Lau Mo Choi and Another v. Lau Muk Fat

HCAP 13/2023

[2026] HKCFI 2999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 13 OF 2023

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DECISION

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THE APPLICATION

1.The trial of this action has been fixed to commence on 17 August 2026 with a total of 5 days reserved.

2.On 6 May 2026, the plaintiffs took out a summons (“the Summons”), which was returnable at the Pre-Trial Review held on 13 May 2026, for leave to adduce certain documents as evidence at the trial.

THE BACKGROUND

3.This action concerns 2 wills purportedly made by the late Lau Ping (“the Deceased”) dated 3 September 2004 (“the 2004 Will”) and 6 March 2017 (“the 2017 Will”) respectively.

4.In the Statement of Claim, the plaintiffs, who are the executors appointed under the 2004 Will, aver that the Deceased did not know and approve the content of the 2017 Will, and ask the Court to:

(1)  Pronounce the 2004 Will in solemn form in favour of the first-named plaintiff[1]; and

(2)  Pronounce against the 2017 Will.

5.In his Defence, the defendant (who is the sole executor appointed under the 2017 Will) pleads, inter alia, that:

(1)  the 2017 Will was executed by the Deceased on 6 March 2017 in the presence of 2 independent witnesses;

(2)  the 2017 Will was made with the Deceased’s approval and agreement to the contents thereof.

6.It is noted that, despite the defendant’s stance, no counterclaim was included.[2]

THE NEW DOCUMENTS

7.By virtue of the Summons, the plaintiffs seek to disclose a total of 125 pages of documents, which include:

(1)  A Needs Assessment Report dated 16 January 2016 (“the Needs Report”);

(2)  An Admission Re-Assessment Report dated 24 January 2016 (“the Re-Assessment Report”);

(3)  Progress Sheets from around February to October 2017 (“the Progress Report”); and

(4)  Some other miscellaneous records.

(collectively, “the New Documents”)

THE LEGAL PRINCIPLES

8.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.”

9.I totally agree with Mimmie Chan J.

10.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.”

EXPLANATION OF DELAY

11.The first-named plaintiff explained the lateness of the present application in his 2^nd Affirmation which was filed in support of the Summons as follows:

“3. […]

(1) The Documents were obtained from Abbeylands Care Home in or about 2023 and were omitted by oversight from the Plaintiffs’ List of Documents dated 6 September 2023.

(2) The Plaintiffs’ List of Documents dated 6 September 2023 was filed in advance of the hearing of the first case management summons of this action before Master Rita So on 5 February 2024. In fact, 3 of the witness statements filed on behalf of the Plaintiffs were signed in 2023 in advance of the first case management summons.

(3) After the exchange of witness statements in or about November 2024 (pursuant to the Order of Master Rita So dated 5 February 2024 but after a series of extensions of time requested on behalf of the Defendant), the Plaintiffs considered applying to strike out parts of the witness statements of the Defendant and his witnesses. Subsequently, a summons was taken out on 17 March 2025 to strike out parts of the witness statements of the Defendant and his witnesses.

(4) At the hearing of the second case management summons in these proceedings on 24 April 2025, Master Dick Ho expressed his view that this was a simple case and should be set down for trial as soon as possible. Master Dick Ho therefore granted leave for the Plaintiffs to set the action down for trial. Master Dick Ho also ordered that all late interlocutory applications be listed to be heard by the PTR Judge or a Judge.

(5) However, the Order of Master Dick Ho dated 24 April 2025 was made before the Plaintiffs’ striking out summons was heard substantively. The Plaintiffs’ striking out summons was opposed by the Defendant and was eventually argued before Master J. Wong who decided in favour of the Plaintiffs by his Order dated 19 August 2025.

4. […] the reason why the Documents were not disclosed earlier was because of oversight and because the Plaintiffs’ legal representatives had been directing their attention to preparing for and arguing the Plaintiffs’ striking out summons.

[…]

6. Furthermore, given the background set out above, the Plaintiffs did not have the chance to review matters including obtaining counsel’s advice, before the case was set down for trial. By the time the case was set down for trial, the Plaintiffs’ striking out summons was yet to be heard and argued.

7.  Prior to the Pre-Trial Review to be heard on 13 May 2026, upon reviewing the case and realizing the oversight, the Plaintiffs immediately disclosed the Documents by way of a Supplemental List of Documents dated 16 April 2026.”

12.With greatest respect, the plaintiffs’ explanations are simply unacceptable.

13.Firstly, it is fairly admitted by the plaintiffs that they were provided with the New Documents before 6 September 2023. In other words, there has been a very long delay of around 2.5 years for the plaintiffs to disclose the New Documents. Oversight on the part of the plaintiffs’ legal representatives in this regard is simply not a good reason.

14.Secondly, the plaintiffs’ assertion that they have been distracted by their own striking out application which was taken out on 17 March 2025 (“the plaintiffs’ Striking-Out Summons”) is unacceptable.

15.When considering this excuse, it should be borne in mind that, as aforesaid, the plaintiffs had received the New Documents in as early as 2023. Since then, there had been a number of opportunities when they could have disclosed the forgotten documents:

(1)  when the plaintiffs filed their timetabling questionnaire on 31 October 2023, in which they confirmed in F2 thereof that they did not intend to serve any supplemental list of documents;

(2)  when they filed their timetabling questionnaire on 25 June 2024, in which they gave the same confirmation;

(3)  when they filed their timetabling questionnaire on 17 December 2024, in which they gave the same confirmation.

16.At the risk of stating the obvious, the above timetabling questionnaires were filed before the plaintiffs’ Striking-Out Summons was taken out, and the first 2 questionnaires were completed even before the plaintiffs received the defendant’s witness statements (which were the subject matters of the plaintiffs’ Striking-Out Summons). In other words, even if there could have been any possible distractions caused by the plaintiffs’ (intended) application for striking out (which I do not agree), there had been adequate chances for the plaintiffs and their legal team to review what evidence they had in their hands and consider whether further disclosure of documents was necessary. They only had themselves to blame if they did not treat the timetabling questionnaires seriously, and ticked the “No” box under F2 without really applying their minds on the question of further disclosure. Indeed, there is no explanation from the plaintiffs as to why the New Documents could escape their minds when they filed the said timetabling questionnaires.

17.The call-over of the plaintiffs’ Striking-Out Summons was originally fixed to be heard on 27 March 2025, but it was vacated on 26 March 2025 as parties could agree on the directions to be sought for the purpose of the said summons. The substantive hearing was then heard on 21 July 2025.

18.Although the defendant was granted leave to file and serve affirmation in opposition to the plaintiffs’ Striking-Out Summons, no such affirmation had been filed. In other words, in the period between 26 March 2025 and 21 July 2025, the only matter which the plaintiffs’ legal team had to attend to was the preparation of submissions for the purpose of the substantive argument hearing. I do not accept that this is a task which was so demanding that attention could be distracted as such, especially when counsel had been instructed to appear for the plaintiffs in the striking-out application.

19.Moreover, after the filing of the plaintiffs’ Striking-Out Summons, the plaintiffs further filed a listing questionnaire on 22 April 2025, in which they confirmed at A6 that “discovery has been completed”, and at A7 that they did not “intend to give any / any other Notice(s) of Proposal to Adduce Hearsay Evidence”. Although they took the view that the case was at that time not ready to be set down for trial, the only reason which they gave was that the plaintiffs’ Striking-Out Summons was still pending. Again, if the plaintiffs completed A6 and A7 of the said listing questionnaire without really applying their mind on the questions asked, they could only have themselves to blame.

20.Thirdly, while a special feature of the present case is that it has been set down for trial before the plaintiffs’ Striking-Out Summons was disposed of, and that the plaintiffs might not really see that order coming before the second case management summons hearing, I do not think it is open to the plaintiffs to say that they did not have the chance to seek counsel’s advice on the whole action. This is because the fact that the action had been set down does not mean that the parties were forbidden to seek counsel’s advice on evidence afterwards, and in fact they did not need a court order for that purpose.

21.Fourthly, even if the plaintiffs’ Striking-Out Summons would have the effect of distracting the attention of the plaintiffs’ legal team (which I do not accept), it should be noted that the said summons had been substantively argued on 21 July 2025. Decision was reserved by Master J Wong, who then delivered his Decision on 19 August 2025. In other words, the plaintiffs’ legal team could have focused on other aspects of this action again after 21 July 2025. Yet, nothing had been done until 16 April 2026, when the New Documents were disclosed by virtue of a Supplemental List of Documents. Again, there is no explanation on this delay period of 9 months.

22.By reasons of the aforesaid, the application may be dismissed on the ground of delay alone.

PROBATIVE VALUE OF THE NEW DOCUMENTS

23.Even if I were wrong in that the “delay” factor is not strong enough to lead to an overall dismissal of the Summons, I hold the view that there are other factors in the present application which would undoubtedly justify the conclusion that the application should be dismissed.

24.As explained above, the plaintiffs now seek to produce 4 categories of documents.

25.Mr Liu fairly accepted that, in the present application, he should pin-point the particular parts of the New Documents which the plaintiffs are minded to rely on at the trial.

26.For the above purpose, Mr Liu identified at the hearing 4 pages of documents as follows:

(1)  Section 1 of the Needs Report, in which the following comments can be found:

“cannot consent. Involve family”

(2)  Section 10 of the Needs Report, in which the following comment was stated:

“unable to communicate”

(3)  Section 12 of the Needs Report, in which the following comment was stated:

“No recognition”

(4)  Page 3 of the Re-Assessment Report, in which it was stated that:

“Does not have capacity

involve family”

27.I am afraid there is a big question mark as far as the probative value of the above documents is concerned:

(1)  Regarding section 1 of the Needs Report, it is vague as to what “cannot consent” means. Even if it can be taken to mean that the Deceased could not consent to matters relating to his care[3], there is still a question concerning the qualification of the assessor, without which the trial Judge cannot even start to consider the weight which may be attached to this assessment;

(2)  In relation to section 10 of the Needs Report, at most it can only be said that the “cannot communicate” comment is related to the “communication of needs”;

(3)  In respect of section 12 of the Needs Report, it is unclear what the comment of “no recognition” means;

(4)  For page 3 of the Re-Assessment Report, again, the question is that nothing is known about the qualification of the assessor.

28.Mr Liu for the plaintiffs also accept that the probative value of the above documents is not high at all. Hence, once the questionable relevance and probative value of the aforesaid is weighed against the delay of the application, there can only be one outcome, namely, the exclusion of such evidence.

29.As far as the Progress Report and other miscellaneous reports are concerned, it is noted that Mr Liu does not seek to rely on any part thereof. He told this Court that the only reason why they were included as part of the New Documents is that they were released by Abbeylands Care Home together with the Needs Report and the Re-Assessment Report. It was therefore felt that they should be disclosed together so as to show that they are part of the same batch of documents. With greatest respect, this explanation is rejected. If the Progress Report and other miscellaneous reports are clearly irrelevant, they should not be adduced at the trial.

ORDER

30.By reasons of the aforesaid, the Summons is hereby dismissed.

COSTS

31.Mr Liu agreed that costs should follow the event.[4]

32.I therefore order that the plaintiffs shall bear the costs of the Summons.

33.The defendant’s costs of the Summons[5] shall be summarily assessed in lieu of taxation. The defendant shall lodge and serve his statement of costs on or before 28 May 2026. The plaintiffs shall lodge and serve their statement of objection by 4 June 2026. Summary assessment of the costs of the Summons will be conducted on paper (no matter whether any statement of objection is lodged by the plaintiffs within time) thereafter. The costs assessed shall be paid by the plaintiffs within 14 days after assessment.

Mr Kelvin K. H. Liu, instructed by Choi & Liu, for the plaintiffs

Mr Jason Kung, instructed by Pang, Kung & Co, for the defendant