Choy Po Chun and Another v. Au Wing Lun

HCAP 7/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 7 OF 2010

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REASONS FOR DECISION

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Introduction

1.There were 4 applications:

(a) the defendant’s application to set aside the interrogatories served earlier by the plaintiffs (“the set aside application”);

(b) the defendant’s application for an order that unless the plaintiffs file and serve their expert report on the deceased’s mental capacity within a prescribed period, they be barred from adducing such expert evidence at trial (“the unless order application”);

(c) the plaintiffs’ application to strike out and/or expunge the defendant’s expert report on the deceased’s mental capacity (“the strike out application”);

(d) the defendant’s application for leave to adduce expert evidence on the deceased’s physical ability (“the expert evidence application”).

2.At the end of the hearing, the following orders were made:

(1) the plaintiffs’ interrogatories were set aside;

(2) an order was made in terms of the unless order application (but 28 days, instead of 14 days, were given to the plaintiffs);

(3) the strike out application was dismissed;

(4) the expert evidence application was dismissed.

The reasons for the above are set out below.

Background

3.The parties are the close relatives of the late Mr Au Kong Tim, who passed away in July 2009 (“the dec’d”). The plaintiffs (the dec’d’s daughter-in-law and grandson) commenced this action in March 2010 alleging that they are the executors appointed by (and one of them is one of the beneficiaries named in) an English will made by the dec’d in July 2002 (“the plaintiffs’ 2002 will”).

4.The defendant (the dec’d’s son), on the other hand, alleges that he is one of the executors appointed by (and one of the beneficiaries named in) a Chinese will made by the dec’d in September 2008 (“the defendant’s 2008 will”).

5.The parties further allege that the will relied upon by the opposite side is a forgery and does not evidence the dec’d’s testamentary intention.  Further, the plaintiffs allege that the dec’d was physically incapable of signing any documents by the time of the defendant’s 2008 will.

The set aside application

6.It is part of the defendant’s case the defendant’s 2008 will was witnessed by two solicitors, a Mr Yeung (“Yeung”) and a Mr Lau (“Lau”).

7.Relying on RHC Ord 26 rr 1(1), 2(1)(c) and 3(1), the plaintiffs served interrogatories on the defendant on 6 January 2015.  Although the defendant was the party served, the plaintiffs intend that the interrogatories are to be answered by the two solicitors themselves by making and filing an affidavit (or affirmation).

8.Two grounds of objection have been put forth by the defendant:

(a) the statute does not provide for potential witnesses themselves to be compelled to answer interrogatories by affidavit;

(b) in any event, the interrogatories served by the plaintiffs are objectionable because they cover matters which ought to be matters of evidence and/or matters for cross-examination.

9.As regards para 8(a) above, the plaintiffs relied heavily on Ord 26 r 2(1)(c) the relevant parts of which read:

“Where interrogatories are served, a note at the end of the interrogatories shall specify … where the interrogatories … are required to be answered by an agent … of a party, which of the interrogatories … an agent … is required to answer, … which agent … ” (emphasis supplied).

10.The plaintiffs argue that the above language shows that a party’s agent can be compelled to answer interrogatories.  For the reasons set out below, I disagree with the argument.

11.First, Ord 26 r 1(1) stipulates that interrogatories have to be served on parties, not witnesses or other third parties.  The duty to answer interrogatories is provided for by Ord 26 r 2(2):

“a party on whom interrogatories are served shall, … be required to give within the period specified under paragraph (1)(a) answers, … be on affidavit” (emphasis supplied).

12.That the duty to answer interrogatories lies with parties, not witnesses or other third parties can also be discerned from the language used by Ord 26 rr 5(2), 5(3), 6(1) and 6(2).  In addition, Atkin’s Encyclopaedia of Court Forms in Civil Proceedings (1968) 2^nd Ed, Vol 22, para 8, text to nn, d, f, g and h, said:

“It is the duty of the party answering to answer … to the point of substance … he must answer to the best of his knowledge, information and belief. … a party must always use such means of knowledge as are reasonably available to him in order to answer … For example, where the matters inquired into are such as would be known to the party’s servants or agents in the ordinary course of their employment, he must make inquires of them and give the result of his inquiries. He is not, however, bound to inquire of persons who are no longer his servants or agents or under his control … ” (p 375 thereof).

(see similar comments in Atkin’s Court Forms (1980), Vol 22, para 8, text to nn p and q (pp 460-1 thereof))

13.Interrogatories have been replaced in England by “information requests” (Part 18, Civil Procedure Rules).  Comments similar to those quoted in para 12 above have been made in relation thereto in Atkin’s Court Forms (2014) 2^nd Ed, Vol 15, para 87, text to n 2 (p 308 thereof).

14.The precedent form is also consistent with such a conclusion; see, for example, Atkin’s Court Forms (1996) 2^nd Ed, Vol 22(1), Forms 4 (p 532 thereof).

15.In view of the above, I agreed with the defendant and disagreed with the plaintiffs regarding the above first ground (para 8(a) above).

16.I also agreed with the defendant regarding the above second ground (para 8(b)).

17.Interrogatories must be necessary either:

(1) for disposing fairly of the cause or matter; or

(2) for saving costs.

(Ord 26 r 1(1))  The authors of Hong Kong Civil Procedure 2015, Vol 1, further commented:

(a) interrogatories which relate solely to credit are not allowed: para 26/4/6 thereof;

(b) “fishing interrogatories” are not allowed: para 26/4/9 thereof;

(c) (more directly related to Ord 26 r 1(1)) it could not be necessary to interrogate to obtain information or admissions which were or were likely to be contained in pleadings, medical reports, discoverable documents or witness statements unless, exceptionally, a clear litigious purpose would be served by obtaining such information or admissions on affidavit: para 26/4/11 thereof.

It is common nowadays for witness statements to be served (with directions that they stand as evidence-in-chief at trial).  Consequently, the relatively narrow compass within which it is appropriate to serve interrogatories may be a reason for the increased rarity in more recent times for them to be served.

18.A quick glance of the interrogatories will show that they are either subject-matters for cross-examination on credibility, or, worse still, irrelevant.

19.Examples of the earlier category are purported interrogatories like:

“If you believed [the dec’d] was [the defendant’s] father, did it occur to you that he must be an old man?” (Yeung request No 15);

“… did you ask [the defendant] to provide evidence to prove [the dec’d] was ‘精神狀況良好’?” (Yeung request No 18; Lau request No 19);

“Were you misled by [the defendant] that you were providing legal service to him?” (Yeung request No 25);

“What is the meaning of ‘參扶’? Please clarify:” (Yeung request No 55; Lau request No 44);

“Please describe in more detail how did [the dec’d] sign the [the defendant’s 2008 will]” (Yeung request No 56; Lau request No 45).

20.Examples of the latter category are purported interrogatories like:

“… what is the relevance of your suggestion that you had been providing pro bono legal services … ” (Yeung request No 1);

“Did you actually believe [the defendant] was Ada Wong’s husband? If the answer is [affirmative], what was the basis of your belief? If the answer is [negative], why did you not correct Ada Wong what she said she wanted to ‘代她丈夫處理一些法律文書’ ?” (Yeung request No 6; partly the same as Lau request No 2);

“Is it your firm’s practice to take instructions from other people rather than the one who needs legal service?” (Yeung request No 10; Lau request No 7);

“Did you actually believe what [the defendant] said when he told you that [the dec’d] was his father? … ” (Yeung request No 13; Lau request No 10);

“… Is that your firm’s standard practice of taking instructions from other person(s) rather than the testator in preparing a draft Will?” (Yeung request No 29; Lau request No 21);

“Please describe the setting (layout) of Lord Kindness Elderly Care and Rehabilitation Centre” (Yeung request No 35; Lau request No 27).

The unless order application

21.Besides asserting that they have encountered difficulties in ascertaining and/or locating the doctors who treated the dec’d (and which the plaintiffs intended to call as expert witnesses), no other explanation has been given by them for failing to comply with the expert evidence direction (ordered as early as in December 2014).

22.I did (and do) not consider the assertion set out in para 21 above to be a satisfactory reason for opposing the unless order application.  Accordingly, an “unless” order was made giving the plaintiffs in effect another 28 days to comply with the said direction.

The strike out application

23.The plaintiffs sought to strike out/expunge the defendant’s expert report (“the Singer report”) on the following grounds:

(1) the Singer report is irrelevant and/or of no probative value;

(2) the psychiatrist has acted in breach of an expert’s code of conduct by failing to act independently and by acting as the defendant’s advocate.

These grounds will be discussed in turn below.  It should be noted that the Singer report is a document of about 80 pages long.

24.Below is a summary of how the Singer report was structured:

(a) the relevant parts of the dec’d’s medical records/documents from the defendant’s solicitors are set out, followed by the psychiatrist’s own comments or remarks (total 20 pages);

(b) the relevant parts of the affirmations or witness statements from the defendant’s solicitors, followed by the psychiatrist’s own comments or remarks (total 29 pages);

(c) the psychiatrist made an assessment of the dec’d’s mental capacity by relying on parts of Assessment of Mental Capacity — A Practical Guide for Doctors and Lawyers 3^rd Ed (the book was made available by the defendant’s solicitors) (total 8 pages);

(d) the psychiatrist’s comments on some provisions of the Mental Health Ordinance (Cap 136) (total 2 pages);

(e) the psychiatrist’s comments on parts of the plaintiffs’ written submissions dated 11 December 2014 (“the plaintiffs’ Dec 2014 submissions”) (total 10 pages);

(f) a summary of the psychiatrist’s conclusions (total 3 pages).

25.Below is the gist of the plaintiffs’ criticisms of the Singer report put forth in support of this application:

(1) the fundamental scientific knowledge and expertise of the psychiatrist has not been stated, for example, stating the medical definition of “mental capacity”, the medical definition of “dementia” (and its symptoms);

(2) the psychiatrist has assumed the role of the defendant’s advocate:

(a) he relied on reference materials provided by the defendant’s solicitors;

(b) he commented on Cap 136 and the plaintiffs’ Dec 2014 submissions.  In relation to the former, the definition of “mental capacity” is different from testamentary capacity in probate.  In relation to the latter, the psychiatrist has travelled beyond his scope of expertise and assumed the role of the defendant’s advocate.

26.I found none of the above criticisms to be able to justify the order sought by the plaintiffs.  They may constitute materials for cross-examining the psychiatrist; but irrespective of whether that is in fact the case, it still does not justify the strike out or expunge of the Singer report because the criteria for doing so (summarized in para 23 above) have not been met.

27.In relation to para 25(1) above, the way in which an expert sets out his or her report is (save in exceptional situations which do not arise here) a matter for the expert.

28.What the psychiatrist has done here is to consider the dec’d’s behaviour (whether his speech, conduct or lifestyle) put forth by the plaintiffs as symptoms (or evidence) of lack of mental capacity on the dec’d’s part.  I did (and do) not find anything wrong with this approach. It should also be noted, in this connection, the psychiatrist apparently began from the medical assumption that everyone is presumed to be sane unless shown to be not sane.  In relation to “mental capacity”, it is unknown (because there is no such evidence) whether there is such a concept in medicine (independently of, say, Cap 136 and/or other laws).

29.In relation to para 25(2)(a) above, the source from which a reference book came is not per se a ground for concluding that the reference book should not be relied on.

30.In relation to para 25(2)(b) above, there is nothing inherently wrong for an expert to refer to Cap 136.  After all, that is the statute which provides (among other things) for a scheme for people who may lack mental capacity within the meaning of Cap 136, and medical doctors (especially psychiatrists) are often invited to comment on this kind of cases.  A medical expert who is also an approved mental disorder specialist cannot be faulted for making reference to Cap 136.  This of course does not bar the plaintiffs from challenging the matter at trial by cross-examination and/or legal submissions.

31.As regards the allegation that the psychiatrist has travelled beyond the scope of expertise and assumed the role of an advocate (see para 23(2) and 24(e) above), the psychiatrist was merely responding to criticisms levied against him in the plaintiffs’ Dec 2014 submissions. It is only fair and proper for the expert to set out his response thereto in writing thereby giving the plaintiffs advanced notice of the same.  The plaintiffs’ allegation has no substance.

32.By reason of the above matters, this application to strike out/expunge the Singer report should be (and was) dismissed.

33.There was another part of this summons which was in substance unopposed (for valid reasons).  There is no need to discuss that part here.

The expert evidence application

34.The defendant argued that leave to adduce expert evidence should be given.  One of the factual disputes in this action is whether the dec’d could sign on the defendant’s 2008 will (the plaintiffs contend that he could not whereas the defendant contends otherwise).

35.In view of the witness statements already filed, it is expected that at least some of the witnesses will testify they have seen the dec’d before, and at the time of, the defendant’s 2008 will.  Those testifying for the plaintiffs are expected to testify that the dec’d could no longer write or sign by then, whereas those testifying for the defendant are expected to testify to the contrary.

36.The dec’d has undergone burr-hole drainage operation by the time of the defendant’s 2008 will.  The defendant intends to obtain expert opinion from a medical practitioner as to the effect of such an operation on the physical ability of a patient.

37.The defendant has not put forth a case that such an operation will invariably have no effect on a patient.  This is understandable because it can confidently be expected that a medical practitioner will say that whether or not such an operation will cause physical inability will vary from case to case.

38.This is especially so when:

(1) factual witnesses who will testify for the respective party are going to give contradictory factual versions about this;

(2) whether or not there was adverse effect on the dec’d’s physical ability since the operation (and if so, what the aftermath was) has not been mentioned expressly, or specifically, in the dec’d’s medical records.

39.For the above reasons, I dismissed this application.

Other matters

40.The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the reasons for decision and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

Mr Kevin Li, instructed by Y T Tong & Co, for the plaintiffs

Mr Kenneth Lam, instructed by Simon Chan & Co, for the defendant