Wong Lai Ming v. Wong Lai Kuen, The Executrix of the Estate of Wong Lai Wah

HCA 2564/2013

[2018] HKCFI 1740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2564 OF 2013

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D E C I S I O N

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1.This is an application by summons by the plaintiff seeking leave to adduce an additional witness statement of her brother, Mr Wong Ching-choi. The trial is going to take place on 29 August 2018 for four days. The defendant opposes this application.

2.This case involves a family dispute.  The deceased, Madam Wong Lai-wah, had sold a property in which the plaintiff had interest in the lifetime of the deceased.  The deceased held about $7.85 million proceeds of sale on behalf of the plaintiff.  The deceased did not, in her lifetime, pass on those proceeds to the plaintiff.  The plaintiff now seeks that sum from the estate.

3.The plaintiff’s case is that the sum had never been paid to her.  On the other hand, whilst the defendant did not dispute that the estate should pay the plaintiff that amount, the defendant, as executrix of the deceased, claims that by virtue of three payments made between 2012 and 2013, the sum had been fully repaid to the plaintiff. 

4.It is common ground that the deceased died on 3 December 2012.  On 3 July 2012, the mother received about $1.54 million from the deceased. On about 6 September 2012, the plaintiff received US$50,000 about HK$388,150 from the deceased.  On 17 June 2013 the mother received HK$6 million from the executrix. 

5.The issues in the present case is whether those monies represented what the deceased or the executrix ought to or had paid to the plaintiff pursuant to the plaintiff’s instructions.  The dispute is not about validity of the deceased’s will.

6.In the present case parties have filed witness statements and supplemental witness statement.  On the plaintiff’s side, there is the plaintiff and the mother as witnesses.  On the defendant’s side there is the executrix, her husband, Mr Cheung and a bank officer of Dah Sing Bank. 

7.In this application the plaintiff intends to adduce the witness statement of her brother, Mr Wong.  Mr Wong explained that he did not want to get involved in this case because the plaintiff and defendant are his elder sisters.  He declined to give evidence in about July 2015 and yet in 2018 he felt duty bound to refute any incorrect statements made by or on behalf of the defendant, to bring justice to his family after reading all the witness statements filed on behalf of the defendant, especially her 2^nd supplemental witness statement dated 2 March 2018.

8.The present summons was taken out on 24 May 2018.  Today is the pre-trial review.  For the following reasons I will dismiss the summons.

9.Firstly, this is a late application to adduce witness statements after parties have filed supplemental or even second supplemental witness statements.  Delay in itself today, these days, is a ground which will weigh heavily in the court’s scale.  At this stage when there are only three months to go before trial, the defendant’s attention should not be diverted from preparation for the trial to reading an extra witness statement and extra documents, and if necessary, to reply to that witness statement.  The prejudice to the defendant cannot be overlooked in terms of the demand on their time for preparation for trial.  Cost is no answer to an application of this kind.

10.Secondly, the brother’s evidence is not relevant to the real issue before this court, ie whether or not the plaintiff had given instructions as to how the $7.85 million should be paid to her.  The brother’s draft witness statement talks about destination of the money after it had got into the mother’s account.  Apparently, he wants to show that the mother had autonomy over the $6 million and therefore the money could not have belonged to the plaintiff or paid to the mother pursuant to the plaintiff’s instructions.

11.The other part of the brother’s witness statement talks about relationship of the members of the family and also some matters concerning US Retirement Benefits relevant to the plaintiff or her husband’s status as US residents. 

12.For the first part of the brother’s witness statement the mother could, herself, have explained her autonomy over the funds and provided the necessary documents to show how she had transferred some of the $6 million to the brother.  The plaintiff and/or her solicitors could have made this investigation with the mother at an early stage of these proceedings or even invited the brother to be a witness.

13.The brother’s initial refusal to be a witness and now a change of heart, cannot be a reason to support this late application.  All the more so where the defendant’s witness statement in March 2018 was, in itself, the response to the plaintiff’s evidence in the first place.

14.The part in the brother’s witness statement about family relationship is not relevant to the issue before the court.  As I have already stated, the will of the deceased is not the subject matter of the dispute. 

15.The third part of the brother’s witness statement talks about retirement benefits concerning the plaintiff and her husband as US residents.  Again, this is something that the plaintiff, herself, could have produced in the first place.

16.There are also matters touching on hearsay in the brother’s witness statement.  Hearsay evidence is admissible but, as I have already said, much of the hearsay evidence that the brother intends to adduce in fact is not relevant to the issues before the court.

17.Taking all matters together, I am not satisfied that there are good reasons for the delay.  There is prejudice to the defendant in being forced to face this extra witness statement at this late stage of the case.  The time for preparation of the trial should not be taken away and it is not for the court or the defendant to distil from the brother’s witness statement what is relevant and not relevant at this late stage of the proceedings.

18.Taking all circumstances into account, I am not satisfied that the court should exercise its discretion to give leave to the plaintiff for adducing this witness statement.  Summons is dismissed.

(Submission re costs)

19.Costs be to the defendant.

Mr Jeffrey Tam and Mr Geoffrey Yeung, instructed by Ho, Tse, Wai & Partners, for the plaintiff

Ms Jo Siu, instructed by Jesse H Y Kwok & Co, for the defendant