Chen Yue Jia James, Executor of the Estate of Wong Shou Chen Alias Wong Sau Chun v. Chen Maria (also known as Maria Chen Fang and Maria Fang)

HCA 519/2022

[2026] HKCFI 508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 519 OF 2022

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D E C I S I O N

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A. INTRODUCTION

1.By a summons dated 23 April 2025 (“P’s Summons”), the plaintiff (“P”) seeks an order to strike out the defendant (“D”)’s amended defence and counterclaim (“ADCC”) herein (“the Striking Out Application”) and summary judgment against D (“the Summary Judgment Application”).

2.The basis of P’s claim in these proceedings is the judgment handed down by Lok J in HCA 1284/2013 and HCAP 15/2013 (the Validity Proceedings, “VP”) on 15 September 2020 (“VP Judgment”), in which the learned judge pronounced in solemn form that the valid last will of the late Madam Wong Shou Chun (“the Deceased”) was her Will dated 14 March 2001 (“the 2001 Will”).  P (in his personal capacity) and D are the parties in VP.  It is necessary to point out that the Deceased’s estate is not a party in VP. 

3.In these proceedings, P (in the capacity of the executor of the Deceased’s estate) claims against D for recovery of the following:

(1)     various items (“the Items”) in the Safe Deposit Box no.90496 held at the Mongkok branch of HSBC (“the Safe Deposit Box”) and

(2)     the following bank deposits (“the Deposits”):

(a)     fixed deposit of US$1,161,711.32 (“Deposit 1”) transferred at maturity on 14 June 1999 to the joint name account of the Deceased and D held with the Central Head Office of Chekiang First Bank (“CKB”) (“the CKB Joint Account”), the sum being a deposit originally held in the Deceased’s sole name account at the San Franciso branch of CKB.  Deposit 1 was further transferred into an account in the Deceased and D joint name at HSBC (“the HSBC Joint Account”) on the same day;

(b)     a fixed deposit of HK$9,226,950.50 (“Deposit 2”) transferred from account under the Deceased’s sole name held with the Kowloon Branch of CKB to the CKB Joint Account in or around June 1999, which was due to mature on 21 June 1999; and

(c)     a deposit of around HK$10,000,000  (“Deposit 3”) held at the OCBC Wing Hang Bank Limited (“the Wing Hang Account”), with D’s name being added as a co-signatory to the account on or about 23 September 2004. 

4.In this hearing, P is represented by Mr Ambrose Ho SC, leading Ms Joyce Leung.  D is represented by Dr William Wong SC, leading Mr Kerby Lau and Mr Joshua Yeung.

5.Each aside has provided me very detailed written and oral submissions, and each side has cited numerous authorities in these applications.[1] In this judgment, I would give my conclusion on the applications made by P, and I would provide succinct reasons for that conclusion.  For avoidance of doubt, the points put forward by the parties in their respective submissions (both written and oral submissions) and the authorities referred to in their respective submissions which have not been mentioned in this decision have also been considered by the Court.  Some points raised and some authorities cited by the parties are not mentioned in this decision simply because for the purpose of this decision, the matters stated herein would be sufficient.

6.Having considered the papers before me and the parties’ respective submissions, I come to the conclusion that both the Striking Out Application and the Summary Judgment Application should be refused.  My reasons appear below.

B.    BACKGROUND[2]

7.P is the only son of the late Chen Yet Sen Robert (“Robert”), who was the only son of the late Chen Zaomin (“Chen”) by his first wife.  The Deceased was the second wife of Chen and P’s paternal grandmother.  D was born in 1947 and was the adopted daughter[3] of the Deceased.

8.The Deceased married Chen in 1954 in Hong Kong and they lived together in Hong Kong until Chen’s death in 1978.  Chen’s family wealth came from the successful business of Chen’s enamel business in Shanghai, and later in Hong Kong and Africa.

9.After Chen’s passing on 13 April 1978, the Deceased, P’s father (Robert) and D entered into a Succession Agreement dated 28 July 1978, whereby the Deceased took 50%, and each of Robert and D took 25% of Chen’s estate.

10.On 5 September 1978, the Deceased executed a will (“the 1978 Will”) which bequeathed her whole estate to the male descendants of Chen Family.

11.In 1987, the Deceased executed a Deed of Confirmation and Trust, declaring that all her cash assets and investments were held on trust for Robert and Daisy (Robert’s wife).  In the same year, the Deceased executed a declaration stating that Robert is her son through Chinese customary practice and recognition and through her marriage to Chen.

12.On 30 October 1991, the Deceased executed a declaration stating that D was not her natural daughter but was adopted by her and her husband into the family (“the 1991 Adoption Declaration”).

13.On 6 October 1992, Deceased executed another will (“the 1992 Will”) and a declaration that D was her adopted daughter (“the 1992 Adoption Declaration”).

14.In 1999, there was a series of transfers of bank deposits from the Deceased’s various sole name accounts and to various newly opened joint accounts or co-signature accounts of Deceased and D.  In the same year, it was discovered that the Items in the Safe Deposit Box had been taken away.  The Safe Deposit Box was originally maintained by the Deceased in her sole name but later D’s name was added.

15.On 14 July 1999, the Deceased executed another will (“the 1999 Will”), followed by another will on 14 March 2001 (“the 2001 Will”), and a further will on 23 July 2004 (“the 2004 Will”) respectively.

16.On 11 May 2005, D and her husband, without giving prior notice to P and other family members, took the Deceased to the United States.  P had tried to arrange for the Deceased’s return to Hong Kong.  However, due to the Deceased’s deteriorated health, the Deceased was unable to return to Hong Kong and passed away in the United States on 13 May 2013.

17.In 2013, P applied for a grant of probate as sole executor under the 2004 Will or alternatively sought to propound the aforesaid wills in descending order or recency in VP.  In her defence in the VP, D claimed that the various wills did not give effect to the legitimate expectations of D given her “close” relationship with the Deceased and that it was impossible for the Deceased to have made no provision for her.

18.The trial in VP (“VP Trial”) took place before Lok J in July 2019. After a 16-day trial, the learned judge handed down VP Judgment on 15 September 2020.  The learned judge found and propounded the 2001 Will as the last valid Will of the Deceased.

19.There is no appeal against VP Judgment.

20.Between January 2021 to May 2022, various letters were issued by Haldanes on P’s behalf to D and her previous solicitors YS Lau, seeking the return of the Items and the Deposits but no substantive response was given.

21.P (in the capacity of the executor of the Deceased’s estate) commenced the present proceedings on 6 May 2022.  P’s case is that the Items and the Deposits are the properties belonging to the Deceased’s estate, and D should return the same to the Deceased’s estate.

22.It would be necessary to mention that the Items as stated in P’s pleaded case are the following[4]:

(1)     5-6 diamond rings

(2)     an approximately 3 carat diamond ring

(3)     10 carat diamond

(4)     strand of pearl necklace

(5)     two sets of jade jewellery

(6)     jade bracelet or bangle

(7)     gold pendant in the shape of a peanut

(8)     old plate with "stay happy together" (永結同心) on it

(9)     documents that used to belong to Chen including but not limited to a visit permit, stock certificate, marriage certificate, old family letters, old photographs, passport and vaccination records for malaria

(10)     old coins of foreign currency

(11)     five $500 notes of a certain currency

For the reason stated in [32] below, I would call items (1) to (5), (7), (8) and (11) as “Group A Items”, and items (6), (9) and (10) as “Group B Items”.

23.On 7 June 2024, D filed her defence and counterclaim in these proceedings.  In her pleadings, D claims that the Items and Deposits were intended as inter vivos gifts to her by the Deceased, pursuant to certain “Common Understanding” between D and the Deceased in or around 1999.  She further filed the ADCC on 6 August 2024.

24.In my view, it is important to note the meaning of “inter vivos gift” in D’s pleaded case is the one pleaded in ADCC [8], which is as follows:

“In or around 1999, upon [D] and the Deceased’s return to Hong Kong after the Deceased’s surgery in San Francisco, the Deceased added [D]’s name to and/or made [D] a joint holder of several bank accounts and the Safe Deposit Box, with the intention to make an inter vivos gift, whereby the funds and/or items held therein (including the Items and the Deposits), would be jointly held and/or used by the Deceased and [D] during the Deceased’s lifetime, with absolute ownership of the same passing to [D] upon the death of the Deceased (the “Gift” and “Gift Assets”). [D] shared and/or accepted the Deceased’s intention to make the Gift to her.” (Emphasis added)

25.D’s case is as follows:

(1)     The Common Understanding between the Deceased and D are evidenced from the following series of events that happened since 1998.

(2)     On around 7 July 1998, the Deceased underwent a major surgery at Stanford Medical Hospital in San Francisco.  Concerned that the major surgery might be unsuccessful, prior to the surgery, the Deceased told D she had “large sums of money in various banks in Hong Kong” she intended to gift to D.

(3)     The Common Understanding were derived from the Deceased’s oral representations and conduct as follows:

(a)     In or around 1998, during their travels in Vancouver, the Deceased told D that she wanted to transfer some assets to D and/or D’s children as a gift.  Thereafter, the Deceased transferred and gifted a real property located in Richmond, Canada to D.

(b)     In June 1999, the Deceased and D opened and/or became the joint account holders of the CKB Joint Account.  The Deceased further told a representative at CKB that it was her specific intention to “give” the money to her daughter (ie D).

(c)     In around May or June 1999, the Deceased and D further opened and/or became the joint account holders of HSBC Joint Account.

(d)     In June 1999, the Deceased replaced her niece Mary Wong Holaday (“Mary”) with D as the joint holder and/or co-signatory of the Safe Deposit Box containing the Items.

(e)     On around 14 June 1999, Deposit 1 which was previously held in the Deceased’s sole name account with the San Francisco branch of CKB was transferred to the CKB Joint Account.

(f)     In around June 1999, Deposit 2 was transferred to the CKB Joint Account.

(g)     On around 23 September 2004, the Deceased added D’s name as a joint holder and/or co-signatory of the Wing Hang Account.  The sum in this account is Deposit 3.

(4)     D also acted to change her position in reliance on the Common Understanding, including inter alia paying substantial sums for the benefit of the Deceased, eg for renovations, hospital bills, vacations, etc.

(5)     D counterclaims for the Items and the Deposits.

26.On 20 September 2024, P filed the reply and defence to counterclaim.

27.On 23 April 2025, P filed P’s Summons.  P says that D’s defence is plainly and obviously unsustainable, inconsistent with the position adopted by her in VP, and plainly and obviously amounted to a collateral attack against the findings in the VP Judgment.  Further, the ADCC is an abuse of the Court’s process and ought to be struck out, and summary judgment should be given to P.[5]

C.   STRIKING OUT APPLICATION

C1.  Basis of P’s application – Abuse of process

28.In P’s Summons, P has set out all the grounds under RHC Order 18 rule 19 in support of the Striking Out Application.  However, in P’s skeleton submissions, P has made it clear that P is only relying upon the “abuse of process” ground in the Striking Out Application.[6]

29.Mr Ho SC on behalf of P submits that D’s pleaded case in this action amounts to abuse of process in the following respects[7]:

(1)     inconsistent case/position from VP;

(2)     re-litigating factual issues or collateral attack against findings in the VP Judgment;

(3)     issue(s) could and should have been raised in VP; and

(4)     lack of bona fide defence/no reasonable defence.

I would treat these as the grounds relied upon by P in support of the Striking Out Application based upon abuse of process.

30.Mr Ho SC submits that these aspects should not be viewed as mutually exclusive compartments.  He invites the Court to take a holistic approach in reviewing the overall position adopted by D in deciding whether D has indeed abused the process of the Court.

31.Mr Ho SC has fairly accepted that:

(1)     In VP, the ownership of the Items and the ownership of the Deposits are not the issues raised in the pleadings in those proceedings.

(2)     In VP Judgment, the learned judge did not make any finding on the ownership of the Items or on the ownership of Deposits.

32.Mr Ho SC has also clarified that as to Group B Items, P is not saying that in relation to these items, D’s stance in these proceedings is different from the one adopted by her in VP.

C2.   The principles

33.The principles for striking out are well-established.[8] Striking out is for the claims that are bound to fail, and should only be done in plain and obvious cases.

34.In Chu Yue Bun v Lai Shiu Woon[9], Kwan VP said:

“33. … the principles that striking out a claim is for a plain and obvious case; that there should be no trial on affidavit and disputed facts are generally taken in favour of the party sought to be struck out; that a claim is to be struck out only when it is plain and obvious it is bound to fail, not merely because the case is weak and not likely to succeed; that a party who seeks to strike out a claim based on an abuse of process bears a heavy burden; and that striking out is the ultimate sanction and last resort to be used only when it is plainly and obviously the appropriate remedy, not when any defect is curable by amendment of pleadings.

34. The above principles are not controversial.

35. Other relevant principles are …not controversial as well and must also be taken into account:

(1) A pleading can be struck out if it is plain and obvious that the case pleaded has no factual basis, or has no solid basis capable of proof and is a myth with no substantial foundation, or presents a tissue of improbabilities which ought not to be sent to proof. The court is not bound to accept an allegation as true and proceed on a fictional basis if it is something which can clearly be shown to be incontrovertibly false. (Lam Kit Sing v Chungshan Commercial Association, Hong Kong & Ors, HCA 2011/2014, 29 June 2016, §18).

(2) It may be an abuse of process for a party, with full knowledge of the facts, to advance a claim that is diametrically opposed to its position taken in an earlier set of proceedings. The abuse lies in its effect on the integrity of the administration of justice, which would be no less compromised even if the previous inconsistent allegation was not followed through to judgment, particularly when such previous allegation was of some significance. (Chan Chun Chuen v Kao, Lee & Yip at §§30, 78)

(3) What constitutes an abuse of process in the type of case referred to in (2) may vary with the circumstances of each case. An important factor in determining whether it is an abuse of process is to see whether there is any explanation why diametrically inconsistent cases have been advanced by a party in different proceedings. (Chan Chun Chuen v Kao, Lee & Yip at §§30(3), 68; Jim Chiu Yuen v C L Chow & Macksion Chan (a firm) & Ors [2018] HKCFI 154 at §33).

……

41. … although the court does not conduct a mini-trial on affirmation in a striking out application, the court does not adopt a blinkered approach to the evidence and it is not bound to accept an allegation as true in light of obvious inconsistencies on a matter of significance for which no explanation for the inconsistencies was given.” (Emphasis added)

35.Recently, on striking out based upon abuse of process, in Mueen-Uddin v Secretary of State for the Home Department[10], Lord Reed PSC said:

“42. … one other general principle should be noted. As Simon Brown LJ stated in Broxton v McClelland [1995] EMLR 485, 498, in a dictum which has been cited many times:

“Only in the most clear and obvious case will it be appropriate upon preliminary application to strike out proceedings as an abuse of process so as to prevent a plaintiff from bringing an apparently proper cause of action to trial.”

……

62. … if proceedings are to be characterised as an abuse of process, that the claimant should have had what Lord Diplock described in [Hunter [1982] AC 529], at p.541, as “a full opportunity of contesting the decision [in the previous proceedings] in the court by which it was made”. It also makes it clear that challenging a previous decision, even of a criminal court, does not necessarily connote an abuse of process. Not all re-litigation of the same issue will bring the administration of justice into disrepute.” (Emphasis added)

36.There is a type of abuse of process called Henderson v Henderson abuse of process, which was first formulated by Wigram V-C in Henderson v Henderson^[11], in which the learned judge said:

“…… where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

37.The Henderson v Henderson principle precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones, unless there are some special circumstances.

38.As to Henderson v Henderson abuse of process, in Johnson v Gore Wood^[12], Lord Bingham said:

“But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same subject matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceedings involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus, whilst I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particular if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.” (Emphasis added)

39.In Ko Hon Yue v Chiu Pik Yuk^[13], Ma CJ highlighted the following facets of the doctrine of the Henderson v Henderson abuse of process:

(1)     The doctrine is founded on an abuse of process.  It ought only to be applied when the facts are such as to amount to an abuse.  Otherwise, there is a danger of a party being shut out from bringing forward a genuine subject of litigation.

(2)     It must therefore be essential when striking out a claim on this basis (and thus preventing a litigation of that claim) that an abuse is found to exist in seeking to raise in subsequent proceedings claims or issues which could and should have been raised in earlier proceedings.  This abuse will usually take the form of the other party being “vexed” by the subsequent set of proceedings.

(3)     The abuse can also take the form of the administration of justice being brought into disrepute.

(4)     In examining aspects such as abuse, the Court is concerned with balancing interests: not just those of the litigants before it, but also taking into account the other interests involved in the administration of justice.  When the court is dealing with the Henderson v Henderson type of abuse, it is not looking at an absolute bar to litigation such as issue estoppel or cause of action estoppel. On the contrary, in considering this type of abuse, the Court is required to assess a number of factors and balance competing interests.

(a)     There is conceptually an important distinction between absolute bars such as issue estoppel and Henderson v Henderson type of abuse.  In the former situation, the party who seeks to re-litigate an issue or cause of action has already had his day in Court, whereas in the latter situation, that party has not.

(b)     The assessment of different factors and balancing competing interests can be said to be an exercise of a discretion.  An important point to bear in mind is that an appellate court is obliged to pay sufficient regard to the decision of the court below and should be reluctant to interfere where the decision is based on the assessment or balancing of a number of factors. 

40.In considering whether a claim could and should have been raised in earlier proceedings, the Court should avoid adopting a mechanic approach.  The differences in the causes of action relied upon, the differences in the relief claimed, and the jurisdiction of the court in which the earlier proceedings were conducted should be borne in mind.  In Endozo Maylin Palomar v Lee Chi Ming[14], Cheung JA said:

“9.2 It is true that the present tort claim and the earlier contractual claim are based on the same factual background but to rely on this to mount a case of abuse will be a mechanistic approach without considering, at the same time, the different causes of action and relief and the restricted jurisdiction of the Labour Tribunal where the compromise was reached.”

41.Regarding whether the matters stated in VP Judgment would have any impact on the outcome of P’s Summons, the Hollington principle would need to be borne in mind.  In accordance with the Hollington principle, findings made in a previous judicial decision, which do not amount to issue estoppel/res judicata, are inadmissible in a subsequent case.  However, statements of factual evidence laid out in the previous case would still be admissible in the sequent case.  The principle has been recently stated by the Court of Appeal in Bank of Huludao Co Ltd v Zhongying Int’l Holding Group Limited[15], in which Ng J (giving the judgment of the Court) said:

“24. The Defendant sought to debar the Plaintiff from adducing the PRC Judgment as evidence in the Action on the basis of what might be called the “Hollington principle”, being the rule arising from the namesake case of Hollington v F. Hewthorn & Co. Ltd [1943] KB 587.

25.     The Hollington principle is well settled.  Briefly stated, a judgment and factual findings of another court or tribunal in earlier proceedings, whether civil or criminal, are inadmissible in subsequent proceedings, unless the party against whom the finding is sought to be deployed is bound by them by reason of an estoppel per rem judicatam: Capital Century Textile Company Limited v Li Dianxiao & Anor [2018] HKCFI 729, per Lisa Wong J at §23; Jin Jiang Investment Limited & Anor v &深圳市威廉金融控股有限公司 & Ors [2022] HKCFI 378, per Coleman J at §44.

26.     The underlying rationale of the Hollington principle is that it is the duty of a court to form its own opinion on the basis of the evidence placed before it; and that it would not be proper for the court in forming that opinion to be influenced by the opinion of someone else, however reliable that person’s opinion is likely to be.  In so far as the evidence before the later court is the same as the evidence before the earlier court, the later court is in as good a position to draw inferences and conclusions from the evidence.  In so far as the evidence is different, the opinion of the earlier court does not assist the court’s task.  The true justification for the Hollington principle lies in the requirements for a fair trial: Rogers v Hoyle [2013] EWHC 1409 (QB), per Leggatt J (as he then was) at §93 and §104.

27.     On the other hand, the Hollington principle does not apply to the evidence referred to in an earlier judgment such as the contents of documents or the evidence of witnesses: Capital Century Textile at §29.  Putting it generally, statements or reported statements of the factual evidence before the previous court are not excluded by the Hollington principle: Jin Jiang Investment at §45.”

C3.  Discussion

42.Each of the Grounds relied upon by P as set out in [29] above in support of the claim that the case raised by D in the ADCC amounts to an abuse of process would be discussed and examined below.

C3.1  Ground 1 - Inconsistent case/position from VP

C3.1.1 Group B Items

43.For the reason set out in [32] above, Ground 1 would not apply to Group B Items.

C3.1.2  Group A Items

44.Mr Ho SC refers to ADCC [4(1)], in which D denies that the Deceased emigrated to Hong Kong in or about 1947 and insists that she emigrated to Hong Kong together with D in 1948 instead.  Mr Ho SC submits that such plea is inconsistent with her admission in the defence filed by D in VP, in which D admitted that the Deceased emigrated to Hong Kong in or about 1947.[16] Mr Ho SC submits that this is a blatant example of D seeking to resile from her previous admission in VP even for a minor point.

45.I agree that this is really a minor point.  However, I am unable to agree that it is plain and obvious that D is trying to resile from her previous position adopted by her in VP on this point.  The previous position adopted by D in VP is that D emigrated to Hong Kong in or about 1947.  In this case, D now says that the Deceased emigrated to Hong Kong in 1948. I cannot say that “in 1948” is plainly in contradiction with “in or about 1947”.

46.As to Group A Items, Mr Ho SC submits that:

(1)     In VP, the reason given by D for the Deceased adding her name to the Safe Deposit Box was a matter of “precaution” , by substituting D’s name for Mary’s in view of the latter’s alleged unauthorized dealings with the Deceased’s properties.

(2)     There was no mention in VP – whether in her pleadings, witness statements or oral evidence – that the reason for adding her name to the Safe Deposit Box was because of the Common Understanding.

(3)     D never mentioned that Group A Items were gifted by the Deceased to her, whether in her pleadings, witness statements or oral evidence in VP.  Starkly contrasting the reference to the jade bracelet as a gift, D mentioned nothing else that was allegedly gifted to her.

(4)     Further, according to D’s oral testimony on 18 July 2019 at the VP Trial, when she was asked specifically if the Items in the Safe Deposit Box were a gift to her, her answer was “No, it’s not stated”.  When she was further asked if she was still holding the same for the Deceased’s estate, her answer was “You can say so”.  Finally, when she was asked if she continued to hold that property (ie items in the Safe Deposit Box) which did not belong to her but belonged to the Deceased’s estate, her answer was in the affirmative.

47.It is trite that the issues in a trial are defined by pleadings.  As said by Ma CJ in Kwok Chin Wing v 21 Holdings Ltd^[17]:

“21. It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues:- Wing Hang Bank Limited v Crystal Jet International Limited [2005] 2 HKLRD 795, 799 [6(1)]. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced. As the Court of Appeal remarked in Wing Hang Bank Limited v Crystal Jet International Limited:-

‘(2) In a trial, particularly where evidence is given by witnesses, it becomes extremely important that each side knows exactly what are the live issues. Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained. It will simply not do for unpleaded issues to be “slipped in” when evidence is being given in the hope that the other side is not sufficiently alert to object.’

22. …… one does not sift through the evidence adduced in a trial in the hope that something was said that can conceivably found a cause of action. Issues, I would reiterate, must be properly pleaded unless for some reason the pleadings have assumed a less significant role in the proceedings.” (Emphasis added)

48.It is also trite that pleadings serve as an unambiguous framework for the interlocutory steps that follow in an action (including discovery and preparation of witness statements) and the conduct of the trial.  In Chan Kong v Chan Li Chai Medical Factory (Hong Kong) Ltd^[18], Yuen JA said:

“15. …… It is well established that pleadings need to be clear - because pleadings are the foundations on which the rest of the action stand. The reason why parties to litigation must ensure that the real issues in dispute are defined in advance in the pleadings is so that there is an unambiguous framework for the many interlocutory steps that follow in an action, such as discovery of documents, interrogatories and witness statements, as well as for the conduct of the trial itself. A statement of claim should make it clear to the reader what the plaintiff's cause of action is, and it should set out the material facts which provide the basis for him to pursue that cause of action. It is not adequate for a plaintiff just to set out his story extensively and then to allege a number of breaches of rights for which he claims relief. Put another way, it should not be left to the reader to guess how the dots should be connected.

16. The more complex the facts and the more complicated the claim, the more important it is for the pleader to get it right. That is because the more obtuse the pleading, the more capacity there is for genuine misunderstanding or specious opportunism. And the more blind alleys are left in a pleading, the more expensive and time-consuming the litigation will be.” (Emphasis added)

49.There is no dispute that the issue in VP is which Will made by the Deceased is her last valid Will.  There is also no dispute that ownership of the Items is not an issue raised in the pleadings in VP.  One must also bear in mind that the Deceased’s estate is not a party in VP.  It would not be appropriate to raise an issue which would directly affect the interest of a non-party in a case.  While the ownership of the Items is not an issue raised in the pleadings in VP, it is just natural that D did not mention the ownership matter in her witness statements filed in VP.  D had simply no need to do so in VP.  Indeed, it would not be appropriate for D to mention matters which were not relevant to the pleaded issues in VP in her witness statements filed in those proceedings.

50.As to D’s oral evidence in VP, P has produced the transcripts of the hearing of VP Trial on 18 and 19 July 2019 (“the Transcripts”).  Mr Ho SC has drawn my attention to the following parts of D’s oral evidence:

“Q. Where are the items of jewellery that you have described that you took from the safe deposit box now? Where are they now, today?

A. It's in Hong Kong, kept by the Hongkong Bank.

Q. It's in the HSBC, in the safe deposit box, is it?

A. Correct. [The Deceased] told me to empty the items from that safe deposit box in 1999 and then move it to another box, and for the other safe deposit box it's also with HSBC. I opened it for her a long time ago. It was in our joint name.

Q. M'm. And the jewellery and items you moved from your mother's safe deposit box to another box, are you keeping those for her?

A. You can say so. She did not state anything.

COURT: You are not answering the question. The question is, did your mother say to you that those items were a gift to you?

A. No, it's not stated.

Q. Right. So you're still holding it for your mother's estate.

A. You can say so.”[19] (Emphasis by counsel)

“Q. ... to be interpreted to you so you can hear it twice. Now, Mrs Fang, this is saying, in very direct terms, you'd plundered your mother's safe deposit box. You'd taken away as your own her valuable property. Now, first of all, you agree that you did take that property away.

A. Yes.

Q. Secondly, do you agree you had no authority to take that property away?

A. Disagree.

Q. And you continue to hold that property that does not belong to you, that belongs to your mother's estate.

A. Yes.”[20]

51.In response to P’s challenge, D in her affirmation filed on 17 September 2025 (“D’s Affirmation”) said:

“20. Instead, the Items in the Safe Deposit Box arose as a tangential issue in [VP], as the Plaintiff and several of the Plaintiff's witnesses accused me of emptying the Safe Deposit Box on 9 June 1999 without the consent of the Deceased, in order to attack my credibility.

21. In any event, and without prejudice to the above, the matters pleaded in the AD&CC concerning the Items in the Safe Deposit Box are in fact not contradictory to the position I took in the Validity Proceedings.

22. In the AD&CC, pursuant to the Common Understanding and the Gift, I do not dispute that the Items and Deposits belonged to the Deceased during her lifetime. In or around 1999, after the Deceased underwent a surgery in San Francisco, she returned to Hong Kong with me and added me as a joint holder of the Safe Deposit Box. Her intention in so doing was to make for the contents of the Safe Deposit Box (including the Items) to be jointly held with me during her lifetime, with absolute ownership of the same passing to me upon her death.

23. In this regard, the beneficial ownership of the Items was never directly explored in cross-examination during [VP]. At most, the Plaintiff's Counsel put the following line of questions to me (without making any admission or concession as to their admissibility):-

Q: did your mother say to you that those items were a gift to you?

A: No, it's not stated.

Q: Right. So you're still holding it for your mother's estate.

A: You can say so

……

24. However, in giving this answer, I was not admitting that I now hold the Items in the Safe Deposit Box on trust for the Estate. I am not a lawyer, and at the material time I was unaware of the distinction between beneficial ownership and legal ownership, or how a trust arrangement operates. As previously mentioned, the beneficial ownership of the Items in the Safe Deposit Box was not an issue in [VP]. In my mind, when answering this question, I was referring to the fact that under the Common Understanding, during the lifetime of the Deceased, she and I both jointly owned the Items in the Safe Deposit Box. In other words, the Items were as much mine as they were hers. In this sense, I was holding the Items for the Deceased, as we both jointly owned the Items during the lifetime of the Deceased, which would only be fully owned by me upon her death. Therefore, when the Plaintiff's Counsel asked if I held the Items for the Deceased's estate, I equivocally answered "You can say so", in the sense that I had previously jointly owned the Items together with the Deceased under the Common Understanding.” (Emphasis added)

52.Mr Ho SC submits that the explanation offered in D’s Affirmation is incapable of being believed, for there is evidence showing that at the time of VP Trial, D already had an understanding of the distinction between beneficial ownership and legal ownership.  Mr Ho SC submits that the evidence is D’s answer in VP Trial concerning the money in an account with a bank or financial institution called Wells Fargo (“Wells Fargo Account”).  Wells Fargo had taken out interpleader proceedings to seek an order to determine the money in account should be released to whom.  D opposed releasing the money to the Deceased in those proceedings.  The relevant part of D’s evidence is as follows:

“Q. …… [the Deceased] asks that the funds be given to her, be awarded to her. Your mother wants her money back. … she denies that you or Mary have any interest in the funds. So I made it clear to you earlier, Mary said she agrees with your mother's position. Your mother wants her money back. It's only you who are actually fighting against your mother.

A. That is not the intention. Firstly, I would like to point out that I suspected that the lawyer was not retained by my mother.

Q. Anything else you wish to say? And then answer my question. You were left competing against your mother. You were aggressively and actively claiming the money that your mother said was her own.

A. I'm not fighting her for the money and actually I was protecting her.

……

Q. Please, please concentrate on the short issue I asked you. Do you accept that your mother has asked for the money back and you are actively resisting it and saying it is your money because it's been promised to you?

A. Whether the money was given to me was another issue, but I did resist.

……

Q. Yes. So you opposed the money being returned to your mother.

A. Yes.

Q. On the basis that the money belonged to you.

A. No. I keep the money on her behalf for her.”[21] (Emphasis by counsel)

53.Mr Ho SC submits that in respect of the money in the Wells Fargo Account, D could clearly say that the money did not belong to her but she kept the money for the Deceased.  Hence, D had a clear understanding of the difference between beneficial ownership and legal ownership at the time of VP Trial.

54.As shown in the Transcripts, D’s stance on the money in the Wells Fargo Account in VP is as follows:

“Q. …… I suggest to you your own lawyer and your own sworn evidence you state a reason for your claim is your mother had said to you, you assert, that she would give you the assets in the account after her death.

A. Yes.” (Emphasis added)

55.Having read the Transcripts as a whole, in my view, there is no material difference between D’s stance on the money in the Wells Fargo Account in VP, and D’s stance in respect of the Items as stated in [24] of D’s Affirmation. As to the money in the Wells Fargo Account and as to the Items, D’s position is that during the Deceased’s lifetime, those properties were jointly owned by the Deceased and her.  In her view, it would be said that she was holding the properties for the Deceased in that sense.  After the Deceased’s death, the properties would be passed to her.  At VP trial, D was directed to the time of the interpleader proceedings taken out by Wells Fargo, which was a time during the Deceased’s lifetime.  I see no contradiction between D’s evidence concerning the Wells Fargo Account given at VP Trial and her stance as stated in [24] of D’s Affirmation.  I am not persuaded that the submissions made by Mr Ho SC as summarized in [52] and [53] above would have the effect of showing [24] of D’s Affirmation as being unbelievable.

56.Further, as to the “precaution” point summarized in [46(1)] above, I do not consider that the “precaution” point made by D is inconsistent with the explanation offered in [24] of D’s Affirmation.  As claimed by D in [24] of D’s Affirmation, during the Deceased’s lifetime, the items in the Safe Deposit Box were jointly owned by the Deceased and D.  Thus, it would not be a surprise if the Deceased added D’s name to the Safe Deposit Box as a measure to safeguard the items (which were jointly owned by the Deceased and D) therein.

57.Mr Ho SC refers to a Chinese handwritten document dated 7 September 1999 and signed by the Deceased (“the 1999 Document”), in which the Deceased said:

“在上海滙豐銀行的保管箱是我托[D]保管，鎖匙是我親手交給[D]保管。我亦指示過[D]，應將保險箱之一切物件，轉移另一保管箱內，由她看管。” (Emphasis by counsel)

Mr Ho SC submits that the 1999 Document is a contemporaneous document showing that D was only a trustee holding the items in the Safe Deposit Box for the Deceased.

58.Again, I am of the view that there is no inherent contradiction between the 1999 Document and [24] of D’s Affirmation.  According to D, during the Deceased’s lifetime, the Deceased had an interest in the items in the Safe Deposit Box.  Hence, in this sense, she was holding those items for the Deceased.  I do not think that the 1999 Document can incontrovertibly show that [24] of D’s Affirmation as unbelievable.

59.P may derive some support from those parts of the Transcripts as set out in [50] above.  As shown in the Transcripts:

(1)     As to the question “are you keeping [the items in the Safe Deposit Box] for [the Deceased]”, D’s answer is “you can say so”.

(2)     As to the question “so you're still holding it for your mother's estate”, D’s answer is “you can say so”.

(3)     As to the question “you continue to hold that property that does not belong to you, that belongs to your mother's estate”, D’s answer is “Yes”.

In particular, the questions set out in subparagraphs (2) and (3) above concerned the time after the Deceased’s death, and D agreed that she was holding the items in the Safe Deposit Box on behalf of the Deceased’s estate. 

60.Dr Wong SC for D submits that as to the ownership of the Items, D’s answers given in VP Trial are equivocal.  Dr Wong SC refers me to the question “do you agree you had no authority to take [items in the Safe Deposit Box] away”, to which D’s answer is “Disagree”.

61.Dr Wong SC submits that in VP Trial, it has not been put to D that she was not the beneficial owner of the Items after the Deceased’s death, and the sole beneficial owner of the Items should be the Deceased’s estate.  Without putting this clearly to D, it would not be fair to say that D had admitted or conceded that she was not the beneficial owner of the Items after the Deceased’s death.  In my view, there is force in this submission.

62.A further point is that in all the questions and answers relied upon by P as set out in [59] above, there is no differentiation between Group A Items and Group B Items.  As admitted by P, D did claim ownership of Group B Items in VP.  This shows that in those questions and answers relied upon by P, it cannot be said that D has given an unequivocal admission and concession as to the ownership of the Items (which include Group B Items) in VP. 

63.Having considered the parties’ respective submissions and the evidence carefully, including considering the Transcripts as a whole, I come to the conclusion that it cannot be said that it is plain and obvious that D had made any unequivocal admission or concession as to the beneficial ownership of the Items after the Deceased’s death in VP.

C3.1.3  Deposits

64.Mr Ho SC submits that the points concerning the Items also apply to the Deposits, mutatis mutandis.  As stated in the above, with respect, I do not accept those points.

65.Mr Ho SC refers to some questions and answers in the Transcripts concerning Deposit 2:

“Q. Now, look please at [a solicitor’s letter purportedly issued on behalf of the Deceased to CKB] "Please ensure that under no circumstances will the funds in our client's account be tampered by anyone, in particular [D]." That's what it says, isn't it?

A. Yes.

Q. That's an emphatic instruction to the bank that you are not to get your mother's money.

A. Yes.

……

Q. …… Now, this is another letter from [the solicitor] to the bank, and it states in the second paragraph in the last line, "We understand that was due to an adverse claim made by the joint account holder in name only, [D], on the fund."

A. Yes.

Q. M'm. Had you made an adverse claim? Had you claimed an entitlement to the fund, in whole or in part?

A. Yes, because my name was there.

Q. And you see the problem is … the bank then got conflicted as to who was entitled to the money and they suggested an interpleader. Sorry, they accepted the suggestion of an interpleader.

A. Yes.

Q. M'm. You didn't have any legal right to the money in the account. You were just a co-signatory to it.

A. Correct.

Q. But, just like Wells Fargo, there was going to have to be an interpleader because you made claims to the money.

A. If I want to say, I can say that the money was mine. ……” (Emphasis by counsel)

66.Mr Ho SC submits that if it were true that D “co-owns” the Deposits, she should, could and would have multiple opportunities to spell this out in 1999 when dispute first arose, and then clarify the same when she prepared the witness statements in VP with the benefit of legal advice, and explained herself in cross-examination and re-examination.  Yet despite the aforesaid opportunities across 25 years, she only conjured up the defence of the Deceased’s gifting the Deposits to her when she filed her Defence (and later ADCC) in this case in 2024.

67.As to the Deposits, I am of the view that it cannot be said that D has adopted an inconsistent stance in this case.

(1)     For the reasons set out in [49] above, since ownership of the Deposits is not an issue raised in the pleadings in VP, it would not be necessary, and indeed it would not be appropriate, for D to file evidence on this matter in VP.  For the same reasons, there is no substance in the point that the ownership matter was not canvassed in re-examination in VP Trial.

(2)     Without prejudice to the above, in VP Trial, D had not been asked why she did not clarify the ownership of the Deposits when the dispute first arose in 1999.  That being the case, and bearing in mind that ownership of the Deposits is not an issue in VP, there is no reason to say that D should raise matters concerning the ownership of the Deposits in VP.

(3)     In the part of the Transcripts as set out in [65] above, after giving the answer “correct”, D said “if I want to say, I can say that the money was mine”.  Having read the Transcripts as a whole, I am of the view that D has not made any unequivocal admission or concession as to the ownership of the Deposits in VP.

C3.1.4  Conclusion

68.For the reasons set out in the above, in my view, it is not plain and obvious that D has put forward a case in this action which is inconsistent with the position adopted by her in VP.

69.In my judgment, Ground 1 fails.

C3.2    Ground 2 - Re-litigating factual issues or collateral attack against findings in VP Judgment

70.The issues in this case are the ownership of the Items and the ownership of the Deposits.  As stated in [31] above, Mr Ho SC has fairly accepted that there is no finding on these matters in VP Judgment.  That being the case, contesting these ownership issues in this case would not be re-litigating the issues decided in VP Judgment, and would not be a collateral attack against the findings in VP Judgment.  This would be sufficient for disposing Ground 2 advanced by P.

71.Without prejudice to the above, I would discuss some points advanced by Mr Ho SC under this ground.

72.First, Mr Ho submits that D is trying to re-litigate the relationship between the Deceased and her, which is a matter already decided in VP Judgment.  Mr Ho SC submits that:

(1)     In ADCC [2], D pleaded:

“At all material times during the lifetime of the Deceased, [D] and the Deceased had a very close and loving relationship, and the Deceased has expressed significant love and affection towards [D] as her daughter.”

(2)     In VP Judgment, the learned judge already found that D and the Deceased did not have a good relationship at all.[22]

(3)     ADCC [2] is in contradiction with the findings made by the learned judge in VP Judgment, and D is trying to re-litigate the relationship matter in this case.  This is impermissible.

73.My view is as follows:

(1)     P is not saying that there is any issue estoppel operating against D.  That being the case, the findings on the relationship between the Deceased and D in VP Judgment would not be admissible for the purpose of this case.

(2)     Further, “relationship” is a concept with some subjective feelings therein.  In ADCC [2], “a very close and loving relationship” and “significant love and affection” may well be D’s subjective feelings.  It is not plain and obvious that ADCC [2] is something ought to be struck out.

74.Second, Mr Ho SC submits that D is trying to re-litigate the matter of adoption of D.  Mr Ho SC submits that:

(1)     In ADCC [4(4)], D pleaded:

“It is denied that [D] was merely the adopted daughter of the Deceased. It is averred that [D] was at all material times the natural daughter of the Deceased. Alternatively and in any event, even if [D] was only the adopted daughter of the Deceased (which is denied), it is averred that the Deceased and [D] were mother and daughter as a matter of law.”

(2)     In VP Judgment, there is already a definitive finding that:

(a)     On 30 October 1991, the Deceased executed a declaration declaring that D was not her natural daughter but was adopted by her and her husband into the family (ie the 1991 Adoption Declaration).[23]

(b)     On 6 October 1992, the Deceased executed another declaration declaring that D was her adopted daughter (ie the 1992 Adoption Declaration).[24]

(c)     At VP Judgment [232], the learned judge said:

“For the above reasons, I find on the balance of probabilities that the contents in the 1991 and 1992 Adoption Declarations are true and Maria is only the adopted daughter of Madam Wong. However, I must emphasis that the result of the case would be the same even if I am wrong on such issue. As mentioned above, whether Maria is the natural or adopted daughter of Madam Wong, it was still Madam Wong’s intention in leaving her entire estate to the male branch of the family.”

75.My view is as follows:

(1)     P is not relying upon issue estoppel.  Thus, in accordance with the Hollington principle, while the 1991 Adoption Declaration and the 1992 Adoption Declaration mentioned in VP Judgment could be regarded as admissible evidence in these proceedings, the finding on the adoption matter would not be admissible for the purpose of this case.

(2)     As to whether D should be permitted to argue the adoption matter in this case, I am of the view that the adoption matter is a relatively minor point, and probably would not have any significant bearing on the real issues in this case, ie the ownership of the Items and the ownership of the Deposits.  With or without the adoption matter, unless there is a settlement agreement, this litigation has to be continued until the very end.  The adoption matter, if argued, would not significantly lengthen the time spent in this litigation. 

(3)     With all the aforesaid in mind, I would not strike out ADCC [4(4)] or any part thereof.

76.Third, Mr Ho SC submits that although the ownership of the Items and ownership of the Deposits were not raised as a distinct issue in VP, the learned judge had clearly considered the incidents relating to the Items and the Deposits in making his findings on the relationship between the Deceased and D and the Deceased’s testamentary intention.[25] Since the Deceased’s assets came from her inheritance from Chen and it was found that it was the Deceased’s belief that D had already obtained her due share of the Chen’s family fortune, the learned Judge continued to conclude and referred to the Items and the Deposits as the Deceased’s assets throughout his Judgment.  In this case, D is trying to re-litigate the ownership matters.

77.For the reasons set out in [70] above, I am unable to agree with Mr Ho SC on this point.

78.Fourth, Mr Ho SC submits that:

(1)     In ADCC [21(3)], D pleaded:

“…… Mary had taken significant sums of money, chattels and/or expensive clothing belonging to the Deceased without her knowledge, authorization and/or consent, including inter alia (i) a sum of US$5,000,000 which was transferred to Smith Barney New York, where Mary was working a stockbroker; and (ii) a sum of over US$24,000,000 which was transferred to a trust in Luxemburg managed by HSBC ……” (“the Alleged Misappropriation”).

(2)     However, it was actually found in VP Judgment that Mary was entrusted by the Deceased to handle some of the banking matters.[26]

(3)     The finding on the relationships within the family is a key component to the finding of the Deceased’s testamentary intentions throughout the years and thus crucial to the ultimate holding as to the validity of the various wills.  Mary’s relationship with the Deceased was often compared by the learned Judge with that between the Deceased and D.[27] To allege that Mary took money from the Deceased in ADCC [21(3)] is another attempt by D to overturn important and crucial findings of VP Judgment.

79.My view is as follows:

(1)     The findings on the relationship between Mary and the Deceased in VP Judgment would not be admissible for the purpose of this case.

(2)     There is no unequivocal admission or concession made by D in VP Trial which contradicts the Alleged Misappropriation now put forward by D in this case.

(3)     In view of the above, I would not disallow D to raise the Alleged Misappropriation in this case.

80.Fifth, Mr Ho SC submits that in her attempt to resist P’s Summons, D produced 290 pages of “exhibits” to support her case.  Most of the documents now produced by D in fact had been produced at the VP Trial and were matters that have been canvassed extensively during her testimony therein and taken into account by the learned judge in arriving at the findings in VP Judgment. By reproducing the exhibits and various witness statements used in VP, it is just another example of her trying to re-litigate without appealing against VP Judgment.

81.With respect, the Striking Out Application is an application for an order to strike out the ADCC, not an application for an order to expunge any documents exhibited to D’s Affirmation.  The fifth point taken by Mr Ho SC cannot be a point in support of Ground 2.

82.In my judgment, Ground 2 fails.

C3.3   Ground 3 - Issue(s) could and should have been raised in VP

83.Mr Ho SC submits that if there were any truth in her present allegations about the Items and the Deposits being subject to the Common Understanding, such allegations plainly could, should, and indeed would have been raised in VP already.  D had failed to raise such allegations in VP, which could and should have been raised in those proceedings.  In the circumstances, D should not be allowed to raise the allegations in these proceedings.

84.With respect, I am unable to accept these submissions.  For the reasons set out in [49] above, it cannot be said that the Common Understanding is a matter which should have been raised in VP. 

85.Ground 3 fails.

C3.4   Ground 4 - Lack of bona fide defence/no reasonable defence

86.Mr Ho SC submits that the main defence relied upon by D is the Common Understanding, which is entirely inconsistent with her previous position in VP and plainly an attempt to re-litigate, and/or amounts to a collateral attack against the findings in VP Judgment.  Coupled with the lack of any or any plausible explanation for the same, there is no sufficient factual basis to sustain the Common Understanding.

87.For the reasons set out in the above, it is not plain and obvious that the Common Understanding now advanced by D must be struck out.  Further, I note that (a) at the very least, D is the adopted daughter of the Deceased; and (b) in 1978, the Deceased agreed to enter into the Succession Agreement, giving 25% of Chen’s estate to D.  With these in mind, in my view, the case on gifts now put forward by D (the essence of which is set out in ADCC [8]) cannot be said as unbelievable.

88.For avoidance of any doubt, I am not saying that I accept D’s case.  All I said is that D’s case is believable.  Whether D’s case would be believed and accepted is a matter to be determined at the trial.

89.Mr Ho SC has made submissions on some other defences put forward by D in ADCC.  Dr Wong SC has replied to those submissions.  Since I am of the view that this case should proceed to trial, I refrain from making comments on the parties’ respective submissions on those matters.

90.To sum up, in my view, Ground 4 is not made out.

C4.   Conclusion on the Striking Out Application

91.In my judgment, the grounds put forward by P, either being viewed individually or collectively, would not be able to support P’s application for striking out. There is no valid ground in support of the Striking Out Application.  Accordingly, the application must be dismissed.

D.   SUMMARY JUDGMENT APPLICATION

92.As explained in the above, I am of the view that D’s case is believable and this case should proceed to trial.  Hence, the Summary Judgment Application must be refused.

E.   DISPOSITION

93.For the reasons set out in the above, I dismiss both the Striking Out Application and the Summary Judgment Application.  I dismiss P’s Summons.

94.Costs should follow the event.  There be a costs order nisi that costs of P’s Summons be to D forthwith, with a certificate for two counsel and those costs be summarily assessed on paper without an oral hearing.  Unless there is an application for variation of the costs order nisi made by an inter partes summons within 14 days after the handing down of this decision, the costs order nisi shall become absolute without a further order.  There be leave to D to lodge and serve a bill of costs for summary assessment (limited to 3 pages) within 7 days after the costs order nisi becoming absolute, and leave to P to lodge and serve a list of objections (limited to 3 pages) within 7 days thereafter.

95.Lastly, it remains for me to express my gratitude to all counsel for the very helpful assistance rendered to the Court.

Mr Ambrose Ho SC leading Ms Joyce Leung, instructed by Haldanes, for the Plaintiff

Dr William Wong SC leading Mr Kerby Lau and Mr Joshua Yeung, instructed by Hugill & Ip, for the Defendant