Chiu Man Fu and Others v. Chiu Chung Kwan Ying

HCAP9/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 9 OF 2005

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Before : Hon Poon J in Court

Date of Hearing : 30 March 2011

Date of Ruling : 31 March 2011

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R U L I N G

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1.This is the defendant’s application to expunge the 3^rd supplementary report of Professor Tomlinson dated 22 March 2011.

2.Professor Tomlinson’s 3^rd supplementary report was purportedly filed pursuant to my direction that the experts should file a latest round of reports to update their views on the Deceased’s testamentary capacity in light of the evidence disclosed in the supplementary witness statement of Dr Stephen Ng and the witness statement of Dr Bell Tse, which were not available when they last prepared their reports.

3.In his 3^rd supplementary report, Professor Tomlinson did not address the evidence contained in Dr Ng’s or Dr Tse’s witness statements.  Instead, he took the opportunity to describe the side effects of the drugs taken by the Deceased at the time when he gave instructions for and execution of the 2003 Will.  In particular, he dealt with the side-effects of long-term benzodiazepine use in para.6.  He also commented on the possible cause of the Deceased’s death in paras.18 to 20, which Mr Sarony is content to leave out.

4.Mr Sarony readily accepted that leave ought to have been obtained for the filing of the 3^rd supplementary report. His concession must be right because the report goes well beyond what is permitted by my direction.  My direction, which provided the experts the opportunity to update their views on the Deceased’s testamentary capacity, did not give them the liberty to supplement their earlier reports or, worse still, to raise any new matter as they saw fit.

5.Mr Sarony submitted that the 3^rd supplementary report merely sought to expand on the side effects of the long term use of benzodiazepines on cognitive function, a point which Professor Tomlinson has already alluded to in his earlier reports.  I have gone through his earlier reports which care again.  On the side effects of the medications taken by the Deceased, what Professor Tomlinson said, in essence, is that he was taking multiple medications including psychotropic medications which could affect his cognitive function during April 2003.  He did not express any opinion as to the side effects of the long term use of the medications including benzodiazepines. Contrary to Mr Sarony’s submission, Professor Tomlinson is trying to raise a new point altogether in his 3^rd supplementary report.

6.In my view, absence any strong and cogent reasons, and I mean really strong and cogent reasons, the court will not allow a party to raise through his expert in the course of trial a new point not taken before. And the circumstances where the court is satisfied such reasons exist must be rare.  Mr Sarony explained it was he who asked Professor Tomlinson to specifically deal with the side effect of long term use of benzodiazepines. This explanation is hardly satisfactory.  The side effects of the medications taken by the Deceased have been in issue between the experts right from the outset.  I fail to see how Professor Tomlinson would have previously failed to focus his mind on the possible side effects arising from long term use of benzodiazepines.   For this reason alone, the 3^rd supplementary report must be expunged. Another reason why it must be expunged, as I will demonstrate, is the huge disruption caused to the trial.

7.Let’s for completeness assume that Professor Tomlinson is expanding what he has previously said. He disclosed for the first time in para.6 of his 3^rd supplementary report the source materials that he sought to rely on.  But the source materials are in fact two articles published in 2004.  I fail to see why he has not disclosed them until now.  There is no explanation for such failure at all.  Further, the views expressed in the two articles are, to say the least, debatable.  If he is allowed to make use of the articles, then the trial must be adjourned to enable the defendant’s expert, Dr Tang Siu Wa, to consider the matters carefully and come up with his own report in response.  This will mean a huge disruption to the trial, which is, for various reasons, already overrunning.  Without the 3^rd supplementary report, we may well be able to finish Professor Tomlinson’s evidence today.  If his 3^rd supplementary report is allowed to be used, then the trial will be adjourned now.  Almost two days will be wasted.  And with a new report from Dr Tang, and a possible report in reply from Professor Tomlinson, there is a real possibility that the time reserved for the part-heard in July may not be sufficient.  Plainly, that is most undesirable.

8.Mr Sarony submitted that if the court expunges the 3^rd supplementary report, it will be deprived of relevant materials and it should not be blinkered in such a way.  With respect, I disagree.  In our civil justice system, it is the parties who must carefully and thoroughly prepare their case for trial.  If a party has failed to do so, and if after carefully considering all the circumstances, the court thinks that in the overall justice of the case, it should decline to grant him indulgence to make good his slip, he must then bear all the consequences.

9.For the above reasons, I order that the 3^rd supplementary report of Professor Tomlinson be expunged.

Mr Neville Sarony, SC, leading Mr Nelson L. Miu and Ms Angel Lau,  instructed by Messrs Hui & Lam, assigned by Director of Legal Aid, or the Plaintiffs

Mr Benjamin Yu, SC and Mr Johnny Mok, SC, leading Mr Kestrel Lam  and Ms Doris Li, instructed by Messrs C.O. Chan & Co., for the Defendant