judgment dictates that a concession should be made in the light of arguments advanced by the other side, he should not feel inhibited from doing so due to conflicting opinion previously expressed by him in favour of his client. On matters within his expertise, an expert needs not seek instructions from his client before reaching an agreement with the other side’s expert. A self-respecting expert should not accept instructions that placed limitations on his professional judgment in the performance of his duty as an expert witness. And it is not proper for lawyers to give such instructions on behalf of his clients. In line with his duty to act independently, an expert should not be dictated by his client in respect of the substance of his expert evidence and the agreement to be reached in joint meeting.

491. Thus, instead of spending time on indiscriminant defence of one’s position, expert witnesses should give due weight to the arguments set out in their counterpart’s opinion and try to reach agreement on points which are not worthy of argument. Unfortunately, there are occasions (here I am speaking generally rather than with specific reference to what happened in this trial) where some experts jumped straight to a defensive mode instead of adopting a “step-back and look” approach in considering the other side’s arguments. In so doing, I am afraid that such expert is abandoning his impartiality and neglecting his overriding duty to the court.

492. Worse still, there are occasions where expert uses the joint meeting and reply reports as platforms for putting forward new arguments and open new fronts for debate. Confronted with such a report, the other side would retaliate by putting in further materials in the name of rebuttal. More issues are raised. A vicious cycle is perpetuated. Instead of narrowing down the differences, expert issues are proliferated. The presentation of too many (including some unnecessary) expert issues not only adds to the costs and time of a trial, it also creates a risk of diverting the court’s attention away from the central issues in a case. It is not conducive to the effective resolution of the dispute. In many instances, the proliferation of issues is the hallmark of an expert struggling to defend an indefensible position by generating new issues as smokescreen.

493. Obviously, such an approach is inconsistent with the underlying objectives under Order 1A. Even though there is no reference to the expert witness in Order 1A Rule 3, after the commencement of the rules introduced by the Civil Justice Reform, an expert giving evidence in court has to observe the Code of Conduct in Appendix D, see Order 38 Rules 37B and 37C. Paragraph 13 of the Code of Conduct highlights the importance of an expert witness exercising his independent professional judgment in relation to expert meeting and joint report.”

39.  It cannot be emphasised enough that both Ms Radley and Mr Leung should always bear in mind their overriding duty to the Court. In the joint meeting, they are expected to act independently and be truthful to their expertise. They should discuss their differences professionally according to their expert knowledge, irrespective of whether their opinion would be conducive to the purpose of their respective clients. As Lam PJ pointed out, self-respecting experts should act independently without any fear of compromising his/her client’s position.

40.  As far as the Joint Report is concerned, the experts should use their expertise and consider what way of presentation is the best way for the purpose of explaining to the Court what their differences are and the reasons in support. The “Areas of Disagreement” should be divided into different sub-sections, so that the experts’ different opinions on a topic can be put together at one place. If possible, for the sake of the readers’ convenience, the Joint Report should be self-contained, rather than referring to P’s Expert Report and Ds’ Expert Report all the time. Indeed, it is not uncommon that after the joint meeting, the experts having considered the opinion of the other expert would change their original opinion. It is therefore more helpful to the Court if the experts can make themselves clear as to what their concluded opinions would be after such a professional exchange with the other expert.

41.  To conclude, I am of the view that the experts should be given more time to comply with Master Hui’s Order, and that in doing so they shall bear in mind what have been set out above. They are also warned that, in the event any expert is found to be uncooperative, this Court will not hesitate to issue unless order with the consequence that the party in default be debarred from adducing expert evidence.

ORDER

42.  By reasons of the aforesaid, I order that:

(1) The experts shall meet further on a without prejudice basis and with a view to agreeing or narrowing down the expert issue(s) to be decided by the Court. The joint meeting shall be held by 14 March 2024 (42 days from today);

(2) The time for the parties to comply with paragraph 3 of Master Hui’s Order be extended to 25 April 2024 (42 days after 14 March 2024);

(3) The plaintiff shall file the signed joint report by 9 May 2024 (14 days after 25 April 2024).

COSTS

43.  As far as the costs of the Summonses are concerned, I would take into account the following matters:

(1) The whole saga was caused by the misunderstanding on the part of the plaintiff’s solicitor and the plaintiff’s expert;

(2) On the other hand:

(a) I allowed part of the application made by the plaintiff;

(b) I disallowed the main purpose of P’s Summons, namely, to limit what Mr Leung may rely on in the Joint Report;

(c) I did not accept the terms as proposed under Ds’ Summons;

(3) Mr Leung had included some inappropriate comments in the draft Joint Report (see [28] above).

44.  Considering the above matters in the round, I am of the view that it would be fair if the costs of the Summonses are ordered to be the defendants’ costs in the cause.

Mr Abel Lam, instructed by Lily Fenn & Partners, for the plaintiff

Ms Teresa Wu, instructed by P C Woo & Co, for the defendants

HCAP 22/2019

[2023] HKCFI 948

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 22 OF 2019

________________________

____________

________________________

________________________

D E C I S I O N

________________________

Introduction

1.  Before me this morning is the summons filed by the 1^st and 2^nd defendants on 27 June 2022 for an order that the interrogatories served on them on 13 June 2022 be withdrawn.

2.  In this decision, I shall call the 1^st and 2^nd defendants by their first name, “Violet” and “Vi Vi”, respectively.

3.  For background of this action, I refer to the decision of Deputy High Court Judge Leung at [2020] HKCFI 1792. In particular, see paras 1 to 21. I shall adopt the defined terms “the 2015 Will” and “the 2009 Will” used there. The former refers to the will executed by the late Chow Yei Ching (“the deceased”) on 29 October 2015. The latter refers to the will which is said to have been executed by the deceased and dated 27 April 2009. An unsigned copy of that will was produced by Messrs Ng & Fang to the defendants’ solicitors in May 2019.

4.  The interrogatories comprise two parts. The first part concerns both Violet and Vi Vi. It contains 11 questions in relation to para 12 of Vi Vi’s 1^st affirmation dated 6 June 2019. The questions concern the 2009 Will. The second part of the interrogatories contains seven questions in relation to para 44 of Violet’s affirmation filed in CAMP 202/2021. The questions concern the safe kept by the deceased in his office. The questions are directed at Violet only.

5.  I note at the outset that the interrogatories were served by the plaintiff just shortly before the parties were due to exchange their witness statements.

6.  The legal principles governing the serving of interrogatories are not in dispute.

The first part of the interrogatories

7.  I am satisfied that the 11 questions raised in the first part of the interrogatories all relate to a matter in question in this action.

8.  Ms Teresa Wu, appearing with Ms Jacqueline Law for the defendants, confirm that the defendants do not take issue with the relevance of the questions. More specifically, the matter in question here is whether the 2009 Will should be admitted to probate. The plaintiff says it should. The defendants’ case, as disclosed in their pleading, is that (1) as of now it is unknown whether the original of that will in fact exists, (2) no signature of the deceased was found on the unsigned copy of the will produced by Messrs Ng & Fang, (3) the will is presumed to have been destroyed by the deceased and there is no evidence to the contrary. The defendants plead that the 2009 Will should not be admitted to probate.

9.  Para 12 of Vi Vi’s 1^st affirmation reads:

“Before instructing CCW through me to prepare the [2015] Will, the Deceased had shown Violet and me a copy of his previous will. I cannot recall when he did that but I recall the said will was prepared by the firm of solicitors Ng & Fang (“N&F”). The Deceased used to retain Mr. Ng Hon Ying (“Peter Ng”) of N&F to handle some of his legal matters.” (underline added)

10.  The 11 questions all pertain to the “copy” of the previous will shown to Violet and Vi Vi by the deceased.

11.  At today’s hearing, Mr Horace Wong, SC, appearing with Mr Abel Lam for the plaintiff, suggests that the word “copy” used in the interrogatories may refer to an original copy and/or a copy copy. Having said that, Mr Wong accepts that the wording of the interrogatories could have been better drafted.

12.  In this application, I must deal with the interrogatories as they are drafted and served.

13.  I shall interpret the word “copy” as used in the interrogatories as a duplicate copy only.

14.  It would appear from the affirmation evidence and witness statements so far filed by the defendants that the previous will shown to Violet and Vi Vi was indeed the 2009 Will.

15.  The evidence is contained in, first, Vi Vi’s 1^st affirmation. In addition to para 12 quoted above, para 13 is relevant:

“I instructed Messrs. P.C. Woo & Co. (“PCW”) to write to N&F on or about 15 April 2019 to obtain a copy of the previous will and any testamentary paper of the Deceased that N&F might have. On 2 May 2019 N&F sent to PCW a copy of a purported Will of the Deceased dated 27 April 2009 (“the 2009 Purported Will”). …The copy of the 2009 Purported Will is not signed by the Deceased. Violet and I have doubts as to whether it is in fact the previous will the Deceased showed us before because the format appears to be different. PCW subsequently called up Peter Ng who confirmed the 2009 Purported Will was the only one he had prepared for the Deceased. Peter Ng further said that after signing it, the Deceased took the original will with him and the copy kept by Peter Ng was not signed. Peter Ng said he added the marks “(s.d.)” on the copy he kept to record the Deceased had in fact signed on the original.” (underline added)

16.  Second, para 38 of Vi Vi’s witness statement dated 30 June 2022. It reads:

“In or about April 2015, when I was still with my last employer, Father, who was then 79 years old, told me that he would like to make a new Will. Father asked me to find a solicitor for him. Father had previously shown me and Violet a Will prepared by his friend, Mr. Ng Hon Ying of Messrs. Ng & Fang. According to Father, that will was by then outdated and he would like to make a new one. I told him to rip up the old one when he made a new will. In this connection, I crave leave to refer to my Affirmation filed on 6 June 2019, and in particular to paragraphs 12 to 13 and 15 thereof, which set out in full my entire knowledge of a purported will of Father dated 27 April 2009 and the relevant circumstances.” (underline added)

17.  Third, paras 75, 76 and 80 of Violet’s witness statement also dated 30 June 2022. Para 75 reads:

“First of all, Father had once shown Vi Vi and me – quite some time ago but the precise year or the details I could not recall – a copy of his will prepared by Messrs. Ng & Fang (“Ng & Fang”), a solicitors’ firm he retained to handle some of his legal matters.” (underline added)

18.  Fourth, paras 8 and 9 of Vi Vi’s 7^th affirmation, which was dated 24 June 2022 and filed in support of the summons. They read:

“The Plaintiff has not identified and hence it is not clear to me what “copy previous will of the Deceased” is being referred to in P’s Letter. If and to the extent that the Plaintiff is referring to a purported Will of the Deceased dated 27 April 2009 (“the 2009 Purported Will”) as the Interrogatories refer to that, I crave leave to refer to my Affirmation filed on 6 June 2019, and in particular to §§12 to 13 and §15 thereof, which set out in full my entire knowledge of the 2009 Purported Will and the relevant circumstances and exhibited a copy of an unsigned version of the 2009 Purported Will at Exhibit CVV-2.”

“Other than the unsigned version of the 2009 Purported Will which has been exhibited, I was and am not in possession of any other “copy” of the 2009 Purported Will. I therefore completely fail to follow “the main reason” of the Plaintiff in requesting the Interrogatories as set out in P’s Letter.” (underline added)

19.  Fifth, and last, paras 9(1) to (5), 10 and 11 of Vi Vi’s 8^th affirmation, which was dated 9 September 2022 and filed in reply to the plaintiff’s opposing affirmation. They read:

“9. …

(1) It was and is the recollection of the 1^st Defendant and mine that the Deceased had shown us a copy of his previous will and that it was prepared by N&F, which the Deceased retained for some legal matters.

(2) The 1^st Defendant and I knew or recalled no more than those matters and therefore instructed PCW to write to N&F to obtain a copy of the previous will and any testamentary paper of the Deceased that N&F might have.

(3) N&F replied and provided us with a copy of the 2009 Purported Will.

(4) PCW called N&F because the copy of the 2009 Purported Will was not signed by the Deceased and its format also appeared to be different from our recollection.

(5) In response to PCW’s enquiry, Peter Ng referred to the marks “(s.d.)” added on the copy of the 2009 Purported Will and explained to PCW that the Deceased had signed on the original and taken it with him. Peter Ng had also clearly confirmed that the 2009 Purported Will was the only one will that N&F had been instructed by the Deceased to prepare and there was no other will.

10. There was and still is no way that either the 1^st Defendant or I could have disclosed and lodged with the Probate Registry of the High Court “the copy of the previous Will shown…by Father with its format allegedly different from the office copy 2009 Will produced by N&F” as alleged by the Plaintiff under paragraph 23 of P’s 8^th Affirmation, as the same was and is never in our possession, custody or control.

11. As made clear by me under paragraph 13 of my first Affirmation, the doubt that the 1^st Defendant and I had about the format of the 2009 Purported Will when we received it from N&F was based on our recollection only and such doubt was removed when Peter Ng confirmed that the 2009 Purported Will was the only will that the Deceased had retained N&F to prepare for him and there was no other. Thus what the Plaintiff allegedly to be her “belief” under paragraph 24 of P’s 8^th Affirmation, namely that “in the premises, I verily believe that Violet and Vi Vi are still in the possession, custody and control of a copy of the previous Will shown to them by Father, otherwise they would not be in the position to compare and contrast the same with the office copy of the 2009 Will provided by N&F and alleged that the 2 versions are different”, is not valid or substantiated, but is based on her own reading and interpretation of the said paragraphs 12 and 13 of my first Affirmation.” (underline added)

20.  In my view, it is not entirely clear from Vi Vi’s 1^st and 7^th affirmations and her witness statement whether the copy of the previous will shown to her and Violet was a copy of the 2009 Will. Vi Vi said that she and Violet “have doubts” on this because the format of the two documents “appear to be different”.

21.  However, after Vi Vi’s 8^th affirmation was filed, the defendants’ position became much clearer. In para 11, Vi Vi confirmed that “such doubt was removed” when the solicitor at Messrs Ng & Fang confirmed that the 2009 Will was the only will that the deceased had asked the firm to prepare. In other words, according to the defendants’ own evidence, based on the revelation made by the solicitor, their position is that the copy of the previous will shown to them was in fact the 2009 Will subsequently disclosed by Messrs Ng & Fang.

22.  In her submissions, Ms Wu expressly confirms that that is the position of the defendants in this action.

23.  In other words, the 11 questions all pertain to the 2009 Will which the plaintiff seeks to admit to probate in this action. They are relevant to the issue whether the original of the 2009 Will exists at all.

24.  Having established relevance, I now turn to the issue whether the interrogatories are necessary for disposing fairly of the action or for saving costs.

25.  The 11 questions can be grouped as follows:

(1)  Paras (a) and (c) – whether the deceased had shown the defendants a copy of the 2009 Will, an unsigned copy of which was subsequently disclosed by Messrs Ng & Fang.

(2)  Paras (e) and (f) – whether the previous will was shown to Violet and Vi Vi at the same time and in the same place and whether the copies shown were identical.

(3)  Paras (i) and (k) – whether the defendants are in possession of the copy of the will shown to them by the deceased and if not, its present whereabouts.

(4)  Para (j) – when and where and in the presence of whom was the copy shown to the defendants.

(5)  Paras (b), (d), (g) and (h) – whether the copy shown bore the signatures of the deceased and the two witnesses as indicated in the unsigned copy of the 2009 Will produced by Messrs Ng & Fang.

26.  Mr Wong, SC submits that the above questions relate to important matters highly relevant to one of the key issues in this action. Furthermore, the defendants are the only persons to whom the deceased had shown his previous will. The plaintiff has no information of what was contained in the document shown. Hence the interrogatories concern matters which are within the knowledge of the defendants and not within the knowledge of the plaintiff. In the circumstances, it is only fair that the defendants should answer the interrogatories before trial relating to what was being shown to them as the previous will of the deceased. This is, Mr Wong submits, essential to the plaintiff’s preparation of the trial. She should be entitled to get the information or admission from the defendants now such that she will not have to incur unnecessary costs on speculating what answers on such important matters would be if they can only be ascertained in cross-examination.

27.  I generally agree with the above submissions. The answers to the interrogatories (with some exceptions as stated below) would help narrow down the issues surrounding the copy of the will shown to the defendants. Prima facie, subject to the exceptions discussed below, I am of the view that the interrogatories are generally necessary for fairly disposing of the action or for saving costs.

28.  Having said that, however, some of the interrogatories have indeed been answered in the defendants’ affirmation evidence and witness statements and hence they should be withdrawn.

29.  Paras (a) and (c) should be withdrawn. The questions have already been answered in Vi Vi’s 1^st, 7^th and 8^th affirmations and her witness statement. See the discussion in paras 20 and 21 above.

30.  Mr Wong takes issue with this. He submits that there is ambiguity in the affirmation evidence. He pinpoints para 8(6) of Vi Vi’s 8^th affirmation. It reads:

“The copy of the 2009 Purported Will as provided by N&F was not signed by the Deceased. The 1^st Defendant and I did have doubt as to whether it was in fact the previous will that the Deceased showed us before as its format appeared to us to be different.”

31.  Later on in the same affirmation, that doubt was said to have been removed. See the extract in para 19 above.

32.  Mr Wong’s point is this. The defendants seem to suggest in para 8(6) that the doubt which they had was whether the copy shown to them was in fact the unsigned copy of the 2009 Will. If that is the case, paras (a) and (c), Mr Wong submits, have not been answered.

33.  Mr Wong may have merit in his analysis of para 8(6) of Vi Vi’s 8^th affirmation. However, when the affirmation evidence of the defendants is read as a whole, it is plain they have already confirmed that the copy shown to them by the deceased was in fact the copy of the 2009 Will. This is an important piece of information which the plaintiff now has. As to the alleged ambiguity arising in para 8(6), I consider that it is a matter for cross-examination. There is no need for the defendants to address this specific point now for the fair disposal of the action.

34.  Paras (e) and (f) should be withdrawn. It is true that neither Violet nor Vi Vi states in their affirmations or their witness statements whether they were shown the copy of the previous will at the same time and in the same place. But it is plain from the extracts above that they were shown “a copy” of the previous will. A plain reading of the evidence is that the copy shown to them was the same.

35.  The questions serve no useful purpose for resolving the issue in dispute. To allow them now would only escalate costs for no benefit. They should not be allowed. The plaintiff may of course consider cross- examining the witnesses on this point at the trial. But there is no unfairness in disallowing the questions at this stage.

36.  Paras (i) and (k) should be withdrawn. They have already been addressed in para 9 of Vi Vi’s 7^th affirmation and para 10 of her 8^th affirmation. See the underlined extracts in paras 18 and 19 above.

37.  Para (j) should be withdrawn.

38.  The “when” question has been addressed in para 12 of Vi Vi’s 1^st affirmation, para 9(2) of her 8^th affirmation and para 75 of Violet’s witness statement. See the underlined extracts in paras 9, 17 and 19 above.

39.  The “where” question serves no useful purpose.

40.  The same applies to the “in whose presence” question. There is nothing in the materials before me that would suggest that the copy of the previous will was shown to someone else other than Violet and Vi Vi. They are fishing interrogatories which should not be allowed.

41.  Paras (b), (d), (g) and (h) should be allowed.

42.  On the defendants’ own evidence, they recollected that the format of the will shown to them and the 2009 Will disclosed by Messrs Ng & Fang are different. Implicitly, it must mean that they had taken a look at the document shown to them by the deceased. The defendants also could recall that it was Messrs Ng & Fang who prepared the will. Implicitly, it suggests that they had looked at page 7 and/or page 8 of the 2009 Will because those are the only two pages of the document which made references to the name of the solicitors.

43.  Nevertheless, the defendants have not mentioned in their evidence so far filed anything about signatures on the copy shown to them. They have also stated that they have already set out in full their entire knowledge of the 2009 Will and the relevant circumstances. Does it mean that they did not see any signatures on the copy shown to them?

44.  I have to say that it is not entirely clear to me. How they have organised the structure of their affirmation evidence and presented the evidence seems to suggest that they did not see any signature as otherwise they would have disclosed this feature.

45.  However, I cannot say with confidence that is necessarily the case.

46.  Whether the copy bore any signature on its face would be a material fact going to the issue of whether in fact the original of the 2009 Will does exist or not and whether the will had been destroyed. Ms Wu states in her oral submissions that the defendants do not dispute in this action that the decreased had signed on the 2009 Will. Hence she argues that the interrogatories are unnecessary.

47.  On this, I have to say that this position of the defendants is not made clear in their pleadings or their evidence so far filed.

48.  These interrogatories should therefore be answered. They should not be left to cross-examination. This is something within the defendants’ knowledge or it is at least something which the defendants are in a better position than the plaintiff to comment on. For the action to be disposed of fairly, the interrogatories should be answered now.

The second part of the interrogatories

49.  The interrogatories relating to the safe are no longer pursued by the plaintiff as they have been addressed in the evidence filed since the service of the interrogatories.

50.  Mr Wong accepts that these interrogatories should be withdrawn.

51.  I accept Ms Wu’s submission that these interrogatories were served prematurely and costs had been wasted on dealing with them. These costs would have been saved had the plaintiff waited to see the witness statements which were due to be exchanged before taking any action.

Order

52.  For the above reasons, I order that the interrogatories served on Violet and Vi Vi without order be withdrawn save for paras 1(b), (d), (g) and (h). The defendants do within 28 days from today answer those interrogatories by affidavit.

[Submissions on costs]

53.  I order that the defendants do have 80% of the costs of the summons. The defendants’ 80% costs be summarily assessed at $290,000, to be paid by the plaintiff within 14 days from today.

54.  It is notable that a majority of the interrogatories relating to the 2009 Will and all the interrogatories relating to the safe were administrated prematurely. The plaintiff has however succeeded on those interrogatories relating to the signatures on the 2009 Will. Applying a broad brush approach, I apportion the costs at 80% which reflects the defendants’ degree of success.

Mr Horace Wong, SC and Mr Abel Lam, instructed by Lily Fenn & Partners, for the plaintiff

Ms Teresa Wu and Ms Jacqueline Law, instructed by P C Woo & Co, for the 1^st and 2^nd defendants

HCAP 22/2019

[2021] HKCFI 1274

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 22 OF 2019

________________________

________________________

________________________

________________________

D E C I S I O N

________________________

1.  In this action commenced by the plaintiff to challenge the validity of what is said to be the last will of her father, Chow Yei Ching, deceased, dated 2015, she applied for the appointment of administrators pendente lite (“APL”). By decision handed down on 30 July 2020, this court, upon acceptance of various undertakings by the defendants, dismissed the application with costs against the plaintiff (“the Decision”). The plaintiff now seeks leave to appeal. As directed, the present application is disposed of on paper without oral hearing.

A.  THE APL APPLICATION

2.  The background of the deceased’s family, this action and the APL application as well as the terms of the appointment sought by the plaintiff were set out in the Decision[1], which I will not repeat here.  I adopt the same definitions and abbreviations as those in the Decision for the present purpose.

3.  There has been change of parties to the present action after the present application has been taken out.  Upon her renunciation of her right to probate in respect of the deceased’s estate, and the discontinuance of the present action concerning her, the 3^rd defendant, ie the Mother, has ceased to be a party.  Another sister of Lily, Lina, has been joined as the 3^rd defendant instead.

B.  THE PRINCIPLES

4.  The discretionary nature of the power of the court to appoint APL is clear from the wordings of section 40 of the PAO.  The principles governing the court’s exercise of such discretion were explained in Mak Ngun Tai & Ors v Fung Ming Ip & Ors HCAP 37/2015 (14 October 2016)[2].  The burden was on Lily to satisfy the court that the proposed appointment is necessary or expedient in the circumstances of the case, bearing in mind the nature, size and condition of the assets in the estate.  This court concluded that she failed to do that.

5.  Leave to appeal against the Decision shall not be granted unless the intended appeal has a reasonable prospect of success or there exists some other reason in the interest of justice that the appeal should be heard: see section 14AA of the High Court Ordinance, Cap 4; SMSE v KL [2009] 4 HKLRD 125 at §17.

6.  Lily did not, and still does not, dispute the principles governing the appointment of APL.  Therefore, for the present purpose, she has to demonstrate a reasonable prospect of convincing the appellate court that plainly this court failed to apply, or wrongly applied, those principles by either ignoring relevant circumstances or taking into account irrelevant circumstances as of the time of the hearing of the application in the exercise of the discretion: see Fong Chak Kwan v Ascentic Ltd & Ors[2020] HKCFI 1889 at §8.  That different court may attach different weight to any relevant circumstance in the consideration of exercise of discretion generally will not suffice: see Bright Shipping Ltd v Changhong Group (HK) Ltd [2019] 5 HKLRD 30 at §6.

C.  THE GROUNDS OF APPEAL

7.  The grounds of appeal may be grouped into the following broad categories:

(1)  the approach of this court in applying the principles explained in Mak Ngun Tai (above);

(2)  the consideration of the situation of the Investment Pool; and

(3)  the consideration of the situation of the other assets in the estate of the Deceased.

C1.  Category(1) - §§1 to 5 of the draft notice of appeal

8.  Essentially, the argument is that this court’s approach failed to adhere to the principles in Mak Ngun Tai, albeit correctly stated in the Decision.

9.  What amounts to the required necessity or expediency for the appointment of APL depends on the circumstances of the case.  It is up to the applying party, who has the burden, to demonstrate the existence of situation that would satisfy the criteria of necessity or expediency in the circumstances of the case.  It has been recognized that the likelihood of dissipation or jeopardy of the assets of the estate that calls for protection and preservation is amongst the situations that could justify the appointment.

10.  In the present case, I do not see how it could be said that this court considered solely whether Lily managed to establish necessity on the basis of a risk of dissipation of assets in the Deceased’s estate.  Lily indeed sought to demonstrate such risk to justify the appointment.  She still does, for the purpose of the present application. Therefore, whilst she now argues that this court has failed to appreciate expediency being another reason for appointing APL[3], it is not that she is detaching her case on expediency from the alleged risk of dissipation of assets in the Deceased’s estate as such.  This is obvious from her submission for the present purpose[4].

11.  As to the approach, there is no question of this court venturing to resolve the factual dispute between the parties on affidavits.  It is uncertain yet whether or, if yes, to what extent the factual dispute raised in the APL application would feature in the present action which primarily concerns different issues[5]. Nevertheless, in order to determine whether or not the circumstances of the present case gave rise to situation calling for protection and preservation of the estate of the Deceased, and thus justification for the appointment of APL, this court must form a view of the assertions made and evidence of the circumstances adduced by the parties.  It was really in such context and for such purpose that this court considered whether Lily managed to discharge her burden in the APL application.

12.  It is therefore incorrect to interpret the conclusion of this court in the context and for the purpose mentioned above as findings of fact without full investigation and cross examination of witnesses[6]. It is surprising that the same paragraph of the Decision[7] in which this court made clear this point somehow becomes the very paragraph that is now said to manifest the opposite.  This court certainly formed a view of the assertions and evidence in the context and for the purpose of the APL application, but not made findings that coloured the court’s view of the matter[8].

13.  Mere assertions are of little or no weight, and suspicion does not suffice to found the court’s exercise of discretion[9]. It does not appear that Lily disputes that in principle.  Therefore, this court fails to see how the expectation of concrete evidence in discharge of Lily’s burden of proof mentioned above can be faulted in principle[10].

14.  Lily then argues that this court failed to appreciate the alleged significant information asymmetry and power imbalance in respect of discovery and procurement of evidence between the two sides prior to discovery in the action[11].

15.  First, judging from the evidence and the manner in which the evidence has been tendered by her for the purpose of the APL application, this court got no impression that Lily considered herself to be suffering from the alleged disadvantage in terms of the state and quality of her evidence that could be adduced in support of her application.

16.  Second, such argument does not assist her, when she had the undeniable burden to substantiate the basis for her application by evidence.  The extent of evidence expected from the applying party is not that to prove dissipation but to substantiate the existence of such risk for the purpose of considering the necessity for protection and preservation.

17.  Third, Lily took out the application when she, with legal assistance, considered that the state of the evidence sufficed for such purpose.  The court was therefore called upon to consider the application on the basis of such evidence.  Lily is not prevented to take out another APL application at any time on the ground of change in circumstances such as discovery of new evidence.

18.  Contrary to her argument[12], the suggestion of likely protracted litigation was clearly argued and taken into account in the consideration.  Only that this court does not readily assume the litigation in the main action, in view of its issues, should protract unless the parties choose to conduct it that way.

19.  Hostility and lack of trust are common, if not inherent, features in this kind of probate dispute.  That they were duly noted should be obvious from the Decision.  In the present case, hostility and lack of trust between the two sides probably surfaced when the 2015 Will was revealed (if not earlier).  Notwithstanding that, the Violet Undertakings were given.  The situation probably worsened after the commencement of this action and the APL application.  Notwithstanding that, the various undertakings from Violet and the Mother were given.  These undertakings, which Lily did not get to describe as pretence and valueless even now, are relevant when considering the situation.  On Lily’s behalf, Yung Siu Chee Margaret v Choy Ching Wa Fionee, HCMP 1682/2016 (23 July 2019) was cited to make good her point about the relevance of hostile friction between the parties. However, the circumstances in that case that caused the court there to say what he did (at §109) differ from those of the present case.

20.  Regard by this court to the size of the estate in the Decision should be obvious too.  That included the fact that the bulk of it comprises the Chevalier Shares, which was indeed the primary target of the APL application.  This court also noted the suggestion of what APL, if appointed, may do concerning the affairs of Chevalier.  There was adequate discussion in this respect in the circumstances of Chevalier[13]. However, the grounds of the intended appeal now tend to focus on the situation of the rest of the estate (below).

21.  As to how this court views the suggestion of the need to investigate now what will be matters of execution of the Deceased’s will as propounded or administration, which Lily repeats for the present purpose[14], I am not satisfied that my observation as explained[15] deviates from what is expected under the principles explained in Mak Ngun Tai.

22.  The above, amongst others put forward and argued by the parties, are but relevant factors in the consideration, and have been taken into account.  That the court’s conclusion at the end of the consideration differed from the view of either party to the application does not constitute an error.  Where it is suggested that the court has not paid proper regard to any factor, the view taken by the court is erroneous only if it is one that the court was not entitled to form in respect of such factor.

C2.  Category (2) - §§7 to 10 of the draft notice of appeal

23.  The dispute between the two sides in respect of the right to the Investment Pool held by 15 corporate vehicles was noted and, as others, their respective assertions were set out in the Decision.  This court was expected to form a view of the matter in the context and for the purpose of deciding whether it is necessary or expedient to appoint APL to safeguard the Investment Pool.  Now Lily argued that this court failed to note the genesis, purpose, operation and size of the pool[16].

24.  The defendants actually admitted that the Investment Pool was funded by the Deceased.  This court’s attention was then drawn by the parties to various contemporaneous documentary evidence and the circumstances surrounding the operation of the pool prior to and after the death of the Deceased by the committee of the children including Lily and Wai Lee.  The administration of the pool was entrusted to the company of Oscar pursuant to the resolution of the committee.  There was also evidence of provisions made from the Investment Pool, which were approved by the committee both prior to and after the death of the Deceased.  Some provisions were suggested and approved by Lily while some were made for the benefit or purpose of Wai Lee[17]. Against this background of dealings and knowledge on the part of Lily and Wai Lee, the fact that the issue concerning the status of the Investment Pool somehow did not feature in the grounds of the APL application but came to be raised only by way of reply affidavit[18] was a circumstance that should not be overlooked.  This court put such observation no further than that[19].

25.  The state of knowledge and conduct of the children of Deceased in dealing with the Investment Pool reflected the understanding of the nature of the pool on the part of not only the defendants but also Lily and Wai Lee.  The consideration was never simply that the forming of the committee proved that the Deceased had no beneficial interest in the pool, as Lily now describes as this court’s reasoning[20].

26.  Where the prima facie situation is that the Investment Pool is held in names other than the Deceased, it is incorrect for Lily to suggest that the defendants have failed to adduce evidence of how the pool came to be beneficially owned by the children as they contend[21]. Lily who asserts in the APL application should establish the basis for contending that the pool is held on trust for the benefit of the Deceased, before showing further that the situation surrounding such part of his estate calls for the appointment of APL.

27.  In support of her contention that the Investment Pool was held by the children as mere nominees on trust for the Deceased (be it wholly or partly), Lily did not adduce evidence of the creation of such trust (apart from the admitted fact of funding).  She invited this court to draw inference not from other family trusts so created by the Deceased.  She argued that the fact that the Deceased did not legally hold the pool or that the setting up and working of the children’s committee in managing the pool does not mean the Deceased had no beneficial interest in the pool[22]. However, “double negative” is not evidence of the positive in this respect. She also relied on the episode of the decision of the Takeover and Mergers Panel in April 2015 against the Deceased and Oscar[23]. I can only repeat the difficulty in drawing such inference when that 2015 episode concerned the concerted action of the Deceased and Oscar in furtherance of a particular design instigated by the late Nina Kung in connection with the shares of another listed company[24]. She now repeats these contentions in her grounds of the intended appeal[25].

28.  Contrary to Lily’s argument[26], this court, short of making final finding of fact, had to come to a view on the likelihood of jeopardy and thus necessity for preservation of the Investment Pool on the basis of the probability of its being the asset of the Deceased, and thus his estate, or alternatively the joint assets of the children[27] as respectively asserted by the parties.

29.  For argument’s sake, this court also assumed that the Deceased had beneficial interest in the Investment Pool. However, the same, absent dissipation, would have become part of the residuary estate distributable to the beneficiaries according to the will of the Deceased to be propounded or intestacy[28]. The further issue of the specific share of such possible beneficial interest of the Deceased in the pool raised by Lily for the present purpose[29] is not founded by actual assertion, let alone evidence.

C3.  Category (3) - §§6; 11 to 12 of the draft notice of appeal

30.  It is argued that this court made unwarranted speculation in assessing Lily’s contention in respect of how Violet has handled the Deceased’s cash and household expenses[30].

31.  This is an inaccurate reading of this aspect of the Decision[31].

32.  Insofar as the references to the cash ledger kept by Violet and the query by Lily about the opening balance are concerned, what this court did was to set out the assertions and evidence of the parties before considering the criticism by Lily about the impropriety or apparent lack of formal accountability of Violet’s pattern of handling the Deceased’s funds in the circumstances of the case.  This court was expected to form a view of the circumstances as projected.  Part of such view was the concreteness and specificity of the basis for Lily’s challenge in this respect that one may reasonably expect in the circumstances.  The exercise was an objective assessment, not speculation.

33.  Lily repeats for the purpose of the present application the use of the Deceased’s cash by Violet to invest in shares[32]. As noted in the Decision, that was also admitted by Violet, and the proceeds of sale of the shares were accounted for in the ledger[33]. That a different view may be held about that does not render that held by this court of the matter erroneous as if this court was not entitled to come to such view in the circumstances.

34.  Lily challenges this court’s conclusion in respect of the use of the dividends from the Chevalier Shares to enable the Mother to purchase the corporate vehicle that held the family residence in Jardine’s Lookout in relation to the risk of dissipation of the Deceased’s estate[34]. Beside the amount involved, this court’s view of the contemporaneous evidence, including that of Lily’s involvement and knowledge about that, as explained in the Decision[35], which is not challenged for the present purpose, cannot be described as not, or less, significant in assessing whether that was conceived and implemented in dissipation of the Deceased’s estate.

D.  CONCLUSION AND ORDER

35.  Lily fails to demonstrate a reasonable prospect of the appellate court interfering with the exercise of this court’s discretion in refusing the appointment of APL in the circumstances as of the date of the last hearing.  It is not suggested that there is some other reason why the appeal should be heard.  The application is therefore dismissed.

36.  Following the event, Lily shall pay the defendants’ costs of and occasioned by the present application.  The parties are prepared for summary assessment of costs.  Considering the nature of the application, the reasonable professional work entailed and the involvement of counsel team as reflected by the written submission on the defendants’ side, I summarily assess such costs at HK$180,000.  The costs order is nisi.

37.  I thank counsel for their written submissions.

Mr Edward Chan SC, leading Mr Abel Lam, instructed by Lily Fenn & Partners, for the Plaintiff

Mr Benjamin Yu SC, leading Ms Teresa Wu, Ms Sabrina Ho, instructed by P C Woo & Co, for the Defendants

HCAP 22/2019

[2020] HKCFI 1792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 22 OF 2019

____________

____________

____________

______________

DECISION

______________

1.  The plaintiff commenced the present action to challenge the validity of what is said to be the last will of her father, Chow Yei Ching, deceased (“the Deceased”) dated 2015. This is her application for the appointment of administrators pendente lite (“APL(s)”).

Background

2.  The Deceased passed away in Hong Kong on 29 July 2018 at the age of 82.  He was survived by the following immediate family members:

(1)  lawful wife and widow, the 3^rd defendant (“the Mother”);

(2)  eldest daughter, the plaintiff (“Lily”), born in 1962;

(3)  second daughter, Chow Wai Lee (“Wai Lee”), born in 1963;

(4)  third daughter, Chow Lina (“Lina”), born in 1966;

(5)  fourth daughter, Chow Lisa (“Lisa”), twin sister of Lina;

(6)  fifth daughter, the 1^st defendant (“Violet”), born in 1967;

(7)  sixth daughter, the 2^nd defendant (“Vi Vi”), born in 1973; and

(8)  seventh son, Chow Vee Tsung Oscar (“Oscar”), born in 1974.

3.  The Deceased founded the Chevalier Group in Hong Kong in 1970, which has a wide range of businesses employing a total of 10,000 employees in various parts of the world.  The shares of Chevalier International Holdings Limited (“Chevalier”) are listed in the Hong Kong Stock Exchange (“HKSE”), and over 62% of those shares were owned beneficially by the Deceased and now his estate (“the Chevalier Shares”).

4.  Some of the children of the Deceased were, and still are, involved in the business of Chevalier.  Lily joined Chevalier in 1989, and has been an executive director of Chevalier since 2011.  Violet has been the personal assistant of the Deceased in Chevalier since 1997 until his passing.  Vi Vi, a qualified solicitor, joined Chevalier in 2015, first in corporate governance and then legal, company secretarial and communications. Oscar joined Chevalier in 2000, and has since 2015 been a non-executive director.  The other serving executive directors are not related to the Deceased’s family, but have all been working for Chevalier for either a decade or two.  As to the other children of the Deceased, Wai Lee is an architect by profession.  Lina is in the human resources field.  Lisa is in the top management of a renowned international auction house.

5.  October 2015 was an eventful time for the Deceased.  First, Chevalier celebrated its 45^th anniversary[1]. Later in the same month, the Deceased made various inter vivos gifts of money and properties to the children.  About a week later, a will of the Deceased, prepared by Foo & Li, solicitors (“F&L”), was executed by the Deceased on 29 October 2015 (“the 2015 Will”).  Chronologically, this is also his last testamentary script and what Lily challenges in the present action.

6.  Unfortunately, on 8 January 2016, the Deceased suffered a stroke and became bedridden.  He passed away on 29 July 2018.

The 2015 Will

7.  The content of the 2015 Will was revealed to the Chow family in a will reading session held on 30 August 2018 at the residence of the Deceased and the Mother at Jardine’s Lookout.  Ms Cheuk Chiu Wah (“Cheuk”) of F&L, who was responsible for preparing the 2015 Will, conducted the session.  All the members of the family were present, save that Lina participated on the telephone.

8.  The 2015 Will essentially contains the following provisions:

(1)  The Mother, Violet and Vi Vi are named the executrixes and trustees, and in case of their premature death or renunciation, the other daughters shall substitute (Clause 2).

(2)  The Chevalier Shares are devised and bequeathed to Violet absolutely (Clause 3).

(3)  If Violet shall die in his lifetime or after his death but before attaining a vested interest, then the Chevalier Shares shall devolve and be distributed to Vi Vi absolutely (Clause 4).

(4)  If Violet and Vi Vi shall both die in his lifetime or after his death but before attaining a vested interest, then the Chevalier Shares shall devolve and be distributed to Lina absolutely (Clause 5).

(5)  The residuary estate shall be divided into 100 equal parts or shares for the absolute benefit of the Mother (30 equal parts or shares); Lily (10 equal parts or shares); Wai Lee (10 equal parts or shares); Lina (10 equal parts or shares); Lisa (10 equal parts or shares); Violet (20 equal parts or shares); and Vi Vi (10 equal parts or shares) (Clause 8).

(6)  If the Mother and Lily shall die in his lifetime or after his death but before attaining any vested interest, then their shares in the residuary estate shall devolve and be distributed among his grandchildren in equal shares absolutely (Clauses 9 and 11).

(7)  If any of his children being the beneficiaries, namely, Wai Lee, Lina, Lisa, Violet and Vi Vi, shall die in his lifetime or after his death but before attaining any vested interest leaving issue living at his death, then such issue shall take by substitution (Clause 12).

9.  Lily and Wai Lee expressed discontent about the terms of the 2015 Will, particularly about the specific bequest of the Chevalier Shares.  Eventually, on the same day, Violet gave her undertaking in respect of her entitlements under the 2015 Will.  This was reduced into writing by Cheuk and signed by the members of the family present^[2] (“the Violet Undertaking”).  It is in the following terms:

“I, CHOW WAI WAI VIOLET…hereby undertake to transfer all [the Chevalier Shares] that I am entitled under my father’s will dated 29^th October 2015 to a family trust to be set up for the benefit of Chow’s family (include my mother Miyakawa Michiko, my elder sisters CHOW Lily, CHOW Wai Lee, CHOW Lina, CHOW Lisa, me and my younger sister CHOW Vi Vi and my younger brother CHOW, Vee Tsung Oscar).

I, also, hereby undertake to transfer half (1/2) of my entitlements under clause 8(f) of my father’s will dated 29^th October 2015 to my younger brother CHOW, Vee Tsung Oscar.”

10.  In line with the Violet Undertaking, Chevalier issued a public announcement on 4 September 2018 stating that:

“…the Company has been informed by the executors of the estate of the late Dr Chow Yei Ching that the 189,490,248 shares (“the ‘YCC Shares’) in which the late Dr Chow Yei Ching was beneficially interested (representing approximately 62.76% of the issued shares of the Company) will be transferred to a family trust for the benefit of the immediate Chow family members and charitable organization(s) to be identified following the procedures and process necessary for the grant of probate and the formation of the said family trust…”

11.  Violet also filed 2 separate disclosure notices to the HKSE in her capacity as the executor/administrator and as the beneficial owner of the Chevalier Shares respectively^[3].

12.  In the following months, steps were taken by Violet and Vi Vi to apply for probate.  Notwithstanding the Violet Undertaking, Lily filed a Caveat in respect of the application for probate in Hong Kong on 19 November 2018.  Application was also made for probate in respect of the Deceased’s assets in Thailand.  In March 2019, the Thai Court appointed Vi Vi as the executor of the Deceased’s personal assets in Thailand, which Lily and Wai Lee now also complain about.

Previous testamentary scripts

13.  Apart from the 2015 Will, there are what are said to be the original will of the Deceased dated 26 February 1987 (“the 1987 Will”) and the original will of the Deceased dated 2 June 1989 (“the 1989 Will”).  There is also what is said to be an unsigned copy of the will of the Deceased dated 27 April 2009 (“the 2009 Will”).  The possible existence of the 2009 Will was actually revealed by Vi Vi and Violet.  Upon investigation, the understanding obtained from the solicitors responsible for the 2009 Will is that the Deceased has taken away the original with him and hence only an unsigned copy has been kept.  As of today, it is uncertain whether the original of the 2009 Will still exists or, if it does, where it is.

14.  Nevertheless, merely by reference to their terms, the 1989 Will served to revoke the 1987 Will while the 2009 Will, if this existed, should serve to revoke the 1989 Will.  The fact is that neither side of the present litigation contends that the 1987 Will or the 1989 Will constituted the last will and testament of the Deceased.  The stance of Lily is that upon the 2015 Will being struck down, the 2009 Will should govern or alternatively, the Deceased should be declared to have died intestate.

The 2009 Will

15.  The 2009 Will, according to the available copy mentioned above, contained the following essential terms:

(1)  Lily, Violet and the Mother are appointed as the executrix and trustees.

(2)  The estate is divided into “restricted assets” and “residuary estate”.  The restricted assets comprise the Deceased’s beneficial interest in 4 companies, including that the Deceased held in Chevalier in his personal name and through two other corporate vehicles.  The residuary estate comprises all the other assets.

(3)  The beneficiaries consist of the Mother and the children as well as their descendants and their spouses born or married before the “vesting day” (but excluding illegitimate descendants and their spouses, and spouses of legitimate descendants divorced before that day).  The vesting day is defined as the last year of the 80^th year of the Deceased’s death.

(4)  The trustees shall apply the residuary estate and the income (but not the capital) of the restricted assets for the maintenance, education and advancement use and benefit of the beneficiaries until the vesting day.

(5)  The estate shall be distributed to all the beneficiaries living on the vesting day, or none is surviving, to such beneficiaries as the trustees shall determine in their absolute discretion.

Lily’s contentions in the present action

16.  Essentially, Lily challenges the mental capacity of the Deceased in making the 2015 Will. Alternatively, the Deceased is said to have no knowledge or approval of the terms of the will.  Reference is made to his condition prior to and at the relevant time of the making of that will.  Much is also said about Violet and Vi Vi.  The former is said to have had no career of her own, if she had not been engaged by the Deceased as his personal assistant.  The latter is the former law school fellow student of Cheuk, and the two were instrumental to the preparation of the will.  In terms of pleading, there is no allegation that the Deceased has been subject to duress or undue influence exerted by any of these persons involved at any time prior to the preparation and execution of the 2015 Will.

17.  Lily also disputes that the Deceased would make such a will which, she contends, was contrary to his genuine intention.  Reference is made to the alleged intention of the Deceased to set up a family trust instead of an absolute bequest of his interest in the Chevalier Shares to a particular child.  She contends that the family, including Violet, acknowledged that the 2015 Will does not manifest such intention of the Deceased, or else there would not have been the Violet Undertaking.

The defendants’ contentions in the present action

18.  According to the defendants, the Deceased in fact always trusted Violet.  Hence his having engaged and then kept her as his personal assistant for nearly two decades until his passing.  As his personal assistant, Violet was entrusted with handling his personal affairs and managing the finance of his and the family household.

19.  In 2015, the Deceased asked Vi Vi to assist him to prepare his last will.  Hence the instruction to Cheuk of F&L.  The contemporaneous email correspondence between Vi Vi and Cheuk in this respect as well as the draft wills are disclosed.  There is also what is said to be the handwritten note of the Deceased dated 26 October 2015 setting out his testamentary intention and instruction.  The Deceased formally executed the will in the presence of Cheuk and a trainee solicitor at the office of F&L on 29 October 2015.  The handwritten note was also confirmed on the same occasion.  At all material times, the Deceased was mentally fit both at home and at work^[4]. He suffered the stroke only afterwards in 2016.

20.  During the will reading session after the Deceased’s passing, witnessing the expression of discontent by Lily and Wai Lee about the terms of the 2015 Will, Violet volunteered what became the terms of the Violet Undertaking entirely out of her wish to diffuse hostility and to maintain peace within the family.  Accordingly worded and signed by the Mother and the children^[5], that was Violet’s undertaking to re-distribute and transfer what she would be entitled to under the 2015 Will.  The public announcements in respect of the Chevalier Shares were then issued in line with the Violet Undertaking.  It is therefore untrue that the family acknowledged that the 2015 Will contradicts the true intention of the Deceased.  On the contrary, it is Lily and Wai Lee who now renege on their acceptance of the Violet Undertaking, and seek to overturn the very basis of the undertaking by commencing the present action to challenge the validity of the 2015 Will.

Relief sought in the present action

21.  In May 2019, the plaintiff commenced this action, naming Violet, Vi Vi and the Mother as the defendants.  As amended in July 2019, her claim is for the following relief:

(1)  Declaration that the 2015 Will is invalid as it was executed by the deceased without knowledge and approval of its contents and/or without the requisite testamentary capacity, and/or executed without the requisite animus testandi;

(2)  Order that the copy of the 2009 Will be admitted to probate;

(3)  Order that Violet be debarred from acting as executrix of the 2009 Will;

(4)  Alternative to (2) and (3) above:

(a)  Declaration that the Deceased died intestate;

(b)  Order that Lily or alternatively she and the Mother (and/or such other administrators as may be appointed) be authorized to apply for and be granted Letters of Administration of the estate of the Deceased;

(5)  Costs;

(6)  Further or other relief.

The present application

22.  By summons filed on 15 July 2019, Lily applies for an order to appoint Mr Lai Kay Yan Derek and Mr Ho Kwok Leung Glen, both of Deloitte Touche Tohmatsu, as the joint and several APLs of the estate of the Deceased, in the following terms (“the APL Application”):

(1)  the appointment of APLs;

(2)  the APLs do forthwith apply for a grant of Letters of Administration Pendente Lite to investigate and identify the property and liability of the Estate;

(3)  the APLs be authorized, pending the grant, to make such enquiries and carry out such Land Registry, Companies Registry or similar searches as they shall deem reasonably necessary to investigate and identify the property in the Estate, and any other property which is held on trust by any person(s) for the benefit of the Deceased or the Estate;

(4)  the APLs be authorized and empowered:

(a)  subject to the grant, to take such steps for the purpose of getting in and preserving the Estate^[6];

(b)  subject to the grant and with leave of the court and upon notice to the parties, to take proceedings in the name of the Deceased or the Estate or in their own name for the purpose of getting in and preserving the Estate;

(c)  to retain independent legal and other professional advisers inside and outside Hong Kong to assist them in the fulfilment of their duties and to retain the services of Deloitte for such purpose;

(d)  subject to the grant, to have and exercise all the powers of a general administrator pursuant to section 40 of the Probate and Administration Ordinance, Cap 10 (“the PAO”);

(e)  to register themselves as shareholders in respect of shares in companies registered in the name of the Deceased and to exercise all the powers of shareholders including the appointment of such members of directors as the APLs shall deem reasonable in place of or in addition to the existing directors of such companies.

(5)  The APLs be required to report to the court with copies to the parties within 6 months of the appointment on the progress and conduct of the administration of the Estate and thereafter prepare a report every 6 months subject to further request from the court.

(6)  The APLs and the parties be at liberty to apply to the court for directions in respect of the conduct of the administration.

(7)  The APLs be indemnified out of the assets of the Estate in respect of the reasonable remuneration and disbursement, costs, charges and expenses (including the reasonable costs of Deloitte and any legal advisors retained by the APLs) incurred in administering the Estate, subject to the PAO and the Rules of the High Court (“RHC”)^[7].

(8)  Security as the court deems fit be provided by the APLs within 6 weeks or such other time as the court orders.

(9)  Costs of the application be paid out of the Estate.

23.  Lily pushed for an urgent hearing of the APL Application during the court vacation.  According to the certificate of urgency filed then, that was to enable the casting of votes attached to the Chevalier Shares by the estate of the Deceased at the annual general meeting of Chevalier scheduled to take place on 28 August 2019.

24.  Eventually, the parties managed to come to terms as to the ad hoc appointment of APLs^[8] for the sole purpose of causing the votes attached to the Chevalier Shares to be cast in favour of all the resolutions set out in the relevant notice of general meeting scheduled on 28 August 2019, and the term of such ad hoc appointment would terminate upon the conclusion of the meeting.  An order by consent to such effect was made by Hon Wilson Chan J on 9 August 2019, when His Lordship also adjourned the APL Application for substantive argument with directions in respect of affidavit evidence.

25.  Affidavit evidence was closed on 15 October 2019.  Wai Lee supports the APL Application, whereas the other siblings side with the defendants in opposition.

26.  On 24 October 2019, the defendants took out a summons seeking leave to file further affirmations to address issues said to be raised for the first time by the affirmations in reply filed on behalf of Lily (“Defendants’ Summons”).  Following that, Lily also took out her summons for leave to file yet another affirmation on 29 October 2019 (“Lily’s Summons”), ie, on the day before the present hearing.  These recent affirmations were adduced on a de bene esse basis.

The principles re the appointment of APL

27.  Section 40 of the PAO provides that:

“(1) Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling, or revoking any grant pending, the court may… appoint an administrator of the estate of the deceased.

(2) An administrator so appointed shall have the rights and powers of a general administrator, other than the right of distributing the residue of the estate.

(3) Every such administrator shall be subject to the immediate control of the court and act under its direction.”

28.  O76, r14(2) of the RHC also provides that where an order under section 40 of the PAO is made, several provisions under O30 shall apply as if the APL were a receiver appointed by the court.

29.  The principles governing the court’s exercise of the discretion to appoint an APL were summarised by Recorder Lisa Wong SC (as she then was) in Mak Ngun Tai & Orsv Fung Ming Ip & Ors HCAP 37/2015 (14 October 2016) at §36^[9]:

(1)  The court does not automatically appoint an APL whenever there is a pending probate dispute.

(2)  The court only appoints an APL when it is necessary or expedient to do so.

(3)  Necessity or expediency has to be assessed with reference to the actual circumstances of the case, which obviously vary from case to case so that the situations in which the court would appoint an APL cannot be stated exhaustively.

(4)  Relevant considerations would include the condition of the estate, the nature of the assets comprised in the estate, whether there is a likelihood of dissipation or jeopardy of assets and whether there is a need to collect the “fruits of the estate”.

(5)  An appointment would be necessary or expedient if, for example, it is required to protect the estate by collecting, managing or safeguarding the assets or to enable legal action to be taken against third parties pending the resolution of the probate dispute.

30.  The burden is on the applicant to establish the need for doing something to protect and preserve the estate and, for that purpose, APL should be appointed: see Lai Wai Pang v Kwok Li Shuk Han HCAP 13/2000 (16 May 2003) at §9 per A Cheung J (as he then was).

31.  Mere assertions (if disputed) are of little or no weight, and a party’s suspicion is not sufficient to found the court’s exercise of discretion: see Chinachem Charitable Foundation Limited v Chan Chun Chuen & Ors HCAP 8/2007 (10 December 2007); Lai Wai Pang v Kwok Shuk Han HCAP 13/2000 (above) at §9.

The assets of the Deceased’s estate

32.  The bulk of the estate of the Deceased comprises the Chevalier Shares, which the Deceased held in his personal name and through two corporate vehicles.  If the 2015 Will is propounded, this bulk of the estate would go to Violet absolutely pursuant to the specific bequest of the Deceased.

33.  Of the residuary estate of the Deceased, Lily would be a beneficiary.  This would be the case whether pursuant to the 2015 Will or the 2009 Will or intestacy.  As to this part of the estate, Lily raises for the purpose of the APL Application questions in respect of the chattels, cash and investments allegedly forming part of the estate.

34.  It is the burden of Lily to establish to the satisfaction of this court that it is necessary or expedient to appoint the APLs, considering, amongst other circumstances of the case, the nature, size and condition of these assets comprising the estate of the Deceased.

The Chevalier Shares

35.  Lily seeks the appointment of the APLs with the specific power to register themselves as the shareholders of the Chevalier Shares and to exercise all the powers as shareholders, including the power to appoint such number of directors as the APLs shall deem reasonable either in place of or in addition to the existing directors of Chevalier.  Such relief is sought in the known context that Chevalier is a listed company.

36.  In principle, the court will not lightly make an interim order to disturb the composition of the board of directors in a listed company, when factual dispute is yet to be resolved: see 張才奎所託管中國山水投資有限公司股份相關員工& Anor v張才奎& Anor HCA 1661, 1766, 2191/2014 and 623, 939, 1564/2014 (23 July 2015) at §§28-30; H v H [2011] 1 HKLRD 1048, at 1061-1062.  Nor would the court consider it appropriate to do so as a matter of final order, unless it is absolutely essential to do so in the circumstances: see Re Chime Corp Ltd [2003] 2 HKLRD 905 at §§25-26.

37.  Even in the case of a receiver of a company, the receiver is not there to effect change of management but to “hold the ring” until the dispute between the parties that would affect the company has been resolved.  A receiver is not a “company doctor”, but rather a “company caretaker”, and his function is not so much to restore profitability, but rather to preserve those assets of the company upon which its fortunes may be dependent, and to preserve its potentiality for earning profits in the future.  Contrasting that, an APL is a stakeholder with limited role.  See張才奎 (above) at §§15-25; see Henderson v Executor Trustee Australia Ltd [2005] SASC 477 at §§122-123.

38.  In the present case, the composition of the board of Chevalier cannot be altered without the majority vote attached to the Chevalier Shares belonging to the Estate.  Such vote cannot be cast, in the absence of the grant of probate in respect of those shares, which is being contested.  This is the status quo: see Henderson (above) at §§64-65.  Whilst Lily suggests that the situation may leave the control of the company into the hands of the minority, there is no evidence of actual risk in terms of alteration of the board if the interim majority control of the board and the company is not seized of by appointing the APLs to take control of the Chevalier Shares.

39.  Lily contemplates that the court’s directions regarding the composition of the board may be sought only in special circumstances.  She also contemplates that such power of the APLs to affect the composition of the board would only be exercised with the express sanction or direction of the court.  In other words, even Lily does not contemplate that the appointment of the APLs should lead to a radical change of Chevalier’s top management unless the circumstances warrant and with the sanction of the court.

40.  However, Lily proposes that the appointment ought to be made to ensure that the board of directors of Chevalier performs their function properly.  Yet the fact is that the board of directors of Chevalier is clearly a very experienced one.  As mentioned, the members of the board came with over a decade’s working experience at Chevalier.  The current Chairman and Managing Director, Kuok, has been much trusted by the Deceased throughout the years.  There is no suggestion or evidence that the board is not, or in the foreseeable future will not be, functioning properly.  Notwithstanding her skepticism about Kuok now, mainly due to what she considers to be his siding with the defendants, Lily does not dispute that the members of the board are capable, and it would be in the interest of the business and shareholders to maintain stability by retaining them.  Kuok endorses that approach.

41.  Insofar as control and management of the company through the Chevalier Shares is concerned, I am not convinced that the appointment of the APLs with the proposed power in this respect is justified in terms of necessity.

42.  It is argued on behalf of Lily that it is nevertheless expedient to appoint the APLs, which would save the parties from having to go through what an ad hoc appointment of APL in respect of the Chevalier Shares would entail as it happened on the last occasion, and hence legal costs as well.  However, it appears to me that the last ad hoc appointment itself was not the problem.  Nor was how the votes attached to the Chevalier Shares should be cast by the ad hoc APLs.  What apparently got the parties into argument was what it took to enable the ad hoc APLs to cast the vote last time.

43.  The background of the argument in this respect started with the application for grant pending suit for the limited purpose of the ad hoc appointment, which was issued only 2 days before the annual general meeting.  Despite Lily’s criticism of her opponents, the contemporaneous documents suggest nothing short of genuine effort made by the APL nominated by her opponents within the limited time to enable the votes attached to the shares to be cast at the meeting.  That indeed did not fully succeed so that a certain number of shares were not voted in the annual general meeting^[10]. However, notwithstanding the dispute in this respect^[11], the fact was that the votes were cast with the proposed resolutions at the annual general meeting passed by overwhelming majority votes.  The purpose of the ad hoc APLs was substantially served.

44.  The above highlights the real problem, which is essentially the lack of trust when it comes to joint action.  If this simply persists, the APLs, even if appointed, would not be expected to act in respect of the Chevalier Shares without regard to the difference between the two camps in this action.    On the basis that the APLs, if appointed, must act in the interest of the estate, and hence all the potential beneficiaries^[12], any difference between the two camps regarding the exercise of the voting rights attached to the Chevalier Shares would more likely than not entail the need for sanction of the court.  In other words, appointment of APLs per se will not be the expedient solution.

45.  In any event, the need for the appointment of APL to seize control of the Chevalier Shares and to exercise the right of the majority vote in the general meeting, in my view, is being exaggerated.  In reality, only 2 special general meetings have been called during the last 5 to 6 years.  As to annual general meetings, both before and after the Deceased suffered the stroke, the businesses transacted and resolutions proposed were essentially similar to those which were passed in the last one, such as re-appointment of retiring directors, declaration of dividends and approval of audited financial statements.  Such resolutions have always been passed by the shareholders with overwhelming majority votes.  Those included the votes attached to the shares held by the corporate vehicles caused to be cast in the general meetings after the Deceased has suffered the stroke and before he passed away.  As an executive director, Lily was aware of that but she has made no complaint about alleged manipulation of voting until after the commencement of this action.

46.  Consideration of the history in this respect reinforces the feasibility of leaving it to the parties to come to terms as to how the voting rights attached to the Chevalier Shares should be cast in general meetings pending the determination of this action.  The siblings in the defendants’ camp found the idea of a committee of the parties to be agreeable.  As mentioned, the problem projected by Lily with reference to the last annual general meeting does not lie with how the votes should be cast either.  In the event of difference between the two camps, resort to the direction of the court, as mentioned, will be inevitable whether or not APLs have been appointed.

47.  Pursuant to the Violet Undertaking, the Chevalier Shares are supposed to be transferred into a family trust.  Violet is criticized for backing out of her undertaking.  However, the evidence shows that after the Violet Undertaking has been signed, the parties respectively caused draft deeds of family arrangement to be prepared.  Violet also caused a deed of trust to be prepared.  Blame put aside, the fact is that the two camps are yet to be able to agree on the terms of the drafts.  The arrangement proceeded no further because of the commencement of the present action.

48.  By commencing the present action, Lily (and Wai Lee who sides with her) challenges the validity of the 2015 Will and thus the very basis of the Violet Undertaking.  Notwithstanding that, Violet has shown no intention of backing out of the undertaking at least pending the determination of the present action.  Whether or not she would change her mind about this, Violet is not in a position to dispose of the Chevalier Shares, in the absence of grant of probate in her favour.  There is no suggestion or evidence of any attempt on her part to do so.

49.  Regarding shares in Chevalier, Lily also raises question about what she describes as hidden shares which, she argues, are at risk of dissipation.  As disclosed to the HKSE after the Violet Undertaking, 0.04% of shares in Chevalier are held by Violet under her own name, and 4.78% by her company Winful Investments Limited.  In respect of these shares in Chevalier, Violet now offers the following undertakings to the court to maintain the status quo:

(1)  She will not sell or procure the sale or otherwise dispose of any of these shares and will not to seek to change the current composition of the board of Chevalier pending the determination of the present action or further order of the Court.

(2)  She will not exercise the voting rights attached to these shares without the consent of Lily or direction of the court.

(3)  If no appointment of APL is made, these shares will also be transferred into the trust for the equal benefit of all the siblings.

50.  In view of the lack of evidence suggesting the risk and ease of disposal of any of these shares behind the scene, these undertakings appear to suffice instead of the appointment of APL for the purpose of preservation of these shares.

51.  To conclude, insofar as the Chevalier Shares and the so-called hidden shares under the name or control of Violet are concerned, Lily fails to substantiate by concrete evidence the alleged risk of dissipation of any part of them that would have cried out for collection or preservation.  The undertakings of Violet in this respect, which are to the court, suffice at this stage for the purpose of holding the ring pending the resolution of the dispute between the parties.  Insofar as the control and management of Chevalier through the holding of these shares are concerned, the concern about the interest of the company, and its impact on the interest on the potential beneficiaries of these shares, is even less in justifying the appointment of the APL.

The chattels

52.  Lily and Wai Lee expressed surprise that the schedule of properties filed by the defendants on 30 October 2018 appears to suggest that the Deceased has no chattels in his estate.  They complain that it failed to account for, amongst other things, the chattels in the estate of the Deceased^[13], which they reckon are worth in excess of HK$30 million.

53.  Substantial part of the chattels referred to is contained in the two residences of the family at Jardine’s Lookout and at Shek O as well as a warehouse in Fanling.  There are also few items in the Deceased’s office at Chevalier.  According to Lily and Wai Lee, these chattels include items of home and office furniture, home decoration, tableware, artworks, precious stones, jewellery and down to personal items such as the Deceased’s cufflinks.  They are invariably described by Lily and Wai Lee as acquisitions by the Deceased as his investments.

54.  The Mother refuted the suggestion by Lily and Wai Lee.  Their quality and value aside, these items, according to the Mother, were never perceived by the Deceased as his investments at the time of their acquisitions.  To begin with, it was not the personality or interest of the Deceased to invest in chattels like these.  Nor was there pattern in such purchases, many of those were done by him and the Mother together, and many were purchased for the purpose of decorating the family residence when it was erected as well as for household use.  She doubts if some of the artworks are even authentic.

55.  Among the chattels, Wai Lee alleges that some jewellery items were deposited with Sotherby’s (where Lisa works as mentioned) connoting their investment nature. However, Lisa, as she should be in such position to do so, made clear that this is in fact not the case.  The jewellery items, except for the few kept at the family residence, are kept in the safe deposit boxe jointly held by Lisa, Lily and the Mother as well as that jointly held by the Mother and Wai Lee.

56.  Violet and Vi Vi admit that these chattels were not included in the schedule of properties.  According to them, the children actually discussed and came to consensus that these chattels purchased by the Deceased and the Mother should remain with the Mother in commemoration of the love and marriage of the couple.  Hence the conscious decision to leave them out of the schedule.  Be that strictly right or wrong, the fact was that the schedule of properties was compiled in the open.  The evidence shows that Violet and Vi Vi have sought input from the siblings for the purpose of preparing the schedule.  Violet has also circulated the draft schedule for her siblings’ comment.  The only comment in this respect from Wai Lee concerned the Deceased’s half share of a racing horse[14], which was accordingly added to the schedule.  Without any other comment from the siblings, Vi Vi and Violet caused the schedule to be finalized and filed.

57.  In other words, notwithstanding invitation and opportunity at the time when the schedule was being compiled, there was no complaint about what would have been glaring failure to report chattels in the Deceased’s estate that are worth some HK$30 million.  The surprise that Lily and Wai Lee now expressed in this respect does not impress this court as genuine in the circumstances.

58.  More importantly, in view of the openness of how the schedule was prepared at the relevant time, there is little room for suggesting any dishonesty or dissipation on the part of Violet or Vi Vi with reference to the schedule.  The whereabout of the chattels are identified.  Whilst expressing disappointment about the dispute now raised by Lily and Wai Lee in this respect, the Mother also undertakes to maintain those chattels pending the determination of the present application or any other order of the court.  There is no suggestion of belief that the Mother, or the other siblings of Lily and Wai Lee, have ever attempted, or will attempt, to act in any contrary way.

59.  When there is no real concern about the preservation of the properties, the fact that the schedule is incomplete does not suffice for the purpose of Lily.  On the basis that all the properties belonging to the Estate should in principle be accounted for in the schedule of properties for probate purpose, regardless of any family consensus after the Deceased’s death, that would entail amendment of the schedule, which could well be done provided that it is done in the open.

60.  For the above purpose, and also to come clean in view of the issue taken by Lily, the defendants have instructed professional valuer, Hilco Global Greater China Limited (“Hilco”), to conduct stock-taking of the chattels at the residences. The first round of stock-taking has been carried out.  Wai Lee and the representative from Lily’s solicitors and Wai Lee were present at the stock-taking at the Shek O residence on 3 September 2019.  The defendants would also arrange the valuer to carry out stock-taking at the Fanling warehouse.

61.  The stock-taking exercise ignited further spark between the two camps, including complaint by Lily and Wai Lee that the exercise at the Jardine’s Lookout residence was attempted without their presence.  The circumstances, as revealed by the evidence, were such that the exercise could not objectively be categorized as mere pretence on the part of the defendants or attempt behind the back of Lily.  Importantly, the APLs, even if appointed, would not be expected to carry out the stock-taking exercise themselves, but would have to engage an independent valuer for that purpose.  As such, focusing on the appointment of an independent and competent valuer would be more material and effective.  There is no evidence questioning the competence of Hilco, but the manner of its staff, in the exercise.  Nor is there evidence to suggest that the exercise could not proceed without the APLs.

Overseas assets

62.  The defendants reckon that the Deceased’s assets in Thailand consist of a property let out in Bangkok and a couple of bank accounts in the Deceased’s name.  The documents suggest that Lily is in possession of the relevant documents relating to this property, and that she was involved in liaising with the Deceased’s old friend looking after the property there.  The correspondence between Lily and Vi Vi in this respect suggests no attempt on the latter’s part to hide fact from the former.

63.  While Violet was gathering her siblings’ comment on the schedule of properties for the purpose of applying for probate in Hong Kong, Vi Vi also took steps with a view to applying for probate in respect of the Deceased’s assets in Thailand. In mid-October 2018, Vi Vi requested her siblings to provide their birth certificates and written consent to authorize her to act on their behalves in the application for probate in Thailand.  In the same month, Vi Vi also forwarded to her siblings the email from Cheuk reporting on the progress of these applications.  In early November 2018, Vi Vi informed her siblings by email that except for Lily and Violet, who would not sign the consent letter due to issues arising out of their birth certificates, and Wai Lee, who was then yet to respond, the Mother and the other siblings were prepared to sign the consent letter.  The consent letter was prepared by the Thai lawyers engaged by the defendants, and therefore it had to signed before a Notary Public for the purpose of the Thai probate proceedings.

64.  Wai Lee eventually also signed the consent letter before the Notary Public in mid-November 2018, and a copy of the signed letter was provided to her.  Armed with that, Vi Vi informed her siblings by email in late February 2019 that she would be attending a meeting in Thailand in this regard on 18 March 2019.

65.  However, in early march 2019, Wai Lee sought to overturn her consent.  Through LFP, she complained that Cheuk did not explain the legal effect of the consent letter before she signed it, and that she did not understand its legal effect.  This prompted F&L to put on record that they, and of them Cheuk, were not instructed in respect of the probate application in Thailand, except for arranging the notarization of the consent letter, which was prepared by the Thai lawyers engaged by the defendants, and authentication of the documents requested by the Thai lawyers.  Cheuk had explained to Wai Lee that the latter should seek her own independent Thai legal advice in respect of her rights and entitlement to the Deceased’s estate in Thailand, if she had any question.  The contact details of the Thai lawyers were also provided to LFP for future enquiries regarding the probate application in Thailand.  Later in the same month, Vi Vi attended the Thai Court.  The Thai Court appointed Vi Vi as the executor of the estate of the Deceased in Thailand.  The family members were then informed of the appointment.

66.  Insofar as the substance of the Thai probate is concerned, the dispute is beyond the Hong Kong court.  For the present purpose, the dispute is raised as an instance implicating the character and competence of Violet and Vi Vi in administering the estate of the Deceased.  Specifically, Vi Vi is criticized for taking out and proceeding with the probate application in Thailand for the purpose of circumventing the probate action in Hong Kong.  In view of the contemporaneous evidence, I do not accept the criticism.

67.  First, dispute in respect of particular steps aside, the conduct of Violet and Vi Vi in the probate applications in Hong Kong and Thailand shared a common feature. They were done in the open with the involvement and knowledge of the family members.

68.  Second, as to the consent letter, which was in English, the siblings had no difficulty in understanding of its content and effect.  It was essentially a one liner confirming the consent and authorization of Vi Vi.  Wai Lee also signed it before the Notary Public after having had the opportunity to read it.  She also cared to request for a copy of the consent letter signed by all the parties, which Cheuk did send to her by email later on the same day.  Complaint on her behalf was made only after Lily had filed a Caveat in the probate application in Hong Kong.  The burden of Wai Lee to substantiate the complaint, which was not about the lack of opportunity or ability to read but inability to understand the content and effect of the consent letter.  In view of Wai Lee’s background and the circumstances then, her allegation is hardly attractive.

69.  Third, in their subsequent letter responding to LFP in May 2019, the Thai lawyers confirmed that they had indeed informed the Thai court of the revocation of consent of Wai Lee and the Caveat filed by Lily in Hong Kong, and it was the Thai court that decided that the appointment should nevertheless be made. There is no material before this court in the form of Thai legal expert opinion that contradicts the explanation or the legality of the appointment in such circumstances.

70.  Last, and not unrelated to the above considerations, Vi Vi never pressed Wai Lee to sign the consent letter.  The email correspondence in early November 2018 suggests that she left it to Wai Lee to decide if she intended to sign it.  Importantly, she put on record that for those who would decide not to sign the consent letter, their interest would not be prejudiced, and she would distribute the assets in accordance with the 2015 Will.

71.  As to the Deceased’s assets in Canada and Mainland China, the materials before this court do not suffice to suggest any risk of dissipation that would have called for their preservation by APL.  According to Vi Vi, Canadian legal advice has been obtained in respect of the only asset in Canada, namely, a securities account in the joint name of the Deceased and the Mother.  As to the assets in the Mainland, nothing could or would be done while the probate in Hong Kong is still pending.

The Deceased’s cash

72.  As mentioned, the Deceased had during his lifetime not only trusted and kept Violet as his personal assistant in Chevalier but also entrusted her with the management of his personal expenses and household expenses of the family for nearly two decades.  In other words, Violet handled cash of and from the Deceased. Lily now raises various allegations in respect of Violet’s management of such funds and thus the need for APL to investigate and to preserve.

73.  The evidence shows how Violet handled such funds from the Deceased.  There was admittedly no formal or professional accounting records.  She would keep ledgers in the form of running account to record the income and expenses. Payments made on behalf of the family by the family members, Lily and Wai Lee included, were reimbursed out of such funds by Violet.  No separate bank account was opened for such funds, and Violet used her own personal account and cheques in this connection.  This has been the pattern for years, and known by the Deceased and all the members of the family.

74.  According to Lisa and Lina, they observed escalation of challenge by Lily about Violet’s handling of the funds after the Deceased suffered the stroke in 2016.  In any event, through Oscar, Violet in fact passed her ledgers for the years from 2015 (ie, prior to the Deceased’s stroke) up to 2017 to Lily.  Oscar added that whilst it might not be objectionable to enquire into specific items of application of the funds, Lily was requested to understand the history and pattern as a matter of arrangement between the Deceased and Violet as mentioned above.  In January 2017, Violet also transferred what is said to be the balance of such funds (in excess of HK$16 million) from her personal account to one of the Deceased’s bank accounts.  The siblings were informed and shown the bank-in slip in respect of the transfer.  Violet made clear she would cease handling any household money for the Deceased from that point onwards. Lily took over, but complains that Violet dumped this on her.  She also questions if the sum returned represents the entire balance of the Deceased’s cash.

75.  When considering criticism against Violet about the impropriety or apparent lack of formal accountability of the pattern of handling the Deceased’s personal and household funds, one must not lose sight of the fact that the Deceased was before his stroke perfectly aware of and capable of complaining about that or, if he disapproved, even revoking the arrangement.  There is no evidence of that, but rather evidence to the contrary from the other siblings.  In the absence of the Deceased’s query during his lifetime for nearly two decades, the substance and fairness of Lily’s challenge against Violet now to answer queries such as that about the opening balance under such arrangement between the Deceased and Violet is questionable.  To be fair, and after such time since 2017 when she got hold of the ledgers, Lily should be expected to come up with more concrete and specific factual basis for launching the challenge.  Yet this is lacking.

76.  Other allegations are raised as instances of alleged usurpation of such cash by Violet.  They include payment made to the monks arranged by Chi Nin Nunnery to conduct prayers at the Deceased’s funeral, which is being questioned for the lack of receipts.  Violet confirmed such expenses, but refuted any suggestion of dishonesty.  Lily seeks to borrow support from the terms of the Deceased’s will which referred to receipt for payment or donation to such establishment. However, the monks were arranged at the family’s request by the establishment from outside for the funeral prayer service, which the establishment did not provide, and therefore the payment by “red packets” to the monks then was the family’s token to these outside monks, not donation to the establishment.

77.  The instances alleged also include the alleged usurpation of the household expenses to fund the renovation of Violet’s residence.  Violet confirmed the renovation episode, which took place after the Deceased gave her the property in October 2015 (as mentioned above), but she refuted the alleged usurpation of funds. Lily cannot put her case in this respect higher than her own belief that Violet should have been unable to fund the renovation without the alleged dishonest conduct.  This is however countered by the evidence of Lisa and Lina.

78.  Issue is also taken in respect of the use of the Deceased’s household funds (through the personal securities account of Violet).  Specifically, funds had been invested in 800,000 shares in China Construction Bank.  Lily again put her case on the basis of suspicion.  Violet did not dispute the investment, but explained that the money was not used behind the Deceased’s back but with his encouragement during his lifetime.  Those shares had subsequently been sold, and the proceeds of sale were also deposited into the Deceased’s bank account. The deposit was accordingly recorded in the ledger for 2017.  As mentioned above, the 2017 ledger had been provided to Lily, but issue in respect of such use of the funds was raised only in her affirmation in reply.

79.  Apart from mistrust between the two camps, which should be obvious, these specific allegations, as they now stand, do not depict themselves as matters supported by concrete evidence so as suggest the estate of the Deceased has been dissipated or at the risk of dissipation, if not preserved by the APL in the interim.  Seeking to appoint APL to investigate that would be putting the cart before the horse for the purpose of the present application.

The investment pool

80.  Lily alleges that the defendants have withheld from mention the Deceased’s investment held by some 15 corporate vehicles holding different assets.  The allegation was first made in the affirmations of Lily and Wai Lee in reply upon the close of affidavit evidence.  The new allegation caused the defendants to seek leave to file further affirmations to address the recent allegations by way of their latest summons.  These are the 6^th affirmation of Vi Vi and the 2^nd affirmation of Violet.  Lily did not yield and insisted on having her last say by her last summons for leave to file yet her further affirmation. As mentioned, they are adduced on a de bene esse basis during the hearing.

81.  Essentially, the answer of the defendants to this allegation is that whilst funded from the outset by the Deceased, the investments through these corporate vehicles belong to the children.  This was and still is what the children refer to as their investment pool (“the Investment Pool”).  Lily and Wai Lee were and still are members of the investment committee of the Investment Pool.  The siblings have also benefited from the Investment Pool.  In other words, the defendants say that Lily and Wai Lee raised this recent allegation regarding the Investment Pool knowing full well that this is untrue.

82.  The defendants refer to various instances before the Deceased’s death.  The contemporaneous documents suggest that in 2017, the investment committee passed a resolution to approve the Investment Pool to engage Polaris Capital, a company set up and owned by Oscar, to provide administration and consultancy services in respect of the Investment Pool.  Lily signified her approval of the resolution by signing the minutes of the meeting.  The fees of Polaris Capital and the subsequent increase of fees were also approved by the Investment Committee.

83.  The contemporaneous documents also suggest that Wai Lee also obtained HK$5 million and HK$1.8 million in late September 2017 and early December 2017 respectively from the Investment Pool.  As mentioned, Violet handed over and Lily took over the management of the household expenses, including those for the Mother, in 2017.  The documents suggest that since then funds out of the Investment Pool had also been injected into one of Lily’s companies (Modern Sino Limited) for settling such household expenses.

84.  Reference is also made to various episodes after the Deceased’s death.  Shortly after the Deceased passed away, it was Lily who suggested the siblings to make a substantial donation in the sum of HK$100 million to the City University of Hong Kong.  In her email, Lily described a donation from the Investment Pool as the best way to show, in her own words, appreciation from all the children to the Deceased for all the comfort that they were enjoying.  In September 2018, Lily also approved funds to be paid out of the Investment Pool for donation to Ninghai Guangde Temple.  On 10 May 2019, the investment committee met when Lily also approved a donation of HK$100,000 to Hong Kong-Shanghai Economic Development Association.  On 15 May 2019, Wai Lee received a total sum of HK$600,000 from the Investment Pool as education fees for her 2 children pursuant to an education scheme set up by the Investment Pool for the benefit of the children of the siblings.  In late 2018, Wai Lee also indicated her intention to obtain 2 sums of US$5 million each from the Investment Pool in January 2019 and June 2019 respectively.

85.  Lily contends that the Investment Pool was held by the children on trust for the Deceased pursuant to his design.  In support, she refers to a decision of the Takeovers and Mergers Panel against the Deceased and Oscar back in April 2015 in relation to shares in another listed company for inference of such alleged modus operandi of the Deceased.  Without going into its details here, that decision concerned a particular design instigated by the late Nina Kung, and the Deceased and Oscar were found to have acted in concert for her purpose. That episode hardly lends weight to the alleged modus operandi of the Deceased for his purpose concerning his family assets.

86.  When it came to the oral submissions on her behalf, her position became that even assuming that the Deceased funded the Investment Pool to benefit the children, it would not necessarily mean that he himself would be excluded and thus retention of some beneficial interest in it.  The APLs, it was submitted on her behalf, should be appointed to investigate whether and, if yes, to what extent the Deceased has beneficial interest in the Investment Pool.  However, in the absence of dissipation, whatever extent of beneficial interest the Deceased is said to retain in the Investment Pool would have become part of the residuary estate.  The respective entitlements of the beneficiaries to that, be those according to the 2015 Will or the 2009 Will or upon intestacy, would not materially change.

87.  The above instances, both before and after the Deceased’s death, tend to suggest that the funds in the Investment Pool were managed and utilized by the children as their joint assets.  Had this been otherwise, so that the funds form part of the Deceased’s estate, one wonders how the children would have utilized such funds after the stroke of the Deceased in the absence of a committee appointed under Part II of the Mental Health Ordinance, Cap 136 (“MHO”) and after the death of the Deceased in the absence of grant.  It was not that the family was ignorant of that.  According to Vi Vi^[15], two law firms have been consulted on the issue of the appointment of a committee to manage the estate of the Deceased after his stroke in 2016.  Lily and Wai Lee did not take any contrary stance in this respect.  In any event, Lily and Wai Lee could not distance themselves from the use of such funds.  The last attempt by Lily to adduce affirmation evidence^[16] did not specifically address this.

Dividends from the Chevalier Shares

88.  Lily also raised for the first time in her affirmation in reply questions about dividends distributed from the Chevalier Shares.  Chevalier is a listed company, and such dividends should be ascertainable as a matter of public record.  However Lily and Wai Lee complains that they had no idea about the whereabout of such dividends.

89.  The parties’ affirmation evidence in this respect^[17] suggests that part of the dividends had been applied to enable the Mother to purchase from the Chevalier Group the corporate vehicle holding the family residence at Jardine’s Lookout.  The Deceased funded the acquisition of the property in the first place.  According to the defendants, it was Lily’s idea, whilst the other siblings did not consider the sale and purchase was necessary.  Nevertheless, the transaction went ahead upon Lily’s insistence, and Lily was involved in drawing cheques for the Mother to pay for it.  Whilst Lily, in his further reply, denied knowledge about the source of funding for that transaction consisted of dividends from the Chevalier Shares, the contemporaneous email correspondence tends to suggest the contrary.

Other conduct of the defendants

90.  Lily says much about the allegedly suspicious visits by Vi Vi to the office of Chevalier on 19 and 20 March 2019^[18]. The visits are not denied.  However, the first visit was explained with contemporaneous documentary evidence, while the second visit, made in the open, was not insisted upon after the office of the Deceased has been locked up apparently at the instruction of Lily.  I would not be surprised that the same allegations against Vi Vi would be maintained by Lily in the action, and therefore I am not to be taken to be making a finding of fact purely on affidavit.  That said, I would say for the purpose of the present application that projecting the suspicion about a plot to remove and destroy important documents such as testamentary scripts from the Deceased’s office sounds no more than sinister in the circumstances.

APL’s to investigate?

91.  The main vein running through the submission on behalf of Lily is the need for investigation.  It is proposed that APLs should be appointed to investigate into the matters raised by Lily, and to preserve evidence, before it would be too late by the time of the determination of the present action.  This does not appear to me to align with the proper basis for such appointment.  If there is basis supported by concrete evidence for the APL to step in, that will be because the court is satisfied that the estate, be it interest in a business concern or other properties, is faced with some risks so that steps need to be taken to preserve and protect the status and condition of the estate from such risks pending the determination of the underlying probate dispute.  It does not suffice to raise suspicion, let alone speculation, for founding a case for investigation by APL prior to the determination of the underlying probate dispute.

92.  What perhaps causes this court some concern is the fact that the properties and affairs of the Deceased after he has suffered the stroke in January 2016 until his death have been managed without the appointment of a committee under the MHO.  As mentioned, the defendants did not hide away in this respect, and deposed to the effect that the decision not to proceed with that was made after considering legal advice.  The impact of such decision, if any, will now have to take the form of an account by not only Violet but also the other family members, Lily included, after the grant of probate one way or the other.

93.  It is argued on behalf of Lily that there is no real detriment from the appointment sought other than costs and expenses.  Perhaps it may even be thought that the amount of such costs and expenses would be negligible compared to the size of the estate of the Deceased.  But this again is not the test.  Appointment will be made only if it is necessary or expedient to do so.  It is the burden of Lily as the applying party to establish that, before the consideration of the consequential financial burden occasioned to the estate.

94.  Since Lily decided to challenge the validity of the 2015 Will, notwithstanding the Violet Undertaking, she has embarked upon picking up stones along the way to turn, and has indeed left none of them unturned, in order to justify the application.  On behalf of the defendants, it is argued that this is opportunistic and she fails to succeed in any event.  Whilst I am not here to resolve the factual disputes between the parties, I tend to share that observation after considering all the circumstances, including those specifically discussed above, for the purpose of the APL Application.

Conclusion and order

95.  Regarding affidavit evidence, in the circumstances discussed above, it is only fair that this court should give leave to the defendants to file and adduce their further affirmations in terms of their summons.  Leave is also given to Lily to file and adduce her further affirmation in terms of her summons for completeness.

96.  Regarding the disposal of the APL Application, without prejudice to the Violet Undertaking, this court accepts the undertakings from the defendants in respect of the so-called hidden shares in Chevalier[19] and the chattels in the family residences[20] mentioned above.  As to the former, it is the undertaking in respect of the transfer of the so-called hidden shares into a trust for the benefit of all the children pending the resolution of the dispute in the present action, and pending such transfer the undertaking not to sell or procure to be sold or otherwise dispose of those shares or to seek to change the current composition of the board of Chevalier through the control of those shares.  As to the latter, it is the undertaking not to remove or to dispose of any of the chattels situated in the family residences under the Mother’s possession without the consent of the parties or order of the court pending the resolution of dispute between the parties in the present action.  Upon these undertakings, I dismiss the APL Application.

97.  Following the above event, I make a nisi order that Lily shall personally bear the costs of the defendants in the APL Application, including any costs reserved and the costs of the parties’ summons mentioned above[21].  Costs shall be taxed, if not agreed, with certificate for two counsel.  In the absence of application in 14 days to vary, this nisi costs order shall become absolute without further order.

HCAP 22/2019

[2019] HKCFI 2277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 22 OF 2019

________________________

________________________

________________________

D E C I S I O N

________________________

1.  This is the defendants’ appeal against the order of Master K H Hui made at the three-minute hearing on 1 August 2019.

2.  As the matter only involves a case-management decision and my decision on the appeal has to be delivered on an urgent basis ahead of the hearing on 15 August 2019, I shall only give brief reasons. 

3.  I note that one day before the hearing before the Master, on 31 July 2019, the plaintiff lodged her skeleton submissions attaching a draft order, in which the plaintiff sought representatives of Deloitte to be appointed as Administrators Pendente Lite (“APL”) only of the Chevalier Shares (as opposed to the entire estate), as well as directions in respect of the remainder of the APL Summons in line with the agreed timetable, namely:

(1)  The defendants shall file and serve their affirmation(s) in opposition to the summons on or before 5 September 2019.

(2)  The plaintiff shall file and serve her affirmation(s) in reply, if any, on or before 26 September 2019.

(3)  No further affirmation be filed without leave of the court.

(4)  The summons be adjourned to a date to be fixed in consultation with counsel’s diaries with one day reserved.

4.  In other words, the plaintiff did not propose that at the hearing on 15 August 2019, the entire APL Summons should be determined or that all the evidence has to be filed in August. 

5.  Contrast the order in fact made by Master K H Hui at the hearing, where the Master appeared to have ordered as follows.  I say “appeared” because before the court is only the draft order put forward by the defendants, as well as a note of the Master’s hearing made by the Master himself.

(1)  The defendants do file the affirmation(s) in opposition to the summons dated 15 July 2019 for appointment of APL to the estate (“the Summons”) on or before 7 August 2019 noon.

(2)  The plaintiff do file her affirmation(s) in reply, if any, on or before 13 August 2019 noon.

(3)  No further affirmation(s) to be filed without leave of the court.

(4)  The Summons be adjourned to 15 August 2019 at 2:30 pm (two hours reserved).

6.  Thus, on the face of the order, it is a possibility that the entire APL Summons will be determined at the two-hour hearing on 15 August 2019.

7.  It seems to me that the Master has either granted an order not sought by the plaintiff, or the plaintiff has pushed for and obtained an order way beyond what was proposed in her skeleton submissions and the draft order.  In my view, either way, the order made seems to be plainly wrong.

8.  Upon a hearing de novo of the matters before the Master, I am of the view that the appeal ought to be allowed for the following reasons.

9.  First, the defendants are entitled to a reasonable opportunity to file full evidence to address the issues in opposition to the APL Summons, as well as who should be appointed and the scope and limits of the APL should the court decide to appoint such.  It is extremely prejudicial to the defendants who are now deprived of a reasonable opportunity to properly put all evidence in opposition to the APL Summons before the court.  And in my view, the time permitted by the order of 1 August 2019 is not sufficient for that purpose. 

10.  Second, there is no urgency to deal with the entirety of the APL Summons on 15 August 2019.  As I have pointed out earlier, there is nothing in the plaintiff’s skeleton submissions dated 31 July 2019 for the hearing on 1 August 2019 asking for the entirety of the APL Summons to be dealt with on 15 August 2019.

11.  Third, the appointment of APL has far-reaching consequences to the administration of the estate and the interest of the parties involved and, in my view, the defendants as executors ought to be afforded a reasonable opportunity to address the court on all these implications. 

12.  Accordingly, I shall allow the appeal and should now hear the parties on the terms of the order to be made either with reference to the

notice of appeal or the draft order lodged with the court by the plaintiff.

Mr Edward Chan, SC, leading Mr Abel Lam, instructed by Lily Fenn & Partners, for the plaintiff

Mr Denis Chang, SC, leading Ms Sabrina Ho and Ms Tara Liao, instructed by P C Woo & Co, for the defendants