Wong Man Ching, Christine, As Executrix of the Estate of Wong Tai Kin, Deceased v. Wong Yung Mo and Another

HCA 305/2021

[2025] HKCFI 1936

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 305 OF 2021

________________________

BETWEEN

________________________

________________________

REASONS FOR DECISION

________________________

THE APPLICATIONS

1.The trial of this action has been fixed to commence on 17 September 2025 with 8 days reserved.  Today is the Pre-Trial Review of the action.

2.The defendants have taken out a summons on 6 May 2025 (“the Summons”), which is returnable today, for the following orders:

(1)  Leave be granted for the defendants to file and serve:

(a)    the witness statement of Eric Leung Chi Po (“Leung’s Witness Statement”);

(b)  the 3^rd supplemental witness statement of the 1^st defendant;

(2)  Leave be granted for the defendants to file and serve the 4^th supplemental list of documents.

THE BACKGROUND

Factual background

3.The factual background of this action, insofar as it is relevant to the Summons, may be summarised briefly as follows:

(1)  The plaintiff and the 1^st defendant are the children of the late Mr Wong Tai Kin (“the Deceased”);

(2)  The 2^nd defendant is the wife of the 1^st defendant;

(3)  The Deceased married Madam Chan (“Mother”)  in 1959 and had 5 children;

(4)  Mother passed away on 26 August 1997;

(5)  In December 1997, a property located in Tai Po (“the Paragon Property”)  was purchased under the sole name of the 1^st defendant;

(6)  The Deceased passed away on 8 December 2017, and upon which a Grant of Probate was granted to the plaintiff on 16 January 2018;

(7)  The plaintiff alleged that:

(a)  in administering the Deceased’s estate, she discovered that the defendants had over the years systematically siphoned off the Deceased’s assets;

(b)  although the Paragon Property was registered under the sole name of the 1^st defendant, it was so arranged only for the purpose of applying for a staff loan from the 1^st defendant’s then employer.  In fact, the Deceased had contributed to half of the purchase price, legal costs and stamp duty involved in the transaction;

(8)  The plaintiff therefore claims herein against the defendants for, inter alia:

(a)  A declaration that the 1^st defendant holds half of the beneficial interest in the Paragon Property on trust for the plaintiff;

(b)  Damages in relation to the misappropriated monies.

(9)  In the defendants’ Defence, it was alleged that:

The Paragon Property

(a)  The Deceased and Mother had always wished to gift a flat to the 1^st defendant since around 1987;

(b)  In May 1997, Mother sold her flat located in Mei Foo, and gifted a part of the sale proceeds in the sum of around $4 million to the 1^st defendant (“the $4 million Gift”);

(c)  The 1^st defendant purchased the Paragon Property on 19 December 1997.  He paid $2.5 million as down payment by making use of part of the $4 million Gift.  He had also paid off the legal costs and stamp duty himself;

(d)  He therefore holds 100% legal and beneficial interest in the Paragon Property.

The alleged misappropriation

(e)  Since 1998 up to his death, the Deceased had been living with the defendants;

(f)  On around 16 February 2010, the 1^st defendant resigned from his job as a Senior Manager in a bank in order to take care of the Deceased who was by then 82 years old;

(g)  As the 1^st defendant no longer had any income upon his resignation, the Deceased had transferred monies to him from time to time and authorised him to use monies deposited in a joint account (which was under the name of the Deceased and the 1^st defendant)  for the 1^st defendant’s own use and also for family expenses.

Procedural background

4.The action was commenced by the plaintiff on 25 February 2021.

5.After the close of pleadings, various case management directions had been given, such that, inter alia, parties were required to exchange their witness statements by 29 November 2021.  By consent, such a deadline was subsequently extended to 24 January 2022.

6.On 29 June 2022, the defendants filed their timetabling questionnaire, and indicated that they would like to serve a number of supplemental witness statements and a supplemental list of documents.  As a result, a Master gave leave for the defendants to take the aforesaid steps.

7.By consent, the defendants were further granted leave on 2 September 2022 to serve the supplemental witness statement of the 1^st defendant by 16 September 2022.

8.By consent, the defendants were granted leave on 30 May 2023 to adduce the 2^nd supplemental witness statement of the 1^st defendant.

9.On 11 July 2023, the defendants filed their Listing Questionnaire and confirmed, among other things, that:

(1)  No further interlocutory application(s)  will be taken out;

(2)  Discovery has been completed;

(3)  They have served all witness statements;

(4)  All steps that ought to be taken to prepare their case for trial have been duly taken;

(5)  It is appropriate in all the circumstances to set the case down for trial.

10.As a result, a Master set the present case down for trial on 25 July 2023.

LEGAL PRINCIPLES

Late witness statements

11.The legal principles applicable to a late application for leave to rely on a witness statement have been summarised by Bharwaney J in Gurung An Parsad v Great Wealthy Engineering Company Limited & Another [2012] 3 HKLRD 705 at [5] – [9]:

“5. Whilst parties are generally free to call factual witnesses of their choice and leave is invariably given at the checklist review hearing to the parties to serve or exchange witness statements, the court’s discretion, whether or not to accede to a party’s late application to rely on a witness statement deposing to relevant and admissible facts, must be exercised within the ambit of the court’s management powers and in the light of the objectives of the civil justice reform, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

6. Whilst the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties, and which must include the right of a party to rely on admissible, relevant and probative factual evidence, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the late application. These matters have to be considered and weighed in the light of and against the underlying objectives of the civil justice reform to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.

7. It is not possible to lay down guidelines to cover and cater for every possible situation that may give rise to a late application for leave to rely on a witness statement; however, the court would have to carefully weigh, in each case, the relevance and probative value of such a witness statement against the potential disruption to trial, prejudice to other parties, and the objectives of civil justice reform. […] Finally, a late application for leave to rely on additional witness statements, that is to say, an application made after the case has been, or is ready to be, set down for trial, will not be considered without signed witness statements containing a statement of truth being furnished.

8. Chung Hiu Bun, the administrator of the estate of Chung Chun Kong, deceased v. Yeung Yiu Sing and anor., HCPI 123/2012, 28 July 2011 is an example of a case where a party, after the case was set down for trial, sought to present new evidence and a new case. The plaintiff was not to blame for not adducing this evidence earlier because the new evidence had only been discovered recently and rather fortuitously. In this case, the defendants could see that the witness statements that were sought to be adduced and the amendments that were sought to be introduced were very relevant to the claim so they very sensibly consented to the plaintiff’s application. However, there are many other cases where strong opposition can be made to any such late application, particularly where the probative value of the new evidence is low and of marginal relevance. Further, the court would also be less inclined to accede to such late applications where additional witness statements are produced that speak of the same facts that have already been mentioned in previously served witness statements.

9.  Very strong grounds would be required to move a court to accede to such applications if doing so would result in trial dates being vacated.”

12.While the above were said in a personal injury case, I am of the view that the principles referred to are equally applicable herein.

13.For completeness, it may also be helpful to refer to the case of Chu Hsiao-Chiu alias Chu Tony Chu Hsiao-Chiu alias Chu Hsiao Chiu, deceased v Ma Jinrui & Another [2020] HKCFI 942, in which the plaintiff therein sought leave to file two affidavits in opposition to various applications taken out by the defendants less than 3 weeks before the substantive hearing.  In his Decision, Coleman J. took the view that:

“18. It is well-established in the ‘post-CJR era’ that the underlying objectives emphasise not only substantive but also procedural fairness. Therefore, late or last-minute applications trigger the Court’s expectation that the applicant will provide a full account of the lateness of the application, and full justification as to why the application should be entertained at all at such a late stage.

19. There is no longer room for the notion that delay, even though inordinate and unexplained, will be forgiven as long as there is no prejudice and costs are paid. Courts should take into account that there may be an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Further, the vacation or adjournment of the hearing occasioned by last-minute applications may mean the loss of the hearing day which could have benefited other litigants, and inefficiencies in the use of Court time, which is a public resource. Hence, late applications can be dismissed on the basis of lateness alone.”

Late disclosure of documents

14.In the case where a party seeks belatedly to rely on newly disclosed documents, what was said by Mimmie Chan J in Converge Design and Construction Company Limited v Mount Kelly International Limited [2020] HKCFI 2433 is relevant:

“2. The courts have emphasized on repeated occasions that CJR is about early preparation for trial, in order to achieve the objectives of the Rules. It needs no further reminder that delay itself is a ground to refuse a late application, either for discovery or for the introduction of new pleadings and evidence, when trial is imminent. The onus is on the applicant to justify its delay and to show good reason for leave to be granted. Whilst delay is to be weighed against the probative value and relevance of the pleadings and the evidence sought to be introduced, it need not be emphasized further that the primary aim in the Court’s exercise of its powers is to secure the just resolution of disputes in accordance with the substantive rights of the parties. Such just resolution of disputes requires due consideration of the time occasioned by last minute applications to introduce amendments to the pleadings and/or evidence on the eve of trial. Prejudice is inevitably caused, in the disruptions in the preparation for trial, the need to consider the new evidence and the need to respond thereto, coupled with the need to locate witnesses at the last minute to consider and if necessary to respond to the new evidence, and the last minute distraction from the proper focus and priority of the due preparation for trial. This is actual prejudice.

[…]

9.  As for lists of documents and discovery made on the eve of trial, it is for the litigant giving discovery at the eleventh hour to establish why the Court should exercise its discretion to permit the late discovery (Hong Lok School Limited v Chow Sai Yiu, HCA 17139/1999, 7 July 2003 and Big Island Construction (HK)  Limited v Wu Yi Development Company Limited, HCA 1957/2005, 22 February 2010).  Absent a good and credible explanation, by affidavit, as to why the document was not disclosed earlier, the application may be refused on the ground of delay alone.  Even if there are documents hitherto disclosed, but were not referred to in the witness statements filed for trial, there should be affidavit evidence as to the use proposed to be made of the documents in question, the provenance and the maker of the document, its relevance to the issues before the Court, and the availability or otherwise of the maker of the document to attend trial for cross-examination.  Clearly, this is all to ensure that the opponent in the litigation can fairly prepare for trial, and to enable the Court to properly exercise its discretion in dealing with objections from the opponent.”

DISCUSSION

Leung’s Witness Statement

15.According to the supporting affirmation of the 1^st defendant, Eric Leung Chi Po was his friend and an estate agent.  His witness statement relates to an event which took place in 1992 when the parties’ parents intended to purchase a property as a gift for the 1^st defendant.  This is to support the defendants’ case that the parents had a long-standing intention to buy a landed property for the 1^st defendant as a gift.

16.As to the reason why Leung’s Witness Statement is introduced so late, the 1^st defendant stated that:

“The Defendants seek to adduce Mr Leung’s witness statement at this stage because it was only recently that I was able to locate Mr Leung and confirm his willingness to provide evidence. During the preparation of this case, I had not initially been in contact with Mr Leung, as we had lost touch for some time. It was only through diligent efforts in recent months that I successfully reconnected with him and obtained his agreement to testify about the 1992 event.

The delay in adducing Mr Leung’s witness statement is not due to any lack of diligence on the part of the Defendants. The need to locate and secure Mr Leung’s testimony arose as part of the ongoing preparation of the Defendant’s case, particularly in response to the Plaintiff’s allegations concerning the ownership of the Paragon Property and the handling of my parents’ assets.

The adduction of Mr Leung’s witness statement will not prejudice the Plaintiff, as the event in question has already been disclosed in my supplemental witness statements, and the Plaintiff has had the opportunity to consider this evidence. Furthermore, Mr Leung’s statement is concise, focused on a single event, and does not introduce new issues that would require extensive additional discovery or preparation.”[1]

(emphasis added)

17.The 1^st defendant’s explanations are simply unacceptable:

(1)  The whole period for the parties to serve witness statement has lasted for around 1.5 years.  There is no valid reason why the 1^st defendant did not try to locate Mr Leung earlier, but left it until “recent months”;

(2)  The 1^st defendant suggested that the need to secure Mr Leung’s testimony only arose in response to “the plaintiff’s allegations concerning the ownership of the Paragon Property and the handling of [the] parents’ assets”.  With greatest respect, these excuses are lame, as those allegations were made right at the beginning of this action.  Indeed, as recognised by Mr Tsui for the defendants, the 1992 incident was already referred to by the 1^st defendant himself in his supplemental witness statement dated 29 August 2022.  That clearly shows that the 1^st defendant knew about the need to adduce evidence on the 1992 incident back then.

18.Although Leung’s Witness Statement is short, I do not agree that means no prejudice would be caused to the plaintiff by the introduction thereof.  As pointed out by this Court and other Judges time and again, it is a form of prejudice if the other side’s preparation of the trial has to be distracted by the new evidence.

19.Furthermore, it should also be borne in mind that Eric Leung is a new witness.  The time for his examination was not taken into account when the trial length was fixed.  It is unknown whether the introduction of one more witness would have any impact on the total trial length.   

20.In my view, the application may be dismissed on the ground of delay alone.  In any event, the prejudice which the plaintiff would suffer and the impact which might be caused to the upcoming trial in the event leave is granted would be so great that would clearly outweigh the probative value of Leung’s Witness Statement.

21.The defendants’ application for leave to adduce Leung’s Witness Statement is therefore dismissed.

The 1^st defendant’s 3^rd supplemental witness statement

22.By his 3^rd supplemental witness statement, the 1^st defendant seeks to address the estimated breakdown of the household monthly expenses when the Deceased was alive and residing with the defendants.  His main purpose is to produce a number of excel tables containing such breakdown of expenses.

23.For the sake of completeness, I quote his supporting affirmation as follows:

“Following the Deceased’s passing in 2017, I had a discussion with the Plaintiff regarding the expenses incurred for the Deceased’s care and household maintenance during his lifetime. As part of those discussions, I provided the Plaintiff with a preliminary list of expenses that I had paid on behalf of the Deceased.

At the time of those discussions in 2017, the figures in the preliminary list were not fully verified, as I had not yet had the opportunity to cross-reference them with all relevant receipts, bills, and other supporting documents. The Plaintiff subsequently disclosed this preliminary list as Item 36 in the Plaintiff’s List of Documents filed on 20 September 2021.

In preparation for this case, I undertook a thorough review of the financial records, receipts, and bills related to the Deceased’s expenses. The process allowed me to verify the accuracy of the expense figures and compile excel tables of household expenses and expenses for additional equipment/products to support the Deceased, which provides a clearer and more accurate picture of the expenses I paid on behalf of the Deceased. I therefore exhibited the excel tables in the 3^rd Supplemental Witness Statement of Wong Yung Mo.

Furthermore, the excel tables reflect verified amounts based on the supporting documents, most of which have been disclosed in the Defendants’ Lists of Documents.”[2]

24.It can be seen that no explanation has been given as to why this witness statement could not be prepared earlier.  It seems to me the late application is wholly caused by the 1^st defendant’s own decision to do the verification work at last minute.  He only has himself to blame.

25.It should also be highlighted that the 1^st defendant has already dealt with the breakdown of household monthly expenses when he served his 1^st witness statement back in December 2021.  He has further touched on the topic when he filed his 2^nd supplemental witness statement in June 2023.  In my view, he has had enough opportunities to deal with the issue in the past, and there is no reason why he should be granted further indulgence on such a matter.

26.Hence, there is totally no justification as to why the plaintiff should have to deal with the new evidence at such a late stage. 

27.I therefore dismiss the defendants’ application in this regard.

The defendants’ 4^th Supplemental List of Documents

28.The defendants now also seek to introduce 10 new items of documents.  According to Mr Tsui, there are 2 categories of documents:

(1)  The first category is the family photos of the Wong family taken in the 1980s and 1990s[3]. The photos seek to demonstrate the relationship among the family members and the occupation of the Deceased and Mother, as their financial ability is a live issue at the trial;

(2)  The second category of documents include some receipts of medical treatment of the Deceased between 2008 and 2017.  These receipts can demonstrate the state of the Deceased’s health and the extent of medical expenses during that period.

29.The plaintiff does not object against the defendants’ disclosure of various medical bills/receipts.  However, she has objection in relation to a household expenses table, the Deceased’s business name card and a compilation of photographs.

30.The 1^st defendant explained the lateness of this application as follows:

“The documents listed in the 4^th Supplemental List of Documents were only recently discovered during the ongoing preparation of this case. Despite diligent efforts to identify and disclose all relevant documents earlier in these proceedings, these documents were located only recently due to their being stored in various locations, including personal records and family archives, which required time to review and retrieve.

Upon discovering these documents, the Defendants promptly took steps to disclose them by including them in the 4^th Supplemental List of Documents, which was filed with the Court as soon as practicable. The delay in disclosing these documents was not due to any lack of diligence but rather the practical challenges of locating records spanning multiple years and sources.”[4]

31.In my view, the statement that the late disclosure of these documents was not due to lack of diligence is a bare assertion which cannot be accepted:

(1)  While it was said that the new documents were “stored in various locations”, it was not explained why this would mean that they could not be retrieved earlier;

(2)  The alleged excuse that the 1^st defendant “required time to review” is unhelpful especially when he did not explain the total amount of materials which he was required to review;

(3)  The fact that they were “records spanning multiple years and sources” is neither here nor there without the 1^st defendant explaining what those “sources” are;

(4)  In fact, the 1^st defendant’s explanation is contradicted by the fact that one of the photographs is allegedly “placed at home”.  As accepted by counsel for the defendants, it simply cannot be the case that “it could not be retrieved even with reasonable diligence”.

32.As far as the probative value of the new documents is concerned:

(1)  It was suggested by Mr Tsui for the defendants that the family photographs could be used to show that the Deceased and Mother favoured the 1^st defendant as compared to their other children. Presumably this is considered necessary for the purpose of establishing the defendants’ case that Mother did give the 1^st defendant the $4 million Gift in May 1997.  I doubt whether that purpose can be achieved by producing old family photographs, most of which were taken in 1970s and 1980s. Even the photographs taken in the 1990s cannot be of much use;

(2)  It was also said that the photographs could show that the Mother had a job before and therefore would have the ability to purchase properties herself.  Mr Tsui said this would be useful in negating the plaintiff’s evidence that the properties registered under the name of Mother were actually owned beneficially by the Deceased.  However, it should also be noted that according to the 1^st defendant, both parents had the intention to give him a flat as a gift;

(3)  Hence, putting it to the highest, those photographs are only marginally relevant to the live issues;

(4)  As far as the Deceased’s business card is concerned, I note that it is the plaintiff’s own evidence that he worked in Marvels Clothing Company Limited until he retired.  It is therefore unknown what purpose the name card may serve;

(5)  Lastly, there is a table of household expenses. Insofar as the items of expenses have already been covered by previous documents, it is open to the defendants’ counsel to compile such a table at the submission stage of the trial to assist the trial Judge.

33.All in all, I am of the view that the Court should not exercise its discretion in allowing the late disclosure of documents.

ORDER

34.By reasons of the aforesaid, I made the following orders:

(1)  Paragraph 3 of the Summons be allowed to the extent that the 4^th Supplemental List of Documents may only include item Nos. 89 – 95;

(2)  Paragraphs 1 and 2 of the Summons be dismissed.

(3)  The Witness Statement of Eric Leung Chi Po and the 3^rd Supplemental Witness Statement of the 1^st defendant which have been filed without leave of the Court be expunged from the Court file.

COSTS

35.The defendants agreed that they should be liable to pay the plaintiff’s costs of the Summons.  Such costs is summarily assessed at $63,050 and shall be paid by 22 May 2025.

POSTSCRIPTS

36.It has been provided in Practice Direction 5.2, inter alia, that:

“28. A CMC is a critical stage in the proceedings and for most of the cases virtually the only milestone event before trial. It is not a second opportunity for the parties to ask for directions which they could have sought after they have first filed their Timetabling Questionnaires.

29. Parties are expected to have complied with the timetable laid down by the Court by the time of the CMC. Unless sufficient grounds have been shown to it, the Court will not grant extensions of time for compliance. If it does, the grant of extension will most likely be on an unless order basis with self-executing sanctions.

30. The parties are also expected to indicate accurately and fully the extent of further interlocutory applications or appeals to be made.

31. The later in time and the closer to a trial date an application is made, the less likely it is for the Court to entertain it.

[…]

33. Where the Court decides to hold a PTR, it will normally be held about 8 to 10 weeks before the trial date or the beginning of the trial period. A PTR is generally dealt with by the trial judge.

34.  A PTR is not an extension of the CMC.  The Court expects a case to be ready for trial.  Late interlocutory applications may be dismissed on the basis of delay alone.”

37.It can be seen and it should be appreciated that Pre-Trial Review is not a hearing designed for giving parties another opportunity to make last-minute interlocutory applications for the preparation of the trial.  Such preparation work should have been done before the Case Management Conference (“CMC”), so that, if any interlocutory applications have to be made, they are made timely, such that the case would be ready to be set down for trial at the CMC.

38.Parties are required to complete a Listing Questionnaire for the purpose of CMC, or if they are minded to ask for an order of setting down at a Case Management Summons hearing.  The Listing Questionnaires are useful in that, apart from the fact that they would supply the Court with all the essential information for case management purpose, they also provide a useful checklist for the parties and their legal advisors – they may consider whether they need to take further steps before the case is set down for trial according to such a checklist.  If counsel’s advice is required, such advice should be obtained before the Listing Questionnaire is completed.  As far as represented parties are concerned, their solicitors should not sign off the Listing Questionnaire without being satisfied that the information given thereunder is correct.  This is particularly so if they are to confirm that no further steps ought to be taken to prepare the case for trial, because their client would be bound by such a confirmation.  This is because it is likely that the Court would set the case down for the trial accordingly (if similar confirmation is given by the other party(ies)).  The legal team representing the other parties in the action would also advise their client and prepare for the trial on such a basis.

39.Therefore, it is important for the parties to note (and for their legal team to advise them)  that, while understandably they would like to incur as least legal cost as possible unless they really have to, realistically they do not have a choice of only treating the litigation seriously when the trial date is near.  The preparation work has to be done much earlier than that.  For example, they need to consider early what their pleaded case should be, what evidence would be required for the purpose of establishing their case and what interlocutory applications have to be made for such purposes.  If effort is required to gather evidence, such effort has to be spent early, for it would normally be too late for a party to make late applications at the PTR.  As aforesaid, it should be borne in mind that such late applications may be dismissed on the ground of delay alone (paragraph 34 of PD 5.2).  If that really happens, it is not open to the parties to complain that justice is not done by reason of the Court’s refusal of their late applications.  They only have themselves to blame.

Mr Ken To, instructed by S. T. Cheng & Co, for the plaintiff

Mr Brian Tsui, instructed by Chak & Associates LLP, for the defendants