Chow Lily v. Chow Wai Wai Violet and Another

HCAP 22/2019

[2024] HKCFI 887

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 22 OF 2019

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DECISION

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A.  Introduction

1.This is the appeal by the plaintiff (“P”) against the part of the Order made by Master Matthew Leung (“Master Leung”) on 10 July 2023 (the “Expunging Order”) expunging from P’s supplemental witness statement (“Supp WS”) §§275-278, 302-308, 310-311, and 321 (the “Disputed Paragraphs”).

2.Mr Edward Chan SC leading Mr Abel Lam appeared for P. Ms Teresa Wu with Ms Jacqueline Law appeared for the defendants (“D1” or “Violet”, “D2” or “Vi Vi”, and collectively “Ds” when appropriate).

B.  The background facts

3.For general background of the present case, reference may be made to the Decision of Deputy Judge Leung handed down on 30 July 2020 dismissing P’s application for the appointment of administrators pendente lite. For the present purpose, I highlight the following facts, which are gleaned primarily from the pleadings and witness statements filed:

(a)  The pleadings before me comprise P’s Re-Re-Amended Statement of Claim (“RRA-SoC”) and Re-Amended Reply and Defence to Counterclaim (“RA-R&DC”), and Ds’ Re-Re-Amended Defence and Counterclaim (“RRA-D&C”);

(b)  The witness statements before me include:

(i)  For P:

(1)  P’s witness statement of 14 July 2022 (“P/WS”), and her revised Supp WS of 14 July 2023 (“Revised Supp WS”)[1];

(2)  Ko Chan Gock William’s statement of 2 May 2023 (“Ko”, and “Ko/WS”). Ko was a Non-executive Director of Chevalier International Holdings Limited (“Chevalier”, and together with its subsidiaries the “Chevalier Group”);

(ii)  For Ds:

(1)  One statement each of D1 and D2 (“D1/WS” and “D2/WS”), both dated 30 June 2022;

(2)  One statement each of:

(a)  Ma Chi Wing dated 13 May 2022 (“Ma” or “Mr Ma”, and “Ma/WS”). Ma is an Executor Director of Chevalier;

(b)  Kuok Hoi Sang dated 18 May 2022 (“Kuok” or “Mr Kuok”, and “Kuok/WS”). Kuok is an Executive Director and the Chairman and Managing Director of Chevalier; and

(c)  Tam Kwok Wing Ivan dated 25 May 2022 (“Tam” or “Mr Tam”, and “Tam/WS”). Tam is the Deputy Managing Director and an Executive Director of Chevalier;

(3)  The statement of Cheuk Chiu Wah (“Mandy Cheuk”) of 29 June 2022 (“Cheuk/WS”). Mandy Cheuk is a practising solicitor. She was the attesting solicitor of the Disputed 2015 Will (as defined below).

4.P and Ds are sisters. Their father was Chow Yei Ching (the “Deceased” or “Father”).

5.The Deceased was the founder of the Chevalier Group. The shares of Chevalier are listed in the Hong Kong Stock Exchange. The Deceased during his lifetime held a substantial amount of shares in Chevalier.

6.On 29 October 2015, the Deceased executed what is on its face a will (the “Disputed 2015 Will”). He had a major stroke in January 2016[2]. He passed away on 29 July 2018 at the age of 82. The shares he held in Chevalier during his lifetime form a valuable portion of his estate (the “Estate”).

7.The Deceased was survived by his wife (the “Wife” or “Mother”) and their 7 children. The 7 children are 6 daughters and one son. They are, insofar as being relevant for the purpose of this appeal, as follows:

(a)  P is the eldest daughter. According to P/WS, she first joined the Chevalier Group in 1989 in Canada. Since December 2011, she has been an Executive Director of Chevalier;

(b)  Lina Chow (“Lina”) is the 3^rd daughter;

(c)  Lisa Chow (“Lisa”) is the 4^th daughter, twin sister of Lina;

(d)  D1 is the 5^th daughter. According to D1/WS, she had for almost 20 years been the Deceased’s Personal Assistant as the Chairman of the Chevalier Group;

(e)  D2 is the 6^th daughter. According to D2/WS, she was qualified as a solicitor, and had been in private practice or an in-house lawyer till 2015 when she joined Chevalier upon the Deceased’s request;

(f)  The son is the youngest of the 7 children (the “Son”).

8.The present action concerns the validity of the Disputed 2015 Will.

9.Parties differ as to whether the Deceased had executed any will prior to the Disputed 2015 Will. P says that the Deceased did on 26 February 1987, 2 June 1989, and 27 April 2009. The one said to be executed on 27 April 2009 will be referred to below as the “Disputed 2009 Will”. Ds on the face of pleadings do not accept that, and aver that in any event, those prior wills would have been revoked and superseded by the Disputed 2015 Will.

10.A copy of the Disputed 2015 Will, albeit not amongst the hearing bundles, was handed up in the course of the hearing. On its face:

(a)  The Wife, D1 and D2 was appointed executrixes and trustees, and Lina, P and Lisa (in that order) as substitutes. As things turn out, the Wife and later Lina renounced their right and title to probate and execution of the Disputed 2015 Will. Despite the terms of the Disputed 2015 Will, and as pleaded in §20B RRA-SoC, Lily “does not admit the validity of the [Disputed 2015 Will], and for that reason Lily would not, and does not intend to, accept the office of executrixship of the [Disputed 2015 Will] pending judgment of the Court in this Action”;

(b)  Father made an absolute gift of all his shares in Chevalier to D1;

(c)  The residuary estate was divided into 100 parts or shares: 30 parts or shares of which to the Wife, 20 to D1, and 10 to each of P and her other 4 sisters. The Son was not given any.

11.P challenges the validity of the Disputed 2015 Will. She avers[3] that the Deceased (1) did not have the requisite mental capacity, (2) did not have knowledge and approval of the terms of the Disputed 2015 Will, and (3) did not have the requisite animus testandi. P seeks instead to propound the Disputed 2009 Will albeit in the form of an unsigned copy. Alternatively, P seeks a declaration that the Deceased has died intestate.

12.In their RRA-D&C:

(a)  Ds deny P’s claim. §88(1) thereof sums up their case, that

“The [Disputed 2015 Will] was duly executed by the Deceased with testamentary capacity and knowledge and approval of its contents on 29 October 2015 and is valid and effective.”

(b)  They counterclaim for a Declaration that the Disputed 2015 Will is the last valid will of the Deceased;

(c)  They further aver that[4]:

“the Court should not exercise its power to appoint and accordingly seek an Order, that [P] should not be appointed an executrix or trustee of the Estate … by reason of (i) her conduct in acting contrary to the testamentary intentions of the Deceased and the interest of the Estate … and (ii) that it is otherwise necessary or convenient that [P] should not be appointed as an executrix or personal representative of the Estate; and accordingly that only [D1] and [D2] be appointed and constituted executrices and trustees of the Estate.”

They accordingly counterclaim for an Order that P be passed over from acting as an executrix or trustee, and that only D1 and D2 be appointed as such.

13.Ma/WS comprises only 6 pages. Therein, Ma gives his view on the Deceased while at work. He says that he did not see any significant change in the Deceased throughout 2015 and up until he suffered a stroke in January 2016. He describes his knowledge on the children and his working relationships with them.

14.Kuok/WS comprises only 7 pages. Therein, Kuok describes himself as being independent of any party in these proceedings. He gives some description of the Chevalier Group. He gives his view on the Deceased whilst at work. He gives his observation on the Deceased’s health and mental state before his stroke. He states how he was asked to step up and continue with the management of the Chevalier Group after the Deceased’s stroke, and briefly how the Chevalier’s Board continues with its work after the Deceased’s death.

15.Tam/WS comprises only 5 pages. Therein, Tam describes his working with the Deceased. He gives his view on the Deceased’s physical and mental conditions in 2015 and 2016. He states that he did not note anything unusual with the Deceased’s health condition during 2015 and up until he had the stroke.

C.  P’s Summons

16.By summons of 25 May 2023 (the “Summons”), P sought inter alia leave to file the Supp WS (§1 of the Summons) and Ko/WS (§2).

17.The Summons is supported by the 10^th affirmation of Fenn Kar Bak Lily. Ms Fenn is P’s solicitor. Several bases for the application have been put forward, principally: (1) to provide new factual evidence in response to Kuok/WS, Ma/WS and Tam/WS, which factual evidence is said to be relevant to the mental state and conditions of the Deceased, (2) to respond to Ds’ answers to P’s interrogatories, (3) to provide factual information to facilitate preparation of further psychiatric evidence, and (4) to clarify certain facts set out in P/WS.

18.The call-over hearing took place on 16 June 2023 before Master Leung. Ds objected to the Disputed Paragraphs, principally on the basis of irrelevance[5]. Having heard parties, Master Leung allowed §2 of the Summons, but adjourned §1 for argument.

19.The substantive hearing took place on 10 July 2023. After a contested hearing, Master Leung made inter alia the Expunging Order.

20.Without prejudice to any appeal against the Expunging Order, the Revised Supp WS was on 18 July 2023 filed.

21.On 21 July 2023, P filed her Notice of Appeal herein. She seeks thereby to set aside the Expunging Order.

D.  The applicable legal principles on the filing of supplemental witness statements

22.I have been cited a number of authorities[6]. The following considerations are beyond dispute:

(a)  Issues are defined by pleadings. They dictate what issues being live;

(b)  A witness statement on facts is the witness’ narrative account of the live issues;

(c)  The Court has power under Order 32 to regulate the filing and exchange of witness statements. Those powers shall be exercised for the purpose of disposing fairly and expeditiously the cause or matter before it, and saving costs. Regard should be made to all circumstances, including the facts in dispute and the issues as defined, relevance of the contents, their probative value, expedition, proportionality and fairness between the parties. The Underlying Objectives should always be given effect to;

(d)  Whilst there is no express provision in the Rules to this effect, the Court has power to direct the filing of supplemental witness statements. The above considerations equally apply. Indeed more so, as parties have by then filed at least one round of statements;

(e)  Allowing a supplemental witness with little or tangential probative value to be filed unnecessarily blur or confuse the real issues, and distract the Court and the parties from them.

E.  Parties’ stances

23.Mr Chan’s position in summary is that “the Disputed Paragraphs are plainly relevant as they raise matters which are necessary and will require resolution by the trial judge in order to properly resolve the core disputes in the probate action.”

24.Ms Wu’s position is that they are not. She points in particular to Ms Fenn’s 10^th affirmation. She submits that in respect of the Disputed Paragraphs, the bases put forward in support are not made out.

25.I will as appropriate consider below further their submissions on the individual Disputed Paragraphs.

F.  P’s overarching submissions

26.Mr Chan in his written submissions deals with the Disputed Paragraphs in groups. I will adopt his grouping in the subsequent discussions. But before doing so, I deal with a number of overarching submissions he has made in relation to all the Disputed Paragraphs.

F.1.  Overarching submissions#1

27.First[7], Mr Chan submits that the Ma/WS, Kuok/WS and Tam/WS are put forward by Ds as independent witnesses, that P had no prior knowledge of D’s intention to call them, so that “as a matter of procedural fairness, P should be allowed an opportunity to speak to those individuals who intend to give evidence as independent witnesses”.

28.Whilst what Mr Chan has submitted is factually and chronologically correct, whether the contents of the Disputed Paragraphs should be allowed in is still dependent upon what about “those individuals” which P wants to “speak to”. The considerations discussed in section D above will still have to be considered.

F.2.  Overarching submissions#2

29.Second[8], Mr Chan points to §309 of the Supp WS, which Ds did not object to. §309[9] reads as follows:

“[V] LACK OF IMPARTIALITY OR OBJECTIVITY

309. The allegations of [Kuok], [Ma] and [Tam] about Father’s mental and physical fitness in 2015 and January 2016 are not credible or objective. Their comments are affected by their personal interests and benefits received as stated above which are not exhaustive. I respectfully ask this Honourable Court to approach their evidence with caution.”

Mr Chan hence “invites this Court not to view the Disputed Paragraphs in absolute isolation vis-à-vis the issues likely to be disputed at trial. Instead, it is through the prism of credibility and/or objectivity that the Disputed Paragraphs ought to be considered and assessed.”

30.Two points arise from those submissions. Firstly, as submitted by Ms Wu, apart from the Disputed Paragraphs, there are other parts within the Supp WS wherein P makes the allegation of personal interests and benefits against Kuok – see §268 of the same. Ms Wu informed the Court that that was the reason why §309 was not objected to. I accept Ms Wu’s submissions in this regard.

31.The second point is a more substantial one, arising from the case of HKSAR v Ng Fan Ying (2021) 24 HKCFAR 428.

32.I noticed that Ng Fan Ying (and the authorities and principles discussed by the Court of Final Appeal therein) was originally not dealt with in counsel’s written submissions. By written directions issued on the day before the hearing, I requested counsel to do so.

33.At the outset, it is important to appreciate that the label of “credibility and/or objectivity” does not give any party the carte blanche entitlement to adduce evidence without regard to relevance and proportionality. Appreciation of the distinction between “primary issues” and “collateral issues”, albeit mostly discussed in the context of cross-examination in criminal trials, is equally important in civil cases. As explained by Lord Phillips of Worth Matravers NPJ in HKSAR v Kong Wai Lun (2015) 18 HKCFAR 7 at [27] to [28][10] (with emphasis added):

“27. Two basic common law principles as to the admission of evidence are in play on this appeal. The first is that no evidence is admissible unless it is relevant to an issue in the case. The second is that evidence should not be admitted if its probative weight is insufficient to justify the complexity that it will add to the trial. Whether in a criminal or a civil trial the judge should be astute to prevent the primary issues becoming obfuscated as the result of the admission of evidence of insufficient significance to justify the additional burden that it will impose on the hearing. These principles apply as much to a voir dire as they do to the trial itself.

28 In applying these principles it is helpful to distinguish between primary issues and collateral issues. Whether an event upon which the prosecution relies in fact occurred is a primary issue. Evidence that such an event did or did not occur is primary evidence. A collateral issue does not bear directly on whether a primary fact in issue occurred. It bears on the reliability of the primary evidence. The second principle normally applies only in relation to evidence that goes to a collateral issue.”

34.In this same context, the 5 general principles explained by Li CJ in HKSAR v Wong Sau Ming (2003) 6 HKCFAR 135 at [23] to [26][11] should be reiterated. They may be summarised and understood as follows:

(a)  Firstly, where the veracity of the witness is challenged on cross-examination as to credit, cross-examination about discreditable acts is widely permitted. That is however subject to the judge’s discretion to disallow improper questions;

(b)  Secondly, the “cardinal test of relevance” applies. The subject matter of the cross-examination must be relevant to the witness’s veracity. Relevance is a matter of degree;

(c)  Thirdly, in applying the test of relevance, and in the exercise of the court’s discretion, the main consideration is materiality, in the following sense which Li CJ explained:

“… if the truth of the imputation conveyed would materially affect the court’s opinion as to the witness’s veracity on the subject matter of his testimony. Conversely, questions in cross-examination as to credit are usually not permissible if the truth of the imputation conveyed would not have any material impact on such opinion. The imputation may relate to matters which are so remote in time or are of such a kind that the truth of the imputation would not have any material impact on the court’s assessment of the witness’s veracity.”

(d)  Fourthly, the “finality rule” applies to answers to such cross-examination, because, as explained by Li CJ at [26]:

“The rule is conducive to a fair trial. Its rationale is that, as a matter of commonsense, a criminal trial should be kept within proper limits. The court should focus on the issues in the case. Its attention should not be diverted to collateral issues such as credit, the exploration of which may unnecessarily blur or confuse the real issues in a cloud of detail. Although the rule has sometimes been criticized, it is well-established and necessary.”

(e)  Fifthly, the “finality rule” is subject to established exceptions. They allow proof by independent evidence of matter which tend to affect the credibility of the witness. The learned Chief Judge however did not find it necessary to go into details of those exceptions in Wong Sau Ming.

35.In the subsequent case of Kong Wai Lun, Lord Phillips NPJ at §§31-33 referred to those five general principles. At §34, His Lordship summarized the position as follows:

“Cross-examination as to credit should be permitted in relation to any matter that, if proved, will diminish a witness’s credibility. This may be a failure to tell the truth on an earlier occasion, or some quite different type of misconduct, providing only that it bears logically on the weight that should be accorded to the witness’s word. Where a prosecution witness denies, under cross-examination as to credit, that he has been guilty of misconduct of a kind that would damage his credibility, evidence that unequivocally rebuts his denial, such as a finding by a court or tribunal to this effect, should normally be admitted for that purpose. Where, however, the truth of the allegation of misconduct made against the witness cannot be determined without what is, in effect, a separate trial relating to that issue, the finality rule will normally preclude the calling of evidence to challenge his denial.”

36.I pause here and make one observation. Mr Chan in his oral submissions made reference to the above summary of Lord Phillips NPJ. He highlighted the words “diminish a witness’s credibility” and “providing only that it bears logically on the weight that should be accorded to the witness’s word.” To the extent of Mr Chan seeking to argue that Lord Phillips NPJ propounded criteria different from those explained by Li CJ as part of the third general principle, I do not accept those submissions. Lord Phillips NPJ was there only summarizing the observations and explanations made by Li CJ in Wong Sau Ming. His Lordship did not in my view seek to propound any different considerations. The consideration remains one of materiality as explained by Li CJ.

37.The position is revisited by Lam PJ in the later case of Ng Fan Ying:

(a)  His Lordship stressed that the rationale for permitting cross-examination on credit stems from the materiality of a line of questioning on the assessment of a witness’s veracity, but since the ultimate benchmark is relevance which is a matter of degree, it would be unwise and indeed impossible to lay down hard and fast rules ([32]);

(b)  His Lordship however highlighted the requirement of laying a proper foundation for casting an imputation of misconduct against a witness ([33]-[34]), that:

“33. Recently, the Judicial Committee of the Privy Council examined the common law principles governing cross-examination of a witness as to credit in Clarke v Trinidad and Tobago. Lord Lloyd-Jones succinctly summed up the position as follows at [40]:

At common law, therefore, the judge had a discretion to permit cross-examination as to credit. In exercising that discretion he was required to have regard to whether such questions would seriously affect the jury’s view of the credibility of the witness, to whether the misconduct relied upon had a solid foundation, to the fairness to the witness of permitting such cross-examination and to whether such cross-examination would be a distraction from the real issues in the case. An appellate court may not interfere with the exercise of such a discretion unless it is clearly wrong or wrong in principle.

34. The need for having a solid foundation for an imputation of misconduct was explained in Persad v Trinidad and Tobago which was cited at [39] of Clarke v Trinidad and Tobago:

Behind all this is the necessity of securing a fair trial for the accused person consistently with fairness to a witness. It is not fair for a witness to be assailed with unproven allegations of misconduct or with mere suspicions of past malpractice. Nor is it acceptable for the time of the court to be taken up with matters extrinsic to the case in hand nor for the jury to be distracted from the issue before them by inquiries into uncertain and unresolved issues about the earlier conduct of a witness. The investigation of a witness’s reliability in the course of cross-examination must be kept within bounds. It cannot be allowed to degenerate into a ranging and speculative inquiry into any or all of the occasions on which the witness has given evidence in the past.”

(c)  His Lordship at [37] again stressed the significance of the distinction between primary and collateral issues, that:

“Whilst judges at times find the distinction between cross-examination on primary issues and cross-examination as to credit difficult to draw, it is recognised that such distinction is important and necessary in order to confine the ambit of a trial within proper limits and to ensure that the trial is focused on the central issues instead of being side-tracked by collateral issues. The principles governing cross-examination on credit and the finality rule are premised on such distinction.”

(d)  His Lordship at [45] to [46] states again the principles and considerations:

“45. On the other hand, in cases where the cross-examination is relevant only to a challenge on the credibility of a witness, the usual restriction and the finality rule should be applied even when the evidence of the witness is of crucial importance to the prosecution case. At the same time, whilst it is essential to prevent the primary issues becoming obfuscated as a result of unrestricted admission of evidence on collateral issues, a trial judge should pay regard to fairness and justice in the particular circumstances of the case. When it is demonstrated that the probative value of a line of cross-examination on credit clearly outweighs any potential for confusion or obfuscation by the introduction of collateral issues, the discretion should be exercised in favour of permitting cross-examination.

46. In making the abovementioned assessment, the proximity or remoteness of the topic for cross-examination in connection with the subject matter of the charge is relevant. But it is also relevant to consider whether there is a solid foundation for casting an imputation on the credibility of a witness by reference to that topic. This approach is reflected in the two threshold requirements laid down in Wong Sau Ming in the context of cross-examination by reference to a previous acquittal.”

38.In my view, all the discussions summarized above equally applies, if not a fortiori, to civil cases. Mr Chan’s second overarching submissions have to be considered with the authorities and principles discussed above borne in mind.

F.3.  Overarching submissions#3

39.In the course of his oral submissions, Mr Chan repeated on a number of occasions that the question of relevance should be left to the trial judge.

40.Whilst the trial judge will no doubt in the course of the trial need to resolve disagreement on relevance or irrelevance of evidence and lines of cross-examination, it does not mean that the Court during the interlocutory stage in discharge of their case management functions have no role to play. If the Disputed Paragraphs fall foul of the considerations as discussed above, it is only right that the Court should intervene at this stage. The contrary (or leaving the determination to the trial judge) would in effect be putting Ds through the predicament of incurring time and costs on preparing for distracting collateral issues with insufficient probative value. Ds would thereby also be unfairly distracted from the real issues. Such an approach is contrary to the Underlying Objectives, and are against the interest of justice.

41.I however accept Mr Chan’s submission that at this stage when considering whether leave should be granted for a supplemental witness statement to be filed, paragraphs may only be expunged in clear cases upon the application of the principles and considerations discussed above. The position, I agree, may be likened with a position of striking out.

F.4.  Overarching submissions#4

42.In his supplemental written submissions, and with the benefit of Ng Fan Ying and the authorities therein discussed, Mr Chan submits that the matters raised in the Disputed Paragraphs provide the factual foundation for P to mount a challenge in cross-examination as to the credit and independence of Ma, Kuok and Tam.

43.In my view, the provision of factual foundation in the context of a collateral issue is not by itself a valid and sufficient reason which justifies the adducing of those facts. The question remains whether the allegation and imputation which P says the facts may provide foundation for may be received in accordance with the principles and considerations discussed above. If not, the provision of any foundation for them will fall foul of the common law principles explained by Lord Phillips NPJ in Kong Wai Lun.

G.  The approach

44.With the discussion on the law above in mind, in deciding this appeal, I adopt the following principled approach:

(a)  The first step is to identify what facts and imputation the Disputed Paragraphs concerned seek to establish and support;

(b)  Then, with the pleaded issues in mind, consider whether those identified facts and imputations are relevant to any primary issues;

(c)  If yes, the evidence may be admitted;

(d)  If not, than bearing in mind the “cardinal test of relevance”, whether the identified facts and imputations are relevant to the collateral issue of credibility, veracity, reliability or objectivity:

(i)  The question is whether the identified facts and imputations materially bear upon the collateral issue;

(ii)  If not, the evidence should not be admitted;

(iii)  But as relevance in this context is a matter of degree, cases are not always clear cut. Hence other than in clear cut cases, considerations will be given as to whether any probative weight of the identified facts and imputations is insufficient to justify the complexity that they will add to the trial, bearing in mind at all times in particular (hence not exhaustive) the Underlying Objectives, the need to confine the ambit of a trial within proper limits so as to ensure that the trial is focused on the primary issues, the notion of fairness to both the parties and the witness, procedural economy and cost-effectiveness;

(e)  Evidence at this stage is only expunged in clear cases upon the application of the above.

H.  §§275 to 278

45.I consider first §§275 to 278 amongst the Disputed Paragraphs.

H.1.  Their contents in gist

46.They are in the Supp WS under the sub-heading of “Ma”, which sub-heading is in turn under the heading of “KUOK, MA AND TAM: EXECUTIVE DIRECTORS OF CHEVALIER”.

47.In gist:

(a)  In §275, P states that “Ma has received substantial increments in his salary (of 2.53 folds from 2015 to 2022), which was the result of Mr Kuok's proposal to the Remuneration Committee”. Ma’s annual salaries from 2015 to 2022 are then set out in a table;

(b)  In §276, P states her view that “For some causes which defied reasoning, since 2015, the work of Mr. Ma seemed to be particularly impressive to Mr. Kuok. It is unwarranted and totally disproportionate to Mr. Ma’s poor and disappointing performance at Chevalier since 2015.” She then gives the “Senior Housing Project” as one (but only one) example of “disappointing performance”, and gives figures on its accumulated operational loss for several years, including the “anticipated operation loss” revealed in the unaudited report in March 2023;

(c)  In §§277 and 278, P raises Ma’s request for and Kuok’s approval of payment of Ma’s entrance fee into the Hong Jockey Club be borne by Chevalier, Chevalier’s usual practice in that regard, and Chevalier’s ultimate payment of HK$575,000 for that purpose;

(d)  In short, §§275 to 278 allege personal benefits to Ma with the approval of Kuok disproportionate to Ma’s competence and performance.

H.2.  Discussion

48.I have summarized the contents of Ma/WS and Kuok/WS.

49.In his submissions[12], Mr Chan points out that Ma and Kuok are put forward as independent witnesses. He submits that the paragraphs in this group raise “a very important and relevant matter which will require resolution by the trial judge”. He submits that “the issue raised is obvious and relevant: Ma had received corporate benefits and substantial salary increments in spite of his work performance at Chevalier. The substantial increment was approved by the Remuneration Committee in response to Kuok’s proposal. Whilst whether this was part of a quid pro quo arrangement or otherwise are matters which P is entitled to raise and ought to be allowed to speak to these factual matters within her knowledge.” He submits that those factual allegations “are evidently relevant to Ma’s credibility and objectivity”, that the “Supp WS in this regard lays down the factual basis for P to raise issues on the credibility and reliability of their evidence”, and that the “matters raised in the Disputed Paragraphs provide the factual foundation for P to mount a challenge in cross-examination as to their credit and independence.” He submits that Ma’s evidence was relied upon by P’s medical expert. He submits further that those paragraphs provide context to §309.

50.Ms Wu submits that those paragraphs are not relevant to the “real issue in dispute, viz the validity of the [Disputed] 2015 Will”, and that they are also irrelevant “even regarding the credibility of Ma on the health and condition of the Deceased.”

51.This is not a corporate action. The disagreements are not corporate disputes. The primary issue raised by P is the validity of the Disputed 2009 Will and the Disputed 2015 Will, the latter of which turns on Father’s mental capacity, his knowledge and approval of its terms, and his animus testandi. Ds’ Counterclaim raises the additional primary issues as to whether P should be passed over.

52.Clearly, the factual allegations in this group of Dispute Paragraphs are not relevant to any of the primary issues.

53.In my view, the allegations are not relevant to the collateral issue of credibility, veracity, reliability or objectivity of Ma or Kuok:

(a)  Ma and Kuok are put forward as witnesses independent of the parties to the action. The allegations cannot change that;

(b)  The allegations are highly speculative. They also ignore, as submitted by Ms Wu, the involvement of the Remuneration Committee. They hardly provide any basis for the imputation P seeks to make;

(c)  Ma/WS and Kuok/WS go principally to the general health and mental of the Deceased. The allegations and imputations are remote, and relate to matters of such a kind that the truth of the imputation would not have any material impact on the court’s assessment of Ma’s and Kuok’s credibility, veracity, reliability or objectivity vis-à-vis the evidence they intend to give;

(d)  Any reference by P’s medical expert of any contents of the Supp WS does not per se make those contents relevant.

54.In any event:

(a)  The allegations and imputations, if to be established, would involve the investigation of a lot of issues outwith the primary issues, some being:

(i)  Whether the increments to Ma’s salary was indeed “unwarranted ” and “disproportionate”, and whether Ma’s performance had been “poor and disappointing”;

(ii)  The performance of the Senior Housing Project in the US, and whether its accumulated operational loss was attributable to Ma’s performance;

(iii)  P has given only the Senior Housing Project as an “instance” of Ma’s alleged “poor and disappointing” performance. Are there other instances? Are there other counter-instances?

(iv)  In respect of the payment of Jockey Club entrance and other fees, Chevalier’s related practice, and the rationale behind acceding to Ma’s request for payment would have to be looked into;

(v)  The propriety (or otherwise) of revealing in the Supp WS information which was not yet in the public domain (namely information in the unaudited report of 2023), thereby giving rise to the concern of revelation of “inside information”;

(b)  Relevance is a matter of degree. Any relevance which the contents of those paragraphs bear is, assuming any in P’s favour, at best minimal. Their probative value is far from being sufficient to justify the complexity which the additional enquiries would bring to the trial;

(c)  The primary issues should not be permitted to be blurred and confused thereby.

H.3.  Conclusion on this group

55.For the reasons set out above, I am of the view that this is a clear case. I agree with Master Leung that this group of the Disputed Paragraphs should be expunged from the Supp WS.

I.  §§302 to 308, and 310

I.1.  Their contents in gist

56.These paragraphs are under the heading of “CHEVALIER’S DECLINING CORPORATE GOVERNANCE AFTER FATHER’S SERIOUS STROKE”.

57.§§302 and 303 are in turn under the sub-heading of “Vi Vi’s Direct Reporting to Mr. Kuok”.

58.§302 talks about the role Father assigned to Vi Vi when she first joined in 2015, the small office she was arranged to use with Violet, the change of Vi Vi’s reporting to Kuok after Father’s stoke, and Vi Vi’s exposure to Chevalier’s business afterwards.

59.In §303, P says that during the years after Father’s stroke, Kuok was the one who nurtured Vi Vi, that they worked closely together in 3 departments, that it was “intriguing and very unusual” that the officer who originally led those departments was by-passed, that although Vi Vi failed to prove her competence, Kuok repeatedly assigned her to be in charge of certain tasks and to report to him directly, and that “This is totally inappropriate for Mr. Kuok, as a Chairman to attend to such matters in person.”

60.§304 is under the subheading of “Vi Vi’s relocation of office endorsed by Mr. Kuok”. P therein talks about how she says Vi Vi unreasonably, against P’s recommendation, but with Kuok’s endorsement, relocated herself and a team of staff to a different office, resulting in loss of rental income for Chevalier.

61.§§305 to 307 are under the sub-heading of “Exclusion from Interview Panel for the Recruitment of Chief Financial Officer”. P describes her involvement in the recruitment of the Chief Financial Officer in 2016, that that officer resigned in 2022, but that she was in 2022 not “invited to sit on the interview panel over a period of half a year”, and that “I believe Mr Kuok has already put me on the side-lines and ostracised me from the top management of Chevalier, as opposed to the situation in 2016.”

62.§308 is under the sub-heading of “Surprise Dinner Party for Mr. Kuok”. P describes therein how Vi Vi organized and give a surprise party to Mr Kuok in December 2022 at the expense of Chevalier. P says that Vi Vi “took matters into her own hands ignoring the established corporate governance of Chevalier and established an unnecessary precedence”, and that “This is another example of favouritism she tried to win from Mr. Kuok and a benefit in kind offered to and accepted by Mr. Kuok.”

63.§310 is under the heading of “LACK OF IMPARTIALITY OR OBJECTIVITY”. P says that Kuok, Ma and Tam “can form a majority … on the Board of Chevalier”, that they “working as a team, can secure de facto majority control”, that they “can team-up together to attain their self-interests”, and that “As years passed by and my Father’s deteriorating mental capacity and health, he became the ‘elephant in the room’, the influence and power of Kuok within Chevalier became increasingly obvious with the assistance of Ma and Tam, they formed a small circle amongst themselves especially after Father’s death.”

64.In short, those paragraphs concern Kuok’s alleged role after Deceased’s stroke, how he is said to have been nurturing Vi Vi despite her lack of competence, how he endorsed Vi Vi’s conduct in relation to her room location said to be detrimental to Chevalier’s interest, how Vi Vi gave him a surprised party contrary to established practice, how P was allegedly kept away from the interview panel for the engagement of CFO, and how Kuok, Ma and Tam can form a majority on the board.

I.2.  Discussion

65.Again, clearly, none of those facts and allegations are relevant to any primary issues.

66.In my view, they are also not relevant to the collateral issue of credibility, veracity, reliability or objectivity of any of the witnesses:

(a)  Again, the nature of Kuok/WS has to be borne in mind. It is on the general health and mental conditions of the Deceased;

(b)  The allegations and imputations are speculative. The named events of Kuok allegedly nurturing Vi Vi, giving her exposure to company works, endorsing relocation etc, are so remote and so different from his views on the Deceased’s health and mental conditions that they hardly bear on his objectivity vis-à-vis those views;

(c)  In the course of oral submissions, Mr Chan went further and submitted that Vi Vi is going to be a very powerful person within Chevalier, so that in effect Kuok was siding with her. In my view, such attempted imputations go even further away from any primary and collateral issues, and fade further down the scale of relevance;

(d)  The reasons behind P not being invited into the interview panel hardly supports P’s alleged belief that “Mr Kuok has already put me on the side-lines and ostracised me from the top management of Chevalier”. The imputation is speculative. Equally speculative is P’s allegation and imputation that (with emphasis added) Kuok, Ma and Tam “can form a majority”, “can secure de facto majority”, and “can team-up together to attain their self-interests”, leading somehow to her further view that “they formed a small circle amongst themselves”;

(e)  Again, I stress that this is not a company case. The allegations and imputations in those paragraphs are remote, and relate to matters of such kinds that the truth of the imputations would not have any material impact on the court’s assessment of Ma’s and Kuok’s credibility, veracity, reliability or objectivity vis-à-vis the evidence they intend to give.

67.In any event:

(a)  The allegations and imputations, if to be established, would involve the investigation of a lot of issues, some being:

(i)  Whether Kuok has nurtured Vi Vi;

(ii)  Whether Vi Vi lacked competence;

(iii)  The relative interests of Chevalier when Vi Vi’s options of relocation are compared;

(iv)  Chevalier’s practice on giving parties to its officers;

(v)  Why P was not invited to the interview panel;

(vi)  Whether P has been side-lined and ostracized;

(vii)  Whether Kuok, Tam and Ma have teamed up for personal self-interest;

(viii)  Whether there have been breaches of fiduciary duties by Kuok, which allegations and imputation Kuok may be compelled to defend. The making of such allegations and imputations against Kuok and Vi Vi where the primary issues do not call for, and where the foundation is speculative, is highly unfair to them;

(b)  I repeat. Relevance is a matter of degree. Any relevance which the contents of those paragraphs bear is, assuming any in P’s favour, at best minimal. Their probative value is far from being sufficient to justify the very complex additional enquiries which those allegations and imputations would bring to the trial;

(c)  The primary issues should not be permitted to be blurred and confused, and the trial unnecessary laden, thereby.

I.3.  Conclusion on this group

68.For the reason set out above, I am of the view that this is a clear case. I agree with Master Leung that this group of the Disputed Paragraphs should be expunged from the Supp WS.

J.  §311

J.1.  Its contents in gist

69.§311 is under the heading of “MANDY’S SERVICES RENDERED TO THE CHOW FAMILY”. There, P is talking about Mandy Cheuk. P says that Vi Vi and Mandy Cheuk were law school classmates, that owing to Mandy Cheuk’s “unhappy marriage, and out of my sympathy with Mandy’s situation”, P instructed her to perform some minor legal work in conveyancing, that Father had his close and trusted friends in the legal professionals (whom she gave some examples), and that “Mandy and her firm was never considered as a family lawyer of the Chow family to be entrusted with any important work or advice at all.”

J.2.  Discussion

70.As mentioned above, Mandy Cheuk was the attesting solicitor of the Disputed 2015 Will. I accept Mr Chan’s submission that Mandy Cheuk’s “testimony will be closely dealt with at trial.”[13]

71.I mention one matter lest I be misunderstood. The fact that the testimony of a particular witness is important does not provides the cross-examiner with unrestricted freedom to cross-examine on the collateral issue of credit. As observed by Lam PJ in Ng Fan Ying at [40]:

“Whilst the restriction on cross-examination as to credit should be applied with flexibility, I cannot accept that once it is demonstrated that the credibility of a witness is of crucial importance the court should give free rein to counsel in the cross-examination on credit and the calling of evidence in rebuttal.”

72.The importance of Mandy Cheuk’s evidence apart, I note that D2 in D2/WS at §40 has set out her version of facts as to why and how Mandy Cheuk was engaged to prepare the Disputed 2015 Will. Mandy Cheuk has also in Cheuk/WS herself stated some background facts leading to her engagement to prepare the Disputed 2015 Will.

73.I can therefore see the relevance of §311 on the primary issues.

74.Further, D2 and Mandy Cheuk having introduced such background facts, and whilst appreciating that it is not the function of witness statements to rebut points and exchange punches, I see the force of Mr Chan’s submission that the notion of fairness justifies P’s introduction of §311.

75.I have considered, despite my view above, specifically the relevance of the words “unhappy marriage, and out of my sympathy with Mandy’s situation”. One way to look at it is this, that P is not introducing as any issue Mandy Cheuk’s marital status, but only P’s own view on it to justify what she subsequently did. In this sense, I see the relevance.

76.Having considered all matters, I am of the view that in respect of §311, this is not a clear case for expunging.

J.3.  Conclusion on §311

77.For the above reasons, I allow §311 to remain.

K.  §321

K.1.  Its contents

78.It is under the heading of “VIOLET’S ACCUSATION AGAINST ME”. Therein, P says:

“In response to Paragraph 122 of [D1/WS], I believe Father raised Violet’s salary to comfort her owing to the wide salary gap between that of Violet’s and Vi Vi’s. Such salary increment was not necessarily an indication, of Father’s appreciation of Violet’s work performance or her importance. I had never heard Father mention Violet and Vi Vi as his ‘最後兩隻棋’ in front of anyone or myself. As the eldest daughter of the Chow Family and one of the long-serving Executive Directors in Chevalier, I have never had to scramble for power among my siblings. Violet and Vi Vi were only treated by Father as subordinates in the hierarchy of Chevalier and in the Chow family throughout the years, let alone giving all his shares in Chevalier to Violet absolutely, which contradicts his true intention of putting all his shares of Chevalier into a family trust and in good hands. Violet and Vi Vi were not involved in the management of Chevalier, and they were not considered by Father as his successors, otherwise they would have been appointed Executive Directors of Chevalier.”

K.2.  Discussion

79.The contents of §321 are not relevant to the primary issues.

80.As stated on its face, §321 is introduced in response to §122 of D1/WS.

81.§122 of [D1/WS] reads as follows:

“It was in or about November 2015 when Father mentioned to me that he would like to get me more involved in the business of Chevalier. He also substantially raised my salary to the level commensurate with that of senior management personnel. Father had previously said several times to Vi Vi and me that we were both his ‘最後兩隻棋’. In September 2015, Vi Vi joined Chevalier upon Father's request. Seeing Vi Vi and me getting more involved in the business of Chevalier at Father's request, Lily’s hostility and hatred against me escalated.”

82.D1 has introduced §122. Again, whilst appreciating that it is not the necessary function of witness statements to rebut points and exchange punches, I see the force of Mr Chan’s submission that the notion of fairness justifies P’s introduction of §321, and in particular to state her case as to her belief, and what she has or has not heard,

83.Apart from alleged irrelevance, Ms Wu objects to §321 on that basis that its contents are “Not facts within the person knowledge of Lily but her own subjective belief or speculations”.

84.The statement of subjective beliefs may or may not be objectionable. It is dependent upon the purpose for which such beliefs are introduced.

85.D1 has introduced in §122 the facts of her perception that “Lily’s hostility and hatred against me escalated ”. I see the relevance of §321 to the collateral issue of the credibility, veracity and reliability of D1. In my view, the introduction of §321, confined principally to the relationship between Father and P, D1 and D2, will not unduly obscure or obfuscate the primary issues.

K.3.  Conclusion on §321

86.For the above reasons, I allow §321 to remain.

L.  Overall Conclusion

87.I have considered above the Disputed Paragraphs in groups, in the way Mr Chan approaches them. I have also considered them together. Doing so does not alter my views and conclusions as stated above.

88.For the above reasons, I expunge §§275-278, 302-308 and 310. I allow §§311 (together with the heading) and 321 to be introduced, and grant P leave to do so. A new revised supplemental witness statement may be filed within 7 days from the date hereof. I leave parties to decide whether the section and paragraph numbering of the Revised Supp WS after the relevant insertions need to be redone, or whether to insert the 2 paragraphs using suffixes after the inserted paragraph numbers.

89.In respect of §§275-278, 302-308 and 310, the appeal is dismissed. In respect of §§311 (together with the heading) and 321, the appeal is allowed.

M.  Costs

90.To reflect the overall conclusion, but noting the number of the Disputed Paragraphs which appeal I have dismissed and their relative importance, I make a costs order nisi that P shall bear 60% of the costs of and occasioned by the Summons and this appeal, with certificate for 2 counsel when 2 were involved, to be summarily assessed. Any application for variation may be made by letter to this court within 7 days from the date of this Decision, upon receipt of which this Court will hand down further directions, with the view of dealing with the same on the papers. In the absence of any application for variation, Ds shall within 14 days from the date of this decision lodge their statement of costs, P to lodge her statement of objection 7 days afterwards, and Ds to lodge their reply within 7 days afterwards.

Mr Edward Chan SC leading Mr Abel Lam, instructed by Lily Fenn & Partners, for the Plaintiff

Ms Teresa Wu and Ms Jacqueline Law, instructed by P.C. Woo & Co, for the 1^st and 2^nd Defendants