Sia, Eng Chong Cheu Alias Gloria Ramos Ocampo v. Chua Wong Shuk Fai

HCAP 7/2013

[2018] HKCFI 1770

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 7 OF 2013

________________________

________________________

________________________

________________

DECISION

________________

INTRODUCTION

1.I have before me an application by the 1^st Plaintiff seeking leave to adduce expert evidence on PRC law which I shall further describe below.

BASIC FACTS

2.This action concerns the administration of the estate of Madam Yau (or You) Yau (or You) Chun (尤幼珍), deceased (the “Deceased”), who died intestate on 31 March 1964.

3.Mr Sua Keng Cho (“Mr Sua”), who passed away on 22 August 1975, and the Deceased were husband and wife.

4.According to the Defendant, Mr Sua and the Deceased had only one son, namely, Sua Eng Hu (“Eng Hu”), who passed away on 18 January 2002.  The Defendant is the widow of Eng Hu.

5.According to the 1^st Plaintiff, he is also a son of Mr Sua and the Deceased.  This fact is disputed by the Defendant.

6.On 4 January 1968, letters of administration of the estate of the Deceased were granted Mr Sua.  In February 2012, the Defendant, as the widow of Eng Hu, was granted letters of administration de bonis non in respect of the unadministered estate of the Deceased, on the strength of her affirmation that the Deceased had only one son, namely, Eng Hu.

7.On 25 April 2013, the 1^st Plaintiff commenced the present action seeking, inter alia, a revocation of the said letters of administration de bonis non granted to the Defendant, and a like grant to himself.  The principal issue which requires determination at the trial is whether the 1^st Plaintiff is indeed a son of the Deceased.

8.On 4 January 2017, this court made an order, by consent, that a DNA test be carried out between (i) the 1^st Plaintiff, and (ii) 4 children of the Defendant and Eng Hu with a view to determining the 1^st Plaintiff’s lineage.  The DNA test was carried out and a report dated 21 August 2017 was issued by GenePo Dnagnostic Technology (HK) Limited.  The result of the DNA test is, it appears, not favourable to the 1^st Plaintiff’s case.  Mr Chang (for the 1^st Plaintiff) says, however, that the DNA test result is far from being conclusive in view of certain qualification or limitation mentioned in the test report.  This is not the occasion to examine the reliability of the DNA test result, or the conclusion which may be drawn from the DNA test result.  These are matters to be considered at the trial.

9.In order to prove his lineage, the 1^st Plaintiff also relies on 4 documents, namely:-

(1)     a Birth Certificate dated 21 February 1986 issued by the Quanzhou Notary Public Office, Fujian Province, People’s Republic of China, certifying that Mr Sua and the Deceased were the 1^st Plaintiff’s father and mother respectively;

(2)     a Notarial Certificate dated 4 July 2012 issued by the Quanzhou Tong Huai Notary Public Office, Fujian Province, People’s Republic of China, certifying Mr Sua and the Deceased as the 1^st Plaintiff’s father and mother respectively;

(3)     an Application for Entry to Hong Kong and Macau dated 28 February 1957 stating that the Deceased was the 1^st Plaintiff’s mother – the application was apparently approved by the immigration authority in the PRC, as shown by the application of an official seal on the document; and

(4)     an Entry Permit to Hong Kong and Macau dated 6 April 1957 stating that the Deceased was permitted to enter Hong Kong with the 1^st Plaintiff.

10.In order to boost the weight which may be given to the evidence contained in these 4 documents, the 1^st Plaintiff proposes to call a PRC law expert, Mr Stephen Wong of Haibu Attorneys-at-law, to explain to the court the verification and issuing process of those documents by reference to the relevant and applicable PRC rules and regulations, as well as the legal effect of Documents (1) and (2) under PRC law.  A copy of Mr Wong’s expert report dated 18 October 2017 is before the court, the contents of which I do not propose to set out or summaries in this decision.

DISCUSSION

11.In view of the fact that the 4 Documents were documents apparently issued or verified by public authorities in the PRC, the evidence of Mr Wong is, in my view, of relevance in determining the weight that one may properly place on the contents of those documents.

12.In his written submission on behalf of the Defendant, Mr Shek objects to the admission of the proposed expert evidence on two grounds.  First, it is said that the proposed expert evidence fails to satisfy the “relevance” test.  In particular, it is said that Mr Wong has not been provided with the DNA test report, and thus he has not considered the impact that the DNA test result may have on Documents (1) and (2).  This criticism is, in my view, misplaced.  Mr Wong is not put forward as an expert on DNA matters.  He is a PRC law expert and his evidence goes to (inter alia) the verification and issuing process and also the legal effect of Documents (1) and (2) under PRC law and practice.  What weight (if any) should be given to the contents of those documents in view of the DNA test result is a matter for debate at the trial.  The fact that Mr Wong has not considered the DNA test result in giving his opinion on PRC law and practice does not, in my view, affect the admissibility of his evidence.

13.It is further said that Mr Wong only states in general terms the duty of a notary in the PRC in ascertaining the truth of the factual matters stated in the Notarial Certificate, and his inquisitorial powers to conduct investigation, but is silent on the supporting documents relevant to the 1^st Plaintiff’s relationship with the Deceased which would normally be required for the issuance of the Birth Certificate and the Notarial Certificate, or on the actual inquiry which might have been conducted prior to the issue of those documents.  This criticism, I consider, goes to the weight that the court may give to Mr Wong’s opinion, but not the admissibility of the same.

14.In passing, I should mention that this court has recently come across another case where certified true copies of the documents kept in an internal file of a notary office in the PRC showing the investigation that was carried out and the evidence that was examined prior to the issue of a notarial certificate were adduced as evidence.  I mention this for consideration by the parties, in particular the 1^st Plaintiff, as to whether an attempt should be made to obtain similar evidence in the present case.  Without such evidence, the value of the proposed evidence of Mr Wong would, I consider, necessarily be limited.

15.Second, Mr Shek complains about the delay in making the present application.  I accept that the application could, and probably should, have been made earlier.  In so far as the progress of this action is concerned, I understand that discovery has been completed and witness statements have been exchanged.  The action is ready to be set down for trial (but for the present application), but no application for setting down has yet been made.  Mr Wong’s expert report is ready.  If the Defendant wishes to engage her own expert to prepare a reply report, I do not believe that it would take a long time to do so.  Any delay which may be occasioned by the present application for admission of expert evidence, in the context of the history of these proceedings and of the events underlying this litigation, would pale into insignificance.  On the other hand, the amount at stake is, I understand, considerable in view of the fact that the estate of the Deceased includes a real property in Causeway Bay, and the issue of the 1^st Plaintiff’s lineage is crucial in the present case.  In all the circumstances, I am not prepared to rule out the admission of relevant evidence on the ground of delay alone.

16.Lastly, in his oral submission, Mr Shek says that the proposed expert evidence is of such little value that it will be of no use for the purpose of proving the alleged relationship between the 1^st Plaintiff and the Deceased.  I consider this to be a matter for the trial.

DISPOSITION

17.For the foregoing reasons, I make an order in terms of paragraphs 1 and 1a of the 1^st Plaintiff’s amended summons dated 31 October 2017.  I shall now hear the parties on the question of costs.

[The Court heard further submissions from the parties on the question of costs.]

18.I make an order that the costs of this application, including the costs of today, be in the cause.  The Defendant’s own costs are to be taxed in accordance with legal aid regulations.

Mr Jonathan Chang, instructed by Annie Leung & Company, for the 1^st Plaintiff

Mr Randy Shek, instructed by Ho, Tse, Wai & Partners, assigned by Director of Legal Aid, for the Defendant