Leung May Chow Karen and Another v. Leung May Chun Alison Aliance

HCA2839/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.  2839 OF 2001

BETWEEN

Before: Deputy High Court Judge Carlson  in Chambers (Open to the public)

Date of Hearing: 13 October 2005

Date of Delivery of Judgment: 13 October 2005

J U D G M E N T

Introduction

1.This is a probate dispute between sisters and a sister-in-law concerning the Will of their late mother and mother-in-law respectively.  Although this has a long history with a number of proceedings already having taken place before a number of judges and masters, I have to decide a very short procedural point. 

2.To put the issue into context, I need only recite the background very briefly.  The deceased died in 1992.  She had made a Will in 1961 leaving her property to her children in equal shares.  Her elder daughter who is the defendant had, for a number of years before the deceased’s death, managed her numerous properties and collected the rents from the tenants.  After her death, she continued to do so.  She purported to do that on the strength of a Will in Chinese which she had forged, and which left the whole of the deceased’s estate to her alone.  She was prosecuted for this forgery and served a prison sentence from November 1994 until November of the following year. 

3.By the time that the forgery had been discovered, the plaintiffs had begun to take steps to enforce the terms of the genuine Will.  Judgment has been entered, and what now remains is to determine how much rent the defendant has collected since the death of the deceased.  An inquiry has been ordered and an account will be taken with final orders made to give effect to the findings made on the inquiry.

Previous Proceedings

4.Putting it as neutrally as I can for the present purposes, the plaintiffs, having brought these proceedings, and others, have sought to establish what rents had been collected since the death of the deceased.  Complaints have been made on their behalf that the defendant has been less than forthcoming and frank about this.   For her part, the defendant says that she has been under great psychiatric difficulties and there is evidence in the form of a psychiatrist’s report on her behalf.  If she has not been able to provide as full a picture as she has been ordered to by the court, this has been caused by her illness and by the fact that she had been out of circulation, as it were, for a year during her imprisonment.   Nevertheless, whilst she was in prison, her then solicitors obtained instructions from her, and they had prepared a schedule of the properties comprising the estate and the particulars of the tenancies and the rent charged under those tenancies.  This is the core document in the case.  It came under cover of a letter dated 11 March 1995 from her then solicitors, who prepared it, to the plaintiffs’ solicitors.  It appears more than once in the evidence; see, for example, pages 28 and 29 of bundle B. 

The Present Appeal

5.Having obtained this document - which I should say straight away is heavily contested by the defendant as a grossly inaccurate document which she says her previous solicitors never showed to her before they sent it to the plaintiffs’ solicitors - the plaintiffs’ solicitors then applied for an interim payment in which they were only partly successful on appeal, having failed before the master.   I should also observe that the defendant was subjected to a suspended committal order to compel compliance with previous orders for disclosure.

6.Having obtained a limited interim payment, the plaintiffs have now pressed on to have the account taken of rents received by the defendant since the death of the deceased.  Both sides have filed voluminous affirmations and exhibits in respect of the various applications that have already come before the court.  It has been agreed between them that use would be made of the affirmations - in particular those in support of the plaintiffs’ application for an interim payment, for the final inquiry a and the taking of the account.   The matter came before Master Jack Wong, on 13 June this year, for directions.  His order, A176, closely mirrors the plaintiffs’ summons of 11 April 2005, in the sense that the parties existing affirmations would stand as their evidence and that they should attend and be cross-examined on them.  Leave was also given for the defendant to file one further affirmation.   Nevertheless, an exception was made by the master following a submission to this effect on behalf of the plaintiffs that the fourth affirmation of their solicitor, Mr Lau Shek-wa, should go in but without the right for the defendant to have him cross-examined.  His attendance at the inquiry was also specifically dispensed with.   It is this part of the order that is the subject of the appeal before me. 

7.The affidavit, which is a short document, starts at A55; its substance taking up two and a third pages.  To put it into perspective, this affirmation was that which was filed to kick off, as it were, the plaintiffs’ application for an interim payment.  Its content is essentially narrative, in order to provide a background to how the application for an interim payment had come about.   Having recited the history from paragraphs 1 to 8, paragraph 9 tells of the schedule of tenancies and rents to which I have already referred, and it exhibits that schedule.  Paragraph 10 reinforces the effect of the schedule by referring to the defendant’s affirmation in other related proceedings affirming the truthfulness of the schedule.   This having been said, the defendant has now filed a further affirmation which seeks to completely eliminate the reliability of the schedule.  She says that little or no weight should be placed on it for reasons that I have already touched upon.  Thereafter, the rest of the affirmation draws on the narrative and states the application for the interim payment. 

Discussion

8.My initial reaction having read this affirmation, which I have already made clear in the course of the argument, was that it could and would add nothing to the inquiry.   The narrative, in terms of the background and history, appears from the orders already made in this action and the other proceedings and which can, therefore, be placed before the judge or master conducting the inquiry in the form of a chronology by counsel opening the case.  This is also apparent from the other much fuller affirmations and exhibits.  The schedule and its covering letter appear in at least one other affirmation of the defendant, and so it is already in evidence.  I will return to this aspect presently. 

9.In presenting the appeal, Mr Mumford Q.C., S.C. on behalf of the defendants, whilst accepting that the court retains a discretion as to whether to have an affirmant subjected to cross-examination on his affirmation, submits that in this case which will be the effective trial of the action leading to a final order, it would not be just to allow the affirmation in without challenge to it by the defendant’s counsel.  He has helpfully referred me to Order 38 Rules 1 and 2 of the Rules of the High Court and the cases decided under that order; principally Yuen v Yuen [1984] HKLR 431, and Waters v Malahon Credit Limited [2003] 2 HKLRD F1, and  reference has been made made to Grand Empire Holdings Limited v Marco International (Hong Kong) Limited, unreported HCA14891/1999.  Really, the burden of Mr Mumford’s submission is that, as opposed to an interlocutory hearing, at a final trial the court will be far more ready and should, in this case, order cross-examination. 

10.Mr Jenkin Suen, in a most helpful submission both from the Bar and in writing, has analysed the operation and mechanics of an inquiry such as this.  He submits that the essence of it is that it is for the defendant to now justify her position and not for the plaintiffs to present any positive case of their own.  As to Mr Lau’s affirmation, he submits that it presents the outline to the matter and it puts the schedule into evidence which is helpful to the court; but that given Mr Lau’s lack of first-hand knowledge of the facts, there is nothing for him to be cross-examined on.   The master was therefore correct in making the order that he did. 

My Conclusion

11.The difficulty with Mr Suen’s submission is that it is double-edged.  If Mr Lau has no first-hand knowledge of the facts, there is very little purpose to be served in having the affirmation in.   My own view is that this is very much a question of case management.  This affirmation had originally been put in to introduce and support the application for an interim payment.  That was its only purpose.  The case has now moved on from there.   I am satisfied that no purpose can be served by having this affirmation in before the judge who conducted the inquiry.  It provides no evidential structure upon which the judge will be able to decide how much, if any, money is due to the plaintiffs from the defendant.   I have already observed that the chronology provided appears elsewhere in the evidence and in the court’s file.  Any comment that needs to be made arising from the chronology and history of the case can be made by counsel.  The plaintiffs do not need Mr Lau’s limited comments which appear in his affirmation.  The schedule is already in evidence elsewhere and will form the centrepiece of the contest in the inquiry. 

12.This appeal, being by way of re-hearing, enables me to make such order as was available to the master.  I am persuaded that this affirmation should not be before the court on the basis that it will serve no purpose in the inquiry, and that its narrative content, which would provide the judge with a helpful introduction, can come from counsel in his written opening based on previous orders of the court and the other voluminous affirmation evidence which will be before the judge.   The appeal will therefore be allowed so that all references to Mr Lau and his fourth affirmation must be removed from the master’s order.  

Costs

13.As to costs although Mr Mumford has succeeded - perhaps beyond his expectations in the sense that he was really hoping for an order that Mr Lau should present himself for cross-examination - I have decided the matter on a somewhat different basis to that argued by Mr Mumford.  Accordingly, I consider that the appropriate order in respect of this appeal should be costs in the inquiry. 

Mr Jenkin Suen, instructed by Messrs Lau, Wong & Chan, for the Plaintiffs

Mr E.C. Mumford Q.C., S.C., instructed by Messrs Chan & Tsu, for the Defendant