ANGELA CHEN v. WAI WAI CHEN

CAMP143 & 144/2024 & CACV 305/2024, [2026] HKCA 266

On appeal from [2021] HKCFI 2436

& [2024] HKCFI 962

(Heard together)

CAMP143/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 143 OF 2024

(ON AN INTENDED APPEAL FROM HCAP 10/2020)

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AND

CAMP144/2024

MISCELLANEOUS PROCEEDINGS NO 144 OF 2024

(ON AN INTENDED APPEAL FROM HCAP 10/2020)

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AND

CACV305/2024

CIVIL APPEAL NO 305 OF 2024

(ON APPEAL FROM HCAP 10/2020)

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(Heard together)

_______________________

J U D G M E N T

_______________________

Hon Barma JA (giving the Judgment of the Court):

1.  Before this court are several applications by the defendant (“Vivien”) for (i) leave to appeal against certain interlocutory decisions made by Wilson Chan J (“the Judge”) in these proceedings; (ii) leave to amend one of her Summonses for leave to appeal; and (iii) leave to adduce new evidence in support of the leave applications and/or the related substantive appeals.

2.  To better understand the context of and the connection between these applications, it will be convenient first to outline the procedural history as follows. 

Procedural history and the Summonses before this court

3.  The underlying probate proceedings in HCAP 10 of 2020 (“the Probate Proceedings”) are between the plaintiff (“Angela”) and Vivien in respect of the estate of their late mother, Madam Yang Foo Oi (“Mother”), By the Writ of Summons issued on 20 March 2020 (and amended on 6 May 2020), Angela (Mother’s elder daughter and Vivien’s elder sister) seeks to propound Mother’s Will dated 15 February 2008 (“the 2008 Will”). 

4.  After Angela filed her Statement of Claim on 24 July 2020, but before filing her Defence, Vivien applied by a Summons dated 4 September 2020 (“Discovery Summons 1”) taken out against Messrs Wong Shum & Co (“WSC”), the firm of solicitors responsible for the preparation and drafting of the 2008 Will (and a non-party to the Probate Proceedings), for orders that WSC do inter alia (i) provide affirmation evidence on their possession of, and/or the whereabouts of, certain documents related to inter alia the preparation of the 2008 Will; (ii) permit Vivien’s solicitors, Messrs Anthony Siu & Co (“ASC”), to inspect and/or make copies of the relevant documents; and (iii) provide affirmation evidence on alleged ‘missing’ information in the Statutory Declaration dated 19 November 2014 (“the SD”) made by Mr Wong Tak Shing of WSC (“Mr Wong”, the principal solicitor of WSC) concerning the factual circumstances of the preparation of the 2008 Will. 

5.  Discovery Summons 1 was heard by the Judge on 19 February 2021.  By the Judge’s decision dated 20 August 2021[1] (“Discovery Decision 1”), Discovery Summons 1 was dismissed with costs.  Vivien was directed by the Judge’s Order dated 20 August 2021 to file her Defence and Counterclaim within 14 days. 

6.  After filing her Defence and Counterclaim (which was subsequently re-amended on 9 February 2024), Vivien filed a further Summons on 17 February 2023 (“Discovery Summons 2”) for specific discovery, this time against Angela, seeking inter alia the production of all documents created or drafted or circulated by Mr Wong/WSC concerning the preparation of the 2008 Will and the SD, interview/attendance notes relating to the giving or taking of instructions for the making of the SD and relevant correspondence between Angela, Mr Wong and/or WSC and Mother, Angela, Wu Wing Kit (“Mr Wu”, a solicitor then with Messrs Fred Kan & Co), Billy Ma (“Mr Ma”, another solicitor, of Messrs Hobson & Ma) and Dr Ben Cheung (“Dr Cheung”).  Separately, there was also a Summons filed by Vivien seeking interrogatories (“the Interrogatories Summons”) from Angela relating to a codicil made in 2007 (“the 2007 Codicil”).

7.  Discovery Summons 2 and the Interrogatories Summons were heard by the Judge on 5 October 2023 and 5 January 2024.  By the Judge’s decision dated 12 April 2024[2] (“Discovery Decision 2”), the majority of the relief sought under Discovery Summons 2 was dismissed (“DD2 Dismissed Relief”), with a small part of the relief sought allowed (“DD2 Allowed Relief”).  The Interrogatories Summons was also dismissed.  Costs of the Summonses were ordered to be paid by Vivien to Angela.

8.  Vivien thereafter applied to the Judge for leave to appeal against Discovery Decision 1 and Discovery Decision 2 (in respect of the DD2 Dismissed Relief and the dismissal of the Interrogatories Summons).  Although leave to appeal was granted in respect of certain limited grounds of appeal against Discovery Decision 2 (as regards the DD2 Dismissed Relief) relating to the issue of whether legal professional privilege (“LPP”) belonging to Mother could be asserted by Angela (as executrix of Mother’s estate) (“DD2 Allowed Grounds”), leave on all intended grounds as against Discovery Decision 1, the other grounds as against Discovery Decision 2 (“DD2 Dismissed Grounds”) and leave to appeal against the dismissal of the Interrogatories Summons was refused by the Judge by his decision dated 19 July 2024[3] (“the Leave Decision”).

9.  A Notice of Appeal was then filed by Vivien on 30 July 2024 in CACV 305 of 2024 (“the Discovery Appeal”) as against Discovery Decision 2 limited to the DD2 Allowed Grounds (see [5]-[8], Leave Decision).  In relation to this appeal, Angela has filed a Respondent’s Notice dated 13 September 2024. 

10.  Vivien has renewed before this court her applications for leave to appeal against (i) Discovery Decision 1 by Summons filed on 2 August 2024 in CAMP 143 of 2024 (“CAMP Leave Summons 1”); and (ii) Discovery Decision 2 on several revised/refined grounds in respect of the DD2 Dismissed Grounds by Summons filed on 2 August 2024 in CAMP 144 of 2024) (“CAMP Leave Summons 2”). 

11.  Leave to appeal is no longer pursued as regards the dismissal of the Interrogatories Summons (see [1(a)], CAMP Leave Summons 2).  Vivien has, however, since applied to amend CAMP Leave Summons 1 by a Summons filed on 10 April 2025 (“the Amendment Summons”).

12.  On 6 November 2024, the Registrar of Civil Appeals directed inter alia that there be a rolled-up hearing of (i) CAMP Leave Summonses 1 and 2; and (ii) the Discovery Appeal and the appeal in CACV 313 of 2024 (the latter is not relevant for the purpose of determining the present applications). 

13.  Subsequently, by a Summons filed on 21 November 2024 in CAMP 143 of 2024 (“CAMP Evidence Summons 1”) Vivien applied to adduce new evidence in support of her CAMP Leave Summons 1 (and for such evidence to be adduced in the substantive appeal should leave to appeal be granted).  This was followed by her further applications, by Summonses filed on 9 January 2025 in CACV 305 of 2024 and CAMP 144 of 2024 (respectively “CACV Evidence Summons” and “CAMP Evidence Summons 2”), for leave to adduce new evidence in support of, respectively, the Discovery Appeal and CAMP Leave Summons 2 (and in the substantive appeal, should leave be granted).  

14.  The three Evidence Summonses were originally directed by the Registrar to be heard together with the rolled-up hearings of CAMP Leave Summonses 1 and 2 as well as the substantive appeals.  The parties estimated length of hearing for all of these matters was a total of only 2 days, and as a result a two-day hearing was fixed to be heard on 29 and 30 July 2025.  This court had concerns about whether the length of hearing was realistic, and also whether the timing was sensible given the then impending trial dates.  Thus, having heard from the parties at a mention hearing held on 27 March 2025, the rolled-up hearing in July 2025 was vacated and it was directed inter alia that the Leave and Evidence Summonses should be determined on paper, and that further directions regarding the listing and hearing of the Discovery Appeal (as well as the appeal in CACV 313 of 2024, and any other related appeals if leave were granted on the leave applications) should be given after the determination of the present applications. 

15.  In the light of those directions, Winnie Tsui J (the intended trial judge) made an order dated 3 April 2025, by which the original trial dates commencing 2 September 2025 (with 30 days reserved) for the Probate Proceedings were vacated.  Leave was thereafter granted by Tsui J on 19 May 2025 to set down the Probate Proceedings for trial commencing on 22 February 2027 (with 50 days reserved), with a pre-trial review hearing fixed on 6 January 2027.  In the light of these directions, the parties applied, before the determination of these applications, for dates to be fixed for the hearing of the Discovery Appeals (including any for which leave might be granted), so as to ensure as far as practicable that the new trial dates would be effective.  In the result, the Discovery Appeals have been listed for hearing on 4 May 2026 with 5 days reserved (to allow for the possibility that leave might be given on the Leave Applications), subject to downward adjustment if some or all of the applications now under consideration are refused.

16.  There are therefore 6 Summonses which now fall for determination by this court, namely CAMP Leave Summonses 1 and 2, the Amendment Summons, CAMP Evidence Summonses 1 and 2, and the CACV Evidence Summons.

Background to the Probate Proceedings

17.  The factual background to the parties’ dispute was summarised at some length by the Judge in Discovery Decisions 1 and 2 (see Discovery Decision 1, [14]-[28]; Discovery Decision 2, [7]-[26]).  We do not propose to repeat the same, save to the extent relevant to the present applications.  For these purposes, the background may be summarised as follows. 

18.  Mother was the former wife of the late Chen Din Hwa, founder of the Nan Fung corporate group (Discovery Decision 1, [17]).  The Probate Proceedings arose after the passing of Mother in 2020, with Angela seeking to propound the 2008 Will (which appoints Angela as sole executor and names her sole beneficiary of Mother’s estate, and which Angela contends to be the true and last will of Mother) on the one hand, and Vivien alleging that the true and last will of Mother is an earlier will executed in 2004 (“the 2004 Will”; which provided for an equal division of Mother’s assets between Angela and Vivien, and for them to act as co-executrices) (Discovery Decision 2, [3]) on the other.

19.  Vivien contends in the Probate Proceedings that the 2008 Will is invalid because Mother lacked testamentary capacity when executing it, that there was no knowledge and approval of the 2008 Will, and that it was procured by Angela’s alleged undue influence and fraud (Discovery Decision 2, [3]).

20.  After the 2004 Will was executed in around October 2004, in 2005 Mother executed 2 testamentary dispositions (“the 2005 Codicils”) bequeathing her interests in property-holding companies and other US properties to Angela (Discovery Decision 2, [11]).

21.  After failed attempts between Angela and Vivien to negotiate a potential ‘split’ and redistribution of Mother’s assets, Mr Wong was instructed by Mother in January 2008 to draft a will (resulting in the 2008 Will) (Discovery Decision 2, [13]).

22.  Notwithstanding that the first draft of the 2008 Will provided that Vivien was to be a beneficiary of a portion of Mother’s estate, Mother later (through Angela) instructed Mr Wong to revise the draft, resulting in the finalised 2008 Will (Discovery Decision 2, [13]-[15]) which left nothing to Vivien.

23.  It was undisputed that apart from Mr Wong/WSC, Mother was, at the time, advised by at least 2 other law firms (those of solicitors Mr Wu and Mr Ma) regarding matters concerning the 2008 Will.  On the day of execution of the 2008 Will, i.e. 15 February 2008, and before Mother’s actual execution of it, she was medically examined by Dr Cheung as to her testamentary capacity under the advice of, and witnessed by Mr Wong, Mr Wu and Mr Ma (Discovery Decision 2, [16]).

24.  Angela’s case is essentially that the 2008 Will was validly executed as Dr Cheung had confirmed that Mother had full and proper understanding of the contents of the 2008 Will.  Vivien challenges such validity, contending Mother was harbouring under mistaken and deluded beliefs at the time of execution, and that apparent suspicious circumstances before execution (such as omissions and ‘selective’ content in the SD and the ‘extraordinary’ destruction of the 2008 Will case file by WSC) warranted the disclosure of the documents sought under Discovery Summonses 1 and/or 2 (Discovery Decision 2, [20]-[26]).

The applications and decisions below

Discovery Summons 1 and Discovery Decision 1

25.  This was Vivien’s discovery application against WSC, a non‑party to the Probate Proceedings, before the filing of her Defence.

26.  The documents being sought[4] were drafts of the 2008 Will and the SD ([1(1)], Discovery Summons 1), the so-called “11070 Documents” (with contents pertaining to the advising, preparation, drafting, execution of the 2008 Will; see [1(2)], Discovery Summons 1), notes and records (“Notes”) relating to the 2008 Will, the 11070 Documents, and in particular conversations between Mr Wong, Mother, Dr Cheung, Angela, and/or Mr Wu and Mr Ma in relation to the preparation of the SD and/or the 2008 Will (“Notes”; see [1(1)], Discovery Summons 1).  The Annex (and [3]) to Discovery Summons 1 also contains a list of what are essentially interrogatories sought from Mr Wong regarding apparent “missing information” in the SD.

27.  Vivien’s application was based inter alia on the jurisdiction of the court to order discovery against non-parties under s.42 of the High Court Ordinance (Cap 4) (“HCO”), O.24 r.7A of the Rules of the High Court (Cap 4A) (“RHC”), the practice based on Larke v Nugus [2000] WTLR 1033 (suggesting that the will preparer should provide a statement on circumstances of preparation and execution of the will (“Larke Statement”)) and the court’s general inquisitorial role in a probate action (Discovery Summons 1, [33]).

28.  Angela’s objections to discovery were in essence that (i) the application was premature as Vivien’s Defence had not been filed; (ii) most of the documents sought were covered by LPP; and (iii) there was no basis for the court to order discovery and/or interrogatories against a non-party (Discovery Decision 1, [4]-[5]). Moreover and in any event, WSC had in around June 2015 destroyed the file containing documents related to the 2008 Will (in accordance with the “normal process of disposal of old files exceeding 7 years) (Discovery Decision 1, [11]).

29.  It was also undisputed that WSC had already provided a copy of the SD to Vivien in August 2020.  Angela claims that notwithstanding that such disclosure was made without her consent, she has not waived privilege in the SD as executor and that such privilege remains intact (Discovery Decision 1, [11]).  Vivien however, relying on Russell v Jackson (1851) 9 Hare 387 and the Canadian authority of Geffen v Goodman Estate [1991] 2 SCR 353, contended that LPP does not apply where the will is contested (as in the present case), and so no LPP attaches to Mr Wong’s Larke Statement in the form of the SD (Discovery Decision 1, [53]).

30.  The Judge relied inter alia on the following legal principles in his determination of Discovery Summons 1:

(a)     the court’s general practice is to refuse to order discovery before pleadings save in exceptional circumstances, as there is a real risk that the discovery application would be unfocused due to the issues between the parties having yet to be defined (Discovery Summons 1, [35(1)]; Bank of India v Gobindram Naraindas Sadhwani [1994] 2 HKLR 69);

(b)     as against non-parties and where the discovery application is premature, the applicant should support the application with an affidavit demonstrating how the documents being sought are relevant “if practicable by reference to any pleading served or intended to be served” (O.24 r.7A(3)(b) regarding applications under s.42 of HCO; Discovery Decision 1, [35(2)(a)]).  This shows that the norm is for discovery to be ordered after the filing of pleadings;

(c)     the applicant must show that the order for discovery is necessary for the fair disposal of the cause or matter or for saving costs (Discovery Decision 1, [35(2)(b)]); O.24 r.8(2), RHC);

(d)     Order 76 of the RHC, which governs probate actions specifically, does not provide for premature discovery, and there is thus no reason why the general rule that (save in exceptional circumstances) discovery would not be ordered pre-Defence should not apply to the present case (Discovery Decision 1, [38]; Orders 18 & 24, RHC);

(e)     as regards LPP, legal advice privilege applies to communications between lawyer and client where the former acts in the course of his professional capacity within the scope of his duties for the purpose of giving legal advice, whereas litigation privilege attaches to confidential communications between a client and his lawyer or a third party for the dominant purpose of use in either active or pending litigation or for the seeking of legal advice or evidence or information for use in the litigation (Discovery Decision 1, [50]; Art.45, Hong Kong Basic Law; Secretary for Justice v Florence Tsang Chiu Wing (2014) 17 HKCFAR 739).  LPP survives the death of the client, whereupon the privilege and/or the right to waive it passes to the successor in title (Discovery Decision 1, [52]; Addlesee v Dentons Europe LLP [2020] Ch 234);

(f)     applicants for specific discovery against non-parties are required to demonstrate a prima facie case of existence, possession, custody or power as well as relevance.  Where classes of documents are sought, such classes must be relevant and not unduly widely defined.  Fishing expeditions are not permitted (Discovery Decision 1, [136]-[137]; Global Gaming Philippines LLC v Deutsche Bank AG, Hong Kong Branch [2019] HKCFI 405).

31.  In dismissing Discovery Summons 1, the Judge found, inter alia:

(a)     the rationale behind Larke was that early disclosure of details related to the preparation and execution of wills may prevent unnecessary probate litigation.  However, it was clear in the present case that Vivien intended to seek relief by Discovery Summons 1 in order to “fight the probate action to the very end” (Discovery Decision 1, [39(9)]);

(b)     the practice in Larke regarding the provision of a Larke Statement cannot be a basis for early discovery, as it was, and originated only from, a matter of professional conduct for solicitors who are will preparers, and is no more than a suggested “best practice” for will preparers (Discovery Decision 1, [39]).  Larke does not have the force of law, and failure to adhere to such “best practice” would at most attract sanction in costs (Gardiner v Tabet [2020] EWHC 1471 (Ch));

(c)     notwithstanding that Larke does not have the force of law, the SD had in fact been provided (albeit without Angela’s consent) by Mr Wong, the will preparer, to Vivien (Discovery Decision 1, [40]-[41]), and in it Mr Wong had already provided a “detailed and proper account” on circumstances surrounding the execution of the 2008 Will (Discovery Decision 1, [41]‑[43]);

(d)     the interrogatories sought against Mr Wong in the Annex to Discovery Summons 1 were in essence questions framed to interrogate or cross-examine Mr Wong on the SD (Discovery Decision 1, [30]), which was far removed from the purpose of a Larke Statement (Discovery Decision 1, [43]-[45]);

(e)     there are no exceptional circumstances in the present case justifying the deviation from general rules of discovery or orders for interrogatories (Discovery Decision 1, [46]);

(f)     as regards the issue of LPP, the authorities relied upon by Vivien to advance her arguments are based on the existence of a joint interest amongst undisputed beneficiaries – which is not the case here in respect of the 2008 Will (Discovery Decision 1, [54]-[57]). 

(g)     Larke did not create a general exception to LPP in cases where the will is contested (Discovery Decision 1, [61]-[87]; Re Fuld (No.2) [1965] P 405; Chinachem Charitable Foundation Ltd v Chan Chun Chuen [2009] 2 HKC 365, (2011) 14 HKCFAR 798).  The limited exception to LPP that exists in relation to probate matters is as established by Re Fuld, being that the court may direct an attesting witness to make statements on the question of attestation and execution notwithstanding the applicability of LPP.  Lam J (as Lam PJ then was) in Chinachem Charitable Foundation Ltd explained that the Re Fuld exception only applies with such limited scope and does not remove, in a blanket manner, all privilege attached to all communications between client and lawyer (Discovery Decision 1, [70]-[71], [76], [111]-[116]);

(h)     any document sought by Vivien concerning the drafting of the 2008 Will (including content which relates to the taking of instructions for such purpose) which pertains to matters prior to “the moment of execution and attestation” would not be covered by the limited exception in Re Fuld and discovery of such documents must be refused (Discovery Decision 1, [91]);

(i)     the 11070 Documents, the Notes (save those which specifically recorded Mr Wong’s evidence on attestation and execution) and other papers or correspondence with content such as instructions (or the acquiring/giving of such) and advice (or the acquiring/giving of such) are generally covered by LPP and are not subject to discovery at the pre-Defence stage (Discovery Decision 1, [92]-[102]);

(j)     the interrogatories sought from Mr Wong in the Annex to Discovery Summons 1 are either covered by legal advice privilege or unrelated to matters of attestation and execution (i.e. falling outside of the Re Fuld exception) and must be refused (Discovery Decision 1, [103]-[108]);

(k)     there is no evidence or basis to suggest that the destruction of the 2008 Will case file by WSC was motivated by bad faith or was otherwise wrongful and improper as Vivien alleged (Discovery Decision 1, [117]-[118]);

(l)     the relief sought under Discovery Summons 1 must be refused, as the documents particularised therein either (i) have already been produced; (ii) fell under an unduly wide class; or (iii) were the subjects of a fishing request in an attempt to “obtain confirmation that no other documents exist” (Discovery Decision 1, [138]-[144]; Nokia Corp v TCT Mobile Ltd HCCL 19/2011, 5 August 2013).

32.  By a Summons filed on 3 September 2021 in the court below, Vivien sought leave from the Judge to appeal against Discovery Decision 1.  However, the application was not determined until mid-2024 when it was determined by the Judge on paper together with Discovery Summons 2, which was filed on 26 April 2024.  By the time of determination, Vivien had already filed her Defence and Counterclaim.

33.  The Judge took the view that the “timing” of Vivien’s application under Discovery Summons 1 was (as reflected by Discovery Decision 1) one of the primary grounds for its dismissal, namely that her discovery application was made pre-Defence and thus was premature.  As the issues in the Probate Proceedings only crystallised after the close of pleadings, the Judge concluded that Vivien could not, after the filing of her Defence, revive her previous application and seek to apply for the same relief which she had previously sought prematurely. Leave to appeal against Discovery Decision 1 was therefore dismissed (Leave Decision, [13]-[18]).

Discovery Summons 2 and Discovery Decision 2

34.  Having failed to obtain discovery against WSC, Vivien took out Discovery Summons 2 for specific discovery of certain documents from Angela.  There are 11 classes of documents in total:

(a)   Class 1:   all documents created or circulated by Mr Wong and/or WSC in his/its capacity as Mother’s solicitors and sent to Angela for the preparation/drafting of the 2008 Will (including the original electronic document from which the SD was extracted), as well as a General Power of Attorney dated 15 February 2008 (“the GPOA”) and an unexecuted Statutory Declaration on Mother’s aliases (Discovery Summons 2, [1], Schedule 1(1));

(b)   Class 2:   documents created by Mr Wu relating to the preparation and execution of inter alia the 2008 Will and the GPOA (Discovery Summons 2, [2]);

(c)   Class 3:    all emails and correspondence between (a) Angela and/or Mr Wong/WSC and (b) Mother, Angela, Mr Wu, Mr Ma and/or Dr Cheung relating to inter alia the 2008 Will or to the meeting with Mother on 15 February 2008 (Discovery Summons 2, [3]);

(d)   Class 4:   documents from the “allegedly destroyed” 2008 Will case file of WSC (Discovery Summons 2, [4]);

(e)   Class 5:   all drafts or correspondence etc. relating to the making or reviewing of the SD (Discovery Summons 2, [5]).

(f)    Class 6:    all communications in writing and correspondence exchanged between Ms Mabel Lui (“Ms Lui”) of Messrs DLA Piper Hong Kong (“DLA”) / DLA and Mother and Angela in relation to the preparation and execution of the 2005 Codicils;

(g)   Class 7:   all documents in the “file on ‘Mrs. Chen’s Will’” as referred to in Ms Lui’s letter dated 23 December 2021 and/or all documents in a physical file “containing the 2005 Codicils”;

(h)   Class 8:   all undisclosed testamentary scripts of Mother and any other draft will, codicil (such as the 2007 Codicil) or testamentary instrument of Mother;

(i)    Class 9:   medical records, medical documents, correspondence and notes made or kept by any doctors who carried out medical consultation and assessment of Mother relating to mental condition or any other assessment for the purpose of litigation or the execution of any legal documents by Mother between January 2005 and May 2014;

(j)    Class 10: Vivien no longer sought discovery of this Class in her application before the Judge (Discovery Decision 2, [102]);

(k)   Class 11:  records, including ledgers, accounts and agreements, showing the use of a certain mortgage loan by Jadespring Limited / Wei An Development Limited from United Commercial Bank from about February / March 2008.

35.  The Judge relied inter alia on the following legal principles in his determination of Discovery Summons 2 (at [27]-[30]):

(a)     there is no jurisdiction to make an order under O.24 r.7 unless the following are established: (i) existence of an undisclosed document; (ii) possession or custody by the respondent; (iii) relevance of the document.  Moreover, the document(s) sought must be necessary for disposing fairly of the cause or for saving costs (K&L Gates v Navin Kumar Aggarwal HCA 1061/2011 & HCA 349/2012 (27 November 2017));

(b)     the court retains a residual discretionary power not to order disclosure;

(c)     the documents sought must be identified with precision, and any class of documents must not be defined too widely.  In particular, a class of documents must be defined by the nature of the documents as opposed to by a particular issue (Discovery Decision 2, [35]-[39]; Deak & Co. (Far East) Ltd v NM Rothschild & Sons Ltd [1981] HKC 78;

(d)     statements by the respondent in an affidavit that he/she is not in possession of the document(s) sought are conclusive at the interlocutory stage;

(e)     a party is not permitted to “turn a non-issue into an issue” by fishing expeditions;

(f)     where the result of the cause would not be affected by the discovery sought, it may not be ordered;

(g)     LPP applies in the context of the preparation and drafting of a will, and the principles cited, discussed and relied upon in Discovery Decision 1 on LPP (such as the Re Fuld exception) are relevant (Discovery Decision 2, [47]-[50]).

36.  As regards discovery of the classes of documents sought, the Judge found inter alia:

(a)     Class 1 should be refused in limine because it was formulated by reference to an issue rather than by reference to the documents’ nature.  Class 1 documents also fail the test of relevance; and in any event, Angela has (conclusively) deposed by affirmation that save the documents within Class 1 which have already been disclosed, she was not in possession of any other documents.  Discovery of Class 1 was therefore refused (Discovery Decision 2, [51]-[56]);

(b)     Mr Wu was not involved in the preparation of the 2008 Will and other matters specified in Class 2 except the GPOA.  In any event, Vivien has failed to establish the existence of drafts of the GPOA and moreover, Angela and Mr Wu have confirmed that they were not in possession of the same.  Class 2 was accordingly disallowed (Discovery Decision 2, [57]-[62]);

(c)     as for Class 3, the scope was too wide and there was no specificity or limitation as to the duration and “characters” involved in the correspondence sought.  This Class should also be refused because Angela, Mr Wong and Mr Wu have confirmed that they did not possess the same save the documents already disclosed (Discovery Decision 2, [63]-[66]);

(d)     the request for the 2008 Will case file documents – the destruction of which Mr Wong (as well as DLA and Messrs Clifford Chance (“CC”), both of whom assisted in the preparation of the SD) has confirmed – is unreasonable and in any event fails the test of necessity. Class 4 was accordingly refused (Discovery Decision 2, [67]-[72]);

(e)     Class 5, which is a request for documents kept by CC in relation to the preparation of the SD, was refused as, inter alia, Angela has already disclosed documents pertaining to evidence of witnesses on the question of attestation and execution of the 2008 Will pursuant to Re Fuld and that the use or deployment of the SD did not equate to a waiver of privilege of the drafts of the SD (Discovery Decision 2, [73]-[81]);

(f)     documents requested under Classes 6 and 7 fall outside the remit of Re Fuld and therefore should be refused (Discovery Decision 2, [81]-[86]);

(g)     as to Class 8, an electronic copy of the 2007 Codicil had already been produced by Mr Wong (Discovery Decision 2, [90(1)]).  However, Vivien had clarified and revised her request in that further documents in relation to, including the original executed version of, the 2007 Codicil, should be disclosed (Discovery Decision 2, [88]).  In response, Angela was willing to make an affirmation to confirm “her inability to recall the 2007 Codicil and the inquiries that has been made in respect of the 2007 Codicil”, and thus although Class 8 was disallowed, Angela was ordered to file an affirmation[5] with the aforesaid confirmation (Discovery Decision 2, [90]-[91]);

(h)     not only was Class 9 an “indiscriminately wide class”, the documents therein were covered by LPP (Discovery Decision 2, [92]-[97]).  However, it was undisputed by Angela that privilege attaching to medical reports which have already been deployed in court proceedings would have been waived and thus should be disclosed (Discovery Decision 2, [98]). Accordingly, some (i.e. Items 1 to 4 of Sch.3 to the 6^th Affidavit of Chan Heung Wing dated 11 July 2023 (“Chan 6”)) but not all (i.e. Items 5 to 11[6] of Sch.3 to Chan 6) such related documents were disclosed by Angela.  The Judge did not accept Angela’s contention that the possibility of Items 5 to 11 being subject to confidentiality restrictions by reason of their previous deployment in in camera matrimonial proceedings justified their non-disclosure, and therefore ordered (as part of the DD2 Allowed Relief) that Items 5 to 11 to Sch.3 of Chan 6 be disclosed by Angela (Discovery Decision 2, [99]-[101]);

(i)     Class 11 was refused due to its unduly wide breadth, as well as its limited relevance (Discovery Decision 2, [103]-[106]).

37.  Vivien was therefore only successful in her discovery application in Discovery Summons 2 to a very limited extent under Class 8 and only in part under Class 9 (Discovery Decision 2, [123]-[124]).  All of her other requests for discovery were dismissed.

38.  Vivien’s application for leave to appeal against Discovery Decision 2 by Summons filed on 26 April 2024 was also successful in part, in that the Judge granted her leave to appeal on the DD2 Allowed Grounds (i.e. Grounds 1, 4 and 6 in the draft Notice of Appeal annexed to her leave Summons).  The DD2 Allowed Grounds were, in summary, Vivien’s contentions that as a matter of law, where there is a contested will in probate proceedings, the estate’s right to LPP should belong equally to contestants of the will, and that LPP cannot be asserted by one contestant (e.g. Angela) against another (e.g. Vivien) (Leave Decision, [5]). The Judge concluded that Vivien’s argument had reasonable prospects of success and granted leave for the DD2 Allowed Grounds (Leave Decision, [8]).

39.  As to the DD2 Disallowed Grounds:

(a)     Ground 2[7] was against the dismissal of the discovery of Classes 1 to 4, which the Judge dismissed (Leave Decision, [9]) because inter alia (i) a portion of the subject documents – being electronic files relating to the 2008 Will which were merely said to be “likely” to have once been a part of the destroyed WSC file, but as to which Vivien is unsure as to their existence; (ii) in any event, Angela does not have possession of the required documents, nor does she “enjoy…cooperation from [Mr Wong]” to procure/inspect the same (Angela’s Written Submissions for leave to appeal dated 19 June 2024, as relied upon and endorsed by the Judge in the Leave Decision (“Angela’s CFI Leave Skel”), [19]-[29]);

(b)     Grounds 3 and 5, which relate to Class 5 documents, were not reasonably arguable and were dismissed (Leave Decision, [10]‑[11]) because there was no question but that the Class 5 documents were subject to LPP by their nature and it was apparent there was no need for further evidence or particulars (as contended by Vivien under Ground 3) was apparent (Angela’s CFI Leave Skel, [31]‑[37]), and that the SD’s relevance would arise only if Mr Wong does not give evidence at trial (i.e. it would be produced and used as something akin to Mr Wong’s witness statement) and Vivien has not been able to show it was arguable that the Judge’s finding at [81] of Discovery Decision 2 was plainly wrong (Angela’s CFI Leave Skel, [39]-[40]);

(c)     Ground 7 purports to relate to Class 8 documents when in fact it asks for an order in terms of the Interrogatories Summons (which is not relevant in the present context, as Vivien no longer seeks leave from this court to appeal against the Interrogatories Summons).

40.  In addition to her separate application to adduce new evidence in support of the Discovery Appeal by the CACV Evidence Summons, Vivien now renews her applications for leave to appeal against:

(a)     Discovery Decision 1 by CAMP Leave Summons 1, with applications to amend the same (the Amendment Summons) and to adduce new evidence in support of the application (CAMP Evidence Summons 1);

(b)     Discovery Decision 2 on reformulated DD2 Dismissed Grounds by CAMP Leave Summons 2, with an application to adduce new evidence in support of the application (CAMP Evidence Summons 2).

Legal principles

Leave to appeal

41.  Section 14AA(4) of the High Court Ordinance, Cap 4, provides that leave to appeal against an interlocutory judgment or order of the Court of First Instance shall not be granted unless this court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard. 

42.  Rulings on applications for discovery are case management decisions in the exercise of the Judge’s discretion, which may only be challenged on appeal on limited grounds. See NPYJ v SMRC [2023] HKCA 1094, per Cheung JA at [7].  It is well-established that an applicant for leave to appeal against such decisions faces a very high hurdle.  In Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887, Kwan JA (as Kwan VP then was) stated:

“31. ... Case management decisions are only subject to appeal in rare circumstances. The appellant faces a ‘very high hurdle’ and must show that the Judge ‘has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task’, or if the Judge ‘erred in principle or the order was irrational having regard to the issues that had to be resolved’. It need hardly be emphasised that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the Judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible.”

43.  In the same vein, in West Coast International Trading Ltd trading as Dandelion Fine Arts v Chelesa Art Co. Ltd., unrep., HCMP 1228/2014, 3 September 2014, Kwan JA emphasised (at [5]) that an appeal against a case management decision should not be lightly brought, as it is contrary to a sense of reasonable proportion and procedural economy promoted as one of the underlying objectives in Order 1A rule 1 of the Rules of the High Court (Cap 4A), not to mention that the resources of the court must be distributed fairly such that the appeal court should not be concerned with unmeritorious appeals against the exercise of judicial discretion.  See also: Tao, Soh Ngun v HSBC International Trustee Limited [2018] HKCA 691 at [57]-[67].

Admission of fresh evidence on appeal

44.  Order 59 rule 10(2) of the Rules of the High Court (Cap 4A) provides:

“The Court of Appeal shall have power to receive further evidence on questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an examiner, but no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.”

45.  As held in Ladd v Marshall [1954] 1 WLR 1489, further evidence is admissible on appeal only where such evidence:

(a)     could not have been obtained at the hearing below with reasonable diligence;

(b)     would or might, if believed, have a very important influence on the result of the case, though it need not be decisive; and

(c)     is apparently credible though it need not be incontrovertible.

The present applications

46.  Pursuant to this court’s directions, the parties have lodged consolidated written submissions concerning the present 6 Summonses.  Mr Paul Shieh SC and Mr Johnny Ma SC (with them Mr Alexander Tang and Mr James Man), counsel for Vivien, lodged written submissions on 10 April 2025 (“Vivien’s Skel”), which were followed by the written submissions of Mr Benjamin Yu SC and Mr Bernard Man SC (with them Mr Keith Lam and Mr Danny Tang), counsel for Angela, lodged on 8 May 2025 (“Angela’s Skel”).  On 19 May 2025, Mr Shieh lodged his reply submissions for Vivien (“Vivien’s Reply”).

47.  The parties have also filed the following evidence for the present applications:

(a)     CAMP Leave Summons 1 and CAMP Evidence Summons 1:

 (i)    Affirmation of Siu Yat Fung Anthony filed 21 November 2024 (“CAMP-143 Siu 1”) in support;

 (ii)   Affidavit of Chan Heung Wing (“CAMP-143 Chan 1”) and the 2^nd Affidavit of Chan Heung Wing (“CAMP-143 Chan 2”) both filed on 9 December 2024 in opposition;

(b)     The Amendment Summons:

 (i)    2^nd Affirmation of Siu Yat Fung Anthony filed on 10 April 2025 in support;

 (ii)   it appears that no evidence has been filed by Angela in opposition.  The court will refer to the submissions in Angela’s Skel (at [19]) regarding Angela’s stance in this regard.

(c)     CAMP Evidence Summons 2 and CACV Evidence Summons:

 (i)    Affirmation of Siu Yat Fung Anthony filed on 9 January 2025 (“CAMP-144-CACV Siu”) in support;

 (ii)   Affirmation of Angela Chen filed on 17 March 2025 in opposition;

 (iii)  Affidavit of Chan Heung Wing filed on 20 February 2025 in opposition.

(d)     Regarding CAMP Leave Summons 2, there does not appear to be any evidence filed by the parties whether in support or in opposition.  The court will therefore have regard to the parties’ arguments in their written submissions.

Discussion

48.  Notwithstanding the apparent complexity of the issues, factual and legal, as set out in the parties’ written submissions, this court’s determination of the present applications remains guided by the legal principles set out above.  Leave to appeal against case management decisions will not be granted unless the Judge is shown to have been clearly wrong, and the discretionary admission of evidence on appeal will not be permitted unless special grounds are established.

(I) CAMP Leave Summons 1, CAMP Evidence Summons 1 and the Amendment Summons

49.  Although the primary application lies in CAMP Leave Summons 1 for leave to appeal against Discovery Decision 1, CAMP Evidence 1 seeks to adduce new evidence in support of that application and the Amendment Summons seeks to alter the scope of the application.  It is therefore logical for these three Summonses to be dealt with together.

50.  As noted above, the Judge dismissed Discovery Summons 1 and refused to grant leave to appeal primarily for the reason that Vivien’s discovery application was premature at the pre-Defence stage, and also that there were in any event no exceptional circumstances justifying discovery on numerous established bases for refusing discovery.  Moreover, one should not lose sight of the fact that Discovery Summons 1 was an application brought against a non-party to the proceedings.

51.  Attached to CAMP Leave Summons 1 is Vivien’s draft Notice of Appeal (“CAMP-LS1 Draft NoA”) with a draft Order (“CAMP-LS1 Draft Order”) which effectively contains a reformulated list of documents and/or classes of documents.  Those reformulated documents or classes of documents were headed/defined as “the Relevant Documents” which includes documents related to the preparation of the SD and the 2008 Will (i.e. the Notes and the 11070 Documents), but which are now identified with precision by date and their electronic file names (see CAMP-LS1 Draft Order, [1(1)-(9)]). 

52.  The only amendment which the Amendment Summons seeks to make to CAMP Leave Summons 1 is the insertion of [1(10)] to CAMP‑LS1 Draft Order, which introduces yet another new class, namely “documents prepared by [Mr Wong] for his own benefit” insofar as they related to the matter of the advising, preparation, drafting, drawing up and/or execution of any will or draft wills of [Mother] and/or the taking of instructions in respect of the same” (“the [1(10)] Documents”).

53.  The fresh evidence which Vivien seeks to adduce by CAMP Evidence Summons 1 are three affidavits/affirmations (with exhibits) filed in the Probate Proceedings from July to December 2023, (CAMP-143 Siu 1, [3]).  The relevance and importance of such evidence to the intended appeal is said to be that their contents reveal inter alia (i) that Mr Wong had “recently” informed DLA that he had located electronic versions of certain documents with reference number “11070” (which may or may not form part of WSC’s 2008 Will file) (CAMP-143 Siu 1, [12(a)]); (ii) details regarding dealings between Angela’s lawyers and Mr Wong concerning electronic documents related to the 2008 Will (CAMP-143 Siu 1, [12(b)]); and (iii) that there are “presumably” documents in the inspected documents which form part of WSC’s 2008 Will file (CAMP-143 Siu 1, [12(c)]) (“the CAMP-143 New Evidence”).  CAMP-143 Siu 1 suggests that Vivien need not satisfy the Ladd v Marshall requirements, and even if she did, the requirements are met, as the CAMP-143 New Evidence would influence the intended appeal in a material way and that it could not have been produced before the Judge at the hearing of Discovery Summons 1 as the evidence only came into existence thereafter (CAMP-143 Siu 1, [6]-[14]).

54.  The intended grounds of appeal as set out in CAMP-LS1 Draft NoA are in summary:

(a)     Ground A:  the Judge erred in holding that Angela (as sole executrix in the 2008 Will) was entitled to claim LPP on behalf of Mother against Vivien with respect to certain documents (“the LPP Ground”; being a ground identical or similar in substance to one for which leave was given by the Judge against part of Discovery Decision 2, resulting in the Discovery Appeal; Vivien’s Skel, [3]; Angela’s Skel, [20]);

(b)     Ground B:  the Relevant Documents now take a reformulated and thus narrower form in scope than the classes originally sought in Discovery Summons 1 before the Judge, and thus the Judge’s criticism that the formulation of the preamble for these classes was unduly wide (see Discovery Decision 1, [139]) no longer stands; and

(c)     Ground C:  the objection by the Judge (and Angela) based on prematurity of Vivien’s Discovery Summons 1 also no longer stands, as Vivien has now (after Discovery Decision 1 was handed down) filed her Defence and Counterclam and pleadings are now closed.

55.  Mr Shieh SC, leading counsel for Vivien, submits that as the Judge had granted leave to appeal on the LPP Ground, Ground A in the CAMP-LS1 Draft NoA is a fortiori reasonably arguable and thus leave to appeal should be granted on the same point (Vivien’s Skel, [4]).  With respect, this is not correct.  As rightly pointed out by Mr Yu SC and by the Judge in the Leave Decision, it is incorrect as a matter of principle to contend that a premature application for discovery could be rendered “timely” by reason of the passage of time (Angela’s Skel, [9]; Leave Decision, [15]-[16]).  The original application was purportedly for pre-pleading discovery – i.e. documents which were claimed to have satisfied the requisite discovery requirements in order to address or better understand issues within the four corners of the issues as defined by the pleadings at that time (which would only have been Angela’s Statement of Claim).  The proper course of action would have been, as submitted by Mr Yu, for Vivien to take out a fresh application for discovery after the filing of her Defence or upon the close of pleadings (Angela’s Skel, [9]).  As the prematurity argument could not be overcome, the question of LPP was not one that could affect the outcome of the proposed appeal. 

56.  Further, the LPP Ground was not the only ground on which Discovery Summons 1 was dismissed by the Judge.  It was dismissed also on the bases that, inter alia, the SD had already been provided in accordance with Larke and that the classes of documents sought were objectionable by reason of their lack of necessity, unduly wide formulation and the failure on the part of Vivien to show prima facie existence (Discovery Decision 1, [35]-[49], [136]-[142]; Angela’s Skel, [5], [20]-[21]). 

57.  We therefore do not regard Ground A as reasonably arguable.

58.  As regards Ground B, reformulation of the classes of the Relevant Documents does not, in our view, advance Vivien’s position.  There had been no attempt on the part of Vivien to pursue such reformulation by an application to amend Discovery Summons 1 in the court below.  There appears to be no good reason why she should be allowed to do so on appeal (see [38]-[39] of Discovery Decision 1).  In this regard and in respect of the Relevant Documents, one should note that the Judge, quite apart from his concerns about unduly wide formulation of classes, also held as a matter of factthat (i) known drafts of the 2008 Will had already been disclosed in annexures to the SD and Vivien had failed to establish the existence of others (Discovery Decision 1, [138]); (ii) Vivien had failed to establish the existence of other Notes (Discovery Decision 1, [139]; see also [140]-[142]).  We do not consider it arguable that these findings, which resulted in the Judge’s decision to refuse discovery, could be said to be plainly or clearly wrong.  Ground B is therefore not reasonably arguable.

59.  As submitted by Mr Yu, the timing (and prematurity) of the Vivien’s Discovery Summons 1 was a key feature and a primary reason for its dismissal (Angela’s Skel, [9]).  In relation to Ground C, we therefore refer to our comments on this point under Ground A above.  It cannot be said that after the filing of Vivien’s Defence and Counterclaim that the Judge’s objection on the ground of prematurity had become ‘spent’ (Vivien’s Skel, [14]).  What Vivien is attempting to do is to substantially alter, in substance, the very nature of her original application.  We agree with Mr Yu’s submissions in [28] and [29] of Angela’s Skel, and we do not consider Ground C to be reasonably arguable.

60.  Moreover, this court has duly taken into consideration the points raised by Mr Shieh in relation to (i) the issue of prima facie existence of the subject documents and how the CAMP-143 New Evidence (including so-called “revelations from DLA” subsequent to Discovery Decision 1 that WSC are in possession of electronic documents related to the 2008 Will) may shed light on the issue (Vivien’s Skel, [7]-[8]); and (ii) the purported necessity to introduce a “sub-class” of documents, by the Amendment Summons, to “ensure” that documents such as WSC’s “working documents” or documents prepared by Mr Wong “for his own benefit” would still be capable of being disclosed “upon the conclusion of these appellate proceedings” (or rather, in the event that Vivien is given leave to appeal and prevails in the appeals) (Vivien’s Skel, [13]).

61.  Leaving aside the Ladd v Marshall requirements, we are of the view that given the academic nature of the intended appeal by reason of Vivien’s filing of her Defence and Counterclaim (which it was said the discovery sought was needed for), and (as pointed out by Mr Yu at Angela’s Skel, [23]-[27]) that there exists conclusive confirmation by affirmation as to the non-existence of the reformulated class of Relevant Documents (CAMP‑143 Chan 1, [5], [7]-[28]; CAMP-143 Chan 2, [14]), we do not consider that the CAMP-143 New Evidence would take Vivien’s CAMP Leave Summons 1 any further.  In any event, the so-called “working documents” prepared by Mr Wong for his “own benefit” as revealed by the CAMP-143 New Evidence appear to lack precision as a class, as well as necessity.

62.  As regards the Amendment Summons, not only was it filed extremely late (on 10 April 2025, the same day Vivien’s Skel was lodged), a new class which was never canvassed before the Judge is sought to be introduced.  As Mr Yu rightly highlighted, Angela has not had the opportunity to file evidence in this regard, nor is there any reason why what is in effect a fresh discovery application in an intended appeal should be allowed out of the blue (Angela’s Skel, [19]).  Even if one were to consider the class of documents as formulated, i.e. the [1(10)] Documents which encompass those prepared Mr Wong “for his own benefit” relating to the drafting etc. of any will or draft wills of Mother, it seems to us doubtful whether the tests of precision and necessity would in any event be satisfied.  Accordingly, the Amendment Summons is unmeritorious and stands to be dismissed.

63.  We would therefore dismiss CAMP Leave Summons 1, CAMP Evidence Summons 1 and the Amendment Summons.

(II) CAMP Leave Summons 2 and CAMP Evidence Summons 2

64.  By CAMP Leave Summons 2, Vivien seeks to appeal, on DD2 Dismissed Grounds (which have been reformulated as Grounds numbered 4 to 6), against part of [2] of the Judge’s Order dated 12 April 2024, which dismissed Discovery Summons 2 (save in respect of the ordered production by Angela of Items 5 to 11 of Sch.3 to Chan 6, i.e. the DD2 Allowed Relief).

65.  It appeared that by [1(a)] of CAMP Leave Summons 2, Vivien intends to appeal against the Judge’s dismissal of her application for disclosure of the DD2 Dismissed Relief, i.e. the 11 Classes of documents in Sch.1 to Discovery Summons 2 save the DD2 Allowed Relief (which formed part of Class 9) and Class 10 (which was abandoned by Vivien before the Judge).  However, it transpired that the actual documents being sought on intended appeal were much more limited, as seen in [1] of the order being sought on intended appeal (see draft Notice of Appeal attached to CAMP Leave Summons 2 (“CAMP-LS2 Draft NoA”)). These documents are described as (i) “the Relevant WSC Documents” (being electronic documents inspected by Angela’s solicitors at WSC on 29 September 2023[8] which fall under Class 4: see [69]-[72] of Discovery Decision 2, wherein the Judge termed the same “Inspected Documents”; see also Vivien’s Skel, [5(a)]); the “Relevant Mabel Lui Documents”[9] (falling under Classes 6 and/or 7; see Discovery Decision 2, [82]-[86]); and the “CHW-12 Documents” (falling under Class 5, being un-redacted versions of all documents in exhibit “CHW-12” to Chan 6, which are draft SDs approved by Mr Wong, attendance notes approved by Mr Wong and correspondence from WSC containing comments by Mr Wong; see Discover Decision 2, [75]; Vivien’s Skel, [5(b)]).

66.  Vivien’s position regarding the Relevant WSC Documents (i.e. Ground 4 at [4] of CAMP-LS2 Draft NoA) is essentially that (i) the Judge should have concluded that a case of prima facie existence had been established on the evidence because Mr Wong did not deny their existence, that he failed or refused to preserve them despite ASC’s request, that some documents bearing the reference number of “11070” had been produced, and that Mr Wong was in any case expected to “keep proper notes and records" as a solicitor in the ordinary course of practice (Vivien’s Skel, [7]); (ii) Angela had power to produce them, but had obstructed or hindered their disclosure (Vivien’s Skel, [9]); and (iii) it was plainly wrong for the Judge to conclude that such documents were irrelevant (Vivien’s Skel, [10]). 

67.  Despite what was stated in [4(5)] of CAMP-LS2 Draft NoA, Ground 4 is in substance a challenge against the Judge’s factual findings on the evidence against Vivien. In the context of an intended appeal against case management decisions, Vivien faces a particularly high hurdle.  For the following reasons, we do not consider Ground 4 to be reasonably arguable.

68.  First, as Mr Yu has pointed out, the Relevant WSC Documents are wider in scope than the “Inspected Documents” which were for consideration by the Judge when determining Discovery Summons 2, which fell under the “Will File Documents” under Class 4 (see [67]-[72] of Discovery Decision 2).  In connection with this reformulation on appeal of a class of documents for which discovery had been refused in the court below, we refer to our reasons above for dismissing Ground B in CAMP Leave Summons 1.  There is no justifiable basis as to why such reformulation should be permitted. 

69.  Second, the Judge has found, on conclusive affirmation evidence, that no other Inspected Document was in existence other than those already disclosed (Discovery Decision 2, [70]).  We are unpersuaded by Mr Shieh’s submission that merely because Mr Wong did not deny that those documents existed or that he was expected to keep proper records, that this would somehow support a case of positive existence of such documents (Vivien’s Skel, [7]).  We do not see how the Judge’s finding on existence could be said to be plainly wrong. 

70.  Third, as concluded by the Judge (Discovery Decision 2, [71]‑[72]) and as alluded to by Mr Yu (Angela’s Skel, [33]-[34]), the factual finding in the court below, based on the available evidence, was that Angela had no power to produce undisclosed Inspected Documents, if any.  We are not satisfied that Vivien has provided sufficient basis for contending that the Judge had ‘gone clearly wrong’ in this respect.

71.  As regards the CHW-12 Documents (Grounds 5 and 6 of CAMP-LS2 Draft NoA), Vivien says that such documents “surfaced” only at the time of the application under Discovery Summons 2, whereupon Vivien discovered that apart from the involvement of CC in the execution of the SD, another law firm, Keith Lam Lau & Chan (“KLLC”) had also interviewed Mr Wong in 2012 and prepared drafts of the SD for Mr Wong’s review between 2013 and 2014 (Vivien’s Skel, [16]). Vivien contends in the premises that the Judge was wrong to conclude that the CHW-12 Documents were covered by litigation privilege belonging to Angela in her own right (Discovery Decision 2, [75]-[78]) and was wrong to uphold redactions of the same because Angela adduced no evidence in support of her claim of privilege (Vivien’s Skel, [19]-[20]) and provided no particulars in evidence regarding matters such as the giver of instructions to KLLC and the person for whom CC was acting when the SD was being prepared (Ground 5; CAMP-LS2 Draft NoA, [5(1)]). 

72.  In this connection, by CAMP Evidence Summons 2, Vivien seeks to adduce extracts of Angela’s witness statement dated 28 October 2024 (see [1] therein; Exhibit “SYFA-1” to CAMP-144-CACV Siu), which is essentially Angela’s account in her witness statement filed for the Probate Proceedings, which detail the circumstances surrounding the preparation of the SD with the joint involvement of CC and KLLC (and their roles in the process) (“the CAMP-144 New Evidence”). The CAMP-144 New Evidence is essentially intended to be adduced in support of Ground 5.

73.  As regards Ground 5, we agree with the submissions of Mr Yu at [37] to [43] of Angela’s Skel that (i) Ground 5 is essentially an evidence point which is a matter of judgment for the Judge; (ii) it was undoubtedly the case that the CHW-12 Documents were subject to LPP (and the contrary is not reasonably arguable); (iii) the ground seeks to re-argue Discovery Summons 2 on appeal and there is no reason for this to be permitted.  Ground 5 is therefore not reasonably arguable, and we also see no merit in the application to adduce the CAMP-144 New Evidence.

74.  Further and separately, by Ground 6, Vivien argues that the Judge was wrong to hold that there had been no waiver by Angela of the privilege attaching to the CHW-12 Documents, as the SD had been referred to and deployed by Angela in her pleadings (CAMP-LS2 Draft NoA, [6]).

75.  The Judge in Discovery Decision 2 (at [78]-[81]) explained his findings in respect of the CHW-12 Documents as follows:

(a)     the very nature of the SD was that it was made in anticipation of future challenges to the 2008 Will, which translates into an obvious contemplation of litigation (which agrees with Vivien’s own pleaded case).  There is no doubt that the SD is covered by litigation privilege (see also Angela’s Skel, [38]);

(b)     discovery of documents such as correspondence which fell outside the ambit of the Re Fuld exception is to be refused;

(c)     there is affirmation evidence suggesting that the redactions of the CHW-12 Documents were not in connection with the attestation and execution of the 2008 Will (and thus falling outside the Re Fuld exception), whereas Vivien has provided no particulars on evidence (or only bare assertions) as to her challenge to the redactions;

(d)     deployment by Angela of the SD itself in litigation did not equate to a waiver of LPP for the drafts of the SD.

76.  In this regard, we note that the main plank in the Judge’s reasoning behind these findings was his reliance on Re Fuld and Chinachem, both of which were cases concerning questions of privilege and discovery in the context of attesting witnesses and the drafts and finalised versions of witness statements (see Discovery Decision 1, [67]-[76], which was likewise adopted in Discovery Decision 2 at [81] in the context of the CHW-12 Documents). 

77.  While we would readily sympathise with the reasoning of the Judge at [50(2)] of Discovery Decision 2 in that it would be very surprising to contend that once a final document (such as an affidavit, witness statement or expert report) is served (or indeed deployed), all the relevant drafts would automatically be subject to a collateral waiver, we note that the Judge supported this reasoning only by analogy to cases involving attesting witnesses and their witness statements (i.e. Re Fuld and Chinachem) but there appears to be no direct Hong Kong authority on this issue in the specific context of declarations such as the SD, whether in the probate context or otherwise (see Discovery Decision 2, [81]; Angela’s Skel [46]‑[51], fn.79).

78.  In the light of this, we think that notwithstanding that we have dismissed CAMP Leave Summons 1 on an entirely separate and different basis (being prematurity and the unwarranted alteration of the four corners of the original discovery application on appeal), leave to appeal should be granted for Ground 6, but limited to the matters raised in [6(3)] of the CAMP‑LS2 Draft NoA attached to CAMP Leave Summons 2.

CACV Evidence Summons

79.  The fresh evidence sought to be admitted for the purpose of the Discovery Appeal is identical to that which Vivien sought to adduce in support of CAMP Leave Summons 2 by way of CAMP Evidence Summons 2 – i.e. the CAMP-144 New Evidence.  The LPP Grounds in the Notice of Appeal filed in the Discovery Appeal are essentially points of law and/or (in the case of Ground 2 therein) in relation to the CHW-12 Documents.

80.  For similar reasons stated above as regards Ground 5 in CAMP-LS2 Draft NoA, we do not consider there to be any materiality or relevance in the CAMP-144 New Evidence for the disposal and determination of the Discovery Appeal, nor are there other special reasons why the CAMP-144 New Evidence should be permitted to be adduced. 

81.  The CACV Evidence Summons is therefore dismissed.

Disposition and costs

82.  For the reasons given above, we order that:

(a)     CAMP Leave Summons 1, CAMP Evidence Summons 1 and the Amendment Summons be dismissed;

(b)     CAMP Leave Summons 2 be dismissed, save that leave to appeal be granted on Ground 6(3) (namely the matters stated in [6(3)] of the CAMP-LS2 Draft NoA as attached to CAMP Leave Summons 2);

(c)     CAMP Evidence Summons 2 and CACV Evidence Summons be dismissed.

83.  As the applications under CAMP Leave Summons 1 and CAMP Leave Summons 2 (concerning the intended grounds in respect of which leave to appeal was refused) are, in our view, wholly without merit, we make a further order pursuant to Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination of these applications to be considered at an oral hearing inter partes.

84.  Costs should follow the event.  We order (on a nisi basis) costs of and occasioned by CAMP Leave Summons 1, CAMP Evidence Summons 1, the Amendment Summons, CAMP Evidence Summons 2 and CACV Evidence Summons be paid by Vivien to Angela with certificate for 3 counsel, to be taxed if not agreed.  We further order that 80% of the costs incurred by CAMP Leave Summons 2 be paid by Vivien to Angela with certificate for 3 counsel, to be taxed if not agreed, and 20% of such costs be in the cause of the appeal arising from Ground 6(3) in the CAMP-LS2 Draft NoA.

85.  Lastly, we direct that Vivien do file a Notice of Appeal against Discovery Decision 2 limited to Ground 6(3) in the CAMP-LS2 Draft NoA within 14 days hereof.