Kung Wong Sau Hin v. Kung Kwok Sun and Ohters

HCAP000002B/1982

No. 2 of 1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PROBATE JURISDICTION

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BETWEEN

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Coram: Deputy Judge Nazareth, Q.C. in Court

Dates of Hearing: 25 - 28 February 1985, 1, 4 - 8, 11 - 15, 18 - 20 March 1985

Date of handing down of Judgment: 16 April 1985

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JUDGMENT

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1. In this probate action the testator died a very wealthy man on 4th October 1981. He left a widow, who is the plaintiff in this case, and three sons. The eldest is the 2nd defendant; the second son is the 1st defendant and the youngest is KUNG Kwok Wai (David) who is not a party to this action.

2. In April 1982 the plaintiff applied for probate of a will made in English by the testator in October 1970 (the English will). The plaintiff's claim was contested by the 1st and 2nd defendants who counterclaimed for probate of a later will made in Chinese dated 20th August 1980 (the Chinese will) and 2 codicil dated 23rd July 1981.

3. The action came before Jones, J. on 1st August 1983. Mr. C. P. Lin, a solicitor, gave evidence that he prepared the will and that it was duly executed by the testator in his presence and that of his clerk, who also testified to that effect.

4. The evidence of the Chinese will was less direct. Mr. Fong Ming gave evidence that in August 1980, at the request of the testator, he prepared five successive draft wills. On completion of the 4th draft, the earlier three drafts were destroyed by the testator; then the 5th draft dated 20th August 1980 was prepared. The testator was happy with that and asked Mr. Fong to sign it. However , Mr. Fong considered that as a beneficiary, he ought not to do so and declined. So the testator said that he would get someone else to sign. He left with Mr. Fong the 4th draft and a xerox copy of the fifth draft for reference in case it became necessary to make further amendments.

5. No evidence was available at the hearing before Jones, J. as to what became of the 5th draft. The defendants' case was that a Mr Tam Kam Yuen had seen a copy of that draft with the signature of the testator upon it, However he was discredited and his evidence totally rejected by Jones, J. The defendants also sought to rely upon an inference that since the testator was happy with the fifth draft and indeed had asked Mr. Fong to be a witness, he must have intended to make that will and indeed must have done so. Not surprisingly, Jones, J. found for the plaintiff and pronounced in favour of the English will. He also rejected the codicil.

6. The defendants appealed to the Court of Appeal. The appeal was heard on 20th and 21st December 1983. On 10th January 1984, before the Court of Appeal was due to hand down a decision, the 2nd defendant asked for a further hearing of the appeal on the ground that the missing Chinese will had just been discovered. As a result the Court of Appeal ordered a new trial limited to the issue of whether the Chinese will was duly executed by the testator and should be admitted to probate.

7. Only the 2nd of the three defendants was represented at the re-trial, the 1st and 3rd defendants appearing in person. At the re-trial the 1st defendant initially indicated that he had no wish to attend and was only doing so because he feared he would be held in contempt if he did not. But in the event he not only continued to attend but questioned witnesses and made lengthy submissions. He attempted but was not permitted to reopen the issue of the validity of the codicil. The 3rd defendant, who is the son of the 2nd defendant successfully applied to be joined as a party in the re-trial. The interests and the case of each of the defendants are the same and I accordingly do not propose to consider them separately.

8. The defendants' case is that when it became clear from Mr. Fong's evidence at the trial before Jones, J., that he did not have the Chinese will, the 2nd defendant gave active consideration to its location. He approached Mr. Fong who agreed to help and who in turn enlisted the aid of one Mr. Lee Kei. It occurred to them that the will might be with a Madam Tam, whom the testator had treated favourably in a mortgage transaction many years before. It was agreed that Mr. Lee would try and find out. He located Madam Tam's daughter and learned from her that Madam Tam was "doing business in mainland China, going around". He sent a message to her through her daughter.

9. Some time later he received a telephone call from Madam Tam who told him that she had indeed witnessed the signing of the Chinese will which she had in her possession and would hand it over to the testator's family members if they would come to Canton to collect it. Mr. Lee informed the 2nd defendant but since the latter was not well, it was agreed that Mr. Lee should himself go to Canton and collect the will. He did so and handed it to the 2nd defendant. Later, the 2nd defendant and Mr. Lee travelled to Canton so that the former could thank Madam Tam, which he did.

10. The Chinese will was produced and exhibited at the re-trial. Mr. Fong identified it as the 5th draft he wrote out and handed to the testator in August 1980. He thought that the signature on it was very like that of the testator. The 2nd defendant said that he too thought it was that of the testator.

11. Now it might seem curious that a will upon which depended the devolution of so large an estate, moreover the will of a prominent and very wealthy Hong Kong businessman, should surface not only in Canton some two years after his death, but in the hands of a woman no one other than Messrs. Fong and Lee had thought of. However, strange things do happen and one would expect Madam Tam to explain. But Madam Tam did not appear. The 2nd defendant says that since his visit to Canton to thank her, it has not been possible to make contact with her.

12. And so it is necessary to have a close look at Madam Tam and her involvement in this case. Mr. Lee, who made contact with her was formerly a property dealer and a clerk in a solicitor's firm to which, because of a change of name, it is convenient to refer as Poon & Co. In that capacity, about ten years ago, he got to know Mr. Fong who was similarly a dealer in property associated with Poon & Co. He also got to know the testator, who was a client of Poon & Co. and a frequent visitor to their offices in the last two or three years before his death. Mr. Lee says he first got to know Madam Tam in 1976 in connection with some land transaction. One day in 1978 she happened to be in the office when the testator came in and Mr. Lee introduced them. Thereafter he saw them together quite often in restaurants when they negotiated land transactions, both the testator and Madam Tam being in the land business. He says that a loan of $300,000 was obtained by Madam Tam from the testator and secured by a mortgage of land, although Mr. Fong had advised the testator that the land was not worth that much. He adds that Madam Tam defaulted on interest payments but the testator declined to foreclose and that in the event neither the loan nor interest was ever repaid.

13. Mr. Fong says he got to know Madam Tam in September 1979. He happened to be in Poon & Co.'s office when the testator and Madam Tam were also there. The testator asked him to inspect a piece of agricultural land which Madam Tam wished to mortgage to him. He did so and concluded that it was only worth $200,000 or so and that a loan of $300,000 was too high. He reported this to the testator, but the testator "had a look at Madam Tam and said give her the Full amount". When the loan became repayable the testator gave instructions for recovery, and so Mr. Fong went to see Madam Tam. She telephoned the testator who instructed the solicitors not to proceed. When the testator died the mortgage was still outstanding. Mr. Fong, too, had seen Madam Tam and the testator together at restaurants.

14. No other evidence whatsoever emerged of any affair or relationship between Madam Tam and the testator, which was clearly sought to be implied by Messrs. Fong & Lee, but which their touching regard for the delicacy of the matter apparently did not permit them to mention. On the contrary, the 2nd defendant, who testified that he accompanied the testator almost every day during the last few years of his life, had never heard of Madam Tam before Messrs. Fong and Lee came up with her name. Furthermore, no independent or documentary evidence was adduced of the mortgage, which it should not have been too difficult to turn up.

15. After Mr. Fong arranged for the 2nd defendant and Mr. Lee to meet and discuss the possibility of Madam Tam having the will, he dropped out of the venture.

16. But return to Mr. Lee, despite his reference to a number of transactions between him or Poon & Co. and Madam Tam, he was not able to turn up her address or, for that matter, any record of any such transactions. As to how he was able to trace her, he says that a long time ago, precisely when he could not remember, Madam Tam's daughter, Judy, came to see him about a mortgage. He did not know her full name, but he had jotted down her telephone number. Remarkably enough, he found it when he undertook to pursue the Madam Tam possibility. Having used that number to contact Judy in 1983, he subsequently lost it so that it is now not possible to reach Judy.

17. When Madam Tam allegedly telephoned him in December 1983 to tell him she had the will, Mr. Lee says he recognized her voice, notwithstanding that he had not heard it for several years, possibly the last occasion being in 1979.

18. As I have said, Mr. Lee claimed that he went on his own to Canton to collect the will, the 2nd defendant being ill. He was furnished by the 2nd defendant with a receipt to be given to Madam Tam for the will and also promised one and a half million dollars out of the 2nd defendant's share of the estate if the will was procured and successfully proved. The promise which was evidenced in writing and signed by the 2nd defendant was produced at the re-trial, Its terms, which are of interest, are as follows :

19. I come now to the hearsay evidence comprised by what Mr. Lee says Madam Tam told him. The 2nd defendant failed to give the required notice of intention to adduce that hearsay evidence under Order 38 rule 21. It was nevertheless submitted on his behalf that under Order 30 rule 29 the evidence should be admitted as it fell within section 47(1) of the Evidence Ordinance (Cap. 8 ), that Madam Tam's presence could not be procured despite every endeavour, and that the plaintiff had ample notice of the nature of the evidence. Having considered the submission and the nature of the evidence, and bearing in mind that its probative force would not be determined by its admission, I admitted the evidence concerned. It was to the effect that when Madam Tam telephoned Mr. Lee from Canton, she told him that after she had witnessed the will, she signed it and handed it to the testator, but he gave it back to her to keep in safe custody. Mr. Lee invited Madam Tam to bring it to Hong Kong but she said that was not convenient and suggested mailing it. Mr. Lee feared it might get lost and so it was agreed that one of the testator's descendants would go and collect it. Madam Lam also said that she had telephoned the retail department of the testator's factory about the will, hoping they could come up and collect it. Finally, she added that if any one was coming to look for her, she was at that time in Canton, living at the White Swan Hotel and, because she might go elsewhere, it would be best to telephone first.

20. The other piece of hearsay evidence I also admitted is what Madam Tam is alleged to have told Mr . Lee in Canton when he collected the will. Mr. Lee says he telephoned before he left Hong Kong and then again when he got there, telling Madam Tam he was in the Hotel Cafe. She came down and gave him the will and received from him the receipt given by the 2nd defendant. She mentioned that from the newspapers she had learned that the plaintiff was fighting for the estate against the sons. She also said that she had witnessed the testator signing the will and after that she signed as a witness.

21. On 30th December 1983, the 2nd defendant went with Lee to thank Madam Tam. They met her the following morning again at the White Swan Cafe and because she had a meeting that morning, they later had lunch with her but at a different hotel. The 2nd defendant took three photographs which were exhibited. Two of these were said by Mr. Lee and the 2nd defendant to be of Madam Tam. For what they are worth, I will only say that they present very little threat to the perservation of Madam Tam's anonymity.

22. Apparently, because the object of the trip was simply to thank her, and because of the delicacy of the situation, she was not asked when, where or how she came to witness the will, nor were any arrangements made for her to come and give evidence. It seems that it has not been possible to locate Madam Tam since. Mr. Lee made a trip to Canton on 21st January this year but could not find her at the White Swan. He says he was informed by a business associate of hers that she was away on business for a few days. She has not responded to messages left for her nor has it been possible to contact her on the telephone.

23. Now, despite the production of a photocopy of the identity card of a Madam Tam claimed to have been procured from Poon & Co.'s records by Mr. Lee, one might be pardoned for harbouring unworthy thoughts of whether there actually was a Madam Tam involved in the matter. But in fact it was the efforts made not by the defendants, but on the plaintiff's behalf that shed considerable light on Madam Tam. These establish through the address at which Mr. Fong said he visited her, that the Madam Tam to whom the mortgage loan was alleged to have been made was the recepient of at least ten writs taken out against her in 1981 and 1982 for over two million dollars. Most of the writs involved dishonoured cheques. Four annual company returns were also produced, from these and the writs it is apparent that in 1981 and 1982, Madam Tam was heavily indebted and pursued by writs, moving from address to address, enabling it to be submitted with some force on the plaintiff's behalf that she, Madam Tam, was hardly the sort of person to whom an experienced and wealthy businessman would have entrusted his last will and testament. Early on in the proceedings I was informed on the 2nd defendant's behalf, that there was a reason why Madam Tam could not come to Hong Kong. In the event I was not let into that secret. Nor was there evidence adduced to establish the reason. I will only say that I know of no reason why Madam Tam should not appear if indeed the version of events attributed to her is true. I do not believe that a bare possibility of further writs or even applications for committal could be a deterrent, bearing in mind the potential for reward that should have occurred to her or been 'mentioned by Mr. Lee. In this regard, the open terms of the note the 2nd defendant gave to Mr. Lee promising one and a half million dollars is not without significance.

24. It is helpful at this stage to have a closer look at Mr. Lee and his evidence. He was not at all forthcoming about his antecedents prior to joining Peon & Co., nor about the nature of his earnings, which remain obscure, compounded by his curious claim that he did not pay profits tax because he always got his clients to pay it. He appeared to have a highly selective memory which enabled him to recall matters that might support the authenticity of the Chinese will, but not matters that might weigh against it. As to the latter, he repeatedly claimed he did not pay attention. He first of all said he had known Mr. Fong for a few years, then for five or six years and finally, when pressed, said it was about ten years. He was not able to uncover any trace of the mortgage documents relating to the $300,000 loan alleged to have been made by the testator to Madam Tam although the documentation was said to have been done by Poon & Co..

25. He said he was always discussing property deals with Madam Tam, yet he was not able to recall a single transaction with her, much less produce any documentary evidence. His entire story about Judy was highly improbable, in particular how he happened to jot down her telephone number, to retain it for a couple of years or so, and then within the last two months lose it again. That loss has fortuitously rendered her untraceable. He was most reluctant to say how old Judy appeared to be when he saw her in 1983, repeatedly saying simply that she was over 20 years; only on the Court's intervention did he say she was about 25 or 26. That would make her only 16 years of age when she was already appearing in company returns as a director. It is remarkable that Mr. Lee could not find or trace any of Madam Tam's many Hong Kong addresses and had to resort to her daughter. He could not have tried very hard.

26. Although he does not seem to have had any but the most superficial association with the testator, when the latter visited the offices of Poon & Co, he refers to him as Uncle Kung. Accepting that as a normal, customary designation of respect, it does not explain why Mr. Lee should have been prepared to undertake all his enquiries and even three trips to Canton simply, as he says, because he was a friend of the 2nd defendant, having been a friend of the 2nd defendant's father. He was prepared to do all that without any arrangements having been made for reimbursement of his expenses or that matter having even been mentioned. It all smacks very much of a speculative forensic adventure as suggested on the plaintiff's behalf.

27. The 3rd defendant applied for Mr. Lee to be recalled because he had not been afforded an opportunity of cross examining him. He wished, he said, to discredit Mr. Lee. Mr. Lee had by then returned to Macao. Having regard to the inconsequential nature of the questions the 3rd defendant wished to put to Mr. Lee, I refused to subject the re-trial to the delays and uncertainties of procuring Mr. Lee's re-appearance. The 3rd defendant in any case expressly declined to call or give evidence or to address the court when afforded the normal opportunities of doing so.

28. Reverting then to Mr. Lee, his demeanour as a witness entirely confirmed the unfavourable conclusions that emerge from the evidence. He was shifty and evasive and I would not place the least reliance upon his evidence.

29. And what of Mr. Fong? Jones, J. at the earlier hearing accepted his evidence that he prepared five draft wills at the behest of the testator but not that he was asked by the testator to sign the 5th draft. Now that finding does not bind me but, as the view of an experienced judge, must carry considerable weight. On the other hand, Mr. Fong was not really tested before Jones, J. and he was asked only about six questions in cross-examination, as opposed to being subjected to very nearly an entire day's close cross-examination before me. I cannot say I was favourably impressed by him or by certain portions of his evidence. Significant elements of his evidence before me were not given to Jones, J. He says that he was so furious at being summonsed by the defendants to produce the Chinese will despite his protestations that he did not have it, that he gave his evidence in a simple form. That explanation is difficult to accept and in any event raises the question of Mr. Fong's reliability as a witness. In addition it seems strange that he should have taken his briefcase with him towards the end of his period of recuperation, when he left home solely on a social visit to the testator to thank him for his loan or gift of money to pay for an operation. It was the writing materials in the briefcase that enabled Mr. Fong to prepare the 1st draft of the will. Finally, I did not find entirely reassuring Mr. Fong's explanation that he placed the xerox copy of the 5th draft will in a securely locked drawer, but the 4th draft in an adjoining drawer that could be shaken open, whence it was presumably stolen and sent anonymously to the 2nd defendant. That curious incident is not in my view of assistance in resolving the issues that have to be addressed and I will say no more of it. To return to Mr. Fong, against the foregoing is his evidence that he told the testator's family about the time of the funeral of the existence of a Chinese will which made fair provision for all of them; this was not challenged. It is unlikely that as early as that Mr. Fong could have planned his story about five draft wills for some contingent use in the future. Besides, if untrue, Mr. Fong's version of the preparation of the draft will seems rather pointless. It must, I think, follow on the probabilities that he did prepare five draft wills and handed the last to the testator who must then have been satisfied with it. On that evidence, it seemed to Jones, J. that the probabilities were that the will was destroyed by the deceased and he declined to draw the inference that the deceased had executed it. However, now that we have the will itself and the additional evidence, the question of the inference has to be reconsidered. I shall return to it later.

30. I proceed, then, to the 2nd defendant's evidence which, however, does not bear directly upon the execution of the Chinese will. True, the 2nd defendant claims to have met the woman whom Mr. Lee represented to be Madam Tam, but he could have been duped by Mr. Lee and the woman. Equally, he may have suspected an attempted fraud and not been altogether unwilling to take advantage of it Certainly he was slow to act upon receiving information of the location of the will and even upon securing possession of it. The appeal against the decision of Jones, J. was heard on the 20th and 21st December 1983. Yet the 2nd defendant took no action on being told by mid-December if not earlier that the will had been found. On the contrary, according to Mr. Lee, when the 2nd defendant was not able to go to Canton to collect it, he told Mr. Lee on the 19th December, the eve of the hearing of the appeal, that a delay of couple of days in collecting the will would not matter! And when he received it on the 21st December, he held on to it and did nothing until he gave it to his solicitors on the 28th December. He delayed, he says, because he wanted to consult his son, the 3rd defendant, who was overseas. In all that time he did not breathe a word of it to the 1st defendant or even inform or seek advice from his solicitors.

31. Then on 19th December, after the will had been located and only had to be collected, if we are to accept the defendants' case, the 2nd defendant proceeded to promise Mr. Lee the huge sum of one and half million dollars from his inheritance if he brought back the will and it was successfully proved.

32. In all the circumstances it is perhaps not too surprising that there was some delay on the part of the 2nd defendants then solicitors in applying for the appeal to be reheard and in lodging the Chinese will, which they did not do until they obtained a handwriting expert's opinion upon it. Mr. Litton commented harshly upon the solicitors' failure to immediately lodge the will and upon the divergence between evidence that emerged at the re-trial and the contents of the defendants' affidavits submitted to the Court of Appeal, which he submitted constituted supression of unfavourable facts. As to the latter, I do not propose to make any finding or observation other than to say it is a feature of this case that does cause some disquiet.

33. Reverting then to Madam Tam, in all the circumstances, the most likely explanation for her absence seems to be the avoidance of any liability and legal sanctions for fraud or forgery. Furthermore if, as she allegedly told Mr. Lee, she learned from the newspapers that the plaintiff was fighting for the estate, it is incredible that she should have done nothing about the will allegedly in her possession. Equally remarkable must be her failure to learn of the testator's death in the first place, and if indeed she did learn of his death, her failure to attend his funeral and to communicate with the family to her possible advantage. We know from the writs that she was in Hong Kong very shortly before the testator's death. Also remarkable is the fact that she seems to have had no address in China other than a room and the White Swan Hotel. Although unable to pay her debts not so long ago, she apparently keeps a room there on a semi-permanent basis but rarely uses it and seems not to have done so since the end of last year. Her alleged story that she telephoned the retail department of the testator's factory, i.e. the Sam Kwong Weaving Factory, is equally incredible; the whole place would have been agog with news of the discovery of the late owner's will.

34. I, therefore, have no hesitation whatever in rejecting the hearsay evidence of Madam Tam. Far from her alleged statements and the associated evidence of Mr. Lee, Mr. Fong and of the 2nd defendant, creating any' probability that the will was duly executed and given into her custody, I am left with grave suspicion that it is all an attempted fraud.

35. I come now to the question of whether an inference can be drawn from the other evidence that the Chinese will was indeed executed by the testator. The testator, who made a fortune out of textile manufacturing and later property speculation, must have been a shrewd businessman. He had already made a formal will in English through his solicitors. All his solicitors were Chinese and Chinese speaking. Yet language, according to Mr. Fong, was one of the factors that influenced the testator in resorting to him. The testator had numerous dealings with his solicitors; many legal instruments were executed by him. If he wished to make another will, the probability must surely have been that he would have adopted the same formal means as before; and that he would have used safe custody similar to that of his solicitors and not that of a woman who he must have known was being sued for unpaid loans and dishonoured cheques on a massive scale, who had not repaid to him the loan he had made to her, and whom he does not seem to have had very much to do with. A woman moreover, who turns out to be known only by Messrs. Fong and Lee and not even by his eldest son who was his constant companion at the material time. It all seems highly improbable and out of character.

36. For the defendants it has been suggested, indeed urged upon me, that the Chinese will is fair and will produce a fair result as opposed to the alternative, the plaintiff having willed her entire estate to her youngest son David, allegedly the eminence grise behind her. However that may be, as has no doubt been pointed out to the defendants by their advisers and as I will repeat for their benefit, the law of Hong Kong in the present context permits a Chinese testator to dispose of his entire estate as he wishes. The question is therefore whether the testator made the Chinese will; whether is fair or not is irrelevant. I do not see that the testator is more likely to have signed the Chinese will because of the two wills it will produce a result considered fair.

37. The defendants' submission is that once it is accepted that the testator wished to make a will, that he was satisfied with the 5th draft, and that it was placed in his hands, then if it left his hands, as the 5th draft obviously has done, it could only have done so after execution by the testator. I do not accept that at all. Against the highly suspicious background I have described, I do not think there can be any room for such an inference to be safely drawn. On the contrary, I think it just as likely, if not more so, that if the testator had intended to give effect to the provisions of the 5th draft, he would have got his solicitors to ensure that by means of a formal will; and moreover, that he would have placed the will in proper custody. I find on the evidence so far considered that the defendants have failed to establish a probability that the Chinese will was signed by the testator.

38. But there remains to be considered the expert handwriting evidence, which as a consequence of the failure of the defendant's' other evidence, assumes crucial importance. Besides it raises, apparently for the first time in so acute a form, the application of standard occidental handwriting expertise and techniques to Chinese script and the validity of novel methodology proposed in lieu. The matter accordingly demands careful and detailed consideration. The 2nd defendant called as a handwriting expert Professor T.C. Lai, the former Director of Extramural Studies at the Chinese University of Hong Kong. He is also Chairman of the Hong Kong Translation Society and Honorary Senior Fellow in Chinese Studies at the Chinese University of Hong Kong, a position awarded to Chinese scholars of eminence. In addition Professor Lai is a Justice of the Peace and a former member of the Public Service Commission and of the Chinese Language Committee. He is also a graduate in English and Chinese of the Hong Kong University and holds in addition an M. A. degree from that University in English poetry. Finally he holds a diploma in adult education from Manchester University. He is the author of some 40 books in Chinese and English, 38 of which are in Chinese. One of these is on Chinese calligraphy and has been published in Hong Kong, China and the United States; it is said to contain the largest number of specimens of Chinese calligraphy published in one book. From a demonstration in court it seemed obvious to even the uninitiated that he is also an accomplished calligrapher. On the evidence before me there is no reason to doubt that he is an authority on things Chinese even if they be only calligraphy, aesthetics, poems and food, i.e. the subjects mentioned in court.

39. The question, however, is whether he is a handwriting expert, an expert on suspect signatures. I will begin by considering what he said in commencing his evidence. He had, he said, given evidence as an expert in Chinese handwriting in the courts at least 25 years ago for the first time. But the number of cases was not great because his opinion was generally accepted and the cases settled. He had given evidence about half a dozen times in both civil and criminal cases. His evidence was accepted in Victoria District Court Criminal Case 4028 of 1978 and he was accepted as an expert in a Tsuen Wan criminal case, he could not recollect the details of other cases. He had not undergone any training course for document examination and believed there was none. He had many years experience of Chinese calligraphy and believed he had experience in determining documents.

40. Under cross-examination he clarified this by saying that although he did have knowledge of the subject, he did not claim to be a handwriting expert; it was others who bothered and begged him to give opinions. He did not do it as a profession. In none of his biographical data was it claimed that he was a handwriting expert. He simply got into it because there were no handwriting experts available to the public in Hong Kong. He was originally invited to do so over 20 years ago by the head of the Hong Kong University Department of Chinese when approached by a firm of solicitors seeking a handwriting expert. Somewhat reluctantly he admitted that he had given evidence in criminal cases only twice before, the second time in 1984. On the matter of cases in which he had given evidence, he pleaded a poor memory and even said that he could not remember if he had given evidence in court during the preceding year i.e. between April 1984 and 8th March 1985, the day he was being cross-examined.

41. I will now proceed to Professor Lai's methodology. At some length he went through an article of his that was widely published in Hong Kong a few months ago on the origins and functions of calligraphy. He also referred me to passages and specimens of Chinese writing in his book on Chinese calligraphy. He dealt with the aesthetics of Chinese characters, different levels of appreciation of the viewer, movement and flow in the writing of Chinese characters, and basic attitudes of writers of Chinese characters. The point of all that was to stress that calligraphy is a living art and has much more to it than Latin script. Although not all Chinese characters can be traced to their ideographic origin, a considerable number, he says, invoke visual images which subtly work on a viewer's consciousness giving rise to recognition and delight. This dimension gives to Chinese calligraphy a sort of mystique absent in most other lanaguages, a mystique engendered by the infinite range of combinations and rhythmic permutations in the distribution of strokes and characters. Not only are there different levels of excellence in calligraphy but also of appreciation on the part of the viewer. Experience and knowledge of the art and tradition all play a very important part in the appreciation or response of the viewer evoked by calligraphy.

42. The expressive possibilities of the brush are infinite. The initiated viewer follows the movement of the brush from stroke to stroke. Not only does the mind follow the movement but, in Professor Lai's belief, the viewer's small muscles move with it. How, he does not know and is not prepared to say. But the muscles and the body respond. That is why the Chinese say when looking at a piece of good calligraphy that it has "chi" in Mandarin, or "hei" in Cantonese; the best translation of these expressions in Professor Lai's view is "rhythmic vitality". It is on the foregoing that Professor Lai's method of assessing handwriting is based. The writing produces instant recognition which he then proceeds to analyse. The basis of such recognition can no more be described than that of recognizing a known face which remains recognizable even if it happens to be distorted by a grimace or other expression.

43. So we come to this case. Professor Lai's first involvement was in July 1983 when he examined xeroxed copies of a questioned signature on the codicil and on 6 other unquestioned documents at the request of the solicitors then acting for the plaintiff. He gave the opinion that it was more likely that the questioned signature on the codicil was made by the same person as the unquestioned signatures, than otherwise. It is significant that only xeroxed copies were submitted to him and that one of these was a very poor reproduction indeed. The opinion reflects Professor Lai's method, in that it mentions the "youthful look" of the signature on the English will, the "extraordinary naturalness" with which one of the characters in the questioned codicil signature was written "though structured so precariously as to give one the impression of being on the verge of collapse"; that that character "more than any other makes one feel it is not the result of forgery"; that despite individual differences between the unquestioned signatures the author feels "though only intuitively" that the questioned signature on the codicil needed no apology in claiming that it also belonged to the unquestioned group. Subsequently Professor Lai spent about five minutes at the Supreme Court Registry looking at the originals of the English will and the codicil, and noted on the report that he was still not convinced that the questioned signature on the codicil was a forgery.

44. About six months later, in January 1984, having examined the signature on the Chinese will in conjunction with a substantial number of unquestioned signatures, he submitted a report to the 2nd defendant's solicitors. The bulk of his observations in the report relate to the gradual changes in the testator's signature between 1961 and 1980 and to his opinion of what the probable cause was. The report then continues in the following terms:

45. In his evidence at the invitation of Mr. Wei, professor Lai put the probability of the questioned signature being genuine, in percentage terms, at 90%.

46. The report does not set out the basis of Professor Lai's opinion. In his evidence he explained it in the following way. When he first saw some signatures of the testator in 1984, he had the feeling, and only a feeling, that the testator must have been a good calligrapher with a brush and probably had taken as a model some stone rubbings of the 5th and 6th centuries. In 1985 he was delighted to find what he saw as a vindication of his suspicion, in that the additional material given to him contained many signatures with a brush in excellent form which reminded him of the 5th and 6th century style. That sense of recognition came only with practice and experience in seeing thousands of pieces of Chinese handwriting. But why a forger would not automatically and even unconsciously adopt the 5th and 6th century styles in simulating the signature never became entirely apparent.

47. Professor Lai went on to say that the testator was probably a temperamental man. He signed his name in various styles of calligraphy with little respect for uniformity in the formation of characters or the execution of strokes. In spite of this he had a very bold and individualistic hand readily recognizable by the trained eye. Using the analogy of facial recognition, he explained that it is very difficult if not impossible to describe the features that lead to recognition. In the same way having seen enough of a person's handwriting, he claims that he should be able to recognize it particularly where it is calligraphy that is well-developed and mature. He claimed that it is almost impossible to simulate a good calligrapher's handwriting without betraying the forger's hand but was content to leave that as a bare statement without any supporting evidence or authority.

48. Under cross-examination he reiterated that he intuitively recognized the questioned signature as falling into the pattern of the unquestioned signatures. When he saw the questioned signature, recognition was immediate. Then followed the process of analysis. What that process was did not become clear. It seems to have been a visual examination assisted by a magnifying glass and some enlarged xerox copies. The examination did not, in Professor Lai's view, reveal anything to show that the signature was not the testator's. Professor Lai says he does not claim to be a forensic handwriting expert and did not attempt to use the methods of such experts in his analysis. That, as I see it, is the basis of his opinion.

49. In general I found Professor Lai's evidence far from satisfactory. The language that he chose to use, more suited to poetry, did not inspire confidence. He characterized the testator's most recent signature exhibited, as being executed with "brusqueness and abandonment" but it was clear that he surmised this from the fact that the testator was a very wealthy man and that he signed in such an abbreviated way because of his "Sheer impatience...with the triviality of it all", the document concerned being a receipt which Professor Lai assumed to be trivial to the testator. Under cross-examination, when some of his opinions were probed, Professor Lai was too ready to claim that English was not his mother-tongue or that he was not a lawyer. Given his exceptional command of the English language and his obvious intellectual capacity, those answers came ill from him. He placed undue reliance upon xerox copies, which were demonstrated to be unsafe and which he himself in another case had recognized as unsatisfactory. Pressed upon his use of a xerox copy of the questioned signature for comparison in January 1984, he sought to rely upon his recollection of the five minutes' examination he made of the original in the Court Registry in July 1933. Even if he had an exceptional memory, which upon his own admission is far from being the case, it is difficult to see how that would have been adequate for the purpose.

50. On his own evidence Professor Lai is not a handwriting expert. It was urged on the plaintiff's behalf that Professor Lai was not qualified to give evidence under section 58 of the Evidence Ordinance (Cap. 8). However, it is clear from paragraph 27-32 of the 13th Edition of Phipson on Evidence that the competence of an expert is a preliminary question for the court and one upon which, in practice, considerable laxity prevails. Though the expert must be "skilled", by special study or experience, the fact that he has not acquired his knowledge professionally goes merely to weight and not to admissibility. Equally, one can acquire expert knowledge in a particular sphere through repeated contact with it in the course of one's work, notwithstanding that the expertise is derived from experience end not from formal training. At paragraph 27-40, the authors go on to say that "On questions of handwriting, not only specialists, but Post Office officials, lithographers and bank, clerks have been permitted to testify as experts, as well as a solicitor who had, for some years, given considerable attention and study to the subject, and had several times compared handwriting for purposes of evidence, though never before testified as an expert." Having regard therefore to Professor Lai's many years of study and practise of Chinese calligaphy and some attention to the question of suspect handwriting, I consider that his evidence is properly admissible under section 58(1) of the evidence Ordinance, though ofcourse, its probative value is a very different matter.

51. His method of instant recognition followed by nebulous analysis means that his evidence has to be taken on trust as would that of any soothsayer, astrologer or medium. It is pointed out in paragraph 27-34 of the 13th Edition of Phipson that the duty of experts "is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment by their application of these criteria to the facts proved in evidence." Professor Lai's method denies the court that necessary criteria. Furthermore although his theory may seem superficially attractive in relying upon the visual effect of ideographic writing, he himself concedes that its effectiveness has never been demonstrated, nor accepted, nor been used any where nor even propounded in any dissertation or printed work. I have no hesitation in rejecting his method and his evidence. It fails of its own inanition and does not raise even a bare probability in my view.

52. On the basis of my foregoing findings it is not necessary to consider the expert evidence led on behalf of the plaintiff since that does not in any way support the defendants' case. Nevertheless it is right to do so. The evidence was provided by Mr. R. W. Radley M. Sc., C. Chem, M. R. I. C., in English handwriting expert who was brought to Hong Kong for the purpose. he is a full-time forensic handwriting and document examiner engaged solely in the field of forensic examination of documents. He is a member of various forensic and handwriting professional bodies. It is not disputed that he is a handwriting expert. He has 15 years experience, has given evidence regularly in the courts and has an impressive array of British and international banks as clients.

53. What is disputed is whether handwriting expertise' of the orthodox sort can be applied to Chinese calligraphy. Professor Lai was asked whether a person not acquainted with Chinese calligraphy could do a proper job of analysing it. He replied that the first thing is recognition and if a person does not have the capacity of recognition how could he begin. It is not a matter of strokes, according to him, each Chinese character has its own character, each script has its 'own character. That harks back to his theory of recognition, which l have already rejected.

54. Mr. Radley conceded that he did not know the Chinese Language or Chinese calligraphy. Although there are experts similarly placed who do so, he does not himself normally undertake the examination of oriental scripts, as he considers that for handwriting one needs to know what one is looking at. He has dealt with very few Chinese documents, about fifteen in all. He gets a lot of enquiries but only undertakes a few. He does not deal with Chinese handwriting as opposed to signatures. The latter do not necessarily represent conventional handwriting, and become so personalised as to be a mark produced almost by reflex action with very little conscious effort. He undertakes examinations of signatures in Chinese script where suitable material for comparison is available. He undertook the present case only after studying the documents and comparison material that Professor Lai had used. Mr. Radley also testified that the recognized techniques handwriting experts normally use, can and are applied to oriental handwriting including Chinese calligraphy. In support he produced a paper published in 1974 on the examination of ideographic handwriting (Chinese and Japanese) by David Crown, Director, Questioned Documents Staff, State Department, Washington, and Taro Shimaoka, Chief of the Scientific Investigation Research Laboratory, Osaka Prefectural Police Headquarters, Osaka. That paper recommends that examination of ideographic writing should proceed in the same orderly scientific manner that is employed with more familiar script. It suggests certain techniques and considerations, which were in fact employed by Mr. Radley. And it confirms that it is possible for an occidental questioned document examiner to make meaningful examinations of documents written with ideographic characters. On the other hand, as Mr. Wei pointed out, the paper is not couched in the absolute terms one would have wished, but is somewhat tentative in its tenor.

55. Proceeding then to Mr. Radley's evidence, he confirmed from the large number of documents available, dating from 1961 to 1981, that there had been a change in the structure of the testator's signature and that for the purpose of comparing like with like, which in his view was proper given the abundance of contemporary material available, he took some fifty odd signatures dating from 1978 to 1981 for comparison purposes. He then subjected them to a general and detailed explanation in respect of relevant points that are recognized by handwriting experts as significant. He particularly noted the following features i.e. pen pressure, drag lines, parallelism, artificiality of tremor, stroke and space ratio and angles, the latter two being of somewhat lesser importance. That these were standard check list points he demonstrated by reference to the 2nd Edition of Osborn's Questioned Documents. He prepared an enlargement of the questioned signature, with each stroke or element numbered for reference purposes, and also enlargements of the questioned signature and of many unquestioned signatures. He then identified and illustrated in court the features upon which he based his opinions, e.g. by demonstrating in respect of the questioned signature, that they fell outside the relevant range of variation he found in the unquestioned signatures.

56. In his report of 25th February 1985 he summarized his opinion in the following terms :

"Such is the number and nature of the differences between known anti questioned signatures that I am of the opinion that the signature on the Will in question is not no authentic signature but is a simulated copy by an individual with access to authentic material."

57. Following the examination of additional material submitted to him, on 28th February 1985 he submitted a supplemental report in which he concluded that "from the examination of all documents now presented, I can find no evidence which detracts from my previously stated opinion indicating the will in question to be a simulated forgery. Indeed, the examination of the document reinforces my views."

58. In testifying, he expressed his opinion even more forcefully, saying "I have no doubt whatsoever that this is a forgery and a forgery in my opinion not of a very good quality." He rejected the suggestion put to him by Mr. Wei that he strengthened his opinion in the absence of any orthodox handwriting expert opposing him. He was cross-examined in great detail by Mr. Wei but not shaken in my view. However I think that Mr. Wei did succeed in demonstrating that some of the features that Mr. Radley referred to, although discernible in my view, were not as clear to the untrained eye as they appeared to Mr. Radley. But in this respect I am reassured by the views of authors of the 13th Edition of Phipson on Evidence. In discussing the evidence of experts on handwriting as to the authenticity of documents, they observe at paragraph 27-28 that "by virtue of their training such experts would be able to distinguish parts of letters or techniques of word-formation which a layman would be unable to observe; this is the scientific part of their work. The question of which features are significant and the inferences to be drawn from them are questions of judgment, assessment and opinion." Mr. Wei's cross-examination also revealed a degree of subjectivity in Mr. Radley's assessment of the ranges of variation of particular features. I do not see also that can be avoided, and in my view it did not seem to be unreasonable or fickle or to affect the validity of Mr. Radley's relevant conclusions. Finally Mr. Wei was able to diminish the impact of Mr. Radley's photographs showing a very distinctive pen pressure pattern in the questioned signature by pointing out traces of a similar pressure pattern in another photograph of an unquestioned signature. Unfortunately this was detected only after Mr. Radley had completed his evidence and departed, so he did not have an opportunity of explaining. But these points in my view do not significantly detract from Mr. Radley's general evidence. He impressed me as a careful, competent witness whose evidence was in marked contrast to that of Professor Lai, particularly as far as expertise in suspect handwriting was concerned. Notwithstanding the tentative nature of the Crown and Shimaoka paper, Mr. Radley's own cautious attitude to oriental script, and finally the difficulty I had in discerning a few of the many features he referred to, I accept his evidence as a whole. In my view it clearly establishes a probability that the questioned signature is a forgery.

59. Reverting then to the issue referred to me, I find that the defendants have failed to establish on the balance of probability that the will dated 20th August 1980 was duly executed by the deceased, Kung Yuek Man.

60. I accordingly reject the counterclaims of the defendants that the court pronounce for the force and validity of the will dated 20th August 1980.

61. Under Order 42 rule 6 I make an order nisi for costs to the plaintiff, certified for two counsel.

Representation:

Mr. Henry Litton, Q.C. & Mr. Michael Bunting instructed by Messrs. T. L. Yip & Co. for plaintiff.

1st Defendant, Mr. Kung Kwok Sum, appearing in person.

Robert W. N. Wei, Q.C. & Mr. K-John Cheung instructed by Messrs. John Yip & Co. for 2nd Defendant.

3rd Defendant, Mr. Kung Chi Chiu Gabriel, appearing in person.