ANGELA CHEN v. WAI WAI CHEN

HCAP 10/2020

[2025] HKCFI 1615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 10 OF 2020

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D E C I S I O N

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INTRODUCTION

1.  This probate action concerns the estate of the late Madam Yang Foo-Oi. The two protagonists are her two daughters, Angela and Vivien, the plaintiff and the defendant, respectively.

2.  Angela seeks to propound the will executed by her mother on 15 February 2008 (“the 2008 will”) which left all of the mother’s assets to Angela and appointed her as the sole executrix.

3.  Vivien, on the other hand, seeks to propound an earlier will made by the mother dated 27 October 2004 (“the 2004 will”) under which there would be an equal division of assets between the two daughters, and Vivien would be appointed as a co-executrix.

4.  Apart from the 2004 will and the 2008 will, there are three other testamentary dispositions dated 11 April 2005, 3 December 2005 and 2 December 2007. I shall call them “the 2005 codicils” and “the 2007 codicil” below.

5.  The mother passed away in February 2020. Angela commenced the present action about one month later. The case was assigned to Mr Justice Wilson Chan. At the first case management conference in April 2023, the judge gave a series of directions concerning, among other things, amended pleadings. Leave was granted to set the case down for a 30-day trial commencing on 2 September this year.

Bases of Vivien’s adjournment application

6.  Before the court today is Vivien’s application taken out by summons dated 2 December 2024 to adjourn the trial. Vivien puts forward two bases in support of the adjournment application.

7.  The primary basis is that there are outstanding appeals and outstanding leave to appeal applications, which are all yet to be heard or dealt with by the Court of Appeal. The outcome of these appeals and leave applications, Vivien contends, would have a significant impact upon the evidential scope and the conduct of the trial. These two appeals are CACV 305/2024 and CACV 313/2024. The two leave applications are made in CAMP 143/2024 and CAMP 144/2024.

8.  As things stand now, Vivien says it is uncertain when the appeals and, if leave is granted in the two CAMP proceedings, the further appeals will be heard by the Court of Appeal. It is virtually impossible that they will all be heard and decided before 2 September this year.

9.  With the appeals and the leave applications pending and outstanding, it is Vivien’s submission that a fair trial for the just resolution of the parties’ disputes and ascertaining the mother’s true and last testamentary wish would not be possible if the trial were to proceed as currently scheduled.

10.  The second basis put forward in support of the adjournment application is that the case is not ready for trial as there are a number of interlocutory applications taken out by Vivien just this week. They were all taken out within the extended deadline granted by the court. It is unrealistic to expect that these interlocutory applications can be dealt with in time for the trial. Further, Vivien says that the original estimate of 30 days is plainly inadequate. For this reason, Vivien also says that the trial should be adjourned and be re-fixed.

Angela’s grounds of opposition

11.  Angela opposes the adjournment. Her main contention is twofold.

12.  First, it is incumbent upon Vivien to act with diligence and procure a decision from the Court of Appeal overturning the interlocutory decisions by which she is aggrieved ahead of the trial. The simple fact here is that Vivien has failed to procure the Court of Appeal to overturn these decisions in time, and the trial must proceed.

13.  Second, Angela says that the adjournment application is an undisguised attempt to put off what Vivien obviously perceives to be “the evil day”. Vivien has been trying to raise every issue under the sun. Every point has been taken at every step of the action. Angela says that Vivien’s strategy is to generate as many interlocutory hurdles as possible to topple the timetable and milestone dates, and frustrate the scheduled trial in order to delay and deny Angela’s rightful claim to the mother’s estate. But that is all the more reason why the trial should continue as scheduled, and this dispute be resolved without further delay and further drain of the court’s resources.

The test is “exceptional circumstances”

14.  Trial dates are milestone dates. The court is not to vary such milestone dates unless there are exceptional circumstances: see Order 25, rule 1B(3), Practice Direction 5.2, para 42.

15.  In this application, the burden is squarely on Vivien to make out the exceptional circumstances to justify the moving of the trial dates.

THE OUTSTANDING APPEALS AND THE OUTSTANDING LEAVE APPLICATIONS

16.  The two outstanding appeals and the two outstanding leave to appeal applications have arisen from three interlocutory applications made by Vivien on 4 September 2020, 17 February 2023 and 30 August 2023, respectively.

17.  The first application was a third-party discovery application against Wong Shum & Co, which was the firm that prepared the 2008 will. Mr Wong Tak Shing, a partner of the firm, prepared and attested to the will. Vivien sought documents concerning the preparation of the 2008 will and the preparation of a statutory declaration made by Mr Wong dated 19 November 2014 in relation to the preparation of the 2008 will. It was dismissed by Mr Justice Chan on 20 August 2021: see [2021] HKCFI 2436.

18.  On 3 September 2021, Vivien applied for leave to appeal.

19.  On 19 July 2024, the judge dismissed the leave application: see [2024] HKCFI 1847.

20.  The renewed leave application to the Court of Appeal was lodged on 30 July 2024. That is the subject matter of CAMP 143/2024.

21.  I should add a footnote here. There is a long gap between the date of the leave application and the date of the decision. This came about as when the leave application was issued, Vivien asked the judge to adjourn it until further notice. It was only in 2024 that Vivien invited the judge to rule on it together with another leave application.

22.  The second application was a specific discovery application against Angela seeking documents concerning the preparation and drafting of the 2008 will and its related documents, the statutory declaration of Mr Wong and the 2005 codicils. It was dismissed by Mr Justice Chan on 12 April 2024: see [2024] HKCFI 962.

23.  On 26 April 2024, Vivien applied for leave to appeal.

24.  On 19 July 2024, the judge granted leave to Vivien to appeal on three grounds, which raise the issue of whether Angela is entitled to assert the legal professional privilege belonging to the estate against Vivien in this probate action. This becomes the subject matter of the appeal in CACV 305/2024. I shall call it “the discovery appeal”. The notice of appeal for this appeal was lodged on 30 July 2024.

25.  In the same decision, the judge refused leave on the remaining grounds. The renewed leave application was made to the Court of Appeal on 2 August 2024. This is the subject matter of CAMP 144/2024.

26.  The third application was an application to amend the rejoinder to respond to pleas made by Angela on certain matters which happened after the making of the 2008 will. These matters have been referred to as “the Post-Will Acts” in these proceedings. I shall call this “the rejoinder application”.

27.  The amendments were refused by the judge at the conclusion of the hearing on 19 March 2024, with reasons to be handed down later. The judge also made an order that time be extended for Vivien to take out any application for leave to appeal within 14 days after the delivery of the reasons and time for any notice of appeal (if leave is not required) be extended to also 14 days after the delivery of the reasons.

28.  Reasons were handed down on 19 July 2024: see [2024] HKCFI 1837. The notice of appeal was lodged on 2 August 2024. I shall call this “the rejoinder appeal”. This is the subject matter of CACV 313/2024.

29.  I should add a further footnote here. On 19 August 2024, the judge made a direction to the effect that no leave was required for the rejoinder appeal.

DISCUSSION

30.  The trial dates were fixed in April 2023 when the interlocutory steps were not yet completed. Parties were at the stage of seeking leave to make substantial amendments to pleadings. (The rejoinder application was in fact taken out after the CMC.) Expert directions were not yet given. Witness statements were not yet exchanged.

31.  In that case, the expectation must have been that the parties and the court should progress with the action in such a way to meet the trial dates. When considering the timing for any interlocutory step which they wish to take, they should work backwards from the trial dates in order to accommodate all the steps required within the timeframe. They should proceed with diligence to make sure that everything that needs to be done before the trial are done so that the trial can take place on the scheduled dates.

The approach

32.  Vivien has taken out a number of interlocutory applications in this action which have failed. In this regard, I accept the submission made on behalf of Angela by Mr Benjamin Yu, SC who appears with Mr Bernard Man, SC and Mr Danny Tang, that if Vivien wishes to reverse the unfavourable result in these interlocutory applications, it is incumbent on her to proceed diligently with the appeals and the leave applications and secure a reversal of the unfavourable results before the trial.

33.  However, it is the further submission of Mr Yu that if Vivien fails to secure the reversal before the trial, including a situation where the appeals cannot be heard before the trial, then she cannot rely on the contingency that she may be successful in the appeals to disturb a milestone date, and the trial must proceed.

34.  Insofar as this is supposed to work as an absolute rule, I would reject that submission as overly rigid and mechanistic.

35.  In my view, in the present case, if the appeals are bona fide appeals and are being genuinely pursued by Vivien with reasonable diligence, and if the appeals if successful would have a material or considerable impact on the trial, including the scope of the evidence and the scope of the issues in dispute, and if it is not possible for the appeals to be dealt with before the trial, I would consider that that would arguably amount to exceptional circumstances which would justify the re-fixing of the trial dates. In such circumstances, to require Vivien to proceed with the trial without her appeals being determined would not be fair and would not lead to a just resolution of the disputes in accordance with the substantive rights of the parties.

Has Vivien prosecuted the appeals etc with reasonable diligence?

36.  In considering whether Vivien has acted with diligence in this action, it is proper to look at how she had conducted herself with reference to two periods of time – the first period being the time before August 2024, and the second period starting from August 2024 onwards.

37.  I choose August 2024 as a reference point because this is when all her interlocutory steps before the first instance judge had been completed, and that is when she commenced the appeals and the leave applications at the Court of Appeal level.

38.  In respect of the first period, there is no suggestion that there was any delay in the taking out of the interlocutory applications or in the pursuit of those applications.

39.  I have set out the chronology with respect to the three interlocutory applications in detail above. It can be seen that all the leave to appeal applications were made within the time limits imposed by our rules. All the appeals and renewed leave applications were also lodged within time. I think it can objectively be said that Vivien has prosecuted her interlocutory applications and appeals with reasonable dispatch.

40.  As for the second period, this is when the parties started the correspondence with the Registrar of Civil Appeals with a view to fixing dates for Vivien’s appeals and leave applications.

41.  On the materials before me, I am equally satisfied that Vivien has prosecuted the appeals with reasonable diligence. To illustrate this point, it is necessary to look closely at the timeline of the communication between the parties’ solicitors and the Registrar and to extract some parts of the correspondence in this decision.

42.  The first important letter is the one written by Vivien’s solicitors dated 23 August 2024 with respect to the discovery appeal and the two discovery leave to appeal applications. Paras 2 and 9 of that letter are material and I quote them below:

“2. We write primarily in relation to the Discovery Appeal and the 1^st and 2^nd Discovery Leave Applications (collectively, “the Applications”), to set out the unusual listing considerations in relation to the same and invite the Court to exercise its case management powers under Order 1B, rule 1 to give specific directions as appear best adapted to secure the just, expeditious and economical disposal of the same.” (underline added)

“9. We would also point out that the trial is fixed for September 2025 (presently with 30 days reserved), and that accordingly it is desirable that the Discovery Appeal and the Applications should be determined in sufficient time for the parties to be able to marshall the relevant documents and evidence in time for the trial, and to be aware of the appropriate limits or otherwise on cross examination.” (underline added)

43.  Five days later, the Registrar wrote to the parties directing them to submit a joint letter with regard to a number of matters. The joint letter was sent on 10 September 2024, the deadline imposed by the Registrar. In response, on 23 September 2024, the Registrar gave further directions and requested for another joint letter to be submitted in which the parties should propose directions for “global management” of the two outstanding appeals and the two outstanding leave applications.

44.  A joint letter was sent on 14 October 2024, the deadline set by the Registrar. I quote below para 7 which sets out Angela’s position:

“… Further, in view of the commencement of the trial in September 2025, there is every reason for the two sets of appeals to be determined expeditiously so that there is clarity on discovery and the respective parties’ pleaded positions well in advance to allow parties to properly prepare for the trial, and to prevent any derailment of the trial.”

45.  On 7 November 2024, the Registrar directed that the leave applications be heard on a rolled-up basis, and the two appeals and the two rolled-up leave applications all be heard at the same time.

46.  This was then followed by a number of steps, including those in respect of two new evidence applications taken out by Vivien, the preparation of appeal bundles, the filing of an application to fix a date for the appeal and the filing of a joint checklist. The joint checklist once again referred to the September 2025 trial dates.

47.  Then, on 13 February 2025, the Registrar gave the following directions:

“7. Hearing of the consolidated appeals shall be fixed before any division of the Court of Appeal comprising 3 judges, with 2 days reserved. The dates are to be fixed in consultation with the diaries of no more than 1 leading counsel of each party provided that the appeal hearing shall not be delayed for more than 3 months.” (original underline)

48.  At the end of that written direction, it said:

“For the purpose of compliance of paragraph 7 of the directions hereinabove, please provide me on or before 20 February 2025 with the available dates for your leading counsel for the period from July to December 2025, and send your representative to attend the office of Deputy Clerk of Court (Appeals) ... on 21 February 2025 (Friday) at 3:00 pm for fixing a hearing date of the appeal. …” (original underline and bold)

49.  Upon receiving this letter, on 19 February 2025, Angela’s solicitors wrote back to the Registrar highlighting once again the September 2025 trial dates and pointing out the urgency of the matter, and indicated that they would provide the Registrar with available dates from April 2025 onwards.

50.  On the same day, Vivien’s solicitors did the same thing and wrote:

“The trial for HCAP 10 of 2020 is currently scheduled to commence on 2 September 2025. To help ensure that the appeals are heard well in advance of trial commencement, we will be inviting the Court to fix the hearing of the captioned appeals on available dates starting from April 2025.”

51.  The appeal dates were eventually fixed for 29 and 30 July 2025.

52.  Then, by letter dated 18 March 2025 to the parties, the Court of Appeal, namely Mr Justices Barma, Au and Chow, stated that the listing directions given have caused the court “considerable concerns”, querying:

(1)  whether a two-day hearing would be realistic to deal with all the matters;

(2)  whether it would be realistic or practicable for the same to be resolved or a reasoned judgment given prior to the start date of the trial, given the complexity of the matters to be determined; and

(3)  whether, even if that were possible, it would be practicable for the trial to proceed depending on the outcome of the appeals and the applications.

53.  The latest development is that last week, on 27 March, at a mention hearing before the Court of Appeal, it was directed that the hearing dates of 29 and 30 July 2025 be vacated. No new dates were given. The leave applications were directed to be dealt with on paper, together with the related new evidence applications. The due date for the last round of written submissions for that would be in early May. The Court of Appeal also indicated that it would give directions for the conduct of the appeals after the determination of the leave applications.

54.  I recite the above chronology to show that in what I have referred to as the second period, ie from August 2024 onwards, Vivien’s solicitors have taken reasonable steps to prosecute the appeals and the leave applications. The solicitors for both parties had in fact alerted the Registrar a number of times to the trial dates in September 2025, and impressed upon him in unequivocal terms a number of times that there should be an early date for the appeals and the leave applications.

55.  Given that, I am satisfied that Vivien has indeed been prosecuting the appeals with reasonable dispatch.

56.  Mr Yu, on behalf of Angela, complains that Vivien should have sought directions under para 24 of Practice Direction 4.1 for the appeals to be heard urgently. She did not do so. Having failed to do so, the trial must proceed.

57.  I do not consider that complaint to be well founded.

58.  In the correspondence from August 2024 onwards, it has been consistently and persistently made clear to the Registrar that the appeals should be heard in time before the September trial. The message has been unmistakable that the appeals should be dealt with on an expedited basis. The fact that the procedure under para 24 of Practice Direction 4.1 was not followed does not detract from the fact that in substance the Registrar had been alerted to the need for expedition.

59.  At this juncture, I should point out that Vivien first made the suggestion that the trial be vacated on 19 November 2024. The present summons was taken out on 2 December 2024.

60.  In the circumstances where the request of securing early dates for the appeals might not be entertained, it was reasonable for Vivien to consider other options with respect to the trial and the appeals.

61.  In fact, the materials before me do show that Vivien and her solicitors have been doing two things in parallel from November 2024 onwards. On the one hand, they were trying to secure an early appeal date from the Registrar. On the other hand, they were exploring the possibility of vacating the trial in order to deal with the situation.

Is Vivien making use of the interlocutory applications to delay the trial?

62.  I next turn to the submissions of Angela that Vivien is making use of the multiple interlocutory applications and the appeals to delay the trial. I should say at the outset that if I am able to come to that conclusion that that is indeed Vivien’s intention or motive, what she is doing would amount to abusive conduct. The court should not play into her hands. The trial should proceed as scheduled. However, based on the materials before me, I do not think that I can safely draw that conclusion.

63.  Mr Yu points to the many interlocutory applications taken out by Vivien in this probate action. It is true that Vivien has taken out quite a number of interlocutory applications. It is also true that they have largely been unsuccessful. But I do not consider that solely based on the number of unsuccessful interlocutory applications, I can or should conclude that she is using these applications with the underlying motive to delay the proceedings.

64.  In this regard, Mr Paul Shieh, SC, who appears with Mr Johnny Ma, SC, Mr Alexander Tang and Mr James Man for Vivien, makes the following points:

(1)  Vivien knew nothing about the circumstances leading to and surrounding the preparation and execution of the 2008 will.

(2)  Vivien only learnt of the 2008 will in 2016.

(3)  She only learnt of the 2005 codicils one year after this action began, in August 2021.

(4)  And she only learnt of the 2007 codicil only 3½ years after this action began, in October 2023.

65.  The alleged lack of knowledge on Vivien’s part of the testamentary papers is, I believe, not something that is seriously disputed in this action. Mr Shieh says that not having the knowledge of the testamentary papers, Vivien would have to resort to interlocutory applications to seek materials and information. Hence, the fact that Vivien had sought further information by multiple interlocutory applications is not a matter which by itself can be taken against her.

66.  I accept that submission. That is a matter that I should take into account. In the circumstances, I am unable to draw the inference that the intention or motive behind these interlocutory applications is to derail the trial and to delay the date of judgment. The taking out of the multiple interlocutory applications is equally consistent with an intention to exhaust all means to advance her own case.

67.  On the whole, I am of the view that the appeals and the leave applications are genuinely pursued by Vivien. It is not necessary for me to be drawn into a discussion or evaluation of the likelihood of success of these appeals and applications. It is not suggested that these appeals have no substance at all and are bound to fail. (If that is the case, that would be a weighty factor against adjourning the trial.) In any event, Mr Justice Wilson Chan has granted leave to appeal in respect of the legal professional privilege ground and has confirmed that ground to be reasonably arguable.

Impact of the appeals etc on the trial

68.  As to the impact of the outstanding appeals on the trial, if the appeals are allowed, in my view, it cannot be seriously disputed that it will have a considerable or material impact on the scope of the evidence to be adduced at the trial.

69.  Vivien says that if the discovery is allowed, that would lead to the revelation of highly relevant and material information pertaining to, among other things, Mr Wong’s taking of instructions for drafting the 2008 will, the preparation and drafting process of that will, and the reasons given by the mother to Mr Wong for making the will. The information is currently redacted in Exhibit “CHW-12”. If the information is released, Mr Shieh submits that it is going to provide a fertile ground of investigation and cross-examination at trial.

70.  Vivien further says that if the rejoinder appeal is allowed, new issues regarding the Post-Will Acts will be raised and new evidence will be adduced.

Exceptional circumstances

71.  As things stand, the original appeal dates in July this year having been vacated, I agree with Mr Shieh’s submission that taking a realistic view of the matter, it is virtually impossible that the appeals will be heard and decided before 2 September. Hence, we are looking at a situation where if no adjournment is granted, the trial will go ahead with the appeals still outstanding.

72.  In this connection, Mr Yu has reminded me that the usual approach to be adopted in this kind of situation is that the mere fact that there exist unresolved interlocutory appeals do not count as an exceptional circumstance which would justify the vacating of a trial: see Daimler AG v Leiduck (No 3) [2013] 5 HKC 242 at para 10, citing Wang Din Shin v Nina Kung HCAP 8/1999, 17 March 2005, para 6 in support.

73.  The present case, however, is not a simple case where an interlocutory appeal was lodged just shortly before or during the trial. On the contrary, the appeal process at the Court of Appeal level was commenced as early as in August 2024.

74.  The timeline of events shows that Vivien has been pursuing these appeals and leave applications with reasonable diligence. Through no fault on her part, it is now extremely unlikely that the appeals will be disposed of before 2 September. I consider that the present situation amounts to an exceptional circumstance which would justify the moving of the trial dates.

Discretion

75.  In my exercise of the discretion, there is still another important consideration which I need to take into account. Angela points out that many of her witnesses are of advanced age, such as herself who is now 74 years old and Mr David Wong. Mr David Wong is the solicitor who participated in the preparation and execution of some of the Post-Will Acts in 2012 and 2014.

76.  Angela says that any significant delay to the trial would be highly prejudicial to her case if any of her witnesses is no longer around to testify when the trial eventually happens. I consider that this potential prejudice is a legitimate concern. Where the evidence of the witness in question is material, this prejudice would be more serious.

77.  What I need to assess now is to weigh such potential prejudice against the prejudice that may be caused to Vivien if the trial is to proceed when her appeals are still outstanding. In my judgment, when all things are considered, the balance comes down in favour of adjourning the trial.

78.  The risk of losing any witness may be alleviated by re-fixing the trial dates as soon as that is practicable and, if considered appropriate, by the parties applying to take depositions of those witnesses who are considered at most risk of not being around in the future trial.

79.  For the above reasons, I would exercise my discretion to vacate the September trial. It is therefore unnecessary for me to deal with the second basis in support of Vivien’s adjournment application.

ORDERS

80.  I order that the trial presently fixed to commence on 2 September 2025, with 30 days reserved, be adjourned and the trial dates be vacated.

81.  That is the order that I would make. I would not make any order in terms of paras 1(a) and (b) of the summons for the time being, subject to parties’ submissions.

(Submissions re costs)

82.  On costs, I order that the costs of the adjournment application, including any reserved costs, be in the cause of the action.

83.  My reasons are as follows:

(1)  That is the costs order sought in Vivien’s summons.

(2)  To vacate a trial date is not a decision to be made lightly. The court has made that decision after receiving submissions from both sides, both in writing and through oral submissions in today’s hearing.

(3)  I do not accept Mr Shieh’s submission that Angela has been acting unreasonably in resisting the adjournment. In fact, I consider that it is the duty of both parties to put forward all the arguments to assist the court to make the decision as to whether to vacate the trial or not.

(4)  It may be that the appeals will turn out to be unsuccessful. Where that is the case, to ask Angela to bear the costs of today’s hearing, which is what Vivien now asks for, does not seem to me to be right or fair. I consider that the costs of the adjournment summons should be aligned with the costs of the action.

84.  I would grant a certificate for attendance by three counsel.