Cheung Ting Kau, Vincent v. Koo Siu Ying and Another

HCAP 4/2011

[2021] HKCFI 1540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 4 OF 2011

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Before: Hon Lok J in Chambers

Date of Hearing:  27 May 2021

Date of Decision:  27 May 2021

Date of Reasons for Decision:  31 May 2021

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REASONS FOR DECISION

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1.This is the hearing of the application by the Defendants by summons issued on 19 June 2020 (“the Application”) for leave to change their psychiatry expert from Professor Felice Lieh-Mak (“Prof Lieh-Mak”) to Professor Alistair Burns (“Prof Burns”) and to file and serve the expert report of Professor Burns dated 11 June 2020.

2.The main ground for the Defendants’ Application is that they have come to notice that Prof Lieh-Mak’s evidence was rejected in two decisions, i.e. Daimler AG v Leiduck[1] and Lau Kin Wing Ken v Deng Yiujiao[2], and her evidence was “strongly criticised” by Recorder Lisa Wong SC (as she then was) in Daimler.^[3]   It is said that if they had known about such criticisms, they would not have instructed Prof Lieh-Mak, and that they would be “greatly prejudiced” if they cannot change their expert now.^[4]  The Defendants also claim that they have lost their confidence in Prof Lieh-Mak as their expert witness.

3.In the hearing on 27 May 2021, I allowed the Application and ordered the Defendants to pay the costs of and occasioned by the Application on indemnity basis.  I now give my reasons.

Legal principles

4.There is no dispute that since the parties were given leave to adduce the evidence of specified experts and that reports have been exchanged, leave of the court is required for the Defendants now to seek to change their expert.

5.The legal principles regarding change of expert were summarized by Bharwaney J in Law Chung Fai v Lam Ming Kuen[5]:

“9. The principles that have to be applied in determining an application to change an expert witness may be summarised as follows:

(a) The court’s discretion, whether or not to allow a party to change his expert, is exercised within the ambit of the court’s management powers. These powers must be exercised in the light of the underlying objectives of the recent civil justice reform, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

(b) In the exercise of its powers of case management, the court recognises that the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties.

(c) Expert shopping is undesirable and, whenever possible, the court will use its powers to prevent it. It can lead to potential unfairness between those who can afford to shop around for the opinions of more than one expert and those who cannot. Expert shopping is not conducive to cost effectiveness of the proceedings and the expeditious disposal of a case.

(d) The disclosure of the original expert’s report, and the waiver of the privilege that would normally be attached to it, would usually be imposed as a condition for granting permission to call a substitute expert. However, the disclosure of the original expert’s report per se does not guarantee that the court would permit a substitute expert to be called.

(e) To curtail expert shopping, the court may refuse to grant leave if the only reason for calling a substitute expert is that his opinion is more favourable to the party calling him than the opinion of the original expert.

(f) However, if the court is satisfied that the just resolution of a dispute requires leave to be granted for a substitute expert to be called, it should not refuse leave simply because the opinion of the substitute expert is more favourable than that of the original expert.

(g) In every case, the court should examine the grounds put forward by the substitute expert and make a preliminary assessment of the cogency of those grounds as compared with those set out in the report of the original expert and the report of the expert engaged by the other side. If the court is satisfied that there are relevant matters canvassed by the substitute expert which may be important to the just resolution of the dispute which was omitted from the reports of the original expert, or which was outside the expertise of the original expert, a prima facie case would be made up for the admission of the substitute expert report in the interests of the just resolution of the dispute.

(h) In every case, however, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the change of experts. All these matters have to be considered and weighed in the light of and against the underlying objectives of the civil justice reform: to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.

(i) It is not possible to lay down definitive and exhaustive guidelines to cover and cater for every possible situation that may arise and which prompts an application by a party to change his expert.

(j) Ultimately, the court strives to do justice between the parties and, in cases where the court permits the parties to call expert evidence, the court strives to ensure a level playing field with fair access to proper experts for all parties.”

6.In determining such kind of application, it is permissible for the court to take into account the consideration that a party should not be required to reply on an expert on whom a party has lost confidence.  However, the court must be entitled to scrutinise this alleged loss of confidence, and also take into account other countervailing factors.[6]

7.In Edwards-Tubb v JD Wetherspoon Plc, Hughes LJ said the following:[7]

“ … I certainly accept that there may be perfectly good reasons for a party to wish to instruct a second expert. Those reasons may not always be that the report of the first expert is disappointingly favourable to the other side, and even when that is the reason the first expert is not necessarily right. That means that it will often, perhaps normally, be proper to allow a party the option, at his own expense, of seeking a second opinion. It would not usually be right simply to deny him permission to rely on expert B and thus force him to rely on expert A, in whom he has, for whatever reason, lost confidence …”

8.In Choy Yuen On, David v Lam Kin Chung[8], K Yeung J considered the said principle in Edwards-Tubb and held that it was “entirely consistent” with the summary in Law Chung Fai.  The learned judge went on to summarize the position as follows:[9]

“The Court, when faced with an application to replace an expert, should be alive to the possibility of expert shopping and the undesirable consequences which such conduct can lead to. But on the other hand, the Court should not as a rule simply shut its door to any application for change of experts, but should consider all the circumstances in ways as explained in those cases to see whether good reasons have been shown. The onus of showing good reasons is on the applying party. Ultimately, what the court strives to do is to do justice between the parties.”

9.Edwards-Tubb was followed in Hort v Charles Trent Ltd[10]. After citing the principles in Edwards-Tubb[11], Eady J considered that “it would not usually be right” to deny a party an opportunity to change his expert when the application to change an expert would just “allow [that party] the opportunity to put his case more effectively, or at least to present it as he wishes”.[12]  It was also pointed out that the court should avoid placing emphasis on discipline “for discipline’s sake” while letting the overriding object to slip out of view.[13]

10.The possibility of the court in obtaining greater assistance from a specialist than from a generalist has been considered by the court in a similar application in Law Chung Fai, in which Bharwarney J said:[14]

“[in assessing the value of the replacement expert], one must not lose sight of the fact that the purpose of expert evidence is to assist the court on areas of specialist knowledge and expertise that is outside the scope of common knowledge and experience. As a general statement, it can be said that the court is likely to obtain greater assistance from the specialist than from a generalist. When an application is made to change an expert on the ground that the new expert has greater knowledge and experience in a particular area, the issue takes on a different dimension and the question the court has to ask is whether his greater expertise and knowledge is required by the court to resolve any particular issue or issues that have arisen. The question then is not just whether or not the opinion of the specialist is more favourable but whether his greater expertise is required to assist the court to determine the case. The answer to that question depends on the issues raised: are they central or peripheral to the determination of the case; and, if peripheral, the greater assistance the specialist may provide to the court on the issue(s) must be balanced against other considerations such as proportionality, added costs and expenses, disruption to trial dates.”

11.Ultimately, the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties and other case management considerations.

Discussions

12.With these principles in mind, I turn to the facts of the present case.

13.The present action concerns the validity of the alleged will (“the Will”) of the late Mr Lim Por Yen (“the Deceased”) dated 3 December 2004.  As one of the main issues in this case is whether the Deceased had the testamentary capacity at the time when the Will was executed, expert evidence on the then mental state of the Deceased is of vital importance in this action.

14.By the order of Master Hui dated 10 October 2013 (“Master Hui Order”), the parties were given leave to adduce expert evidence in the fields of psychiatry and neurology respectively. The number of expert witnesses in each field was limited to 1 for each party.

15.Master Hui Order sets out the experts identified by the parties:

(i)   Neurology expert: Dr Edmund Woo for the Plaintiff and Dr Yu Yuk Ling (“Dr Yu”) for the Defendants; and

(ii)  Psychiatry expert: Professor Robin Jacoby (“Prof Jacoby”) for the Plaintiff and Prof Lieh-Mak for the Defendants.

16.By letter dated 27 February 2015, the Defendants indicated that they would be filing the reports of Prof Lieh-Mak and Professor Emrah Duezel (as opposed to the initially proposed Dr Yu).  Prior to the proposed change of expert, Dr Yu had not been instructed and had not produced any report.  On 12 March 2015, the parties exchanged expert reports under the Plaintiff’s protest of the Defendants’ change of neurology expert.  Eventually, the Plaintiff gave up his opposition and did not object to the Defendants seeking leave to change their expert.

17.Mr Man, SC, counsel for the Plaintiff, objects the Application on the ground that the Defendants have not put forward any good reason for the replacement of, this time, their psychiatry expert.  His arguments can be summarised as follows:

(i)    There can be no question that Prof Lieh-Mak is an experienced and well-qualified academic and practitioner in the field of old age psychiatry, and would be fully competent to assist the court on the issues of psychiatry as an expert witness. Prof Lieh-Mak was chosen by the Defendants as their psychiatry expert because of her credentials, and they must have carefully considered her suitability and competence in making such decision.

(ii)   The mere fact that Prof Lieh-Mak’s evidence was rejected or even criticised in some previous cases can hardly be a good reason for changing expert.  For an expert witness as experienced as Prof Lieh-Mak, there are bound to be cases where the court did not accept her evidence.  This could be due to a variety of reasons, without impugning the expertise or professionalism of the expert, and must depend on the circumstances and the evidence of each case.  Indeed, Prof Lieh-Mak has frequently given expert evidence in the courts in the past 10 years as an expert, and her evidence has been repeatedly accepted by the courts, including after the decisions in Daimler and Lau Kin Wing Ken.

(iii)  There is no suggestion from the Defendants that they now question Prof Lieh-Mak’s qualifications or expertise, or the correctness of any part of her reports or evidence, whether the reasoning or her conclusion.  Indeed, the Defendants are quick to emphasise that Prof Lieh-Mak’s evidence fully supports their case.

(iv)  It is not open to the Defendants to argue that Prof Burns would offer greater assistance to the court than Prof Lieh-Mak because he is a “specialist” whereas Prof Lieh-Mak is only a “generalist”, as: (a) there is no evidence to show that Prof Lieh-Mak is not qualified to give expert opinion on the specific issue in this case; (b) the Defendants have only raised such point in the submissions and not in the affirmations, and as a result it is not fair to the Plaintiff as he has not been forewarned as to the necessity of adducing evidence on such specific issue; and (c) Recorder Wong’s observation about Prof Lieh-Mak as a “generalist” has to be read in the context of the facts and issues canvassed in Daimler.

(v)   Despite the criticism of the judge of the evidence of an expert in the trial of liability, Mimmie Chan J in Chang Pui Yin v Bank of Singapore Ltd[15] placed emphasis on the availability of the other side’s expert evidence who can assist the court in refusing the application for the change of expert for the trial on quantum.  The same principle can apply here.

(vi)  The Defendants have dragged their feet in making the Application.  Further, the Plaintiff will be prejudiced if the Application is allowed, and the whole process of the joint meeting and joint report will have to be repeated again.

18.These are powerful arguments opposing the Application.  In considering the credibility of the evidence given by a particular expert, the court, in general, would ignore the comments made by the courts in other proceedings about the evidence given by such expert.  As submitted by Mr Man, there may be a lot of different and case-specific reasons as to why the courts rejected the evidence of a particular expert.  Further, the Defendants had certainly taken into account Prof Lieh-Mak’s qualification and experience in choosing her as their expert in the first place, and there has been considerable unexplained delay in the making of the Application.

19.Despite the able submissions of Mr Man, I, rather reluctantly, decide to exercise the discretion in allowing the change of expert.

20.First, this is not a case of expert shopping.  There is no issue that Prof Lieh-Mak had given a favourable report in support of the Defendants’ case.  As compared with Prof Burns’ views, Prof Lieh-Mak’s opinions may even be considered as more assertive and definite.

21.Second, the qualification of the expert and the experience of the expert in dealing with a particular class of patients, elderly persons in the context of the present case, may be relevant for the court in assessing the credibility of his expert evidence.  This actually happened in one mental health case that I handled recently, in which an attack was lodged against the evidence of a particular expert who might not have experience in old age psychiatry or in dealing with elderly patients.  It suffices for me to say that this may be one of the factors considered by the court in assessing the reliability of expert evidence.

22.It is right for the Plaintiff to say that the Defendants have not expressly mentioned the possible benefit with the assistance of a more specialized expert in the supporting affirmations.  However, the 2^nd Defendant did refer to the judgment of Recorder Wong in Daimler as the basis of the Application.  In the said judgment[16], Professor Lieh-Mak was described as a “generalist” and that “dementia is admittedly not her specialty”.  Professor Lieh-Mak’s curriculum vitae “does not reveal any specialised research or publication on dementia.  She saw only around 30 elderly patients in the previous three years with just 1 or 2 of them suffering from DLB [dementia with Lewy-bodies] (who were all at a very late stage of the condition)”.  The learned judge had expressly relied on the lack of specialist experience as a reason not to accept Prof Lieh-Mak’s evidence.  In such case, the Plaintiff should have known that the relevant qualification and experience of the substitute expert and the possible impact of such factor would be a key issue in the Application.

23.The present case is also different from Chang Pui Yin v Bank of Singapore Ltd^[17].  The “only reason” for the applicant to replace the expert in that case was to obtain a better opinion or an opinion which was more favourable to the applicant, whereas in the present case, the real issue is whether Prof Burns would be more qualified or has more experience in old age psychiatry so that he would be in a better position to give the expert opinion on the mental condition of the Deceased when he executed the Will.

24.Third, the court cannot ignore the Defendants’ allegation of loss of confidence in Prof Lieh-Mak as an expert, at least in a case concerning an elderly testator.  I have no idea as to whether it was indeed the dicta of Recorder Wong which caused such loss of confidence, but the lack of expertise of Prof Lieh-Mak in old age psychiatry may be a real concern to the Defendants. In my judgment, for the just resolution of the dispute, the Defendants should not be debarred from putting their house in order by engaging a more qualified and experienced expert in the field of old age psychiatry to give evidence on their behalf on an important, if not the most important, issue in this case.

25.Fourthly, there is no serious prejudice to the Defendants by the changing of expert.  It is true that lack of prejudice is not by itself a good reason to justify the change of expert.  However, the trouble of doing another round of joint-meeting and joint-report is quite minimal in the overall scheme of events.  At most, it takes a few months to complete the whole process which would have a negligible impact in the overall progress of the case.  In fact, both Prof Jacoby and Prof Burns are experts in old age psychiatry in the United Kingdom, and their professional acquaintance and relationship (as outlined in the proposed Prof Burns’ report) may facilitate the crystallization of issues and minimize unnecessary arguments between them.

26.Nevertheless, I must put a marker here that there has been considerable delay in the progress of the case.  For reasons unknown to me, the parties have allowed this case to drag on for a long period of time.  I do not need to remind the parties that it is highly undesirable for cases to be delayed for so long.  I hope that there will not be further applications for change of experts on the ground that they are not available to testify in court due to reasons relating to passage of time.

27.This is an indulgence of court given to the Defendants.  Considering that it was the Defendants who chose Prof Lieh-Mak as their expert in the first place and there had been considerable unexplained delay in the making of the Application, the Defendants should pay for the all costs of and occasioned by the Application to the Plaintiff on an indemnity basis.  I therefore so ordered.  For the costs already incurred, I made a summary assessment in the sum of $500,000.  For the future costs, I made an order, with the consent of the parties, for interim payment of such costs in the sum of $200,000.

Mr Bernard Man, SC, and Mr Keith Lam, instructed by MinterEllison LLP, for the Plaintiff

Mr Jose Maurellet, SC, and Mr Avery Chan, instructed by Holman Fenwick Willan, for the Defendants