Chan Yuk Kwan v. Chau Yee Chai Henry

HCA6/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

ACTION NO. 6 OF 2003

BETWEEN

Coram:  Deputy High Court Judge L Chan in Chambers (open to public)

Date of Hearing: 12 May 2006

Date of Delivery of Decision: 12 May 2006

D E C I S I O N

1.The plaintiff sued the estate of the deceased for repayment of a loan of $1.3 million.  The plaintiff relies on a Memorandum of Loan signed by the deceased on 19 May 1999.

2.The defendants, who have been appointed to represent the estate of the deceased for the purpose of defending this claim, said that the Memorandum was forged and the $1.3 million were the plaintiff’s contribution to the purchase of a property which was acquired by the plaintiff and the deceased as joint tenants.

3.The plaintiff said that she and the deceased had been living as husband and wife though they were not legally married.  The property in question was purchased all with the deceased’s funding though she was a joint tenant.  The deceased did so to take care of her and her daughter from a previous marriage.  To prove that the deceased had treated her as his wife and had taken steps to take care of her and her daughter, she produced an application for an insurance policy which was purchased by the deceased with her as the beneficiary.  There are also two amendments which reported to the insurer that the deceased had to work for a few days every week in Dongguan and added the plaintiff’s daughter as a beneficiary.

4.The defendants had previously obtained a report from a handwriting expert on the signature by the deceased on the Memorandum.  The expert confirmed the signature was indeed by the deceased.  There are, however, other issues on the Memorandum which need to be tried. 

5.On 13 April 2006, the defendants issued a summons to adduce a further report by the same handwriting expert.  The report is dated 12 November 2004.  It dealt with the purported signatures of the deceased in the application for the insurance policy and the two amendments.  The expert confirmed that the signature on the application was indeed by the deceased.  He, however, opined that the purported signatures on the two amendments were not by the deceased. 

6.The plaintiff opposes this application on the grounds of irrelevancy and delay. 

7.The defendants merely seek to prove that the two amendments were forged.  They have no evidence to show who was responsible for the alleged forgery on the two amendments.  Even if the court should find that these signatures on the two amendments were indeed forged, it still does not advance the defendants’ case because there was already the policy which was applied for in favour of the plaintiff.  The first amendment only stated that the deceased would have to work for a few days every week in Dongguan and the second amendment merely added the plaintiff’s daughter as a beneficiary.

8.I see no probative value in this report and I would not allow it to be used as evidence at the trial. 

9.The defendants’ summons also seeks leave to file a notice disputing authenticity of the Memorandum and the two amendments.  I think the proper relief to be sought is to have an extension of time to file the notice.  Since the authenticity of the Memorandum has been raised in the defence, it is not necessary to issue any notice disputing its authenticity.  On the two amendments, since I have refused leave for the expert report to be used, there is also no point in extending the time for their authenticity to be disputed.  I therefore dismiss this application.

Costs

10.I order that costs of this application be to the plaintiff in any event.

Representation:

Ms Amendy Leung, instructed by Messrs Edward Lai & Co., for the Plaintiff

Mr Patrick Chong, instructed by Messrs K. C. Ho & Fong, for the Defendant