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

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REASONS FOR DECISION

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Introduction

1.This reasons for decision concerns the defendant’s application in essence for the following relief:

(a)   an order for a joint meeting of the plaintiffs’ and the defendant’s respective handwriting expert (with related directions);

(b)   an order for the inspection at the said joint meeting by non-destructive means of the documents earlier examined by the other party’s expert;

(c)   an order for a joint expert report to be produced subsequent to the said joint meeting (with related directions).

(“the original application”)

2.An alternative relief was added during the hearing; namely, an order for the defendant’s expert to inspect by non-destructive means the documents earlier examined by the plaintiffs’ expert.

3.At the end of the hearing, the original application was dismissed but an order was made in terms of the alternative relief above.  Below are the reasons for the decision.

Background

4.This action was commenced in March 2010.  It concerns the estate of a Mr Au (“the dec’d”) who was:

(1)   the grandfather of the 2^nd plaintiff;

(2)   the father-in-law of the 1^st plaintiff;

(3)   the father of the defendant.

5.This action is based (among other things) on a will dated 19 July 2002. The statement of claim alleges that the defendant wrongfully applied for probate of the dec’d’s estate (relying on anther will dated 5 September 2008 (“the 2008 will”)).  This action complains that the defendant:

(a)   wrongfully acted as the purported executor of the dec’d’s estate;

(b)   wrongfully intermeddled with properties belonging to the dec’d’s estate (such as collecting rents from the estate’s properties).

The defendant denies the complaint and counterclaims for the 2008 will to be pronounced.

6.The authenticity of the 2008 will is disputed. Handwriting experts have been appointed to give their respective opinion on this (and court directions for such purpose have earlier been given):

(1)   the plaintiffs’ expert is one Mr Leung whose report was dated 9 October 2014 (“Leung” and “Leung’s report”);

(2)   the defendant’s expert is one Mr Wong whose report was dated 28 January 2015 (some 3 months after Leung’s report) (“Wong” and “Wong’s report”).

7.The contents of the above expert reports show that the experts have compared the original of the 2008 will against:

(a)   in the case of Leung’s report:

(1)  about 10 original documents (on which the dec’d’s signature appears);

(2)  about 8 original documents (on which the defendant’s signature appears);

(b)  in the case of Wong’s report:

(1)  about 5 copy documents (on which the dec’d’s signature appears);

(2)  about 9 original documents (on which the defendant’s signature appears)

(as well as other copy and original documents)

8.Leung’s report opines that it is highly probable the signature on the 2008 will was written by the defendant.  Wong’s report (i) is inconclusive as to whether the dec’d signed the 2008 will, and (ii) opines that it is highly improbable the 2008 will was signed by the defendant.

This application

9.In gist, the basis of the defendant’s original application was:

(1)   the experts have compared the 2008 will against different documents;

(2)   further, Wong did not have the opportunity to compare the 2008 will against other original documents on which the dec’d’s signature appears;

(3)   a comparison of signatures appearing on various original documents is crucial to an expert’s assessment of the authorship of the signature on a disputed document.

10.In relation to para 9(2) above, the reason for that was, the plaintiffs have (for reasons not presently apparent), in their list of documents dated 3 January 2013, (i) listed only some of the original documents earlier examined by Leung, but (ii) listed them only as copy documents (“the said list of documents”). In a letter dated 6 February 2015, however, the plaintiffs confirmed they have possession of the original documents earlier examined by Leung.

11.The main ground of objection to the above was that the requested inspection was not necessary (relying on RHC Ord 24 r 13(1) (Production to be ordered only if necessary)).

12.This ground of objection is unmeritorious.  The defendant did not dispute Wong’s need to examine the original documents (para 9(3) above); nor did he dispute that the said list of documents was (i) incomplete, and (ii) inaccurate.

13.It is trite law there is a continuing duty on the part of the legal representatives to make proper discovery of documents. It was said in Hong Kong Civil Procedure 2016, Vol 1:

“It is necessary for solicitors to take positive steps to ensure that their clients appreciate at an early stage of the litigation … not only the duty of discovery and its width but also the importance of not destroying documents which might possibly have to be disclosed … ” (emphasis supplied) (para 24/2/8 thereof);

“The obligation is general, and requires the disclosure of all relevant documents whenever they may come into a party’s possession” (para 24/2/16 thereof).

14.In view of the above, I did not find favour with the plaintiffs’ argument summarized in para 11 above. They cannot pray in aid of Ord 24 r 13(1) having themselves failed to properly abide by Ord 24 (especially Ord 24 rr 1 and 2).  Two further contentions put forth by them are similarly unmeritorious:

(a)   it is irrelevant whether the defendant disputes the authenticity of the requested documents.  Those documents are necessary for another purpose; namely, they are for Wong to perform a better comparison of the signatures;

(b)   it is not a good answer to say that earlier Wong had been able to give his opinion despite the requested documents were not available to, and have not been inspected by, him.  There is no dispute (all things being equal) an examination of the original documents, as opposed to their copies, will help improve the quality of the handwriting expert evidence.

15.But the original application did not simply seek an inspection of the original documents earlier inspected by Leung; it sought a “joint” inspection of those documents (para 1(b) above).

16.The application for a joint meeting of the experts was premised principally on Wong maintaining the opinion set out in Wong’s report even after Wong has had sight of the requested document.  There is no proper basis to so conclude at this stage.  Further, it is doubtful if handwriting expert evidence is an area where a meeting for the experts to discuss their different opinions is a meaningful exercise.  But because my discretion was based mainly on the first of the two matters set out in this paragraph, no determination has been made on the second matter.

17.For this reason, the original application was premature, and should thus be dismissed.

Conclusion

18.By virtue of the matters set out above, the original application was dismissed but the alternative relief was granted.

Other matters

19.The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the reasons for 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.

Costs order

20.There is no valid reason to depart from the usual rule that costs should follow the event.  The defendant was the unsuccessful party as regards the original application.

21.The alternative relief was proposed at a very late stage of this application.  Very little hearing time was spent on it.

22.The plaintiffs therefore turned out in effect to be the successful party, and ought to be awarded the costs of this application (to be summarily assessed).

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

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