Herman Iskandar v. Bonardy Leo and Others

HCA000009/1984

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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PROBATE JURISDICTION

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BETWEEN

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Coram: Hon. Liu, J. in Court

Dates of hearing: 2nd-5th, 8th-12th, 16th-18th, June and 6th July, 1987

Date of delivery of judgment: 13th July, 1987

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JUDGMENT

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1. Lugito Surjo Kusno, an Indonesian subject of Chinese extraction, died domiciled in Jakarta, Indonesia on the 21st November 1978. The plaintiff claims that the deceased left a Will executed on the 27th November 1975.  The alleged Will named the plaintiff and his mother as personal representatives. The plaintiff is now the sole surviving named executor under the alleged Will after his mother's recent death. All the 3 defendants were caveators challenging the validity of the Will and the grant of probate on various grounds. 'Just about a month before the hearing of this action, the defendants abandoned all but one issue, viz. the allegation of forgery. At the commencement of these proceedings, the sisters of the 1st defendant, the 2nd and 3rd defendants withdrew their whole defence and agreed to, inter alia, submit to any judgment which this Court may see fit to deliver except as to costs. Subject to the alleged Will being proved in solemn form, they themselves no longer maintain that it is a forged document. Therefore, these proceedings now involve one defendant, the 1st defendant and one issue, that of forgery.

2. The Court has received evidence that there exist no other testamentary papers apart from the alleged Will and that the plaintiff is still willing, ready and able to accept probate, if granted. It is incumbent upon the plaintiff to establish due execution of the alleged Will, that is to say, in essence, the deceased's testamentary capacity and his knowledge and approval of the contents of the document he allegedly signed on the 27th November 1975. The real bone of contention is whether the signatures on the alleged Will and a carbon copy of it are those of the deceased's.

3. During his life time, the deceased cohabited with two women, one was Madam Wong, the mother of the 3 defendants, and the other was the plaintiff's mother from whom the deceased had five children, four sons and a daughter. All the natural children of the deceased were born before some form of a civil marriage was solemnized between Madam Wong and the deceased in Medan on the 29th August 1956. Only the plaintiff, according to the unchallenged opening statement of counsel before Mr. Justice Chua in Singapore, was formally acknowledged by the deceased. Under the alleged Will, after specific bequests to the plaintiff and his late mother, the residual estate was to be held in trust until mid 1977 for final distribution among the plaintiff's mother and her five children in equal shares to the exclusion of Madam Wong's branch of the family in Medan.

4. That is the background against which the instant action before me and proceedings in other jurisdictions arose. In order to obtain a grant of probate, the overall persuasive burden throughout remains with the plaintiff who is seeking to prove the alleged Will in solemn form. Logically analysed, the plaintiff must lead credible evidence of due execution, without which the plaintiff cannot hope to succeed. The 1st defendant carries merely the evidential burden of proving forgery. Ultimately, even if the forgery charge should fail, the Court must consider whether the plaintiff has established, having regard to all the circumstances due execution. Forgery is a serious charge, but the 1st defendant has no more than a civil burden though the Court must be persuaded to a high degree of probability "commensurate with the" grave allegation;" the more serious the allegation, the higher the degree of probability that is required". See Bater v. Bater⁽¹⁾; Hornal v. Neuberger Products Ltd.⁽²⁾; Tai Hing Cotton Mill v. Liu Chong Hing Bank Ltd. & Others⁽³⁾.

5. This case presents no difficulty and the delivery of judgment was withheld only to await the joint and irrevocable confirmation of the unofficial mechanically-recorded evidence.

6. The 1st defendant's allegation of forgery is primarily sought to be supported by the evidence of handwriting experts. In addition, Mr. Lui Boon Poh was taken to task for, inter alia, using an incorrect passport number and giving an unsatisfactory account of the extra copy Will. Mr. Spicer, counsel for the 1st defendant, appreciated the difficulty in establishing forgery without all the plaintiff's evidence being found "highly unsatisfactory and substantially discredited".

7. Much play was made of this and the other defendants' conduct or inaction in proceedings here and overseas. However, the 1st defendant's expert opinions cannot be affected by these criticisms.

8. Issues were raised and decided on a different basis before Chua, J. in the Singapore action. Probate was prayed for and granted in Singapore. If the alleged Will had been forged, then Mr. Lui must have there perjured himself. There is no evidence of any proceedings on foot to set aside the Singapore grant on the present allegation of forgery. Chua, J. found one of the attesting witnesses, Mr. Lui, to be honest and truthful. I am only too conscious that any finding made by me relating to due execution of the same Will, though on a new issue, would likely lead to repercussions. However, I have a duty to discharge in the instant action. I must judge on the evidence placed before me. I have completely disregarded all the proceedings overseas except insofar as they may raise any suspicion to due execution of the alleged Will or be interpreted in favour of the forgery allegation.

9. I have not been told that the 1st defendant seeks to rely on any proceedings in other jurisdictions except perhaps the arrest of the plaintiff in Indonesia and as material for comparison with Mr. Lui's evidence before me. In Indonesia, there had, since early 1979, been proceedings on legitimacy which would have some bearing on the alleged Will. All venues of appeal have now been exhausted by the Medan branch of the family. Even a petition to the President of Indonesia was, I believe, finally rejected in August 1985. In Singapore, litigation between the two branches of the family resulted in the judgment of Chua, J. given on the 30th April 1981. There were subsequent proceedings which were unconnected with due execution of the alleged Will. In all, the 1st and the other defendants have been unsuccessful. The instant action in Hong Kong was commenced on the 12th December 1984. Some 12 days later on the 24th December, apparently a report was made to the Indonesian police as to the alleged Will. The 1st defendant has not caused to be produced this report, and its source of origin can be only a matter of conjecture. Relying on, inter alia, this report, the plaintiff was put on some form of arrest nearly two years later for 20 days from the 6th June 1986 to the 25th June 1986. I think the plaintiff was bailed on the 21st June 1986 by a "Warrant for Postponement of Arrest". There is no evidence of any charge having been preferred against the plaintiff by the Indonesian authority. In his attempt to produce a certain document, the 1st defendant informed this Court through counsel that he had had the assistance of the Personal Secretary to the President of Indonesia and that the plaintiff was still under investigation in connection with the alleged Will. There is no conceivable reason why the defendant should withhold from this Court Indonesian information, if any and material, on the issue of forgery. As I have said, the Hong Kong action was instituted on the 12th December 1984. Despite the report made to the Indonesian authority on the 24th December, the defendants in their Defence filed some six weeks later on the 4th February 1985 chose to admit the alleged Will and its due execution.

10. All this is referred to, not by way of criticism against the defendants including the 1st defendant, but so as to provide the background against which evidence of due execution of the alleged Will is to be considered. Searched, as I have, in the surrounding circumstances, I find nothing suspicious. The defendants have had years of facilities and opportunities in making all the investigation and challenge that could possibly be made. It was only just before the hearing of this action set down before Mayo, J. last year that the admission to due execution of the alleged Will was retracted and the forgery issue was raised. However, the 1st defendant comes here armed with expert evidence.

11. Against this background free from suspicion, I turn to the evidence of Mr. Lui Poon Poh. I constantly bear in mind, of course, that there are now two expert opinions of forgery. Prior to the 27th November 1975, the deceased had allegedly discussed with Mr. Lui as to the making of a Will because of his extensive travel at the time. On the 27th November 1975, so ran Mr. Lui's version, the deceased visited him in his office without an appointment. According to Mr. Lui, there was nothing unusual for the deceased to come in unannounced. The deceased came with more than one person, but Mr. Lui was unable to remember if these included any member of his family. It was about noon and the deceased allegedly said to Mr. Lui: "Professor Lui, can you remember the last time we discussed about the Will? I would like to have one made, and I would like to have it made today." Instructions were obtained. There was no difficulty at all in communication conducted in English, interspersed with Cantonese, Indonesian or Bahasia Malay. Mr. Lui explained generally how instructions for the alleged Will were given. The deceased's passport number and that of his wife's, the mother of the Plaintiff, were on a P & 0 pad note paper from the deceased, but Mr. Lui did not recall who in fact wrote down these passport numbers. The alleged Will contains these passport numbers and that of the deceased is from his expired passport. It was not satisfactorily explained as to how this expired passport number came to be used in the alleged Will. However, there is no real substance in counsel's criticism of Mr. Lui's answer under cross-examination that he no longer remembered whether he saw any passport of the deceased on the 27th November.

12. Mr. Lui claimed that after instructions had been taken, he caused to be prepared the alleged Will for execution and the deceased was invited to return later on the same day. It was about 3 p.m. in the afternoon when the deceased returned to his office. The alleged Will as prepared was ready for execution. Mr. Lui read the contents to the deceased and emphasized any point of importance and the legal implications whenever it was necessary to do so. He even repeated both in English and Cantonese and sometimes using Bahasia Malay; certain words to the deceased. The alleged Will and a carbon copy were signed with Mr. Lui and his legal assistant Miss Ivy Neo as attesting witnesses. It is quite unnecessary to condescend upon particulars. Suffice it to say that sufficient evidence of due execution was led.

13. Mr. Lui told the Court that on the same day the deceased also executed an Indenture for the Watten Terrace Property. The deceased signed twice on the deed as purchaser of the property far S$290,000.00 with stamp duties paid at S$8,300.00. This deed passed, in its execution, through the hander of two other firms of solicitors in Singapore.

14. No effort was spared in criticising Mr. Lui's evidence. It was submitted that Mr. Lui was not consistent in describing the deceased's habit on his visits to Mr. Lui's chambers. Mr. Lui told the Court that it was not unusual for the deceased to come without an appointment, but later Mr. Lui referred to certain communications with one Mr. Wong giving advance notice of the deceased's arrival at Singapore and other movements. Mr. Lui testified before Chua, J. in Singapore that the deceased "never made pre-appointment when he wanted to see me and I as a general practitioner had no objection to it at all". Mr. Lui explained that he "could have meant or said that the deceased did not normally have to make an appointment". It was not suggested that the deceased had never visited or consulted Mr. Lui without an appointment. This can hardly be a real test of Mr. Lui's credibility. There could have been a great many causes for the use of a wrong passport number eg. misinformation, error, neglect, negligence, incompetence etc. It is too peripheral a matter to affect credibility or suggest forgery. Mr. Lui claimed to be unaware of any dispute on the alleged Will until the Singapore Caveat filed on the 18th January 1979. Counsel for the 1st defendant argued that Mr. Lui was in fact fore-warned by Mr. Wong on the 7th December 1978. However, the message from Mr. Wong merely stated that "the family in Medan is fighting for the property against the Jakarta family". The alleged Will was not mentioned. Again, Mr. Lui was criticised for being unable to specify or explain by whom a copy Will was given to the deceased, how a photostat-copy could have been made and why an entry of the deceased's request had not been made in his Will Register. Mr. Lui explained that it was only after a telephone call followed by a letter on the same day, the 7th December 1978, from Messrs. Shook Lin & Bok that he learned of the deceased'e taking of a copy from his staff, a conveyancing clerk or secretary. Mr. Lui told Chua, J. in 1981 in Singapore, during the final submission of counsel for the defendants, that he found a signed copy Will at his house with the remark: "I now recollect that on the day of execution of the Will, the deceased asked me for a photocopy of the Will while instructing me to retain the original and the copy." Upon being confronted with the apparent inconsistency before me, Mr. Lui's blunt answer was: "Let that remain so. One said in 1981 and one said today. I am not making any comment now." Mr. Lui was accused of trying to distance himself from the copy. Mr. Lui was in charge and had to be responsible for his staff. There was nothing to gain by shifting blame on to his subordinate. Mr. Lui further explained that lapse of memory could account for these different answers. Upon being asked as to how any staff could have taken out the Will for photostating and without he making an entry in his Will Register, Mr. Lui readily conceded that it was his "fauxpas". Mr. Lui himself spoke of a photostat copy. In Singapore, his practice was related to Chua, J. as "A Will is normally engrossed - 3 copies, the original and 2 carbon copies". Mr. Lui kept a copy Will in his file for the deceased, and that is not a copy of any of the signed copies kept in his safe. The copy given by the staff to the deceased could have come from this file copy and Mr. Lui could have made too readily a concession. This is all very speculative. Be that as it may, Mr. Lui was never hesitant and was a willing witness trying to help all he could. Mr. Lui was also sought to be attacked for exchanging messages with his wife on a note-pad. When he offered it to counsel for perusal, Mr. Lui's invitation was not accepted. The communication between Mr. and Mrs. Lui on that note-pad cannot be anything other than innocent conversation between husband and wife conducted in writing so as to cause the least disturbance. Mr. Lui was condemned for deliberately memorizing his previous Singapore evidence by giving the same description of the deceased's mannerism as being that of a man of few words. It is a common expression, and such mannerism cannot be a matter of any significance. I need go no further. Mr. Lui was visibly irritable and increasingly impatient, but his overall credibility emerged, after cross-examination, unshaken.

15. Mr. Lui's office documents reflecting his usual course of business: despatching a debit note, giving a receipt, keeping the signed Will and carbon copy in sealed envelops, maintaining a Will Register, and making endorsements, but these are self-serving. Like the surrounding circumstances, nothing in Mr. Lui's conduct has aroused any suspicion.

16. The signing of the Watten Terrace Assignment on the same day could hardly promote the interest of an alleged forger and his conspirators. I shall deal with the expert reports later. Dr. Nutten and Mr. Radley have given reports favourable to the 1st defendant. As for the Watten Terrace signatures, Dr. Nutten expressed "some doubts as to the authenticity" because they did not share the characteristics of "natural speed and fluency, with no indication of lack of co-ordination". But Dr. Nutten did not seem to have categorically excluded these two from the total of 82 control signatures for comparison. In his report, Mr. Radley rejected these signatures as "comparison standards" because they suffered from a"lack of fluency in portions". In his oral evidence, Mr. Radley focussed his criticism on one of these signatures, C71B. He described them both as "accidentals", i.e. signatures with unusual features due to external influences such as extremes of writing conditions (restricted or hampered hand movement, writing position, available writing space etc.) and concentration or the lack of it induced by distraction, surprise, emotions etc. Mr. Radley elaborated that the accidentals' are even arguably "a natural extension of a particular range of variation", "quite often a very extreme extension" and that the range of variation is capable of being "extended considerably by even one accidental". Hence, Mr. Radley agreed that they should be also borne in mind. In conclusion, none of the Watten Terrace signatures was rejected outright by the 1st defendant's own experts. Before Mr. Radley giving evidence, despite the 40-page notes to counsel, Mr. Spicer for the 1st defendant was still, without instructions, as to whether Mr. Radley would claim that his examination of the Watten Terrace Indenture signatures as given in his report was erroneous. It would be highly unlikely for a forger or conspirators to invest nearly S$300,000.00 in another contemporaneous forgery to give credence to an allegedly forged Will. And on the basis that the Watten Terrace signatures are genuine, it would be incredibly hazardous for a forger or conspirators to forge a Will on the same day. There is no evidence that the deceased was in poor health in November 1975. The alleged Will was liable to be revoked and superceded by later one. Such uncertainty of a successful fraud could not have provided enough incentive for two members of the legal profession undertaking substantial risk. The signature on the original of the alleged Will is infinitely of a much poorer quality than that on the carbon copy. The forger or conspirators could have had the document retyped for a better imitation, at least one comparable to that on the carbon copy. If the alleged Will had been forged, it would have been unwise to involve another member of the legal profession as an attesting witness. Reference is made to these surrounding circumstances in search of any cause for suspicion, and there is none. In the result, the high quality of Mr. Lui's evidence needs no buttresses.

17. The evidence of Mr. Lui was firm and impressive. He differed in some detail and always tried to co-operate by offering explanations, and he was never an evasive witness. The notes of the Singapore proceedings had been available, but there was no sign of any attempt on his part to commit these notes to memory. He was indignant at the suggestion that he had been other than instrumental in the preparation and due execution of the alleged Will. I have come to the conclusion that he is an honest and truthful witness as did Chua, J. whose findings after 3 days' cross-examination of Mr. Lui I have deliberately disregarded in arriving at my own independent conclusion. Miss Neo's statement was admitted. It is short and to the point. She was interviewed in Singapore by Victor Chew and the interview was taped. I do not share counsel's sentiments that there was no valid excuse for her not attending as a witness in this trial. The other attesting witness, Mr. Lui, is available, and she is not strictly a necessary witness. She was naturally reluctant to offer herself for hostile cross-examination, and she was not prepared to sacrifice her holiday entitlement. The first statement was dictated at a 15-minute interview. I do not . accept that the taped conversation, as transcribed, sounds vague. Miss Neo aired her grievance of being unjustly implicated and even troubled by police investigation in an otherwise ordinary office duty necessitating her participation as an attesting witness to the alleged Will. I accept her statements on both these occasions as true.

18. The possibility of destroying or undermining the combined effect of these cogent accounts given by Mr. Lui and Miss Ivy Neo by any handwriting expert evidence, even if unanimous, must be remote. Handwriting experts' examination "is purely a matter of practical training and experience". It is an inexact science practised as a recondite art. No counsel in this case was bold enough to enquire into its margin of error. Mr. Davis is a handwriting expert called by the plaintiff. He is of the opinion that the two signatures on the alleged Will and its carbon copy are genuine. Mr. Radley is of the opinion that they are not, but Mr. Radley conceded that "Mr. Davis may take another opinion on that". Certain proposed evidence of Mr. Radley had been ruled out. By. his recognition of the plausibility of Mr. Davis' conclusion, Mr. Radley admitted inferentially that no known material, including the evidence he was not permitted to lead, could have detracted from the acknowledged merit of the result of Mr. Davis' examination. Dr. Nutten was not called. I would not disbelieve Mr. Lui and Miss Ivy Neo on account of such expert evidence. Moreover, in view of Mr. Radley's concession, the lst defendant's expert evidence must necessarily fall short of the requisite high degree of probability. for proving forgery.

19. It would seem quite unnecessary to turn to the diverging expert opinions. However, for the purpose of good house-keeping, I should say that I prefer the conclusion of Mr. Davis in preference to the conclusions reached by Mr. Radley and Dr. Nutten, and I shall give my reasons later.

20. The plaintiff, through his counsel, is prepared to discard the opinion of Dr. Yapp. Dr. Yapp has been challenged not so much on his training and experience as on his alleged impropriety in the continued use of lapsed membership and unearned academic qualifications. Certain evidence has been adduced by the lst defendant, but Dr. Yapp was involuntarily unavailable for consultation. So long as his report is not sought to be used, justice and decency compel me to refrain from expressing any view on these personal attacks at Dr. Yapp. Therefore I need not deal with Dr. Yapp's report. As for the others, I accept them all as handwriting experts.

21. Dr. Nutten made an unsworn statement as to his inability to attend and offer his personal assistance. He could not make himself available on account of an unexpected family commitment and also he would require time for preparation. The 1st defendant still relies on his two written reports. The first is a preliminary report intended to provide only a qualified opinion. Dr. Nutten found that the questioned signature on the original of the alleged Will came from a "defective ball-point pen". He had only a photostat of the original of the alleged Will and photostat copies of some genuine signatures. He never saw the carbon copy Will. He visited Singapore for the inspection of the original of the alleged Will lodged with the Probate Registry. Dr, Nutten acknowledged that no "comprehensive comparison" could be carried out without "a selection of original documents bearing representative control signatures", and yet he was provided with only one original genuine signature, not written with a ball-point pen but a "porous hard-tipped pen". Dr. Nutten did not seem to have used the single original genuine signature. He gave a qualified opinion that "significant features noted" in "the photocopied collation of genuine signatures were absent from" the original Will signature. He deferred his "final opinion until a selection of authentic signatures" was made available. That is clearly insufficient evidence to found a forgery allegation even in a civil suit.

22. Dr. Nutten gave a second report on the 9th October 1986. He never examined the carbon copy alleged Will but was then given only a photograph and enlargements of it. Both the plaintiff and the defendants to this action accepted some 82 signatures as genuine, including the two on the Watten Terrace Indenture. Dr. Nutten had "some doubts as to the authenticity of these two" Watten Terrace signatures but nevertheless he used all 82 collectively. Dr. Nutten was truly handicapped, and he was also not in Court for cross-examination. His report cannot rank pari passu with those from Mr. Davis and Mr. Radley. Counsel for the plaintiff was critical of Mr. Radley's report, but I take note that he was hardly cross-examined.

23. Mr. Davis was exhaustively cross-examined for three days. Between Mr. Davis and Mr. Radley, Mr. Davis is decidedly more experienced with 23 years in handwriting examination and 900-1,000 cases to his credit. Of the 900 - 1,000 cases, 20 - 25% were disputed. Academic training would lead to a more analytic, logical, systematic and objective approach, applying learned scientific techniques. But these qualities can also be acquired in practice and from experience as well as in the way of a man's business and association. After all, Mr. Radley has conceded that handwriting examination "is purely a matter of training and experience". Mr. Radley joined his father's firm in 1971. He had diversified interests in analysis of substances such as ink, drugs and their related problems. Until the end of 1975, for a period, he was associated with another analytical laboratory for drugs. He studied cases in the "forensic document field", and he did not take over his father's practice until the end of 1975. According to Mr. Radley, it would take approximately three years for a handwriting examiner to become reasonably competent.

24. Mr. Davis had ample time to conduct his inspection, examination and comparison. The time element was of significance if only for Mr. Davis' emphasis on the risk of error in examination away from the laboratory. Mr. Radley had to leave for America. He explained that he was not then instructed, due to his imminent departure and expenses, to make a detailed report. It would have taken him some 3 to 4 days to make preparation. With or without sufficient time for examining the documents and photostats, he had clearly not embarked on any in-depth study until later when he produced some 40 pages of notes for counsel. With these notes to counsel, if comprehensive and well presented, I am at a loss as to why the lst defendant strenuously resisted the plaintiff's invitation cum application for particulars of differences observed by Mr. Radley between the questioned signatures and the control ones.

25. Mr. Davis had the originals of all the control documents in Singapore for his examination of the questioned Will signatures, but Mr. Radley visited Singapore with only control documents from the defendants and mere photostats of the plaintiff's control documents.

26. Mr. Davis was accused of allowing himself to be influenced by exigencies of litigation and being partial to the plaintiff's cause. Such partiality was said to be reflected by a bare outline made in Mr. Davis' notes of the contentions, joined issues and progress in this case. Such information would provide a handwriting expert with, I expect, a better understanding of the deceased's background or might throw some light on the source and thus modus operandi of the alleged forgery. This is sheer common sense. There may be other explanations. It was not even put to Mr. Davis that he was biased. Instead, the unchallenged evidence of Mr. Davis is that virtually half of his opinions were adverse to his clients' interests.

27. Kromacote tests were conducted on some of the plaintiff's control documents without consent. Mr. Davis has no knowledge of the test other than the fact that it was designed to lift ink in an attempt to determine the sequence of overlapping ball-point pen strokes. Mr. Davis explained that the test had not been universally accepted and he would not resort to it before it had gained recognition. Mr. Davis had at one time said that such a manoeuvre would destroy the document but he modified it to one of causing damage to the tested document. Mr. Davis was also criticised for, before the conclusion of his evidence, contacting Mr. Michael Hall of the Home Office Forensic Science Laboratory in Birmingham. He had a conversation with leading counsel for the plaintiff, apparently with consent of counsel for the 1st defendant. Substance of communication between Mr. Davis and counsel was not disclosed. It is an impropriety which could have been brought about by a variety of causes, including misunderstanding. The Court was told that a certain note was delivered by Mr. Davis to leading counsel. But whatever the true position was, Mr. Davis or the plaintiff has not been shown to stand to gain by any information so sought and/or obtained. It would be futile to pursue this call to Birmingham.

28. Mr. Davis seemed to be wholly unimpressed and somewhat aggravated by some of the questions inelegantly put in cross-examination by Mr. Spicer who was making the best of a difficult case in the available time. There were fleeting signs of disdain and attempts to outwit counsel's objectives. Counsel was embarrassed by the torn pages of Mr. Davis' notes and was confused in their proper sequence. It is often unjust to make observations on the demeanour of a professional witness who was not afforded a full or any opportunity of explaining himself. What is being attempted here is to try to assess his integrity even under the worst possible light. Despite such occasions of what would seem to be negative retaliation, I take the view that there is no justification for impugning Mr. Davis' personal or professional integrity. As a matter of fact, the integrity of Mr. Davis was never specifically put in issue by counsel. There is no substance in the oblique aspersions sought to be cast upon him.

29. In the course of his cross-examination, from working notes Mr. Davis explained fully his personal first reaction to the superficial view of the questioned signatures. He has satisfactorily explained to the Court as to how he arrived at his conclusion after his comparison in his Singapore hotel and analysis back in the United Kingdom. Mr. Davis felt justified in reversing his initial impression. It was a final opinion reached with care and circumspection and to which he now adheres.

30. The signature of the deceased is not of a personalised nature, nor is' it decipherable in letter form. It remains a matter of surmise as to what the strokes and elements represent, if these symbols had been intended to represent anything at all. Both Mr. Radley and Mr. Davis agreed that the deceased lacked fluency and that there is a wide range of variation in virtually all aspects of any signature production. No two signatures from the same man are alike. It is, however, possible to find a defined range of variation for comparison purposes. Mr. Radley conceded that even one accidental could legitimately extend such defined range considerably. As for the Watten Terrace Indenture signatures, Mr. Radley observed slowness in C71B due to the subjugation of the signature between two lines of typing. He was also unhappy with the slowness in C71A though more fluent. Mr. Radley took the view that we should be wary of these Watten Terrace signatures which are to be regarded as accidentals.

31. A minority of the signatures in the controls were written with a ball-point pen which was an unaccustomed writing instrument for the deceased. The questioned signatures were described by Dr. Nutten as those written with a defective ball-point pen. The deceased's signature is enigmatic in formation and suffers from an extensive range of variation, liable to be broadened by the accidentals in the Watten Terrace Indenture. Moreover, the signatures on the alleged Will and its carbon copy were made on an occasion solemn and personal to the deceased after what would appear to be a prompt decision, with an unaccustomed writing instrument which was defective. These are all possible causes for unusual features.

32. I do not propose to analyse the entire case put to Mr. Davis in cross-examination. To me, each time, Mr. Davis' explanation seemed logical and sensible. I have endeavoured to elaborate more than what my findings call for so as to remind the parties concerned that the instant case has received this Court's very full consideration.

33. Mr. Davis was asked as to the sequence of strokes in the first element and he put it as stroke one "a", stroke two "b" and stroke three "c" from left to right. Mr. Davis took great exception to counsel's suggestion that sometime in September 1986, he described. the sequence to Mr. Radley as stroke two "b", stroke one "a" and stroke three "c". In his evidence, Mr. Radley stated that the parties were not then particularly discussing any differences relating to the alleged forgery, that the conversation was very informal on an off-the-record basis and that he could not in fact recall who commented on the direction of the first element. He further explained that the "b", "a", "c" sequence was either his misunderstanding of what Mr. Davis had said or that it was highly unlikely for Mr. Davis to have said so with his own notes before him. Mr. Radley concluded that it was "a genuine misunderstanding one way or the other".

34. On the disputed sequence of the first element, Mr. Davis detected a number of significant differences in the questioned Will signatures which are markedly inferior. He was much taken by his initial impression of the first element of the questioned Will signatures and assumed momentarily at the inception that since an ink fault would normally follow a change of direction, they had to be forgeries. I have referred to the circumstances in which he reversed his initial impression "a long time later". In particular, Mr. Davis was accused of arbitrarily postulating a figure of "8" in the "a" and "b" strokes to justify his left-to-right sequence in the first element. Mr. Davis referred to C15 and C29 as illustrations of the figure of "8". Mr. Davis further relied on the blob or goop after the "fractional twist" and the gap immediately above it. In the enlargement of the questioned carbon copy Will signature, "D33", a point seemed to have been well taken by Mr. Spicer that there is still no sign of an "8" even in this much blown-up version. However, I remain impressed by Mr. Davis' explanation with the aid of the blob and gap that there is a "fractional twist" at the bottom.

35. Mr. Davis was led through various other aspects of possible interpretations in handwriting examination: it was put to him that the angle between strokes three "c" and two "b" was wider in the questioned Will signatures. Describing it as a gap at the base, Mr. Davis maintained that the angle was the same but he agreed that it was wider than expected. Mr. Davis regarded this feature as an "accidental" in both questioned signatures because no forger could be expected to deviate so much from the controls in his attempt to copy. Mr. Davis relied on this as a sign totally inconsistent with forgery. Mr. Spicer queried as to how an accidental could occur in two different signatures on the same day, but Mr. Davis assured counsel that such was a possible event. The third stroke in the first element was too wary in the questioned original Will signature but not in the questioned carbon copy Will signature. I shall call them Q1 and Q2 respectively. It was put to Mr. Davis that the first two strokes in the second element appeared to intertwine, but Mr. Davis referred to a similar crossing feature in C40, C53, C54 and C55. The pressure in the top part of the first stroke in the first element in Q1 was said to be heavy before the pen, so counsel suggested, lifted off. Mr. Davis disagreed that it was too heavy or too much pressure there for a starting stroke or that the same was not present in the controls. Mr. Davis also disagreed that the curvature of the bow in the first stroke of the first element did not appear in the genuine signatures. Mr. Davis elaborated that it wag a matter of degree. Mr. Davis also disagreed that the first four strokes in the second element in the controls were characteristically parallel. There was also disagreement on air movement between strokes "c" and "d". It was debated but to no avail whether the striation in the first stroke "a" indicated direction of pen movement. Mr. Davis also disagreed with the suggestion that an ink flow fault was indicative of the commencement of a line. Mr. Davis advised that ink flow faults could occur at random everywhere. Then it was suggested that the first and perhaps the second strokes in the second element, "d" and "e" were unacceptably wavy and distorted in Q1. Mr. Davis referred to C40 for another illustration. The fish-hook appearance on top of strokes in the form of the letter K in the third element was said to have no parallel in the control documents. Mr. Davis explained that it just so happened to be a curve and that although it was absent from the control documents, a similar right angle flat stroke could be seen on top of the first stroke in the first element in C50. Mr. Davis observed that if these strokes in the form of a letter K in Q2 had been a sign of forgery, the culprit must have had been a very poor forger or made no effort to try to imitate. The relative direction and the length of the arms of the two horizontals in Q1 and Q2 were also suggested to Mr. Davis as "a diagnostic test of genuineness", who explained them as accidentals and a matter of degree. The third stroke in the first element, "c" in Q1 and Q2 was said to be converging with the first and the second strokes "d" and "e" in the second element rather than running parallel to them. Mr. Davis acknowledged the variation but observed_ that some signatures did not even contain such a third stroke. It was also suggested that the top of the first stroke had an appearance of leaping into the first stroke in the second element carrying with it the continued striation, but Mr. Davis disagreed with the interpretation relying, in particular, on C14 as shown in "D32" for the two ink flow faults in the first stroke of the second element, "d". It was also suggested that Mr. Davis' sequence of strokes would disturb the straight line striation in the second stroke of the first element. I think Mr. Davis' figure "8" provided a good answer to this criticism. I have referred to the contention of Mr. Davis being driven to resort to a figure of "8" by his theory. The amount of retracing in the second stroke in the second element in Q1 as demonstrated in "D36" was said to be substantially more than that in the controls. Mr. Davis put it as a matter of degree in variation. Then again the third stroke in the second element was described as having an overall clockwise direction. Mr. Davis disagreed with the observation, and he noted that it ran into a straight line and turned slightly anti-clockwise at the top. Mr. Davis agreed that the last element in Q1 and Q2 was not executed quite smoothly as that in the controls, in particular, the horizontal. As for the last element in Q2, it was suggested that its final horizontal stroke was complemented with an earlier small parallel stroke as drawn in "D37" unlike the others. Mr. Davis referred to C6 which merely shows a hump and cannot be a very good example. However, Mr. Davis referred to strokes in the form of the letter W in C2 and C1, which was not repeated in the other control documents. Mr. Davis observed that in fact there were also quite a number of other differences not found in some signatures. Hence Mr. Davis also did not attach special significance to the end portion of the last element in Q1 and Q2 which displayed less speed. It was also suggested that the angle between a tangent drawn from the first stroke and the horizontal in the last element in Q2 as demonstrated in "D39" was appreciably different from the controls, but Mr. Davis explained that it was a matter of how measurement was taken and a matter of degree.

36. Mr. Davis was "certain" of his stroke sequence from left to right in the first element and Mr. Radley entertained "absolute no doubt" in his right to left direction in the same element. Mr. Davis' opinion is that all the strokes in all the signatures run from left to right. Mr. Radley's opinion is that the three strokes in the first element go from right to left with the rest of the strokes in the other elements written in an opposite direction from left to right. It is agreed on all hands that the strokes sequence in the first element cannot be determinative of or critical for the forgery issue. Mr. Davis' opinion is that the questioned signatures are genuine and Mr. Radley's opinion is that they are forgeries. Mr. Radley accepts that there is room for a different opinion legitimately held on these questioned signatures. Q1 lacks fluency in the beginning in its first and second elements, and the later Watten Terrace Indenture . signature suffers from fairly poor fluency at the end in its horizontals. Q2 is more fluent except for the lower horizontal, and the earlier Watten Terrace Indenture signature is also more fluent. The two pairs are contemporaneous signatures. There is much to be said for Mr. Davis' observation that there is no more reason for rejecting Q1 and Q2 as a pair than there is for rejecting the Watten Terrace Indenture signatures as a pair. Mr. Radley never rejected these Watten Terrace Indenture signatures as not genuine. Mr. Davis took much comfort in the variations in these two pairs of signature Mr. Davis has had no experience with any signature with its components written in different directions. On the opinion expressed by Mr. Radley, unless a forger had knowledge of the peculiar way in which the deceased signed, it would have been highly unlikely for him to adopt a 2-directional approach. For the direction of the 1st element, Mr. Radley's right-to-left theory would therefore better support Mr. Davis' conclusion that it could not have been signed by anyone other than the deceased. The reverse is also true for Mr. Radley. Nevertheless, Mr. Davis maintained his own conclusion as did Mr. Radley. The differences and features raised in Mr. Davis' cross-examination have taken the dispute no further. Mr. Davis concluded that regardless as to the accuracy of his sequence of strokes in the first element, he would uphold his opinion of the questioned signatures.

37. For all the above reasons, I prefer the opinion of Mr. Davis. He is a man of longer and better experience. He had all the controls for his examination of the original Will and its signed carbon copy in Singapore. He had time to produce a better report. His conclusion is conceded by Mr. Radley as one supportable by the available material. He freely allowed inspection and use of his working notes. He stood up well to long and determined cross-examination. Despite my own impression of him, subject to the reservation I have, his elaboration and explanations are as persuasive as his report.

38. The honest and truthful evidence of Mr. Lui and Miss Ivy Neo as confirmed by that of Mr. Davis has driven me to the only conclusion that the alleged Will is genuine. Accordingly, I decree probate of the Will in solemn form of law against all the defendants. Subject to what counsel for the let defendant has to say, I order costs against the 1st defendant.

(1) [1951] P35 at p. 37

(2) [1957] 1 QB 247 at p.258, per Denning L.J.

(3) [1984] H.K.L.R. 95 at p.113, letters C to F

Representation:

Lord Irvine, Q.C. assisted by Mr. R. Mills-Owens, Q.C. & Mrs. M. Clough instructed by M/S. Susan Liang & Co. for the plaintiff.

Mr. R. Spicer instructed by M/S. Hwang & Co. for the 1st defendant.