Choy Po Chun and Another v. Au Wing Lun and Another

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

____________________

INTRODUCTION

1.The question which arises for my decision is what should be the order of speeches and witnesses at the trial of this action which has been scheduled to commence on 20 March 2017, with 14 days reserved. 

Brief background

2.In this probate action, the plaintiffs (“Po Chun” and “Chadwick”) seek to propound a will made by Au Kong Tim, deceased (“the Deceased”) made on 19 July 2002 (“the 2002 Will”), while the defendant (“William”) seeks to propound an alleged subsequent will made by the Deceased on 5 September 2008 (“the 2008 Will”), in solemn form.

3.The Deceased had 2 sons, namely, William and Anthony, and a daughter.

4.Anthony is the husband of Po Chun and father of Chadwick.

5.Po Chun and Chadwick are two of the three executors and trustees named in the 2002 Will, while William is one of the two executors and trustees named in the 2008 Will.

6.William admits the validity of the 2002 Will, subject to it having been revoked or superseded by the 2008 Will.

7.On the other hand, Po Chun and Chadwick dispute the validity of the 2008 Will on 3 alternative grounds, namely, that:-

(1)  it was not executed by the Deceased;

(2)  the Deceased did not know and approve of the contents of the 2008 Will; and

(3)  the Deceased was not of sound mind, memory and understanding at the time of execution of the 2008 Will.

8.Both parties intend to call factual and expert witnesses, including handwriting and psychiatric experts, to give evidence at the trial.

discussion

9.It is sometimes thought to be advantageous for a party to open first, and close last, in a trial.  However, for presumably some tactical reasons which have not been explained by the parties, neither party in this action wishes to begin by opening at the trial.

10.Subject to any special directions which may be given by the trial judge, the order of speeches and witnesses is governed by Order 35, rule 7(2) to (7) of the Rules of the High Court, Cap 4A.

11.The general rule is that the plaintiff shall begin by opening his case (rule 7(2)).

12.However, rule 7(6) provides that “[w]here the burden of proof of all the issues in the action lies on the defendant … the defendant … shall be entitled to begin, and in that case paragraphs (2), (3) and (4) shall have effect in relation to, and as between, him and the plaintiff as if for the references to the plaintiff and the defendant there were substituted references to the defendant and the plaintiff respectively”.

13.In the present case, the contest at the trial will be the validity of the 2008 Will.  Since it is William who wishes to propound the 2008 Will in solemn form, the legal or persuasive burden is on him to prove on the balance of probabilities that: (i) there was due execution of the 2008 Will by the Deceased; (ii) the Deceased was of testamentary capacity; and (iii) the Deceased knew and approved of the contents of the 2008 Will (see Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, at paragraph 173 per Ribeiro PJ).

14.The fact that Po Chun and Chadwick have raised issues such as forgery, want of testamentary capacity or of the requisite knowledge and approval of the contents of the 2008 Will only means that they bear the evidential burden of adducing evidence sufficiently cogent and probative to raise those issues with a view to defeating William’s case on the 2008 Will.  However, the legal or persuasive burden of proving that the 2008 Will was the will of the Deceased remains on William (see Nina Kung, at paragraph 176, 180 and 194 per Ribeiro PJ).

15.It is, in my view, clear that the legal or persuasive burden of proof of all the three issues mentioned in paragraph 13 above lies on William.

16.Mr Chua SC advances 4 reasons in support of William’s position that Po Chun and Chadwick should open, and their witnesses should give evidence first:-

(1)  The general and usual rule is that the plaintiff should open, and also the fact that another, related, action (HCAP 9/2010) commenced by William (as plaintiff) against Anthony and Po Chun (as defendants) has been stayed in favour of the present action.

(2)  Po Chun and Chadwick have made a serious allegation of forgery against William, and the burden of proof of such allegation falls squarely on them.

(3)  It cannot be said that the burden of proof of “all the issues” in the action lies on William.

(4)  The key issue in this case is whether the 2002 Will or the 2008 Will ought to be propounded.  While the legal burden of proof is on William to propound the 2008 Will, the legal burden is on Po Chun and Chadwick to propound the 2002 Will, as the true and last will of the Deceased.

17.In respect of (1), while I accept that the general rule is that the plaintiff should open, it does not apply where the burden of proof of all the issues in the action lies on the defendant. The fact that the action commenced by William against Anthony and Po Chun has been stayed in favour of the present action is neither here nor there.

18.In respect of (2), as mentioned earlier, the evidential burden is on Po Chun and Chadwick to adduce evidence sufficiently cogent and probative to raise the issue of forgery.  However, the legal or persuasive burden of proving due execution of the 2008 Will by the Deceased remains on William.  In this regard, it is, in my view, important to appreciate that the issues of forgery and due execution are inter-related.  If the 2008 Will was duly executed by the Deceased, it means necessarily that it was not forged.  Equally, if the 2008 Will was forged, it could not have been duly executed by the Deceased.  The two issues must therefore be looked at together.  Irrespective of the issue of forgery raised by Po Chun and Chadwick, William will need to prove, and the legal burden is on him to prove, that the 2008 Will was duly executed by the Deceased.  If Po Chun and Chadwick fail to discharge the evidential burden of proving forgery, that is the end of the issue of forgery.  On the other hand, if they can discharge the evidential burden of proving forgery, that issue should, in my view, be considered together with the issue of due execution.

19.In respect of (3), I am of the view that the burden of proof of all the key issues in the action (namely, due execution, testamentary capacity, and knowledge and approval of the contents of the 2008 Will) lies on William.

20.Lastly, in respect of (4), although the 2002 Will is being propounded by Po Chun and Chadwick in this action, William has admitted its validity, subject only to its alleged revocation by the 2008 Will (see paragraph 16 of the Defendant’s Answer to the Plaintiffs’ Notice to Admit Facts dated 22 July 2016).

21.In all, I consider that William should begin at the trial by reason of Order 35, rule 7(6) of the Rules of the High Court and, in any event, in the exercise of my discretion.

22.Accordingly, the order of the proceedings at the trial shall be as follows:

(1)  opening by Mr Chua,

(2)  opening by Mr Hingorani (if any),

(3)  William’s factual witnesses giving evidence,

(4)  Po Chun and Chadwick’s factual witnesses giving evidence,

(5)  Dr Kieran Singer, Dr Tsang Fan Kwong, Dr Daniel Wong and Mr Sze Chung Leung giving evidence in that order,

(6)  closing by Mr Hingorani, and

(7)  lastly, closing by Mr Chua.

Mr Jeevan Hingorani and Mr Kelvin Li, instructed by Y T Tong & Co, for the plaintiffs

Mr Chua Guan Hock, SC, instructed by K B Chau & Co, for the defendant