Ng Koon Fai v. To Chung Yin and Another

DCCJ 1878/2021

[2024] HKDC 2074

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1878 OF 2021

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BETWEEN

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JUDGMENT

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A. Introduction

1.In the present action, the Plaintiff claims against the 1^st Defendant for an aggregate sum of HK$780,000 based on fraudulent misrepresentations.

2.The 1^st Defendant did not contest the Plaintiff’s claims. As such, the Plaintiff entered default judgment against him on 29 July 2021.

3.The Plaintiff also claims against the 2^nd Defendant (who is the 1^st Defendant’s mother) for the said sum of HK$780,000 pursuant to a guarantee in writing dated 30 March 2019 (the “Guarantee”).

4.The 2^nd Defendant strenuously contests the Plaintiff’s claims. She avers that she did not sign the Guarantee at all, and thus the same must be forged.

5.In the present trial, Mr Jevons Chan represents the Plaintiff, and Ms Michelle Liu represents the 2^nd Defendant.

B. Respective Case of the Parties

B1. The Plaintiff’s Case

6.In around 2016, the Plaintiff acquainted with the 1^st Defendant, and the 1^st Defendant convinced him to invest in a restaurant in To Kwa Wan (the “Restaurant”).

7.Against this background, from December 2016 to July 2017, the 1^st Defendant made 4 oral misrepresentations inducing the Plaintiff to pay himself an aggregate sum of HK$780,000.

8.The misrepresentations can be summarized as follows:-

(1) In December 2016, the 1^st Defendant represented to the Plaintiff that he was the sole shareholder of a company named Prince Catering Group Co Ltd (the “Company”), which operated the Restaurant. Believing in the 1^st Defendant’s representation, on 18 January 2017 the Plaintiff paid the 1^st Defendant a sum of HK$300,000 for acquiring 30% shareholding in the Company. However, the 1^st Defendant was not a shareholder in the Company at all[1], and he was merely a cook working in the Restaurant.

(2) In March 2017, the 1^st Defendant represented to the Plaintiff that Mr Siu Kwok Cheong (“Mr Siu”), who held 20% shareholding in the Company at the time, wished to sell his shareholder in the Company and he could make the necessary arrangement for the 1^st Defendant to acquire Mr Siu’s 20% shareholding. Believing in the 1^st Defendant’s representation, on 2 March 2017 and 7 March 2017 the Plaintiff paid the 1^st Defendant an aggregate sum of HK$300,000 for the purpose of acquiring Mr Siu’s 20% shareholding. However, the 1^st Defendant did not intend to transfer the funds to Mr Siu, and he simply pocketed the same.

(3) In March 2017, the 1^st Defendant represented to the Plaintiff that as a 50% shareholder of the Company he should settle 50% of the operation costs of the Restaurant in the amount of HK$83,000. Believing that he had become a 50% shareholder of the Company, the Plaintiff paid an aggregate sum of HK$83,000 to the 1^st Defendant on 13 March 2017. However, no shareholding in the Company had been registered in the name of the Plaintiff.

(4) In July 2017, the 1^st Defendant represented to the Plaintiff that he knew a person who could exchange/convert Hong Kong dollars to Reminbei at the ratio of 1:1. Believing in the 1^st Defendant’s representation, the Plaintiff paid a sum of HK$100,000 to the 1^st Defendant. However, the 1^st Defendant had no intention to return any Reminbei to the Plaintiff, and the Plaintiff did not receive a penny from the 1^st Defendant.

9.It transpired that in around July 2017, the Plaintiff met Mr Siu in the Restaurant. He found out that the 1^st Defendant was not a shareholder of the Company at all, and the aforesaid representations were false and made fraudulently.

10.The Plaintiff said that the 1^st Defendant became unreachable after he confronted him. However, in around early 2019, the Plaintiff encountered the 1^st Defendant, and he pressurized him to repay the aggregate sum of HK$780,000. Thereupon, the 1^st Defendant indicated that his mother, ie the 2^nd Defendant, would repay the indebtedness for him.

11.In these premises, upon the Plaintiff’s request, on 30 March 2019, the 1^st Defendant provided the Plaintiff with the Guarantee that was purportedly signed by the 2^nd Defendant.

12.The Guarantee provides that upon the Plaintiff’s agreement to withhold taking action to recover the sum of HK$780,000 from the 1^st Defendant, the 2^nd Defendant agreed and guaranteed to repay the said sum to the Plaintiff on or before 31 May 2019. If the 2^nd Defendant failed to repay the said sum in time, the Plaintiff could take legal action to claim the sum together with interest against the 1^st and 2^nd Defendants. The Guarantee reads as follows:-

“致：吳冠輝先生

鑑於閣下同意暫緩對杜頌賢追回欠款…HK$780,000

本人梁桂珍(香港身份證號碼…) 地址為…同意及擔保在2019年5月31日或以前向閣下償還該欠款。

如果本人未能依時償還上述款項，閣下可採取任何法律途徑追討債務人及本人之一切金額及利息。”

13.Despite the promise under the purported Guarantee, the Plaintiff did not receive any payment. Thus, he issued a demand letter dated 25 March 2021 to the 2^nd Defendant. However, not a penny was paid.

14.In the premises, the Plaintiff commenced the present action on 27 April 2021.

B2. The 2^nd Defendant’s Case

15.The 2^nd Defendant and her ex-husband have 3 sons, ie (i) the 1^st Defendant; (ii) To Chung Man; and (iii) To Chung Nam.

16.At all material times, the 2^nd Defendant worked for a well-known bank as a customer service office earning a monthly salary of about HK$20,000.

17.Whilst the 2^nd Defendant’s current de facto husband, To Chung Nam and the 1^st Defendant’s wife respectively held 20% shareholding in the Company, the 2^nd Defendant was not involved in the matters relating to the Company/Restaurant, though it is not in dispute that she went there occasionally.

18.The 2^nd Defendant says that due to the 1^st Defendant’s irresponsible and selfish conduct, she had ceased to have any contact with him as of the time when the purported Guarantee came into existence.

19.Without obtaining the consent of the 2^nd Defendant and her family members, the 1^st Defendant put forward their names as “referees” when he borrowed monies from money lenders, and he provided their personal information to these money lenders. Thus, when the 1^st Defendant failed and/or refused to make repayments, the debt collectors engaged by these money lenders repeatedly harassed and threatened the 2^nd Defendant and her family members.

20.As evidenced by the contemporaneous documents:-

(1) From June 2018 onwards, the debtor collectors had repeatedly sent WhatsApp messages to the 2^nd Defendant and other family members. In some of these messages, the debt collectors used obscene language and made threats that raised concern about personal safety.

(2) The debtor collectors also made repeated telephone calls to the 2^nd Defendant and her family members. For instance, on 19 June 2018 alone, the 2^nd Defendant received 290 telephone calls.

(3) The 2^nd Defendant felt distressed, annoyed and anxious. She reported the matter to the Police on 19 June 2018.

(4) On 20 June 2018, the 2^nd Defendant made a further complaint to the Privacy Commissioner for Personal Data in respect of the 1^st Defendant’s wrongdoing of disclosing her name, telephone number and address to the money lenders without her consent.

21.When the 2^nd Defendant testified, she said that the 1^st Defendant was utterly hopeless and ruthless. When asked why she said so, the 2^nd Defendant said she was told by To Chung Nam that the 1^st Defendant misappropriated the work capital of the Restaurant, and as a result the Company and/or its shareholders/directors could not defray the salaries owed to employees and the indebtedness owed to suppliers.

22.In these circumstances, the 2^nd Defendant strenuously denies that she signed and/or was privy to the purported Guarantee. She stresses that she had blocked the phone number of the 1^st Defendant at all material times and would not have agreed to pay his indebtedness.

23.It is the 2^nd Defendant’s pleaded case that the purported Guarantee was forged and that the purported signature thereon did not belong to her.

24.Upon receiving a copy of the purported Guarantee through her solicitors, on 21 May 2021 the 2^nd Defendant even reported the alleged forgery to the Police.

C. Legal Principles relating to Forgery

C1. Burden of Proof

25.In Choi Lisa Mei Yin v Yau Pak Kin [2019] HKCA 812 at para 34, Kwan VP pointed out that the party who sues on a document and asserts its validity bears the legal burden of satisfying the court that such document is genuine. The burden on the defendant is evidential, namely, to adduce sufficiently cogent evidence to raise the issue of forgery in order to justify its consideration by the court.

26.In AIM Global Holdings Ltd & Ors v Chien Kun Allen & Anor [2023] HKCFI 1126 at para 144, Keith Yeung J, referring to Choi Lisa Mei Yin (supra) at paras 67-68 and Lee See Woo v Chan Chun Fai (CACV 10/2013, 9 May 2014) at para 24 (per Barma JA), pointed out that the overall consideration is to ascertain whether the defendant has adduced sufficiently cogent evidence to raise the issue that the questioned document is not genuine. If the evidential burden is discharged, the issue is whether the plaintiff has discharged the legal burden of persuading the court that the document is genuine.

C2. Standard of Cogency

27.Nina Kung v Wong Sin Shin (2005) 8 HKCFAR 387 is the leading authority on the standard of cogency required in order to raise the issue of forgery. In Choi Lisa Mei Yin (supra) at para 36, Kwan VP summarized the relevant passages in Nina Kung in following propositions:-

“(a) A standard of cogency is imposed on the party bearing the burden of adducing evidence considered sufficient to raise the issue of forgery. The principle of Re H & Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586, per Lord Nicholls of Birkenhead, applies by analogy, factoring in the inherently greater improbability of serious misconduct and requiring the person bearing the burden to prove it with evidence of a commensurate cogency (“the Re H standard”). So when weighing up and assessing the probabilities in relation to the evidence of forgery, the court must bear in mind the seriousness of the misconduct alleged, recognising that it carries an inherent degree of improbability. It must take account of propensity and evidence of propensity must go into the balance. In the absence of evidence of propensity, evidence to a very high standard of cogency is necessary before the court can be justified in finding forgery. (§§182, 184, 625, 626)

(b) The evidential burden is to adduce evidence which, properly assessed, is capable of justifying a reasonable inference that the relevant signature was forged. It is not enough merely to raise suspicious circumstances that did not themselves prove forgery. (§§233, 627, 628)

(c) Where the challenge to the genuineness of the signature is based solely upon inferences drawn from circumstantial evidence, any such inference must be properly grounded in the primary facts found. The court must guard against indulging in conjecture under the guise of drawing an inference where the primary evidence does not logically and reasonably justify the particular inference in question. There is need for a disciplined approach that inferences of serious misconduct are to be drawn only where they are compelling, sufficient to overcome the inherent improbability that serious misconduct would have occurred (HKSAR v Lee Ming Tee & Securities and Futures Commission (2003) 6 HKCFAR 336 at §72, per Mason NPJ) (“the Lee Ming Tee principle”). (§§185 to 187, 194(b), 234, 625)

(d) Where there is direct evidence of execution of a document, expert handwriting evidence is necessarily of a lower order of cogency than such direct evidence. (§393)

(e) When evaluating expert evidence on handwriting, it is important to recognise that such evidence has both a harder, more scientific, side and a softer, less precise facet involving professional judgment of a relatively subjective nature. While the factual part of the evidence of an expert is verifiable, the opinion part is inherently less precise than a conclusion based on the result of a scientific analysis. The acceptability of an expert’s opinion depends very much on how sound and convincing the reasons for his opinion are. (§§20, 394)”

D. Deliberation

D1. The 2^nd Defendant’s Preliminary Submissions

28.In her opening submissions, Ms Liu (for the 2^nd Defendant) submits that even if the 2^nd Defendant signed the purported Guarantee (which is denied), it is still necessary for the Plaintiff to prove that the 1^st Defendant made the alleged misrepresentations and to establish the basis of the underlying indebtedness. She contends that if the primary liability on the part of the 1^st Defendant does not exist, the 2^nd Defendant, as a surety, could not have assumed any liability.

29.In my view, Ms Liu’s submissions are inconsistent with the terms of the purported Guarantee.

30.As pointed out above, the purported Guarantee provided that (i) the Plaintiff would withhold taking action against the 1^st Defendant; and (ii) the 2^nd Defendant should repay the sum of HK$780,000 to the Plaintiff by 31 May 2019. The purported Guarantee simply presupposed the existence of the 1^st Defendant’s liability, and the terms were agreed on the premise that the 1^st Defendant was in fact indebted to the Plaintiff.

31.In the premises, if the 2^nd Defendant signed the purported Guarantee as alleged, she would be precluded from denying the 1^st Defendant’s liability by virtue of the doctrine of estoppel by convention: First Laser Ltd v Fujian Enterprises (Holdings) Co Ltd (2012) 15 HKCFAR 569 at paragraph 79 (per Lord Collins). It is plain that the legal relationship between the parties is premised upon a common assumption that the indebtedness owed by the 1^st Defendant exists, and as evidenced by the terms of the Guarantee, due to the 2^nd Defendant’s promise and/or suretyship, the Plaintiff agreed to withhold the intended legal action against the 1^st Plaintiff. As such, it would be conscionable for the 2^nd Defendant to renege from the common assumption.

32.In the alternative, if the 2^nd Defendant signed the purported Guarantee as alleged, the doctrine of contractual estoppel would also be applicable, and she must be estopped from denying the existence of the underlying indebtedness on this basis. In First Tower Trustees Ltd v CDS (Superstores International) Ltd [2019] 1 WLR 637 at para 47 (which was cited and applied in Ng Yuk Pei Kelly v Ng Lai Ling Winnie as the executor of the Estate of Dung Wai Man, Deceased, & Ors [2021] HKCFA 40 at para 27 (per Ribeiro PJ)), Lewison LJ stated:-

“It is now firmly established at this level in the judicial hierarchy that parties can bind themselves by contract to accept a particular state of affairs even if they know that state of affairs to be untrue. This is a particular form of estoppel which has been given the label ‘contractual estoppel’. Unlike most forms of estoppel it requires no proof of reliance other than entry into the contract itself. Thus as a matter of contract parties can bind themselves at common law to a fictional state of affairs in which no representations have been made or, if made, have not been relied on.”

33.In any event, the evidence shows that the Plaintiff is a victim of the 1^st Defendant’s wrongdoings, and there is no evidential basis for the 2^nd Defendant to challenge the Plaintiff’s case in this regard. Whilst the public records of the Companies Registry show that the 1^st Defendant was not a shareholder of the Company and that the Plaintiff had never been assigned any shareholding in the Company, the bank records show that the Plaintiff did pay an aggregate sum of HK$680,000[2] to the 1^st Defendant. On the evidence before the court, there was no reason why the Plaintiff would have paid the sums in question to the 1^st Defendant. The only explanation was that he acted under the 1^st Defendant’s misrepresentations.

34.For all the above reasons, I do not accept Ms Liu’s submissions.

35.I am of the view that the key issue to resolve is whether the 2^nd Defendant signed the Guarantee.

36.In the following sub-sections, I set out my analysis on:-

(1) the inherent probabilities (see Section D2);

(2) the direct factual evidence (see Section D3); and

(3) the evidence of the handwriting experts (see Section D4).

D2. Inherent Probabilities

37.For the following reasons, I am of the view that the inherent probabilities lie in favour of the 2^nd Defendant’s case and against the Plaintiff’s case.

38.First, even on the Plaintiff’s case, the 1^st Defendant was a fraudster. He fraudulently and dishonestly induced the Plaintiff to pay him the said sum of HK$780,000. As pointed out, I accept the Plaintiff’s assertions, which are not contradicted by any evidence. Having observed the way in which the Plaintiff gave evidence, I am of the view that the Plaintiff is an unsophisticated person, and the 1^st Defendant (who was the Plaintiff’s neighbor) calculatedly abused the trust and confidence that the Plaintiff reposed on him. On the evidence before the court, there is no question that the 1^st Defendant was a dishonest and unscrupulous person who had a low level of morality. In my view, a person like the 1^st Defendant was capable of manufacturing forged documents.

39.Second, the evidence shows that the 1^st Defendant was in financial trouble at the material times. Whilst he failed to repay the indebtedness owed to a number of money lenders, he misappropriated the funds that were supposed to be used for defraying the operation expenses of the Restaurant. It is believable that the 1^st Defendant would, out of desperation, manufacture a forged document to buy time when the Plaintiff exerted pressure on him.

40.Third, I accept the 2^nd Defendant’s evidence that due to the 1^st Defendant’s conduct, their relationship had broken down completely as of 30 March 2019 (ie the date of the Guarantee). In the circumstances, it was unlikely that the 2^nd Defendant would have agreed to pay his indebtedness. In this connection:-

(1) The 2^nd Defendant’s assertions are borne out by the contemporaneous documents, including (i) the WhatsApp messages from the debt collectors in June 2018 (which were indeed threatening and disturbing); (ii) the report to Police on 14 and 18 June 2018; and (iii) the report to the Privacy Commissioner for Personal Data on 20 June 2018 (which set out the 1^st Defendant’s wrongdoings of providing the 2^nd Defendant’s personal information to money lenders without her consent).

(2) The contemporaneous evidence proves the 2^nd Defendant’s assertions that she genuinely felt distressed, upset and disappointed, and it was understandable why she no longer wished to have contact with the 1^st Defendant.

(3) I do not lose sight that the 2^nd Defendant is the 1^st Defendant’s mother, and most mothers are protective of their children. However, upon receiving a copy of the purported Guarantee from the Plaintiff’s solicitors, what the 2^nd Defendant did was to report the matter to the Police on 21 May 2021.

(4) I am not of the view that this was litigation tactics. If the Police carried out investigation and took the view that the 1^st Defendant did commit forgery, the 1^st Defendant might be prosecuted criminally, and undesirable consequences would follow. In my view, the 2^nd Defendant genuinely sought to bring the 1^st Defendant to justice. If the 1^st and 2^nd Defendants had a normal mother-and-son relationship, the 2^nd Defendant would not have reported the alleged forgery to the Police.

(5) For all the above reasons, it was inherently unlikely that the 2^nd Defendant would have agreed to put her name on the purported Guarantee.

41.Fourth:-

(1) The Plaintiff emphasizes that the 2^nd Defendant’s youngest son, ie To Chung Nam, borrowed HK$38,000 from him on 18 March 2017, and when he sued To Chung Nam in the Small Claims Tribunal under SCTC 034419/17 in September 2017, the 2^nd Defendant repaid the indebtedness.

(2) When the 2^nd Defendant testified, she admitted that she repaid the said indebtedness of HK$38,000 for To Chung Nam. However, she stressed that the circumstances of Tong Chung Nam were different from the circumstances of the 1^st Defendant. Whilst the 1^st Defendant was selfish and unscrupulous, To Chung Nam was a decent person and not financially irresponsible. This was why she agreed to help To Chung Nam but would not have agreed to help the 1^st Defendant.

(3) I accept the 2^nd Defendant’s evidence.

(4) The fact that the 2^nd Defendant once financially assisted To Chung Nam does not ipso facto support the conclusion that the Guarantee was genuine. This fact merely shows that the 2^nd Defendant, like any other mother, might financially assist her son when she took the view that her son deserved her help and when she was financially capable of offering assistance.

(5) Insofar as the 2^nd Defendant’s financial ability is concerned, the 2^nd Defendant informed me that her salary was around HK$20,000 at the material times. Her evidence was credible and was not challenged. There is no question that HK$780,000 was a huge sum for the 2^nd Defendant. It was understandable as to why the 2^nd Defendant would not have agreed to take up the liability in question.

42.Fifth:-

(1) I have considered whether the 1^st Defendant could have obtained a copy of the 2^nd Defendant’s signature.

(2) In this connection, some of the Sample Documents (defined below) that contained the 2^nd Defendant’s signatures, including the assignment dated 31 May 2007 (ie Sample Document C10) and the sale and purchase agreement dated 23 April 2007 (ie Sample Document C16), were public records registered with the Lands Registry. Indeed, the Plaintiff’s solicitors obtained a photocopy of Sample Document C16 from the Lands Registry and provided the same to Plaintiff’s handwriting expert.

(3) In the circumstances, the 1^st Defendant could have easily obtained copies of documents that contained the 2^nd Defendant’s signature from the public records.

(4) In any event, it is impossible to rule out the possibility that the 1^st Defendant might have obtained documents that contained the 2^nd Defendant’s signatures before their relationship broke down.

43.For all the above reasons, I am of the view:-

(1) It was inherently unlikely that the 2^nd Defendant would have signed the purported Guarantee. In this connection, I find that:-

(a) As of 30 March 2019 (ie the date of the Guarantee), the relationship between the 1^st and 2^nd Defendants had broken down completely, and the 2^nd Defendant disapproved the 1^st Defendant’s conduct and financial behavior.

(b) The 2^nd Defendant repeatedly reported the alleged wrongdoings of the 1^st Defendant to public authorities.

(c) HK$780,000 was a huge sum for the 2^nd Defendant.

(2) The 1^st Defendant was dishonest and unscrupulous. There was a propensity that a person like the 1^st Defendant would commit forgery.

(3) The 1^st Defendant (who faced serious financial difficulty and who was pressurized by the Plaintiff) had reasons to forge the purported Guarantee.

(4) It was not difficult for the 1^st Defendant to obtain copies of the 2^nd Defendant’s signatures.

44.However, bearing in mind that forgery is a grave accusation and the inherent improbability that such serious wrongdoings would take place, I remind myself not to draw inference based on circumstantial evidence alone, and cogent evidence is required to support the conclusion that forgery did take place: Nina Kung (supra) at paras 182, 185-187, 194(b), 233, 234, 625-628; and Choi Lisa Mei Yin (supra) at paras 36(a)-(c)

D3. No Direct Factual Evidence

45.There is no direct factual evidence as to (i) how the Guarantee came into existence; and (ii) whether the 2^nd Defendant signed the Guarantee as alleged.

46.Whilst the 2^nd Defendant strenuously denies that she was privy to the purported Guarantee, the Plaintiff (who was an honest and candid witness) admitted that:-

(1) The 1^st Defendant was the one who provided the Guarantee to him.

(2) He did not witness the 2^nd Defendant signing her name on the Guarantee.

(3) He did not know how the Guarantee came into existence.

(4) He did not know who wrote and typed up the contents of the Guarantee.

(5) He did not verify with the 2^nd Defendant as to whether she signed the Guarantee or not.

(6) He did not have any communication with the 2^nd Defendant as to the indebtedness owed by the 1^st Defendant.

47.Put it simply, there is no direct factual evidence showing that the 2^nd Defendant signed the purported Guarantee.

D3. The Expert Evidence of the Handwriting Experts

Nature of Expert Evidence on Handwriting

48.In Nina Kung (supra) at para 394, Ribeiro PJ, citing Phipson on Evidence (15^th Ed) at para 37-10, pointed out that experts’ opinion on handwriting has a hard facade that involves objective scientific analysis as well as a soft facade that involves relatively subjective evaluation. By virtue of their training, handwriting experts are capable of identifying objective facts that may be obscure or invisible to laymen. This is the hard facade. Meanwhile, the handwriting experts may also draw inferences from the objective facts that they identify. This is the “soft” facade, and the exercise of drawing inferences involves professional judgment, assessment and opinion.

The Parties’ Handwriting Experts

49.The Plaintiff engages Dr Daniel Wong In Jea as his forensic handwriting expert.

50.Dr Wong is an experienced forensic examiner. His expertise and qualification are not challenged.

51.The 2^nd Defendant engages Dr Mallory Leung Man Yee as her forensic handwriting expert.

52.The Plaintiff strenuously challenges Dr Leung’s expertise and qualification.

Dr Leung’s Expertise and Qualification

53.Dr Mallory Leung is the daughter of Mr SC Leung, who is a prominent handwriting expert with decades of experience in the field of forensic examination. Dr Leung obtained a doctorate degree in economics. She published articles in academic journals and held teaching positions in universities.

54.In February 2020, Dr Mallory Leung commenced “one-on-one” professional training with Mr SC Leung with reference to the training standards of the European Network of Forensic Science Institutes and the Scientific Working Group for Forensic Document Examination. Adopting analogies based on the two branches of the legal profession, her role was akin to a pupil barrister or a trainee solicitor.

55.Towards the end of 2021, Mr SC Leung took the view that Dr Mallory Leung was capable of accepting professional engagements on her own. As such, Dr Mallory Leung commenced her own practice. However, she has been continuously receiving guidance and support from Mr SC Leung, who supervises some of her works. Mr SC Leung and Dr Mallory Leung have been sharing the same office and laboratory.

56.As of the time when the present trial took place, Dr Mallory Leung had drafted more than 80 reports on forensic handwriting examination. For instance, a report prepared by Dr Leung was filed as evidence in Chan Hung Kit v Tung Lai Shan [2023] HKCFI 317. In that case, Dr Leung’s qualification was challenged. As of the time when the present trial took place, there had been no published decision showing how the court determined the matter.

57.Meanwhile, Dr Mallory Leung testified in the capacity as forensic handwriting expert in Au Chee Cheong v 區永昌 & Anor [2024] HKDC 1602 (see paras 58 to 72) and 香港特別行政區 訴 陳凱港及另一人 [2024] HKDC 634 (see para 212). In these cases, the courts admitted the expert evidence from Dr Mallory Leung[3].

58.It is noteworthy that in Au Chee Cheong (supra) at paras 70 to 71, Deputy District Judge Phillis Loh (as Her Honour Judge Phillis Loh then was) spoke highly of Dr Leung. The learned Judge took the view that Dr Leung was a reliable and professional handwriting expert. Whilst her analysis was independent, detailed and objective, she was able to explain her reasoning in a clear and convincing manner. The learned Judge stated:-

“70. 本席詳細考慮過梁專家的鑒定報告及她在庭上的解釋，認為她的分析中立、仔細並具說服力，能夠清楚地解釋其鑒定原則和理據，並且不偏不倚，以客觀的態度逐項回應D1的盤問和挑戰。

71. 本席認為梁專家是一名可靠和專業的專家證人，並接納其就着原告人簽名筆跡的專家意見。”

59.I share the learned Judge’s views.

60.Having studied her reports and having heard her answers and explanations in court, I am of the view that Dr Mallory Leung has sound knowledge on matters relating to forensic handwriting examinations. She is meticulous. She makes pertinent observations. Her analysis makes sense and is convincing. She is also willing to make concessions in a fair manner.

61.However, Mr Jevons Chan takes issue that Dr Mallory Leung does not belong to any forensic society or organization that requires its members to pass competency tests. Mr Chan also points out that Dr Mallory Leung only received academic training as an economist.

62.As explained by Dr Leung, whilst there is no forensic society or organization in Hong Kong that arranges competency tests, she is not in a position to acquire membership with those society or organization in the United States of America and Europe as she does not practice there.

63.More fundamentally, unlike the legal industry or the medical industry that are governed by professional bodies whose powers are conferred by statutes, the industry of forensic handwriting examination is not governed by any professional body and there is no statute providing that a person may only conduct forensic handwriting examination if he or she fulfills some statutory requirements. In the circumstances, many well-known handwriting experts acquired expertise and experience via “on-the-job” training. An example is Mr David Browne, a well-known expert who gave expert evidence in the United Kingdom regularly and in Hong Kong on multiple occasions. As Queeny Au-Yeung J pointed out in Choi Lisa Mei Yin v Yau Pak Kin [2018] HKCFI 1790 at para 86, Mr David Browne acquired expertise and/or experience when he worked for the Immigration Department of the United Kingdom, and he did not have formal education on handwriting analyses.

64.In the premises, I am not of the view that Dr Mallory Leung is not qualified to testify as a handwriting expert simply because she (i) is not affiliated to a forensic society or organization; and/or (ii) does not hold a degree in a relevant science subject.

65.For all the above reasons, I am of the view that Dr Mallory Leung is qualified to give evidence and/or express opinion as a forensic handwriting expert.

66.In my view, both Dr Daniel Wong and Dr Mallory Leung are competent and helpful handwriting experts, who have adequately discharged their duties to the court in the present case.

The Scope of Examination

67.Dr Daniel Wong and Dr Mallory Leung have examined:-

(1) the original of the Guarantee that purportedly contained the 2^nd Defendant’s signature (the “Questioned Signature”); and

(2) 16 documents (the “Sample Documents”) from 10 April 2017 to 27 October 2017[4] that contained the 2^nd Defendant’s signatures (the “Sample Signatures”).

68.Insofar as the Sample Documents are concerned:-

(1) Only Sample Document C10 (which is an assignment in respect of a conveyancing transaction), Sample Document C12 (which is a sale and purchase agreement in respect of a conveyancing transaction), Sample Document C13 (which is a sale memo) and Sample Document C14 (which is a sale invoice) are originals.

(2) Sample Documents C2 to C8 (which are credit card receipts), Sample Document C11 (which is a provisional tenancy agreement), Sample Document C13.2 (which is a delivery memo) and Sample Document 15 (which is an insurance application form) are carbonless copies.

(3) Sample Document C16 (which was studied by Dr Daniel Wong only) is the photocopy of a conveyancing agreement.

69.Dr Mallory Leung opines that it is possible to conduct a meaningful forensic examination despite the limited number of Sample Signatures that are originals.

70.Dr Daniel Wong says that his analysis is hindered by inadequate samples. He further suggests it is impossible to rule out the possibility that the 2^nd Defendant might have suppressed samples that are in favour of her case and against the Plaintiff’s case, and there is concern as to whether the Sample Signatures are sufficiently “representative” of the 2^nd Defendant’s signing habits.

71.Whilst I understand Dr Wong’s skepticism, I accept the 2^nd Defendant’s evidence that she endeavoured to put forward all the documents containing her Chinese signatures[5] that were in her possession. In this connection, the following observations are pertinent. In this connection, the following observations are pertinent. Sample Signature C10 is the only sample containing a salient feature that is similar to the Questioned Signature. In the top left-handed corner of all other Sample Signatures, there is a V-shape linking up with an S-shape, and the tail of the S-shape connects the inception of the elongated horizontal stroke in respect of the Chinese word “木” (which is in the bottom part of the segment resembling the Chinese word “梁”). In contrast, in the top left-handed corner of the Questioned Signature as well as Sample Signature C10, there is a flipped N-shape, and the tail thereof does not connect the said elongated horizontal stroke. This feature is unique to Sample Signature C10 and the Questioned Signature, and it cannot escape the attention of any layperson. Unsurprisingly, Dr Wong heftily relies on Sample C10 to support his view that the Questioned Signature was probably genuine. In my view, had the 2^nd Defendant intended to suppress relevant samples, one of the last things that she would have done was to put forward the original version of Sample Document C10 (which contains Sample Signature C10) for the parties’ experts to examine.

72.Having examined and analyzed the Questioned Signature and the Sample Signatures:-

(1) Dr Daniel Wong opines it was highly probable that the Questioned Signature and the Sample Signatures had common authorship. On a 9-point scale, he gave 2 points.

(2) Dr Mallory Leung opines it was highly probable that the Questioned Signature was not written by the 2^nd Defendant. On a 9-point scale, she gave 8 points.

Retouching and Patching

73.In Nina Kung (supra) at para 406, Ribeiro PJ pointed out that:

“Where a questioned signature shows retouching, that is, an attempt by the author to repair or improve the signature by over-writing or adding a stroke, this may be a strong indication of forgery. It certainly deprives the signature of the naturalness that is a hallmark of genuineness.”

74.Dr Leung opines that there were retouching, patching as well as tremor in the Questioned Signature[6]. In this connection, I am particularly concerned about the following features:-

(1) The Questioned Signature contains a segment resembling the Chinese word “梁”. In the lower part of this segment, there is an elongated horizontal stroke, which is part of the Chinese word “木”. This elongated horizontal stroke goes all the way to the segment resembling the Chinese word “珍” in the far right. Dr Leung points out that there was “retouching” or “patching” around the inception of this elongated horizontal stroke, and there is a spot where thick ink with much darker colour could be seen.

(2) The Questioned Signature contains a segment resembling the Chinese word “桂”. Part of this segment is the Chinese word “木”, and it contains a vertical stroke. At the end of this vertical stroke, there is a hook that goes upward and leftward. At the end of the hook, there is an additional small hook in faded ink. Whilst this small hook also points upward, it moves towards the right (which is the opposite direction). Dr Leung opines that the additional small hook in faded ink was the consequence of “retouching” or “patching”.

75.Dr Daniel Wong opines that the features identified by Dr Leung were ascribed to the “ink-deposit phenomenon”. He says that due to the defects of the writing instrument, additional ink was “squeezed out” in the course of writing the Questioned Signature.

76.Dr Mallory Leung agrees there were defects in the writing instrument due to the wear and tear of the internal metal ball that contacted the ink and the paper. She also observes that there were various dark spots with thick ink in the Questioned Signature, and these dark spots were ascribed to the “ink-deposit phenomenon”. The examples include the top of the vertical stroke of the Chinese word “木” that constitutes part of the segment resembling the Chinese word “梁” and the top of the loop on the far right that forms part of the segment resembling the Chinese word “珍”.

77.However, Dr Mallory Leung disagrees with Dr Wong’s suggestion that the features set out in paragraph 74 above could be explained by the “ink-deposit phenomenon”.

78.In my view, Dr Leung’s analysis is convincing.

79.Insofar as the elongated horizontal stroke that goes all the way to the segment resembling the Chinese word “珍” is concerned (see paragraph 74(1) above), Dr Leung points out that due to the wear and tear of the writing instrument, the ink in respect of the stroke is generally in light or faded colour. However, around the inception of this elongated horizontal stroke, there is a spot with exceptionally dark colour or thick ink. What is most telling is that this “dark spot” is not at the inception of the stroke. When the Questioned Signature is magnified, it can be readily seen that the ink in the inception of the stroke was in light colour, and the “dark spot” with thick ink oddly appears on the right-handed side of the inception. This is most unnatural. It was most unlikely that “deposited ink” would suddenly splash out in this manner when there was no change of direction. In my view, it was obvious that the person who wrote the Questioned Signature attempted to “retouch” or “patch” the inception of the said elongated horizontal stroke, but he narrowly missed the inception spot. This is a hallmark of the forgery.

80.As regards the additional small hook in faded ink that is at the end of the vertical stroke in respect of the Chinese word “木” that forms the segment resembling the Chinese word “桂” (see paragraph 74(2) above), I agree with Dr Leung that this was not a result of ink being “squeezed out” or “splashed out”; instead, this was the consequence of conscious human motion. Otherwise, there was no convincing reason why the small hook would suddenly change to the opposite direction. This was most unnatural, and indicative of the fact that the forger failed to follow a natural sequence.

Blunt End

81.The signature contains a segment that resembles the Chinese word “珍”, and this segment is ended with a curvy tail under a loop.

82.Dr Leung points out that in all the Sample Signatures, the stroke in respect of this tail was completed naturally with a tapering end. In contrast, in the Questioned Signature, the same curvy tail ended abruptly, and Dr Leung described the same as a “blunt end”.

83.I agree with Dr Leung that the end of the said curvy tail was unnatural. Such unnaturalness reflected the psychological burden of the forger, who knew that an unlawful and immoral act was being committed.

The Most Salient Fundamental Differences identified by Dr Leung

84.Since the purpose of forgery is to imitate or copy another person’s signature, there are bound to be similarities between the signature in question and the controlled samples. It is of crucial importance to identify the fundamental differences (if any) and consider whether the same are natural variations and/or capable of being explained.

85.Whilst Dr Leung identifies a number of alleged fundamental differences between the Sample Signatures and the Questioned Signature, I am most concerned about the following examples.

86.Dr Leung points out that:-

(1) In all the Sample Signatures (with exception to Sample Signature C10), the segment resembling the Chinese word “梁” contains a V-shape that is attached to an S-shape, and the tail of the S-shape goes downward and leftward until it connects with the inception of the long elongated horizontal stroke that rans all the way to the segment resembling the Chinese word “珍”.

(2) Unlike other Sample Signatures, Sample Signature C10 does not contain a V-shape that is linked to an S-shape. Instead, it contains a flipped N-shape with a tail that goes downward and leftward. There is an impression that the tail seeks to reach the inception of the said elongated horizontal stroke, though the two are not connected.

(3) Like Sample Signature C10, the Questioned Signature also contains a flipped N-shape. However, unlike Sample Signature C10 and all other Sample Signatures, the tail of the flipped N-shape in the Questioned Signature points to the right horizontally (which is the opposing direction of the inception of the elongated horizontal stroke).

87.I entirely agree with Dr Leung that the tail of the flipped N-shape in the Questioned Signature is most unnatural. Not only is the tail disconnected with the inception of the elongated horizontal stroke, the tail also points to the opposite direction and shows no attempt to connect. This simply breaks the sequence of the strokes. I agree that this is another hallmark of the forgery, and I disagree that this is natural variation.

88.Dr Leung further points out that:-

(1) In the top-right handed corner of the signatures, the segment resembling the Chinese word “梁” contains a V-shape[7]. The upstroke of the V-shape forms an angle with the horizontal signature line or the base line. In all Sample Signatures, the angles of inclination range from 59.8 degree to 47.2 degree. However, in the Questioned Signature, the angle of inclination is 23.3 degree. This falls out of range[8].

(2) The elongated horizontal stroke in respect of the Chinese word “木” (which constitutes part of the segment resembling the Chinese word “梁” and which rans all way the way to the segment resembling the Chinese word “珍”) inclines upward. In all Sample Signatures, the angles of inclination range from 29.2 degree to 50.1 degree. However, in the Questioned Signature, the angle of inclination is 23.3 degree. This falls out of range[9].

(3) The Chinese word “木” that constitutes part of the segment resembling the Chinese word “梁” has an elongated horizontal stroke. The signature also has a segment that resembles the Chinese word “珍”, part of which is the Chinese word “王”. In all Sample Signatures, the ratios of the length of the said elongated horizontal stroke and the height of the segment representing the Chinese word “王” range from 1.37 to 2.6. However, in the Questioned Signature, the ratio is 3.8. Again, this falls out of range[10].

(4) On the right-handed side of the segment resembling the Chinese word “珍”), there is a loop that is linked to a finishing vertical stroke. In all Sample Signatures, the ratios of the height of the loop and the height of the loop together with the finishing vertical stroke range from 0.11 to 0.33, and if Sample Signature 13.2 were removed, the ratios range was from 0.11 to 0.23. However, in the Questioned Signature, the ratio is 0.4. This falls out of range[11].

89.Dr Leung says that the aforesaid angles and ratios were subtle elements or inconspicuous characteristics of the signature, and as such the comparison exercises are telling and indicative of forgery. I agree. It is unlikely that a forger would measure the angles and ratios in respect of the strokes and the segments.

90.Whilst Dr Wong opines that it would be futile to measure the angles in respect of those Sample Documents that do not have a signature line, this only applies to 3 of the Sample Documents, ie Sample Signatures C10, C15 and C16. Even according to Dr Wong’s measurements (which excluded Sample Signatures C10, C15 and C16)[12], the angles of the strokes in question still fall out of range.

91.When Dr Leung testified, Mr Jevon Chan attacked and criticized her comparison exercise along the following lines:

(1) Mr Chan pointed out that many of the Sample Signatures (particularly those that appeared on credit card receipts and sales memo) were in confined space. As such, the Sample Signatures were distorted, and the distortion affected the angles and the proportions.

(2) Mr Chan also suggested that when the Sample Documents were presented to the 2^nd Defendant for signing, the papers might rotate, and the rotation affected the angles of the strokes.

92.Dr Leung had answers to Mr Chan’s criticisms. In my view, her answers are convincing:-

(1) On the question of distortion, Dr Leung, with reference to the Sample Documents, pointed out that when the 2^nd Defendant signed her name, she did not consciously confine herself to the defined space, and this was her signing habit. I agree. In the Sample Documents that were credit card receipts and sales memo, it can be seen that the 2^nd Defendant’s signatures went outside of the signature boxes, and the signatures overlapped with the printed words. Since the 2^nd Defendant did not consciously confine herself to the defined signature space, I am not of the view that there was significant distortion as suggested by Mr Chan.

(2) As regards the question of rotation, Dr Leung accepted it is possible that when a person is requested to sign a document, the paper presented to him or her may slightly rotate. Nevertheless, Dr Leung pointed out that a normal person would adjust and try to keep track of the signature line or baseline, and if the document does not have a signature line or base line, a normal person would still adjust and try to align the signature with the words printed or written on the document. Dr Leung’s explanation makes sense to me. I am of the view that Mr Chan has overblown the impact of the rotation, which Dr Leung had already taken into account.

93.Mr Jevons Chan also contends that Dr Leung’s comparison exercise is arbitrary. Mr Chan points out that a signature must contain various segments formed by a number of strokes. By comparing the sizes, lengths and/or heights of the components and/or strokes under different combinations, one could easily find a proportion that falls out of range and then makes a song and dance about it. Mr Chan submits that the exercise is meaningless.

94.I disagree. I am not of the view that Dr Leung sought to conduct an artificial or arbitrary comparison exercise to generate some meaningless ratios that support the 2^nd Defendant’s case. Even judging from a pair of naked eyes, it is apparent that the components considered by Dr Leung are significant features that affect the pictorial design or the appearance of the signature.

The Similarities and the Observations made by Dr Wong

95.Dr Daniel Wong opines that the Questioned Signature and the Sample Signatures have similar attributes in terms of pictorial design, writing movements, beginning and ending of strokes, relative alignment of strokes and connecting strokes.

96.When Dr Wong testified, he further emphasized that there are striking similarities between the Questioned Signature and Sample Signature C10. In order to demonstrate the alignments in respect of different segments of the signatures, Dr Wong added colours and imaginary lines in the figures[13]. Dr Wong referred me to the figures and drew my attention to, inter alios, the following features:-

(1) As mentioned, in the segment of the signature resembling the Chinese word “梁”, there is an elongated horizontal stroke and it rans to the segment on the right that resembles the Chinese word “珍”. Dr Wong stresses that this elongated horizontal stroke is curved subtly, and he opines it is unlikely that a forger would observe this subtle feature and imitate the same.

(2) The segments in the signature, particularly the segment resembling the Chinese word “桂”, contain strokes that involve tapering ends, which could only be created when pen pressure was reduced and motions of uplifting the pen were applied. Dr Wong opines that it would be difficult to fabricate these features as fine control was required.

97.However, Dr Wong acknowledged that there were conspicuous differences in respect of some features in the Questioned Signature and Sample Signature C10. For instance:-

(1) In the Questioned Signature, the flipped N-shape that resembles the upper part of the Chinese word “梁” has a tail that points towards the right and it is almost horizontal. However, in Sample Signature C10, the tail on flipped N-shape points downwards.

(2) There is a long vertical stroke under a loop on the far right, and it is part of the segment resembling the Chinese word “珍”. In the Questioned Signature, the said vertical stroke is ended with a small curvy tail that points towards the right. However, in Sample Signature C10, the said vertical stroke is ended with a small curvy tail that points towards the left.

98.Dr Wong suggests that the conspicuous differences are so apparent that no forger would have overlooked the same, and it follows that the same must be natural variation. Dr Wong further suggests that whilst the differences are apparent, the similarities that he identifies are so subtle or inconspicuous that they could not be apparent to a forger. Thus, the Questioned Signature was probably genuine.

99.Whilst the similarities must be taken into account, it is of crucial importance to consider whether the differences and suspicious features are capable of reasonable explanations. For the reasons set out in paragraphs 73 to 94 above, I am not of the view that there are reasonable explanations as to the retouching, patching and fundamental differences identified by Dr Leung.

100.In any event, as Dr Wong fairly accepted when he testified, a control signature was only considered contemporaneous (and hence valuable) if it was signed 2 years before or after the questioned signature was signed. Whilst the Questioned Signature was allegedly signed on 30 March 2019, Sample Signature C10 was signed on 31 May 2007. There was a huge time gap of almost 12 years. Thus, Sample Signature C12 was definitely not contemporaneous. In my view, the value of the comparison exercise conducted by Dr Wong based on Sample Signature C10 must not be overstated.

101.Furthermore, whilst I am not inclined to agree that the elongated vertical stroke connecting to the segment on the right that resembles the Chinese word “珍” is curved in a subtle manner and that the tapering ends in question are extremely difficult to imitate, there is no evidence as to (i) whether the suspected forger (who was likely to be the 1^st Defendant) was skilled or not; and (ii) the signatures that were studied and/or considered by the suspected forger in the forgery exercise.

102.In the premises, without any disrespect to Dr Wong, I am not inclined to the view the matters that he identifies show that the Questioned Signature was genuine.

103.In any event, in light of the matters canvassed in paragraphs 73 to 94 above, the matters identified by Dr Wong’s are incapable of swaying me to accept the conclusion contended by the Plaintiff.

Sum Up

104.For all the above reasons, the forensic analysis shows that the Questioned Signature on the purported Guarantee did not belong to the Plaintiff and the same was forged.

105.This conclusion is consistent with, and corroborated by, my analysis in respect of the inherent probabilities set out in Section D2 (paragraphs 37 to 43 above).

E. Conclusion and Order

106.Having considered the inherent probabilities and the evidence from the forensic handwriting experts and bearing in mind the absence of direct evidence as to how the purported Guarantee came into existence, I find and conclude that (i) the 2^nd Defendant did not sign and was not privy to the purported Guarantee; and (ii) the Question Signature on the purported Guarantee was forged.

107.For completeness, I should point out that:-

(1) The 2^nd Defendant has discharged the evidential burden by adducing sufficiently cogent evidence to raise the issue of forgery. I am satisfied that there is cogent forensic evidence from Dr Leung showing that the Questioned Signature was forged. Further, the forgery was corroborated by the inherent probabilities in favour of the 2^nd Defendant’s case.

(2) The Plaintiff has failed to discharge the legal burden to persuade the court that the Questioned Signature was genuine. Whilst the forensic evidence from the experts and the inherent probabilities cogently support the 2^nd Defendant’s case, the Plaintiff is unable to adduce direct evidence showing how the purported Guarantee was executed.

108.I do have considerable sympathy for the Plaintiff, who is a victim of the 1^st Defendant’s dishonesty and wrongdoings. However, on the evidence before the court, there is no room to hold the 2^nd Defendant responsible for his loss.

109.I have no alternative but to dismiss the Plaintiff’s claims against the 2^nd Defendant.

110.Costs should follow the event.

111.I make a costs order nisi that the Plaintiff do pay the 2^nd Defendant’s costs in this action (including all costs previously reserved) to be taxed if not agreed (with certificate for counsel).

112.I thank Mr Jevons Chan and Ms. Michelle Liu as well as the parties’ forensic handwriting experts, namely Dr Daniel Wong and Dr Mallory Leung, for their helpful assistance.

Mr Jevons Chan, instructed by Chan & Associates, for the Plaintiff

Ms Michelle Liu, instructed by Sidney Lee & Co., for the 2^nd Defendant