Choy Po Chun and Anothers v. Au Wing Lun

HCMP 2440/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2440 OF 2015

(ON AN INTENDED APPEAL FROM HCAP NO. 7 OF 2010)

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JUDGMENT

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Hon Lam VP (giving the judgment of the Court):

1.On 7 July 2015, Chung J dismissed the Plaintiffs’ application to strike out/expunge an expert report of Dr Singer in a probate action in which testamentary capacity is in issue. The report was filed by the Defendant. The Plaintiff sought leave to appeal against that decision. Leave was refused by the judge on 18 September 2015.

2.The Plaintiffs now apply to this court for leave.

3.The Plaintiffs’ application before Chung J was not made on the ground that expert evidence on mental capacity would not be relevant. Rather, the Plaintiff challenged the report of Dr Singer on the ground that its content was unhelpful.  The judge set out the criticisms of the Plaintiffs towards that report at paragraph 25 of his judgment.

4.Though the court undoubtedly has the power to exclude a piece of expert evidence by a decision made before the trial (see Ko Chi Keung v Lee Ping Yan [2001] 1 HKLRD 829), it is a power to be exercised with circumspection paying proper regard to the principle that arguments on weight to be attached to a piece of evidence should be decided by the trial judge.

5.In the present case, Chung J did not decide the matter in the course of a trial.  He gave due consideration to the criticisms of the Plaintiff and concluded that these were points which might constitute materials for cross-examination but they did not go as far as showing that the report was irrelevant or that Dr Singer displayed such lack of independence that his report should be excluded (see paragraphs 23 and 26 of the judgment).  In other words, the judge regarded that these were matters which go to weight rather than admissibility.

6.In the context of exclusion of expert evidence on account of the partiality of the expert, it has been said that it is a matter of case management, see Hong Kong Air Cargo Terminals Ltd v Commissioner of Rating and Valuation [2004] 2 HKLRD 702.

7.We have read the report of Dr Singer and considered the submissions of the Plaintiff in light of that.  With respect, we are not persuaded that the Judge had erred in the exercise of his discretion in refusing to expunge the report at this stage and leaving the points to be taken at trial.

8.We do not find the intended appeal carries any reasonable prospect of success.  Nor do we find other reasons in the interest of justice to grant leave.

9.We are further of the view that this is an application entirely without merits and as have been said repeatedly, unmeritorious application for leave to appeal against interlocutory case management decision should be discouraged as it would increase time and costs in proceedings and non-fruitful use of judicial resource which should have been deployed on other cases.

10.We dismiss the application for leave. We are further of the view that the application for leave is totally without merit and we make an order pursuant to Order 59 rule 2A(8) of the Rules of High Court that no party may request this determination to be reconsidered at an oral hearing inter partes.

11.In line with this court’s practice when we dismiss a hopeless application for leave to appeal against an interlocutory decision of a judge, we order the Plaintiffs to pay the costs of the Defendant on indemnity basis.  Having considered the statement of costs prepared by solicitors for the Defendant, we summarily assess such costs at $98,167 of which $80,000 is counsel’s fees.

Written submission by Mr Kevin Li, instructed by Y T Tong & Co, for the 1^st and 2^nd Plaintiffs.

Written submission by Mr Kenneth Lam, instructed by Simon Chan & Co, for the Defendant.