Chinachem Charitable Foundation Ltd v. Chan Chun Chuen and Another

HCAP 8/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 8 OF 2007

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BETWEEN

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Before:  Hon Lam J in Court

Dates of Hearing:  1, 2 and 3 June 2009

Date of Judgment:  11 June 2009

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J U D G M E N T

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1.In the midst of the trial, the Plaintiff applied for leave to call an additional witness whose identity had previously been withheld.  The evidence of the witness is to deal with an event having no direct connection with the facts of this case.  Be that as it may, Mr Yu SC contended that the evidence is relevant.  The Plaintiff had indicated on 3 April 2009 that the witness would not be called.  On 29 May 2009, after the trial has lasted for 9 days, the Plaintiff changed their mind and applied by summons for leave to call the witness.  The application is opposed by the 1^st Defendant.

Why does the Plaintiff need leave?

2.A large part of the evidence of this witness had been disclosed earlier in the form of a statutory declaration with his name and address redacted in November 2008.  When the matter came closer to the trial, the defence indicated that the Plaintiff should disclose the identity of the witness to facilitate their preparation of the defence.  The matter was raised with the court in case management hearings.  On 30 March 2009, this court after hearing submissions directed that the Plaintiff must disclose the identity of the witness by 3 April 2009, failing which the Plaintiff would be barred from calling the witness at the trial. 

3.Then come the indication by the Plaintiff on 3 April 2009 that they would not be calling this witness.  The trial timetable was prepared (and the trial days confirmed) on the basis that the court will not hear evidence from this witness. 

4.In the light of the direction of this court and Order 38 Rule 2A(10), the Plaintiff cannot call evidence from this witness without leave.  The Plaintiff now relies on Order 3 Rule 5 to support this application.  In my view, as submitted by Mr Mill QC, the new Order 2 Rule 5 is also relevant.  The court must also have regard to the underlying objectives of the rules under Order 1A.

5.The trial commenced on 11 May 2009 and there was no indication from the Plaintiff that they were reconsidering the position regarding this witness until 21 May 2009 when Mr Yu informed the court that a letter regarding the matter would be written to solicitors for the 1^st Defendant.  The letter was actually not sent until 27 May 2009. 

6.As a result of the application, about one day of the trial time was taken up by submissions on the application.  The attention of the court and lawyers were diverted to the application.  This is unsatisfactory.  Interlocutory matters should have been resolved before trial. 

7.Further, if leave is granted, resources will have to be deployed in the middle of trial by the defence to deal with the new evidence including investigation into what happened in early 1990s.  This was outlined by the solicitor for the 1^st Defendant in his 21^st Affidavit.  Though I believe the problem is not insuperable, it is still a prejudice that should not be imposed on them lightly.

Plaintiff’s reasons for changing their position and the timing of the application

8.The Plaintiff made a deliberate decision not to call this witness on 3 April 2009.  Mr Yu submitted that the change of stance on the part of the Plaintiff is a consequence of,

(a)  The change of position of the 1^st Defendant regarding the calling of forensic expert and the court’s permission to the defence to lead such evidence;

(b)  The court’s observations on the perimeter of expert evidence of the Fung Shui experts.

9.With respect, I do not find these as good excuses.  I can deal with the second point first.  Properly understood and in its context, my observations on the relevance of Fung Shui expert evidence cannot be taken as encouragement for the parties to call evidence from non-expert as regards Fung Shui practice.

10.What I tried to convey was that in this trial the court is not adjudicating on the validity of a particular Fung Shui practice, or more precisely, the effectiveness of a Fung Shui will.  Thus it is rather futile for the experts to engage in a debate on whether the making of a Fung Shui will in order to save one’s life has any proper basis in Fung Shui teachings.  The relevant issue in this trial is the intention of the Deceased when she executed the 2006 Will (assuming she did execute it).  If she executed it without intending the same to have any testamentary effect and instead only intending it to be a Fung Shui device, the court will not propound that document for probate.

11.Hence it all depends on the subjective intent on the part of the Deceased.  That in turn depends on what she had been told and what she believed.  If she was willing to believe in a theory about Fung Shui will that was not well supported in Fung Shui teachings or learning, it does not matter.  So long as such belief informed her and led her to execute the 2006 Will without any real testamentary intent, that would be sufficient.

12.By the same token, if the Deceased did not believe in a theory soundly supported by Fung Shui teachings or learning, such a theory is simply irrelevant in the context of this trial.

13.Therefore, the primary focus should always be on the belief and intention of the Deceased.  Unless a particular piece of information had been known to her, it is simply irrelevant.  It is unlikely that the Deceased had been told about the Fung Shui teachings or basis for Fung Shui will in terms of what are now set out in the expert evidence.  On the other hand, if the making of Fung Shui will was prevalent in the Fung Shui circle, it may marginally be relevant.  Given the other evidence tendered by the Plaintiff showing,

(a)  That the Deceased had a strong belief in Fung Shui;

(b)  That she was advised by various Fung Shui masters at different times and acted on their advices,

the court may after hearing all the evidence consider whether it is possible to infer from the prevalence of a practice together with the other evidence surrounding the making of the 2006 Will and its wordings that the practice had been known to and operated upon the Deceased in making such document.

14.That was why this court observed that evidence from the Fung Shui experts on the prevalence of the practice of Fung Shui will may be more useful than a debate on the Fung Shui teachings regarding Fung Shui will.  In general, an expert is qualified to give evidence on the prevalence of a particular practice in his field.

15.On the other hand, it would not be helpful to adduce evidence of an isolated occasion as regards the making of Fung Shui will unless it was known to the Deceased.  Such isolated occasion would not have any bearing on the intent of the Deceased in the execution of the 2006 Will.  An isolated incident cannot be evidence of prevalence of a practice.

16.Thus, my observations in the context of Fung Shui expert evidence cannot be relied upon to support the application.  Further, my observations were made on 23 April 2009.  The Plaintiff did not make the application until 29 May 2009.  Bearing in mind that the Plaintiff already had authority from the witness to disclose his name and occupation as from 18 March 2009, if the real reason for change of stance in adducing such evidence were the observations by this court, one would expect the application would have been made soon after 23 April, at any rate well before the commencement of the trial.

17.As regards the first point, the change in the position on the forensic expert evidence has nothing to do with the Fung Shui will aspect of the case.  Mr Yu said the Plaintiff regarded the Fung Shui will aspect as less significant when the 1^st Defendant indicated that he would not be calling forensic expert.  But the Plaintiff at no stage abandoned the argument based on Fung Shui will.  Insofar as the Plaintiff had always regarded the evidence of Mr Kwok as relevant to the Fung Shui will issue, there was no reason why they would refrain from calling him simply because of the 1^st Defendant’s stance on forensic expert.

18.As a matter of chronology, the Plaintiff had the authorization from Mr Kwok to disclose his name and occupation on 18 March 2009.  The argument on whether and when disclosure should be made took place on 30 March 2009.  At that time, there was no indication from the 1^st Defendant that he would not be calling forensic expert.  I have difficulty in understanding why the Plaintiff decided to withhold disclosure at that stage.  If the evidence is relevant and the Plaintiff wishes to rely on it, they should have given disclosure as soon as practicable after they were authorized to do so.  I must say I am not impressed by the Plaintiff’s solicitor’s pretext of not making the disclosure on 30 March 2009, viz. without any authorization from the witness to disclose his address, a disclosure of his name and occupation would not be good enough.  Whether that is good enough is a matter for this court.  If the Plaintiff were seriously intending to preserve the option of using the evidence of this witness, in my judgment there was no justification for them to withhold the disclosure of the name and occupation on 30 March 2009.  This should have been apparent to litigation solicitors as experienced as those representing the Plaintiff.  This court expects those come to seek indulgence to be frank and candid in any explanation offered in support of an application for relief from sanction.

19.As a matter of timing, it is also difficult to justify the lapse of time between the decision of this court permitting the 1^st Defendant to call forensic expert and the making of this application.  I do not for a moment accept the explanation profferred by Mr Yu that the Plaintiff was waiting for the outcome of application for leave to appeal against my decision.  It behoves a party who intends to make an application of this nature in the midst of a trial to make it promptly.  If the change in the position regarding the forensic evidence were the real reason for prompting the application, it should have been made soon after the trial commenced on 11 May 2009.

20.Whilst I will not decide the application solely on the ground of lack of satisfactory explanation for the change of stance and the delay in making the application, these are relevant matters to be taken into account under Order 2 Rule 5.

Probative value of the proposed evidence

21.In the light of Order 1A Rule 2, in particular Rule 2(2), the probative value of the proposed evidence is an important consideration in this application though it is by no means the only consideration.

22.Though I have invited submissions on admission of similar facts evidence in civil proceedings, one must bear in mind that the present application is not about admissibility of similar facts evidence per se.  It is about whether this court should exercise its discretion to permit the evidence of Mr Kwok to be adduced despite the Plaintiff’s failure to comply with the direction of 30 March 2009.

23.It is perhaps not too germane to decide whether the evidence of Mr Kwok falls under the scope of similar fact evidence.  Mr Yu has tried to emphasize that the Plaintiff is not trying to adduce the evidence as evidence of propensity.  Counsel preferred to refer to the evidence as evidence of commonality.  As I see it, the real question is the probative value of this piece of evidence.

24.Before I discuss the probative value of Mr Kwok’s evidence, I shall briefly summarize the same.  Mr Kwok’s evidence relates to an incident happened in 1991 or 1992 when he was advised by a friend called Charles Chan to do a Fung Shui will for his grandmother-in-law who was seriously ill.  Mr Kwok identified several features in the English Fung Shui will he prepared that were said to be similar to the 2006 Will.  He said Charles Chan told him that the Fung Shui will was meant to be a device to fool the spirits and it had to be burnt in the ceremony.  As such, even though the Fung Shui master (Charles Chan) was nominated to be the beneficiary, it was not meant to have real testamentary effect.  As it happened, Mr Kwok did not nominate Charles Chan as the beneficiary in his draft Fung Shui will.  Instead he named himself as the beneficiary and the Fung Shui will was signed by him on behalf of his grandmother-in-law as well as the two witnesses.  The will was actually burnt up by Mr Kwok and he had not handed it over to Charles Chan.  Hence, Mr Kwok cannot now produce the Fung Shui will prepared by him and he can only recall its contents by his memory.

25.Mr Kwok also tries to relate Charles Chan to the 1^st Defendant.  The following were put forward as connecting Charles Chan with the 1^st Defendant: (1) according to his recollection, the logo of a price list of a Fung Shui company shown to him by Charles Chan was same as the logo of Chun Yip Hing Lung Tong of the 1^st Defendant as shown in the newspaper; (2) a friend called Bally Chan told him Charles Chan was a brother of Tony Chan; (3) Charles Chan claimed that Tony Chan was his half-brother; (4) Mr Kwok made phone calls to a telephone number given to him by Bally Chan and a man called Tony Chan responded and told him that Charles Chan was his brother; (5) when Charles Chan repaid some money to Mr Kwok, he told him that he had to wait for Tony, a C.C. Chan, to transfer money for him. 

26.No matter how one characterizes the evidence of Mr Kwok, it does not relate directly to the events surrounding the present case.  There is no suggestion that the Deceased was aware of this incident mentioned by Mr Kwok at any time prior to her purported execution of the 2006 Will.  Mr Yu submitted that the evidence is relevant to issue B (8) in the Agreed List of Issues, viz. whether the 2006 Will was executed by the Deceased with testamentary intent.

27.First, Mr Yu said the commonality in the wordings of the will drafted by Mr Kwok and the 2006 Will showed that they had a common origin with Fung Shui element behind it.  Second, Mr Yu said Mr Kwok’s evidence of association between Charles Chan and the 1^st Defendant is relevant to show that the 1^st Defendant was aware of the practice of Fung Shui will and despite his denial, the 2006 Will was probably drafted by the 1^st Defendant for Fung Shui purpose. 

28.I will now examine these contentions at greater length.  Though Mr Kwok did identify some similar features between the will drafted by him and the 2006 Will, some of the so-called common features are not that exceptional.  I do not find the first sentence and the reference to making a will for the benefit of family and loved ones to be so remarkable that any useful inference can be drawn therefrom.  Whilst the nomination of a Fung Shui master as a beneficiary and the reference to guidance with God’s help may be more unusual, they are already the subject of expert evidence.  Usually the court will not entertain factual evidence of isolated occasions to corroborate expert evidence.  That is unnecessary and would not be proportionate or conducive to the fair disposal of a matter.

29.As I have said above, the primary question is the intention of the Deceased.  The mere fact that a will of similar wordings had been deployed in the past as a Fung Shui will in an incident with which the Deceased had no connection has little significance.  In the incident recounted by Mr Kwok, the will would not operate as testamentary because, putting aside the fact that it was not even executed by the putative testatrix and not properly witnessed, there was direct evidence on the purpose of the document in the form of advice from Charles Chan.  Thus, the critical factual matrix in that case is that piece of advice instead of the wordings of the document.  Assuming there is another case where a testator somehow comes across a copy of this will and decides to adopt similar wordings into his own will (naming a real beneficiary as opposed to a Fung Shui master) with full testamentary intent, the mere similarities in wordings would not negate the effect of his will.  Ultimately, it all depends on the circumstances leading to the execution of the document and the true relationship between the beneficiary named in the will and the testator.  In the context of this trial, the crucial issue is the real relationship between the 1^st Defendant and the Deceased and I do not think the evidence of commonality in wordings cast much light on it.

30.Mr Chang SC contended the fact that there had been one Fung Shui will increase the probability of the existence of another Fung Shui will.  That may be so.  But as I have been trying to point out, the real issue in this trial is not whether there is such thing as Fung Shui will.  Even if there were no such practice, so long as the Deceased was led to a belief that a Fung Shui will may work and executed the document based on that belief solely for the purpose of restoring her health, the document will not have testamentary effect.

31.However, the evidence of association presented another dimension of potential relevance.  If the evidence is cogent and showed that the 1^st Defendant had real involvement or knowledge of the will of Mr Kwok, it may, coupled with the other evidence to be adduced (including the evidence of commonality between the two documents), support an inference that the 1^st Defendant was the source of the 2006 Will despite his denial.  That may in turn, depending on the cumulative effect with other pieces of evidence, lead to an inference that the 1^st Defendant had told the Deceased to execute the 2006 Will for Fung Shui purpose only, supporting ultimately an inference that she had no testamentary intent in the execution of the 2006 Will.

32.But is the evidence of association cogent? I do not think so.  I do not find the hearsay evidence based on what were said by Charles Chan and Bally Chan to be of much probative value.  Regarding the evidence about the logo and the telephone conversation, at the highest they only show association between Charles Chan and the 1^st Defendant.  They cannot show the 1^st Defendant had involvement or knowledge of the incident relating to the will prepared by Mr Kwok.

The two stage test and case management considerations

33.In Vernon v Bosley [1994] PIQR 337, at P339, Hoffmann LJ (as he then was) said,

“The cardinal principle of admissibility is relevance.  But relevance is always a matter of degree.”

After referring to the low threshold in ordinary adversarial civil litigation, His Lordship continued,

“But there are limits to the extent to which the parties can be allowed free rein.  A party’s right to choose how to present his case may have to be balanced against other legitimate public or private interests.  For example, both the opposing party and the general public have an interest in keeping down the length and cost of litigation.  On this ground, the judge will sometimes rule inadmissible the exploration of side-issues which, though possibly having some potential relevance, do not appear sufficiently relevant to justify the time and expense which would be required to investigate them.”

Then at P340, after referring to similar fact evidence in particular, His Lordship commented,

“It shows that the degree of relevance needed for admissibility is not some fixed point on a scale, but will vary according to the nature of the evidence and in particular the inconvenience, expense, delay or oppression which would attend its reception.  Similar fact evidence is an obvious case in which the prospect of having to investigate collateral issues makes it impossible for the court to take the relaxed attitude to relevance which it would ordinarily prefer.  But there are other situations which may require a similar balancing of relevance against other interests.” 

34.What was said in that judgment was foreshadowed in an article at (1975) 91 LQR 193.  At p.204, the author of that article (none other than Mr Hoffmann, as he then was) examined what lawyers mean when they say the evidence is irrelevant,

“Relevance is of course, not primarily a legal concept.  It involves, as Lord Wilberforce pointed out, a blend of logic and experience.  It is also a question of degree and it is this feature which gives rise to problems of relevance in a legal context.  Lawyers are never concerned with the question of whether one fact is relevant to prove another in an absolute sense; what matters to them is whether it is sufficiently relevant to justify its being heard by the court.”

Then at p.205, after referring to Hollingham v Head (1858) 4 CB (NS) 388, two points were made.

“First, that when a lawyer says that evidence is irrelevant, he does not necessarily mean that it is incapable of having any probative value whatever.  He always means that it is insufficiently relevant.  Secondly, it shows that the degree of relevance needed to qualify for admissibility is not a fixed standard, like a point on some mathematical scale of persuasiveness.  It is a variable standard, the probative value of the evidence being balanced against the disadvantages of receiving it such as taking up a lot of time or causing confusion.” 

35.Counsel referred to O’Brien v Chief Constable of South Wales Police [2005] 2 WLR 1038 as the most recent House of Lords authority on similar fact evidence.  It was decided in that case in civil trial, before the court permits similar fact evidence to be called one must undergo a two stage inquiry.  The first stage is legal admissibility which turns on whether the evidence is relevant in the sense that it is logically probative or disprobative of some matter which requires proof.  The second stage is a case management decision where one must weigh the potential probative value of the evidence against its potential for causing unfair prejudice bearing in mind that the overriding purpose is to promote the ends of justice.  As regards the last rider, Lord Bingham said at p.1042B para.6,

“In deciding whether evidence in a given case should be admitted the judge’s overriding purpose will be to promote the ends of justice.  But the judge must always bear in mind that justice requires not only that the right answer be given but also that it be achieved by a trial process which is fair to all parties.”

36.As regards the second stage, Lord Phillips referred to it as case management based on policy considerations mandated by CPR r 1.2 and 1.4 together with CPR r 32.1.  At para.55 His Lordship referred to similar fact evidence.  Then at para.56, reference was made to evidence relating to collateral matters,

“Equally, when considering whether to admit evidence, or permit cross-examination, on matters that are collateral to the central issues, the judge will have regard to the need for proportionality and expedition.  He will consider whether the evidence in question is likely to be relatively uncontroversial, or whether its admission is likely to create side issues which will unbalance the trial and make it harder to see the wood from the trees.  He will have well in mind the considerations that concerned this House when contemplating the effect of the admission of the disputed evidence in Metropolitan Asylum District Managers v Hill (1882) 47 LT 29.”

37.Lord Phillips discussed the last mentioned case at paras.44 to 46 of the judgment.  The concerns raised by the House in that case, were: (a) as expressed by Lord O’Hagan and Lord Blackburn on keeping trials within a practicable and manageable compass; (b) as expressed by Lord Watson as regards the cogency of the evidence on collateral facts so as not to raise a disproportionate controversy on collateral issues.

38.Mr Yu submitted that because the recommendations of the Working Party on Civil Justice Reform eschewed from the adoption of CPR r 32.1, the second stage in O’Brien is not applicable here and the only test for admissibility of similar fact evidence is whether it is logically probative.

39.With respect, that is not the right approach, at any rate not in the context of the present application.  As I have emphasized, the present application is not an application by the 1^st Defendant to exclude evidence on the ground that it is similar fact evidence.  Rather, it is an application by the Plaintiff for leave to admit evidence which they, by reason of their own deliberate choice, cannot adduce without leave.  Hence, case management considerations must be relevant.  Even though we do not have the equivalent of CPR r 32.1, in dealing with an application under Order 2 Rule 5 this court must take into account of the considerations under Order 1A which are similar to those set out under CPR r 1.2 and 1.4. 

40.Moreover, as it is apparent from the judgment of the House of Lords in O’Brien, the legal basis for the second stage is not CPR r 32.1.  Rather, it is based on the court’s case management power which is inherent in the court’s control over its process and can be traced back to authorities like Metropolitan Asylum District Managers v Hill (1882) 47 LT 29.  The report of the Working Party on Civil Justice Reform also made it clear that even without CPR r 32.1, Hong Kong courts are expected to exercise case management power in accordance with the approach of Hoffmann LJ in Vernon v Bosley [1994] PIQR 337.  I am respectfully of the view that the approach of Hoffmann LJ is entirely consistent with Order 1A.

41.Therefore, I do not agree with Mr Yu’s submission that Fung J was wrong in Choi Chun Ming v Cosco-HIT Terminals HCPI 151 of 2008, 4 May 2009, in adopting the two stage approach of O’Brien.

Collateral facts vis-à-vis collateral evidence

42.At para.46 of the judgment in O’Brien, Lord Phillips set out the correct interpretation of the judgment of Lord Watson in Metropolitan Asylum District Managers v Hill (1882) 47 LT 29 at p.35 on the distinction between collateral facts and principal question in dispute,

“It is the right of the party tendering it to have evidence [having a direct relation to the principal question in dispute] admitted, irrespective of its amount or weight, these remaining for consideration when his case is closed; but I am not prepared to hold that he has the same absolute right when he tenders evidence of facts collateral to the main issue.  In order to entitle him to give such evidence, he must, in the first instance, satisfy the court that the collateral fact which he proposes to prove will, when established, be capable of affording a reasonable presumption or inference as to the matter in dispute; and I am disposed to hold that he is also bound to satisfy the court that the evidence which he is prepared to adduce will be reasonably conclusive, and will not raise a difficult and doubtful controversy of precisely the same kind as that which the jury have to determine.”

43.Lord Phillips said as follows,

“Lord Watson was expressing the opinion that evidence of collateral facts should not be admitted unless the evidence was likely to be reasonably conclusive of the collateral facts.  The collateral facts themselves had merely to raise a ‘reasonable presumption or inference’ as to the matter in dispute to which they were said to be relevant.  More to the point, it seems to me that Lord Watson was contemplating that the trial judge would have a discretion to shut out evidence of collateral facts in the interests of keeping the trial manageable.  He was not propounding an inflexible rule of admissibility.”

44.Hence, a distinction should be drawn between collateral facts and the evidence of collateral facts.  If the evidence of the collateral facts is controversial and inconclusive, once it is admitted, the trial will inevitably be drawn into investigation of disputes which are only remotely relevant to the principal questions.  In the light of the observations of Lord Phillips, I would not adopt as an inflexible rule that evidence of collateral facts must be reasonably conclusive.  However, it must be pertinent to have regard to the cogency of the evidence when the court exercises its case management power.

45.In the present context, the collateral facts that the Plaintiff is seeking to establish through the evidence of Mr Kwok are as follows,

(a)  The 1^st Defendant had knowledge of Fung Shui will and he was therefore in a position to persuade the Deceased to execute such a will;

(b)  The Fung Shui will prepared by Mr Kwok had similar wordings as the 2006 Will. 

46.As far as (b) is concerned, we only have the words of Mr Kwok as evidence and he said his recollection was prompted by newspaper report regarding the 2006 Will.  If his evidence were admitted, there would be collateral investigation into the reliability of his memory, the effect of the lapse of time on his memory and the likelihood of his memory being influenced by what he read in the newspaper.

47.As far as (a) is concerned, the evidence of Mr Kwok cannot prove that directly.  One needs to draw inference based on the scant evidence Mr Kwok can give regarding the association between Charles Chan and the 1^st Defendant.  That would lead to collateral investigation into who is this Charles Chan and where is he at present, where is Bally Chan, the business of the 1^st Defendant in early 1990’s and the probability of a person like Charles Chan having involvement in it, the likelihood of the 1^st Defendant being the person who answered the phone of Mr Kwok and the person who transmitted fund to facilitate repayment by Charles Chan.

48.The investigation of all these side issues takes time in terms of preparation as well as time spent at the trial.  It should not be assumed that the time would only be taken up in terms of cross-examination of Mr Kwok or the 1^st Defendant and his brothers relating to these matters.

49.I have already explained why I do not find the evidence of Mr Kwok to be of much probative value.  Balancing that against the prejudice to the trial and the defence occasioned by these collateral inquiries, I do not think it is fair and proportionate to permit such evidence to be adduced in the middle of the trial.

Order 2 Rule 5 and Order 1A

50.Coming back to Order 2 Rule 5 which, as explained, governs the present application.  I have already alluded to most of the relevant considerations under that rule and it is not necessary for me to repeat what I have said above.  Counsel addressed me on some other matters (e.g. other instances of defaults, effects of default and the granting of relief on each party).  I bear those matters in mind but I shall not repeat each and every point canvassed.  Ultimately it is a balancing exercise and the exercise has to be carried out in a manner giving effect to the underlying objectives in Order 1A rules 1 and 2.

51.I should mention one point urged upon this court by Mr Yu.  It was said that this court granted indulgence to the 1^st Defendant in respect of his application to call the evidence of Mr Westwood and this should be taken into account.  Each application must be considered on its own merits and I do not understand Mr Yu to be contending that the court’s decision on that application should by itself give rise to a legitimate expectation on the part of the Plaintiff that the present application will be granted.  Further, as I have attempted to demonstrate, I do not think the change of stance on the part of the 1^st Defendant regarding forensic expert provides justification for the present application.

52.As regards the other instances of defaults on the part of the Plaintiff, I would not reject the application on that ground alone.  However, it is fair to say the continuous belated disclosure of documents by the Plaintiff in the course of the trial has added to the burden of those representing the 1^st Defendant when they should be focusing on cross-examining the Plaintiff’s witnesses.  Whilst the court appreciates that even with the most diligent preparation, there would still be rooms for surprises in the trial process, unexpected distractions (which by itself is a form of prejudice) should be kept to a minimum.  The evidence of Mr Kwok is yet another distraction which, for reasons explained, is also unhelpful to the fair and proportionate disposal of the case.

53.Mr Yu drew the court’s attention to the quasi-inquisitorial nature of the probate action and the public interest in terms of the status of the Plaintiff as a charity.  I take these factors into account.  However, I do not think they provide a justification for the court to take a different approach from the one that I have discussed.

54.Having considered all the matters urged upon me and the relevant circumstances, and having regard to the underlying objectives set out in Order 1A, I conclude that leave should not be granted to relieve the Plaintiff from the consequence of their non-compliance with my directions of 30 March 2009.  Hence, the evidence of Mr Kwok will not be admitted.

Mr Denis Chang, SC, Mr Lawrence Lok, SC, Mr Johnny Ma and Mr Jeremy Chan, instructed by Messrs Wilkinson & Grist, for the Plaintiff

Mr Ian Mill, QC, Mr Edward Chan, SC, Mr Jonathan Harris, SC & Miss Frances Lok, instructed by Messrs Haldanes, for the 1^st Defendant

Ms Cecilia Siu, SGC (Ag), of the Department of Justice, for the 2^nd Defendant (watching brief)