ANGELA CHEN v. WAI WAI CHEN

HCAP 10/2020

[2026] HKCFI 1584

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 10 OF 2020

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DECISION

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INTRODUCTION

1.  This probate action concerns the estate of the late Madam Yang Foo-Oi.  The plaintiff and the defendant are her two daughters.  There have been a number of interlocutory applications taken out since the action was commenced in 2020.  As in the previous decisions, I shall call the parties by their first names, Angela (the plaintiff)  and Vivien (the defendant), and the deceased “Mother”. I shall call the late Dr Chen Din Hwa, the father of Angela and Vivien, “Father” below.  Dr Chen was the founder of the Nan Fung group. 

2.  In this action, Angela seeks to propound the will executed by Mother on 15 February 2008 (“the 2008 will”)  which left all her assets to Angela and appointed her as the sole executrix.

3.  Vivien, on the other hand, seeks to propound an earlier will made by Mother dated 27 October 2004 (“the 2004 will”)  under which there would be an equal division of assets between the two daughters, and both of them would be appointed as co-executrices.

4.  For the background of the action and a broad overview of the parties’ pleaded cases, see, eg, the decision of Wilson Chan J at [2024] HKCFI 962, paras 7 to 24.

5.  This is the decision on the summons dated 31 March 2025 taken out by Vivien for specific discovery against (1)  Angela, (2)  Mrs Mabel Lui (the 1^st respondent), a solicitor formerly with Dibb Lupton Alsop, now DLA Piper, and (3)  DLA Piper Hong Kong (the 2^nd respondent), the firm of solicitors now acting for Angela.

6.  The documents sought relate to the following four documents signed by Mother:

(1)  a statement entitled “楊福和之陳述” dated 19 November 2005 (“the 2005 Statement”);

(2)  a trust deed dated 26 June 2008 (“the Trust Deed”);

(3)  a general power of attorney dated the same date (“the GPOA”); and

(4)  a statement entitled “聲明” and concerning the 2008 will dated 17 September 2008 (“the Will Declaration”).

7.  These four documents have earlier been disclosed by Angela in this action.  In terms of timing, the 2005 Statement was signed before the 2008 will whereas the other three documents were signed within six to seven months after the will.  In terms of content, in the 2005 Statement, it was recorded, among other things, that Mother was upset in an incident in September 2005 which concerned an inspection of flats at 80 Robinson Road and she scolded Vivien.  According to the terms of the GPOA, Mother appointed Angela as her attorney under the Power of Attorney Ordinance, Cap 31.  According to the terms of the Trust Deed, Mother appointed Angela as her trustee to deal with her properties.  In the Will Declaration, Mother explained why she disinherited Vivien in the 2008 will. 

8.  Vivien is not privy to these four documents and has no personal knowledge as to how they came into existence. 

9.  According to Angela’s case, lawyers were instructed for the preparation of these four documents.  In fact, more than one law firm was engaged in respect of each of these documents.  For instance, Mabel Lui was asked by Mother (through Angela)  to prepare the 2005 Statement, but at the same time Angela instructed Mr Anthony Poon, then of Baker & McKenzie, as her own lawyer to consider and give comments on the drafts. Similarly, on the instruction of Angela, drafts of the Trust Deed and the GPOA were prepared by Mr Wu Wing Kit of Fred Kan & Co (who also attended to the execution of the final documents), and were later reviewed and commented on by Mr David Wong of Wong, Hui & Co. 

10.  Put broadly, Vivien now seeks discovery of (1)  earlier drafts of the four documents, and (2)  in respect of the 2005 Statement, correspondence involving Mother, Angela and the lawyers involved in the preparation of the document.

11.  The application is made under Order 24 of the Rules of the High Court.

12.  I record here a number of developments after the application was made.

(1)  Angela made some voluntary disclosure in her affidavit evidence.

(2)  In light of that, Vivien has since revised the wording of the order sought.  No order is now sought against DLA Piper, the 2^nd respondent.

(3)  Separately, it appears that Vivien is no longer seeking any order asked for in paras 8 to 9 of her summons in which discovery is sought of an unredacted version of the letter from Clifford Chance to Wong Shum & Co dated 18 November 2014. 

(4)  By her letter dated 2 April 2025, Mabel Lui, the 1^st respondent, confirmed that she would take a neutral stance in the application.

13.  The application turns on, first, whether discovery should be made under the well-established principles governing specific discovery and, second, whether the drafts of the four documents and the lawyers’ correspondence in relation to the 2005 Statement are protected by legal advice privilege which can be asserted by Angela, with the result that she cannot be compelled to disclose them.

14.  I consider that the logical sequence to deal with the application is to first consider the general discovery principles. This is because if discovery is not warranted under those principles, for example because discovery is not necessary for the fair disposal of the action, no discovery order should be made.  That will be the end of the matter.  But, if the documents are discoverable, the court should then consider whether legal advice privilege applies to the documents sought.  If it does, that provides a complete and absolute defence to the discovery request.  Discovery should therefore be refused for that reason.

15.  Angela is represented by Mr Benjamin Yu, SC, Mr Bernard Man, SC, leading Mr Keith Lam and Mr Danny Tang.  Vivien is represented by Mr Paul Shieh, SC, Mr Johnny Ma, SC, leading Mr Tom Ng.  Both Mabel Lui and DLA Piper act in person.  The latter is represented by Mr Harris Chan, a partner of the firm.

ANGELA’S CASE

16.  I first give a brief outline of those parts of Angela’s case which are presently relevant.  The relevant time span is from 2003 to 2008. 

The deterioration of the relationship between Mother and Vivien

17.  It is alleged that during this period the relationship between Mother and Vivien had deteriorated. 

18.  The background is that it was Father’s intention that there should be parity between Angela and Vivien in the distribution of his wealth.  This has been referred to as “the Equality Principle”.  In the 2004 will, Mother adopted the Equality Principle.

19.  Later, Mother discovered that Vivien had tried to obtain for herself more assets from Father through inappropriate or improper means, which disturbed the equality of the asset distribution amongst Angela and Vivien. 

(1)  Between around April 2003 and early 2006, negotiations took place between Angela and Vivien with a view to entering into a formal agreement which implemented the Equality Principle.  This is known as “the 50/50 Agreement”.  But the negotiations broke down.  Mother was disappointed with Vivien. 

(2)  Since January 2004, Father approved of proposals which provided for an equal distribution of his wealth inter vivos to Mother, Angela and Vivien.  Under one of these proposals which is known as “Proposal A”, a number of units in 80 Robinson Road were to be transferred to Mother.  However, on 21 September 2005, she was refused entry when she and Angela went to inspect the units.  Mother believed that Vivien was responsible for that.

20.  In her pleadings, Angela refers to para 15 of the 2005 Statement as evidence of the 80 Robinson Road incident.  The paragraph read:

“今年9月，我與慧芳[ie Angela]不獲准進入羅便臣道80號睇樓，我很生氣，並駡慧慧[ie Vivien]。我說香港的資產慧芳也有一半，為什麼不能看？她說不知道我們去睇樓，有高級職員才知道香港的賬慧芳不能看；但她始終不承認是她不要慧芳管，說是爸爸的主意。我問慧慧：「難道爸爸的情況現在還可以提出這樣的一個建議嗎？」她說不知，哭著說我冤枉她，偏心慧芳。慧慧又向我說叫慧芳不要“攪攪震”，公司今年賺了35億，慧芳也有一半。我的理解是慧芳佔南豐集團 (即陳氏控股)  一半，因為一直以來慧慧都說陳氏控股是與慧芳一人一半，從不會少。”

The post-will documents

21.  It is further Angela’s case that after the making of the 2008 will, Mother executed a number of legal or formal documents which show that Mother had the testamentary capacity to make the will, and that she had knowledge and approval of it.  These post-will documents include the Trust Deed and the Will Declaration.  (Angela does not rely on the GPOA for this purpose.)

22.  As regards the Trust Deed, the following parts are relevant:

“於本日前，陳太已訂立遺囑 (“該遺囑”)。根據該遺囑，陳太將該資產贈予慧芳。” (para (2)  in recital)

“陳太特別聲明，慧芳是她遺囑的唯一受益人，有權繼承該資產或其相關部份。” (clause 3)

23.  The Will Declaration is a short document. Dr Ben Cheung, Mother’s psychiatrist at the time, is stated to be the witness.  I reproduce the content in full:

“我，陳楊福娥，又名陳楊福和，香港身份證號碼 [deleted] 持有人，於2008年2月15日訂立了遺囑 (副本見附件)，在自願及沒有受到任何人的影響下，將我的全部遺產，留給大女兒陳慧芳。

我沒有任何遺產留給我丈夫陳廷驊，因為他本身坐擁龐大的財產，且年事已高，並精神出現問題。

我沒有任何遺產留給我的小女兒陳慧慧，因為她曾多次向我表示不要我的遺產。”

24.  The above should serve as a sufficient outline of Angela’s case for determining the relevance and necessity of the documents which Vivien now seeks.  In the next section, when setting out the basis of Vivien’s application, I shall also set out the involvement of the lawyers as regards the four documents in more detail.  That is necessary for the purpose of determining the issue of legal advice privilege.

THE APPLICATION

25.  It is worth repeating that Vivien has no personal knowledge as to how the 2005 Statement, the Trust Deed, the GPOA and the Will Declaration were prepared and signed by Mother.  What I set out below is a recount of Angela’s case based on the witness statements and the evidence filed on her behalf in this action.  It is based on such case that Vivien mounts her discovery application.

The 2005 Statement

26.  According to Mabel Lui’s witness statement, in late October 2005, she was asked by Mother (through Angela)  to draft a statement for her.  Mother had wanted to make a statement to record certain events.  Mabel Lui took instructions from Mother on 30 October 2005.  She took down the points in a handwritten note (“the Handwritten Note”).  Afterwards, she tidied up those notes and drafted the 2005 Statement, which was subsequently signed by Mother on 19 November 2005. 

27.  Vivien points out that the Handwritten Note and the 2005 Statement are not identical.  Some of the matters stated in the 2005 Statement are not found in the Handwritten Note.  Conversely, some contents of the Handwritten Note did not find their way into the 2005 Statement. Vivien therefore says that there must be (1)  drafts of the 2005 Statement which were prepared by Mabel Lui, and (2)  communications between Mabel Lui, Dibb Lupton Alsop, Angela, and Mother relating to the drawing up of the Handwritten Note, drafts of the 2005 Statement and the 2005 Statement itself.  These are broadly the two categories of documents sought by Vivien in her summons and are referred to in this application as “the Relevant Documents”.

28.  Before the issue of the summons, Angela declined to give discovery.  By her solicitors’ letter dated 28 February 2005, Angela stated that Mabel Lui was acting as Mother’s solicitor in relation to the 2005 Statement, and Angela claimed legal professional privilege over the documents, which she asserted on behalf of Mother’s estate, in her capacity as the sole executrix under the 2008 will. 

29.  After the summons was taken out, Angela decided to make voluntary disclosure “purely for the purpose of avoiding unnecessary argument and for saving time and costs”.  That was done by way of the affidavits made by Angela and Harris Chan.  Six documents were disclosed, including emails attaching drafts of the 2005 Statement and undated drafts of the 2005 Statement (collectively, “the disclosed documents”).   

30.  The affidavit evidence also reveals the following matters.

31.  First, as regards Mabel Lui. 

(1)  At the relevant time, she was with Dibb Lupton Alsop, and she kept a general paper file for all her work for Angela and Mother concerning their personal assets, including the preparation of the 2005 Statement.  The file is referred to as “the Mabel Lui General File” in the affidavit evidence.  Mabel Lui left the firm in 2014.  At that time, at the instruction of Angela, she took with her all her files and Mother’s files.  She eventually returned the Mabel Lui General File to DLA Piper in February 2025. 

(2)  The disclosed documents are documents found in the Mabel Lui General File.

(3)  Mabel Lui informed Harris Chan that she does not retain any documents falling within the scope of the Relevant Documents.

32.  Second, as regards Anthony Poon.

(1)  Angela instructed Anthony Poon, then partner of Baker & McKenzie, to consider and comment on the drafts of the 2005 Statement as her solicitor. 

(2)  Anthony Poon informed Harris Chan that he no longer has in his possession any document falling within the scope of the Relevant Documents.

33.  Third, as regards Baker & McKenzie.  Angela has not made enquiries with the firm to see whether they still have documents falling within the Relevant Documents, given the long lapse of time (of 20 years)  and given that it is unlikely that any documents that are in possession of Baker & McKenzie would not be kept in the Mabel Lui General File.

34.  Fourth, as regards one of the disclosed documents which is produced as exhibit “CHW-35”.

(1)  It is an undated draft of the 2005 Statement marked with manuscript comments. 

(2)  On the first page, in the top right-hand corner, it was handwritten “draft statement from Anthony”.  According to Mabel Lui, this draft was likely a draft received by her from Anthony Poon.

(3)  The manuscript comments contained references to several riders, which have not been included in the exhibit or otherwise disclosed by Angela.  They are referred to as “the Missing Riders” in this application.

(4)  By letter dated 30 July 2025 to Vivien’s solicitors, Mabel Lui confirmed that the manuscript comments were made by her, not Anthony Poon, and that the Missing Riders could not be located “in the file”.

(5)  By letter dated 30 July 2025, DLA Piper confirmed that they had further reviewed the Mabel Lui General File and could not find the Missing Riders there.

35.  The following confirmations have been made by or on behalf of Angela:

(1)  Angela has confirmed on oath that the disclosed documents are the only documents now in her possession, custody or power falling within the scope of the Relevant Documents.

(2)  Harris Chan has confirmed on oath that DLA Piper do not have in their possession, custody or power any document within the scope of the Relevant Documents beyond the scope of the disclosed documents.

(3)  Harris Chan has made clear in his affirmation that the voluntary disclosure does not include what he calls “the Excepted Documents”, if any existed.  They are (a)  drafts of the 2005 Statement that are or were in the possession of Anthony Poon and Baker & McKenzie, which were not sent to them by Mabel Lui and were not sent to Mabel Lui, and (b)  correspondence involving Angela and her lawyers.

36.  Mabel Lui has not made any affidavit to confirm what she told Harris Chan (see para 31 above)  or what she stated in her letter concerning the Missing Riders (see para 34(4)  above).

37.  Notwithstanding the above confirmations, as against Angela, Vivien now seeks an order that she file a further affirmation to depose to the Relevant Documents, including in particular the Excepted Documents and the Missing Riders, in her possession, custody or power.  Vivien’s main complaint is that Angela ought to have approached Baker & McKenzie to see whether they still keep any of the Relevant Documents but she has not done so.  She should therefore be ordered to make a further affirmation after making the enquiries.  The other complaint is that as regards the Missing Riders, it remains unknown from the reply of Mabel Lui and that of DLA Piper whether they might have been kept by Mabel Lui and/or Angela somewhere else other than the mentioned files.

38.  As against Mabel Lui, Vivien asks for an order that she file an affirmation to depose to the Relevant Documents in her possession, custody or power, given that she has to date not made any affirmation to that effect and given the ambiguity in her reply concerning the Missing Riders.

39.  Vivien’s application against Angela is governed by Order 24, rule 7.  Mabel Lui being a non-party, Vivien’s application against her is governed by Order 24, rule 7A(2).

40.  Angela further opposes the application on the ground that the Relevant Documents are protected by legal advice privilege belonging to either herself or Mother.

41.  As regards the further ground, it should be uncontroversial that in respect of the 2005 Statement:

(1)  Mabel Lui acted for Mother; and

(2)  Anthony Poon acted for Angela.

The Trust Deed, the GPOA and the Will Declaration

42.  Wu Wing Kit, then of Fred Kan & Co, made a witness statement on behalf of Angela in this action.  According to his statement, he had been advising and representing Angela since 2006.  In around 2008, Angela instructed him to assist her in the intended mental health proceedings concerning Father.  The papers for those proceedings were jointly prepared and reviewed by Fred Kan & Co and Wong, Hui & Co. 

43.  At about the same time, Wu Wing Kit was involved in preparing the Trust Deed and the GPOA.  This is what he said in his witness statement about his involvement in these two documents:

“24. In or around June 2008, I received instructions from Angela, which was likely to be over the phone, that Madam Yang intended to execute a general power of attorney and trust deed so that Angela could handle matters on her behalf. I thus proceeded to prepare those documents with the assistance of Ms. Carmen Chan.

…

26. On this occasion, after the following documents were prepared by [Fred Kan & Co], they were sent to Mr. David Wong … for his comments and review:-

…

26.2. The draft 26 June GPOA (the “Draft 26 June GPOA”); and

26.3. The draft Trust Deed (the “Draft Trust Deed”)

(collectively, the “26 June Documents”).” (underline added)

44.  David Wong, of Wong Hui & Co, made a witness statement for Angela in this action.  According to his statement, he was introduced to Angela in 2007 through a mutual friend.  During their first meeting, Angela said that she wanted to find a solicitor to represent Mother in some intended mental health proceedings concerning Father.  Later, Angela asked David Wong to play a supportive role in reviewing draft documents prepared by Fred Kan & Co and Wong Shum & Co from time to time in relation to the intended mental health proceedings.  Those documents would include drafts of the Trust Deed, the GPOA and the Will Declaration.

45.  This is what David Wong said in his witness statement:

“8. So that I would become more familiar with the background of the matter before I was to meet with and formally act from Madam Yang, Angela asked me to play a supportive role in reviewing certain draft documents prepared by her appointed solicitors Messrs. Fred Kan & Co (“FKC”)  and Messrs. Wong Shum & Co (“WSC”)  from time to time and meeting with Counsel in relation to the intended MIP Proceedings.

9. In such a supportive role, I had reviewed and commented on the following draft documents that were eventually signed by Madam Yang after they were finalized by Angela’s team of lawyers :-

…

9.2 A General Power of Attorney (GPOA)  dated 26 June 2008 pursuant to section 7 of the Powers of Attorney Ordinance (Cap. 31)  (the “GPOA”);

9.3 A Chinese trust deed (信託契約)  dated 26 June 2008 appointing Angela as trustee of Madam Yang’s assets described in Chinese as 信託契約 (the “Trust Deed”); and

9.4 A Chinese declaration dated 17 September 2008 for Madam Yang to reaffirm her will dated 15 February 2008 (the “2008 Will”)  and her testamentary wishes described in Chinese as聲明 (the “Will Declaration”).”

46.  David Wong described his role in relation to the Trust Deed and the GPOA as follows:

“29. As explained in paragraph 8 above, I was asked by Angela to assist in a supportive role in anticipation of my firm acting for Madam Yang as the 2^nd Applicant with myself as the partner in charge in the Intended MIP Proceedings. Following the 1^st Meeting, and upon Angela’s instructions, the following documents were sent to me by FKC for my comments and review :-

…

29.2 The draft GPOA; and

29.3 The draft Trust Deed to which a copy of the 2008 Will was said to be annexed.

…

30. Upon review, my suggested amendments would then be circulated by my secretary on my behalf back to FKC (occasionally with Angela’s assistant copied)  and/or Angela directly. The drafts were sent to Angela and/or her assistants who would assist in the communications between Madam Yang and I as explained in Section C above.” (underline added)

47.  As regards the Will Declaration, David Wong described his involvement as follows:

“33. Upon reading the Will Declaration dated 17 September 2008, I can recall that I was involved in its drafting (in the manner described in paragraphs 8 and 9 above). I believe my involvement would be some time shortly before the date thereof. I was not present when Madam Yang signed the Will Declaration.

34. I cannot now recall if I had taken any instructions from Madam Yang on the same. Since there was a pre-existing draft of the document which was provided to me for review and comment, and I did not handle this execution, it was possible that I did not take instructions from Madam Yang on the same.” (underline added)

48.  Vivien now seeks production of the drafts of the Trust Deed, the GPOA and the Will Declaration referred to in the witness statements of Wu Wing Kit and David Wong, as quoted and underlined above.  These are referred to as the “the Referred Documents” in this application.  This application would be governed by Order 24, rule 10.

49.  Angela resists the application on two broad grounds.  First, the Referred Documents are of no or very limited relevance, and their production is not necessary for a fair disposal of the case or for saving costs.  Second, these drafts are subject to legal advice privilege belonging to Angela and/or Mother.

50.  In respect of the latter ground, as to for whom Wu Wing Kit and David Wong acted in relation to the Trust Deed, the GPOA and the Will Declaration, Angela’s position is that:

(1)  Both Wu Wing Kit and David Wong acted for her in respect of the Trust Deed and the GPOA.

(2)  As regards the Will Declaration, it cannot now be recalled by either Angela or David Wong the identity of the person who had produced the “pre-existing draft” to David Wong for comment.  However, Angela submits that the document could only have been drafted by a lawyer of hers or a lawyer of Mother.

(3)  Angela’s position is that if the draft of the Will Declaration had been drafted by her lawyer, then she would claim privilege in her own right.  However, if the draft had been drafted by Mother’s lawyer, then she would claim privilege on behalf of Mother’s estate. 

(4)  It is however not clear to me whether Angela has a stance as to for whom David Wong acted in respect of the Will Declaration.

51.  On the other hand, Vivian submits that on the basis of the evidence currently before the court, the court is entitled to refuse to accept that David Wong acted for Angela.  And it would appear from the oral evidence given by David Wong in the trial in HCA 1739/2010 held in 2019 that (save for one unrelated occasion)  he had all along only acted for Mother since 2008.

DISCUSSION: ORDER 24

52.  I shall first determine whether discovery should be ordered based on the general principles governing specific discovery.

Legal principles

53.  In respect of the Relevant Documents, the application is made against Angela and Mabel Lui.  Order 24, rules 7, 7A(2)  and 8 are the governing statutory provisions.

54.  The principles are well-established: see, eg, Hong Kong Civil Procedure 2026 at 24/7/2, 24/7A/6 and 24/7A/8.  I would highlight the following.

55.  The applicant needs to make out a prima facie case of existence, possession and relevance.  These are threshold requirements to satisfy in order to establish the jurisdiction to grant discovery.  If satisfied, the court has a discretion whether or not to make the order.  It will not make an order unless the discovery sought is necessary either for disposing fairly of the cause or matter or saving costs.  The burden is on the party objecting to discovery to demonstrate that discovery is not necessary. 

56.  Relevance in the Peruvian Guano sense needs to be established.  A document is relevant if it is reasonable to suppose that it contains information which may, not must, either directly or indirectly enable the party requiring the same either to advance his own case or to damage the case of his adversary, or it is a document which may fairly lead the party to a train of inquiry which may have either of these two consequences. 

57.  Fishing is not allowed.

58.  In any given case, there is likely to be a spectrum of evidential materiality within which documents may fall.  Even where a document is relevant in the Peruvian Guano sense, if its content is such that it is unlikely to contain or yield information of such evidential materiality to the pleaded case, the court is entitled to take the view that it is not necessary for it to be disclosed.  There may be cases where the probative value of a document is considered to be so slight as not to justify the inconvenience of giving discovery: see, eg, Lee Sai Nam v Li Shu Chung HCA 1711/2009, 10 January 2014, paras 49 and 50.

59.  Lastly, discovery should be sensibly controlled and not used as an oppressive weapon pursued without sufficient regard to economy and efficiency of the usefulness of the information which is likely to be gained: see, eg, Billion Lead Investment Ltd v Union Joyce Ltd HCMP 2145/2011, 14 December 2012, para 20.

60.  In respect of the Referred Documents, the order is sought against Angela only.  The governing statutory provisions are Order 24, rules 10 and 13.

61.  The court undertakes a two-stage process. First, the burden is on the party who has referred to the document in question in his pleading, affidavit or witness statement to show good cause why an order for production should not be made.  Second, and independent of the first stage, the burden is on the applicant to show that the order is necessary either for disposing fairly of the case or for saving costs: see Moulin Global Eyecare Holdings Ltd (in liquidation)  v Olivia Lee Sin Mei [2013] 3 HKLRD 72, paras 31 to 35.

The Relevant Documents

62.  In light of the voluntary disclosure made by Angela, the issue which remains with regard to the Relevant Documents is whether the disclosure is adequate without her having made any enquiry with Baker & McKenzie.  If not, she should be compelled to make a further affirmation to depose to the Excepted Documents and the Missing Riders after making proper enquiries with the firm.

63.  I am satisfied that there is a prima facie case of existence of each of the categories of documents listed under the Relevant Documents and that there is a prima facie case that Baker & McKenzie had possession of them:

(1)  Anthony Poon being the lawyer specifically instructed by Angela to consider and comment on the drafts of the 2005 Statement, it is reasonable to expect that there would or could be drafts which were in his possession and in the possession of his firm, Baker & McKenzie.  The question is whether Anthony Poon would or could have worked on drafts which were not communicated with Mabel Lui.  On this question, my observation is that while Anthony Poon and Mabel Lui worked on the preparation of the 2005 Statement during the same time period and they were engaged in some correspondence with each other, the two lawyers appeared to have worked independently of each other as they were serving two different clients.  It therefore follows that there would or could be drafts which were only privy to Anthony Poon – and therefore Baker & McKenzie – but not Mabel Lui.

(2)  Similarly, as Anthony Poon was specifically instructed by Angela in respect of the 2005 Statement, there would or could be correspondence between Angela and Anthony Poon exchanged during the process. And such correspondence would or could have remained in Baker & McKenzie’s files.

(3)  The express references to various riders in the undated draft exhibited under “CHW-35” clearly points to the existence of the Missing Riders.  As the undated draft was expressly marked “draft statement from Anthony” and Anthony Poon was specifically asked to give comments on the drafts, it is possible that Mabel Lui had at some stage sent the manuscript comments to Anthony Poon.  Hence the Missing Riders could have been sent to Anthony Poon and hence Baker & McKenzie.

64.  I am also satisfied that there is a prima facie case that Angela has the power to obtain from Baker & McKenzie the Relevant Documents, which she ought to have exercised but which she did not.

(1)  There can be no doubt that, as client, Angela has the power to make the request.  The issue here is whether it is reasonable for her not to ask for the reasons now put forward on her behalf. 

(2)  I have established above that there is a prima facie case that Baker & McKenzie had in their possession those documents.  For the reason set out in para 63(1)  and (3)  above, I do not agree with Angela’s contention that it is unlikely that any documents that were in possession of Baker & McKenzie would not be kept in the Mabel Lui General File.

(3)  It is true that there has been a long lapse of time since the making of the 2005 Statement.  There is clearly a possibility that Baker & McKenzie had already destroyed the files.  However, the threshold here is a prima facie case.  It is not a high threshold.  As there is also the possibility that the files might not have been destroyed, I am satisfied that there is a prima facie case that the Relevant Documents are still in the possession of Baker & McKenzie. 

(4)  On this last point, I would think that it is a bit difficult for Angela to reconcile the fact that she had approached Anthony Poon asking about the Relevant Documents but not Baker & McKenzie, even though the reasons she now puts forward for not approaching the latter should similarly apply to the former.

65.  As to relevance, Mr Shieh submits that the requirement is clearly satisfied.  Angela is relying on the 2005 Statement to evidence that Mother was upset by the 80 Robinson Road incident and that, among other things, supports her plea that Mother and Vivien’s relationship had deteriorated before the signing of the 2008 will.  Hence, it is submitted that the context surrounding and leading to the drafting and signing of the document is self-evidently relevant and material to the issues in this action.

66.  Furthermore, there are differences between the Handwritten Note and the 2005 Statement.  It is therefore further submitted that the issues as to why and how such differences arose, and whether and if so to what extent Angela participated in giving instructions for the drafting of the 2005 Statement are clearly material.

67.  The rationale for seeking discovery of the Relevant Documents is put this way in the supporting affirmation filed for Angela:

“The Relevant Documents seek to complete the picture and allow the Court to fully understand how the 2005 Statement came about and to properly assess to what extent its contents can be relied upon as reflecting the Deceased’s true wishes and intent.”

68.  In this application, Angela has not made any substantive submission to argue that the requirement of relevance is not satisfied.

69.  Notwithstanding that, there is serious doubt in my mind as to whether relevance in the Peruvian Guano sense is established. 

70.  I do not agree with the submission that the relevance and materiality is self-evident.  It is true that it is self-evident that any earlier drafts of the 2005 Statement and any correspondence between Angela and Anthony Poon about them would relate to the final signed version of the document, and they would therefore in turn relate to an issue which arises in this case.

71.  However, the Peruvian Guano test requires more than that.  It imposes a requirement that the documents sought may enable, or may lead to a train of enquiry to enable, Vivien either to advance her own case or to undermine Angela’s case.  So far, Vivien has failed to articulate how the Relevant Documents would have that effect. 

72.  Vivien seeks to point to the objective fact that the Handwritten Note and the 2005 Statement are not identical.  But it is difficult to see how that fact would help undermine Angela’s case, including the reliability of the contents of the final signed version of the 2005 Statement.  Drafting is an ongoing process.  In fact, it is only natural that there would be differences between different versions produced at different times. 

73.  Mr Yu pointed out at the hearing that there are no material discrepancies on the main points covered in the Handwritten Note and the final version and queried why Vivien would need to see the drafts in order to find out about Angela’s involvement in the process.  I agree with that submission.  It is not a case where Vivien is pointing to (or can point to)  some differences which appear to be contradictory or inconsistent thus raising some suspicion on the circumstances in which the 2005 Statement was prepared or casting doubt on the veracity or reliability of the final version which was signed by Mother.  Vivien is saying nothing of this sort.

74.  Relying on the fact that the Handwritten Note and the 2005 Statement are not identical, Vivien then says that the documents now sought by her would “complete the picture” and would allow the court to “fully understand how the 2005 Statement came about”. To this submission, I should immediately say that the function of specific discovery is not to give the court a complete picture.  Quite to the contrary, it is the function of the judge hearing a specific discovery application to exercise control over the scope of the evidence to be admitted at trial, and to guard against introducing evidence other than that which is relevant, material and of probative value (in other words, necessary evidence). 

75.  Insofar as the communications between Angela and Anthony Poon are concerned, Vivien has not put forward any basis at all to suggest how, if any such communications existed, they would advance her case or undermine Angela’s.  The truth is that Vivien knows nothing about what had been said between Angela and Anthony Poon.  What she is now doing is to try to get hold of documents recording the communications in the hope that they may reveal something unusual, suspicious or improper which would then provide her with a basis to pursue more enquiries or to ask for yet more documents.  That, in my view, is classic fishing. 

76.  For the above reasons, I find that Vivien has failed to establish a prima facie case of relevance in respect of the Relevant Documents.  Discovery should be refused for that reason.  The fact that Angela has made voluntary disclosure does not detract from this conclusion.

77.  If I am wrong on the issue of relevance, I would still refuse discovery as I consider that the Relevant Documents are not necessary for the fair disposal of the action.  The issues surrounding the 2005 Statement is only one of the many issues that arise in this action.  At the trial, the court will hear other evidence on the issue of whether the relationship between Mother and Vivien had deteriorated before the signing of the 2008 will, and for what reasons.  In the overall scheme of things, I consider that how the 2005 Statement came about cannot be said to rank very high in the spectrum of evidential materiality, and their probative value (if any)  is not such as to justify an order of discovery.

78.  For that reason also, I would decline to order discovery of the Relevant Documents.

The Referred Documents

79.  The Referred Documents are drafts of the Trust Deed, the GPOA and the Will Declaration which are referred to in the witness statements of Wu Wing Kit and David Wong.

80.  Vivien’s position is that these documents are self-evidently relevant as they are referred to by Angela’s own witnesses. Furthermore, it is submitted that as Angela is relying on the Trust Deed, the GPOA and the Will Declaration as post-will matters showing Mother’s knowledge and approval of the 2008 will, the evolution of the drafting of the documents would shed light on Mother’s thinking and on whether the documents really reflect Mother’s testamentary capacity and her knowledge and approval of the will. The earlier drafts would shed light on the circumstances surrounding the drafting process and it would show whether the final versions did reflect the views and perception of Mother at the time.

81.  Angela’s stance is that the production of the Referred Documents are not necessary for the purpose of fairly disposing of the case:

(1)  She is not relying on the GPOA to demonstrate Mother’s testamentary capacity or her knowledge and approval.  Hence the earlier draft of the document would not be relevant to any issue in this case.

(2)  The Trust Deed and the Will Declaration are simple documents, containing boiler-plate clauses.  It is difficult to see how earlier drafts of these simple documents would reveal or shed light on Mother’s thinking and perception.

(3)  Vivien has not put forward any basis to suggest that these drafts may have recorded something that negates testamentary capacity and/or knowledge and approval.  As such, this is an attempt to hunt around documents in the hope that they will reveal some improprieties or provide information to pursue more enquiries.  That should not be allowed.

82.  I agree with Angela’s submissions.  I would only add that what is notable about the Trust Deed and the Will Declaration is that they are genuinely very straightforward documents. The Trust Deed is straightforward because its subject matter is straightforward. While I would not necessarily describe its clauses as boiler-plate clauses, most of them are operative clauses which put in effect the trust arrangement.  The Will Declaration is straightforward as it is couched in very simple terms.  The content really speaks for itself.  As such, it is difficult to see how earlier drafts of these two documents would help shed light on Mother’s thinking.  Most critically, Vivien has not put forward any basis to demonstrate how the disclosure of the drafts would have that effect.

83.  For the above reasons, I refuse to order production of the Referred Documents.

Conclusion

84.  In conclusion, the orders now sought by Vivien should be refused and her summons should be dismissed.  It is therefore unnecessary to go on to consider whether Angela can assert legal advice privilege to resist disclosure.  However, I shall do so in case I am wrong in the conclusion which I have just reached.

DISCUSSION: LEGAL ADVICE PRIVILEGE

85.  There are two types of legal professional privilege.  In this application, Angela seeks to assert legal advice privilege in respect of the Excepted Documents and the Referred Documents.  We are therefore not concerned with the other category of privilege, namely litigation privilege.

86.  According to her written submissions, Angela does not appear to be claiming legal advice privilege over the Missing Riders. But it seems to me that in the context of privilege, the Missing Riders should stand on the same footing as the other drafts which come within the Excepted Documents, as they are all drafts (or parts of the drafts)  of legal or formal documents which were eventually signed by Mother.  The discussion below therefore is intended to cover all the sub-categories of the Relevant Documents and the Referred Documents.

87.  The burden is on the person who asserts privilege to establish it.  I shall therefore recite the arguments made by Angela first.

Angela’s argument

88.  Legal advice privilege is described in Passmore, Privilege (5^th ed)  at para 2-003 as follows:

“… one can say that the starting point for what must be established for advice privilege to apply is that we are concerned with:

● a communication, whether written or oral, that is made:

● between a client and his lawyer, where the lawyer is acting in the course of their professional relationship and within the scope of the lawyer’s professional duties;

● under conditions of confidentiality; and

●  for the dominant purpose of enabling the client to seek, or the lawyer to give, legal advice or assistance in a relevant legal context.”

89.  Further, it should be uncontroversial that legal advice privilege is not confined to the communications themselves but also extends to other materials which “evidence” the substance of such communications: see, eg, Three Rivers District Council v Governor and Company of the Bank of England (No 5) [2003] QB 1556, paras 19 and 21.

90.  Applying the above principles, Angela contends that the Excepted Documents and the Referred Documents are privileged from production because the very nature of these documents is such that they were communications where Angela sought legal advice from her lawyers, or where Angela’s lawyers gave her legal advice, as to the making of and the contents and effect of the 2005 Statement, the Trust Deed, the GPOA and the Will Declaration, or were documents which contained such advice. 

91.  As we shall see shortly below, Vivien’s position is that a person, when claiming privilege, is subject to certain stringent evidential requirements concerning the contents of the document in question.  On the other hand, Mr Yu submits that for the drafts and correspondence in question to be privileged, all that Angela is required to show is that they are confidential documents created by a lawyer in a professional capacity in which a lawyer is engaged in providing legal advice.  The claim for privilege does not turn on evidence concerning the contents of the document, but only that the lawyer was acting in his professional capacity.  Mr Yu cites the following authorities in support: Balabel v Air India [1988] 1 Ch 317, 330D, 332D-E; Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610, paras 59, 60 and 62; Thanki, The Law of Privilege at paras 2.47 to 2.52.

Vivien’s argument

92.  Vivien’s position is that Angela’s claim for privilege should fail because it is not made out on her own evidence.

93.  There are two limbs to Vivien’s argument.

94.  First, Mr Shieh submits that there are specific requirements for the evidence to be put in by a party claiming privilege.  The evidence, which would invariably come in the form of affidavit evidence, should be specific enough to show something of the deponent’s analysis of the documents.  The court would be particularly careful in examining the evidence because a party claiming privilege or their lawyers are effectively judges in their own cause, subject (ultimately)  to the court’s power to inspect the documents.  

95.  Mr Shieh relies on what Beatson J said in West London Pipeline and Storage Ltd v Total UK Ltd [2008] 2 CLC 258, paras 53 and 86:

“53. Thus, affidavits claiming privilege whether sworn by the legal advisers to the party claiming privilege as is often the case, or, as in this case, by a Director of the party, should be specific enough to show something of the deponent’s analysis of the documents or, in the case of a claim to litigation privilege, the purpose for which they were created. It is desirable that they should refer to such contemporary material as it is possible to do so without making disclosure of the very matters that the claim for privilege is designed to protect. …

…

86. …

(1)  The burden of proof is on the party claiming privilege to establish it … A claim for privilege is an unusual claim in the sense that the party claiming privilege and that party’s legal advisers are, subject to the power of the court to inspect the documents, the judges in their or their own client’s cause. Because of this, the court must be particularly careful to consider how the claim for privilege is made out and affidavits should be as specific as possible without making disclosure of the very matters that the claim for privilege is designed to protect …” (underline added)

96.  Vivien says that Angela has failed to meet the evidential requirement.  This is clearly the case with respect to the Relevant Documents because no enquiry has ever been made by Angela with Baker & McKenzie, and she has not seen those documents which may be in the possession of the firm.  One cannot assume that there must be some sort of legal professional privilege just because lawyers were involved and there was an assertion of the privilege. Indeed, without knowing what the documents are, there is simply insufficient basis for Angela to substantiate a privilege claim.  Angela’s claim in respect of the Excepted Documents is merely a bald and premature assertion and is not made good in light of the paucity of evidence placed before the court.

97.  In addition to West London, Mr Shieh relies on a number of authorities to make good the above point.  Among them, I consider the following cases to be more relevant and shall deal with them below – the English decision of Rawlinson and Hunter Trustees SA v Akers [2014] EWCA Civ 136 and the Hong Kong case of Yusuf Abdulla Yusuf Akbar Alireza v Fleet Overseas (New Zealand)  Ltd[2020] HKCFI 2802.

98.  Second, where a party is claiming privilege over an earlier draft of a document in respect of which a lawyer is engaged, in order to attract protection, there is a need to show that disclosure of such a draft will or will tend to reveal the privileged advice given by the lawyer to the client.  Mr Shieh refers to the Australian case of AWB Ltd v Cole (2006)  152 FCR 382 in support.

99.  It is recognised that, as an adjunct to the legal advice privilege, protection against disclosure does not only apply to the actual communication between client and lawyer but has been extended to cover documents that record confidential legal advice or confidential legal work.  The rationale is that while it is the communication that is privileged, it does not mean that material that is not literally a communication is never protected.  Such material would be protected if the disclosure of it will, or will tend to, review the privileged communication.  Where that is the case, in order to protect the underlying communication, the document having that effect would also be protected from disclosure: AWB at paras 127 to 128.

100.  Therefore, where a person is claiming this adjunct privilege, it is for him to produce sufficient evidence to enable the court to infer that disclosure of the draft in question will enable inferences to be drawn as to the legal advice given.  The inference of fact must have a definite and reasonable foundation in the contents of the document.  It would not be sufficient that the document as a whole, or particular statements within it, cause a reader to wonder or speculate whether legal advice had been obtained and what was the substance of that advice: AWB at para 133.

101.  In addition to AWB, Mr Shieh also cites the English decision in Re RBS Rights Issue Litigation [2017] 1 WLR 1991.  The party claiming privilege in that case invoked what is called the “lawyers’ working papers” privilege.  The term “lawyers’ working papers” is understood to include drafts of documents prepared by lawyers: see Thanki at paras 2.47 and 2.49.  It was held, at paras 105 to 107, that the party should demonstrate that the documents should have some attribute or addition such as to betray or at least give a clue as to the trend of advice being given to the client by its lawyer.

102.  Applying the above principles, it is Vivien’s submission that Angela has failed to produce any evidence based on which the court may infer that the disclosure of the draft documents now sought will enable inferences to be drawn as to the legal advice given by the solicitors.  . 

103.  The deficiency is particularly acute in the case of the drafts within the Excepted Documents and the Missing Riders, as Angela has not had sight of them.  There is nothing she can say about the contents of the drafts. 

104.  As for the Referred Documents, all that Angela has said is that Wu Wing Kit and David Wong were acting for her, the drafts were prepared by Wu Wing Kit and an unknown lawyer, which were then reviewed by David Wong.  As such, Angela has failed to produce the necessary evidence to demonstrate that there was indeed advice given by the lawyers to her in the first place.

105.  In summary, whether under the general advice privilege or its adjunct limb, Angela has failed to adduce sufficient evidence to make out the claim for privilege.

The issue

106.  It is worth emphasising at the outset that we are concerned with a very straightforward factual scenario here.  The issue which arises is therefore a narrow one.  We are concerned with the four documents signed by Mother.  In respect of each of those documents, solicitors were instructed to draw up drafts and review them.  The question which I need to determine is, against this factual background, whether the drafts of the four documents and the correspondence among Angela, Mother and their lawyers in respect of the 2005 Statement are protected by legal advice privilege.

107.  The straightforward nature of the present factual scenario is to be contrasted with the facts in many of the cases cited by parties.  As we shall see later, some of the principles which Mr Shieh seeks to extract from the authorities and apply to the present case in fact deal with specific issues which only arise in those cases but not in the present one.

108.  The parties are divided in the proper approach which the court should adopt when determining the privilege issue.  In the discussion below, I shall use the shorthand expressions “the context approach” and “the content approach” to describe the rival approaches put forward by Mr Yu and Mr Shieh.  In gist:

(1)  Mr Yu submits that where the proper legal context is established, the context being that the confidential documents were created by a lawyer in his professional capacity in which he was engaged to give legal advice, that would be sufficient to substantiate a claim of privilege over the documents. 

(2)  On the contrary, Mr Shieh submits that establishing the context is not sufficient, and the person claiming privilege needs to put in proper evidence showing an analysis of the contents of the documents in question.  This evidential burden applies in all cases, including the straightforward factual scenario in the present case.

109.  Having reviewed the authorities cited by the parties, I am of the view that the context approach applies to the present case.  And I reject the submission that the content approach applies universally to all cases in which privilege is asserted, and further reject the submission that the content approach applies to the present case.

110.  I consider that the applicable authorities are Balabel and Three Rivers (No 6) in which the scope of the legal advice privilege is authoritatively stated and explained.  These principles were later applied in Hong Kong by the Court of Appeal in Citic Pacific Ltd v Secretary for Justice (No 2) [2015] 4 HKLRD 20.

111.  As for Mr Shieh’s argument with regard to the adjunct limb of privilege, I am similarly of the view that there is no absolute requirement that a person claiming privilege must adduce evidence in every case to show that disclosure of the draft in question will or will tend to reveal the privileged advice.  The argument is contrary to the decision in Balabel.

Legal principles

112.  In Hong Kong, legal professional privilege is a fundamental right, which is constitutionally entrenched by article 35 of the Basic Law.  It provides that Hong Kong residents shall have the right to confidential legal advice.  The privilege applies to both litigious and non-litigious context.  It is to enable legal advice to be sought and given in confidence. 

113.  The rationale has been explained in this way.  It is necessary in our society that communications between clients and lawyers in which the clients are hoping for the assistance of the lawyers’ legal skills in the management of the clients’ affairs should be secure against the possibility of any scrutiny from others. This has been described as “the rule of law rationale” and has been accepted by our Court of Appeal to also apply in Hong Kong as “it is perfectly consonant with [legal professional privilege] being constitutionally protected to reinforce the rule of law as a core value in a society”: Three Rivers (No 6) at para 34; Citic Pacific at paras 1, 33 to 37.

114.  As to the scope of the privilege, it will be recalled that in order for a communication to attract the privilege, it has to be made for the (dominant)  purpose of enabling the client to seek, or the lawyer to give, legal advice or assistance in a relevant legal context: see the fourth bullet point in para 88 above.  Does it mean that all communications passing between the lawyer and his client on matters within the lawyer’s ordinary business are privileged?  Or is the privilege only conferred on those communications which specifically seek or convey legal advice?

115.  This issue was decided by the English Court of Appeal in Balabel.

116.  In that case, the plaintiffs claimed specific performance of an oral agreement for an underlease allegedly made with the defendant.  The plaintiffs sought discovery of the following documents:

“(1)  Communications between the defendant and its solicitors other than those seeking or giving legal advice. (2)  Drafts, working papers, attendance notes and memoranda of the defendant’s solicitors relating to the proposed new underlease. (3)  Internal communications of the defendant other than those seeking advice from their Indian legal advisers.”

117.  Taylor LJ upheld the defendant’s privilege claim. 

118.  In essence, the rulings are:

(1)  The proposition that privilege extends without limit to all lawyer and client communication upon matters within the ordinary business of a lawyer and referable to that relationship is too wide (331G-H).

(2)  Conversely, the proposition that privilege should be restricted to those communications which specifically seek or convey advice is too narrow (see 332B-C).

(3)  The proper approach is that when considering whether a communication or other document was made for the purposes of legal advice, the purposes have to be construed broadly.  Legal advice is not confined to telling the client what the law is.  It also includes advice as to what should prudently and sensibly be done in the relevant legal context (see 330D-G). 

(4)  The question to ask is whether the communication or document formed part of that necessary exchange of information between lawyer and client of which the object is the giving of legal advice as and when appropriate (see 332C-D). 

(5)  On the facts, the solicitor being retained in a conveyancing transaction provided the relevant legal context for privilege to arise.  The solicitor was employed to make use of his experience and legal skill to ensure that the client steer clear of legal difficulties in the transaction.  Communications passing between the solicitor and the client in the handling of the transaction for that purpose were therefore privileged even if those documents did not expressly incorporate a specific piece of legal advice (see 332D-E).

119.  As regards the points made in (3)  to (5)  above, it is necessary to quote extensively from the judgment:

“… the purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence.  In my judgment, therefore, the test is whether the communication or other document was made confidentially for the purposes of legal advice.  Those purposes have to be construed broadly.  Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice.  But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and client. The negotiations for a lease such as occurred in the present case are only one example. Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as “please advise me what I should do.”  But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.” (330D-G)  (underline added)

“… As indicated, whether such documents are privileged or not must depend on whether they are part of that necessary exchange of information of which the object is to giving of legal advice as and when appropriate. Accordingly, I agree with the formulation made by Master Munrow in the present case, subject to the additional words which I have placed in brackets. He said:

“Once solicitors are embarked on the conveyancing transaction they are employed to ensure that the client steers clear of legal difficulties, and communications passing in the handling of that transaction are privileged (if their aim is the obtaining of appropriate legal advice)  since the whole handling is experience and legal skill in action and a document uttered during the transaction does not have to incorporate a specific piece of legal advice to obtain that privilege.” ” (332C-E)  (underline added)

120.  The approach of Taylor LJ was endorsed in Three Rivers (No 6).  The concept of “relevant legal context” was elaborated by the House of Lords. 

(1)  Where a lawyer is instructed to carry out a function which necessarily involves the use of his legal skills, the lawyer-client communications are to be regarded as being concerned with obtaining “legal advice”, as the term is to be understood in the broader sense as explained in Balabel: per Lord Rodger at para 60.

(2)  On whether there is a “legal” context, much will depend on whether it is a situation in which it is reasonable for a client to consult the special professional knowledge and skills of a lawyer, so that the lawyer will be able to give the client sound advice as to what he should do, and just as importantly what he should not do, and how to do it: per Baroness Hale at para 62.

(3)  All communications between a solicitor and his client relating to a transaction in which the solicitor has been instructed for the purpose of obtaining legal advice will be privileged, notwithstanding that they do not contain advice on matters of law or construction, provided that they are directly related to the performance by the solicitor of his professional duty as legal adviser of his client: per Lord Carswell at para 111.

(4)  On the facts, Lord Brown found, at para 120, the service provided to the Bank of England by its solicitors to be privileged.  His Lordship said:

“Such assistance to my mind clearly has the character of legal business. It is precisely the sort of professional service for which lawyers are ordinarily employed by virtue of their expertise and experience. … It is, moreover, a service which can only effectively be rendered if the client is candid and forthcoming as to the true facts of his case – the very consideration which justifies the absolute character of legal advice privilege in the first place.”

121.  In Hong Kong, the above approach also applies. In Citic Pacific, the issue before the Court of Appeal was the proper approach to the definition of a “client” in the context of legal advice privilege.  The court declined to follow the approach adopted by the English Court of Appeal in Three Rivers (No 5).  That issue does not arise here.  What is presently relevant is that in the judgment, in the course of discussing the “client” issue, the court considered the scope of the privilege and agreed with what was said in Balabel: see paras 44 and 45.

122.  Later, at para 54, the Court of Appeal added:

“It is meaningless to have a right to confidential legal advice if the protection is confined to communications setting out the legal advice. Lawyers need to have the relevant information from their clients before proper advice can be given. Thus, it is a necessary incidence of the right to confidential legal advice that the whole process is protected by privilege so as to safeguard the confidentiality.” (underline added)

123.  In my view, the content approach advocated by Mr Shieh is inconsistent with the principles explained in Balabel and Three Rivers (No 6). 

124.  What Balabel decides is that in a straightforward situation where a solicitor is engaged to act for a client in respect of a specific transaction (which I shall refer to as “a Balabel scenario” below by way of shorthand expression), that engagement would provide a relevant legal context and, barring any contrary indications (which I shall come back to shortly), would generally attach privilege to all the communications which pass between the solicitor and the client for the purpose of that transaction.  It does not matter that the communications may not contain any express or specific legal advice.  The privilege arises because it is a situation in which it is reasonable for a person to seek the professional assistance of a solicitor to help him organise his affairs insofar as that transaction is concerned.  As explained in the “rule of law” rationale, a person should be able to do so in confidence, and he should be able to be candid and forthcoming when giving instructions to his lawyer, knowing that what passes between them are not disclosable in the future without his consent.

125.  Going back to the content approach, it imposes on the person claiming privilege in all cases an evidential burden to give an analysis of the documents in question in order to demonstrate their privileged nature.  I do not think that there is such a universal requirement. More specifically, in the situation described in the preceding paragraph, the content approach does not apply.  Just like in Balabel, Taylor LJ did not proceed to discuss any evidence regarding contents before he upheld the claim of legal advice privilege.

126.  I refer to the possibility of contrary indications in the discussion above.  In some cases, the evidence may show that the lawyer, when being instructed to act in a transaction, is at the same time also providing other non-legal service to the client, such as commercial advice or administrative assistance.  An example was given in Balabel of a lawyer collecting rent for his client, which was considered to be not relating to “the obtaining of legal advice”: 331F-G.  In those cases, privilege will not attach to communications pertaining to such non-legal service.  There may therefore be a need for the person claiming privilege over those communications which do relate to legal service to adduce proper evidence to show the nature of the service rendered by the lawyer.  The content approach may then apply in those cases.

127.  It follows that I am in general agreement with Mr Yu’s submissions to the extent that the context approach should apply in a Balabel scenario with the result that, barring any contrary indications, the communications would generally be protected, without the need for the person claiming privilege to go into the contents of the individual documents in question in his evidence.

128.  In arriving at the above conclusion, I also draw support from three cases.  The first one is the Hong Kong case of Yau Chiu Wah v Gold Chief Investment Ltd [2003] 3 HKLRD 553.  The second one is Dalleagles Pty Ltd v Australian Securities Commission (1991)  4 WAR 325 (a case not referred to by counsel but cited in AWB)  and the third one is AWB Ltd v Cole (No 5) (2006)  155 FCR 30, a later decision in the AWB saga.  In essence, all these authorities apply Balabel and endorse the view that in the situation described in para 124 above, all the communications would generally be privileged.

129.  Yau Chiu Wah is a case about wasted costs order against solicitors.  It has been recognised that sometimes the solicitor who is the subject matter of the application may be handicapped in presenting his case, including revealing the advice he gave to his client and the instructions he received, because his client refuses to waive privilege: paras 37 to 38.  It is in this context that Ma JA (as his Lordship then was)  made the following remark, at para 43:

“But what is meant by privileged material in the context of solicitor-client communications? Generally, almost anything exchanged in confidence between the solicitor and his client is privileged, providing the solicitor is acting in his professional capacity. In other words, any confidential communications to or from a solicitor in connection with the professional capacity in which a solicitor is engaged (ie giving legal advice)  will generally be privileged. Here, I would refer to the useful commentary on the subject in Hong Kong Civil Procedure 2002, Vol.1 at para.24/5/8 and to the decision of the English Court of Appeal in Balabel v Air India [1988] Ch 317.” (underline added)

130.  I have highlighted the words “almost anything exchanged in confidence” above.  I acknowledge that the scope of legal advice privilege was not the focus of the decision.  However, I consider that the choice of the words, as highlighted, is fully in line with Balabel and supports the proposition that in a relevant legal context, all communications should generally be privileged.

131.  Next, in Dalleagles, Anderson J said that the solicitor-client communication should be regarded as prima facie for the purpose of giving and receiving advice and hence privileged.  His Lordship set out his reasoning in a most perceptive manner, at 332 to 333:

“But anyway, I think it is the case that whenever a lay client gives instructions to a legal practitioner to perform specialist legal services involving the exercise of professional skill, there is imposed on the solicitor a duty to give any advice reasonably necessary to protect the client’s interests in the transaction whether expressly requested or not. … It is not a large step from that position to say that whenever a client gives instructions to his solicitor there is assumed to be a request for advice. In my opinion, discourse between solicitor and client with reference to the transactions covered by those instructions, that is, professional discourse in a professional capacity, should be regarded as prima facie for the purpose of giving legal advice. This would apply to any communication that is on its face a communication of a professional nature from the solicitor to the client or his agent touching the subject matter of the solicitor’s engagement and any communication from the client to the solicitor in connection with the engagement. Only if the rule is applied in that way can the policy of it be carried out and its object practically fulfilled.” (underline added)

132.  Lastly, in AWB (No 5), the following general principle is set out, at para 44(4):

“Where communications take place between a client and his or her independent legal advisers, or between a client’s in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications … in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given.” (underline added)

133.  The content approach is plainly contrary to what was said in AWB (No 5), in particular those words underlined above.

134.  It remains for me to deal with the authorities relied on by Mr Shieh in support of the content approach.  I do not think it is necessary to go through them one by one in any great detail save to say the following.

135.  The fact in cases such as West London and Rawlinson and Hunter are a far cry from a Balabel scenario.

136.  The discovery application in West London originated from an explosion at an oil terminal which caused personal injuries and serious damage to properties.  After the explosion, an investigation was conducted by the oil company.  In subsequent civil proceedings, a contractor sought discovery from the oil company materials gathered in the investigation, including interview records and reports made by the accident investigation teams.  The oil company resisted discovery on the ground that the dominant purpose of the investigation was to identify the causes of the explosion so that their solicitors could provide legal advice in connection with the anticipated legal proceedings.  It was in determining the dominant purpose issue that Beatson J laid down the evidential requirements for the contents of the supporting affidavits.

137.  Rawlinson and Hunter is likewise a case on dominant purpose but on different facts.  In fact, the Court of Appeal there cited the evidential requirements in West London.  It is plain from para 13 of the judgment that, similar to what Beatson J was doing in West London, the Court of Appeal was applying the evidential requirements to resolve the issue of dominant purpose.

138.  Insofar as Mr Shieh is also relying on AWB in support of the content approach, I should say that, similarly, it is plain from the judgment that in that case the court was applying the evidential requirements to determine the dominant purpose of the document in question.  There was no suggestion that these requirements apply universally in all cases.  The document in question was called “Ex 665”.  The court concluded in paras 123 and 124:

“123 AWB submitted that the intermediate purpose for the creation of Ex 665 was to seek legal advice from Mr Zwier. It was contended that Ex 665 was part of a continuum of ongoing communications between lawyer and client. If the submission is intended to suggest that the sole or dominant purpose for the creation of Ex 665 was the purpose of seeking legal advice from Mr Zwier, I reject the submission. If the submission is merely that one of the purposes for the creation of the document was the seeking of legal advice from Mr Zwier, as part of a continuum of advice relating to the Inquiry, I accept that this is supported by the evidence. But, in my opinion, the evidence does not establish that Ex 665 was created for the dominant purpose of seeking legal advice from Mr Zwier.

124  As to the ultimate purpose of Ex 665, AWB submitted that it was created for the purposes of the Inquiry and its ultimate purpose was to enhance AWB’s prospects in the Inquiry.  This does not establish a dominant purpose of obtaining legal advice. …”

139.  On a proper interpretation, the above cases are not authorities in support of the content approach.  What we see in West London, Rawlinson and Hunter and AWB is simply that the courts there were considering the contents to resolve the dominant purpose issue.

140.  Among the authorities cited by Mr Shieh, the closest one on the facts to a Balabel scenario is Ng J’s decision in Alireza. Legal advice privilege was sought over drafts of contractual documents.  The privilege claim was upheld.  Mr Shieh submits that the judge did not base his decision as automatically flowing from the mere fact that a lawyer was retained, or that the drafts were made by lawyers.  Instead, his Lordship cited the evidential requirements in West London (at para 28), and then proceeded to analyse the affidavit evidence concerning the contents of the documents (at paras 31 to 32).  This analysing process is also recorded in the concluding paragraph, ie para 38:

“To conclude, this court is of the view that the dominant purpose of the creation of the drafts was the giving of legal advice to the Plaintiff, the description of the Appeal Documents in the 3 Affidavits was sufficiently clear that it was legal advice, rather than purely commercial advice, which was given, and that the subject matter which called for legal advice was the manner in which the 2^nd Defendant’s proposal of recording the commercial terms in his letter dated 7 October 2011 should be improved” (underline added)

141.  Hence, Mr Shieh relies on this decision in support of the content approach. 

142.  While I can understand the logic in Mr Shieh’s argument, I have some reservation to treat the case as authority in support of the content approach. It seems tolerably plain from the judgment that the “content versus context” argument was not raised as an issue in that case.  In fact, the affidavits filed by the party claiming privilege already contained discussion of the contents of the documents in question.  It was only natural that the judge proceeded to discuss and analyse them.

143.  I now turn to address the second limb of Mr Shieh’s argument, which specifically deals with drafts of documents.  He submits that as an adjunct limb of the privilege, there is a need for the person seeking privilege over drafts of documents to show that disclosure will or will tend to reveal the privileged advice, or to betray or give a clue as to the trend of the advice given. 

144.  Insofar as Mr Shieh is saying that this is an absolute requirement which applies to all cases where legal advice privilege is claimed over drafts of documents, I reject that submission. 

145.  I find support, again, in Balabel.  It will be recalled that in that case, the court upheld the privilege claim over not only communications between the client and its solicitors, but also drafts (and working papers etc)  prepared by the solicitors relating to the transaction in respect of which the latter were instructed: see para 116 above.  It has been noted that there was no express discussion in the judgment as to why the drafts were afforded the same treatment as communications: see Re RBS at para 99.  Nevertheless, the crux of the decision is that where a relevant legal context is made out, those documents form “part of that necessary exchange of information of which the object is the giving of legal advice as and when appropriate” and would be protected.  There is no additional evidential requirement in such a case.

146.  Mr Shieh also relies on Re RBS.  That can be quickly dealt with.  Again, the facts in that case are far removed from a Balabel scenario. 

147.  The litigation originated from the collapse of the Royal Bank of Scotland (RBS).  Shareholders who had subscribed for shares pursuant to a rights issue pursued statutory remedies against RBS in order to recover the substantial losses they made in their investments.  They sought specific discovery of documents consisting of transcripts, notes of interviews which had previously been conducted by the bank with its employees and ex-employees as part of two internal investigations undertaken by it. 

148.  The court ruled, first, that these interview notes were not communications between client and legal adviser, applying Three Rivers (No 5) (see para 93).  This ruling does not concern us.  But its significance is that this was the starting point (expressly acknowledged to be so in para 103)  for the discussion of the bank’s alternative basis that the interview notes were privileged “lawyers’ working papers”.  It was pointed out that as the interviews were not privileged communications, it must follow that verbatim transcripts of these interviews would themselves not be privileged.  It was with this starting point in mind that the court held that the bank should demonstrate some attribute of or addition to the interview notes which would distinguish them from verbatim transcripts such that the disclosure of these notes would betray or at least give a clue as to the trend of advice being given to RBS by its lawyer: paras 103 to 107.

149.  One can immediately see that this is a very different factual scenario from Balabel.  The interview notes sought in Re RBS are plainly distinct and different, in kind and in nature, from drafts of agreements which may be generated in a Balabel scenario.  And the requirement for “some attribute or addition” cannot be treated as readily applicable to all kinds of “lawyers’ working papers”.  I therefore do not find that Re RBS supports Mr Shieh’s argument that there is a universal requirement for the person claiming privilege to show that disclosure of lawyers’ working papers, including drafts of documents, would, or would tend to, reveal the privileged advice.

Ruling

150.  The 2005 Statement, the Trust Deed, the GPOA and the Will Declaration are legal or formal documents. In each case, solicitors were engaged by Mother or Angela to draft, review and comment on the document. 

151.  More specifically:

(1)  The Trust Deed and the GPOA are legal instruments under which rights and obligations of or affecting Mother and Angela are created. 

(2)  The Will Declaration does not have this effect. Nevertheless, it is entitled “聲明” (Declaration), and Mother signed it in the presence of a witness. It was plainly intended to be a formal document.

(3)  The 2005 Statement, whilst not having any dispositive effect, was also plainly intended to be a formal document recording certain events and Mother’s thoughts.  Mother signed in the presence of Mabel Lui, her solicitor, as witness. 

(4)  Mr Shieh, in his oral submissions, described this document as a kind of aide-memoire or diary entry.  I do not think that this description properly reflects the nature or importance of the document. The statement was made against the background that there were ongoing negotiations and activities relating to the distribution of Father’s vast wealth.  Mr Yu submitted, and I agree, that it appears to be the case that Mother wanted a lawyer to look at what she wanted to record in a formal way, which might be of consequence in the future. 

(5)  This is therefore squarely a case where Mother was seeking assistance from a solicitor because the latter had the necessary legal skill set to help her lay down her thinking in a proper way.  In Lord Brown’s words, the engagement clearly has “the character of legal business”.

152.  The present situation is therefore a straightforward case of a client engaging a solicitor to put in place a legal transaction or a formal document.  In other words, a Balabel scenario.  Applying what I have said in para 124 above, all the documents, including earlier drafts of documents and correspondence, which passed between the solicitor and the client may generally be taken to be part of the necessary exchange of information for the purpose of giving of legal advice as and when appropriate, and are therefore privileged.  They are all referable to the confidential solicitor-and-client relationship.  Vivien has not suggested that there are any contrary indications which would suggest otherwise. 

153.  Her main contention is that Angela does not know the contents of the Excepted Documents and the Missing Riders and cannot even begin to depose to their privileged nature.  However, as the relevant legal context has been made out, one may reasonably suppose (there being no contrary indications)  that the Excepted Documents and the Missing Riders form part of the continuum of communication, which is privileged. 

154.  In my judgment, the present case is a clear case for upholding the claim of legal advice privilege.

155.  In respect of the 2005 Statement, Mabel Lui acted for Mother and Anthony Poon acted for Angela.  In the former case, in line with what Wilson Chan J held in the decision in [2021] HKCFI 2436 as regards a Larke v Nugus statement, Angela may assert legal advice privilege belonging to Mother against Vivien.  This ruling is currently subject to appeal.  Notwithstanding that, the ruling presently stands as between Angela and Vivien, and Vivien is precluded from contending otherwise by virtue of issue estoppel.  In the latter case, Angela may assert the privilege in her own right.

156.  In respect of the Trust Deed and the GPOA, Wu Wing Kit acted for Angela.  She may claim privilege in her own right in respect of the drafts referred to in the witness statements.  On the materials before me, it would appear to be the case that David Wong acted for Mother, not Angela.  In that case, Angela may also assert privilege over the drafts on behalf of Mother’s estate.

157.  In respect of the Will Declaration, it would also appear to be the case that David Wong acted for Mother, not Angela.  In that case, Angela may claim privilege over its draft on behalf of Mother’s estate.

CONCLUSION

158.  I have held above that the discovery application fails to satisfy the requirements under Order 24.  For that reason, I order that Vivien’s summons be dismissed.

159.  I further make a costs order nisi that Vivien do bear the costs of the summons incurred by Angela, Mabel Lui and DLA Piper, including all reserved costs, to be taxed if not agreed, with a certificate for three counsel.

Mr Benjamin Yu, SC, Mr Bernard Man, SC, Mr Keith Lam and Mr Danny Tang, instructed by DLA Piper Hong Kong, for the plaintiff

Mr Paul Shieh, SC, Mr Johnny Ma, SC and Mr Tom Ng, instructed by Anthony Siu & Co, for the defendant

The 1^st respondent appeared in person

The 2^nd respondent appeared in person and was represented by Mr Harris Chan

HCAP 10/2020

[2026] HKCFI 1269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 10 OF 2020

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BETWEEN

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D E C I S I O N

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INTRODUCTION

1.  This probate action concerns the estate of the late Madam Yang Foo-Oi. The plaintiff and the defendant are her two daughters. There have been a number of interlocutory applications taken out since the action was commenced in 2020. As in the previous decisions, I shall call the parties by their first names, Angela (the plaintiff) and Vivien (the defendant), and the deceased “Mother”. I shall call the late Dr Chen Din Hwa, the father of Angela and Vivien, “Father” below. Dr Chen was the founder of the Nan Fung group. He and Mother were married until their divorce in 2011.

2.  In this action, Angela seeks to propound the will executed by Mother on 15 February 2008 (“the 2008 will”) which left all her assets to Angela and appointed her as the sole executrix.

3.  Vivien, on the other hand, seeks to propound an earlier will made by Mother dated 27 October 2004 (“the 2004 will”) under which there would be an equal division of assets between the two daughters, and Vivien would be appointed as a co-executrix.

4.  For the background of the action and a broad overview of the parties’ pleaded cases, see, eg, the decision of Wilson Chan J at [2024] HKCFI 962, paras 7 to 24.

5.  This is the decision on the summons dated 31 March 2025 taken out by Vivien to strike out various paragraphs in the three reports made by Angela’s psychiatric experts. The reports are all dated 24 March 2025. The three experts are:

(1) Dr Wong Chung Kwong (“Dr CK Wong”);

(2) Dr Cheung Kin Leung Ben (“Dr Ben Cheung”); and

(3) Dr Wong Yee Him John (“Dr John Wong”).

6.  I shall refer to the above three reports collectively as “the Reports” below.

7.  In my view, the application turns on a proper interpretation of the following:

(1) the order made by Wilson Chan J on 16 July 2024 (as subsequently re-amended) in which leave was granted to parties to adduce psychiatric expert evidence (“the Order”); and

(2) the report of Dr Pramod Prabhakaran, Vivien’s psychiatric expert, dated 27 January 2025.

THE ORDER AND THE EXPERT REPORTS

8.  The Order was made upon a summons taken out by Angela dated 8 April 2024 and a summons taken out by Vivien dated 22 April 2024.

(1) In Angela’s summons, she sought expert directions in respect of Mother’s testamentary capacity.

(2) In Vivien’s summons, in addition to the above issue, she also sought expert directions on Mother’s susceptibility to undue influence or fraud by reason of her medical condition as pleaded by Vivien.

9.  After a contested hearing, the Order was made. I highlight the following directions.

10.  Leave was granted to parties to adduce psychiatric expert evidence on two issues: (1) Mother’s testamentary capacity, and (2) Mother’s susceptibility to probate undue influence by reason of her medical condition as pleaded in para 47 of Vivien’s re-amended defence and counterclaim: para 1 of the Order. I shall refer to the two issues as “the first issue” and “the second issue”, respectively, below.

11.  On the first issue, leave was granted to Angela to rely on 16 historical reports made variously by Dr Ben Cheung, Dr CK Wong and Dr John Wong during the period between October 2007 to May 2014. I should point out at the outset that Dr Ben Cheung was the psychiatrist who examined Mother before she executed the 2008 will and the will was executed in his presence. His report in respect of that examination is one of the 16 historical reports. Vivien was granted leave to adduce evidence from her own psychiatric experts. See paras 1 to 3 of the Order. What should be highlighted here is that no leave was granted to Angela to file any reply evidence in respect of the first issue after Vivien filed her report.

12.  On the second issue, Angela was granted leave to rely on the same 16 historical reports: paras 1 and 2 of the Order. Vivien was granted leave to adduce evidence from her own psychiatric experts: para 3 of the Order. As for Angela, there was a further leave granted in para 6, which is the presently material paragraph. It provided:

“Leave be granted to the Plaintiff to adduce additional expert evidence on the 2^nd Expert Issue (if so advised) from P’s Experts and to file and serve the report(s) in relation thereto within 35 days from the service of D’s Expert Reports, and to adduce such reports as expert evidence at trial (“P’s Additional Expert Report(s)”)” (underline added)

13.  What should be highlighted here is that, first, no leave was granted to Angela to file further reports in addition to the 16 historical reports before Vivien is to file hers; and, second, the evidence to be filed subsequently by Angela was described as “additional” evidence. Mr Benjamin Yu, SC, appearing with Mr Bernard Man, SC, Mr Keith Lam and Mr Danny Tang for Angela, submits that, by reason of such description, para 6 grants leave to Angela to adduce expert evidence generally on the second issue, as opposed to only evidence in response to Vivien’s expert evidence. I shall return to this submission below.

14.  The rest of the Order contained standard provisions covering the holding of a without prejudice meeting between the experts, the filing of a joint statement, and the signing of experts’ declarations: see paras 7 to 9.

15.  Pursuant to the Order, Vivien filed Dr Prabhakaran’s report which covers both the first and second issues. Angela then filed the Reports.

VIVIEN’S APPLICATION

16.  In her striking out summons, Vivien asks the court to expunge the following sections or paragraphs from the Reports:

(1) in Dr CK Wong’s report:

(i) the words “and Delusions” in para 36;

(ii) paras 161 to 213;

(iii) para 215; and

(iv) the words “and Delusions” in para 217;

(2) in Dr Ben Cheung’s report:

(i) Section A;

(ii) Section B;

(iii) Section E;

(iv) Section F; and

(v) para 87; and

(3) in Dr John Wong’s report:

(i) Section A; and

(ii) Section D5.

17.  Vivien puts forward two grounds.

18.  First, the matters covered in the above paragraphs concern the first issue (testamentary capacity), but not the second issue (Mother’s susceptibility to probate undue influence). In the Order, no leave was granted to Angela to file further evidence on the first issue. And para 6 of the Order allowed her to file additional reports on the second issue only. These paragraphs were therefore included without leave and should be expunged.

19.  The second ground applies to paras 185 to 196 in Dr CK Wong’s report. There, he gave opinion on the issue of when Father began to lose his mental capacity. Vivien’s position is that this is a novel expert issue, for which no leave was granted in the Order. Hence, independently of the first ground, those paragraphs should also be expunged for this reason.

DR PRABHAKARAN’S REPORT

20.  Dr Prabhakaran’s report is 53 pages long (not counting appendices). It is divided into Sections A to K.

21.  In para 2 of Section A, Dr Prabhakaran states his conclusion on the first issue:

“Based on my examination of the documents provided in this matter, in my clinical opinion and on the balance of probability, Mother, when she executed her Will on 15 February 2008, had a disorder of the mind within the terms of the Banks v Goodfellow judgement, namely vascular mild cognitive impairment and depression. This may well have affected her capacity to fully appreciate the consequences of her testamentary decisions. There is the possibility that Mother held irrational beliefs or insane delusions about her daughter, Vivien, which could have poisoned her affections towards her, and caused her to alter her testamentary deposition.”

22.  In para 3 of the same section, Dr Prabhakaran states his conclusion on the second issue:

“In my clinical opinion, and on the balance of probability, Mother would be considered vulnerable to undue influence due to her complex medical conditions, which included depressive illness, vascular mild cognitive impairment, coronary artery disease, hypercholesterolemia and hypertension.”

The first issue

23.  Dr Prabhakaran’s analysis of the first issue is to be found in Section I of his report. I highlight the following points.

24.  First, when Mother executed the 2008 will, she was suffering from two psychiatric conditions, namely vascular mild cognitive impairment (“vascular MCI”) and depression. These two conditions are a disorder of the mind and “could well have compromised her mental capacity”: see paras 64 and 67 of the report.

25.  Second, there is the possibility that Mother was suffering from insane delusions.

(1) There was inadequate exploration by Dr Ben Cheung as to Mother’s rationale for disinheriting Vivien in the 2008 will and there was no evidence that Dr Ben Cheung fully explored or challenged Mother’s views regarding Vivien to consider the potential of these beliefs being irrational or delusional in nature.

(2) Dr Prabhakaran therefore concludes that Dr Ben Cheung’s assessments “do not provide conclusive or reliable views regarding Mother’s testamentary capacity”: see paras 77 to 84 and 94 of the report.

(3) Dr Prabhakaran further opines that if the court decides that Mother’s views about Vivien were factually inaccurate, there is a possibility that Mother was harbouring irrational beliefs or insane delusions about Vivien which could have poisoned Mother’s affections towards the daughter and caused Mother to alter her testamentary disposition: see paras 86 to 89 and 95 of the report.

26.  Third, Mother’s insane delusions would be due to her vascular MCI and depression.

27.  Earlier, in the report, Dr Prabhakaran discusses in general the possible linkage between each of these two conditions and delusional thinking, at paras 65 to 67.

“65. Long-term depression can have serious effects on a person’s mental health, particularly in older people. This can sometimes lead to severe issues like having false beliefs … When someone is chronically depressed, it can change the way they think, causing them to see things in a more negative light than they really are. … In some extreme cases, these altered views can develop into delusional thinking, where a person strongly believes in things that aren’t true.

66. Vascular Mild Cognitive Impairment (VaMCI) … This condition can lead to frontal-subcortical circuit dysfunctions, which could manifest as executive dysfunction, impaired judgments, and, in some cases, delusions. …

67. … The long-term effects of [Mother’s] depression and vascular cognitive issues could well have led to delusional thinking, impacting her decision-making capabilities significantly when making her will.”

28.  Later, at para 96, Dr Prabhakaran confirms that if Mother suffered from delusional thinking, that would be due to the two psychiatric conditions. He writes:

“If the Court determines that Mother’s beliefs about Vivien Chen are false and would have caused her to alter her testamentary disposition, this would be due to a disorder of mind, in my opinion. The combination of medical factors namely vascular mild cognitive impairment and depression is likely to have affected mother’s thought process depriving her of the necessary clarity of thought to enable her to make a rational decision or affected her natural feelings for her daughter, Vivien Chen or her sense of right. …”

The second issue

29.  Dr Prabhakaran’s analysis of the second issue is to be found in section J of his report. I highlight the following points.

30.  First, he discusses in general a list of “red flags” which point to potential risk of undue influence. These include the social environment of the testator, vulnerability of the testator, and circumstances surrounding the making of the will: para 98 of the report.

31.  Second, he elaborates on the vulnerability factors and says that a number of mental disorders can increase vulnerability to undue influence. He says:

“100. … A range of mental disorders, including cognitive impairment, schizophrenia, paranoid and mood disorders, can predispose individuals to undue influence. Cognitive disorders can make individuals vulnerable to influence due to impaired judgment and altered perceptions of others.

101. Multiple health conditions, such as cognitive impairment, mental health disorders, and terminal illnesses, can increase vulnerability to undue influence.”

32.  Third, he points out that one should therefore evaluate a range of matters in order to determine the risk factors for undue influence, including medical and psychiatric history, personal history, will-making pattern, mental state, and cognition: para 106.

33.  Fourth, Dr Prabhakaran then discusses the red flags in Mother’s case. At para 111, he writes (in part, relying on Vivien’s pleaded allegations):

“… these factors include changes in trusted relationships, family conflicts, and psychological dependency on Angela. Limited social connections, coupled with cognitive or mood disorders, have been linked to increased susceptibility to influence. These factors seem relevant in Mother’s case. Consequently, they increase the likelihood that the testator (Mother) may comply with someone’s suggestions or wishes against their will.” (underline added)

34.  At para 113, Dr Prabhakaran concludes that Mother was a vulnerable person and had an increased susceptibility to undue influence because of, among other factors, “her multiple medical conditions, including depression and vascular mild cognitive impairment” at the time of the making of the 2008 will.

Two observations

35.  I wish to make two observations on Dr Prabhakaran’s report which are pertinent to the approach which the court should adopt when disposing of the striking out application.

36.  First, the two psychiatric conditions which Dr Prabhakaran says Mother suffered from, namely vascular MCI and depression, feature prominently in both the first and second issues, although they operate in different ways under the two issues.

(1) Under the first issue, the two conditions could have compromised Mother’s mental capacity.

(2) Also, under the first issue, the two conditions could have led to Mother’s insane delusions (subject to the court’s factual finding on Mother’s beliefs about Vivien being mistaken).

(3) Under the second issue, the two conditions, together with other non-medical “red flags”, made Mother more susceptible to undue influence.

37.  Second, the topic of insane delusion forms an important part of Dr Prabhakaran’s discussion of the first issue but does not feature and is not relied on in his reasoning under the second issue.

VIVIEN’S FIRST GROUND

38.  In this striking out application, the first ground put forward by Vivien is that the paragraphs in question focus on the first issue of testamentary capacity, in particular whether there is a disorder of the mind and insane delusion, with the latter being given a prominent focus. Under the Order, Angela was not granted to leave to file any further evidence under that issue. Hence those paragraphs ought to be struck out.

39.  In fact, in the Reports, Angela’s experts expressly accept that their task is to address the second issue only. However, they go on to say that in order to do so, they would have to address the first issue as there are overlaps between the issues. I quote the relevant paragraphs below.

40.  Dr CK Wong refers to Dr Prabhakaran’s discussion of Mother’s medical conditions under both issues:

“As I have been asked only to address the 2^nd Expert Issue, I will confine my opinions accordingly. … And for that matter, I would like to point out that there are overlaps between the 1^st Expert Issue and the 2^nd Expert Issue since the 2^nd Expert Issue asks about the susceptibility of Mother to undue influence by reason of her alleged medical conditions and the discussion of these alleged medical conditions featured prominently in Dr Prabhakaran’s opinion on the 1^st Expert Issue. Therefore, while I will focus myself on the 2^nd Expert Issue, my discussion of the Mother’s alleged medical conditions will invariably touch on the 1^st Expert Issue. Nevertheless, I will confine my expert opinions to the 2^nd Expert Issue.” (underline added) (para 37)

41.  Dr Ben Cheung describes the two issues as “clinically intertwined”. He writes:

“This report has been prepared to address the 2^nd Expert Issue in this case: whether Madam Yang was susceptible to probate undue influence by reason of her medical conditions. While the primary focus herein is on her vulnerability to such influence, it is essential to first address the related 1^st Expert Issue of her testamentary capacity, as these two matters are clinically intertwined. A thorough evaluation of Madam Yang’s susceptibility to undue influence requires understanding of her cognitive and emotional state, as well as her capacity to make independent and reasoned decisions about her will. Thus, addressing testamentary capacity is not only relevant but necessary to fully contextualize and assess the potential for undue influence.” (para 9)

42.  Similarly, Dr John Wong refers to the “intersect” of the two issues:

“I am fully aware that the objective of this report is to provide my expert opinion on Madam Yang’s susceptibility to probate undue influence by reason of her medical condition (or 2nd Expert issue). However, to adequately address this task, it is necessary for me to address certain medical considerations (eg presence of disorder of the mind) which may intersect with the 1st Expert issue. Consequently, while my comments will be confined to the 2nd Expert issue, minor overlaps with the 1st Expert issue may be unavoidable.” (para 5.5)

Complaint about Dr CK Wong’s report

43.  As regards Dr CK Wong’s report, Vivien takes issue with Part D of the report which is entitled “Delusions”. This part comprises 57 paragraphs, which takes up 24 pages.

44.  In this part, Dr CK Wong first sets out his understanding of Dr Prabhakaran’s opinion about delusions, and states, at para 167, that it is necessary for him to consider delusions as an independent topic.

45.  At para 168, the doctor comments that delusions must be due to one or more psychiatric disorders. It is notable that here Dr CK Wong comments that these disorders include neurocognitive disorder and depression, but then he says:

“As I have already ruled out these two disorders. I will not refer to them further in Part D.”

46.  At para 172, he goes on to identify two disorders which may be relevant in Mother’s case: delusional disorder and shared psychotic disorder. He acknowledges that Dr Prabhakaran has not mentioned them in his report:

“In this regard, I would like to point out that Dr Prabhakaran has not mentioned these two disorders. In other words, I am conducting an even more rigorous assessment into this case. This is a necessary assessment as delusion per se is a crucial consideration in cases of suspected probate undue influence.”

47.  Then, he refers to Mother’s changed thought about Vivien and considers the possibility that such changed thought was persecution delusion in nature and hence irrational: paras 173 to 184.

48.  It is in this context that Dr CK Wong comes to the view that this would require looking into when Father became a mentally incapacitated person and how severe his condition was. This is because one of Mother’s changed thought was that Vivien had taken advantage of Father’s deteriorated cognitive function. He is of the view that in order to evaluate whether this changed thought was irrational, one needs to appraise the change in Father’s cognitive function.

49.  I quote his reasoning at para 185:

“… my opinion is that the central theme of Mother’s changed thought about Vivien is that Vivien had taken advantage of Father’s deteriorated cognitive function. We need to ask the most salient question, i.e., whether Mother’s changed thought was irrational. In order to answer this question, we need to have a factual appraisal of the change in Father’s cognitive function. In conducting this factual appraisal, the question is not whether Father was an MIP (that Father was an MIP was an undisputed fact in this case; he was declared an MIP in November 2008, §101, AS) but when he became one and how severe was his condition.” (original emphasis)

50.  It is unnecessary to set out here Dr CK Wong’s reasoning in relation to the timing of Father’s mental incapacity and the rationality of Mother’s belief. At the end, he concludes that Mother’s changed thought about Vivien was not irrational: paras 197 and 202. He further concludes, at para 202, that Mother did not suffer from delusional disorder or shared psychotic disorder, and that her changed thought about Vivien was rational in nature.

51.  It is Vivien’s submission that when Dr Prabhakaran discusses delusion, he does so only in the context of the second issue of susceptibility to undue influence. However, Dr CK Wong deals with the issue of delusion plainly in the context of the first issue of testamentary capacity. That should not be allowed.

Complaint about Dr Ben Cheung’s report

52.  It is Vivien’s submission that in the paragraphs objected to, Dr Ben Cheung attempts to deal with the issue of disorder of the mind and insane delusion which impacted on Mother’s testamentary capacity. This clearly pertains to the first issue. Dr Ben Cheung also gives a point-by-point “defence” against Dr Prabhakaran’s critique of how he arrived at his conclusion in the historical reports covering his examination of Mother prior to her making the 2008 will. Again, that pertains to the first issue.

53.  For these reasons, Vivien contends that the paragraphs objected to should be expunged.

Complaint about Dr John Wong’s report

54.  Similarly, in Dr John Wong’s report, in the paragraphs in question, he states his views in relation to disorder of the mind and insane delusions. Both relate to the first issue and should be disallowed.

Discussion

55.  The Order was made after a contested hearing, in exercise of the court’s case management power. In the absence of any variation, its terms should be adhered to.

56.  It is plain that no leave was granted in the Order to Angela to file further evidence on the first issue subsequent to Dr Prabhakaran’s report. Hence, where the Reports contain entire sections or parts (save for passing references in isolated paragraphs) which deal purely with the first issue, they are included without leave of the court and are liable to be struck out (unless fresh leave is granted). This must be the starting point of the present discussion.

57.  As a matter of fact, Angela’s experts all expressly acknowledge in the Reports that their task should be confined to discussing the second issue.

58.  Mr Paul Shieh, SC, appearing with Mr Alexander Tang and Mr James Man for Vivien, submits that if Angela wishes to go into areas beyond the permitted scope, what she ought to do is to seek further leave to admit such evidence. Whether the evidence should be admitted can then be properly debated based on general case management principles applicable to the grant of expert directions. I agree with this submission.

Discussion: the two psychiatric conditions

59.  Mr Shieh further submits that what Angela should not do, but has done, is to shoehorn very substantial amounts of expert evidence on an excluded issue into the permitted issue by putting forward various purported justifications, eg, that there is overlap between the excluded issue and the permitted issue.

60.  I do not entirely agree with this submission. I refer to the first observation which I have stated in para 36 above. There is indeed overlap between Dr Prabhakaran’s opinions expressed under the first and second issues – the two psychiatric conditions of vascular MCI and depression feature prominently in both issues. It follows that insofar as Angela’s experts are commenting on the two medical conditions, such evidence can properly be regarded as given in relation to the second issue. Such evidence would have an ultimate impact on the answer to be given to the second issue. For that reason, such evidence comes within the scope of the second issue and should be allowed.

61.  In this regard, I agree with what Dr CK Wong says in para 37 of his report (the underlined part, see para 40 above) where he explains why his discussion of the second issue would invariably touch on the first issue.

62.  It is Vivien’s position that she is not trying to shut out any substantive discussion of the underlying medical conditions of Mother. Furthermore, at the hearing on 3 September 2025, Mr Shieh accepted that where the paragraphs under objection discuss the two psychiatric conditions, they are relevant to the second issue, even though they are at the same time also relevant to the first issue. What Vivien finds objectionable is that the paragraphs in question are directed at ultimately answering the first issue of testamentary capacity, including whether insane delusion exists in the Banks v Goodfellow sense. That, Mr Shieh submits, is impermissible. He further submits that it would be for Angela’s experts to reformulate their reports in such a way that the two psychiatric conditions are discussed in the context of the second issue, and if done properly, they may come within the scope of the second issue.

63.  In a way, I can understand Vivien’s grievance. She feels that by making use of the opportunity to comment on the two medical conditions, Angela is having a second chance to put in more evidence to support her case of testamentary capacity when she has no leave to do so under the Order. However, in my view, the material point here is that, in light of Dr Prabhakaran’s opinions, the two conditions are indeed relevant to the second issue. For that simple reason, Angela’s experts should be allowed to discuss them, as permitted under the terms of the Order. I fail to see what can be gained by asking them to reformulate the Reports as suggested by Mr Shieh. One looks at substance rather than form.

64.  The hearing on 3 September 2025 was adjourned part-heard as there was not sufficient time for counsel to complete their submissions. I directed Vivien to submit a revised list of paragraphs to be expunged by taking out those paragraphs in which the two psychiatric conditions were discussed.

65.  In the revised list, Vivien maintains their original objection to Dr CK Wong’s report in whole. As regards Dr Ben Cheung, Vivien has substantially narrowed down their objection to only Section E of the report. As for Dr John Wong, she now only objects to Section D5 of his report.

66.  Applying the approach set out in para 60 above, I am of the view that the paragraphs removed from the original list should not be expunged.

Discussion: delusion

67.  Looking at the remaining items in the revised list, the major complaint made by Vivien is that Angela’s experts have devoted substantial parts of the Reports to the issue of insane delusions. This complaint applies in particular to Dr CK Wong’s report.

68.  In this regard, I refer to the second observation which I have stated in para 37 above. It seems clear to me that where the expert is dealing solely with the issue of delusion, ie not touching on, or by reference to, the two psychiatric conditions, that is evidence squarely within the first issue and has nothing to do with the second issue. Hence, they should be expunged as evidence filed without leave. This is the approach which I shall adopt below.

69.  In arriving at this conclusion, I have considered the contentions made by Mr Yu, based on which he submits that the opinions of Angela’s experts expressed on the topic of delusion should be admitted, as the opinions fall within the second issue. I do not agree with these contentions, which I would summarise under four points, and will now deal with them one by one.

70.  The first contention represents what Mr Yu described in his oral submissions as Angela’s primary position, which is this.

(1) Whether Angela’s experts should be allowed to discuss delusion does not turn on what Dr Prabhakaran has said in his report. This is because para 6 of the Order granted leave to Angela to adduce “additional” expert evidence on the second issue, and not only reply or responsive evidence. The scope of the second issue is therefore not dictated by what Dr Prabhakaran says.

(2) Hence, even if (which is not accepted) Dr Prabhakaran does not expressly mention delusion in his discussion of the second issue, it does not matter. As long as Angela’s expert opinions on delusion are relevant to the second issue, they should be allowed.

(3) Here, the topic of delusion is clearly relevant to the second issue because Vivien, in her pleadings, relies on Mother’s allegedly delusional beliefs for both lack of testamentary capacity and undue influence: see paras 90A to 90B and para 125 of the re-re-amended defence and counterclaim, respectively. The issue of delusion is therefore an issue raised on the pleadings in relation to undue influence.

71.  I do not agree with each of the sub-points made under this first contention.

(1) I think that too much is being read into the word “additional” in the Order. When one looks at the overall structure of the Order, it is quite clear that any further evidence to be filed by Angela should be responsive to Vivien’s evidence. In the first round of the evidence, Angela was to rely on the 16 historical reports for the second issue. In other words, Angela had already had her say on the second issue by relying on the contents of those 16 reports. It seems unlikely that the court intended to then give her a free hand in the second round to adduce evidence unrelated to what Vivien’s expert says. This is not the usual way in which the court gives expert directions. There seems no good reason why Angela would be allowed to “wait and see” and be at liberty to produce evidence in the second round which she could have given (if she wanted to) in the first round.

(2) Hence, I find that, as a matter of proper construction of the Order, Angela may only file responsive evidence under para 6. Hence, where a topic is not canvassed by Dr Prabhakaran, Angela is not permitted to file evidence on the topic.

(3) In any event, if I am wrong about this, I take the view that the topic of delusion is not relevant to the issue of undue influence. This is not an issue raised on the pleadings. Vivien’s pleaded case on undue influence, as contained in Section H of her re-re-amended defence and counterclaim, is that Mother held various mistaken and irrational beliefs. It is not part of the pleaded case that these beliefs were delusional beliefs at the same time. This is so notwithstanding that there is a reference in para 125 (on which Mr Yu relies) to one of the beliefs as being an insane delusion.

(4) At the hearing, Mr Shieh confirmed that the above reflects the pleaded case of Vivien. Furthermore, it was confirmed on behalf of Vivien that it is not part of her case that the (alleged) fact that Mother was suffering from delusion would cause her to be more susceptible to undue influence.

(5) Given the above interpretation of the pleadings and Vivien’s express confirmation regarding her case on undue influence, I am in a position to conclude now that Mother’s alleged delusion is not relevant to Vivien’s case of undue influence. Therefore, Angela should not be allowed to put in evidence regarding delusion under the second issue.

72.  The second contention made by Vivien is what Mr Yu described in his oral submissions as Angela’s secondary position, which is that if Angela can only file reply evidence in response to Dr Prabhakaran’s report, Dr Prabhakaran is being ambiguous as to whether he is relying on delusion in the second issue. In the circumstances, Angela’s experts should be allowed to discuss the issue of delusion too under the second issue.

73.  I believe that this submission may have been made on the strength of what Dr CK Wong says in para 35 of his report. In short, while Dr CK Wong acknowledges that Dr Prabhakaran only mentions vascular MCI and depression in his discussion of the second issue, given the extensive discussion of delusions in the earlier parts of Dr Prabhakaran’s report, Dr CK Wong considers that Dr Prabhakaran is in effect also relying on delusion when opining on the issue of susceptibility to undue influence. This is what Dr CK Wong says:

“35. … Hence, it seems to me that Dr Prabhakaran is of the opinion that at the material time when Mother made the 2008 Will, she was under the effects of two active psychiatric conditions, i.e., depression and vascular mild cognitive impairment, and she probably also had delusional thinking, and his conclusion was that Mother was probably susceptible to probate undue influence. Dr Prabhakaran may like to clarify if he thinks I have misunderstood him.

36. Thus, to explain why I disagree with Dr Prabhakaran and why I do not think Mother was susceptible to probate undue influence, I need to discuss three major psychiatric topics, in response to the three psychiatric conditions put forward by Dr Prabhakaran as referred to in the previous paragraph. The three major psychiatric topics are: the Neurocognitive Disorders; Major Depressive Disorder; and Delusions. …” (original emphasis)

74.  I refer to the second observation which I have stated in para 37 above. For that reason, I agree with Mr Shieh’s submission that Dr CK Wong is misinterpreting Dr Prabhakaran’s opinion under the second issue. As Dr Prabhakaran does not rely on delusion in the second issue, Angela’s experts should not be allowed to discuss delusion in their reports.

75.  The third contention is as follows. Dr Prabhakaran’s diagnosis that Mother suffered from delusions is based on the same two health conditions on which he relies to find that Mother was vulnerable to undue influence, namely vascular MCI and depression, there is therefore clearly a close connection between delusions and the second issue. It is submitted on behalf of Angela that it is difficult to see how Vivien can seek to shut out the discussion by Angela’s experts on these issues.

76.  I do not agree with the contention. There is overlap between Dr Prabhakaran’s answers to the first and second issues. I have set out the precise scope of the overlap in my first observation (see para 36 above). Notwithstanding that, I repeat my second observation, namely that delusion is not relied on by Dr Prabhakaran in arriving at his conclusion in the second issue, there is therefore nothing wrong to disallow Angela’s experts to talk about delusion under the same issue.

77.  The fourth contention is that Dr Prabhakaran applies a holistic approach to the issue of susceptibility to undue influence, without being limited to the medical condition pleaded by Vivien. Angela’s experts cannot be criticised for addressing the issue of Mother’s susceptibility to undue influence by also adopting a holistic approach of considering all factors which are relevant in the individual expert’s professional opinion, including the issue of delusion.

78.  I do not consider this to be a valid argument. I repeat my second observation. The short point here is that under the terms of the Order, Angela is not entitled to adduce expert evidence which is not in response to Dr Prabhakaran’s report.

79.  Furthermore, as Dr Prabhakaran is not relying on Mother’s (alleged) delusion to show her susceptibility to undue influence, in the circumstances, one must wonder why Angela’s experts would want to spend time to disprove the delusion in order to show that Mother was not susceptible to undue influence due to delusion.

80.  It is, in my view, illogical to allow Angela’s experts to discuss something which Dr Prabhakaran does not rely on. On this point, I refer to Dr CK Wong’s own remark as quoted in para 46 above. He takes the initiative to talk about two disorders which Dr Prabhakaran does not mention, and ultimately reaches the conclusion that the two disorders do not apply to Mother. I appreciate that this may be an attempt on Dr CK Wong’s part to provide the court with a comprehensive and holistic analysis on delusion. However, as a matter of case management, the court applies a focused approach and deals only with issues which are in dispute. The holistic approach, which Vivien says her experts are adopting, is not necessary for the proper conduct of the action.

81.  In short, evidentially, the issue of delusion in the context of undue influence simply does not arise. The court should not allow the parties to spend time and incur costs on adducing expert evidence on a non-issue.

Rulings under Vivien’s first ground

82.  Applying the approach which I set forth in paras 60 and 68 above, I now make my rulings in respect of each of the Reports.

83.  As regards Dr CK Wong’s report, the paragraphs under objection deal with the issue of delusion. That is squarely evidence which comes under the first issue only. Those paragraphs should be expunged.

84.  As regards Section E in Dr Ben Cheung’s report, Vivien’s complaint is that it deals with the issue of testamentary capacity and should therefore not be allowed.

85.  It is true that a large part of the section is devoted to responding to, and defending against, Dr Prabhakaran’s criticisms of the mental assessment conducted by Dr Ben Cheung for the 2008 will. That assessment was of course conducted for the purpose of ascertaining Mother’s testamentary capacity. That amounts to evidence under the first issue. However, as the assessment was about whether Mother suffered (or did not suffer) from any psychiatric condition, the discussion surrounding the assessment also comes within the second issue, applying the approach set out in para 60 above.

86.  I quote below some of the discussions regarding Mother’s medical conditions as examples:

“… These assessments also confirmed her stable mental status, as evidenced by consistent MMSE scores of 28-29, absence of psychiatric illness, and precise recall of her family history. …” (underline added) (para 59)

“… Madam Yang displays no indication of mental illness. Her thought processes were intact, without disorder or delusions. Her cognitive functions were consistent with her age. In my professional opinion, there is no mental disorder present that would compromise her ability to understand and manager her personal affairs …” (underline added) (para 60)

“Therefore, Madam Yang’s testamentary capacity on 15 February 2008 is well-supported by her consistent cognitive stability, rational decision-making, and selective disclosure reflecting autonomy. My assessment adhered to Banks v Goodfellow standards, balancing clinical diligence with respect for her privacy.” (underline added) (para 73)

87.  It appears to be the case that in some of the paragraphs in the reminder of the section, Dr Ben Cheung discusses matters relevant to the other Banks v Goodfellow criteria which do not concern the mental condition of Mother. As such, it may be said that such evidence is evidence solely under the first issue. However, in this application, the burden is on Vivien to single out these paragraphs for striking out, instead of asking the court to expunge the entire section. She has not done so, whether at the time of taking out the summons or subsequently when given a chance to revise her list during the part-heard adjournment.

88.  All things considered, I think the proper thing to do is to allow the whole section to stay.

89.  Lastly, as regards Dr John Wong’s report, the section which is still being objected to is Section D5. In this section, the doctor expresses his opinion that Madam Yang was not under the effect of an insane delusion when she executed the 2008 will. In the main, his reasoning does not touch on, or refer to, Mother’s psychiatric conditions. Applying the approach set out in para 68 above, that is evidence squarely within the first issue and has nothing to do with the second issue. Hence, they should be expunged.

VIVIEN’S SECOND GROUND

90.  The second striking out ground relates to paras 185 to 196 of Dr CK Wong’s report only. They are part of Part D (“Delusion”) and contain a discussion of when Father lost his mental capacity and the severity of his condition. The rationale for Dr CK Wong embarking on this discussion is set out in para 49 above.

91.  The discussion goes to the issue of delusion, and does not concern the two psychiatric conditions which Dr Prabhakaran says affected Mother. Hence, applying the approach set out in para 68 above, the paragraphs are evidence under the first issue, which is outside the scope of the Order. For that reason, they should be expunged.

92.  If I am wrong about this in that they are within the scope of the Order, they still should not be allowed to stay since it is obvious that the issue of Father’s mental condition is itself a standalone topic, for which express leave ought to have been (but was not) sought. There can be no dispute that an investigation into the specific questions of when Father began to lose his mental capacity and how severe his condition was would be a substantial exercise, with significant time and costs to be spent by both sides (and the court) on examining his medical history and voluminous medical records. It can also be expected to be a hotly contested issue. I do not believe that all these factors relevant to whether leave should be granted for these specific questions had been canvassed at the hearing before Wilson Chan J. When making the Order, his Lordship could not have intended to allow the experts to embark on such an investigation.

93.  In any event, no leave ought to be granted to parties to adduce evidence on these issues concerning Father as the exercise is plainly disproportionate when one considers the usefulness of such evidence against the costs needed to be spent on obtaining the evidence.

94.  I am prepared to accept that the objective fact of the timing and severity of Father’s mental condition would in theory be relevant to ascertain Mother’s subjective perception of his condition. For instance, if Father’s outward appearance shows a clear-cut case of someone plainly losing his mental capacity, then this must have a bearing on how Mother perceived his condition to be. But, as things stand, how Father had behaved and interacted with others is hotly disputed, as a matter of factual evidence. The issue itself being a controversial one, it is doubtful how helpful it would be to make use of this evidence to evaluate Mother’s subjective perception. Given that significant time and costs will have to be spent on adducing evidence on Father’s mental condition, it is clear to me that the exercise is going to be a disproportionate one and should not be allowed.

ANGELA’S ALTERNATIVE POSITION

95.  Lastly, I should deal with Angela’s alternative position, which is stated in the last paragraph of her skeleton submissions. She asks that if the court rules that the paragraphs under objection are to be expunged, for those which are relevant to the first issue, the court should grant retrospective leave to Angela to include them in the Reports, and on that basis these paragraphs can be adduced both for the purposes of the joint meeting of the experts and the joint report, and for the purposes of the trial.

96.  I decline to accede to this suggestion.

97.  In this application, the stance of Angela, as expressed by her experts in the Reports and through counsel’s submissions, is that the paragraphs under objection are within the scope of the Order. Both the written and oral submissions made on her behalf were devoted to substantiate that stance. I have ruled against that position. If Angela now wishes to seek leave to include those paragraphs, there should be a proper debate of the applicable case management considerations governing expert directions before the court makes a decision.

98.  It is not enough for Angela to simply assert that the evidence is relevant (to the first issue) and hence should be admitted. Relevance is of course a prerequisite. But it is not the only criterion. The court would need to be satisfied that the expert evidence is required for the just resolution of the issues before the court: see, eg, Chok Yick Interior Design & Engineering Co Ltd v Lau Chi Lun HCA 1480/2008, 5 May 2010, para 9. In answering this question, one would consider how helpful the evidence is going to be to assist the court to arrive at a decision: see, eg, Wong Hoi Fung v American International Assurance Co (Bermuda) Ltd [2002] 3 HKLRD 507 at para 12. Balanced against the usefulness of the proposed evidence, the court also needs to come to a view on whether the time and costs expected to be spent on the exercise would be worthwhile and proportionate.

99.  All these factors are not explored by Angela in respect of the paragraphs under objection. It is not a simple matter of just allowing these paragraphs to stay in the Report. One needs to consider whether Vivien then has a right to respond. In the end, one also asks the question whether it is justifiable for time and costs to be spent on such evidence at the trial. All these matters are not discussed. In the circumstances, it is not proper for me to grant retrospective leave to admit them into the evidence.

CONCLUSION

100.  In conclusion:

(1) The paragraphs which Vivien objects to in Dr CK Wong’s report should be expunged. I therefore order that para 1 of Vivien’s summons be granted.

(2) The paragraphs which Vivien objects to in Dr Ben Cheung’s report should stay. I therefore order that para 2 of the summons be dismissed.

(3) Section A of Dr John Wong’s report is allowed whereas Section D5 should be expunged. I therefore order that para 3(a) of the summons be dismissed and para 3(b) be granted.

(4) There be liberty to apply.

101.  Vivien succeeds in some of her requests and Angela succeeds in resisting the others. I consider that it would be appropriate to make the costs of the summons to be part of the costs of the action. I make a costs order nisi that the costs of the summons, including all reserved costs, be in the cause, with a certificate for three counsel.

Mr Benjamin Yu, SC, Mr Bernard Man, SC, Mr Keith Lam and Mr Danny Tang, instructed by DLA Piper Hong Kong, for the plaintiff

Mr Paul Shieh, SC, Mr Alexander Tang and Mr James Man, instructed by Anthony Siu & Co, for the defendant

HCAP 10/2020

[2025] HKCFI 3498

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 10 OF 2020

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D E C I S I O N

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Introduction

1.  Before the court today is Angela’s summons taken out on 4 June 2025 for an order that Mr P, one of her witnesses, be examined on oath before trial pursuant to Order 39, rule 1 of the Rules of the High Court on the ground that he may not be able to attend the trial now fixed for February 2027 by reason of his age and his medical condition.

2.  Vivien’s stance is that she has no objection in principle to take deposition of Mr P before trial subject to one condition. Her stance is without admission as to the relevance and/or materiality of his evidence. The condition is that the deposition should proceed on the assumption that the rejoinder appeal, as defined in my earlier decision at [2025] HKCFI 1615, and Vivien’s latest application by summons dated 1 April 2025 (“the latest amendment summons”) to amend her pleadings have been allowed, with further discovery based on such assumed state of pleadings being done before the deposition.

3.  The rejoinder appeal is Vivien’s appeal against the decision made by Mr Justice Wilson Chan in March 2024 refusing some of the amendments she sought to introduce to her rejoinder. I shall call these amendments which have been rejected at first instance but for which Vivien now seeks leave from the Court of Appeal “the rejoinder amendments”.

4.  As regards the latest amendment summons, Angela has agreed to all of the proposed amendments save for two paragraphs. I shall call the amendments which are under objection “the latest proposed amendments”. On the face of those amendments, they do not seem to concern Mr P. And hence it seems unlikely that he will have any evidence to give in that respect.

5.  Angela disagrees with Vivien’s condition. She says that the deposition should proceed not subject to that condition. Hence, that is the issue I need to resolve this morning.

Ruling

6.  I am of the view that the deposition of Mr P should proceed without being subject to Vivien’s condition. In other words, it should proceed based on the present state of the pleadings.

Discussion

7.  I will start my discussion by making two fundamental observations.

8.  First, as regards the rejoinder amendments, they were rejected by Mr Justice Chan. It is true that that decision is now pending appeal. However, the order made by his Lordship takes effect from the date it was made and remains effective as of now.

9.  The general practice of the court is that an order once made stands and has effect unless and until it is overturned, varied or stayed. The action should proceed on that basis notwithstanding the existence of any pending appeals.

10.  Here, in line with how our civil litigation is generally conducted, Mr P’s deposition should, as a starting point of the analysis, proceed on the basis of the existing state of the pleadings, not incorporating the rejoinder amendments for which Vivien failed to convince his Lordship to grant leave.

11.  My second observation is this. It must be recognised that the evidence to be elicited concerning the rejoinder amendments and the latest proposed amendments would only be useful if all three of the following events take place:

(1)  The rejoinder appeal is allowed. (This only applies to the rejoinder amendments.)

(2)  Mr P is not able to give further deposition on those amendments, which would be likely to be in the course of 2026.

(3)  He is not able to attend the trial to testify in February 2027.

12.  For this decision and solely from a case management perspective, I shall call the situation where all three events take place “the worst case scenario”.

13.  The relevant point here is that at this stage, we would not know if the worst case scenario would materialise. Therefore, if we accede to Vivien’s proposal, the court will be acting on a hypothetical basis as it will be proceeding with the deposition on an assumed state of pleadings which would only become relevant in the worst case scenario but not applicable in all other cases.

14.  To hear or manage a case on a hypothetical basis is not a course of action the court normally takes. The court’s time and resources should be spent on resolving real disputes, and decisions should be made on real issues, not hypothetical or academic ones.

15.  If we adopt Vivien’s proposal, more time and costs would be incurred and those costs would not be negligible or insignificant. That is because Vivien is now asking for discovery and possibly a witness statement to be made in respect of the rejoinder amendments and the latest proposed amendments before the deposition is taken. These costs would be wasted if the rejoinder appeal is dismissed.

16.  It is plain that the parties in this action have a lot of resources at their disposal, so they may be able to afford the luxury to waste some costs along the way in this action. But it must be remembered that the court’s resources are also at stake. The court’s duty is to see to it that its resources are fairly distributed among litigants and other users of the court. I would therefore be reluctant to make a decision which would have the result of having not insignificant costs wasted because the court is to hear the case on a hypothetical basis.

17.  Furthermore, generally speaking, as an action progresses, the court would usually case manage it in such a way as to narrow down the issues as much as possible. What Vivien is now asking for is effectively the opposite. She asks the court to look at what is more than necessary at this stage (namely, beyond the present state of the pleadings) and then if it turns out to be not applicable, discard the evidence. I have to say that that is just very foreign to my concept of case management post-CJR.

18.  In light of the two broad observations which I have just made, I think that it is plain for today’s purposes the burden is squarely on Vivien to justify why her condition should be upheld, which, as I see it, is a departure from the general practice of the court. She needs to come up with a very good justification.

19.  The main submission made by Mr Paul Shieh, SC, Mr Johnny Ma, SC and Mr James Man who appear for Vivien is that her proposal would ensure the completeness of the evidence to be taken from Mr P at this juncture so as to secure the just resolution of disputes in accordance with the substantive rights of the parties. Her proposal would ensure that if the rejoinder amendments and the latest proposed amendments are indeed allowed, the evidence would be complete. And if the deposition proceeds on the basis of the existing pleadings and then the amendments are allowed and Mr P cannot testify at trial, the deposition will not have covered all the issues on the pleadings and the court will be placed at a disadvantage in adjudicating on all the issues at trial.

20.  On the other hand, if it turns out that the amendments are not allowed and the deposition is admitted into evidence at the trial, one can simply take out the relevant parts and not treat them as part of the evidence at the trial. There will be time and costs wasted, but in return, according to Vivien’s proposal, there will be certainty that the evidence of Mr P will be complete even in the worst case scenario.

21.  I do not consider that to be a good justification.

22.  If the evidence of Mr P is not complete, that would affect not only Vivien but also Angela. As such, there is no readily discernible or apparent injustice or unfairness as between the parties. It is not ideal or not perfect for the evidence to be incomplete. But the critical question for today, as I see it, is whether the incompleteness would hinder the court’s ability to resolve the case by reference to the substantive rights and obligations of the parties or whether it would lead to any unfairness to Vivien. At this stage, I do not see how that incompleteness would have that effect.

23.  Vivien, in order to succeed today, really needs to point to some prejudice that she may suffer if the deposition is taken without regard to the amendments. As submitted by Mr Benjamin Yu, SC, who appears with Mr Bernard Man, SC and Mr Danny Tang for Angela, Vivien has not identified any prejudice apart from saying that the evidence of Mr P will be incomplete.

24.  In fact, if one thinks about it, the prejudice, if any, would be more to Angela because Mr P is one of her witnesses and Angela will not be able to tender him to speak to the new pleas.

25.  Once you take a step back now and look at the two options, Angela’s proposal is in accordance with the normal way in which we do things in civil litigation, but it has the disadvantage that where the worst case scenario materialises, the evidence of Mr P may not be full. But then there is no unfairness as between the parties as both parties will face the same consequence. Vivien’s proposal requires the court to act on a hypothetical basis and to spend time and resources that may ultimately be wasted.

26.  From a case management perspective and as a matter of justice between the parties, I consider that we should take the former course of action.

Conclusion

27.  I therefore make the order in terms of Angela’s proposed directions, as amended, as follows:

(1)  Mr P be examined on oath before the Hon Tsui J upon the terms set out in the Appendix hereto on 3 November 2025 (with 3 days reserved, and to begin at 10.30am on each day). The examination be held in chambers (open to public). Any party who wishes to vary this part of the order should apply at least 28 days before the hearing.

(2)  The deposition of Mr P taken at the examination pursuant to this Order be filed in the Registry and that office copies thereof may be read and given in evidence at the trial of these proceedings upon further proof of the absence of Mr P by way of an affidavit of Angela’s solicitor.

(3)  Leave be granted to Vivien to amend her re-amended defence filed herein as per the draft re-re-amended defence annexed to the latest amendment summons, and to file and serve her re-re-amended defence within 7 days from the date thereof.

(4)  Angela do have leave to file and serve a re-re-re-amended reply, defence to counterclaim and counterclaim to counterclaim setting out its consequential amendments (if any) within 35 days thereafter.

(5)  Vivien do have leave to (a) amend the amended rejoinder in the manner marked in green as per the draft (save and except paras 16.3 and 16.4A thereof) annexed to the latest amendment summons and (b) make consequential amendments to the amended rejoinder upon the amendments filed in para (4) above within 28 days thereafter.[1]

(6)  The latest amendment summons be adjourned for substantive arguments regarding paras 16.3 and 16.4A of the draft re-amended rejoinder annexed thereto before the Hon Tsui J, with 3 hours reserved, on 24 November 2025 at 10am.

(7)  The parties shall liaise with each other on the proposed directions for the deposition and shall report to the court within 14 days from today.

(8)  Costs of the deposition summons and of the examination be in the cause.[2]

(9)  Costs of the latest amendment summons be reserved.

Mr Benjamin Yu, SC, Mr Bernard Man, SC and Mr Danny Tang, instructed by DLA Piper Hong Kong, for the plaintiff

Mr Paul Shieh, SC, Mr Johnny Ma, SC and Mr James Man, instructed by Anthony Siu & Co, for the defendant

Appendix

1.  Subject to the terms of this Order and such further or other directions as the Hon Tsui J (“Deposition Judge”) may give as she thinks fit, Order 39 rules 4 to 5, 7 to 11 of the Rules of the High Court (Cap. 4A) shall apply to the examination of Mr P before the Deposition Judge as if the reference to “the examiner” therein are deemed to be the Deposition Judge.

2.  If any person being examined before the Deposition Judge objects to answer any question put to him, or if objection is taken to any such questions, the Deposition Judge shall have the power and discretion to rule thereon forthwith or defer the ruling to and until trial.

3.  The examination shall be taken down by livenote transcription to be arranged by the parties.

4.  Mr P shall, upon the completion of the examination, sign the livenote transcription which shall stand as his deposition.

HCAP 10/2020

[2025] HKCFI 1615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 10 OF 2020

________________________

________________________

________________________

________________________

D E C I S I O N

________________________

INTRODUCTION

1.  This probate action concerns the estate of the late Madam Yang Foo-Oi. The two protagonists are her two daughters, Angela and Vivien, the plaintiff and the defendant, respectively.

2.  Angela seeks to propound the will executed by her mother on 15 February 2008 (“the 2008 will”) which left all of the mother’s assets to Angela and appointed her as the sole executrix.

3.  Vivien, on the other hand, seeks to propound an earlier will made by the mother dated 27 October 2004 (“the 2004 will”) under which there would be an equal division of assets between the two daughters, and Vivien would be appointed as a co-executrix.

4.  Apart from the 2004 will and the 2008 will, there are three other testamentary dispositions dated 11 April 2005, 3 December 2005 and 2 December 2007. I shall call them “the 2005 codicils” and “the 2007 codicil” below.

5.  The mother passed away in February 2020. Angela commenced the present action about one month later. The case was assigned to Mr Justice Wilson Chan. At the first case management conference in April 2023, the judge gave a series of directions concerning, among other things, amended pleadings. Leave was granted to set the case down for a 30-day trial commencing on 2 September this year.

Bases of Vivien’s adjournment application

6.  Before the court today is Vivien’s application taken out by summons dated 2 December 2024 to adjourn the trial. Vivien puts forward two bases in support of the adjournment application.

7.  The primary basis is that there are outstanding appeals and outstanding leave to appeal applications, which are all yet to be heard or dealt with by the Court of Appeal. The outcome of these appeals and leave applications, Vivien contends, would have a significant impact upon the evidential scope and the conduct of the trial. These two appeals are CACV 305/2024 and CACV 313/2024. The two leave applications are made in CAMP 143/2024 and CAMP 144/2024.

8.  As things stand now, Vivien says it is uncertain when the appeals and, if leave is granted in the two CAMP proceedings, the further appeals will be heard by the Court of Appeal. It is virtually impossible that they will all be heard and decided before 2 September this year.

9.  With the appeals and the leave applications pending and outstanding, it is Vivien’s submission that a fair trial for the just resolution of the parties’ disputes and ascertaining the mother’s true and last testamentary wish would not be possible if the trial were to proceed as currently scheduled.

10.  The second basis put forward in support of the adjournment application is that the case is not ready for trial as there are a number of interlocutory applications taken out by Vivien just this week. They were all taken out within the extended deadline granted by the court. It is unrealistic to expect that these interlocutory applications can be dealt with in time for the trial. Further, Vivien says that the original estimate of 30 days is plainly inadequate. For this reason, Vivien also says that the trial should be adjourned and be re-fixed.

Angela’s grounds of opposition

11.  Angela opposes the adjournment. Her main contention is twofold.

12.  First, it is incumbent upon Vivien to act with diligence and procure a decision from the Court of Appeal overturning the interlocutory decisions by which she is aggrieved ahead of the trial. The simple fact here is that Vivien has failed to procure the Court of Appeal to overturn these decisions in time, and the trial must proceed.

13.  Second, Angela says that the adjournment application is an undisguised attempt to put off what Vivien obviously perceives to be “the evil day”. Vivien has been trying to raise every issue under the sun. Every point has been taken at every step of the action. Angela says that Vivien’s strategy is to generate as many interlocutory hurdles as possible to topple the timetable and milestone dates, and frustrate the scheduled trial in order to delay and deny Angela’s rightful claim to the mother’s estate. But that is all the more reason why the trial should continue as scheduled, and this dispute be resolved without further delay and further drain of the court’s resources.

The test is “exceptional circumstances”

14.  Trial dates are milestone dates. The court is not to vary such milestone dates unless there are exceptional circumstances: see Order 25, rule 1B(3), Practice Direction 5.2, para 42.

15.  In this application, the burden is squarely on Vivien to make out the exceptional circumstances to justify the moving of the trial dates.

THE OUTSTANDING APPEALS AND THE OUTSTANDING LEAVE APPLICATIONS

16.  The two outstanding appeals and the two outstanding leave to appeal applications have arisen from three interlocutory applications made by Vivien on 4 September 2020, 17 February 2023 and 30 August 2023, respectively.

17.  The first application was a third-party discovery application against Wong Shum & Co, which was the firm that prepared the 2008 will. Mr Wong Tak Shing, a partner of the firm, prepared and attested to the will. Vivien sought documents concerning the preparation of the 2008 will and the preparation of a statutory declaration made by Mr Wong dated 19 November 2014 in relation to the preparation of the 2008 will. It was dismissed by Mr Justice Chan on 20 August 2021: see [2021] HKCFI 2436.

18.  On 3 September 2021, Vivien applied for leave to appeal.

19.  On 19 July 2024, the judge dismissed the leave application: see [2024] HKCFI 1847.

20.  The renewed leave application to the Court of Appeal was lodged on 30 July 2024. That is the subject matter of CAMP 143/2024.

21.  I should add a footnote here. There is a long gap between the date of the leave application and the date of the decision. This came about as when the leave application was issued, Vivien asked the judge to adjourn it until further notice. It was only in 2024 that Vivien invited the judge to rule on it together with another leave application.

22.  The second application was a specific discovery application against Angela seeking documents concerning the preparation and drafting of the 2008 will and its related documents, the statutory declaration of Mr Wong and the 2005 codicils. It was dismissed by Mr Justice Chan on 12 April 2024: see [2024] HKCFI 962.

23.  On 26 April 2024, Vivien applied for leave to appeal.

24.  On 19 July 2024, the judge granted leave to Vivien to appeal on three grounds, which raise the issue of whether Angela is entitled to assert the legal professional privilege belonging to the estate against Vivien in this probate action. This becomes the subject matter of the appeal in CACV 305/2024. I shall call it “the discovery appeal”. The notice of appeal for this appeal was lodged on 30 July 2024.

25.  In the same decision, the judge refused leave on the remaining grounds. The renewed leave application was made to the Court of Appeal on 2 August 2024. This is the subject matter of CAMP 144/2024.

26.  The third application was an application to amend the rejoinder to respond to pleas made by Angela on certain matters which happened after the making of the 2008 will. These matters have been referred to as “the Post-Will Acts” in these proceedings. I shall call this “the rejoinder application”.

27.  The amendments were refused by the judge at the conclusion of the hearing on 19 March 2024, with reasons to be handed down later. The judge also made an order that time be extended for Vivien to take out any application for leave to appeal within 14 days after the delivery of the reasons and time for any notice of appeal (if leave is not required) be extended to also 14 days after the delivery of the reasons.

28.  Reasons were handed down on 19 July 2024: see [2024] HKCFI 1837. The notice of appeal was lodged on 2 August 2024. I shall call this “the rejoinder appeal”. This is the subject matter of CACV 313/2024.

29.  I should add a further footnote here. On 19 August 2024, the judge made a direction to the effect that no leave was required for the rejoinder appeal.

DISCUSSION

30.  The trial dates were fixed in April 2023 when the interlocutory steps were not yet completed. Parties were at the stage of seeking leave to make substantial amendments to pleadings. (The rejoinder application was in fact taken out after the CMC.) Expert directions were not yet given. Witness statements were not yet exchanged.

31.  In that case, the expectation must have been that the parties and the court should progress with the action in such a way to meet the trial dates. When considering the timing for any interlocutory step which they wish to take, they should work backwards from the trial dates in order to accommodate all the steps required within the timeframe. They should proceed with diligence to make sure that everything that needs to be done before the trial are done so that the trial can take place on the scheduled dates.

The approach

32.  Vivien has taken out a number of interlocutory applications in this action which have failed. In this regard, I accept the submission made on behalf of Angela by Mr Benjamin Yu, SC who appears with Mr Bernard Man, SC and Mr Danny Tang, that if Vivien wishes to reverse the unfavourable result in these interlocutory applications, it is incumbent on her to proceed diligently with the appeals and the leave applications and secure a reversal of the unfavourable results before the trial.

33.  However, it is the further submission of Mr Yu that if Vivien fails to secure the reversal before the trial, including a situation where the appeals cannot be heard before the trial, then she cannot rely on the contingency that she may be successful in the appeals to disturb a milestone date, and the trial must proceed.

34.  Insofar as this is supposed to work as an absolute rule, I would reject that submission as overly rigid and mechanistic.

35.  In my view, in the present case, if the appeals are bona fide appeals and are being genuinely pursued by Vivien with reasonable diligence, and if the appeals if successful would have a material or considerable impact on the trial, including the scope of the evidence and the scope of the issues in dispute, and if it is not possible for the appeals to be dealt with before the trial, I would consider that that would arguably amount to exceptional circumstances which would justify the re-fixing of the trial dates. In such circumstances, to require Vivien to proceed with the trial without her appeals being determined would not be fair and would not lead to a just resolution of the disputes in accordance with the substantive rights of the parties.

Has Vivien prosecuted the appeals etc with reasonable diligence?

36.  In considering whether Vivien has acted with diligence in this action, it is proper to look at how she had conducted herself with reference to two periods of time – the first period being the time before August 2024, and the second period starting from August 2024 onwards.

37.  I choose August 2024 as a reference point because this is when all her interlocutory steps before the first instance judge had been completed, and that is when she commenced the appeals and the leave applications at the Court of Appeal level.

38.  In respect of the first period, there is no suggestion that there was any delay in the taking out of the interlocutory applications or in the pursuit of those applications.

39.  I have set out the chronology with respect to the three interlocutory applications in detail above. It can be seen that all the leave to appeal applications were made within the time limits imposed by our rules. All the appeals and renewed leave applications were also lodged within time. I think it can objectively be said that Vivien has prosecuted her interlocutory applications and appeals with reasonable dispatch.

40.  As for the second period, this is when the parties started the correspondence with the Registrar of Civil Appeals with a view to fixing dates for Vivien’s appeals and leave applications.

41.  On the materials before me, I am equally satisfied that Vivien has prosecuted the appeals with reasonable diligence. To illustrate this point, it is necessary to look closely at the timeline of the communication between the parties’ solicitors and the Registrar and to extract some parts of the correspondence in this decision.

42.  The first important letter is the one written by Vivien’s solicitors dated 23 August 2024 with respect to the discovery appeal and the two discovery leave to appeal applications. Paras 2 and 9 of that letter are material and I quote them below:

“2. We write primarily in relation to the Discovery Appeal and the 1^st and 2^nd Discovery Leave Applications (collectively, “the Applications”), to set out the unusual listing considerations in relation to the same and invite the Court to exercise its case management powers under Order 1B, rule 1 to give specific directions as appear best adapted to secure the just, expeditious and economical disposal of the same.” (underline added)

“9. We would also point out that the trial is fixed for September 2025 (presently with 30 days reserved), and that accordingly it is desirable that the Discovery Appeal and the Applications should be determined in sufficient time for the parties to be able to marshall the relevant documents and evidence in time for the trial, and to be aware of the appropriate limits or otherwise on cross examination.” (underline added)

43.  Five days later, the Registrar wrote to the parties directing them to submit a joint letter with regard to a number of matters. The joint letter was sent on 10 September 2024, the deadline imposed by the Registrar. In response, on 23 September 2024, the Registrar gave further directions and requested for another joint letter to be submitted in which the parties should propose directions for “global management” of the two outstanding appeals and the two outstanding leave applications.

44.  A joint letter was sent on 14 October 2024, the deadline set by the Registrar. I quote below para 7 which sets out Angela’s position:

“… Further, in view of the commencement of the trial in September 2025, there is every reason for the two sets of appeals to be determined expeditiously so that there is clarity on discovery and the respective parties’ pleaded positions well in advance to allow parties to properly prepare for the trial, and to prevent any derailment of the trial.”

45.  On 7 November 2024, the Registrar directed that the leave applications be heard on a rolled-up basis, and the two appeals and the two rolled-up leave applications all be heard at the same time.

46.  This was then followed by a number of steps, including those in respect of two new evidence applications taken out by Vivien, the preparation of appeal bundles, the filing of an application to fix a date for the appeal and the filing of a joint checklist. The joint checklist once again referred to the September 2025 trial dates.

47.  Then, on 13 February 2025, the Registrar gave the following directions:

“7. Hearing of the consolidated appeals shall be fixed before any division of the Court of Appeal comprising 3 judges, with 2 days reserved. The dates are to be fixed in consultation with the diaries of no more than 1 leading counsel of each party provided that the appeal hearing shall not be delayed for more than 3 months.” (original underline)

48.  At the end of that written direction, it said:

“For the purpose of compliance of paragraph 7 of the directions hereinabove, please provide me on or before 20 February 2025 with the available dates for your leading counsel for the period from July to December 2025, and send your representative to attend the office of Deputy Clerk of Court (Appeals) ... on 21 February 2025 (Friday) at 3:00 pm for fixing a hearing date of the appeal. …” (original underline and bold)

49.  Upon receiving this letter, on 19 February 2025, Angela’s solicitors wrote back to the Registrar highlighting once again the September 2025 trial dates and pointing out the urgency of the matter, and indicated that they would provide the Registrar with available dates from April 2025 onwards.

50.  On the same day, Vivien’s solicitors did the same thing and wrote:

“The trial for HCAP 10 of 2020 is currently scheduled to commence on 2 September 2025. To help ensure that the appeals are heard well in advance of trial commencement, we will be inviting the Court to fix the hearing of the captioned appeals on available dates starting from April 2025.”

51.  The appeal dates were eventually fixed for 29 and 30 July 2025.

52.  Then, by letter dated 18 March 2025 to the parties, the Court of Appeal, namely Mr Justices Barma, Au and Chow, stated that the listing directions given have caused the court “considerable concerns”, querying:

(1)  whether a two-day hearing would be realistic to deal with all the matters;

(2)  whether it would be realistic or practicable for the same to be resolved or a reasoned judgment given prior to the start date of the trial, given the complexity of the matters to be determined; and

(3)  whether, even if that were possible, it would be practicable for the trial to proceed depending on the outcome of the appeals and the applications.

53.  The latest development is that last week, on 27 March, at a mention hearing before the Court of Appeal, it was directed that the hearing dates of 29 and 30 July 2025 be vacated. No new dates were given. The leave applications were directed to be dealt with on paper, together with the related new evidence applications. The due date for the last round of written submissions for that would be in early May. The Court of Appeal also indicated that it would give directions for the conduct of the appeals after the determination of the leave applications.

54.  I recite the above chronology to show that in what I have referred to as the second period, ie from August 2024 onwards, Vivien’s solicitors have taken reasonable steps to prosecute the appeals and the leave applications. The solicitors for both parties had in fact alerted the Registrar a number of times to the trial dates in September 2025, and impressed upon him in unequivocal terms a number of times that there should be an early date for the appeals and the leave applications.

55.  Given that, I am satisfied that Vivien has indeed been prosecuting the appeals with reasonable dispatch.

56.  Mr Yu, on behalf of Angela, complains that Vivien should have sought directions under para 24 of Practice Direction 4.1 for the appeals to be heard urgently. She did not do so. Having failed to do so, the trial must proceed.

57.  I do not consider that complaint to be well founded.

58.  In the correspondence from August 2024 onwards, it has been consistently and persistently made clear to the Registrar that the appeals should be heard in time before the September trial. The message has been unmistakable that the appeals should be dealt with on an expedited basis. The fact that the procedure under para 24 of Practice Direction 4.1 was not followed does not detract from the fact that in substance the Registrar had been alerted to the need for expedition.

59.  At this juncture, I should point out that Vivien first made the suggestion that the trial be vacated on 19 November 2024. The present summons was taken out on 2 December 2024.

60.  In the circumstances where the request of securing early dates for the appeals might not be entertained, it was reasonable for Vivien to consider other options with respect to the trial and the appeals.

61.  In fact, the materials before me do show that Vivien and her solicitors have been doing two things in parallel from November 2024 onwards. On the one hand, they were trying to secure an early appeal date from the Registrar. On the other hand, they were exploring the possibility of vacating the trial in order to deal with the situation.

Is Vivien making use of the interlocutory applications to delay the trial?

62.  I next turn to the submissions of Angela that Vivien is making use of the multiple interlocutory applications and the appeals to delay the trial. I should say at the outset that if I am able to come to that conclusion that that is indeed Vivien’s intention or motive, what she is doing would amount to abusive conduct. The court should not play into her hands. The trial should proceed as scheduled. However, based on the materials before me, I do not think that I can safely draw that conclusion.

63.  Mr Yu points to the many interlocutory applications taken out by Vivien in this probate action. It is true that Vivien has taken out quite a number of interlocutory applications. It is also true that they have largely been unsuccessful. But I do not consider that solely based on the number of unsuccessful interlocutory applications, I can or should conclude that she is using these applications with the underlying motive to delay the proceedings.

64.  In this regard, Mr Paul Shieh, SC, who appears with Mr Johnny Ma, SC, Mr Alexander Tang and Mr James Man for Vivien, makes the following points:

(1)  Vivien knew nothing about the circumstances leading to and surrounding the preparation and execution of the 2008 will.

(2)  Vivien only learnt of the 2008 will in 2016.

(3)  She only learnt of the 2005 codicils one year after this action began, in August 2021.

(4)  And she only learnt of the 2007 codicil only 3½ years after this action began, in October 2023.

65.  The alleged lack of knowledge on Vivien’s part of the testamentary papers is, I believe, not something that is seriously disputed in this action. Mr Shieh says that not having the knowledge of the testamentary papers, Vivien would have to resort to interlocutory applications to seek materials and information. Hence, the fact that Vivien had sought further information by multiple interlocutory applications is not a matter which by itself can be taken against her.

66.  I accept that submission. That is a matter that I should take into account. In the circumstances, I am unable to draw the inference that the intention or motive behind these interlocutory applications is to derail the trial and to delay the date of judgment. The taking out of the multiple interlocutory applications is equally consistent with an intention to exhaust all means to advance her own case.

67.  On the whole, I am of the view that the appeals and the leave applications are genuinely pursued by Vivien. It is not necessary for me to be drawn into a discussion or evaluation of the likelihood of success of these appeals and applications. It is not suggested that these appeals have no substance at all and are bound to fail. (If that is the case, that would be a weighty factor against adjourning the trial.) In any event, Mr Justice Wilson Chan has granted leave to appeal in respect of the legal professional privilege ground and has confirmed that ground to be reasonably arguable.

Impact of the appeals etc on the trial

68.  As to the impact of the outstanding appeals on the trial, if the appeals are allowed, in my view, it cannot be seriously disputed that it will have a considerable or material impact on the scope of the evidence to be adduced at the trial.

69.  Vivien says that if the discovery is allowed, that would lead to the revelation of highly relevant and material information pertaining to, among other things, Mr Wong’s taking of instructions for drafting the 2008 will, the preparation and drafting process of that will, and the reasons given by the mother to Mr Wong for making the will. The information is currently redacted in Exhibit “CHW-12”. If the information is released, Mr Shieh submits that it is going to provide a fertile ground of investigation and cross-examination at trial.

70.  Vivien further says that if the rejoinder appeal is allowed, new issues regarding the Post-Will Acts will be raised and new evidence will be adduced.

Exceptional circumstances

71.  As things stand, the original appeal dates in July this year having been vacated, I agree with Mr Shieh’s submission that taking a realistic view of the matter, it is virtually impossible that the appeals will be heard and decided before 2 September. Hence, we are looking at a situation where if no adjournment is granted, the trial will go ahead with the appeals still outstanding.

72.  In this connection, Mr Yu has reminded me that the usual approach to be adopted in this kind of situation is that the mere fact that there exist unresolved interlocutory appeals do not count as an exceptional circumstance which would justify the vacating of a trial: see Daimler AG v Leiduck (No 3) [2013] 5 HKC 242 at para 10, citing Wang Din Shin v Nina Kung HCAP 8/1999, 17 March 2005, para 6 in support.

73.  The present case, however, is not a simple case where an interlocutory appeal was lodged just shortly before or during the trial. On the contrary, the appeal process at the Court of Appeal level was commenced as early as in August 2024.

74.  The timeline of events shows that Vivien has been pursuing these appeals and leave applications with reasonable diligence. Through no fault on her part, it is now extremely unlikely that the appeals will be disposed of before 2 September. I consider that the present situation amounts to an exceptional circumstance which would justify the moving of the trial dates.

Discretion

75.  In my exercise of the discretion, there is still another important consideration which I need to take into account. Angela points out that many of her witnesses are of advanced age, such as herself who is now 74 years old and Mr David Wong. Mr David Wong is the solicitor who participated in the preparation and execution of some of the Post-Will Acts in 2012 and 2014.

76.  Angela says that any significant delay to the trial would be highly prejudicial to her case if any of her witnesses is no longer around to testify when the trial eventually happens. I consider that this potential prejudice is a legitimate concern. Where the evidence of the witness in question is material, this prejudice would be more serious.

77.  What I need to assess now is to weigh such potential prejudice against the prejudice that may be caused to Vivien if the trial is to proceed when her appeals are still outstanding. In my judgment, when all things are considered, the balance comes down in favour of adjourning the trial.

78.  The risk of losing any witness may be alleviated by re-fixing the trial dates as soon as that is practicable and, if considered appropriate, by the parties applying to take depositions of those witnesses who are considered at most risk of not being around in the future trial.

79.  For the above reasons, I would exercise my discretion to vacate the September trial. It is therefore unnecessary for me to deal with the second basis in support of Vivien’s adjournment application.

ORDERS

80.  I order that the trial presently fixed to commence on 2 September 2025, with 30 days reserved, be adjourned and the trial dates be vacated.

81.  That is the order that I would make. I would not make any order in terms of paras 1(a) and (b) of the summons for the time being, subject to parties’ submissions.

(Submissions re costs)

82.  On costs, I order that the costs of the adjournment application, including any reserved costs, be in the cause of the action.

83.  My reasons are as follows:

(1)  That is the costs order sought in Vivien’s summons.

(2)  To vacate a trial date is not a decision to be made lightly. The court has made that decision after receiving submissions from both sides, both in writing and through oral submissions in today’s hearing.

(3)  I do not accept Mr Shieh’s submission that Angela has been acting unreasonably in resisting the adjournment. In fact, I consider that it is the duty of both parties to put forward all the arguments to assist the court to make the decision as to whether to vacate the trial or not.

(4)  It may be that the appeals will turn out to be unsuccessful. Where that is the case, to ask Angela to bear the costs of today’s hearing, which is what Vivien now asks for, does not seem to me to be right or fair. I consider that the costs of the adjournment summons should be aligned with the costs of the action.

84.  I would grant a certificate for attendance by three counsel.

Mr Benjamin Yu, SC, Mr Bernard Man, SC and Mr Danny Tang, instructed by DLA Piper Hong Kong, for the plaintiff

Mr Paul Shieh, SC, Mr Johnny Ma, SC, Mr Alexander Tang and Mr James Man, instructed by Anthony Siu & Co, for the defendant

HCAP 10/2020

[2024] HKCFI 1847

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 10 OF 2020

________________________

________________________

________________________

____________________

D E C I S I O N

____________________

A.  INTRODUCTION

1.  By the Decision dated 12 April 2024 (“Decision 2”), this court: (1) dismissed most of the requests in the defendant’s (“Vivien”) application for specific discovery by summons dated 17 February 2023 (“Discovery Summons”); and (2) dismissed Vivien’s application for interrogatories by summons dated 22 December 2023 (“Interrogatories Summons”).  Vivien now seeks leave to appeal to the Court of Appeal against Decision 2.

2.  Vivien has invited this court to deal with this application together with her leave application against this court’s decision dated 20 August 2021 (“Decision 1”).

B.  SUMMONS DATED 26 APRIL 2024

3.  By summons dated 26 April 2024 (“Leave Summons 2”), Vivien applies for leave to appeal against Decision 2 on the grounds as per the draft Notice of Appeal (“NoA”) attached to Leave Summons 2.

4.  I shall deal with the grounds in turn.

B1.  Grounds 1, 4 and 6: No LPP belonging to Mother can be asserted by Angela

5.  In gist, Vivien submits it is reasonably arguable that, as a matter of law, where a will is contested in a probate action, the LPP which belongs to the estate should belong equally to parties claiming under the same estate, and thus an executrix under the contested will (in this case, Angela) cannot assert such LPP (which is not litigation privilege enjoyed in her own right) against another executrix under the earlier will (in this case, Vivien).  Vivien goes on to submit that the Practice Note issued by the Law Society in England on 5 September 2023, stating inter alia that “Where the validity of a will is disputed there may be a dispute as to who the personal representatives are. … In those circumstances … it is considered that rival claimants to a grant of representation cannot assert a right to confidentiality or privilege against each other”, is consistent with Vivien’s position.

6.  In answer to the point, Angela submits that the new argument does not assist Vivien.  Vivien is not a beneficiary or executrix under the 2008 Will.  There is no reason why she should be allowed to see privileged materials relating to this contested will: if her challenge fails, she would have no right to see such materials; and if she is allowed to see them simply because she mounts a challenge against that will, then if she turns out to be wrong she would have seen LPP materials which she is not entitled to (and this is irreversible).

7.  In reply, Vivien submits the fact that Vivien is “not a beneficiary or executrix under the 2008 Will” is neither here nor there – it would be wholly arbitrary for Angela to be entitled to assert privilege against Vivien simply because Angela (and not Vivien) happened to be the sole executrix of the subsequent will, and not the prior will, under consideration.

8.  Having considered the rival contentions of the parties, I am of the view that Vivien’s argument has reasonable prospects of success.  Accordingly, I grant Vivien leave to appeal on Grounds 1, 4 and 6 of the NoA.

B2.  Ground 2: Classes 1 to 4 (see Decision 2 §§51-72)

9.  For the reasons set out in paragraphs 19 to 29 of the Plaintiff’s Written Submissions dated 19 June 2024, I am not satisfied that Vivien can demonstrate reasonable prospects of success in relation to Ground 2 of the NoA.  Accordingly, I refuse Vivien leave to appeal on Ground 2 of the NoA.

B3.  Ground 3: Alleged lack of evidence in support of LPP (see Decision 2 §§77-79)

10.  For the reasons set out in paragraphs 31 to 37 of the Plaintiff’s Written Submissions dated 19 June 2024, I am not satisfied that Vivien can demonstrate reasonable prospects of success in relation to Ground 3 of the NoA.  Accordingly, I refuse Vivien leave to appeal on Ground 3 of the NoA.

B4.  Ground 5: Alleged waiver of privilege re Class 5 (see Decision 2 §§80-81)

11.  For the reasons set out in paragraphs 39 and 40 of the Plaintiff’s Written Submissions dated 19 June 2024, I am not satisfied that Vivien can demonstrate reasonable prospects of success in relation to Ground 5 of the NoA.  Accordingly, I refuse Vivien leave to appeal on Ground 5 of the NoA.

B5.  Ground 7: Class 8 and Interrogatories Summons (see Decision 2 §§107-122)

12.  For the reasons set out in paragraphs 42 to 47 of the Plaintiff’s Written Submissions dated 19 June 2024, I am not satisfied that Vivien can demonstrate reasonable prospects of success in relation to Ground 7 of the NoA.  Accordingly, I refuse Vivien leave to appeal on Ground 7 of the NoA.

C.  SUMMONS DATED 3 SEPTEMBER 2021

13.  By summons dated 3 September 2021 (“Leave Summons 1”), Vivien applies for leave to appeal against Decision 1 on the grounds as per the draft Notice of Appeal attached to Leave Summons 1.

14.  Angela submits that as Vivien has filed her Defence and Counterclaim in this action, the proposed appeal against Decision 1 is plainly academic.  Leave should be refused on this basis alone.

15.  Vivien’s application was for discovery (and provision of information, which is now abandoned) against a third party before the filing of her Defence.  At Decision 1 §144, the court dismissed the application and ordered Vivien to file her Defence within 14 days.  The timing of the application is a key feature of the application, and one of the grounds of this court in dismissing Vivien’s application is that the application is premature before the filing of her Defence: Decision 1 §§35-49.

16.  Thus, having now filed her Defence and Counterclaim, Vivien cannot in her appeal simply seek an order that discovery be provided now, after she has filed her Defence.  This would turn the application into an entirely different one, which was not the one made before this court.

17.  Further, the issues in this probate action were only crystallised after the close of pleadings, when Vivien filed her Amended Rejoinder, Reply to Defence to Counterclaim and Defence to Counterclaim to Counterclaim on 26 March 2024.  What would be necessary in terms of discovery for the purpose of disposing fairly of the cause or matter in issue and for saving costs obviously by then took an entirely different shape.  The proposed appeal by Vivien is clearly academic also for this reason.

18.  Accordingly, I refuse Vivien leave to appeal against Decision 1.

19.  I make the following order as to costs:

(1)  The costs of and occasioned by Leave Summons 1 be paid forthwith by the defendant to the plaintiff.

(2)  The costs of and occasioned by Leave Summons 2 insofar as they relate to Grounds 1, 4 and 6 of the NoA be in the cause of the appeal.

(3)  The costs of and occasioned by Leave Summons 2 insofar as they relate to Grounds 2, 3, 5 and 7 of the NoA be paid forthwith by the defendant to the plaintiff.

20.  The above costs are to be taxed on the party and party basis if not agreed (with a certificate for 3 counsel).

HCAP 10/2020

[2024] HKCFI 1837

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 10 OF 2020

________________________

________________________

________________________

________________________

REASONS FOR DECISION

________________________

1.  At the end of the 2-day hearing on 19 March 2024, I pronounced the following decision:

(1)  I agree with the plaintiff’s (“Angela”) submissions as follows:

(a)  That the Opposed Amendments in relation to the 1739 Action, the Divorce and concealment of documents are to be disallowed on the grounds of collateral attack.

(b)  That the Opposed Amendments in relation to the Gift Documents are to be disallowed on the ground of the defendant (“Vivien”) adopting a position inconsistent with the position adopted in previous proceedings.

(c)  That any plea pursuant to Angela’s Agenda should be disallowed.

(d)  That part of the Opposed Amendments should be disallowed on the ground that they irrelevantly plead reasons to challenge the validity of Mother’s inter vivos transactions.

(e)  That part of the Opposed Amendments should be disallowed for lack of particularity.

(2)  As a substantial number of pleas are disallowed as stated above, leave to introduce the Opposed Amendments should be refused.

(3)  The court will not re-formulate defective proposed amendments for the applicant and it is incumbent on Vivien to make a fresh application for leave to amend (if saw fit).

(4)  For the above reasons, I would disallow the Opposed Amendments.  Vivien is granted leave to file and serve an Amended Rejoinder with the Opposed Amendments removed.

2.  Reasons for my decision were reserved, which I now give.

A.  INTRODUCTION

3.  By summons dated 30 August 2023, Vivien applies for leave to amend her Rejoinder (“Rejoinder Summons”). 

4.  The paragraphs in the latest draft Amended Rejoinder (“DAR”) that Angela opposes (“Opposed Amendments”) and the brief grounds of objections are set out in Angela’s solicitors’ letter dated 14 November 2023 (“Objections”).

5.  This is a probate action in respect of the estate of Madam Yang Foo-Oi (“Mother”).  Angela, the elder daughter, seeks to propound Mother’s will executed on 15 February 2008 (“2008 Will”), which left all of Mother’s assets to Angela and appointed her as the sole executrix.  Vivien, the younger daughter, seeks to propound instead Mother’s will dated 27 October 2004 (“2004 Will”) under which there would be an equal division of assets and Vivien would be appointed as a co-executrix.

6.  Angela’s opposition to the Rejoinder Summons can be summarised as follows:

(1)  There are extensive pleas in the DAR consisting of steps allegedly taken by Angela after the execution of the 2008 Will to further “Angela’s Agenda”, viz for the purpose of obtaining greater influence or control over Nan Fung and/or obtaining a greater share of Mother’s and Dr Chen Din Hwa’s (“Father”) assets than Vivien.  They contain serious allegations of misconduct against Angela, including repeated allegations of fraud, undue influence and/or breach of fiduciary duties in respect of various post-2008 Will transactions.  Angela submits that these are irrelevant responses to the post-2008 Will acts of Mother on which Angela relies.  Angela relies on the post-2008 Will acts to demonstrate that Mother had repeatedly exhibited valid intent to disinherit Vivien after the 2008 Will.  But Vivien’s miscellany of serious allegations in the opposed pleas challenging the validity of various transactions simply do not impact on the validity of Mother’s expression of intent.  They are scandalous and liable to be struck out.  They are thinly veiled attempts by Vivien to attack the validity of the post-2008 transactions which are not within the scope of this action.

(2)  Further or alternatively, some of these transactions/judgments (or the allegations attacking them) had already been determined by previous courts.  Therefore, Vivien’s pleas amount to a collateral attack abuse.

(3)  Moreover, specifically in relation to the Gift Documents, Vivien is adopting a stance which is inconsistent to the one adopted in previous proceedings, which amounts to an abuse.

(4)  Separately, there are various paragraphs (mainly relating to the 50/50 Agreement) which lack proper particulars such that Angela does not know the case that she is expected to meet.

7.  Angela submits that the Opposed Amendments, if allowed, would introduce further irrelevant evidence relating to events post 2008 Will through the Amended Rejoinder.  There will be serious implications on the scope of discovery and the evidence to be given at trial.  A disciplined approach would have to be applied to prevent further abusive and wanton expansion of the issues and evidence to be received at trial, which would only cause wastage, vexation and delay.

B.  RELEVANT FACTUALBACKGROUND

8.  In January 2003, Father told Mother that he had transferred approximately HK$18 billion worth of assets to Vivien (“CHL Exercise”) which, as it transpired, was an exercise to avoid potential estate duty.

9.  After discussions in 2003 and 2004, Father decided to distribute to Angela and Vivien each HK$4.5 billion worth of assets, out of which each of them was to transfer HK$1.5 billion worth of assets to Mother.  Disputes later arose as to Vivien’s performance of her transfer obligations.

10.  Between 2003 and 2006, negotiations took place between Angela and Vivien over a proposed agreement (“50/50 Agreement”) governing the distribution of Father’s assets under the framework of the Equality Principle.  But those negotiations fell apart.

11.  It is Angela’s case that in the course of the negotiation, Vivien repeatedly claimed that the substratum of the 50/50 Agreement had gone after the reversal of the CHL Exercise, a position not shared by Mother.  Further, Vivien had insisted on limited disclosure of past gifts from Father, and the inclusion of a widely drafted waiver clause releasing Angela’s and Vivien’s rights in relation to Father’s assets, even though the 50/50 Agreement was intended to address the distribution of Father’s assets generally, past and future.

12.  Vivien challenges the 2008 Will on the following grounds:

(1)  Mother lack testamentary capacity to make the 2008 Will because she allegedly operated under mistaken and delusional beliefs.[1]

(2)  There was no knowledge and approval because of the alleged suspicious circumstances under which the 2008 Will was executed.[2]

(3)  The 2008 Will was procured by undue influence,[3] fraud,[4] and/or fraudulent calumny[5] on the part of Angela.

13.  Angela denies these allegations.  Furthermore, Angela pleads that Mother made the 2008 Will in place of the 2004 Will because (1) Vivien did improper things which disturbed the equality of the asset distribution by Father amongst Angela and Vivien; (2) Vivien told Mother previously that she did not want any of Madam Yang’s assets; and (3) Vivien was not willing to sign the 50/50 Agreement.^[6]

14.  Among other things, Angela relies on Mother’s execution of legal or formal documents between 2008 and 2014 as pleaded in the Re-Re-Amended Reply (“RRAR”) §§108-127 (“Post Will Acts”), in particular the statements that she made either in the documents themselves or immediately prior to their execution in medical examinations (“Mother’s Statements”).  Angela submits these statements have significant probative value in showing Mother’s testamentary capacity to make, and her knowledge and approval of, the 2008 Will (“Relevant Issues”).  Mother’s Statements represent Mother’s true view all along, and are evidence of Mother’s intention at the time of the 2008 Will.

15.  Mother’s Statements include the following:

(1)  In a medical examination on 16 June 2008 for the purpose of executing documents for the Intended MIP Proceedings,[7] Mother stated that she believed Vivien had done improper things which affected the equality of the wealth distribution.[8]

(2)  On 26 June 2008, Mother executed a trust deed appointing Angela as trustee of Mother’s assets (“2008 Trust Deed”), and stated in the medical examination prior to execution her reasons for changing her will in 2008, namely Vivien had taken more assets from Father, she had told Mother that she did not want Mother’s assets, and Vivien was crooked in her mind.[9]

(3)  On 17 September 2008, Mother executed a Chinese declaration (“Will Declaration”) in which she reaffirmed the 2008 Will and her testamentary wishes, and stated, inter alia, she was not bequeathing any asset to Vivien because she had indicated that she did not want Mother’s assets.[10]

(4)  On 12 December 2012, Mother executed various documents (“Gift Documents”) consisting of (i) a Deed of Gift; (ii) a Gift Declaration; and (iii) an Irrevocable Power of Attorney (“2012 POA”), which effect was to gift all of Mother’s assets to Angela.  In the Gift Declaration, Mother declared that she made the gift to achieve early completion of the bequest under the 2008 Will, and to avoid unnecessary disputes.[11]

(5)  On 2 May 2014, Mother executed a Chinese declaration in which she reaffirmed her wish not to bequeath anything to Vivien and her offspring (“2014 Solemn Declaration”).[12]

16.  Angela also pleaded Mother’s commencement of HCA 1739/2010 (“HCA 1739”) against Vivien in November 2010,^[13] which evidenced and confirmed the deterioration of the relationship between Mother and Vivien.  In HCA 1739, Mother claimed, inter alia, that Vivien had taken unfair advantage of her, and sought rescission of various arrangements entered into with Vivien.^[14]  Mother’s claims were upheld by Anthony Chan J’s Judgment dated 29 November 2016 (“HCA Judgment”).  Vivien’s appeal from the HCA Judgment has been dismissed by the Court of Appeal (“CA”) in a Judgment dated 30 June 2021 in [2021] HKCA 941 (“CA Judgment”).  The CA further refused leave to appeal to the CFA by way of judgment dated 23 November 2022 (“CA Leave Judgment”).

17.  By summons filed on 8 November 2017 in HCA 1739 (“Locus Summons”), Vivien sought to overturn the HCA Judgment on the ground that Mother’s claims in HCA 1739 had been assigned to Angela pursuant to the Gift Documents.  By Judgment dated 20 January 2020 in [2020] HKCFI 235 (“Locus Judgment”), Anthony Chan J dismissed Vivien’s summons. In particular, in rejecting Vivien’s proposal that a conditional judgment be granted so as to provide for the possibility that Vivien will challenge the validity of the documents in the future, Anthony Chan J stated that there was no evidence that the validity of the Gift Declaration and the Deed of Gift were tainted.

C.  RELEVANT LEGAL PRINCIPLES

C1.  Amendment of pleadings

18.  The legal principles governing applications for the amendment of pleadings have been summarised by Lord Brandon in Ketteman v Hansel Properties Ltd [1987] 1 AC 189, 212F-H as follows:

(1)  All such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided.

(2)  Amendments should not be refused solely because they have been made necessary by the honest fault or mistake of the party applying for leave to make them: it is not the function of the court to punish parties for mistakes which they have made in the conduct of their cases by deciding otherwise than in accordance with their rights.

(3)  However blameworthy (short of bad faith) may have been a party’s failure to plead the subject matter of a proposed amendment earlier, and however late the application for leave to make such amendment may have been, the application should, in general, be allowed, provided that allowing it will not prejudice the other party.

(4)  There is no injustice to the other party if he can be compensated by appropriate orders as to costs.

19.  Obviously, leave to amend should be refused if the proposed amendments are bound to fail, and hence liable to be struck out: see Natamon Protpakorn v Citibank NA [2009] 1 HKLRD 455, §25 (Cheung JA). 

C2.  Irrelevant allegation of serious misconduct

20.  In this respect, an allegation of serious misconduct (such as of dishonesty, fraud or breach of duty) for which no relief is sought is unnecessary and scandalous and is liable to be struck out: Wong Luen Hang v Chan Yuk Lung, HCA 2654/2007 (unrep, 29/08/2008), §§13, 16-18 (Fung J); Tasty Catering Group Ltd v Cheng Hung Kit[2020] HKCFI 2477 §17, affirmed by the CA in [2021] HKCA 1211 at §§5, 10. 

21.  In as early as Brooking v Maudslay (1886) 55 LT 343, Kay J explained at 343:

“May a man in his pleadings say ‘the defendant has acted like a rogue, but I ask no relief on that ground?’ That would be an unnecessary statement and scandalous, of course, because it would affect the character of the defendant.”

22.  Similarly, if wholly irrelevant matter be set out in such a way that a party must plead to it, and so raise irrelevant issues which may involve expense, trouble, and delay, then the irrelevant matter will be struck out, as it will prejudice the fair trial of the action: Wong Luen Hang, Supra §14.

C3.  Lack of particulars

23.  Where a party is seeking the court’s indulgence to amend his pleadings, the pleadings must be fully particularised.  The following statement of principle by Fuad JA in Perak Pioneer Ltd v Carrian Holdings Ltd, CACV 59/1985 (unrep, 13/06/1985) at page 5 is apt:

“As regards particulars, in my view, it is no answer to an objection that a proposed amendment lacks particulars, to say that particulars can later be given. Of course, if a pleading lacks particulars, particulars can be asked for in the usual way and ordered by the Court if necessary, but where an amendment is applied for it would be an unusual case where the Court would consider it appropriate to allow an amendment to be made which lacks particularity, and might cause embarrassment.”

24.  I agree with Angela’s submission that the reference to the possibility of post-amendment request for further particulars in Vigers Hong Kong Ltd (in Creditors’ Voluntary Liquidation) v Michael Andrew Barclay Binney[2019] HKCFI 461 at §28(d) cannot be read as introducing a lower test for sufficiency of particulars when an amendment is sought, which would be wholly inconsistent with Perak, Ibid.

C4.  Collateral attack

25.  It is an abuse for a party to initiate legal proceedings which constitute a collateral attack upon a final decision made against that party by another court of competent jurisdiction where the party had full opportunity to contest the decision, if the pursuit of the same issue in the new proceedings would result in manifest unfairness or bring the administration of justice into disrepute amongst right-thinking people: China North Industries Investment Ltd v Chum [2010] 5 HKLRD 1, §§57-58 (Stock JA, as he then was).

26.  The court should not be unduly prescriptive about the circumstances in which abuse of process may be found to arise: Tinkler v Ferguson [2020] 4 WLR 89, §35 (Nicklin J).

27.  Abuse can be found even where the parties to the subsequent proceedings are not the same and cannot be described as privies of the original parties: China North, Supra §52.  The fact that the parties are not identical is not determinative.  What is required is “a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party … The court should not adopt a formulaic approach to the broad, merits-based assessment that is required when considering whether the subsequent proceedings are Henderson abusive”: Tinkler, Supra §40.

28.  Bringing the administration of justice into disrepute would be constituted if there is a claim which has the effect of relitigating a cause which in substance had already been lost in another court of competent jurisdiction: China North, Supra §70.

29.  The correctness of the decision (against which the collateral attack is made) is not relevant and it binds the parties until such time as it is set aside on appeal: China North, Supra§48.

30.  Duplicative litigation not only causes prejudice to the defendant, in terms of wasted time, costs or effort and the risk of dispersal of evidence, it is also contrary to the public interest generally to allow the risk of inconsistent findings which arise when different courts at different times are required to examine essentially the same factual dispute.  The position is to be judged objectively: the particular circumstances of the parties will generally be irrelevant; hence the need for special circumstances if the full rigour of the rule is to be alleviated: Tinkler, Supra §37.

31.  A caveat in the judgment of the first action that it would not “trespass” upon issue in future actions will not, without more, prevent a finding of abuse: Tinkler, Supra §69.  Laying one’s cards clearly on the table, such that the parties and the court is warned that another action on the same issue is or may be in the pipeline, will not necessarily prevent an abuse: Tinkler, Supra §§86-87.

32.  The issue of whether there is an abuse is a fact-sensitive one in which the court is concerned with balancing the interests not just of the litigants before it, but also other interests involved in the administration of justice: Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72 §83(5) (Ma CJ).

33.  The notion that res judicata does not apply in the context of probate actions is incorrect.  Even in matrimonial cases, if a party has tried to establish a matrimonial offence and then fails in the High Court, then the High Court would “as a rule” not allow the defending party to be vexed twice: Thompson v Thompson [1957] P 19, at page 30.

34.  Even where the law on res judicata and abuse are relaxed in the family context, if the court is satisfied that there has already been a full and proper enquiry in the previous litigation, it will often hold that it is not necessary to hold another enquiry all over again, but if the court is not so satisfied, it has a right and a duty to inquire into it afresh: Thompson, Ibid, page 29.

C5.  Inconsistent positions

35.  It is also an abuse of process for a party, fully knowing the facts, to advance a claim diametrically opposed to the position taken in an earlier set of proceedings.  The abuse lies in its effect on the integrity of the administration of justice, which would be no less compromised even if the previous inconsistent allegation was not followed through to judgment: Chu Yue Bun v Lai Shiu Woon[2021] HKCA 1929 §35(2) (Kwan VP).

36.  In Re Shun Tak Holdings Ltd [2009] 5 HKLRD 743, the petitioners had earlier brought proceedings in Macau to challenge the validity of certain shareholding in a company, but later presented an unfair prejudice petition in Hong Kong on the basis that such shareholding was valid.  Kwan J (as she then was) held that it was an abuse of process for the petitioners to adopt such an inconsistent stance and struck out the claim (§§83-90).

37.  The abuse lies in its effect on the integrity of the administration of justice: Chan Chun Chuen v Kao, Lee & Yip, HCA 597/2015 (unrep, 12/10/2017), §§30, 78.  It is not only founded on election.

C6.  Probate undue influence

38.  As explained below, of particular relevance to this application is a proper understanding of undue influence in the context of probate. 

39.  It is well established that there is a different test for undue influence in probate from that for inter vivos or lifetime transactions. In probate, undue influence means influence exercised either by actual coercion, in the sense that the testator’s will must be overborne, or by fraud: Theobald on Wills (19^th edn, 2021) §§4-058, 4-059.

40.  The relevant principles for probate undue influence are summarised in Re Edwards [2007] WTLR 1387 (Ch) §47 (Lewison J) as follows:

“(i) In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;

(ii) Whether undue influence has procured the execution of a will is therefore a question of fact;

(iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition;

(iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud;

(v) Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator's free judgment, discretion or wishes, is enough to amount to coercion in this sense;

(vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’ sake to do anything. A ‘drip drip’ approach may be highly effective in sapping the will …” (Emphasis supplied)

41.  The differences between equitable undue influence (governing lifetime transactions) and probate undue influence are as follows:

(1)  Whereas lifetime undue influence may be established where the defendant acted unconscionably by abusing his position of influence over the complainant to obtain an advantage for himself, for conduct to amount to probate undue influence, even if the testator has been persuaded by conduct which may be condemned and disapproved of, that does not amount to undue influence in the absence of coercion.

(2)  That is why in a probate action the court will not hear a whole lifetime’s dispute as to whether a sibling had always been scheming or avaricious.

(3)  If the act is shown to be the intention of the testator at the time, then there is no undue influence “however [the intention] had been brought about.”.  Contra lifetime undue influence, if an intention was brought about by unconscientious exploitation of undue influence over the complainant, that will amount to lifetime undue influence although there was no coercion.

(4)  Though you may condemn the person who has endeavoured to persuade and has succeeded in persuading the testator to adopt that view – still it is not undue influence.

(5)  A defendant who, without using coercion, engages in manipulative conduct that is successful will not be found to have exercised undue influence sufficient to vitiate a will.

(6)  Importunity (ie repeated urging), even by a party with unbounded influence, is not enough.

(7)  In probate undue influence the claimant bears a heavy burden, although still on the civil standard, in proving that the execution of a will was induced by undue influence.  Although even probate undue influence is normally proved by inferences, it is not enough to show that the circumstances are consistent with the hypothesis of the will having been obtained by undue influence: it must be shown that the circumstances are inconsistent with a contrary hypothesis.  Hence, a relationship of influence is not sufficient.

(8)  The presumption of undue influence does not apply to probate undue influence.

D.  COLLATERAL ATTACK

42.  This ground is relevant to the pleas in the DAR concerning (1) the divorce between Father and Mother; (2) HCA 1739; and (3) the allegation of concealment of a number of documents.

D1.  HCA 1739

43.  Angela complains that the Opposed Amendments amount to a collateral attack on the HCA Judgment and the CA Judgment.  The complaints about HCA 1739 lie at the extreme end of collateral attack.

44.  In HCA 1739, Vivien was a party; and Angela was a witness.  Vivien alleged that HCA 1739 was commenced by Mother under Angela’s undue influence and manipulation (which was specifically denied by Mother): see Vivien’s Witness Statement in HCA 1739 §8, where Vivien stated as follows:

“As I shall elaborate further, I have good reason to believe that (1) it is due to the undue influence of [Angela] that [Mother] has commenced this action against me and has made the unfounded allegations in her Statement of Claim against me; and (2) in bringing this action [Mother] is being manipulated and used by [Angela] for [Angela]’s own ends, namely, to extract or to seek leverage to extract a larger share of the estate of [Father]. …” (Emphasis supplied)

45.  Vivien had every opportunity to, and did, contend that HCA 1739 was a result of lifetime undue influence exerted by Angela on Mother.  Vivien could have sought third party discovery against Angela but she did not.

46.  The allegation that Angela procured Mother to put forth a false case was rejected by Anthony Chan J in the HCA Judgment at §72, after Vivien had decided not to put the contention to Angela.

47.  Vivien submits the finding only related to “Angela procured Mother to engineer a false case” and not “undue influence”.  However:

(1)  Vivien’s case was that Mother was unduly influenced by Angela to commence HCA 1739, and the purpose was to assist Angela to get more assets because of Mother’s mistaken belief of “unfairness”: see paragraph 44 above.

(2)  As put by Vivien’s counsel in his oral submission: “influenced by Angela in seizing upon something… , and in fact this is a false case”.

(3)  This was clearly the case that Anthony Chan J rejected: “the mother, under the influence of Angela, engineered a false case”.  See also Angela’s counsel’s description of the point: “effectively what my learned friend would be saying is… the mother has made false evidence because she has been influenced in obviously a very improper way by [Angela]”.

(4)  Anthony Chan J was clearly referring to the same allegation, but just putting it in different terms.

48.  Given Anthony Chan J’s query as to whether the contention should be put, clearly he thought there was an issue which required determination.  It was his discretion as to the extent of cross-examination, as a detailed examination of every aspect of the family history was disproportionate.

49.  In these circumstances, it is clear that if Vivien were to say against Mother’s estate that HCA 1739 was invalidly initiated or pursued because of Angela’s undue influence (lifetime or probate), surely she would be precluded from doing so, on cause of action estoppel and/or issue estoppel.

50.  It is likewise impermissible collateral attack to seek to litigate the issue here (in a probate action concerning Mother’s estate) against Angela (who had given evidence in HCA 1739).

D2. The Divorce

51.  The Divorce was a settlement approved both by the Mental Health Court (for Father), and the Family Court.  The Family Court had a statutory inquisitorial function.  The Mental Health Court would have ensured that Father’s estate was protected, such that if Mother did not validly initiate the proceedings, neither the decree nor the monetary settlement would have been approved.

52.  The divorce decree was a judgment in rem.  It binds the world.

53.  Father’s Committee was a party.  Vivien, if she were serious about the idea that the Mother did not validly commence the divorce proceedings, could have insisted, as a relative, on the Father’s Committee to take action.

54.  Both the divorce decree and the monetary order were judgments by the Family Court.  Although there was an agreement, the Family Court was exercising its statutory function in granting the order.  The Family Court did not just follow the parties’ agreement.  See Hyman v Hyman[1929] AC 601, at 608 & 614 (Lord Hailsham LC), 629 (Lord Atkin).

55.  In fact, Vivien had contended that the divorce was procured by lifetime undue influence by Angela on Mother.  It was Vivien’s case in both HCA 1739 and the Divorce Petition (in which she had provided witness statements) that the Divorce Proceedings were brought by Mother under Angela’s undue influence.  Vivien’s counsel at this hearing has not disagreed with this.

56.  There is no basis to say that these allegations by Vivien had not been considered.

57.  It would bring the administration of justice into disrepute for this to be relitigated again. 

D3.  Allegations of concealment of documents

58.  The CA and Anthony Chan J have already adjudicated these issues.  DAR §§56.4, 56.6 and 56.7 amount to a collateral attack on the findings made in the Locus Judgment, CA Judgment and the CA Leave Judgment, in which the documents identified therein were held not to have been concealed by Angela.  Specifically:

(1)  DAR §56.4 alleges that Angela concealed the “Alleged Deed of Trust”.  In CA Judgment §73, the CA specifically found that Angela had not deliberately concealed the 2008 Trust Deed and the Trust documents.  This finding was repeated in the CA Leave Judgment §68.

(2)  DAR §§56.6 alleges that Angela concealed the “Alleged Transfer Documents”, “Alleged Deed of Gift”, “Alleged Gift Declaration”, “Alleged 2012 POA” and “Alleged Deed of Assignment”.  In Locus Judgment §198, Anthony Chan J rejected the allegation that Angela had concealed the Gift Documents.

59.  Deletion of DAR §56.7 (which is what Vivien’s counsel indicated in his oral submission) does not solve the problem.  It makes the situation worse.  For an allegation of “concealment” to be viable or comprehensible, there must be an allegation that there was a time when a document ought to have been disclosed.  Vivien’s own plea in DAR §56.7 is that the documents identified in DAR §§56.1 to 56.6 should have been disclosed in HCA 1739.  The courts have spoken on that allegation.  Now that this plea is abandoned, the plea of concealment does not even make sense.

60.  DAR §56.8 then pleads that the 2011 POAs should have been registered in 2014.  That can hardly support a claim of actual undue influence.

61.  Vivien relies on the case of Schrader v Schrader [2013] WTLR 701 to say that concealment of documents against an opposing party is a factor that can be pleaded from which undue influence can be inferred: see Vivien’s Speaking Note §63.  It does not assist.  Schrader is a case of vastly different facts.  In that case, as one could see from the headnote and §97(ix), the 2006 Will had not been disclosed by Nick until after steps were taken to administer the testatrix’s estate under the 1990 will.  Nick’s explanation was that “he had a thing about wills and had difficulty dealing with them” and that likewise he had not made a will of his own, and this was rejected by the judge: §72.  The present case does not involve anything like that: (1) Angela disclosed in the trial of HCA 1739 (in 2016) the existence of the 2008 Will (but not its contents); (2) Mother died on 18 February 2020, and the affidavit of testamentary script was filed on 16 July 2020. 

E.  INCONSISTENCY WITH POSITION IN PREVIOUS PROCEEDINGS

62.  In HCA 1739, Vivien had caused the Locus Summons to be fully litigated.  On the premise that the Gift Documents were valid, she had caused a 6-day hearing to take place, with Angela giving evidence for 2 days (over and above the time she gave evidence in the main trial of HCA 1739).

63.  It is true that Vivien had said that she might contend the opposite regarding the validity of the Gift Documents in the future.  Yet that does not change the fact that she had insisted on a full hearing of the Locus Summons.  At least in the context of this case, giving notice that you might very well blow hot and cold does not make the conduct less abusive.

64.  Inconsistent position in previous proceedings, even if not followed through to judgment, would amount to abuse.  See Chu Yue Bun, Supra §35(2); Chan Chun Chuen, Supra §30(4).

65.  This is amply justified in principle.  A litigant cannot be allowed to take different positions in different proceedings and force the court and other parties to allow her to try one course first, see what happens, and then try the other.  Even if she did not succeed in getting what she wanted on the first try, she should not be allow to take inconsistent positions simply because it suited her.  That is detrimental to the administration of justice.

66.  Vivien’s counsel says the cases show that there would only be abuse or collateral attack if the plaintiff “knew the full facts”.  He says that Vivien did not know the full facts in the locus hearing regarding the validity of the Deed of Gift.  But Vivien already knew, and stated expressly, that she would challenge the Deed of Gift later.  This is not a case where she did not know enough facts to decide whether to mount a challenge.

F.  IRRELEVANT AND SCANDALOUS ALLEGATIONS

67.  I refer to paragraphs 20 to 22 and 38 to 41 above for the relevant legal principles.

68.  Vivien submits that the post-Will events pleaded in the DAR is to counter the effect of Angela’s pleaded Post Will Acts, and not to directly use the post-Will events to impeach the 2008 Will retrospectively.  As such, it is wrong that Vivien has to satisfy the more stringent test of “probate” undue influence as opposed to the lesser standard of undue influence for inter vivos transactions. 

69.  I do not agree with Vivien’s submissions.  Angela submits that the relevance of the Post Will Acts was the valid exhibition of Mother’s intent, to support Angela’s case of capacity and knowledge and approval. 

70.  Plainly, it cannot be correct that there should be two different tests applicable.  Validity in this context must be validity for the purposes of sustaining a will.  It would be irrelevant to allege matters which would not suffice to invalidate an intent to sustain a will, including:

(1)  She was tired or annoyed.

(2)  There were breaches of fiduciary duty arising from conflict, or preference of personal interest.

(3)  There were circumstances which would suffice for lifetime undue influence, but not probate undue influence, for example, it was because Angela persuaded (though not coerced) Mother to exhibit such intent.

71.  It is immediately obvious that Vivien’s pleas based on the alleged “Angela’s Agenda” are thus irrelevant.

(1)  Whether there was such an agenda does not impact the validity of the exhibition of intent.

(2)  The reliance on this plea to plead acts (as part of Angela’s Agenda) that Angela did not rely on, and Vivien could not rely on to sustain an allegation of probate undue influence is irrelevant.

(3)  It is merely an abusive attempt on the part of Vivien to ventilate a large number of scandalous pleas concerning validity of underlying transactions.

(4)  It follows that all acts which are allegedly done “to obtain influence and control over Nan Fung” or “to obtain greater control over Mother’s assets”, which are referable to the definition of “Angela’s Agenda” in DAR §§16.3 and 17, or to further “Angela’s Agenda”, should be disallowed: ie DAR §§19, 31, 32, 33, 35, 42, 44, 47, 54.1.

72.  Allegations of Angela being a fiduciary and guilty of non-disclosure (DAR §§52-56) are also plainly irrelevant.

(1)  This is particularly so for the allegations of duty of no conflict and to act in best interest of Mother, and breaches of such duties (DAR §§52.1, 52.2, 53.1-53.3).  Vivien’s counsel described these as “the usual fiduciary duties” – but they are not usual duties in the undue influence context.

(2)  As this court observed, only non-disclosure is relevant to the duty of candour even in the lifetime undue influence context (DAR §§52.3, 53.4). 

(3)  It is no answer for Vivien to say these allegations of conflict of interest are relevant to “fairness”.  They are clearly pleaded in the context of an allegation of breach of equitable fiduciary duties.  The court would not allow Vivien to open up all issues under the guise of some vague notion of “fairness”.

73.  Equally obvious is the allegation of lifetime undue influence in respect of a vast number of transactions: DAR §17.  Whether they are liable to be set aside on the ground of lifetime undue influence is wholly irrelevant.

74.  More importantly, Vivien has advanced no viable plea of probate undue influence:

(1)  At most, these are just pleas that, on Angela’s persuasion, Angela got Mother into executing a number of transactions and pursuing a number of legal proceedings which were not in her best interest (though in both HCA 1739 and the Divorce, Mother prevailed and was awarded very substantial sums).

(2)  It is not a plea that there was a coercion of the will in any of the events.

(3)  DAR §19 actually plead Mother’s ability to exercise her free will in refusing to sign the MHO affirmation.

75.  The reliance by Vivien on the case of Re Lo Siu Fung[2020] HKCFI 2150 is not well founded. 

(1)  That is a strike out case. The absence of plea of “coercion” was bad in form, though a reasonable opportunity to amend was afforded – §25(e).

(2)  But we are here dealing with an application to amend.  The present amendments are the amendments on which leave is sought.

G.  LACK OF PARTICULARITY

G1.  DAR §5.2^[15]

76.  This is part of Vivien’s response to RRAR §§27-29, 69B-F which concern the 50/50 Agreement.

77.  The paragraph is a generic plea referring to “the chain of correspondence between her lawyers and Angela’s lawyers for the full terms and true effect thereof”.

78.  I agree this is unacceptably unparticularised.  It is not possible to discern what matters Vivien will seek to prove by reference to the chain of correspondence, and the precise correspondence on which she relies.

G2.  DAR §5.3^[16]

79.  Also on the 50/50 Agreement, the first sentence asserts that Father and Mother had agreed (to which Angela was privy) that the Equality Principle was to apply prospectively and not retrospectively.  This appears to be a response to Angela’s case on the scope of the 50/50 Agreement (encompassing distribution of Father’s assets both past and future), and that Vivien had wrongly insisted on limited disclosure in relation to past gifts from Father: see paragraph 11 above.

80.  However, the paragraph lacks proper particulars as to (i) the time(s) and occasion(s) when and the place(s) and circumstances where the alleged agreement between Father and Mother were entered into; and (ii) the time(s) and occasion(s) when and the place(s) and circumstances where Angela purportedly acquired knowledge of the alleged agreement.  It is impossible for Angela to meet this case in her witness statement.

81.  The reference to §§15.2 and 15.3 in the DAR does not salvage the defect. As explained below, §15.2 is also defective for want of particulars.  §15.3 merely pleads that Mother and Angela had never complained about gifts Vivien obtained before 1 January 2003.

82.  The second sentence further asserts that Angela and Vivien had agreed (to which Mother was privy) that neither Angela nor Vivien would disclose or bring into account gifts to either of them prior to 1 January 2003.

83.  Again, it lacks proper particulars as to (i) the time(s) and occasion(s) when and the place(s) and circumstances where the alleged agreement between Angela and Vivien were entered into; and (ii) the time(s) and occasion(s) when and the place(s) and circumstances where Mother purportedly acquired knowledge of the alleged agreement.

84.  The third sentence is premised upon the alleged agreements in the first and second sentences, and accordingly unsustainable if the first and second sentences are objectionable for want of particulars.

G3.  DAR §15.2 (third to fifth sentences)^[17]

85.  Still on the 50/50 Agreement, the third sentence makes allegations similar to those in §5.3 in that all parties agreed that the Equality Principle should take effect from 1 January 2003 and neither sister was required to disclose gifts received prior to that date.

86.  Again, the paragraph lacks proper particulars as to (i) the identity of the persons included in “all parties concerned”; and (ii) the time(s) and occasion(s) when, and the place(s) and circumstances where, the alleged agreement between “all parties concerned” was entered into.

87.  The fourth and fifth sentences plead acts which were carried out allegedly based on the alleged agreement in the third sentence.  They are unsustainable if the former is objectionable for want of particulars.

88.  Vivien, at §62 of her Speaking Note, refers to a number of events.  She then contends, in §62(4), that the agreement referred to in DAR §5.3 “reflects what may be inferred from the pleaded facts and circumstances as to the agreed basis upon which Father’s distribution of assets and the 50/50 Agreements were negotiated between members of the family”.

89.  It would appear, therefore, that the agreement is to be inferred from the vast array of circumstances, not that there was an express communication on a particular occasion.  That was also the oral submission of Vivien’s counsel.  That is hardly something that one can discern from the actual DAR §5.3, thus may cause embarrassment.

H.  CONCLUSION

90.  As a substantial number of pleas are disallowed as stated above, leave to introduce the Opposed Amendments should be refused.  Vivien has made an application to introduce this pleading on the basis pleaded.  If a substantial part of it is gone, then this application should simply be dismissed – Vivien can then decide whether, on what remains, she still feels able to seek leave to allege relevant undue influence.  Surely Vivien cannot say that however little is left of her pleas on undue influence, she would still say that those pleas would justify an inference of undue influence.

91.  The court will not re-formulate defective proposed amendments for the applicant and it is incumbent on her to make a fresh application for leave to amend (if saw fit): Chan Kon Fung v Gallop Pioneer Ltd, HCA 1357/2011 (unrep, 4/08/2016) §§122-123.

92.  For the above reasons, I disallowed the Opposed Amendments. Vivien was granted leave to file and serve an Amended Rejoinder with the Opposed Amendments removed.

HCAP 10/2020

[2024] HKCFI 962

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 10 OF 2020

________________________

________________________

________________________

____________________

D E C I S I O N

____________________

A.  INTRODUCTION

1.  This is the hearing for the summons dated 17 February 2023 (“Summons”) taken out by the defendant (“Vivien”) against the plaintiff (“Angela”) for specific discovery.

2.  This is a probate action in respect of Madam Yang’s estate commenced by Angela, Madam Yang’s elder daughter, to propound Madam Yang’s will dated 15 February 2008 (“2008 Will”), which left all of her assets to Angela and appointed her as sole executrix.

3.  Vivien, the younger daughter, seeks to propound instead Madam Yang’s will dated 27 October 2004 (“2004 Will”) under which there would be an equal division of her assets and Vivien would be appointed a co-executrix with Angela.  Vivien challenges the validity of the 2008 Will on the grounds of (i) lack of testamentary capacity; (ii) no knowledge and approval; and (iii) that the 2008 Will was procured by undue influence, fraud, and/or fraudulent calumny on the part of Angela.

4.  The Summons is supported by the 3^rd Affirmation and 4^th Affirmation of Siu Yat Fung Anthony dated 17 February 2023 and 11 September 2023 respectively (“Siu 3” and “Siu 4”).  It is opposed by the 6^th Affidavit of Chan Heung Wing dated 11 July 2023 (“Chan 6”) and the 7^th Affidavit of Chan Heung Wing dated 11 July 2023 exhibiting the 8^th Affirmation of Angela dated 11 July 2023 (“Angela 8”).

5.  Vivien seeks a wide range of documents concerning the preparation and drafting of the 2008 Will, the General Power of Attorney dated 15 February 2008 (“2008 GPOA”), the (unexecuted) Statutory Declaration on Madam Yang’s aliases (“Aliases SD”) (collectively, the “Subject Matters”), the statutory declaration dated 19 November 2014 by Mr Wong Tak Shing (“Tak Wong”) in relation to the preparation of the 2008 Will (“SD”), two testamentary dispositions dated 11 April 2005 and 3 December 2005 respectively (“2005 Codicils”), as well as Madam Yang’s medical reports.

6.  Angela has described Vivien’s approach as one of carpet bombing, and the widely formulated classes in the Summons as fishing expeditions.  Angela submits that Vivien’s approach, if left unrestrained, will result in an uncontrolled amount and scope of disclosure for the trial set down for September 2025, with implications for the preparatory steps taken between now and the trial.

B.  BACKGROUND

B1.  The underlying dispute

7.  There is a long history of acrimony between Madam Yang and Angela on one side, and Vivien on the other.  Thus far, it has culminated in, inter alia, two judgments by Anthony Chan J in HCA 1739/2010 dated 29 November 2016 (“1739 Trial Judgment”) and 20 January 2020 (“1739 Locus Judgment”) respectively.  Vivien’s appeal from the 1739 Trial Judgment has been dismissed by the Court of Appeal.

8.  Madam Yang was the wife of the late Dr Chen until their divorce in 2011.  In January 2003, Dr Chen told Madam Yang that he had transferred approximately HK$18 billion worth of assets to Vivien (“CHL Exercise”) which, as it transpired, was an exercise to avoid potential estate duty.

9.  After discussions in 2003 and 2004, Dr Chen decided to distribute to Angela and Vivien each HK$4.5 billion worth of assets, out of which each of them was to transfer HK$1.5 billion worth of assets to Madam Yang.  Disputes then arose as to Vivien’s performance of her transfer obligations.  Madam Yang alleged that Vivien had taken unfair advantage of her.  Madam Yang’s claims were upheld in the 1739 Trial Judgment.

10.  In October 2004, Madam Yang made the 2004 Will, whereby Madam Yang bequeathed her estate to Angela and Vivien in equal shares.

11.  Madam Yang further executed two testamentary dispositions on 11 April 2005 and 3 December 2005 respectively, ie the 2005 Codicils. The former bequeathed Madam Yang’s interest in companies holding certain properties to Angela.  The latter bequeathed, inter alia, all of Madam Yang’s properties in the US to Angela.

12.  Between 2003 and 2006, negotiations took place between Angela and Vivien over a proposed agreement (“50/50 Agreement”) regarding the distribution of Dr Chen’s assets.  But those negotiations later fell apart.

13.  On 25 January 2008, Tak Wong was instructed to draft a Will for Madam Yang.  He then produced a draft Will (“First Draft Will”), which provided that all of Madam Yang’s US assets were to go to Angela; and the residuary estate was to go to Angela and Vivien in equal shares.

14.  On 12 February 2008, Tak Wong was instructed by Madam Yang (through Angela) to revise the First Draft Will to name Angela as the sole executrix and sole beneficiary (“12.2.08 Instructions”).  Accordingly, the second draft Will (“Second Draft Will”) was prepared.

15.  The Second Draft Will (with Madam Yang’s handwritten annotations) was faxed to Tak Wong.  A third draft Will was prepared (“Third Draft Will”) (which eventually became the 2008 Will).

16.  On 15 February 2008, Tak Wong, Dr Ben Cheung (“Dr Cheung”), Billy Ma (of Hobson & Ma) and Wu Wing Kit (then of Fred Kan & Co (“FKC”)) (“Mr Wu”) attended the family home.  Dr Cheung conducted a medical examination of Madam Yang.  Dr Cheung was satisfied that Madam Yang had testamentary capacity to execute the 2008 Will; and Tak Wong explained the contents of the Third Draft Will to Madam Yang, to which Madam Yang confirmed her understanding and agreement.  The 2008 Will was executed by about 20:22.  The 2008 GPOA appointing Angela as Madam Yang’s attorney was executed at 20:40.

17.  Between 2008 and 2014, Madam Yang executed further documents, which Angela submits, further confirmed that she had testamentary capacity, and knowledge and approval of, the 2008 Will.  They include (1) a trust deed appointing Angela as trustee of Madam Yang’s assets on 26 June 2008 (“2008 Trust Deed”), (2) a Chinese declaration on 17 September 2008 (“Will Declaration”), (3) various gift documents on 12 December 2012 (“Gift Documents”), and (4) a further declaration on 2 May 2014 (“2014 Solemn Declaration”).

18.  On 12 December 2012, Madam Yang executed a Gift Declaration whereby she declared her intention to achieve the early completion of her gift to Angela under the 2008 Will by a Deed of Gift. She also executed a Deed of Gift to like effect.  In the 1739 Locus Judgment, Anthony Chan J found no evidence that the validity of the Gift Declaration and the Deed of Gift were tainted.

19.  On 19 November 2014, Tak Wong made the SD for the purposes of defending an anticipated challenge to the 2008 Will after Madam Yang’s death.

B2.  The parties’ pleaded case

20.  Vivien contends that Madam Yang lacked testamentary capacity to make the 2008 Will because she allegedly had mistaken and delusional beliefs, including that (1) Angela has been unfairly treated by Dr Chen and Vivien; (2) Vivien has received more valuable assets than Angela from Dr Chen’s distribution of wealth; (3) Vivien has reneged on her promise to share half of what she had received from Dr Chen with Angela; and (4) it was necessary to make Angela the sole beneficiary to redress the wrongs which Angela had suffered and to achieve equality in the overall distribution of Dr Chen’s and Madam Yang’s assets.[1]

21.  Alternatively, Vivien contends that there were suspicious circumstances such that the court would require the plaintiff to affirmatively prove knowledge and approval of the contents of the 2008 Will. The alleged suspicious circumstances were,[2]inter alia:

(1)  Tak Wong was not acting as an independent solicitor of Madam Yang and failed to carry out his advisory duties properly.[3]

(2)  The 25 January 2008 Instructions given to Tak Wong and the terms of the First Draft Will did not indicate Madam Yang’s testamentary intention to cut Vivien out of any new will. Yet by the 12 February 2008 Instructions, Angela instructed Tak Wong to revise the First Draft Will to name Angela as the sole beneficiary.[4]

(3)  The SD contained various omissions and the instructions given by Angela to Tak Wong had been highly selective.[5]

(4)  Wong Shum & Co(“WSC”)’s destruction of the will file (“Will File”) in about June 2015 was extraordinary and highly suspicious.[6]

(5)  Other than WSC, there were other lawyers involved in the drafting, advising or execution of the 2008 Will.[7]

22.  Alternatively, Vivien contends that the 2008 Will was made under Angela’s undue influence,[8] fraudulent calumny,[9] and/or fraud.[10]

23.  Vivien’s case is based on inference.[11] 

24.  Angela denies these allegations.  Furthermore, Angela has pleaded that:

(1)  Madam Yang made the 2008 Will in place of the 2004 Will because (a) Vivien did improper things which disturbed the equality of the asset distribution by Dr Chen amongst Angela and Vivien; (b) Vivien told Madam Yang previously that she did not want any of Madam Yang’s assets; (c) Vivien was not willing to sign the 50/50 Agreement.[12]

(2)  The above is stated in Madam Yang’s (1) answers to Tak Wong’s questions on 15 February 2008; (2) answers during her medical examinations; (3) statements in the Will Declaration; and (4) Vivien’s confirmation on 23 January 2010 that she had told Madam Yang she did not want Madam Yang assets.[13]

(3)  Madam Yang was medically examined before executing the 2008 Will (and various subsequent documents which affirmed the 2008 Will).[14]  There can be no challenge whatsoever with regard to her testamentary capacity.

B3.  Issues in dispute

25.  Siu 3 §90 summarised the issues in this probate action as follows: “Vivien pleads that the Alleged 2008 Will is invalid for various reasons, including lack of testamentary capacity (ADCC §§90A-B) want of knowledge and approval (ADCC §§91-122), undue influence (ADCC §§123-134) and fraud/fraudulent calumny (ADCC §§134A-N).”

26.  For the purpose of the present application, the plaintiff has pointed out that it is pertinent to note that in respect of the issues which Siu 3 identified:

(1)  As has been noted (at paragraph 20 above), Vivien’s case on testamentary capacity is that Madam Yang allegedly had “delusional” beliefs (ADCC §90A).  Vivien does not rely on any medical evidence regarding alleged mental incapacity.

(2)  Insofar as Vivien asserts a case of undue influence, it is well established that there is a different test for undue influence in probate from that found in cases concerning lifetime transactions.  In probate, undue influence means influence exercised either by actual coercion, in the sense that the testator’s will must be overborne, or by fraud: Theobald on Wills (19^th edn, 2021) §§4-058, 4-059.

C.  APPLICABLE PRINCIPLES

C1.  General

27.  In K&L Gates v Navin Kumar Aggarwal, HCA 1061/2011 & HCA 349/2012 (unrep, 27/11/2017) at §15, Lok J sets out (inter alia) the following trite principles:

(1)  There is no jurisdiction to make an order under RHC O24 r7, unless (a) a document exists which the other party has not disclosed, (b) it is in or has been in the respondent’s possession, custody, or power, and (c) the document is relevant: §15(i).

(2)  The discovery must be necessary either for disposing fairly of the cause or for saving costs: §15(ii). 

(3)  Jurisdiction aside, the court has a discretion not to order disclosure: §15(iii).

(4)  The order must identify with precision the documents or categories of documents which are required to be disclosed, for otherwise the person making the list may find himself in serious trouble for swearing to a false affidavit, even though doing his best to give an honest disclosure: §15(iv).

(5)  Where discovery is sought in relation to a class of documents, it is important that the class should not be defined or described too widely, and should not be defined so as to include documents which are not relevant: §15(v).

(6)  Statements in a party’s affidavit of documents are conclusive.  The respondent may answer an application for specific discovery by an affidavit stating that he does not have the documents, and this will be conclusive at the interlocutory stage: §15(vi).

C2.   Relevance

28.  Despite the Peruvian Guano test on relevance, courts have cautioned against an excessively wide application: K&L Gates §16.

29.  “Fishing” is not allowed: K&L Gates §17.  Discovery will not be ordered to enable a party to turn a non-issue into an issue.  It cannot be used to hunt around documents in the hope that they will reveal some improprieties or provide information to pursue more inquiries: Lee Sai Nam v Li Shu Chung, HCA 1711/2009 (unrep, 10/01/2014) §54.

30.  Although relevance will primarily be determined by reference to pleadings, it cannot be dictated by a party unilaterally simply by importing it into the pleadings.  Thus, discovery is not required of documents which relate to irrelevant allegations in pleadings which, even if substantiated, cannot affect the result: K&L Gates v Navin Kumar Aggarwal[2019] HKCFI 702 (“K&L Gates (No 2)”) §7 (Lok J); Allington Investments Corp v First Pacific Bancshares Holdings Ltd [1995] 2 HKC 139, 144H-145C (Jerome Chan J); Li Tak Yee Samuel v Sociéte Générale Bank & Trust, HCA 2478/2009 & HCA 1198/2011 (unrep, 16/04/2013) §27.

C3.   Necessity

31.  If the party establishes a prima facie case for the 3 prerequisites, the party objecting may persuade the court that the discovery is not necessary either for disposing fairly of the cause or matter or for saving costs under RHC O24 r8.

32.  It is necessary to consider where within the spectrum of evidential materiality the documents sought fall.  There may be documents that although they may fall within the letter of the Peruvian Guano test, they are unlikely to contain or yield information of such evidential materiality that justifies the inconvenience of giving discovery: Lee Sai Nam§§49-50.

33.  Discovery should also be sensibly controlled and not used as an oppressive weapon pursued without sufficient regard to economy and efficiency: Billion Lead Investment Ltd v Union Joyce Ltd, HCMP 2145/2011 (unrep, 14/12/2012) §20 (Mimmie Chan J).  This is in line with the CJR’s objectives by promoting proportionality, cost-effectiveness and fairness between the parties: K&L Gates §19.

C4.   Formulation of a class of documents

34.  The 3 prerequisites must be established in respect of the class described as a class, not as regards some in the class only: Li Tak Yee Samuel §37.

35.  The class of documents must be classified by their nature, as opposed to simply as documents going to a particular issue or showing a particular thing: Deak & Co (Far East) Ltd v NM Rothschild & Sons Ltd [1981] HKC 78, 82B-D (Barker JA); K&L Gates (No 2)§6; Li Tak Yee Samuel§41.

36.  The class should not be defined or described so widely as to include irrelevant documents.  One cannot cast the net widely and then say, at least some relevant documents will be caught: Molnlycke AB v Proctor & Gamble Ltd (No 3) [1990] RPC 498, 502 (Mummery J); K&L Gates (No 2) §22.  Otherwise, the person faced with such an order cannot ever be sure that he has complied with it.  It is also more likely to fail the necessity requirement: Lee Sai Nam§§51-52.

37.  Tullett Prebon(Hong Kong) Ltd v Chan Yeung Fong Nick, HCA 2197/2009 (unrep, 9/06/2011)did not relax the above requirements on the proper formulation of a class.  The applicant must still establish that each document is either relevant individually, or relevant as a member of the class of documents: §83. 

38.  Although the blue pencil test may be applied to narrow down the scope of discovery, the court will not reformulate a totally different class: K&L Gates (No 2)§§21-22.  There, the court refused the reformulated request as there was no application to amend the discovery summons (§20), and there was no justification for the applicant to have drafted the original class in a sweeping manner in the first place (§§22-23).

39.  Examples of requests rejected as excessively broad include:

(1)  “[A]ny other documentation held in any medium showing details of access/number of visits and hits to the electronic version of the Magazine and/or the archived copy of the article appearing on pages 68 to 72 of the Magazine”: Morinda International Hong Kong Ltd v Next Magazine Publishing Ltd [2003] 1 HKC 492 §§14-15 (Chung J).

(2)  “Documents pertaining to the Defendants’ business and/or the casino entities related to the Defendants and the relationship between these entitles”: K&L Gates (No 2) §§19, 22.

(3)  “Any and all documentation of Soc Gen created, amended or sent by Soc Gen’s Compliance Department relating to transactions (including but not limited to transfers of money or securities) between Leadenham’s account and the Plaintiff”: Li Tak YeeSamuel §77.[15]

C5.   Conclusiveness of affidavits

40.  Generally: Discovery affidavits are invariably taken at face value.  Generally speaking, affidavits of documents are conclusive as to the relevance and existence or otherwise of documents at the interlocutory stage.  They are conclusive also as to the relevance of blanked-out documents: Li Tak Yee Samuel §§43-44; Lee Sai Nam §55.

41.  Privilege: An affidavit verifying an assertion of privilege (provided that it is as specific as possible but without disclosing the very matters that the claim for privilege is designed to protect) is conclusive unless it is reasonably certain that:

(1)  the deponent has erroneously represented or misconceived the character of the documents;

(2)  the evidence of the claimant of privilege that the affidavit is incorrect; or

(3)  other evidence before the court shows that the affidavit is incorrect or incomplete on the material points.

See: West London Pipeline and Storage Ltd v Total UK Ltd [2008] 2 CLC 258 §86(3) (Beatson J, as he then was); Alireza v Fleet Overseas (New Zealand) Ltd[2020] HKCFI 2802 §§28-29 (Ng J).

42.  I agree with Angela’s submission that Vivien’s reliance on Re Kong Wah Holdings Ltd [2007] 4 HKLRD 620 is misplaced.  The regime for asserting privilege in the investigative procedure under section 221 of the predecessor Companies Ordinance (Cap 32) is more stringent so as to avoid thwarting liquidators’ investigation (§§60-61).  This was expressly contrasted by Kwan J (as she then was) with the position in general adversarial litigation, where it was permissible to give a compendious description by type or category, so long as it was possible to identify them, and provided that the ground of privilege and the facts giving rise to the claim were clearly stated (§§51, 57).

43.  Further and in any event, it must be noted that the principle in Re Kong Wah was that the party claiming privilege would be directed to furnish a further list of documents with details of the claim of privilege: §61.  This was the application: see §42.  This is not the application in the present case.  This was also the result: see §§71-72 (the type of order was known as a “Kadlunga” order, see §61).  In other words, it is not the correct response to say that because no details are furnished, the claim to privilege “would fail in limine”: cf Vivien’s Skeleton §30. 

44.  Similarly, in Re Estate of Nina Kung (No 1) [2009] 4 HKLRD 149, Lam J (as he then was) noted at §3 that:

“Technically, even if the documents were protected by privilege, they should still be set out in the Plaintiff’s list of documents, see Order 24 Rule 5(2). But the court will not make an order under rule 7 if it is not necessary either for disposing fairly of the cause or for saving costs. If the documents are clearly protected by privilege from production, Mr Chan SC did not suggest any reason for requiring an affidavit to be made. I shall therefore deal with the application on the basis that it should be dismissed if I conclude that the Plaintiff is clearly not entitled to production of the documents. On the other hand, if I am not sure on the materials presently before the court whether the Plaintiff can successfully assert a claim for privilege, the proper course is to order an affidavit to be made with liberty to the Plaintiff to claim privilege from production in such affidavit.” (emphasis added)

On the facts, he ordered a further affidavit as to the claim to privilege regarding certain documents: §20.

45.  Indeed, in Hollander: Documentary Evidence in Hong Kong (2^nd ed, 2020) at §14-006, after discussing the old authorities and Re Kong Wah, the learned author suggested that: (1) the position remains unchanged and the practice remains that claims for privilege are invariably made in lists of documents in generic terms; (2) the court has power, when justified on the facts of the case, to require a further and more detailed listing or supporting witness statement which requires particulars of documents for which privilege is claimed.  This is thus never a ground for rejecting a claim for LPP.

46.  Redaction: A heavy burden lies on a party who seeks to challenge the veracity of an oath regarding redaction.  The test is not whether the redaction parts are potentially relevant, and it is not enough that they might provide material for cross-examination as to credit.  The test is whether it is not unreasonable to suppose that the parts redacted do contain information which may, either directly or indirectly, enable a party to advance her own case or to damage the opposing party’s case: Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887 (Kwan JA, as she then was) §§51-52.

C6.   Legal professional privilege (“LPP”)

47.  Legal advice privilege applies to the drawing up of a will: Three Rivers DC v Bank of England (No 6) [2005] 1 AC 610.  This is because disclosing the reasons for certain provisions after the testator’s death could often cause incalculable harm and misery, hence the public interest lies in minimizing the risk of that happening: §55 (Lord Rodger).

48.  The principles on LPP germane to the Summons can be found in the Decision of this court dated 20 August 2021 ([2021] HKCFI 2436) on Vivien’s discovery application against WSC (“2021 Decision”) concerning the preparation of the 2008 Will and the SD:[16]

(1)  There are 2 categories of LPP (§50):

“Legal advice privilege attaches to communications between a client and his lawyer, where the lawyer is acting in the course of his professional relationship and within the scope of the lawyer’s professional duties, under conditions of confidentiality, and for the purpose of enabling the client to seek or the lawyer to give, legal advice or assistance in a relevant context: Passmore: Privilege (4^th edn, 2020), §2-003.

Litigation privilege attaches to confidential communications between a client or his lawyer and a third party for the dominant purpose of use in litigation that, at the time the communication is made, is either proceeding or pending, or reasonably anticipated or in contemplation, and to which the client is or reasonably anticipates becoming a party, for the purpose of either (1) enabling legal advice to be sought or given or (2) seeking or obtaining evidence or information to be used in or in connection with the litigation concerned: Passmore, §3-006.”

(2)  LPP survives the death of the client.  Once established, it remains in existence until waived.  Upon the death of a client, the right to waive passes to the successor in title: §52.

(3)  There is a limited exception to LPP in the present context, arising from Re Fuld (No 2)[1965] P 405.  Under the Re Fuld exception, the court may require an attesting witness to produce statements made by him dealing with the question of attestation and execution notwithstanding their general privileged nature: §§67-68.

(4)  At §70, this court referred to Re Estate of Nina Kung (No 1), Supra and said:

“(1) The rule is applicable only to evidence of the attestation witness on questions of attestation and execution. The fact that the witness is an attesting witness (and as such a witness of the court) does not remove the privilege attaching to all his communications with the solicitor of a party. The protection is only removed in respect of statement of attestation and execution. (§§10-11)

(2)   Whilst an attesting witness is a witness of the court on other relevant issues like testamentary capacity and knowledge and approval, without more, that does not lead to the production of documents which might be protected by privilege. Communication between a solicitor with an attesting witness for the purposes of litigation is privileged except in so far as the statement contained evidence of that witness on attestation and execution. (§§12-15)”

(5)  Draft statements prepared or attendance notes taken cannot be treated as statements of the attesting witnesses until they were approved by them.  Before such approval, the drafts and attendance notes are only records kept and drafts prepared by the solicitor which may or may not be a full and accurate record of what had been said by those witnesses: Re Estate of Nina Kung (No 1) §16.

(6)  Accordingly, Lam J directed an affirmation regarding “drafts of statements and attendance notes, interview notes or file notes which contained evidence of the attesting witnesses on the question of attestation and execution” (§20).  But he rejected the discovery requests for correspondence relating to the preparation of those witness statements (item 6) or relating to the circumstances in which the plaintiff obtained the will, as they do not contain evidence of the attesting witness (item 7): Re Estate of Nina Kung (No 1) §22.

(7)  Unsurprising, the Re Fuld exception is narrowly circumscribed.  It does not apply to statements on the general history of the family and observations as to the health or possible eccentricities of the testatrix (Gordon v Hilton (1995) BC 9501693), and by parity of reasoning, testamentary capacity.

49.  The following holdings in the 2021 Decision are also important:

(1)  Anything concerning the drafting of the 2008 Will or taking instructions for the same or any matter prior to the moment of execution and attestation would by definition fall outside the scope of Re Fuld.[17]

(2)  The argument that LPP had been waived in relation to the taking of instructions, preparation and execution of the 2008 Will by the “disclosure and deployment of the SD” was rejected.  The SD was disclosed by WSC without Angela’s consent and she had made clear she would maintain privilege in the SD.[18]

50.  Vivien relies on the principle of collateral waiver as set out in her Skeleton §§42-44.  But, as submitted by Angela, she has omitted several important limits and her contentions are unsustainable:

(1)  Deployment of a privileged document does not automatically open a floodgate to a wide destruction of privilege more broadly.  It is not the rule that once deployed, all privileged documents related in some general way to that document or which can, in a general sense, be described as “relevant” to the issue must also be disclosed even if they deal directly with the subject matter in hand: Magnesium Elektron Ltd v Neo Chemicals & Oxides (Europe) Ltd (No 2) [2018] FSR 11 §47.

(2)  Vivien appears to contend that once a document (such as the SD) is being relied on, the party must disclose all the drafts of the document.  This is clearly incorrect.  It is an everyday occurrence that a party adduces evidence in the form of affidavits, witness statements and expert reports.  Drafts of these documents are almost certainly and will remain privileged.  The final document which is served is clearly not privileged.  See Passmore on Privilege (4^th edn, 2020) §§7-255, 7-258.  It would be extraordinary to contend that once the final document is served, there is a collateral waiver of all the draft affidavits, witness statements and expert reports.  The rule as regards collateral waiver is ultimately one of fairness.  It has never been suggested that a party is “cherry-picking” by relying on the final version of an affidavit, witness statement or expert report, without producing all the pre-existing drafts which are plainly privilege.

(3)  A key plank of Vivien’s “cherry-picking” argument is that Angela had voluntarily disclosed a significant number of documents: Vivien’s Skeleton §§34, 35.  But the mere production of the document on discovery or in some pre-trial procedures cannot in the ordinary course be treated as a waiver of anything beyond the document itself: MMI Research Ltd v Cellxion Ltd [2007] EWHC 2456 (Ch) §27 (Mann J).

(4)  Vivien’s Skeleton §41(1)-(2) contend that Angela relies on the SD.  The correct position is that Vivien relies on the SD at ADCC §§48-49. In her Reply, Angela admitted that the matters in the first sentence and the quoted words in the third sentence in ADCC §49 are stated in the SD, the truth of which are admitted: Reply §79.1.  Similarly, Vivien relies on further aspects of the SD in ADCC §§66, 68,which are admitted by Angela in Reply §§102, 104 (with the questions and answers pleaded in ADCC §68 further relied upon in Reply §132A.2(i)).

(5)  An application based on collateral waiver was premature unless it took place after the evidence had been adduced at the trial, namely, after it had been “deployed in court” in the strict sense:Urban Renewal Authority v Agrila Ltd[2010] 1 HKLRD 578 §27 (Le Pichon JA, with whom Rogers VP agreed).

D.  CLASS 1 – DOCUMENTS DRAFTED/CIRCULATED BY TAK WONG AND/OR WSC

51.  By Class 1, Vivien seeks:

“All documents (whether in hard or soft copies and whether originals or copies) created or drafted or circulated by [Tak Wong] and/or his firm Wong Shum & Co when acting as the solicitors of [Madam Yang] and sent to [Angela] or her agent(s) relating to the preparation, drawing up and/or execution of the Alleged 2008 Will (as defined in the Amended Defence and Counterclaim), the [2008 GPOA], the [Aliases Statutory Declaration], (the Alleged 2008 Will, the 2008 GPOA, the Aliases Statutory Declaration and matters incidental thereto collectively [the Subject Matters]) ...”

52.  Angela submits that the class is objectionable for one or more of the following reasons.

53.  First, this is one of many requests which are formulated in the form of “all documents” relating to a subject matter, followed by examples or sub-categories which are alleged to be part of that class. These requests are in breach of both the rule in Deak(in that it was formulated by reference to an issue: see paragraph 35 above) and the rule in Molnlycke (in that it would include irrelevant or already disclosed documents: see paragraph 36 above), and should be dismissed in limine.

54.  Second, Angela has already confirmed by way of affirmation that, save for the documents already disclosed, and subject to her responses to the sub-categories, she does not have possession, custody or power over any documents falling within Class 1.^[19] This must be conclusive.

55.  Third, even assuming documents within this class exist and are in the possession custody or power of Angela, and even overlooking the rule in Deak and Molnlycke, it is unclear what relevance would any such document has to the issues identified in Siu 3 §90 (see paragraph 25 above).

56.  In Vivien’s Supplemental Skeleton and Speaking Note for the hearing on 5 January 2024, I can see no meaningful response to Angela’s above objections.

E.  CLASS 2 - DOCUMENTS DRAFTED BY MR WU RELATING TO THE SUBJECT MATTERS

57.  Class 2 seeks “[a]ll documents (whether in hard or soft copies and whether originals or copies) created or drafted or circulated by Wu Wing Kit relating to the preparation, drawing up and/or execution of the Subject Matters, including but not limited to all draft(s) of the 2008 GPOA”.

58.  Angela submits that the request should be dismissed for one or more of the following reasons.

59.  First, it proceeds on a false premise, namely that Mr Wu was involved in the preparation, drawing up and/or execution of the Subject Matters.  However, Mr Wu has confirmed that he was not involved in the preparation, drawing up and/or execution of any such documents except the 2008 GPOA.[20]  The burden is on Vivien to demonstrate the 3 prerequisites, including the existence of documents in respect of the class described as a class, not as regards some in the class only (paragraph 34 above), and she has not put forward any basis for disbelieving Mr Wu.

60.  Second, none of the matters in Siu 3 §93 supports the inference that there exists draft(s) of the 2008 GPOA.  That (i) Tak Wong had produced drafts for the 2008 Will and (ii) Mr Wu was present at Madam Yang’s home when the 2008 Will was executed do not in any way support the speculation that draft(s) of the 2008 GPOA must have been made by Mr Wu (which he does not recall due to the passing of time).[21]

61.  Third, in any event, Angela has confirmed that she is not in possession, custody or power of documents within this class save for the documents already disclosed.[22]  Mr Wu has given the same confirmation after making inquiries with his former firm, Fred Kan & Co.[23]

62.  Again, it is to be noted that Vivien’s Skeleton contains no submission that are specifically referable to this class.  Moreover, in Vivien’s Supplemental Skeleton and Speaking Note for the hearing on 5 January 2024, I can see no meaningful response to Angela’s above objections.

F.  CLASS 3 - CORRESPONDENCE AND ATTACHMENTS PASSING BETWEEN VARIOUS PERSONS RELATING TO THE SUBJECT MATTERS

63.  Similar to Class 1, Class 3 begins with a general category seeking “[a]ll emails (including the attachments thereto, the electronic originals thereof and the electronic originals of the attachments thereto), correspondence and circulation of documents between (a) Angela, Tak Wong and/or Wong Shum & Co and (b) Madam Yang, Angela, Wu Wing Kit, Billy Ma and/or Dr Ben Cheung, relating to the Subject Matters or to the meeting with Madam Yang on 15 February 2008 ...”

64.  First, the purported basis for this all-embracing class is that there were “established channels of email communications amongst these personnel”.^[24]  Yet there is insufficient evidence to enable this inference to be drawn.  It is grounded in only 4 individual emails and a letter emanating from Tak Wong, which were merely for the purpose of sending out certain electronic or hard copy documents.^[25]  This is a far cry from showing a prima facie case of existence.  As this court observed in §44(1)(e) of the 2021 Decision:

“§1(5) even asks for correspondence by Wong with other persons and firms which relate to the preparation of the will and also the preparation of the SD. The existence of these correspondence is mostly based on a speculation that these persons were involved because Tak Wong had copied them in the recent correspondence with Vivien’s solicitors.”

65.  Second, the class lacks specificity.  There is no limitation on duration.  It seeks correspondence amongst a wide permutation of characters: “(a) Angela, Tak Wong and/or Wong Shum & Co and (b) Madam Yang, Angela, Wu Wing Kit, Billy Ma and/or Dr Ben Cheung”. The Molnlycke objection applies: see paragraph 36 above.

66.  Third, in any event, Angela has confirmed that she is not in possession, custody or power of documents within this class save as documents already disclosed^[26]; so have Tak Wong and Mr Wu (after making inquiries with FKC and Billy Ma).^[27]

G.  CLASS 4 - WILL FILE DOCUMENTS

67.  Class 4 seeks “[a]ll documents (whether original and/or copies and both hard copy and electronic copies thereof) which were at any time contained in the “Will File” of Wong Shum & Co, which was allegedly destroyed by Wong Shum & Co in about June 2015”.

68.  For the reasons set out in §§117-122 of Angela’s Skeleton, I uphold Angela’s objections targeted at Class 4 of Vivien’s request:

(1)  The request is not necessary.  The utility of this class is marginal at best, and does not warrant discovery.

(2)  This is an unreasonable request in that given that the Will File has been destroyed, there is no way for anyone to confirm what documents were or were not part of the Will File. 

(3)  Tak Wong has confirmed that he no longer has any documents in the hard copy Will File in his possession.[28]  Angela has confirmed that she has never been in possession of the Will File.[29]

(4)  DLA Piper Hong Kong (“DLA”) has confirmed that all those documents within the files kept by Clifford Chance (“CC”) in relation to the preparation of the SD (“CC Files”)which would appear to form part of the Will File have already been disclosed.[30]

69.  At this juncture, I should bring attention to, using a neutral term, a change of focus on the part of Vivien.  As a recent development since the issuance of the Summons, at the hearing on 5 January 2024, Vivien sought an order that Angela do (1) produce a further and better list encompassing all the electronic documents recently located by Tak Wong that were inspected by DLA on 29 September 2023 (“Inspected Documents”) other than the Segregated Documents Unrelated to the 2008 Will; and (2) in relation to any document over which privilege is claimed, provide the basis of such claim so that the matter can be properly adjudicated if necessary.  What happened was that on 29 September 2023, DLA was permitted by Tak Wong to inspect electronic versions of documents with the code “11070” (which according to Tak Wong were recently located,^[31] and which DLA did not yet have a chance of reviewing by the time Chan 6 was filed).  The process and outcome of the inspection is detailed in the 3^rd Affirmation of Au Wing Chi Sandy (“Au 3”).

70.  In this regard, I agree with Angela’s submission that Au 3 (as confirmed in Au 5) has adequately dealt with whether, and to what extent, the Inspected Documents fall within the requests under the Summons. Thus, there is no need for any further order (whether for enumeration of documents by a further and better list, or for production).

(1)  The starting point is that the Inspected Documents falling within the classes under the Summons, ie those identified at Au 3 §§13.2, 13.5, 13.8, 13.10,14.2, 14.3, 14.7, 14.10, 16.4(a), have been provided by Tak Wong to Vivien’s solicitors on 25 October 2023: Siu 5 §§10(j), 12(b).

(2)  Save for the above documents, the 2007 Codicil, and documents falling within Class 9 which are withheld from disclosure, there are no other Inspected Documents falling with the requests under the Summons.

(3)  As confirmed already in Au 3 §§13.13 and 14.4, save those referred to in Au 3, none of the Inspected Documents fall within Classes 1 & 3: see also Au 5 §9.1.

(4)  As to Classes 2, 4-8, by reason of Au 3 §11 (which states that Located Electronic Documents falling within the requests under the Summons would be dealt with in the remaining paragraphs in Au 3), there are no Inspected Documents falling within Classes 2, 4-8, save and except the 2007 Codicil, and subject to the caveat for Class 4 (the Will File) that Angela and DLA cannot confirm what documents formed part of the Will File, as explained in Chan 6 §21.2.

(5)  As to Class 9, no Inspected Documents fall within this class, save those referred to in Au 3, and those withheld for the reasons explained in Au 3 §§16.2-16.4.

71.  As regard the Inspected Documents, Vivien submits that they are in practical reality within the power of Angela in that when Vivien recently asked for information/documents, Tak Wong proceeded along the modus of seeking Angela’s views/consent, thus highlighting Angela’s power over the documents.

72.  I do not agree.  In this regard, I accept Angela’s submissions at paragraph 15 of her Supplemental Skeleton that: (1) Vivien’s submissions ignore the point that Tak Wong had refused to allow DLA to take copies of the documents, which can only mean that Angela has no power over them.  If Angela can only obtain the documents with Vivien’s consent, this rather negatives the notion that the documents are in the “power” of Angela; (2) In any case, this point is academic in light of the confirmation that no other documents fall within the scope of the Summons.

H.  CLASS 5 -DOCUMENTS RELATING TO THE PREPARATION OF THE SD

73.  Class 5 seeks “[a]ll draft(s) (whether original and/or copies and both hard and electronic copies thereof) of the Tak Wong SD, and any correspondence and/or other communications in writing (including but not limited to letters, emails) and notes including attendance notes, interview notes or file notes relating to the giving or the taking of instructions for or the making or reviewing of the Tak Wong SD or any of the draft(s) thereof”.

74.  This request relates to documents in the CC Files kept by CC in relation to the preparation of the SD.

75.  As pointed out by Angela, the starting point is that Angela has already disclosed documents containing evidence of the attesting witnesses on the question of attestation and execution with respect to the 2008 Will (“Excepted Documents”) in accordance with Re Fuld and Re Estate of Nina Kung (No 1), ie those set out in Schedule 2 to Chan 6.[32]

(1)  Such documents fall within 3 broad categories: (a) draft SDs approved by Tak Wong (items 2, 6, 8, 9, 10); (b) attendance notes approved by Tak Wong (item 1); and (c) correspondence from WSC containing statements and comments from Tak Wong (items 3, 4, 5, 7).

(2)  Redactions are applied to contents falling outside attestation and execution, which are privileged.

76.  Angela submits, and I agree, that there is no basis for Vivien to persist with the request in light of the above disclosure.

77.  First, Vivien’s Skeleton §§75-85 takes the position that Angela has not made a sufficient claim of LPP in respect of the SD. Vivien submits that no explanation at all is given as to whose the privilege is, or what kind of privilege is relied upon, or how the privilege is said to arise and apply.

78.  I have considered Angela’s response and I agree that Vivien’s contentions are wholly unsustainable:

(1)  First, this position is wholly unrealistic and without merit.  It is plain from the very nature of the SD that it was made in anticipation of a future challenge to the 2008 Will, and thus in contemplation of litigation.  It is plainly covered by litigation privilege.

(2)  Second, this was all along the position of Vivien herself and the court.  Vivien has previously pleaded positively that the SD was made for the purpose of litigation: ADCC §73.   

(3)  The 2021 Decision at §100(1)-(3) proceeded on the basis that the SD was subject to litigation privilege because: (i) the SD was prepared at the request of CC who acted as Angela’s solicitors.  The privilege belongs to Angela in her own right; (ii) The SD was prepared with the intention of providing evidence as to the preparation and execution of the 2008 Will in case it is contested upon Madam Yang’s death.

(4)  Indeed this court rejected a request for correspondence or communications relating to the advising, preparation, drafting, drawing up and execution of the SD, or the taking of instructions in respect of the SD: see 2021 Decision §§98, 100(3)-(5). In particular, the court noted that such correspondence is similar to item 6 of the request considered in Re Estate of Nina Kung (No 1), which held at §22 that the correspondence sought would not contain evidence of attestation and execution and would not fall within the Re Fuld exception.  This is the same as the second part of the request under Class 5 of the Summons. 

79.  Second, Vivien then takes a point about “over-redaction” at §§86-87 of her Skeleton.  Her criticisms as to the adequacy of disclosure and the scope of redactions in the Excepted Documents are unsustainable:

(1)  Chan has sworn that the redactions/non-disclosure were unrelated to the execution and attestation of the 2008 Will.[33] There is simply no sustainable challenge to DLA’s confirmation on affirmation in light of the applicable principles discussed at paragraph 46 above. 

(2)  In her affirmation evidence, Vivien did not attempt to particularise her challenge to the redactions – all she did was to say she did not accept the redactions, and then refer to a list of matters with no apparent connection to the redactions.[34]  Such bare assertion was deprecated in Wong Kar Gee Mimi§52.  Indeed, it is not even enough to assert that the redacted parts are potentially relevant: Wong Kar Gee Mimi§51.

(3)  The only specific complaint raised in Siu 4 is that the attendance note for the meeting on 5 July 2012 was heavily redacted, including some parts falling under the heading “Re: Execution of the Will on 15^th February 2008”.[35]  But that heading does not preclude information pertaining to matters prior to the moment of execution and attestation (which is privileged as held in the 2021 Decision[36]) from being included under it.  Given that the redactions were specifically confirmed by DLA, such a bare assertion does not form any basis to challenge the redactions.

(4)  It is unfair that other alleged over-redactions were raised in Vivien’s Skeleton §86(1)-(8) for the first time, which were absent in Siu 4.  In any event, the points made at §§86(1)(a), 86(3), 86(6)(a) are to the same effect as that discussed in sub-paragraph (3) above, and they must fail for the same reason.  §§86(2)(a), 86(4), 86(5)(a) are just bare assertions since there is nothing in the quoted material to indicate that the redacted parts contain evidence of execution or attestation.  It is not enough to assert that they are “likely” or “apparently” relate to the execution of the 2008 Will.

(5)  Vivien’s Skeleton §86(7)-(8) and 87 appear to have misunderstood the exception in Re Fuld - it only relates to evidence of execution and attestation.  Evidence as to what Mother said about the reason for execution, especially when the conversation took place after the execution, does not fall within this exception.  Nor would all matters that transpired on the same occasion as the execution - for example, if the testatrix spoke to her lawyer about a completely unrelated legal dispute (eg she was considering suing her neighbour) on the same occasion as the execution, that would not be covered by the Re Fuld exception.

80.  Third, Vivien’s Skeleton §§92-105 then made lengthy submissions about collateral waiver in respect of the SD.  This argument is completely misconceived - it fails to appreciate that the occasion giving rise to the privilege in respect of the drafting of the SD is completely different from the one for the drafting of the 2008 Will.  The fact that Angela has put forward a positive case in relation to the circumstances of the drafting of the 2008 Will does not mean she has deployed any privileged material relating to the drafting of the SD.  Moreover, as pointed out at paragraph 50(4) above, although Vivien’s Skeleton contends that Angela relies on the SD, the correct position is that Vivien relies on the SD at ADCC §§48-49.  

81.  Nor would the deployment of the SD mean that privilege for the drafts of the SD had been waived: cf Vivien’s Skeleton §§99-105.  This is plainly incorrect, see paragraph 50(2) above - if this is right, every time a party serves a witness statement the privilege in all the drafts would be waived.  Indeed, in Re Estate of Nina Kung (No 1), the witness statements of the attesting witnesses were voluntarily produced (§§1-2), and there was no question of collateral waiver of the privilege in respect of the drafts or attendance notes or other communications relating to the drafting of the statements.  There would have been no point of discussing the Re Fuld exception if collateral waiver applied. 

I.  CLASS 6-DOCUMENTS RELATING TO THE PREPARATION OF THE 2005 CODICILS

82.  Class 6 seeks “[a]ll correspondence and/or other communications in writing (including but not limited to letters, emails, and/or messages via any messaging application software) exchanged between any of Mabel Lui or DLA Piper Hong Kong (or its predecessor Dibb Lupton Alsop) on the one hand, and Madam Yang and/or Angela or her agent(s) on the other hand, relating to the preparation, drawing up and/or execution of the 2005 Codicils”.

83.  Mabel Lui was a solicitor of DLA who drafted the 2005 Codicils and left DLA in 2014.^[37]  On 9 April 2021, Mabel Lui returned to DLA a file which she described as “on ‘Mrs Chen’s will’ which contains copies of the Four Scripts” (“Mabel Lui File”).^[38]

84.  Within those documents in the Mabel Lui File, DLA has confirmed that the following have been disclosed: (1) copies of the 2005 Codicils; (2) a draft of the December 2005 Chinese Letter; (3) a draft of the December 2005 English Letter; and (4) a draft of Madam Yang’s 1984 Will.^[39]  Apart from the above, the Mabel Lui File only consists of irrelevant documents and documents falling within either Class 6 or Class 7 covered by LPP[40] - this is because Class 6 is formulated to include correspondence “relating to the preparation, drawing up and/or execution of the 2005 Codicils” which plainly encapsulates matters prior to execution and attestation so as to fall outside of the rule in Re Fuld: see paragraph 49(1) above.

85.  As such, I agree with Angela that there is no basis to probe any further for Class 6.

J.  CLASS 7 - DOCUMENTS ON DLA’S FILE(S) RELATING TO THE 2005 CODICILS

86.  Same consideration as Class 6 above.  The file(s) referred to in this request are the Mabel Lui File.[41]

K.  CLASS 8 - FURTHER UNDISCLOSED TESTAMENTARY SCRIPTS

87.  Class 8 asks for “all undisclosed testamentary scripts of Madam Yang, including but not limited to (a) those stored in electronic forms in “O:CORP\000942-1” or “O:CORP\000942-Chen” on DLA’s server or computers, and (b) any other draft will, codicil or testamentary instrument of Madam Yang”.

88.  The request under Class 8 was initially abandoned at the hearing on 5 October 2023, but revived in Vivien’s Supplemental Skeleton lodged for the hearing on 5 January 2024.  At Vivien’s Supplemental Skeleton §4, Vivien stated that her original position was not to pursue this category of documents but, owing to the surprising uncovering of the Copy 2007 Codicil and the subsequent disclosure of its terms to her solicitors Anthony Siu & Co (“ASC”) for the first time on 25 October 2023, she now takes the position that further documents (including the original executed version of the 2007 Codicil (the “Original 2007 Codicil”) and information relating to this document are required.

89.  Vivien submits that under RHC O24 r7, the court can order discovery of a testamentary script on the basis that a party has possession, custody or power of the same.  In this regard, what the party seeking discovery needs to do is only to show a prima facie case based on probability arising from the surrounding circumstances of the case: Hong Jing Co Ltd v Zhuhai Kwok Yuen Investment Co Ltd, HCA 156/2006 (unrep, 23/12/2008) §24 (Chu J, as she then was).

90.  In response, Angela sets out her position as follows in her Supplemental Skeleton:

(1)  Angela has already made an affirmation of testamentary script in relation to the 2007 Codicil (Angela 9). In short, Angela’s position is that at present, other than the electronic copy of the 2007 Codicil produced by Tak Wong, she at present has no knowledge of any other version of the document (including the original) or any other testamentary script: Angela 9 §§3-5.  In a subsequent letter by DLA dated 27 November 2023 §1.1 (SYFA-76), it was made clear that Angela is unable to recall anything about the 2007 Codicil (hence she “at present” has no knowledge about the same).

(2)  Despite this, Angela is willing to make an affirmation to confirm her inability to recall the 2007 Codicil, and the inquiries that has been made in respect of the 2007 Codicil, within 35 days.  For the avoidance of doubt, any order to be made in respect of this class should be in the usual format, ie for Angela to “make an affirmation stating whether any document within Class 8 is, or has at any time been, in her possession, custody or power, and if not now (but has been) in her possession, custody or power, when she parted with it and what has become of it”.  The order should not contain the additional wording suggested by Vivien.

91.  I am satisfied that the affirmation offered by Angela as  referred to in paragraph 90(2) above is sufficient to fulfil Vivien’s entitlement under RHC O24 r7.

92.  Further or alternatively, Vivien seeks an order in terms of the Interrogatories Summons which was taken out on 22 December 2023.  This shall be dealt with separately in Section O below.

L.  CLASS 9- MEDICAL RECORD: CAPACITY ASSESSMENTS 2005-2014

93.  The broad category of Class 9 seeks documents “[i]n relation to any doctors who were instructed to carry out and/or who did carry out a capacity assessment, or a consultation relating to mental condition, or any other assessment or consultation for the purpose of litigation or the execution of any legal documents, of Madam Yang in the period between 1 January 2005 and 31 May 2014”.

94.  First, Class 9 seeks documents relating to the assessment or consultation “for the purpose of litigation or the execution of any legal documents”.  Therefore, as submitted by Angela, by definition, Class 9 necessarily includes confidential communications between solicitors and third parties (various doctors) which come into existence for the sole or dominant purpose of either (1) enabling legal advice to be sought or given or (2) seeking or obtaining evidence or information to be used in or in connection with the litigation concerned, and must be covered by LPP (subject to paragraph 98 below).  This is obvious from the nature of the documents requested in this class.  The complaint at Vivien’s Skeleton §121 that the claim for LPP was insufficient cannot be correct.

95.  LPP does not only apply to the final report, but also to draft reports and comments on a draft report (Jackson v Marley Davenport Ltd [2004] 1 WLR 2926 §§13-14 (Longmore LJ), applied in Helm Hong Kong Ltd v Au Tat Kei Decky, HCA 1517/2006 (unrep, 4/06/2010) §§16-17 (DHCJ Carlson)), as well as general correspondence with the expert (Ho Chi Sing v Tam Kwok Ming, HCPI 161/2000 (unrep, 2/06/2008) §§12-13 (Fung J)).

96.  Second, this is yet another indiscriminately wide class, defined with reference to “any doctors”, “any other assessment or consultation” (when we are concerned with only Madam Yang’s mental conditions), and a duration from 2005 to 2014 (when the 2008 Will was executed in 2008).  The Molnlycke objection plainly applies: paragraph 36 above.

97.  Third, subject to paragraphs 98 and 99 below, DLA, on Angela’s behalf, have carried out extensive inquiries, having (1) retrieved from CC and reviewed their communications with the various doctors who carried out mental capacity assessments of Madam Yang during the pendency of HCA 1739/2010; (2) made inquiries with Dr John Wong Yee Him and Dr Chung-Kwong Wong respectively;^[42] and (3) confirmed that these documents (save those disclosed) do not fall within this class.  There is no basis for Vivien to suggest otherwise.  The fact that Angela has produced some documents falling within this class cannot be the basis to suggest that there are other documents not disclosed: cf Vivien’s Skeleton §122.

98.  Fourth, Angela accepts that medical reports which have been deployed or referred to in court proceedings (such that any privilege over the same would have been waived), together with the instructions to the expert (Lam Pui Yi Anita v Secretary for Justice [2011] 1 HKLRD 56 §48 (Rogers VP)) should be disclosed.  Therefore, medical reports which fall within this category have been disclosed, ie items 1 to 4 of Schedule 3 to Chan 6.^[43]

99.  As to items 5 to 17 of Schedule 3 to Chan 6, Angela’s position is that:

(1)  As per the annotations, they were previously not disclosed on the ground that they have been deployed in in camera proceedings (FCMC 15415/2009, being the divorce proceedings between Madam Yang and Dr Chen), and hence leave would be required for their disclosure, despite the waiver of privilege.

(2)  Upon checking, the Report of Dr John Wong dated 15 March 2011, to which items 5 to 11 relate, had been deployed in the trial in HCA 1739/2010.  Nevertheless, that report (and the related items) might still be subject to the confidentiality restriction in FCMC 15415/2009, relying on Mrs A v The Executors of the Estate of A[2018] HKFC 119.

100.  In response, Vivien points out that, as is clear from §7 of the Ruling in Mrs A v The Executors of the Estate of A, “Rule 121(2) of the Matrimonial Causes Rules … provides that no document filed in the matrimonial proceedings, other than a decree or order made in open court, shall be open to inspection by the public without the leave of the court”. Plainly, this has no application to a document which is deployed in other proceedings in open court.  The fact that it is also used in the matrimonial proceedings is purely incidental and would not give rise to confidentiality when it has otherwise been used with no confidentiality attached.

101.  I agree.  In the circumstances, I am of the view that Angela should produce to Vivien the documents enumerated as items 5 to 11 of Schedule 3 to Chan 6.

M.  CLASS 10-AUDIO RECORDING

102.  Vivien no longer insists on this class: Vivien’s Skeleton §8.

N.  CLASS 11-RECORDS SHOWING USAGE OF MORTGAGE LOAN

103.  Class 11 seeks “[r]ecords (including ledgers, accounts, statements, receipts, cheques, agreements, advices) and communications showing the use of the mortgage loan borrowed by Jadespring Limited/Wei An Development Limited from United Commercial Bank from about February/March 2008.”

104.  Angela submits that the breadth of this class is disproportionate to its marginal relevance, if any.  I agree.  The relevant transactions were pleaded by Vivien for the specific purpose of alleging that Madam Yang was accustomed to having Angela organise her financial affairs, as part of the factual matrix that purportedly supports her claims in undue influence and/or fraud/fraudulent calumny.^[44]  Angela does not dispute the existence of the transactions.^[45]  As such, it is unclear what information of “evidential materiality” (Lee Sai Nam §§49-50) will surface by the accounting records - they will not shed any light on whether Madam Yang entered into those transactions by informed and free choice.

105.  By seeking the full tranche of accounting records showing the use of the loan, the class is also bound to include irrelevant documents.  The Molnlycke objection applies: paragraph 36 above.  As Mimmie Chan J put it in Billion Lead Investment Ltd, “it would be oppressive and unnecessary to order discovery of documents for each and every transaction entered into by Ming, and every payment made by Ming, irrespective of their importance or marginal relevance to the matters in dispute.” (§20)

106.  Further and in any event, it is plain that this request is directed at finding out the information as to how the mortgage moneys were used.  A discovery request for a wide class of document is a blunt instrument and it should not be resorted to when the information sought can be elicited by way of a Request for Further or Better Particulars or Interrogatories: see Li Tak Yee Samuel §106.  

O.  THE INTERROGATORIES SUMMONS

107.  The Interrogatories Summons, which seeks an order for Angela to answer interrogatories purportedly relating to the whereabouts of the 2007 Codicil’s original, is taken out pursuant to section 7(2) of the Probate and Administration Ordinance (Cap 10) (“PAO”).

108.  Angela has already made clear that she presently has no knowledge in relation to any other version of the 2007 Codicil, as she is not able to recollect anything about it.  Her only knowledge now is that an electronic copy of the same was discovered in Tak Wong’s possession: see paragraph 90(1) above.

109.  It would appear that Vivien is taking out the Interrogatories Summons because she does not wish to believe Angela.

(1)  Vivien contends that Angela 9 flouts the requirements of RHC O76 r5 in three respects: (i) it fails to swear to the Original 2007 Codicil of which she clearly has knowledge; (ii) it fails to swear to whether the Original 2007 Codicil is in her possession or under her control; and (iii) it fails to give the name and address of the person who has possession or control, or state that Angela does not know the name or address of that person.

(2)  Vivien further submits there is more than sufficient prima facie evidence that Angela was involved in the process leading to the making of the 2007 Codicil.  In these circumstances, for DLA to simply reply “at present Angela knows nothing” and for Angela to then depose that “at present I know nothing” is a blatant attempt to shut down the enquiry that may lead to the tracing and production of the Original 2007 Codicil. It is a clear attempt at suppression of an important piece of evidence in this case.  On this basis, relief under section 7(2) of the PAO is sought.

110.  Section 7 of the PAO provides:

“(1) The court may, on motion or petition or otherwise, in a summary way, whether any proceedings are or are not pending in the court with respect to any probate or administration, order any person to produce and bring into the Registry, or otherwise as the court may direct, any paper or writing being or purporting to be testamentary which may be shown to be in the possession or under the control of such person.

(2) If it is not shown that any such paper or writing is in the possession or under the control of such person, but it appears that there are reasonable grounds for believing that he has knowledge of any such paper or writing, the court may direct such person to attend for the purpose of being examined in open court or upon interrogatories respecting the same, and such person shall be bound to answer such questions or interrogatories, and, if so ordered, to produce and bring in such paper or writing, and shall be subject to the like process of contempt in case of default in not attending or in not answering such questions or interrogatories, or not bringing in such paper or writing, as he would have been subject to in case he had been a party to an action in the court and had made such default.

(3) The Registrar may, whether or not any proceedings are pending in the court, issue a subpoena requiring any person to produce and bring into the Registry any paper or writing being or purporting to be testamentary, which may be shown to be in the possession, within the power, or under the control of such person; and such person, upon being duly served with the said subpoena, shall be bound to produce and bring in such paper or writing, and shall be subject to the like process of contempt in case of default as if he had been a party to proceedings in the court, and had been ordered by a judge to produce and bring in such paper or writing.”

111.  Applications under PAO section 7(2) are rarely made: Wong Wai Ming v Wong Shing Chi Johnly, HCAP 28/2012 (unrep, 6/01/2014) §16.  The applicable principles are as follows:

(1)  The purpose of PAO section 7 is to, inter alia, guard against any fraud or suppression of testamentary instruments, which would usually have the effect of displacing interests under intestate succession as well as a deceased’s earlier wills: Wong Wai Ming §31.

(2)  The application is made where it is believed that a person has knowledge of a script but either will not make any statement on the matter or makes one that appears misleading or deliberately incomplete: Williams, Mortimer & Sunnucks: Executors, Administrators & Probate (22^nd edn, 2023) §25-19  cf Wong Wai Ming §§23-24.

(3)  Given the severe consequence of default of an order made under PAO section 7(2), ie a sanction of contempt of court, there needs to be cogent evidence showing reasonable grounds to believe that the examinee has knowledge of the testamentary document: Wong Wai Ming§32.

(4)  The application should be made for the genuine purpose of tracing a deceased’s testamentary papers, and not for any ulterior motives, including to fish for evidence: Wong Wai Ming§§29(2), 33.

(5)  In particular, the examination should not be used to obtain from attesting witnesses an account of the circumstances attending the execution of the will: see Williams, Mortimer & Sunnucks §25-19 and Wong Wai Ming §26, both citing Evans v Jones (1867) 36 LJP & M 70.

(6)  Lastly, all the relevant circumstances such as the nature and history of disputes concerning a deceased’s estate, the relationship of the person against whom an order is sought with a deceased, etc may be also taken into account: Wong Wai Ming §34.

112.  Angela submits that the Interrogatories Summons should be dismissed.

113.  First, the Interrogatories Summons is misconceived.

114.  The 2007 Codicil has now been disclosed.  There is no suggestion that Vivien would have any benefit under the 2007 Codicil.  Her purpose in seeking an order for examination is plainly not for tracing testamentary documents.

115.  Second, the Interrogatories Summons is in any event premature.

116.  The necessity is undermined given that Angela is willing to make an affirmation as mentioned in paragraph 90(2) above.

117.  Therefore, Angela is not refusing to make a statement, and the court is in no position to determine if her statement is misleading or deliberately incomplete before she is given an opportunity to make such statement: cf paragraph 111(2) above.

118.  Third, in any case, even based on present materials, there is no basis to suggest there are reasonable grounds to believe that Angela has knowledge of the whereabouts of the 2007 Codicil’s original, but has suppressed such information from Vivien.

119.  The fact that the 2007 Codicil concerns specific legacies to Angela, and the possibility that she might have been present at its execution (Siu 6 §§16-18) does not make her statement in Angela 9 §§3-5 incredible. It is important to bear in mind that the 2007 Codicil was executed a long time ago.  There is no dispute that it did not purport to make any substantive changes to division of Madam Yang’s assets, but only varied the recipient of Angela’s share from herself to trusts formed for her benefit.  On Angela’s case, it also became spent after the execution of the 2008 Will. Further, Madam Yang’s inter vivos dispositions as confirmed by her Deed of Gift of 12 December 2012 had also disposed of Madam Yang’s assets previously subjected to testamentary arrangements under her 2005 Codicils and thus the 2007 Codicil. It is unsurprising that Angela does not recall about the 2007 Codicil.

120.  Fourth, the scope of the interrogatories is excessive and wholly inappropriate.  The purpose of a large part of these interrogatories is not to trace the 2007 Codicil’s original, but to obtain from Angela an account of the circumstances surrounding the execution of the 2007 Codicil and beyond.

121.  Fifth, the purpose of the provision, being to guard against any fraud or suppression over any testamentary instruments which might have an impact on the administration of the estate, has no application here given that a copy of the 2007 Codicil had already been made available; and a fortiori where Vivien is not even a beneficiary under the 2007 Codicil.

122.  Having considered the applicable principles regarding section 7 of the PAO as set out in paragraphs 110 and 111 above, I would agree with Angela’s submissions and hold that the Interrogatories Summons should be dismissed.

P.  CONCLUSION

123.  I order that Angela do file and serve the affirmation as referred to in paragraph 90(2) above within 35 days from the date hereof.

124.  For the reasons set out above, I order that the Summons and the Interrogatories Summons be dismissed, save that Angela do produce to Vivien the documents enumerated as items 5 to 11 of Schedule 3 to the 6^th Affidavit of Chan Heung Wing within 14 days from the date hereof.

125.  I order that the costs of and occasioned by the Summons and the Interrogatories Summons be paid forthwith by the defendant to the plaintiff, such costs are to be taxed if not agreed with a certificate for 3 counsel.

126.  The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same.

127.  Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.

HCAP 10/2020

[2024] HKCFI 60

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 10 OF 2020

________________________

________________________

________________________

________________________

D E C I S I O N

________________________

A. INTRODUCTION[1]

1.  This is the hearing of the summons dated 14 August 2023 (“Summons”) taken out by the defendant (“Vivien”) against the plaintiff (“Angela”) for further and better particulars (“FBP”) in respect of the RARDCC.

2.  In very broad terms, Angela commenced the present probate action to propound the will of Madam Yang Foo-Oi (“Mother”) dated 15 February 2008 (“2008 Will”).  Angela is the sole beneficiary and the sole executrix appointed under the 2008 Will.

3.  Vivien is the other daughter.  Vivien challenges the validity of the 2008 Will on the grounds of (i) lack of testamentary capacity; (ii) no knowledge and approval; and (iii) that the 2008 Will was procured by undue influence and/or fraud/fraudulent calumny on the part of Angela.

4.  The requests made under the Summons relate specifically to the plea in §164C.5(ii) and §164H.3 of the RARDCC by Angela that over the years, the gifts made by Father to Vivien were not equal to and were more valuable than the gifts made by Father to Angela.

B.  RELEVANT LEGAL PRINCIPLES

5.  Order 18, rule 12 of the Rules of the High Court, Cap 4A (“RHC”) provides as follows:

“(1) Subject to paragraph (2), every pleading must contain the necessary particulars of any claim, defence or other matter pleaded…

…

(3) The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading…, and the order may be made on such terms as the Court thinks just.

…

(3B)  No order shall be made under paragraph (3) unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.”

6.  It is trite that pleadings should enable the other side to know with what evidence they ought to prepare for trial: Well Joint Trading Ltd v Chiu Chung Chiu,HCA 1768/2011 (unrep, 9/07/2012) per DHCJ Au-Yeung (as she then was) §§14-17.  At §15, her Ladyship sets out the functions of particulars as follows:

“(1) inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;

(2) prevent the other side from being taken by surprise at the trial;

(3) enable the other side to know what evidence they ought to be prepared with and to prepare for trial;

(4) limit the generality of the pleadings, the claim and the evidence;

(5) limit and define the issues to be tried, and as to which discovery is required; and

(6)  tie the hands of the party so that he cannot without leave go into any matters not included (although if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings).”

7.  In McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775, at 792j-793b, Lord Woolf MR (as he then was) said that the need for extensive pleadings including particulars should be reduced by the requirement that witness statements would be exchanged.  He stated that:

“The need for extensive pleadings including particulars should be reduced by the requirement that witness statements are now exchanged. In the majority of proceedings identification of the documents upon which a party relies, togetherwithcopies of that party’s witness statements, will make the detail of the nature of the case the other side has to meet obvious. This reduces the need for particulars in order to avoid being taken by surprise. This does not mean that pleadings are now superfluous. Pleadings are still required to mark out the parameters of the case that is being advanced by each party. In particular they are still critical to identify the issues and the extent of the disputes between the parties. What is important is that the pleadings should make clear the general nature of the case of the pleader. This is true both under the old rules and the new rules…” (Emphasis supplied)

8.  However, in my view, the reliance on witness statements to define a party’s case should not be overemphasised as the Court of Final Appeal has reminded us that it is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round, see Practice Note 18/0/3 of the Hong Kong Civil Procedure 2024.

C.  DISCUSSION

9.  At §125 of the ADCC, Vivien pleads that Mother had become subject to the overwhelming and domineering influence of Angela, and was confused in her mind by the “Mistaken Beliefs” (as defined) including, inter alia, (c) that “Vivien had received more valuable assets than Angela from Father’s distribution of wealth”.

10.  This plea of “Mistaken Beliefs” is relied on by Vivien in support of her plea of lack of testamentary capacity (§90A of the ADCC); want of knowledge and approval (§121A of the ADCC); undue influence (§123 of the ADCC); as well as fraud (§134I of the ADCC).

11.  As part of her answers to Vivien’s case based on the “Mistaken Beliefs”, Angela has pleaded the following at the targeted paragraphs of the RARDCC:

(1)  §164C.5(ii)

“The alleged belief under (c) was not mistaken. Over the years, the gifts or distribution made by Father to Vivien were not equal to, and were more valuable than, the gifts made by Father to Angela.” (Emphasis added)

(2)  §164H.3

“As to paragraph 134D(4), the burden is on Vivien to prove that Mother was induced by misrepresentation made by Angela in making the 2008 Will. In the ADCC Vivien has (i) failed to give particulars of the alleged representation by Angela, (ii) failed to plead proper facts to show that alleged representation was untrue, (iii) failed to plead proper facts to show that Angela made the representation knowing the same to be untrue or was reckless as to its truth, (iv) failed to plead proper facts to show that Mother was induced by the alleged misrepresentation in making the Will and (v) failed to plead proper facts to support the allegation that Angela made the alleged representations so that Mother would be induced to alter her Will in Angela’s favour. For the avoidance of doubt, each of the afore-mentioned allegations by Vivien (to the extent she has made them) is denied. If and insofar as it is Vivien’s case that she did not obtain more assets than Angela, and that this is relevant to Vivien’s case on misrepresentation, then it is for Vivien so to allege and prove. The relevance of paragraph 134D(4) is denied. Without prejudice to the aforesaid, it is Angela’s case that Vivien did in fact receive more assets from Father over the years.” (Emphasis added)

12.  In my view, Angela has clearly in the 2 targeted paragraphs pleaded a positive case: that Vivien did in fact receive more assets from Father over the years.  Angela relies on this to say that the “Mistaken Beliefs” were not incorrect, and she could not have known that the “Mistaken Beliefs” were incorrect when in fact they were true.

13.  Mr Yu, SC for Angela in resisting the Summons submits that Angela’s plea of a positive case is merely reactive to Vivien’s allegation of the “Mistaken Beliefs”.  He goes on to submit that Vivien’s plea at ADCC §125(c) did not identify the period of time covered, nor itemise what assets or gifts are covered by this alleged belief by Mother.  In other words, any perceived ambiguity in Angela’s case comes from Vivien’s own formulation.  Vivien should not be asking Angela for particulars to clarify her (Vivien’s) own plea.

14.  I do not agree with this approach.  Angela in §164C.5(ii) and §164H.3 of the RARDCC has clearly pleaded a positive case.  She did not have to, but she has chosen to do so.  This is best illustrated by the terms of §164H.3 (set out at paragraph 11 above).  Save for the last sentence of that paragraph, Angela has simply attacked Vivien’s case. But in the last sentence, Angela has clearly chosen to set up a positive case of her own.

15.  The question for determination by this court is whether the targeted paragraphs are sufficient to mark out the parameters of the case that is being advanced by Angela.

C1.  Items 1 and 3 of the Requests

16.  These requests basically ask what is Angela’s case as to the beginning date of the period of time described by the phrase “over the years”.

17.  In short, Vivien complains that Angela has failed to sufficiently particularise the temporal period which she is referring to.  Whilst she has provided an end date, being “up to the point in time when Mother made the 2008 Will” (Answers dated 30 June 2023, §32(b)), she does not provide the beginning date, thus effectively leaving the temporal period open-ended and wholly undefined.

18.  Vivien submits it is embarrassing to define the time period covered by the phrase “over the years” only by the end date but not the beginning date.  The allegation may be true if one particular beginning date is chosen but untrue if another date is chosen.  It is simply impossible for Vivien to respond to this allegation without knowing which period of time is relevant to Angela’s positive cases of inequality.

19.  I agree.  The problem is highlighted by the way Angela has put her case in §18.3 of her Skeleton Submissions:

“18.3 Indeed, from Vivien’s proposed Amended Rejoinder §§5.3 & 15.2 …, where it is pleaded that (on Vivien’s case) the ‘Equality Principle’ only applied to gifts prospectively from 1 January 2003 and not to gifts prior to that date, it is readily apparent that Vivien did receive more gifts or assets from Father before that date.”

20.  If Angela is relying on unequal distribution or gifts of assets “before that date” (ie before 1 January 2003), it is imperative for Angela to specify the period “before that date”, that is, how much longer before that date.

C2.  Item 4 of the Requests

21.  This asks Angela to clarify whether the plea of “Vivien did in fact receive more assets from Father over the years” in RARDCC §164H.3 is intended to convey the same meaning or effect as the plea of “Over the years, the gifts or distribution made by Father to Vivien were not equal to, and were more valuable than, the gifts made by Father to Angela” in RARDCC §164C.5(ii).

22.  I agree with Angela that this request is unnecessary.  Clearly, “more assets” in the context must mean assets which are “more valuable”, as opposed to more items of assets.

23.  Indeed, in §21 of Angela’s Skeleton Submissions, Angela has confirmed that the meaning of these two pleas is clearly the same.

24.  Further, as pointed out by Angela, Vivien did not make this request by correspondence prior to the issue of the Summons, which would have been met with the same response above, effectively answering it.  I agree that the request should be disallowed by reason of Order 18, rule 12(6) RHC, which provides that:

“Where the applicant for an order under this rule did not apply by letter for the particulars he requires, the Court may refuse to make the order unless of opinion that there were sufficient reasons for an application by letter not having been made.”

C3.  Items 2 and 5 of the Requests

25.  Items 2 and 5 of the Requests are drafted in similar terms.  They asked for particulars of “gifts”/“distribution”/“assets” made by Father to respectively Vivien and Angela over the years, “other than those referred to in Answer 24(c)(i) to (iv) of the Answers [dated 30 June 2023]”.

26.  Vivien contends that whilst Angela has identified 4 classes/bases in Answer 24(c)(i) to (iv), she qualifies the same by saying that these are “non-exhaustive facts and matters”.  Angela alleges that this is “due to the clandestine manner in which Vivien obtained gifts from Father over the years, pending discovery and interrogatories, Angela is unable to plead the full particulars of the assets that Vivien received from Father”.

27.  Vivien further submits that even if Angela cannot provide detailed particulars, she should at least provide such description of their nature as is reasonably sufficient to allow Vivien to identify the same, rather than asserting that such list is “non-exhaustive”.

28.  I do not agree with Vivien’s position.  As mentioned above, Angela has stated that she is unable to plead the full particulars of the assets that Vivien received from Father pending discovery and interrogatories.  In the context, the reference to “non-exhaustive facts and matters” simply means there may be further facts and matters that may arise from discovery and interrogatories, it does not mean that there are further facts and matters currently known to Angela.

C4.  Item 6 of the Requests

29.  Mr Mok, SC for Vivien has confirmed during the hearing that Vivien no longer pursues this item of request for FBP.

D.  CONCLUSION

30.  For the reasons set out above, I order that the plaintiff do, within 14 days, provide her answers to items 1 and 3 of the defendant’s request for further and better particulars sought in the Annex to the Summons.

31.  I further order that the remainder of the Summons be dismissed.

32.  Each party has been partially successful on the Summons.  In the circumstances, I order that each party shall bear her own costs of and occasioned by the Summons.

33.  The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

34.  Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.

Mr Benjamin Yu, SC, leading Mr Keith Lam, instructed by Messrs DLA Piper Hong Kong, for the plaintiff

Mr Johnny Mok, SC, and Mr Johnny Ma, SC, leading Mr Tom Ng, instructed by Messrs Anthony Siu & Co, for the defendant

HCAP 10/2020

[2021] HKCFI 2436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 10 OF 2020

________________________

________________________

________________________

________________________

D E C I S I O N

________________________

A.  INTRODUCTION

1.  This is the application (“Application”)  of the defendant (“Vivien”)  by her summons dated 4 September 2020 (“Summons”)  against the respondents, Messrs Wong Shum & Co (“WSC”)  for the provision of certain documents and information said to be relevant to the issues in this action.

2.  The present action is a probate action in respect of the estate of Madam Yang Foo Oi (“Madam Yang”)  commenced by the plaintiff (“Angela”), Madam Yang’s elder daughter, to propound Madam Yang’s will dated 15 February 2008 (“2008 Will”). Vivien was her younger daughter.  The 2008 Will left all assets of Madam Yang to Angela and appointed her the executor.

3.  In summary, Vivien seeks the following orders against WSC, the firm that prepared the 2008 Will:

(1)  Discovery of documents of various description concerning: (i) the preparation of the 2008 Will; (ii)  the preparation of a statutory declaration made by Mr Wong Tak Shing (“Mr Wong”)  (the principal of WSC, the solicitor who prepared and attested to the 2008 Will)  dated 19 November 2014 (“SD”)  in relation to the preparation of the 2008 Will: Summons §1.

(2)  An order that WSC provide certain information by way of an affirmation relating to the preparation of the 2008 Will and also the SD: Summons §3 and Annex.

4.  Angela submits that this an extraordinary application. Vivien made this Application 6 weeks after Angela had filed her Statement of Claim on 24 July 2020 and since then, Vivien has seen fit to insist that the Application be determined (and any order made be complied with)  before she files her Defence.  In effect, Vivien is seeking extensive discovery and interrogatories before she has even filed her Defence so that the issues in this action have not even been defined.  The Application is also made against a non-party, when it is plain that the court has no jurisdiction to order interrogatories against a non-party.

5.  In any event, Angela further submits that Vivien’s Application is entirely meritless.  In summary, Angela relies on the following grounds to oppose the Summons:

(1)  Ground 1: The Application is plainly premature in that there is no justification for Vivien to make this Application at the pre-pleading stage.  See Section D below.  The first and key issue in this case is why should Vivien be entitled to the exceptional course of discovery and/or interrogatories against a non-party before she has even filed her Defence.

(2)  Ground 2: Most of the documents and information sought are covered by legal professional privilege.  See Section E below.

(3)  Ground 3: The court has no jurisdiction to order what are in essence interrogatories against a non-party, whether under the Larke v Nugus practice or the “supervisory jurisdiction”.  This means that §3 of the Summons is wholly without basis.  See Section F below.

(4)  Ground 4: There are miscellaneous objections to the individual requests arising from the requirements under each of the procedural bases relied on.  See Section G below.

6.  By a subsequent Summons dated 18 January 2021 (“Amendment Summons”), Vivien seeks to amend the original summons by deleting some of the requests therein.  Such an amendment is unnecessary if Vivien is simply abandoning some requests, and does not change the substance of the remainder of the requests not abandoned.

B.  BACKGROUND

B1.  Procedural history

7.  On 18 February 2020, Madam Yang passed away.

8.  Angela issued the present probate action on 20 March 2020.  The Writ of Summons was amended on 6 May 2020.

9.  In her Affirmation of Testamentary Scripts dated 3 June 2020, Vivien confirmed that she has knowledge of the 2008 Will.  Vivien nevertheless asserted that the true and last will of Madam Yang is an earlier will dated 27 October 2004.

10.  In the Statement of Claim filed on 24 July 2020, Angela pleads that the 2008 Will was duly executed in accordance with the Wills Ordinance and, to Angela’s knowledge, remains the Deceased’s true last will.

11.  Meanwhile, Vivien has since late February 2020 sent a series of letters to WSC demanding them to answer detailed questions about the preparation of the 2008 Will.  It is sufficient to note that:

(1)  In WSC’s letters dated 31 July 2020 and 5 August 2020, WSC explained that they had destroyed the file relating to the 2008 Will in around June 2015, and that this was done in the normal process of disposal of old files exceeding 7 years.  WSC also confirmed that this was done at their own initiative and that they had not informed anyone in doing so.  Angela has also confirmed that she knew nothing about this.

(2)  By WSC’s letters dated 7 and 10 August 2020, WSC had, without the consent of Angela as the executor, disclosed a copy of the SD to Vivien.  The SD contains Mr Wong’s account of the circumstances of his preparation and the execution of the 2008 Will, together with exhibits of various contemporaneous documents.

(3)  As the SD was disclosed by WSC without Angela’s consent, Angela has made clear that she, as executor, has not waived and continues to maintain privilege in the SD.

12.  Despite this, Vivien took out the present Summons on 4 September 2020.  By §4 of the Summons, Vivien asks for an extension of time for her to file and serve her Defence and Counterclaim until 28 days after WSC’s compliance with the order to be made.

B2.  Factual background: relationship between Madam Yang and Vivien

13.  In the Skeleton Submissions of Angela lodged for the hearing, the court was presented with an overview of the relationship between Madam Yang and Vivien, which is set out below so as to give context to the 2008 Will.

14.  There is a long history of acrimony between Madam Yang and Angela on one side, and Vivien on the other side.  Many of these matters have already been canvassed in the two Judgments by Anthony Chan J in HCA 1739/2010 (“1739 Action”)  respectively dated 19 November 2016 (“1739 Trial Judgment”)  and 20 January 2020 (“1739 Locus Judgment”).

15.  In short, since 2003, there had been a gradual deterioration of the relationship between Madam Yang and Vivien due to a number of incidents and events in the family, resulting eventually in two hostile litigations between mother and daughter.

16.  The evidence currently before the court also shows that the contents of the 2008 Will are consistent with various steps taken by Madam Yang after 2008 to ensure that her entire estate would be given to Angela, many of which are not and cannot be challenged by Vivien.  Angela submits that Madam Yang’s execution of the 2008 Will was in no way out of character or worthy of suspicion.

17.  Madam Yang was the wife of the late Dr Chen until their divorce on 21 April 2011.  Dr Chen was the founder of the Nan Fung group of companies (“Nan Fung”).

18.  One significant event leading up to the breaking out of the family dispute was the discovery of the “CHL exercise”:

(1)  One evening in January 2003, Dr Chen told Madam Yang that he recalled having transferred approximately HK$18 billion worth of assets to Vivien but could not recall the details. He asked Madam Yang to look into the matter.  Madam Yang suggested seeking Angela’s help and Dr Chen agreed.  Madam Yang then called Angela in the USA and asked Angela to return to Hong Kong immediately.

(2)  As it transpired, substantial Hong Kong assets beneficially owned by Dr Chen had been transferred to Chen’s Holding Ltd (“CHL”), the sole shareholder of which was Vivien.  On the evidence, Anthony Chan J found that the CHL exercise was a sham to avoid potential estate duty, because Dr Chen never really relinquished his control and beneficial ownership of the CHL assets to Vivien.

(3)  After Madam Yang and Angela found out about the CHL exercise in January 2003, family discord followed.

19.  After rounds of discussions in 2003 and 2004, Dr Chen eventually decided to distribute some of his assets to Madam Yang, Angela and Vivien.  The method of distribution was that Dr Chen would distribute to Angela and Vivien each HK$4.5 billion worth of assets, out of which each of them was to transfer HK$1.5 billion worth of assets to their mother Madam Yang.  Vivien and Madam Yang in turn entered into certain arrangements as to how Vivien would perform her obligation to transfer assets to Madam Yang.

20.  Madam Yang subsequently alleged that Vivien had taken unfair advantage of her in the making of these arrangements.  By the 1739 Action, Madam Yang claimed inter alia that Vivien had acted in breach of fiduciary duties, breach of duty of disclosure in family arrangements and had exercised undue influence on her.  Anthony Chan J upheld Madam Yang’s claims in the 1739 Trial Judgment.

21.  In July 2008, Angela made an application to the court for Dr Chen to be declared a mentally incapacitated person and for the appointment of a committee to take care of his affairs.  The family was fractured into two sides, with Madam Yang and Angela taking one side, and Vivien taking the other.  Mr Man Mo Leung (“Mr Man”)  eventually became the committee of Dr Chen’s estate.

22.  Timford Resources Limited (“Timford”)  was a company which was incorporated for Madam Yang to receive the cash to be distributed to her by Vivien (which was a sum of HK$300 million).  Vivien was the sole shareholder of Timford.  In December 2009, Madam Yang gave a direction to Vivien for the transfer of the entire shareholding of Timford to her.  Vivien refused to comply.  Madam Yang’s claim in the 1739 Action for the beneficial ownership of the shares in Timford (albeit as an alternative claim)  was also upheld by Anthony Chan J.

23.  In December 2011, Madam Yang was served with a summons by Mr Man seeking disclosure of the evidence of Madam Yang and Angela filed in the divorce proceedings between Dr Chen and Madam Yang for the purpose of an intended application of a statutory will to remove Angela as a beneficiary of Dr Chen’s estate.  In February 2012, Madam Yang made a Statutory Declaration expressing strong objection to Mr Man's application and accused Mr Man of being under the influence of Vivien.

24.  On 12 December 2012, Madam Yang executed a Gift Declaration whereby she (1)  referred to her having made the 2008 Will, (2) confirmed her intention not to make any gift to Vivien and (3) declared her intention to achieve the early completion of her gift to Angela under the 2008 Will by way of a Deed of Gift (but that the 2008 Will should remain valid).  Madam Yang also executed a Deed of Gift to the said effect.  Madam Yang’s execution of these documents was witnessed by her solicitor Mr David Wong and a psychiatrist Dr Wong Yee Him.

25.  After the 1739 Trial Judgment was handed down, Vivien relied on the Deed of Gift to argue that it had the effect of transferring Madam Yang’s claims against Vivien to Angela, such that Madam Yang had no locus or ceased to have locus to pursue the claims, and sought to set aside the 1739 Judgment on that basis.  That attempt was rejected by Anthony Chan J in the 1739 Locus Judgment.

26.  During the second trial, Vivien relied heavily on the Deed of Gift as a valid and effective document and the Gift Declaration as setting out Madam Yang’s intention or purpose in making the gift.  Anthony Chan J did find that the purpose of the gift was to accelerate the vesting of Madam Yang’s assets in Angela which were intended to be gifted to her under the 2008 Will, and that this was done to avoid disputes arising from Vivien’s anticipated challenge to the 2008 Will.  As the court observed at §§74-76 of the1739 Locus Judgment:

“74. Vivien’s case is based heavily on the terms of the Documents. It was provided in the D/G that, with the exception of the HK$200m, ‘all and any’ of Yang’s properties were immediately gifted to Angela. In the G/D, it was stated that the gift was ‘regardless of [the properties’] value’. Further, the purpose of the gift was to accelerate the bequest to Angela as the sole beneficiary under the 2008 Will. Under that Will, everything was bequested to Angela. Apart from the specific exclusion of the HK$200m, nothing was excluded from the gift. Therefore, it is contended that everything meant everything, which included the Claims. These are forceful submissions.

75. I certainly agree that the purpose of the Documents was to accelerate the vesting of Yang’s properties in Angela (save for the money reserved for herself), which were intended to be gifted to her daughter under the 2008 Will. However, that was not the entirety of the purpose, nor does it provide in full the context of the exercise.

76.  The reason why the Gift Documents came to be made was actually stated in the G/D: ‘to avoid unnecessary disputes in the future’.  It is reasonably clear from the reference to Yang’s stated determination not make any gift to Vivien that it was envisaged by her that Vivien might dispute the 2008 Will under which the entirety of her estate would go to Angela.  Indeed, Vivien was probably the only person who might challenge that Will.  The acceleration of the gift under the 2008 Will fortifies the view that the disputes sought to be avoided were the potential disputes over that Will.” 

27.  Mr David Wong also gave evidence in court that Madam Yang told him she wanted to give all her things (“所有嘢”)  to Angela.  In particular, during his exchange with Madam Yang on 4 December 2012, where no one else was present, Mr David Wong pointed out to Madam Yang that Angela would receive all of her assets under the 2008 Will and asked her why, despite having made her 2008 Will, she wanted to make a gift now to Angela.  In response, Madam Yang said that she did not want Angela to have trouble (“麻煩”)  in the future.  When asked to clarify, Madam Yang said that by trouble, she meant litigation (“打官司”).

28.  Anthony Chan J observed that there was no evidence in any shape or form that the validity of the Gift Declaration and the Deed of Gift were tainted.  At §232 of the 1739 Locus Judgment, Anthony Chan J said this: “I should mention in particular that there is no evidence in any shape of form that the validity of the Gift Documents were tainted.  Those documents were prepared with the assistance of solicitors and a doctor.  [David] Wong’s evidence that he conducted the relevant interviews with Yang in the absence of Angela was not challenged.”

C.  THE NATURE OF VIVIEN’S APPLICATION

29.  As noted above, Vivien’s Application in effect seeks specific discovery of documents and disclosure of information against a non-party before pleadings.

30.  In particular, as to the request for information, it can be seen from the Annex to the Summons that the information sought relates to the preparation of the 2008 Will by WSC, and many of the requests are in effect questions seeking to interrogate or cross-examine WSC on the SD.  Indeed, the information sought are described as “missing information” which have been “omitted from” WSC’s SD: Summons §3.

31.  Yet there is no jurisdiction to order interrogatories against a non-party, or the witness of a party: see Hong Kong Civil Procedure 2021 Vol 1, Practice Note 26/4/2.  There is indeed no attempt to invoke Order 26 of the Rules of the High Court (“RHC”).

32.  I agree that it is therefore important to scrutinise the precise jurisdictional and procedural bases relied on by Vivien for taking the extraordinary step of applying for the provision of documents and in effect interrogatories against a non-party before pleadings are filed.

33.  It appears that Vivien is basing her Application on the following:

(1)  The court’s jurisdiction to order discovery of documents against non-parties under section 42 of the High Court Ordinance, Cap 4 (“HCO”)  and Order 24, rule 7A of the RHC (as indicated in the margin note of the Summons).

(2)  The practice based on Larke v Nugus [2000] WTLR 1033 where the preparer of a will could provide a statement of his intended evidence on the circumstances of the preparation and execution of the will.

(3)  The court’s supervisory jurisdiction over its officers, and to make a so-called “compensatory order” in circumstances where, according to Vivien, WSC has breached their duties by destroying the will file.

(4)  The court’s jurisdiction to require its own witness to provide information in its inquisitorial role in a probate action.

34.  Each of these bases will be further discussed below in the context of each of Angela’s grounds of objection identified at paragraph 5 above.

D.  GROUND 1: PREMATURITY

35.  The starting point must be that the court generally will not order specific discovery or interrogatories before close of pleadings:

(1)  It is trite that pleadings are what define the issues in an action.  Hence, it is said that the court’s practice is to refuse discovery before the close of pleadings save in exceptional circumstances: Hong Kong Civil Procedure 2021 Practice Note 24/3/5; Bank of India v Gobindram Naraindas Sadhwani [1994] 2 HKLR 69, 71 (Kempster J, as he then was).  This stands to reason - at the very least a party should plead her case so that the court knows what issues are joined, before the court can sensibly be required to adjudicate on interlocutory applications.  Otherwise, there is a real risk that the discovery application would be unfocused on the disputed issues and lead to wastage of time and costs.

(2)  In the context of specific discovery against a non-party:

(a)  Order 24, rule 7A(3)(b)  RHC provides that in applications for pre-action discovery and third-party discovery, the applicant should file an affidavit to demonstrate that the documents are relevant “if practicable by reference to any pleading served or intended to be served”.  This clearly envisages that even in such extraordinary applications for discovery, the application should normally be made only after the applicant has pleaded its case.

(b)  It is for the party applying to show that the order is necessary either for disposing fairly of the cause or matter or for saving costs: see Order 24, rule 8(2); Hong Kong Civil Procedure 2021 Practice Note 24/8/1A.  As the wording of Order 24, rule 8(1)  suggests, the inquiry involves whether discovery is necessary at that stage of the cause or matter, and if the court is not satisfied as to necessity, it may dismiss or adjourn the application.

(3)  Similarly, interrogatories are rarely ordered before defence, and would usually not be ordered until after witness statements: see Hong Kong Civil Procedure 2021, Practice Note 26/4/3.

36.  Vivien appears to try to justify making the Application at this particular juncture, ie before she files her defence, by relying on the practice based on Larke v Nugus[2000] WTLR 1033.  It is said that the documents and information would “assist Vivien in streamlining and refining her case” on her challenge of the 2008 Will.

37.  As submitted by Angela, it is clear that these matters do not provide any justification at all, let alone amount to exceptional circumstances, for Vivien’s application to be acceded to at this stage.

38.  First, it is plain that the general rule in normal civil actions is that a party is not entitled to discovery before filing a defence.  I agree there is no reason in principle or authority for probate actions to adopt a different, or opposite, rule.  The mere fact that there is an inquisitorial element in probate actions does not change the fundamental procedure that the parties will still have to properly plead out their case before engaging in discovery.  The rules of court made specific provisions for a probate action under Order 76, but there are no specific provisions for early discovery.  The position on timing must be governed by the general rules under Order 18 as to pleadings and Order 24 as to discovery.

39.  Second, it is plain that the practice under Larke v Nugus does not have the force of law and cannot be the basis of an early discovery application:

(1)  This practice is, at most, merely that where a serious dispute arises as to the validity of a will beyond the mere entering of a caveat, and the knowledge of the solicitor who prepared the will makes him a material witness, he should make available a statement of his evidence regarding the execution of the will and the circumstances surrounding it to anyone concerned in the proving or challenging of that will: Williams, Mortimer & Sunnucks: Executors, Administrators & Probate (21^st edn, 2018), §29-14.

(2)  The practice originated from a recommendation by the Law Society in England & Wales: see Larke v Nugus, 1036B-F.  It is thus a matter of professional conduct for solicitors who are will preparers.

(3)  It has also been described in subsequent cases as being a matter of “best practice” for will preparers in general: Catling v Catling [2014] WTLR 955 at §42.

(4)  In Larke v Nugus, Brandon LJ examined whether there was any underlying rationale for such a practice, and suggested that the principle is that when there is litigation about a will, every effort should be made by the executors to avoid costly litigation if that can be avoided and one such measure that can be taken is the early disclosure of the will preparer’s evidence: see 1044C-F.

(5)  In that case, the relevant will was found to be valid, but the English Court of Appeal refused to order those challenging the will to pay the costs of the challenge on the ground that the will preparer refused to make available at an early stage information which could have prevented a full trial.  The case therefore suggests that a failure to follow the practice may lead to adverse consequences on costs for an executor; it is certainly not an authority for compulsory discovery or interrogatories before pleadings.

(6)  Significantly, the latest version of the Practice Note on “Disputed wills: Guide for practitioners” published by the Law Society of England & Wales on 20 December 2019 makes clear that a solicitor is under no duty to comply with a request for a Larke v Nugus statement.

(7)  Indeed, in the recent English case of Gardiner v Tabet[2020] EWHC 1471 (Ch), Master Clark of the probate court confirmed that the guidance in Larke v Nugus is not enforceable by court by compelling discovery or information (at §34):

“… the guidance in Larke v Nugus is intended to deal with the practical problem that a person seeking to challenge a will may have no direct knowledge of the circumstances of its preparation and execution…The information and documents are to be provided before the claim is commenced. If it [is] not provided, there may be costs consequences. The obligation is a matter of professional conduct for solicitors, and ‘best practice’ for lay persons; it is not enforceable by an order of the court.” (emphasis added)

(8)  Indeed, no authority has been cited by the parties to the effect that a party can apply to the court for an order compelling a will preparer to make a statement of his evidence prior to pleadings.

(9)  It should further be noted that Vivien does not say in the present case that the early disclosure sought would help to avoid litigation - quite the contrary, it is plain that she will fight the probate action to the very end regardless of whether she would obtain early disclosure.  The rationale of Larke v Nugus that the executor should avoid costly litigation thus in any event does not apply.

40.  Third, the court must not lose sight of the fact that Mr Wong, the will preparer, has actually made available to Vivien a statement of his evidence in the form of the SD (despite that this was allegedly done without the consent of Angela, the executor under the 2008 Will).

41.  In particular, Mr Wong gave evidence in the SD:

(1)  That he met Madam Yang on a previous occasion on 2 December 2007 in order to take instructions from her concerning Dr Chen’s MIP proceedings.  He raised the matter of Madam Yang making a will as a side issue.  (SD §§2-10)

(2)  That Mr Wong had 2 telephone conversations with Angela about the making of a new will by Madam Yang (SD §§11-18).  Mr Wong’s contemporaneous handwritten notes of these conversations have been exhibited.

(3)  As to the process of him drafting the 2008 Will based on instructions received through Angela (SD §§19-24).

(4)  As to how the 2008 Will was executed by Madam Yang on 15 February 2008.  He explained in detail what happened on the day of execution, and the process of execution at Madam Yang’s residence, including the medical examination by Dr Ben Cheung (“Dr Cheung”), his explanation of the contents of the will to Madam Yang, and his discussion with Madam Yang as to why Vivien was excluded from the 2008 Will (SD §§25-28).  Contemporaneous notes kept by Mr Wong had been exhibited.

42.  This is on any view a detailed and proper account of Mr Wong’s evidence as to execution of the 2008 Will and the circumstances surrounding the same.  In other words, the Larke v Nugus practice has been complied with.

43.  What the Larke v Nugus practice requires is for the will preparer to give a statement of his intended evidence, so as to give the interested parties in a probate action some idea as to the circumstances of the execution of the will.  It is certainly not intended to require the will preparer to be cross-examined, before pleadings, as to those circumstances, or to allow a party to investigate alleged “evidential lacunae”, at an early stage.  No authority whatsoever has been cited to support such a bold proposition.

44.  I agree it is plain that the documents and information sought in the Summons went far beyond what is required under the Larke v Nugus practice.  In particular:

(1)  As to Vivien’s requests for documents, it is clear that Vivien is trying to find documents to challenge the account given by Mr Wong:

(a)  §1(1)  of the Summons simply asks for the original or different versions of the same copy wills already exhibited to the SD.

(b)  §1(2)  asks for documents with similar reference number that might exist “insofar as they relate to” the preparation of the will.

(c)  §1(3)  just asks for all notes relating to the preparation of the will, on top of the contemporaneous notes already exhibited.

(d)  §1(4)  asks for “written instructions” relating to the preparation of the will, when the SD has already made clear that most of the instructions were given through Angela orally.

(e)  §1(5)  even asks for correspondence by Mr Wong with other persons and firms which relate to the preparation of the will and also the preparation of the SD.  The existence of these correspondence is mostly based on a speculation that these persons were involved because Mr Wong had copied them in the recent correspondence with Vivien’s solicitors.

(2)  Similarly, the requests for information in the Annex are attempts to test Mr Wong’s account in the SD, to see whether there were other communications with Angela (§§(5), (8), (10)), and whether there were other persons involved in the will preparation and execution process (§§(9), (11), (12), (13), (14), (15)).

45.  Fourth, regardless of Vivien’s allegations of “evidential lacunae” in the SD, it is plain that Vivien has no difficulty in pleading a defence setting out her challenge to the 2008 Will.  Vivien has now already indicated in affidavit evidence that she will rely on the grounds of lack of knowledge and approval, the existence of alleged suspicious circumstances and undue influence by Angela.  Even Vivien herself says that the requested information and documents would only assist her in “streamlining and refining her case”.  There is markedly no suggestion that she will be unable to plead her case without the documents and information sought.  Indeed, it is plain from a scrutiny of the individual requests that the requests do not go anywhere to the material facts regarding Vivien’s intended grounds of challenge, but are matters of evidence and cross-examination.

46.  This comes nowhere near any exceptional circumstance or showing necessity to justify an order of discovery or interrogatories at this stage.

47.  Fifth, and for the sake of completeness, Vivien’s novel argument based on the court’s supervisory jurisdiction over its officers to make a so-called “compensatory order” and its inquisitorial role in a probate action (the problems of which will be addressed in Sections F2 & F3 below)  does not provide any justification for early disclosure.  In any event, even on Vivien’s own case, an order under this route is to “compensate” the effect of the will file having been destroyed by WSC.  That does not explain why the order must be made now, or why Vivien cannot file her defence before the information and documents sought are made available in the normal course of discovery.

48.  I am not impressed by Vivien’s further submission that there is an urgent need to preserve possible electronic copies of documents in the will file.  Surely, if there is a detailed scheme to destroy evidence, it would have been completely carried out already.

49.  In sum, none of the purported bases advanced by Vivien justifies the making of a discovery application at the pre-pleading stage.  For this reason alone, the entire Application ought to be dismissed.

E.  GROUND 2: PRIVILEGE

E1.  Applicable legal principles

E1(a).  The starting point: Legal professional privilege (“LPP”)

50.  As submitted by Angela, there are 2 categories of LPP:

(1)  Legal advice privilege attaches to communications between a client and his lawyer, where the lawyer is acting in the course of his professional relationship and within the scope of the lawyer’s professional duties, under conditions of confidentiality, and for the purpose of enabling the client to seek, or the lawyer to give, legal advice or assistance in a relevant context: Passmore: Privilege (4^th edn, 2020), §2-003.

(2)  Litigation privilege attaches to confidential communications between a client or his lawyer and a third party for the dominant purpose of use in litigation that, at the time the communication is made, is either proceeding or pending, or reasonably anticipated or in contemplation, and to which the client is or reasonably anticipates becoming a party, for the purpose of either (1)  enabling legal advice to be sought or given or (2)  seeking or obtaining evidence or information to be used in or in connection with the litigation concerned: Passmore, §3-006.

51.  In Hong Kong, LPP is a fundamental right entrenched by Article 35 of the Basic Law.  As a fundamental right, LPP does not involve a balancing of interests: Secretary for Justice v Florence Tsang Chiu Wing (2014)  17 HKCFAR 739, §§28-29.

52.  LPP survives the death of the client.  Once established, it remains in existence unless and until it is waived.  Upon the death of a client, the right to waive the privilege passes to the successor in title: see Addlesee v Dentons Europe LLP[2020] Ch 243 at §§33-34 (Lewison LJ).

53.  Vivien asserts that LPP does not apply in a case where the will is contested and thus there can be no claim to LPP in respect of a Larke v Nugus statement.  To support this proposition, she cites Russell v Jackson (1851)  9 Hare 387; 68 ER 558; the Canadian case of Geffen v Goodman Estate[1991] 2 SCR 353 and R (Prudential plc)  v Special Commissioner of Income Tax[2013] 2 AC 185 at §17.

54.  However, on true analysis, I agree the authorities only establish that there can be no claim of privilege in a situation of joint or common interest, and the case of a disputed will does not fall within such an exception.  The Canadian authorities do not represent the law in England or in Hong Kong.  It is certainly not the law of Hong Kong that once there is a contest of a will, all contestants are entitled to open up the LPP of the testatrix.

E1(b).  No joint interest in the case of a contested will

55.  It is a well-established exception to LPP that there can be no claim to privilege amongst persons who enjoy some form of joint or common interest in the subject matter of a communication at the time it comes into existence: see Passmore, §§6-001 to 6-006.  For these purposes, a joint interest is usually one in which two or more parties share in (and therefore required legal advice on)  the same right or interest, such as a joined or shared interest in the same property rights: Passmore, §6 005.

56.  An obvious example of joint interest is trustee and beneficiaries: see Passmore §6-022.  Joint interest also exists amongst undisputed beneficiaries: see Passmore, §6-127.

57.  The principle dealt with in Russell v Jackson, supra is based on the existence of a joint interest amongst beneficiaries.  However, the case is not concerned with a situation of a disputed will with claims by beneficiaries under competing wills.  Rather, all parties were claiming under the same will:

(1)  In that case, the testator made a will leaving the residue of his estate to the defendant executors.  The next of kin of the testator alleges that this gift of the residuary estate was made to the executors upon a secret trust for founding a socialist school in Birmingham and sought an order to enforce this: 387.

(2)  The solicitor preparing the will gave evidence of the testator’s instructions concerning such intention, and his communications to him of his concern that this might be illegal: 388-389.  The question in that case was whether such evidence is admissible because they were subject to privilege: 390.

(3)  It was in this context that Sir Turner VC held that the privilege did not belong to the executors as against the next of kin in this case, apparently taking the view that both the next of kin and the executors were claiming under the testator: 393.  This is correct - the next of kin was not attacking the will, they were in fact relying on the disposition of the residuary estate to the executors under the will, but contended that such a gift contained the additional feature of a secret trust.  Thus, both parties, while competing, were claiming under the same will.  It is readily apparent why they would be under a joint interest in that case.

58.  Thus understood, it is plain that Russell v Jackson does not apply to the present case or the general situation of a contested will.  Under a contested will situation, the beneficiaries under the previous will and the beneficiaries under the present will cannot in any sense be said to be claiming under a joint interest.

59.  Vivien also appears to suggest that the Prudential case supports the proposition that there is a general exception to LPP in the case of a contested will.  However, Lord Neuberger’s statement in Prudential at §17 is only that there is a “miscellaneous exceptions” to LPP “in a probate case where the validity of the will is contested”.  It is not at all clear what exception is being referred to.  The case itself is not concerned with LPP in a disputed will context and this highly-generalised statement cannot be taken literally in the way suggested by Vivien.

60.  More importantly, Vivien has not been able to cite any other English authority or textbook supporting such a sweeping exception.  I agree it is more likely that Lord Neuberger was referring to the rule in Re Fuld as explained in Section E1(d)  below, which is a recognised exception to LPP.

E1(c).  The practice under the case of Larke v Nugus

61.  Vivien appears to suggest that Larke v Nugus is an example of the lack of privilege in a contested will situation.  However, the authorities concerning Larke v Nugus in fact suggests that privilege continued to exist in a contested will context.

62.  There is nothing in the case of Larke v Nugus itself which suggests that it was intended to create an exception to LPP:

(1)  In fact, Brandon LJ merely quoted at 1036B-E from the Law Society’s then in place guidance note in order to explain the source of the practice, and they were in these very different terms:

“Privilege cannot be claimed by one person claiming under a deceased testator's will as against another person having a similar claim in respect of matters communicated by the deceased to the solicitor during the lifetime of the deceased.” (emphasis added)

(2)  Here, Vivien has no claim under the 2008 Will as she is not a beneficiary and has no similar interest for the communications relating to the 2008 Will.

(3)  Rather, as can be seen from the discussion at paragraph 39 above, Larke v Nugus is a matter of best practice which does not have the force of law and cannot be enforced in the courts.  It is difficult to see how a matter of best practice which is not enforceable in the courts can have the effect of abridging the fundamental constitutional right in LPP in any way.

(4)  Further, the practice in Larke v Nugus has been said to be based on an executor’s duty to avoid costly litigation concerning the will: see Brandon LJ at 1044C-F.  A failure to comply with this duty may have adverse costs consequences for the executor.  There, the executor refused to provide information relating to the preparation of the will at an early stage and despite having succeeded in proving the will, it was held that the other party was entitled to insist upon the matter being tried such that in the end no order as to costs was made: 1035G, 1044H-1045D.

(5)  But this rationale can only apply to a will preparer who is also the executor.  This was the case in Larke v Nugus itself, but does not apply in the present case.  In other words, Mr Wong, not being the executor, can have no duty to avoid costly litigation in respect of the 2008 Will.

(6)  An executor who is also the will preparer will be in the position to waive any LPP which would normally attach to documents and information such as the instructions given by his client such that if he chooses to give a Larke v Nugus statement, the LPP would in turn be waived.  Mr Wong is not in a position to waive LPP.

(7)  As such, given that the court in Larke v Nugus was not concerned with any claim to LPP, I agree it is highly unlikely that the court would have intended to somehow compel the will preparer (who is not an executor and has no duty or right to waive LPP for the testatrix)  to waive LPP.

(8)  Indeed, once it is clear that the underlying rationale is a duty to avoid costly litigation, it is plain that this consideration cannot possibly abridge or outweigh the fundamental constitutional right of LPP, which is not subject to weighing of other competing interests.  A failure to comply with such a duty, as shown in Larke v Nugus, may have adverse costs consequence for the executor in the probate litigation.  There is certainly no reason to enforce this duty or practice by additionally requiring the waiver of LPP.

63.  That LPP remains intact and not affected by Larke v Nugus is supported by the following passage from Halsbury’s Law of England (5^th edn)  Vol 103 (2016)at §882:

“Difficulties can arise in a probate claim as to the evidence of a testator’s advisers, especially solicitors with whom there was a privileged relationship during his lifetime. The death of a client does not end the privilege, which can be claimed by successors in title …

A solicitor who is not a party to probate proceedings cannot be required to answer requests for information, but he can be ordered by the court to disclose documents, and he can be summoned to give evidence or produce documents. If there is any claim to privilege for his potential evidence he should refuse disclosure to anyone until compelled upon by witness summons to answer questions after argument on the claim to privilege. Subject to this qualification a solicitor should if there is a genuine dispute, make available a statement of his evidence about the execution of the will and the circumstances surrounding it to any person who asks him for such a statement, whether or not the solicitor is acting for persons propounding any will of the testator. A failure to do so which leads to unnecessary litigation may mean that those challenging the will are not ordered to pay the costs of the challenge even though the will is found to be valid.” (emphasis added)

64.  In other words, in the view of Halsbury, it is only if there is no question of privilege that the solicitors should provide a Larke v Nugus statement, and the failure to do so would only have consequences in the issue of costs.

65.  In the local context, §8.01 of the Hong Kong Solicitors’ Guide to Professional Conduct (3^rd edn, 2013) published by the Law Society of Hong Kong also gives the advice against a solicitor disclosing information about a will he assisted in preparing without the consent of the executors:

“8.01. Duty of confidentiality

A solicitor has a legal and professional duty to his client to hold in strict confidence all information concerning the business and affairs of his client acquired in the course of the professional relationship, and must not divulge such information unless disclosure is expressly or impliedly authorized by the client or required by law or unless the client has expressly or impliedly waived the duty.

Commentary

…

12. The duty to keep confidential a client’s affairs continues after the client dies and the right to permit disclosure or withhold it passes to the personal representatives of the client.

13. The contents of a will prepared by a solicitor should not be disclosed before probate is granted, except to or with the consent of the executors. …” (emphasis added)

66.  It is plain that the above views are premised on the continued existence of LPP in the situation where the will is disputed.  If there had been a general exception to LPP that whenever someone disputes the will, she would automatically become a potential beneficiary under either an earlier will or intestacy so as to enjoy some form of “joint privilege”, then there could never have been any concern regarding LPP.

E1(d).  The rule in Re Fuld

67.  The contention that there is a general exception to LPP in a contested will case is also inconsistent with the existence of a well-established but more limited exception to LPP, arising from the case in Re Fuld (No 2) [1965] P 405.

68.  Under the rule in Re Fuld, the court may require an attesting witness to produce statements made by him dealing with the question of attestation and execution notwithstanding their general privileged nature: 409G-411A (Scarman J).  The precise scope of the rule is subject to a detailed examination by Lam J (as Lam PJ then was)  in Chinachem Charitable Foundation Ltd v Chan Chun Chuen[2009] 2 HKC 365.

69.  In Chinachem, the defendant made an application for specific discovery in respect of a number of categories of documents relating to the making of witness statements by the attesting witnesses of the disputed will made for the purposes of the probate action.  It was common ground that the documents are covered by litigation privilege, and arguments revolved around the scope of the rule in Re Fuld.

70.  Lam J held:

(1)  The rule is applicable only to evidence of the attesting witness on the question of attestation and execution.  The fact that the witness is an attesting witness (and as such a witness of the court)  does not remove the privilege attaching to all his communications with the solicitor of a party.  The protection is only removed in respect of statement of attestation and execution.  (§§10-11)

(2)  Whilst an attesting witness is a witness of the court on other relevant issues like testamentary capacity and knowledge and approval, without more, that does not lead to the production of documents which might be protected by privilege.  Communication between a solicitor with an attesting witness for the purposes of litigation is privileged except in so far as the statement contained evidence of that witness on attestation and execution.  (§§12-15)

71.  Thus, in respect of the application in Chinachem:

(1)  The witness statements made by the attesting witness for the executor proving the will (items 1 & 2)  were voluntarily disclosed.  (§2)

(2)  For the drafts of such witness statements (items 3 & 4)  and attendance notes (item 5), the court considered that they may or may not contain an accurate record of the evidence of the attesting witness on attestation and execution.  He therefore directed a further affidavit to explain this.  (§§16-20)

(3)  The court rejected the discovery requests for correspondence relating to the preparation of those witness statements (item 6)  or relating to the circumstances in which the plaintiff obtained the will, as they do not contain evidence of the attesting witness (item 7).  (§22)

72.  As a matter of principle, Lam J did not draw a distinction between litigation privilege and legal advice privilege.

73.  A similar conclusion was reached in the Australian case of Gordon v Hilton(unreported, NSW Supreme Court Probate Division, 13 October 1995)at p 3.  Young J gave example of statements on the general history of the family and observations as to the health or possible eccentricities of the testatrix as being outside the scope of the Re Fuld exception.

74.  The rule in Re Fuld and Lam J’s decision in Chinachem were referred to with approval by the Appeals Committee of the CFA in Chinachem Charitable Foundation Ltd v Chan Chun Chuen (2011)  14 HKCFAR 798, §§10-11.

75.  The existence of this rule, and any dispute arising from this rule, is inconsistent with the much wider exception to LPP which arises whenever there is a disputed will.  There would have been no need to resort to the rule in Re Fuld if there is no LPP whatsoever whenever someone disputes a will.

76.  It is therefore plain that Vivien is contending for a position which is plainly not Hong Kong law.  It is certainly not Hong Kong law that whenever there is a contest of the validity of a will, all contestants could claim a “joint privilege” in the LPP of the testatrix. That would be a fundamental intrusion of the testatrix’s constitutional right to LPP.

E1(e).  The Canadian position

77.  As to the Canadian Supreme Court case of Geffen v Goodman Estate[1991] 2 SCR 353, it is clear that the position under Canada is markedly different from the position in England and Hong Kong and the Canadian authorities should not be followed in Hong Kong.

78.  Geffen concerns a dispute as to the validity of a trust deed executed by a woman who had passed away.  There was a question as to whether the evidence of the solicitor who drafted the trust deed ought to have been admitted.  The trial judge admitted the evidence on two grounds, the first of which was that the circumstances of the case were analogous to the contested wills context (see 381f-382a).

79.  It was in discussing whether the trial judge was correct in drawing an analogy between a dispute as to the validity of a will to that of a dispute as to the validity of a trust deed that Wilson J discussed the explanation for the exception that was developed under Canadian law whereby a solicitor is permitted “to give evidence in wills case” (see 384g).

80.  In discussing this exception under the Canadian law, Wilson J referred to the views of Professor Wigmore on the rationale for such an exception in American law: see 384h-385e.  The first rationale he gave only related to the actual contents of the will, ie that the testator only intended confidentiality during his lifetime.  The second rationale he gave concerns only the state of mind of the testator, in cases where there is an allegation of insanity or undue influence, on the basis that the testator did not believe he or she was insane or undue influenced and thus could not have intended to communicate matters relating to his/her state of mind confidentially.  This, with respect, is highly contrived and difficult to understand.  It plainly does not represent the law in England or Hong Kong. There is no such exception known to English or Hong Kong law.

81.  Wilson J also referred to the view of Professor Phipson that the general rule in a joint interest situation may give rise to an exception to LPP in the wills context: see 385f-h.  However, it is not at all clear that Phipson’s view is that this would apply in all cases of contested will.

82.  It would appear that the court there acknowledged that the Canadian case has adopted a unique approach: see 385i.

83.  In this respect, the fundamentally different approach in Canada can be seen from the way in which the court decided to extend the so-called exception in the wills context to the case of a disputed trust deed.  In citing with approval the reasoning in Re Ott (see 386g-387a), Wilson J was in fact setting out the basis for his approach of weighing the considerations for and against admissibility and deciding whether it is “in the interests of justice” to admit such evidence (notwithstanding LPP)  (see 387e-h).

84.  In adopting this approach, Wilson J specifically rejected the approach “of earlier days when the ‘pigeon hole’ approach to rules of evidence prevailed” in favour of a “trend towards a more principled approach to admissibility questions”, citing a couple of Canadian cases on the admission of hearsay evidence and the UK case of DPP v Boardman [1975] AC 421 on the admission of similar fact evidence.  It is apparent from his reference to Boardman that Wilson J was speaking of the approach whereby it was for the trial judge to rule on admissibility based on whether the prejudice to the accused was outweighed by the probative force of the evidence.

85.  However, as explained in paragraph 51 above, the approach adopted in Hong Kong is that LPP does not involve a balancing of interests given its entrenchment as a fundamental right in the Basic Law.  There can be no suggestion that LPP should be curtailed because in the particular case, the probative force would outweigh the prejudice or that it would be “in the interest of justice” to admit the evidence.

86.  Further, this approach is also inconsistent with Hong Kong (and English law)  which recognise the more limited exception under Re Fuld.

87.  For these reasons, I agree the Canadian approach is not Hong Kong law, and it is indeed contrary to English and Hong Kong authorities.

E1(f).  Waiver of privilege by Angela?

88.  In her reply submissions, Vivien asserts that LPP had nevertheless been waived by Angela, by the “disclosure and deployment of the SD”, such waiver would cover not only the SD and the exhibits thereto, but also the transactions which the SD purports to cover, which must include documents in relation to the taking of instructions, preparation and execution of the 2008 Will.

89.  I do not agree.  First, as pointed out at paragraph 11(3)  above, as the SD was disclosed by WSC without Angela’s consent, Angela has made clear that she, as executor, has not waived and continues to maintain privilege in the SD.

90.  Further, although generally speaking, if the other party to the litigation has seen the document, or was privy to the relevant information, then it will normally not be possible to assert privilege against that party in that documents, however, in contrast to the position on waiver of privilege, there is no prospect of arguing for disclosure of collateral material simply on the grounds of loss of confidence (see: Thanki: The Law of Privilege, 3^rd edn 2018, §§5.10-5.12).  In the present case, Angela has done no more than to point out to the existence of the SD and its contents.

E2.  Application to the requests in the Summons

91.  Applying the above principles to Vivien’s Application, most of the requests in the Summons must be refused on the ground that the documents and information sought are covered by LPP and they do not fall within the Re Fuld exception.  In particular, anything concerning the drafting of the 2008 Will or taking instructions for the same or any matter prior to the moment of execution and attestation would by definition fall outside the scope of the rule in Re Fuld.

E2(a).  Documents requested under §1 of the Summons

92.  §1(2)  of the Summons asks for “Documents and/or drafts bearing the specified document reference numbers (the “11070 Documents”), insofar as relating to the matter of the advising, preparation, drafting, drawing up and/or execution of any will and draft wills of Madam Yang, and/or the taking of instructions in respect of the same (the “Will Matter”)”.

93.  For this request, those documents that only relate to the advising, preparation, drafting and drawing up of the 2008 Will do not fall within the Re Fuld exception and would be covered by legal advice privilege.  As for those documents “relating to” the execution of the 2008 Will, there is no reason to order them now.

94.  §1(3)  of the Summons asks for “All note(s), memo(s)  and/or record(s)” (“Notes”)  relating to the Will Matter.  Again following Chinachem, these documents are generally covered by LPP, save for those of the Notes which contain an accurate record of the evidence of Mr Wong on attestation and execution.  There is no reason to order those documents now.

95.  As to the specific documents referred to under §1(3)  of the Summons, none of them concerns the attestation and execution of the 2008 Will:

(1)  It appears that Vivien is now abandoning the requests under §(a), (b), (d)  and (f): see Amendment Summons.

(2)  §3(c) asks for “The Note(s)  of the conversation between Mr Wong and Angela referred to in paragraph 10 of the SD”.  This conversation concerned Mr Wong’s suggestion that Madam Yang might consider whether she should make a new will, long before any draft of the 2008 Will came into existence.

(3)  §3(e) asks for “The document (in the form of a table)  from which the Exhibit “WTS-1” to the SD was extracted”.  That document records Mr Wong’s conversation with Angela on 24 January 2008, which appears in a table form.  There is no basis whatsoever to think that this table would contain any evidence on the attestation and execution of the 2008 Will.

(4)  §3(g) asks for “The document (in the form of a table)  from which the Exhibit “WTS-2” to the SD was extracted”.  That document records Mr Wong’s conversation with Angela on 25 January 2008.  Likewise, there is no basis whatsoever to think that this table would contain any evidence on the attestation and execution of the 2008 Will.

(5)  §3(h) asks for “Note(s)  of the telephone conversation between Mr Wong and Angela on or about 12 February 2008, referred to in paragraph 23 of the SD”.  This conversation concerned what Madam Yang told Angela about how a specific draft of the 2008 Will was to be corrected, which occurred before the date of the execution of the 2008 Will.  This plainly would not contain any evidence on the attestation and execution of the 2008 Will.

(6)  §3(i) asks for “Note(s)  of the conversation and/or communication involving Mr Wong, referred to in paragraph 24 of the SD”.  This conversation/communication occurred on 12 February 2008 and concerned Mr Wong being told to follow Madam Yang’s new instructions to prepare a revised draft of the will.  It would not relate to attestation and execution of the 2008 Will.

(7)  §3(j) asks for “Note(s)  of the telephone conversation between Mr Wong and Angela on 15 February 2008, referred to in paragraphs 27 and 28 of the SD”.  This telephone conversation concerned Madam Yang having made revisions after reading and hearing Angela’s explanation of the contents of a specific draft of the 2008 Will but before the execution of the same.  The Notes of this conversation plainly would not contain any evidence on attestation and execution.

(8)  §3(l) asks for “Note(s)  of the conversation and/or communication between Mr Wong and Madam Yang on 15 February 2008, referred to in paragraphs 36, 38 and 39 of the SD”.  These conversation and communication concerned: (i) Mr Wong explaining the contents of the 2008 Will to Madam Yang; and (ii)  Madam Yang confirming that certain remarks were indeed handwritten by her.  They happened before and do not relate to the attestation and execution of the 2008 Will.

96.  §1(4)  of the Summons asks for “Written instructions relating to the Will Matter”, which is defined as advising, preparation, drafting, drawing up and/or execution of any will and draft wills of Madam Yang, and/or the taking of instructions in respect of the same.

97.  Such written instructions would generally be covered by legal advice privilege.  By definition, advising, preparation, drafting and drawing up the 2008 Will do not fall within the Re Fuld exception. It is difficult to understand why there would be “written instructions” which relate to the execution of the 2008 Will.  In any case, this would occur before the execution of the 2008 Will and thus cannot contain any actual evidence on attestation and execution.

98.  §1(5)  of the Summons asks for correspondence and/or other communications exchanged between WSC and/or Mr Wong on the one hand and Madam Yang, Angela, Dr Cheung and other lawyers and law firms on the other relating to the Will Matter, the 11070 Documents and/or the advising, preparation, drafting, drawing up and/or execution of the SD, and/or the delivery or receipt of the SD, and/or the taking of instructions in respect of the same (“SD Matter”).

99.  In respect of correspondence relating to the Will Matter:

(1)  WSC and Mr Wong were acting as Madam Yang’s solicitor in the “Will Matter”.  Correspondence between WSC and/or Mr Wong on the one hand and Madam Yang and/or Angela on the other are plainly covered by LPP.

(2)  Such privilege would also extend to communications with agents of Madam Yang and Angela, including Messrs Wong Hui & Co, who were solicitors for Madam Yang during her life time.

(3)  By definition, advising, preparation, drafting and drawing up the 2008 Will do not fall within the Re Fuld exception.

(4)  It is difficult to understand why there would be “correspondence” which relate to the execution of the 2008 Will.  In any event, there is no basis to think that these correspondence would contain actual evidence of attestation and execution of the 2008 Will.

(5)  In respect of correspondence between WSC/Mr Wong and other lawyers and law firms relating to the Will Matter, it is at present less clear what is the nature of these communications, and it would be difficult for the court to consider whether the communications are subject to LPP.  There is no reason why these documents should be ordered now anyway.

100.  In respect of correspondence relating to the SD Matter:

(1)  According to WSC, the SD was prepared at the request of Clifford Chance who acted as Angela’s solicitors.  The privilege therefore belongs to Angela in her own right.

(2)  According to WSC, the SD was prepared with the intention of providing evidence as to the preparation and execution of the 2008 Will in case the Will is contested upon Madam Yang’s death.

(3)  Thus, all correspondence between WSC/Mr Wong on the one hand and the other persons identified relating to the SD Matter would be covered by litigation privilege.

(4)  Such correspondence is very similar to item 6 of the request considered in Chinachem: see §1.  Thus, the question is whether such correspondence contain Mr Wong’s evidence of attestation and execution of the 2008 Will.  It was held in Chinachem at §22 that such correspondence would not contain evidence of attestation and execution, and would not fall within the Re Fuld exception: see paragraph 71(3)  above.

(5)  This analysis applies most relevantly to correspondence with Clifford Chance, the solicitors engaged to prepare the SD.  But it must also apply to other persons a fortiori - it is even more far-fetched that correspondence with them would contain evidence of attestation and execution.

101.  §1(7)  of the Summons asks for any other document(s)  contained or kept in the file(s)  of or opened by WSC in respect of or concerning the Will Matter and/or the SD Matter.

102.  These documents, if they are kept in files opened by WSC the firm, are almost certainly covered by LPP, for similar reasons explained above.  Short of the SD itself or drafts SD, it is highly unlikely that any such documents would contain Mr Wong’s evidence on attestation and execution of the 2008 Will.

E2(b).  Information requested under the Annex to the Summons

103.  By the questions listed in the Annex to the Summons, Vivien effectively seeks to interrogate WSC and/or Mr Wong on a range of issues. 

104.  It appears that Vivien is now abandoning the requests under §§(1)-(4), (6)-(7)  and (16)  of the Annex: see Amendment Summons.

105.  It is plain that the information sought under the following items in the Annex are covered by legal advice privilege:

(1)  Item §(5), which concerns when and how Mr Wong was given instructions as to the contents of Madam Yang’s previous will.

(2)  Items §§(8)  and (10), which explicitly ask if Mr Wong was given further instructions on certain matters mentioned in the SD.

106.  Items §§(12)  and (13)  are based on a speculation that because WSC has copied its recent correspondence with Vivien’s solicitors, Messrs Anthony Siu & Co (“ASC”), to various other firms of solicitors, they might somehow have been involved in the Will Matter or the SD Matter.  In this respect, it is at present unclear what is the nature of the communications with these other firms, and some of these questions may involve an answer covered by LPP (as this may reveal legal advice involved in the Will Matter, and most communications in the SD Matter will likely be subject to litigation privilege).  In any case, there is no reason to make any order in respect of these items of information now.

107.  This also applies to items §§14(a)  to (c), which asks about the involvement of other persons and their involvement in the events on the day of the execution of the 2008 Will.

108.  Item §14(d) specifically asks what transpired in supposed meetings, conversations, communications on the date of the exaction of the 2008 Will between 8:22 pm and 8:56 pm.  It is plainly possible that such communication would involve matters covered by privilege, while not relating to attestation and execution of the 2008 Will.  Again, there is no reason to make any order in respect of these items of information now.

F.  GROUND 3: NO JURISDICTION TO ORDER NON-PARTY TO PROVIDE INFORMATION

109.  Paragraph 3 of the Summons seeks an order for WSC to provide various information (instead of documents)  on affidavit.  As noted at paragraph 31 above, the starting point is that the court has no jurisdiction to order a non-party to answer interrogatories.  As will be demonstrated below, none of the bases identified by Vivien - whether practice under Larke v Nugus or the supervisory jurisdiction over solicitors or its inquisitorial role (see paragraph 33 above)  - provide a proper basis for the order sought.

110.  At the outset, it is telling that Vivien is not able to cite any authority whatsoever where the court has ordered a non-party to provide information at the pre-defence stage like what Vivien is attempting here.

F1.  The practice under Larke v Nugus

111.  The true nature of the practice under Larke v Nugus has been discussed at paragraphs 39 and 62 above.  In short:

(1)  In England & Wales, the practice is a matter of professional conduct for solicitors who are will preparers.  It does not appear that this is so for solicitors in Hong Kong.

(2)  For will preparers in general, it is a matter of best practice only which does not have the force of law and cannot be enforced by a court order.

(3)  For a will preparer who is also the executor, the best practice is underlined by the executor’s duty to avoid costly litigation in respect of the estate.  As shown by Larke v Nugus itself, a failure to comply with this practice may have adverse cost consequences for the executor.

112.  As such, it is plain that the Larke v Nugus practice does not afford an independent ground for a party to a probate litigation to apply for court orders which the court has otherwise no jurisdiction to make.  It certainly does not provide any jurisdiction of the court to order a non-party to provide information.  No authority whatsoever has been cited to suggest otherwise.

F2.  The court’s inquisitorial jurisdiction in probate matters

113.  Vivien relies on the court’s inquisitorial jurisdiction in a probate action.  She cited Lord Scott NPJ’s statement at §643 in Nina Kung v Wong Din Shin (2005)  8 HKCFAR 387 and suggests that the court has the power to require its own witness, “particularly one who has made a sworn statement pertaining to the preparation and execution of the contested will”, to provide information.  However, this is misconceived.

114.  First, in fact what Lord Scott said at §643 only extended to attesting witnesses and their evidence on the circumstances in which the will was executed (and nothing more).  There, Lord Scott cited a passage in Williams, Mortimer & Sunnucks to the effect that attesting witnesses are witnesses of the court, and went on to reason that Mrs Wang in that case was in a position akin to an attesting witness.  Nothing was said about a witness or evidence relating to matters going beyond attestation and execution.  This is completely in line with the well-established scope of the rule in Re Fuld, as discussed above.

115.  In the present case, most of the requests for documents and information do not concern matters of attestation and execution. Since Vivien is not relying on this jurisdiction for the discovery of documents, it is sufficient to deal with the requests for information in the Annex to the Summons.

(1)  The requests under items §§(5), (8), (9), (10), (11)  concern the drafting and instructions given for the 2008 Will, and items §§(14)(d)  and (15)  concern what happened after the 2008 Will was executed.  They plainly do not relate to attestation and execution.

(2)  As to items §§(12), (13)  and 14(a)  to (c), they ask about the involvement of various solicitors and firms named by WSC in recent correspondence (see paragraph 106 above)  and whether there were any other person involved (see paragraph 107 above).  Given that these other persons cannot possibly be the attesting witnesses, Lord Scott’s statement also cannot apply to them.

116.  Second, Lord Scott was only making the point that Mrs Wang was compellable as a witness at trial, in the context of rejecting a suggestion that Mrs Wang had “avoided” cross-examination.  This does not say, and does not provide any basis for suggesting, that the court has to order interrogatories, or that it should exercise any power to compel a person to provide information or answer questions at the interlocutory stage. The fact that a witness may be compellable at trial (say under a subpoena), or could be compelled to answer all relevant questions at trial (which is generally the position for all witnesses)  does not mean that they could be compelled to answer interrogatories at the interlocutory stage, not to mention at the pre-defence stage.

F3.  The court’s supervisory jurisdiction over solicitors

117.  Vivien’s novel argument based on the court’s supervisory jurisdiction over solicitors appears to run as follows:

(1)  Vivien alleges that the destruction of the will file by WSC was a “wrongful and improper” act because it is a deliberate destruction of material evidence of the probate action.

(2)  This resulted in prejudice to Vivien but “to the sole benefit of Angela”.  It also prejudiced the court because it sits as an inquisitorial tribunal in a probate matter.

(3)  Thus, the court’s supervisory jurisdiction over WSC as officers of the court is invoked, and that the court should grant “compensatory relief” in the form of an order requiring WSC to provide Vivien and the court with “all the information and documents” relating to the preparation and execution of the 2008 Will.

118.  At the outset, I agree it is wholly unfair for Vivien to criticise WSC as having deliberately destroyed evidence.  There is plainly no basis to suggest any bad faith on the part of WSC, especially when Mr Wong has already made the SD and has exhibited the relevant contemporaneous notes made by him.  There is plainly no basis to suggest that Mr Wong has left out any important information or important contemporaneous documents from the SD.  Indeed, WSC has confirmed that most of the documents in the will file have been exhibited to the SD.

119.  It is also open to doubt whether WSC owed any such duty to the court in the relevant sense to invoke the court’s supervisory jurisdiction when he has never acted as solicitors of Angela or any party in the probate action.

120.  More importantly, none of the authorities relied on by Vivien provide support for her suggestion that the court’s supervisory jurisdiction over solicitors can be exercised to require WSC to provide documents and information to “compensate” for the destruction of WSC’s case file.

121.  It is true that the court has a very wide supervisory jurisdiction over its officers.  However, that does not mean that anything and everything can be done upon the application of any party.  There are well-recognised situations where the court would exercise its supervisory jurisdiction over solicitors.

122.  In R & T Thew Ltd v Reeves (No 2)[1982] QB 1283, Lord Denning MR explained that the court’s jurisdiction over a solicitor was a disciplinary jurisdiction and was exercisable in two ways: “either by punishing him; or by making him pay compensation” (emphasis added): see 1285G-H.

123.  He went on to explain that: (1) the punitive jurisdiction to strike off or suspend a solicitor was “rarely if ever exercised” since such matters would be left to the Solicitors Disciplinary Tribunal (1286A-C); (2) the compensatory jurisdiction was preserved and retained by the courts themselves, and that under this compensatory jurisdiction, a solicitor who has done something wrong (for example, caused useless costs to the other party)  could be ordered personally to compensate the other party: 1286D.

124.  The various powers and relief available to the court under its supervisory jurisdiction over solicitors are summarised in Halsbury’s Law of England (5^th edn)  Vol 65 (2020), §§497-514 and Wilkinson's Professional Conduct of Lawyers in Hong Kong (Desk Edn 2019), §§11-163 to 11-208.

125.  None of the examples given support Vivien’s contention that the court can grant an order requiring the solicitor to produce documents or to provide information.

126.  As to the court’s power to make “compensatory” orders, it appears that the court would only order a solicitor to pay compensation, either by way of wasted costs or compensation for loss caused by his misconduct: see Halsbury Vol 65, §§505, 506; Wilkinson,§§11-182, §11-208.

127.  There are recognised situations where the jurisdiction is exercised which involve something other than payment of money or compensation.  For example, the court has power to order a solicitor to perform an undertaking that he has given as a solicitor (Halsbury Vol 65,§§501-503), and to order a solicitor to deliver up (and supply copies)  to his client all documents in his custody, possession or power belonging to the applicant or relating to an action (Halsbury Vol 65,§§510-512).

128.  The judgment in Myers v Elman [1940] AC 282 at 318-319 cited by Vivien merely contains a general description of the court’s supervisory jurisdiction and the type of misconduct required to engage the jurisdiction.  The case itself concerned imposition of personal liability to pay costs on the solicitor.

129.  The jurisdiction to order return of documents is perhaps superficially closer to Vivien’s present requests for WSC to produce documents.  However, to invoke this jurisdiction, the relationship of solicitor and client must have existed between the applicant and the solicitor: see Halsbury Vol 65, §511.

130.  In Hanley v JC&A Solicitors [2018] 4 Costs LR 693, an argument was made to extend this jurisdiction to require delivery of documents which belonged to the solicitors, relying on the wide scope of the court’s supervisory jurisdiction over solicitors (and reliance was placed on Myers v Elman): see §59.  This was rejected by Soole J at §§60-75.  It was noted in particular that the exercise of the court’s jurisdiction is based on ownership of the client: §66.

131.  This case demonstrates that the exercise of the court’s jurisdiction is based on established authorities and the jurisdiction will not be extended simply by reference to the wide nature of the court’s supervisory jurisdiction.

132.  The limits on this jurisdiction to require delivery of documents show that, a fortiori, the court’s jurisdiction do not extend to require the disclosure of information, nor to a party who is not a client of the solicitor.

133.  Vivien is simply neither the client of WSC nor the “owner” of any documents or information which are in WSC’s possession or knowledge.  It is plain that the court’s supervisory jurisdiction would not assist Vivien’s application.

134.  As to Re Hulm & Lewis [1892] 2 QB 261, the court exercised its jurisdiction to order the return of money and documents over the defendant who pretended to be solicitors.  For obvious reasons, the court saw fit to exercise its jurisdiction as if the defendant was a solicitor. That does not in any way relax the requirements explained above.

135.  It follows that the court has no jurisdiction to make the order sought under paragraph 3 of the Summons, which falls to be dismissed on this ground alone.

G.  GROUND 4: OTHER MISCELLANEOUS OBJECTIONS

136.  As submitted by Angela, the individual requests for documents in paragraph 1 of the Summons are also open to the following objections.

137.  The applicable principles for specific discovery against a non-party are well-established and a useful summary can be found at Global Gaming Philippines LLC v Deutsche Bank AG, Hong Kong Branch[2019] HKCFI 405 at §§39-50 (Lisa Wong J).  The following points are relevant for present purposes:

(1)  The applicant must demonstrate a prima facie case on the usual criteria of existence, possession custody or power and relevance applicable to inter partes discovery: §41.

(2)  When what is sought is a class of documents, each document of the class must be relevant, as the court has no power to order discovery of irrelevant documents: §44.

(3)  Fishing expedition with a view to hunting around the documents in the hope that they will reveal some improprieties on the part of the opposite party or will provide information for the applicant to pursue more inquires is not permitted: §45.

138.  §1(1)  of the Summons asks for “All draft(s)  and/or other version(s)  of any will of [Madam Yang]…”.  In this respect:

(1)  The draft with reference “2008-02-04” and document number 11070d009” asked for under §1(1)(a)  has already been produced as “WTS-3” of the SD.

(2)  The faxed copy of the 2008-02-15, a draft will with handwritten remarks of Madam Yang as referred to at §§29 & 39 of the SD had already been disclosed at “WTS-5” of the SD.  This is exactly the document asked for under §1(1)(c)  of the Summons and would have covered the unmarked version asked for under §1(1)(b).

(3)  §1(1)(d)  asks for “Any other draft will(s)  or testamentary script(s)  of the Deceased not specified in (a), (b)  or (c)  above”.  Vivien has not shown any prima facie case why it is supposed there will be any further drafts. There is certainly nothing in the SD which suggests so.  Similarly, when the preamble of §1(1)  asks for all drafts or other versions “including but not limited to” those identified at §§1(1)(a)  to (d), it is not understood what other possible drafts or other versions could exist.  Such a wide formulation of the class is clearly improper.

139.  Summons §1(3) asks for certain specific notes of conversation or attendance notes.  However, the preamble asks for “All note(s), memo(s), and/or record(s)… relating to the Will Matter and/or the 11070 Documents…, including but not limited to…”.  Again, Vivien has not shown any basis for supposing that there are any other such notes or memos in existence, in light of the contents of the SD.  Such wide formulation is impermissible for a specific discovery request.

140.  Summons §1(4) asks for “Written instructions relating to the Will Matter and/or the 11070 Documents”.  However, Vivien has not explained the basis for supposing that any such written instructions exist.  The SD already contained Mr Wong’s account of how instructions were given and Vivien has no basis to suggest that there were any “written instructions” not identified in the SD.  The burden is on Vivien to show that the documents sought exist.  It is not permissible for Vivien to use a specific discovery request to seek to obtain a confirmation that no other documents exist: see Nokia Corp v TCT Mobile Ltd HCCL 19/2011 (unrep, 5 August 2013), §§23-26 (Ng J).

141.  Summons §1(5) asks for correspondence and/or other communications exchanged between WSC and/or Mr Wong on the one hand, and other persons on the other relating to the Will Matter and/or the SD Matter.  However, all that Vivien is basing this request on is a suspicion that these other persons and firms were somehow involved, because WSC copied them in its letters with Vivien’s solicitors as “possible related parties”.  I agree this does not come close to showing a prima facie case for the existence of relevant correspondence between WSC and these other persons.  Instead, this is clearly a fishing request.

142.  Summons §1(7) is obviously not a properly formulated class request.  It basically asks for any other documents contained or kept in the file(s)  of or opened by WSC in respect of or concerning the Will Matter and/or the SD Matter.  There is no attempt to show such documents exist.  It is also plainly too wide just to ask for “all other relevant documents”.

H.  CONCLUSION

143.  For all the reasons stated above, Vivien’s Summons should be dismissed with costs.

144.  In the premises, I make an Order in the following terms:

(1)  The defendant’s Summonses respectively dated 4 September 2020 and 18 January 2021 be dismissed.

(2)  The defendant do file and serve her Defence and Counterclaim within 14 days from the date of this Decision.

145.  I do not find it appropriate to make an unless order against the defendant at the present stage.

146.  Regarding costs, I order that the costs of the defendant’s Summonses respectively dated 4 September 2020 and 18 January 2021 be paid by the defendant to the plaintiff and the respondents, such costs are to be taxed on the party and party basis if not agreed (with a certificate for 3 counsel for the plaintiff).

147.  The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

148.  Lastly, I express my gratitude to the legal representatives on all sides for their helpful assistance in this matter

Mr Benjamin Yu, SC, and Mr Bernard Man, SC, leading Mr Keith Lam, instructed by Messrs DLA Piper Hong Kong, for the plaintiff

Mr Johnny Mok, SC, and Mr Victor Dawes, SC, leading Mr Johnny Ma, instructed by Messrs Anthony Siu & Co, for the defendant

Mr Wong Tak Shing, of Messrs Wong Shum & Co, for the respondents