Choy Po Chun and Another v. Au Wing Lun

HCAP 7/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 7 OF 2010

____________

____________

____________

______________

D E C I S I O N

______________

1.This is the plaintiffs’ application for leave to appeal against the part of my decision dated 7 July 2015, reasons for the decision have been handed down on 24 July 2015 (together “the July 2015 decision”), where I dismissed their earlier application to strike out/expunge the defendant’s psychiatrist expert report (“the Singer report”).

2.The applicable legal principles for granting or refusing leave to appeal are trite: one important factor is that the applicant must show the intended appeal would have a reasonable prospect of success.  In relation to an intended appeal against the exercise of discretion (which is what this application is concerned with), the appeal can only succeed if:

(a) there has been a mistake of law;

(b) the discretion was in disregard of principle;

(c) irrelevant matters have been taken into account;

(d) there has been a failure to exercise discretion;

(e) the discretion was “outside the generous ambit within which a reasonable disagreement is possible”.

3.The subject-matter of this application has been covered at para 1(c), 2(3), 3 to 5 and 23 to 32 of the July 2015 decision.  Those paragraphs will not be repeated, and only a summary will be given below.  The abbreviations used in the July 2015 decision will also be used below.

4.In gist, the July decision rejected the plaintiffs’ arguments that:

(1) the Singer report is irrelevant and/or of no probative value;

(2) the expert had acted in breach of the code of conduct in not acting independently and acting as the defendant’s advocate.

Those arguments are in essence rehearsed in this application.

5.In relation to para 4(1) above, the plaintiffs accept that expert evidence will be struck out/expunged only if it is plainly inadmissible or irrelevant: para 5, plaintiffs’ submissions dated 7 September 2015.

6.The following grounds have been put forth in support of para 4(1) above:

(a) the Singer report totally failed to give a medical definition and meaning to the term “mental capacity”;

(b) the Singer report lacks scientific basis.  By this, the complaint appears to be that the expert has not expressly referred to professional knowledge acquired in his practice other than a literature provided to him by the solicitors.

The ground put forth in support of para 4 (2) above is that the expert acted as an advocate by commenting on the Mental Health Ordinance (Cap 136) and on the plaintiffs’ Dec 2014 submissions.

7.The ground summarized in para 6(a) above fails in the light of the part of the Singer report which falls under the heading “SUMMARY”, where the expert opined that there was a lack of medical evidence of mental incapacity (which the expert apparently thought should mean “mental impairment ‘or’ abnormality of mental processes … affecting [the dec’d’s] ability to understand or make a choice in executing the Will”), and that medical evidence of mental capacity outweighs that of incapacity.  It is also important to note the expert seemed to have adopted the approach that “in psychiatric practice a person is presumed mentally normal until proven otherwise”.  The above heading was set out after a section devoted to a protracted examination of the medical (and other) documents and records pertaining to the dec’d’s illness, treatment and behaviour before his death.

8.There is no suggestion (whether at the hearing leading to the July 2015 decision, or that of this hearing) that the above meaning of “mental impairment” (and/or the approach adopted in the Singer report) is wrong or unsupportable (let alone plainly wrong or unsupportable).

9.The ground summarized in para 6(b) above fails because there is nothing inherently wrong in an expert relying on only one textbook (irrespective of who provided him with the textbook).  What matters is whether the textbook the expert relied on is literature which expert can (or cannot) reasonably rely on.  Criticisms such as the expert has been too brief and/or economical in his research are more matters (similar to matters mentioned at para 26 and 30, the July 2015 decision) to be canvassed at trial and pertains to weight (and/or reliability) rather than admissibility.

10.As regards para 4(2) above, it fails for the reasons already given in the July 2015 decision (para 30 and 31 thereof).  Those reasons are adopted here.

11.The plaintiffs also mentioned an order dated 15 December 2014 which struck out a report written by the same expert, and contend somehow that should be taken into account in the July 2015 decision. A perusal of the transcript of the hearing leading to that order shows the context to be totally different:

“[plaintiffs’ counsel]: … it’s obvious that we didn’t object to [the report] because … the experts are required to give evidence on mental capacity only. Now the issue about testamentary capacity is the ultimate question to be decided by the trial judge”;

“COURT: By the court, yes.”;

“[plaintiffs’ counsel]: Exactly, and the report … draws a conclusion on testamentary capacity, so he can’t file the same expert report.”;

“COURT: [addressing defence counsel] I think you may have a problem there, isn’t it … ?”;

“COURT: … [the expert] is not in a position to say whether … the court will have to make that decision …”;

“COURT: So I will order that the report has to be expunged”.

12.It is of course trite law the conclusion to be made on an ultimate issue (such as “testamentary capacity” and “testamentary intention” in the context of this application) is not one for the expert, but for the court: Phipson on Evidence (2013) 18^th Ed, para 33-12 to 33-17.  But it is common ground “mental capacity” is not such an issue.

13.Finally, the plaintiffs also complain that the Singer report only dealt with the dec’d’s dementia (but not the other mental problems).  Assuming (but without deciding (because this application is not the forum to so decide)) this complaint to be valid, it still does not render the Singer report inadmissible (though it may be put forth as reasons for arguing it to be incomplete and/or unreliable and so on (which are more matters of weight, and to be determined after trial)).

14.By reason of the above matters, leave to appeal is refused.

15.The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above only because of the need to balance between the length of the decision and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

16.There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this application are to be paid by the plaintiffs to the defendant.

17.I consider summary assessment of costs to be appropriate.  The above costs shall thus be so assessed.  For this purpose:

(1) the defendant be at liberty to lodge with court and serve a statement of costs within 7 days from today;

(2) the plaintiffs be at liberty to lodge with court and serve a statement of objections within 7 days thereafter.

Mr Kevin Li, instructed by Y T Tong & Co, for the plaintiffs

Mr Kenneth Lam, instructed by Simon Chan & Co, for the defendant