Chow Lily v. Chow Wai Wai Violet and Another

CAMP 210/2025, [2026] HKCA 513

On An Intended Appeal From [2025] HKCFI 2945 &

[2025] HKCFI 4898

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 210 OF 2025

(ON AN INTENDED APPEAL FROM HCAP NO 22 OF 2019)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.Before the Court is the Plaintiff’s renewed application by summons dated 23 October 2025 (“the Summons”) for leave to appeal against the Order of H. Au-Yeung J dated 11 July 2025 (“the Order”)[1] refusing the Plaintiff’s application for leave to file a medical expert report of Dr Ho Ting Kwok Robert dated 13 February 2025 relating to the mental capacity of the late Chow Yei Ching(周亦卿), deceased (“the Deceased”)[2], to make a will dated 29 October 2015 (“the 2015 Will”).  The 2015 Will is being challenged by the Plaintiff on, inter alia, the ground of lack of testamentary capacity on the part of the Deceased to make it.

2.On 28 January 2026, the Court directed a rolled-up hearing of the Plaintiff’s application for leave to appeal and, if leave to appeal is granted, the Plaintiff’s appeal against the Order.

INTENDED GROUNDS OF APPEAL

3.In view of the urgency of the present application, with the trial of this substantial probate action due to commence on 26 May 2026[3], we do not propose to summarise the relevant procedural history of the court’s previous orders or directions concerning the admission of medical expert evidence in this action or the Judge’s reasons for refusing to grant leave for the admission of Dr Ho’s report, which have been fully set out in the written decision of the Judge dated 11 July 2025 ([2025] HKCFI 2945, “Decision”) and his decision refusing to grant leave to appeal dated 15 October 2025 ([2025] HKCFI 4898, “Leave Decision”), and are familiar to the parties.

4.As summarized in the Defendants’ Statement of Opposition dated 5 November 2025 (§4), the Judge refused to grant leave for the admission of Dr Ho’s report after consideration of a number of factors, including “the scope of Dr. Ho’s Report (Decision §29), P’s justification for commissioning Dr. Ho (Decision §38), Ds’ stance (Decision §§23-28), P’s non-compliance with the Unless Order (Decision §29), P’s unexplained 14-month delay (Decision §§30-33), the prejudice to case management and the real risk of the trial over-running (Decision §§34, 39(2); Leave Decision §17), P’s attempts to shift blame (Decision §§35-37), the unnecessary re-examination of clinical materials (Decision §38), and the feasibility of narrowing Dr. Ho’s remit (Decision §39)”.

5.The Plaintiff’s draft Notice of Appeal attached to the Summons raises 4 intended grounds of appeal:

(1)     Ground 1 – the decision of the Judge in refusing leave to adduce Dr Ho’s report was clearly wrong and/or the Judge gave excessive weight to some factors and inadequate weight to others.

(2)     Ground 2 – Dr Ho’s report was manifestly probative, covering an area of expert evidence not otherwise covered by the Plaintiff’s evidence, the application was taken out 15 months before the trial, and (most importantly) the Defendants informed the Plaintiff that they did not oppose the introduction of the report.  In such circumstances, and given the significant prejudice to the Plaintiff if the report was excluded, the Judge could only legitimately refuse leave as a case management decision if other factors outweighed the importance of the report and the prejudice to the Plaintiff if it was disallowed.

(3)     Ground 3 – the Judge’s consideration of various factors militating against the admission of Dr Ho’s report was flawed.

(4)     Ground 4 – in the premises, the Judge should have admitted Dr Ho’s report.

DISCUSSION

6.It is common ground that the Judge’s decision under challenge is a case management decision.  The threshold for the Court of Appeal to intervene in a case management decision made by a judge at first instance is a very high one.  The applicable principles are well-established, and were summarised by Kwan JA (as she then was) in Wong Kar Kee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887, at §31:

“It must also be borne in mind that the orders made by the Judge in the intended appeal are case management decisions in the exercise of the discretion of the trial judge. Case management decisions are only subject to appeal in rare circumstances. The appellant faces a ‘very high hurdle’ and must show that the judge ‘has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task’, or if the judge ‘erred in principle or the order was irrational having regard to the issues that had to be resolved’. It need hardly be emphasised that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible”.

7.It is in the light of these well-established principles that we consider whether to grant leave to appeal on the intended grounds of appeal raised by the Plaintiff in the draft Notice of Appeal.

Ground 2

8.We shall first consider Ground 2, under which the Plaintiff refers to and relies on 4 matters which it is said would leave the Judge in a situation where he could only legitimately refuse leave if other factors outweighed the importance of Dr Ho’s report and the prejudice to the Plaintiff if it was disallowed.  As a matter of approach, we do not consider that it is correct to identify specific factors pointing to the exercise of the Judge’s discretion in one direction and then ask whether there are other opposing factors which outweigh the importance of the former.  The matter should, in our view, be viewed holistically.  All relevant factors should be taken into account, balanced against each other, and assessed in the round.

9.The 4 matters relied on by the Plaintiff are: (i) the probative value of Dr Ho’s evidence, (ii) the fact that the application was taken out 15 months before the trial, (iii) the fact that the Defendants did not oppose the introduction of Dr Ho’s report, and (iv) the significant prejudice to the Plaintiff if the report is excluded.

10.In respect of (i) and (iv), Mr Hollander, KC complains that the Judge failed to take into account the probative value of Dr Ho’s evidence or the prejudice that the Plaintiff would suffer if the evidence was excluded.  In support of this complaint, he refers to the fact that the Judge made no reference in the Decision to the important feature that Dr Ho’s opinion casts serious doubt on the Deceased’s testamentary capacity at the time of the making of the 2015 Will[4].

11.The Judge was plainly aware of the probative value of Dr Ho’s evidence.  In the Decision, the Judge expressly quoted a part of the 18^th Affirmation of Fenn Kar Bak Lily (“Fenn 18^th”) filed in support of the Plaintiff’s application, in which Ms Fenn stated, inter alia, that (i) Dr Ho’s report provided a more in-depth account and summary of the Deceased’s medical condition, specifically his neurological status, during the relevant period, (ii) Dr Ho opined that the Deceased was suffering from two medical conditions (namely, Cerebral Amyloid Angiopathy and Cerebral Small Vessel Disease), (iii) Dr Ho’s report was necessary to supplement Professor Chiu’s Rebuttal Medical Expert Report, and (iv) Dr Ho’s report was probative to determining the mental capacity of the Deceased when the 2015 Will was made (Decision §22).  It is inherently unlikely that the Judge would have left the probative value of Dr Ho’s evidence and the potential prejudice that the Plaintiff might suffer in consequence of the non-admission of Dr Ho’s report out of his consideration when deciding whether to grant leave for Dr Ho’s report to be admitted, those being obvious matters which ought to be taken into account.  It seems to us that, had the Judge not taken into consideration the probative value of Dr Ho’s report or the potential prejudice to the Plaintiff if Dr Ho’s report was excluded, he would not have considered whether Dr Ho’s report should be limited or edited in order to preserve the trial dates and minimize the possibility of the trial over-running.

12.It is also relevant that, in relation to the Plaintiff’s complaint that the court had lost sight of the important probative value of Dr Ho’s report and that the Plaintiff would be prejudiced by the court’s refusal to grant leave to adduce his evidence, the Judge said that it was precisely because of his awareness of the probative value of Dr Ho’s report that he specifically referred to the primary aim in the exercise of the case management powers of the court, namely, to secure the just resolution of disputes in accordance with the substantive rights of the parties, and explained that such primary aim had to be balanced against the underlying objectives of the rules mentioned in Order 1A, rule 1 of the Rules of the High Court, Cap 4A, at §40 of the Decision[5].

13.We are not satisfied that the Judge failed to take into account the probative value of Dr Ho’s evidence or the potential prejudice that the Plaintiff might suffer if his evidence was excluded in the exercise of his discretion whether to grant leave to admit Dr Ho’s report.

14.In respect of (ii), the Plaintiff’s reliance on the fact that the application was taken out 15 months before the trial[6], is, as the Judge said, beside the point[7].  The Judge’s concern about the Plaintiff’s delay was not that there would be insufficient time for additional expert evidence to be properly prepared and presented by the parties prior to the trial.  Rather, the Judge’s concern was the Plaintiff’s substantial delay in making the application, viewed in light of the fact that the Plaintiff ought to have adduced rebuttal expert evidence on or before 31 August 2023 under the Unless Order of Master Matthew Leung dated 10 July 2023 (“the Unless Order”)[8] and, more importantly, the “great risk” that the admission of the additional expert evidence would cause the trial, the dates of which had been fixed for a long time, to over-run, which the Judge considered would be disastrous, given the busy schedules of both leading counsel in the present case[9].

15.In respect of (iii), as a matter of fact, the Judge ruled against the Defendants’ contention that they had not indicated that they would not object to the Plaintiff’s application.  However, he held that while the parties’ consensus would be one of the factors which should be taken into account, the court was not bound by such consensus (Decision §§26-27). The Judge did not commit any error of principle here.

16.It was for the Judge to balance the specific matters relied upon the Plaintiff against other matters which the Judge took into account[10], and come to a final view on whether, in the exercise of his case management discretion, the Plaintiff ought to be granted leave to adduce Dr Ho’s report. The Judge, having conducted the balancing exercise, came to the conclusion that the Plaintiff’s application should be refused[11].  It is irrelevant that this Court might have come to a different conclusion if it were asked to conduct its own balancing exercise.  The Judge’s decision is not plainly wrong.

Ground 3

17.Under Ground 3, the Plaintiff complains about the Judge’s consideration of 5 particular factors militating against the admission of Dr Ho’s report.

18.First, the Plaintiff argues that the Judge wrongly held that the Plaintiff required relief from sanction in order to adduce Dr Ho’s report.  It seems to us that the Judge’s view is not without basis.  The Unless Order granted an extension of time for the Plaintiff to file and serve her rebuttal medical expert report, and provided that unless the rebuttal report of Professor Chiu be filed and served by 4:00 pm on 31 August 2023, she would be debarred from doing so.  Professor Chiu’s report was eventually filed on 28 August 2023 pursuant to the Unless Order.  It is clear from Fenn 18^th that Dr Ho’s report is put forward to “supplement” Professor Chiu’s report.  It cannot be the case that the Plaintiff can get around the coercive effect of the Unless Order by simply putting forward a part of the rebuttal evidence prior to the original deadline and then be at liberty to put forward additional rebuttal evidence nearly one and a half years later through another expert report from a different doctor without regard to the Unless Order.  In any event, even if it was technically incorrect for the Judge to take the view that relief from sanction was required for the Plaintiff to seek to adduce Dr Ho’s report, this error has no impact on the Judge’s exercise of discretion to refuse to admit the report because, at §30 of the Decision, the Judge expressly held that “even if there is no requirement that Dr Ho’s Report should be adduced within the time limit as per the Unless Order, it is undeniable that the present application has been made extremely late, and there is no acceptable explanation given by the plaintiff”.  In this application, Mr Hollander has not sought to advance any argument that the Plaintiff has any good or acceptable explanation for the delay, and we agree with the Judge that there is none.

19.Second, the Plaintiff argues that the Judge’s emphasis on what he regarded as delay was unjustified given that the application was made 15 months before trial.  We have already dealt with this complaint at §14 above.  The Plaintiff’s delay was plainly a factor which the Judge was entitled to take into account in the exercise of his discretion whether to admit Dr Ho’s report.  The contrary is unarguable.

20.Third, the Plaintiff argues that the Judge’s conclusion that Dr Ho should not refer to the evidence of the witnesses was inappropriate and unjustified and, to the extent that Dr Ho needed to refer to the evidence of the witnesses in order to form his opinions, his comments on the evidence did not amount to a “second bite of the cherry”.  The Plaintiff further argues that, in any event, there was no reason why this problem could not be resolved by an edited report and the Judge should not have concluded that the probative value of such a report was “questionable”.

21.We have no hesitation in rejecting these complaints.  The fact of the matter is that any evidence that the Plaintiff wishes to rely upon in rebuttal of Professor Cheung’s report ought to have been filed by the Plaintiff a long time ago, on or before 10 August 2022 pursuant to the expert directions given by Master Kent Yee and Master Hui on 16 February 2022 and 28 April 2022 respectively, and in any event by the deadline of 31 August 2023 under the Unless Order.  Both Professor Chiu’s report dated 28 August 2023 and Dr Ho’s report dated 13 February 2025 are intended to serve as rebuttal evidence of Professor Cheung’s report.  In particular, Professor Chiu’s report and Dr Ho’s report each contains a section which sets out detailed comments on Professor’s Cheung’s report.  The Judge was right to view the Plaintiff’s attempt to adduce Dr Ho’s report as “a second bite of the cherry”[12].

22.As for the possibility of editing Dr Ho’s report to remove his comments on the witness statements, this was in fact raised by the Judge as a way to facilitate the admission of the proposed evidence. However, the response of the Plaintiff’s counsel was that he could not be sure whether it was feasible for Dr Ho to give his opinion purely on the basis of MRI images without references to the clinical evidence.  If it was not feasible to do so, plainly it would render the probative value of Dr Ho’s report (edited by removing his comments on the witness statements) questionable[13].  The Plaintiff now complains that “the Judge had put the point without any forewarning during argument and P did not have an opportunity to take instructions from Dr Ho as to whether such a course was practicable”[14].  This is yet another instance where the Plaintiff seeks to shift the blame to others[15]. The Plaintiff was represented by counsel and solicitors at the hearing.  If instructions were required to be obtained from Dr Ho, counsel could easily have requested for the hearing to be stood down for a short period so that proper instructions could be taken on the matter.  No such request was made.

23.In the draft Notice of Appeal, the Plaintiff has proposed an alternative order to be made, namely, that a revised medical report of Dr Ho dated 7 July 2025, which omits his comments on the witness statements, be adduced as evidence at the trial.  The edited report removes one of the Judge’s concerns about the admission of Dr Ho’s evidence, but does not address the Judge’s other concerns against the admission of additional medical expert evidence.  This edited version of Dr Ho’s report is being put forward for the first time in the Court of Appeal.  Had it been placed before the Judge at the time of seeking leave to appeal, the Court would at least have the benefit of considering the Judge’s view on the edited report.  In our view, it is now too late for the Plaintiff to change tack.  In any event, Mr Hollander’s primary position is that a medical expert should give his opinions based on the clinical evidence, and Dr Ho’s report should not be edited by removing his comments on the witness statements.  It seems to us that, if leave is to be granted for the Plaintiff to rely on Dr Ho’s evidence, the whole of his report ought to be admitted.

24.Fourth, the Plaintiff argues that the Judge had no proper basis for his conclusion that there was a justifiable concern that the trial would overrun if Dr Ho’s evidence were allowed.  We do not accept this argument.  We are told that the Judge has been in charge of this case since about February 2024.  He conducted the Initial Case Management Conference on 1 February 2024, fixed the length of the trial having considered the parties’ estimates of the time for the taking of evidence and closing submissions, and dealt with the Plaintiff’s previous application to further amend the pleadings (some 5 years after the commencement of the action), and will be presiding over the trial.  The Judge plainly had a good grasp of the evidence and issues involved in the action, and is in a much better position than this Court to come to a view on whether the introduction of further substantial medical expert evidence (from Dr Ho and possibly from another expert of the Defendants to counter the evidence of Dr Ho) would likely lead to an over-run of the trial.

25.We also do not accept the Plaintiff’s argument that the Judge had no proper basis to reject the Plaintiff’s suggestion of substituting her handwriting expert report with Dr Ho’s report.  As mentioned by the Judge at §20(2) of the Leave Decision, at the hearing on 2 July 2025, the Plaintiff’s counsel expressly confirmed that “there was no commitment on the part of the Plaintiff not to call her handwriting expert at the trial”.  The Judge was right to comment that “it is quite unreasonable for the plaintiff to allege that the Court had ‘disregarded’ the plaintiff’s ‘confirmation’ [that the trial would not over-run] in such circumstances”[16].  Further, as pointed out in the Defendants’ Statement of Opposition, the Plaintiff failed to clarify whether the issue of the authenticity of a testamentary note of the Deceased dated 26 October 2015[17] was still in dispute.  Unless the Plaintiff unequivocally conceded the issue of authenticity, it remained a live issue in the case.  It was a matter for the Judge, not the Plaintiff, to decide whether it would be right in the circumstances to permit the handwriting evidence to be substituted, as a sort of trade-off, by the proposed medical evidence.  As rightly observed by the Judge, “this Court would have failed in its duty for proactive case management if it had simply left the matter to be handled by the plaintiff’s legal team without proper assurance (which, in the present circumstances, means the express representation as to how the plaintiff would conduct the trial, for example, not to call certain witness(es))”[18].

26.Fifth, the Plaintiff argues that the Judge did not give proper weight to the fact that this was a probate trial and there is an inquisitorial element to the trial.  At the hearing, Mr Hollander expressly confirmed that he would not be relying on this argument in support of the application for leave to appeal/the substantive appeal.  In any event, the mere fact that probate actions are in a sense inquisitorial in nature does not displace the application of the relevant procedural rules governing the admission of expert evidence to such actions.  The underlying objectives of the rules under Order 1A, and the court’s case management powers under Order 1B, of the Rules of the High Court are equally applicable to probate actions.  The Judge made the decision not to admit Dr Ho’s report under these rules.  The Plaintiff has failed to show any error of principle on the part of the Judge.

27.None of the complaints under Ground 3 is justified, or sufficient to cross the high threshold required for this Court to interfere with the Judge’s case management decision not to grant leave for the admission of Dr Ho’s report.

Grounds 1 and 4

28.Grounds 1 and 4 are dependent on Grounds 2 and 3, and do not require separate consideration.

29.In all, none of the Plaintiff’s intended grounds of appeal is reasonably arguable or has a realistic prospect of success.  We also do not see any other reason in the interests of justice why the appeal should be heard.  Accordingly, we refuse to grant leave to appeal.

DISPOSITION

30.The Summons is dismissed.  The parties are agreed that costs should follow the event.  We made an order that the Defendants shall have the costs of the Summons, with certificate for 2 counsel, to be assessed summarily.  The Defendants shall have leave to file and serve an updated statement of costs within 14 days from the date hereof, and the Plaintiff shall have leave to file and serve a statement of objections (limited to 2 pages) to the Defendants’ updated statement of costs within 14 days thereafter.

Mr Charles Hollander KC leading Mr Abel Lam, instructed by Lily Fenn & Partners, for the Plaintiff

Mr Benjamin Yu SC leading Ms Teresa Wu and Ms Jacqueline Law, instructed by P C Woo & Co, for the 1^st and 2^nd Defendants