TO PUI KUI v. NG KWOK PIU AND OTHERS

CACV 281/2012
CACV 1/2013 &
HCMP 2466/2012
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 281 OF 2012, 1 OF 2013 AND

MISCELLANEOUS PROCEEDINGS NO. 2466 OF 2012

(ON APPEAL FROM HCA NO. 523 of 2008)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1. The parties to this action are members of the same family. The Plaintiff is the mother of all the individual defendants. She is now over 90 years old. Sadly, the family had been split into camps and the present action is only one of the many pieces of litigation in which their disputes were brought to the court. We are told that another set of actions will be coming on for trial in January 2015. One of the camps, the 1^st, 4^th, 5^th and 7^th Defendants, is represented by Mr Sussex SC (together with Mr Wong SC and Mr Lai). On the court record, they also represented the 9^th Defendant.

2. The 9^th Defendant, a corporate defendant, is a company incorporated in the British Virgin Islands.  The litigation is about the shareholdings in the 9^th Defendant.  The patriarch of the family was the father, Ng Po Sum, who passed away intestate on 29 March 2002.  The 9^th Defendant was the corporate vehicle deployed in a corporate re-structuring scheme involving various family companies.  As there are still pending litigations in respect of other aspects of the re-structuring exercise, we will not delve into such details. 

3. Shortly after the incorporation of 9^th Defendant [“CAGL”], its shares were allotted to various members of the family pursuant to a board resolution of 3 March 1997.  There were two versions of this board resolution and the quantity of shares allotted to each member was different. As far as the Plaintiff is concerned, in the version which was called “the original resolution” in the judgment below she should have been allotted 23 shares.  In another version, which was called “the official resolution” in the judgment, she would be allotted 10 shares.  Further, under the original resolution, the father would be allotted 25 shares whilst under the official resolution he would be allotted 20 shares. Shares were actually allotted pursuant to the official resolution.  In this action, the Plaintiff disputed the validity of the official resolution which she claimed to be a forged document.  We will refer to this as “the allotment issue” in this judgment.

4. Though the mother is the Plaintiff with all her children being joined as Defendants in this action, some of the children actually supported her.  On the record, the Plaintiff is represented by Mr Aiken SC (together with Mr Khaw and Mr Lung) whilst the children other than those represented by Mr Sussex acted in person in this appeal.  Some of the unrepresented children actually gave evidence on behalf of the Plaintiff at the trial: they are the 2^nd, 3^rd and 8^th Defendants.

5. Another challenge by the Plaintiff in this action is in respect of the subsequent disposal of the 20 shares of the father in CAGL.  There are instruments of transfer and sold notes bearing the signatures of the father dated 8 May 1997 by which those 20 shares were purportedly transferred to the children with the 1st Defendant getting 9 shares, the 5^th and 6^th Defendants getting 3 shares each, and the other children getting 1 share each.  There was no instrument of transfer in favour of the Plaintiff in respect of those 20 shares.  These transfers were not executed by the transferees until 2005, several years after the death of the father.  Actually, of all the children, only the 7^th Defendant knew about the execution of these transfers by the father and they were placed in a brown envelope kept by her over all these years.  The Plaintiff averred in this action that the father did not transfer his shares and the documents were forged.  We will refer to this as “the share transfer issue” in this judgment.        

6. The case was tried before Deputy High Court Judge Seagroatt.  On 30 November 2012 the learned judge [“the Judge”] handed down his judgment.  The Judge did not accept the evidence of the clients of Mr Sussex.  On certain aspects, he accepted the evidence of the children who gave evidence for the Plaintiff.  However, on the allotment issue, after assessing the evidence, he was unable to conclude that the official resolution was a forged document.  He therefore held, albeit with serious reservations, that it was a valid document and the allotments of shares pursuant thereto were valid, see paras 151 and 152 of his judgment.

7. On the share transfer issue, the Judge took a different view.  In light of the grounds of appeal and the arguments advanced before us, it is necessary to have close regard to what the Judge actually said on this part of his judgment.  At paras 153 to 161 of his judgment, he said:

“153.    These documents constitute a wholly different picture.  They are some of the very many pieces of paper of which we have mainly copies and very few originals, which Stephanie Ng said were brought into being in late April or early May before father went to Canada.  That they all bear a date — “8 May 1997” — is clear enough.  When they were actually created is wholly unclear.  They purport to dispose of the father’s remaining 20 shares in CAGL as I have itemized early.

154.   I am not satisfied that the father actually signed them, or if he did sign them, that he actually knew what they purported to be.  His signing of the documents; if he did sign them, was not witnessed.  Miss Chiu, an employee of Stephanie Ng’s company, Vercos, said it was a case of her signing that she identified his signature as being identical to other signatures of the father that she had seen.  He was not even in her presence to identify to her that that was, or those were, his signatures.  It was clear from the evidence of both Stephanie Ng and Philip Ng that father, who was in the office on a daily basis, could easily have signed the documents in the presence of a witness, thereby completing legal formalities, if that was what he intended.

155.   According to Stephanie, he told her to keep them in effect on a secret basis.  If that is true, it was not the action of a man who intended the documents to constitute legitimate transactions.  The fact that they were so obviously incomplete meant that a meticulous man like him did not regard them as effective until they were properly completed, witnessed and dated.

156.   The distribution of his 20 shares was entirely inconsistent with his hitherto prevailing sense of fairness and equitable distribution.  There was no justifiable reason for giving Philip almost 50% of the shares.  The father had done nothing to effect a distribution before he died almost five years later.  Nobody else knew anything about this “secret” set of incomplete, defective transfer documents.

157.   CAGL proceeded on the basis that he still held 20 shares.  He stayed on the register as a shareholder to that extent.  In an Agenda for a meeting of CAGL on 12 July 2005, a meeting which never took place, his shareholding featured in a proposed resolution for distribution.  Not until November of 2005 did the documents apparently see the light of day again, 8½ years after date stamped on them.  Then Philip, Tony and Stephanie alone appear eager enough to try and collect the spoils and arrange for their signatures to be countersigned — it is not safe to say witnessed as the solicitor’s clerk has not given evidence to that effect, though it matters not — leaving out the actual date of their signing. 

158.   I do not think for one moment that the father simply forgot these documents.  He was not that type of man. Assuming that in fact he knew of them he did not intend to put them into effect.  He was content to remain as a shareholder.  Having recovered well from his surgery in Canada, I consider that it is inconceivable that he would have surrendered any control that he could exercise as a shareholder.  Even when his health declined in the final months before his death, he was alert to what he saw as a need to dispose of his interest in Ng Po Sum & Co. and Tony Kwok Tung Ng & Co., assuming those transactions were valid and yet did nothing about the transfer forms, gathering dust in a brown envelope in Stephanie’s desk.

159.   Philip, Stephanie and Tony Ng were quick enough to try and put the cloak of legality on these transfers when they — with Olympia who seems to have been brought under their umbrella in this action perhaps unwittingly — resolved on 23 January 2006 that the “transfers of shares that have been received and entered into the Register of Members at the following date of registration (18 November 2005) be and are hereby approved.”  Two days later — no dates are of course reliable in the context of these corporate activities — there was a resolution purporting to deal with the transfers to the other children, almost as an afterthought.

160.   Those purported transfer documents are null and void.  They do not constitute a settled and completed series of transactions.  To hold otherwise would make a travesty of the situation.

161.   The facts of these purported transfers are wholly different from the circumstances in Re Rose [1952] Ch. 499 and Re Paradise Motor Co. Ltd [1968] 1 WLR 1125.  If this purported donor, viz. the father, signed the relevant transfers it is clear from their subsequent history that he had no intention of effecting them.  The fact that they languished in Stephanie’s drawer (according to her) ignored or overlooked, is entirely inconsistent with the actions of a man who organized the companies so as to give effect to his wishes and, as invalid documents, they were incapable of being registered as CAGL subsequently, 8½ years later, attempted to do.  They remained in the father’s ownership until he died, and thereafter should have been dealt with as part of his estate.”

8. There are two appeals before us.  The first in time is CACV 281 of 2012, the appeal brought by Mr Sussex’s clients (as we said, on the record, including the 9^th Defendant) against the judgment on the share transfer issue.  The Plaintiff also appealed against the judgment on the allotment issue in CACV 1 of 2013.  Notwithstanding the chronological order of these appeals, it is more logical to deal with the Plaintiff’s appeal first, to which we will now turn.

The allotment issue

9. Though we granted leave to the Plaintiff to amend her notice of appeal in CACV 1 of 2013, that leave was granted on the basis of Mr Aiken’s indication to the court that the substance of his submissions on both appeals had been set out in the two sets of skeleton submissions lodged by 14 July 2014, see our Reasons for Decision handed down on the same date of this judgment.

10. We would therefore focus on what counsel submitted in those skeleton submissions as supplemented by his oral submissions at the hearing.  Insofar as there are other grounds or matters set out in the amended version of the Notice of Appeal (which adopted the grounds in the amended Respondent’s Notice in CACV 281 of 2012) which had not been canvassed in those submissions, in light of Mr Aiken’s indication, they are regarded as not being pursued and we would not deal with them separately in this judgment. Suffice to say that we do not consider that those uncanvassed grounds could take the Plaintiff’s case further in these appeals.

11. At the outset of his oral submission, Mr Aiken asked this court to bear in mind the role of the Court of Appeal in respect of findings of fact by the court below.  He referred to the often cited passages in Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 and the speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360 cited therein. We were also referred to some recent cases on the approach of this court in dealing with challenges to the factual findings of a trial judge: Chinachem Charitable Foundation Ltd v Chan Chun Chuen CACV 101 of 2010, 14 February 2011 para 26; Welltus Ltd v Fornton Knitting Co Ltd [2013] 5 HKC 106; Bank of China (Hong Kong) Ltd v Tsang Sheung Bun [2013] 5 HKLRD 62; Pang Ketian Sally v Tam Yuk Hung Annie CACV 147 of 2013, 25 April 2014 and Chow Sau Hei v Ho Keung Yuen CACV 112 of 2013, 7 July 2014.

12. In these appeals, there is no dispute on the correct approach and it is not necessary for us to discuss at length what had been fully discussed in those authorities.  Though it is possible to challenge a finding of fact on appeal, this court will only disturb such a finding, whether it is a finding based on assessment of credibility of witness or assessment of inherent probability or both, when it is plainly wrong.  In addition to the reasons set out by Lord Hoffmann, part of the rationale for that approach is to be found in the citations in the speech of Lord Reed JSC in McGraddie v McGraddie [2013] 1 WLR 2477 which were again quoted in the recent judgment of this court in Bank of China (Hong Kong) Ltd v Tsang Sheung Bun [2013] 5 HKLRD 62 at para 25.  As observed by the US Supreme Court in Anderson v City of Bessemer (1985) 470 US 564, the trial on the merits should be the main event rather than a tryout on the road.  And the observation of the Canadian Supreme Court in Housen v Nikolaisen [2002] 2 SCR 235 para 14 is equally apposite in this jurisdiction:

“The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged.”

13. In the present case, the trial lasted for 17 days between 3 October and 1 November 2012 and the Judge gave judgment promptly on 30 November 2012.  There is no suggestion on the part of Mr Aiken that the Judge overlooked any salient piece of evidence or any relevant submissions of the parties when he gave his judgment.  There is no reason to call for a heightened scrutiny by this court as in the case of Chow Sau Hei v Ho Keung Yuen CACV 112 of 2013, 7 July 2014.

14. Compared with the Judge, only three days were reserved for the hearing of these appeals in this court.  Skeleton submissions were lodged, but the scale and range of the submissions were nothing comparable with those placed before the Judge.  The time available to members of this court for the preparation of these appeals was much less than the time spent by the Judge on the case. 

15. We are not making these comparisons to discredit the appeal process.  On the contrary, we say it is right that appeal should take up less time.  This demonstrates the proper dichotomy of roles between the trial court and the appellate court and the efficient deployment of resource in the judicial process.  The underlying philosophy for our judicial system is that the trial instead of the appeal should be the main event in a piece of litigation.  The appellate process is there to rectify palpable errors on the part of the primary trial judge.  An appeal is not intended to afford an opportunity to the litigants to have a second round of trial.  Thus, as a general rule, this court will not hear oral evidence as the trial court did.  And it is not possible for this court to carry out a detailed and minute weighing exercise in respect of all the evidence that had been adduced at the court below.  In an appeal, this court focuses on what an appellant alleges to be the errors committed by the primary judge.  The arguments advanced on an appeal should be precise and focused.  It also follows that in many instances the attention of this court is directed to a particular aspect of the evidence or a few snapshots in the evidence given by a witness. 

16. Thus, with a proper understanding as to the function of the appellate process and role of the Court of Appeal, any approach other than that discussed in the authorities in dealing with challenges to factual findings by the trial judge would not be consistent.

17. Coming back to the present appeals, Mr Aiken submitted that having regard to his other findings in the judgment, the Judge should have found that the official resolution was a forgery.  However, he eschewed from characterising the Judge’s conclusion on the validity of the official resolution as perverse.

18. Counsel referred to the following findings by the Judge:

“12. …

(1) Philip’s Group’s case is “unreal”, “contrived”, “unreliable”, “dubious”, “incredible”, and/or “unconvincing” (see Judgment, paras 68, 83, 84, 86, 94, 95, 103, 104, 105, 107, 110, 114, 119, 121 and 144).

(2) It was difficult to believe that Mother would have agreed to the reduction of her shares in CAGL to 10 shares (Judgment, 137).

(3) It was unlikely for Father to “downgrade” Mother by reducing the number of her shares in CAGL unless he was put under pressure or was manipulated by one or more of his children at that time (Judgment, para 138).

(4) The official resolution “may have been” forged (Judgment, paras. 139 and 140). Further, the judge rejected the evidence of Phillip, Tony and Stephanie on their explanation on the creation of the official resolution (Judgment, paras 141-143).

(5) There was nothing which suggested that the original resolution was only a draft (Judgment, para 145).

(6) The official resolution was regarded as an “aberrant” behaviour of Father which could not be properly explained (Judgment, para 151).”

19. In addition, he also referred to the evidence in relation to a forged marriage certificate of Tony, the 5^th Defendant.  The Judge alluded to that piece of evidence at para 140 of his judgment.  However, as accepted by Mr Aiken, despite his misgivings about Tony’s evidence and his observation on forger’s skill being involved regarding that document, the Judge did not make any finding that Tony had been involved in procuring the document to be prepared.  In light of that, this piece of evidence could not be of any avail in terms of the Plaintiff’s proof of forgery of the official resolution.

20. On the other hand, as Mr Sussex submitted, there was evidence before the Judge which pointed to the official resolution as a genuine document.  First of all, there was handwriting expert evidence and it is noteworthy that even the Plaintiff’s own expert (Mr Leung) held the view that the father’s signatures on the document were probably written by him.  Mr Browne, the expert for Mr Sussex’s clients, expressed the view that in terms of handwriting examination there was very strong evidence of authenticity of these signatures.  Their joint opinion in their joint statement of 5 October 2012 was that “in spite of the differences of terminology and level of certainty”, the father wrote the signatures on this document. 

21. Though both experts highlighted the fact that they were only given high resolution scanned images of the documents to conduct their exercise, and both of them mentioned the shortcomings of the exercise in that regard, they did not feel unable to express their opinions.

22. Perhaps more importantly in the case of Mr Leung’s report, he highlighted some special features of similarity between the questioned signatures and the samples.

23. The Judge considered the evidence of the handwriting expert at paras 39 to 43 of his judgment.  His view was that overall the evidence in relation to the father’s signature is inconclusive.  He paid more regard to what he called the substantial extraneous evidence, meaning the evidence of the factual witnesses.  Thus, the Judge did not reject the Plaintiff’s case on forgery of the official resolution simply on the basis of the expert evidence. 

24. Mr Sussex also referred to the documentations for the implementation of the official resolution as contemporaneous evidence supporting the authenticity of that resolution.  These included written applications for allotment signed by all family members (including the Plaintiff), the share certificates issued pursuant to such allotment signed by the father and 3 declaration of trusts executed by Stephanie (the 7^th Defendant) and Andrew (the 8^th Defendant).

25. Though the authenticity of these documents were also put in issue, Mr Sussex pinpointed the following features as to the inherent improbabilities of these documents being forged: father was in control of the family affairs until he died, and Andrew said in his evidence that prior to November 2000 he was aware of the share certificates issued to the family members.  If such documents were forged, they would have been exposed during the lifetime of the father.

26. In contrast, there is no documentation for the implementation of the original resolution.

27. Mr Sussex made similar submissions at the court below.  Though the Judge did not refer to them explicitly, he said at para 152 of his judgment:

“In respect of the “official” resolution I have to bear in mind that it has a second printed sheet, signed by the directors including mother and Andrew (although that is not conclusive against the “original” version) but I have no evidence to regard it as other than a genuine two-page document, one of the few original documents in this case, and it does bear the imprinted seal of CAGL, although that could have been impressed at any time.  Furthermore, it has been acted upon in the course of CAGL’s activities.  Accordingly I have to accept, not without some serious reservations, that Core Bundle 1 p.15/16 (Exhibit D5), the “official” resolution as I have termed it, is the valid resolution determining, inter alia, the allocation of shares.” (our emphasis)

28. Thus, the Judge was of the view that the official resolution had been implemented.

29. The Judge’s reference to the lack of evidence cannot be the reference to the lack of evidence from the Plaintiff to refute the factual evidence of the opposing camp.  As we shall elaborate below, the rejection of the evidence of those supporting the official resolution does not by itself prove that the resolution is a forgery.  In this paragraph, the Judge was clearly referring to the Plaintiff not giving evidence at the trial.  She being one of the signatory of the official resolution and as plaintiff bearing the burden of proving that it was a forged document, her unexplained absence (though she had filed a witness statement and had previously given evidence in another trial in the same year) was something the Judge was entitled to take into account.  Though the Judge did not in terms draw any adverse inference against her due to her absence, he did remark upon her absence at paras 44 and 45 of the judgment.

30. Looking at the Judge’s finding against such state of evidence, it is very difficult to say that the matters relied upon by Mr Aiken must necessarily drive the court to the conclusion that the official resolution is a forged document.  Counsel was obviously right when he accepted fairly that he could not advance a submission that the finding of the Judge was perverse.

31. Since it was the Plaintiff who alleged that the official resolution was a forged document, she bore the burden of proving that the signatures of the father were not genuine.  The judgments of the Court of Final Appeal in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 and Ming Shiu Chung v Ming Shiu Sum (2006) 9 HKCFAR 334 clearly stated that inferences of fraud or forgery were not to be reached by conjecture.  There must be a proper foundation of primary facts to provide a reasonable basis for a definite conclusion of such serious misconduct to be inferred.

32. With respect, the findings of the Judge which Mr Aiken relied upon, whether considered individually or collectively, cannot provide a proper foundation for drawing an inference that the signatures of the father in the official resolution were forged.  The rejection of the evidence of the children in the opposing camp merely means that the official resolution was not produced in circumstances deposed by them.  Even if there were unexplained features in the genesis of the document in terms of the unlikelihood of the Plaintiff to agree to reduction of her shareholding and the father’s “aberrant” change of stance on the distribution of shares (from that set out in the original resolution to that in the official resolution), these could not be a basis for drawing inference against those defendants in view of the failure of the Plaintiff to give evidence and the demise of the father. For reasons canvassed later in the context of the appeal on the share transfer issue, we do not think one can place much reliance on the Judge’s finding at para 138 of his judgment.

33. Further, if one were to draw any inference of forgery, the evidence against such inference must also be taken into account. In light of the evidence we have already mentioned in the earlier paragraphs, such an inference cannot be reasonably drawn.

34. For these reasons, the finding of the Judge was not plainly wrong and the appeal by the Plaintiff on the allotment issue must be dismissed with costs.

The share transfer issue

35. We have already set out above the Judge’s findings on the share transfer issue.  Mr Sussex submitted the Judge erred in the following respects:

(a) Insofar as the Judge made a finding that the instruments of transfer and the sold notes were forged, the Judge had reversed the burden of proof and disregarded the guidance given in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387;

(b) Further, the Judge had insufficient evidential basis to come to a finding of forgery in light of the handwriting expert evidence;

(c) Insofar as the Judge relied on grounds other than forgery to come to the conclusion that these documents were invalid, he went beyond the pleaded case of the Plaintiff and it was not a course open to him;

(d) The Judge’s finding that the distribution of the 20 shares pursuant to these documents was inconsistent with the father’s prevailing sense of fairness and equitable distribution was flawed; and

(e) The Judge’s finding that the execution of these documents was defective was also wrong in law.

36. In light of the challenge based on the pleadings of the Plaintiff, it is necessary for us to set out the Plaintiff’s case on the share transfer documents.  It is pleaded at para 14 of the Statement of Claim:

“14. The Deceased did not, whether on 8^th May 1997 or at any other time, transfer his shares in the 9^th Defendant, whether being 25 shares allotted to him in the first board meeting on 3^rd March 1997 or 20 shares as alleged by the 5^th Defendant, to the 1^st to 8^th Defendants:-

Particulars

(1) The Deceased was not in a physical state capable of executing transfer of his shares. He underwent severe medical tests at the beginning of May 1997;

(2) The Deceased was under the close supervision of the Plaintiff because of his poor health and the Plaintiff was not aware of the Deceased executing transfer of his shares;

(3) The signatures contained in the transfer documents in relation to the transfer of the Deceased’s shares were forged and did not belong to the Deceased;

(4) Neither the Deceased nor the other Defendants made application to the 9^th Defendant in respect of the alleged transfer. The Deceased remained on the share register of the 9^th Defendant;

(5) There was an unduly long lapse between the alleged transfer by the Deceased on 8^th May 1997 and the revelation of the same to the Plaintiff in around November 2005; and

(6) The Plaintiff has been kept distant from the corporate documents of the 9^th Defendant.”

37. It is plain that the Plaintiff had not pleaded a case of the father being subject to undue influence or pressure or other forms of manipulation by anyone in respect of the execution of these documents (and the official resolution).  Thus, insofar as the Judge’s reference to such pressure or manipulation at para 138 of the judgment had implicitly been adopted by him in his assessment of the validity of the share transfers, it was not a course open to him.  Likewise, there is no plea of lack of knowledge and there is no evidence to support a finding of lack of knowledge.

38. On the face of the judgment, the Judge’s alternative ground for holding the share transfers to be invalid was primarily based on a finding of lack of intention to give legal effect to the documents. But a party signing a document is usually bound by it. The unilateral intention of a party executing a document is not a ground for not giving effect to it. It is only when the intention is made known to the recipient of the documents and the recipient is, for some additional reasons, bound by such intention (e.g. delivery in escrow, conditional delivery or unconscionable conduct).   

39. Notwithstanding his skeleton submissions to the contrary, Mr Aiken properly accepted at the hearing before us that the Plaintiff had not pleaded an alternative case of the father’s lack of intention to give legal effect to the documents. There is also no plea in the statement of claim that the documents were executed in escrow with conditions or that they were delivered to Stephanie on certain conditions and those conditions had not been fulfilled.  However, Mr Aiken submitted that the finding of the Judge can be upheld on the ground that the relevant evidence on lack of intention had been canvassed at the trial and Mr Sussex had indeed advanced submissions thereon in his closing submissions at the trial.  In those circumstances, Mr Aiken submitted that the Plaintiff can rely on the following proposition taken from the judgment of Ma CJHC (as the Chief Justice then was) in Wing Hang Bank v Crystal Jet International Ltd [2005] 2 HKC 638 at para 7:

“What has just been set out is not to be construed as an encouragement to take ‘pleading points’ … Nor will objections as to pleadings have much force where the parties have chosen to disregard the pleadings and conduct the hearing on some unpleaded basis …Ultimately, a court is to be guided by what is fair and just in the circumstances, not just to the party seeking to rely on the unpleaded case but to all the parties before it. …”

40. It is also relevant to note what the Chief Justice said at para 6(2):

“… Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained. It will simply not do for unpleaded issues to be ‘slipped in’ when evidence is being given in the hope that the other side is not sufficiently alert to object. Much testimony given in the course of a trial may in truth relate to a number of possible aspects or may simply be background information. Obviously, counsel must be astute to object when necessary but the primary responsibility of ensuring that any issue is properly before the court is on the party seeking to advance that issue. He must do so clearly and not ambiguously, and the usual way of doing so is through the pleadings. …”

41. With respect, having read the relevant parts of Mr Sussex’s closing submissions and also the relevant parts of Mr Aiken’s closing submissions at the trial, we do not think this is a case where parties had agreed to disregard the pleadings and an alternative case of father’s lack of intention to give legal effect to the share transfers had been fairly and squarely raised before the Judge.  Nothing was said in Mr Aiken’s closing submissions to advance a case in the alternative to the forgery case that even if the share transfer documents were executed by the father, they were not intended to be effective.  Nor was there any suggestion that the father had executed the documents conditionally.  The paragraphs in Mr Sussex’s closing submissions which Mr Aiken drew our attention to dealt with the alleged suspicious circumstances in the context of the forgery case and it concluded at para 210 by inviting the court to conclude that the signatures of the father on these documents were genuine.

42. It is one thing to rely on the father’s state of mind to urge the court to conclude that the documents could not have been executed by him in the context of a case of forgery.  It is quite another thing to advance a case of the documents, though executed by the father, were not legally effective due to some aspects of the father’s intention.

43. The lack of debate by counsel on the scenario of the father executing the documents without any intention of giving legal effect to the same has impacted upon the judgment.  In the few paragraphs in the judgment on this issue as set out above, the Judge referred to the intention of the father at paras 154 (“if that was what he intended”), 155 (“not the action of a man who intended the documents to constitute legitimate transactions”), 158 (“he did not intend to put them into effect”), 161 (“it is clear from their subsequent history that he had no intention of effecting them”).  With great respect, there was not much legal analysis in the judgment as to the implications of these findings before the Judge concluded at para 160 that these documents were null and void.  

44. As far as one can gather from the judgment, the Judge seems to be of the view that even if the father had signed the documents he had not completed all the steps in effecting the transfers.  That, in the view of the Judge, reflected his intention not to give effect to the documents (as he stated in paras 155 and 158 of the judgment).  In effect, he was holding that the father’s delivery of the executed documents to Stephanie was subject to some conditions. But we have no finding as to why the father delivered the documents to Stephanie when he did not intend to give immediate effect to them and what those conditions were. 

45. As there was no such plea in the Statement of Claim, the children opposing the Plaintiff’s claims had not been given any notice that conditional delivery was a case they had to meet at the trial. Even up to now, we do not know what those conditions were.

46. From the transcript of her evidence, it does not appear that it had been put to Stephanie that the delivery by the father of these documents to her was subject to conditions.

47. In these circumstances, we agree with Mr Sussex that the Judge’s finding on the lack of intention on the part of the father as a ground for invalidating the share transfers cannot be sustained.

48. Further, the Judge’s rejection of the submission of Mr Sussex on the application of Re Rose [1952] Ch 499 and Re Paradise Motor Co Ltd [1968] 1 WLR 1125 in terms of the perfection of the transfer after the demise of the father was based on his finding as to the intention of the father (on the scenario that he had executed those documents).  Once we reach the conclusion that such a finding was not open to the Judge because of how the case had been conducted before him, there was no reason why the principle in those cases cannot be applied.

49. Under Section 30(1) of the BVI International Business Companies Act, shares in a BVI company may be transferred by a written instrument of transfer signed by the transferor and containing the name and address of the transferee.  Though under Section 30(3) of that Act, a company shall not be required to treat a transferee as a member until his name has been entered in the share register, it only relates to the position between a transferee and the company.  In our view, it does not affect the application of the principle in Re Rose in terms of the validity of the transfer as between the father (or his estate) and the transferees.

50. Mr Aiken advanced two arguments to counter this submission on Re Rose:

(a) There was no pleading that the transfers were by way of gift; and

(b) There was no valid resolution by CAGL approving the transfers.

51. In terms of pleadings, as discussed above, the Plaintiff did not plead any challenge to the transfers apart from the plea at paragraph 14 in the Statement of Claim.  There was no plea that for a reason other than forgery, the transfers were not valid or effective.  It is therefore understandable that there was no plea of gift by way of defence.  In the first place, the Plaintiff could not rely on the incompleteness of the transactions (viz the non-execution of the transfers by the transferees) as a ground to attack the validity of the share transfers.  The Judge considered the apparent non-execution of the documents by the transferees before the demise of the father.  Insofar as the Judge examined that as a secondary circumstantial factor in assessing the primary question of forgery, it is a permissible course.  However, insofar as the Judge went beyond the issue of forgery and relied on the incompleteness of the transactions as a primary ground for holding the documents to be void and invalid, it was not within the scope of the pleaded case.  In any event, under such circumstances, fairness dictates that, if necessary, the defendants should be allowed to answer the same by reference to non-fact sensitive arguments though they were not pleaded.  The Re Rose point was raised and decided by the Judge not by reference to any lack of pleadings. Given that the transfers were made with nominal consideration, there cannot be any dispute that they were made by way of gift. 

52. As to the need for a resolution by CAGL, again it is not a point covered by the pleaded case of the Plaintiff.  The Judge did not decide the validity of the transfers on that account.  No finding has been made by the Judge in that respect.  We do not think it right to engage on this issue in these appeals.  Suffice to say, as mentioned above, the absence of a resolution only has bearing on the position between the company and the transferees, not as between the father (and his estate) and the transferees.

53. Coming now to the pleaded issue of forgery, we start by observing that the Judge in his judgment did not make a clear finding that the instruments of transfer and the sold notes bearing the father’s signatures were forged.  With respect, there is a difference between a holding by a judge that he was not satisfied that the documents were executed by the father (as the judge said at para 154 of the judgment, followed by the words “or if he did sign them”) and a holding that he was satisfied that the documents were not executed by the father.  The latter is a finding of forgery.  The former is not.  If a party bears the burden of proving the authenticity of a document, there could be many reasons why he or she fails to discharge such burden without the court being able to conclude positively that the document is a forgery.  On the other hand, if the burden is on a party to establish forgery, he or she does not discharge that burden simply because his opponent (who does not bear any burden of proof) fails to prove positively that the signatures were genuine.

54. In the present case, the Plaintiff bears the legal burden of proving that the signatures of the father on these documents were forged.  The opposing defendants did not bear any legal burden of proving them to be genuine.  The way the Judge expressed himself at para 154 indicates he could not reach a positive finding of forgery.  Not only did he confine himself to saying he was not satisfied that the father signed the documents, he also went on in the same sentence to make observations on the assumption that the father did sign the same.  In several subsequent paragraphs, he alluded to a scenario premised on the father having signed the documents.

55. At this juncture, we have to refer to an unusual course taken by Mr Sussex after the end of the hearing before us.  The hearing was concluded on 16 July.  On 17 July, we received a two-page Further Submission (with 7 paragraphs) from Mr Sussex.  The document was lodged without leave from this court.  It was copied to counsel and solicitors acting for the Plaintiff.  However, it was not copied to the unrepresented defendants.

56. We must state firmly that this is not a proper course to take.  After the close of a hearing, unless the leave of court has been given, no further submissions should be advanced whether by counsel, solicitors or litigants in person.  In light of what had happened even when experienced counsel is involved, it is necessary for us to reiterate the observations by Pickering Acting CJ in Sheung Kwok Leung v R [1976] HKLR 742 at 755:

“There are no grounds for the assumption that this Court will permit further argument either orally or in writing after the conclusion of the hearing of the appeal. Were this to be allowed as a practice the task of the Clerk of Court in organizing the court’s calendars would be rendered unmanageable and that of the judges in hearing and deciding the appeals coming before the court, impossible. There may be cases in which something both cogent and urgent comes to counsel’s attention after the conclusion of the hearing of the appeal and in such circumstances - and they must be very rare - with the consent of the other side and, we emphasise, the approval of this Court, it may be permissible to allow a second bite at the cherry.”

57. See also the postscript to the judgment of this court in陳梓深對金源洋樓業主立案法團CACV 235/2002, 14 April 2003[1].

58. Thus, even in the rare and exceptional circumstances as described by the Acting CJ, the party who wishes to advance further submissions should, as a matter of courtesy and proper practice, approach the other parties first to see whether they agree to the lodging of the further submissions.  Even if there is a consensus between the parties, they must apply for leave from the court before such further submissions are lodged.  It cannot be assumed that the court would necessarily adopt the course suggested by the parties.  Whether the court will entertain a further round of submissions is a matter of discretion bearing in mind the general rule that all arguments should have been canvassed at the hearing and further submissions should be rare and exceptional.

59. In the present case, Mr Sussex started by saying in his Further Submissions that few things could not be better expressed with the benefit of reflection.  In our view, that is precisely the reason why the court should not lightly allow further rounds of submissions after the close of a hearing.  Otherwise, counsel and litigants in person would be tempted to recast their submissions in view of what was said at the hearing and there would be proliferation of submissions and escalation of costs.  This would not be conducive to the effective and efficient management of the process.  After all, there is no guarantee that the further submissions, if entertained, would not trigger the need for a further hearing (which may not be able to be scheduled within the near future in order to fit the diaries of the court, counsel and parties) and the determination of a matter will be unduly delayed.

60. However, the points made by Mr Sussex were closely associated with the submissions on the approach in Nina Kung v Wong Din Shin, supra already canvassed at the hearing. Even without the arguments being raised in the Further Submissions, this court would have to consider the same in the context of arguments raised at the hearing.  In those circumstances, in order to avoid any unnecessary sense of grievance arising from the points being considered without the other parties having any opportunity to address the same, we decided to grant leave exceptionally.  We also gave directions for the other parties to put in their written submissions in response.

61. We must emphasise the exceptional nature of our decision in this instance.  With our reminder of the general approach of the court in the above paragraphs, this court will not read any further submissions lodged after hearing without leave in the future and they would be returned unread.

62. In the reply submissions of Mr Aiken, counsel attached an Appendix A dealing with matters other than those raised by Mr Sussex in his Further Submissions. We have not given leave for this document to be submitted and we do not see any reason why this course should be condoned after we have reminded counsel on the proper practice and stated clearly in our directions of 18 July 2014 that no further submissions shall be lodged without leave.  We have accordingly directed our clerks to return Appendix A to counsel unread.  

63. As in most forgery cases, there is no direct evidence of forgery in the present case.  In Nina Kung v Wong Din Shin, supra, after referring to Re H [1996] AC 563 on the standard of proof for serious allegations, Ribeiro PJ discussed the proper approach in deciding whether an inference of forgery can be drawn from circumstantial evidence at paras 185 to 187.  The court must guard against conjecture under the disguise of drawing an inference where the primary evidence does not logically and reasonably justify the inference in question. Citing the judgment of the High Court of Australia in Luxton v Vines (1952) 85 CLR 352 at 358, which in turn cited the judgment of Lord Robson in Richard Evans & Co Ltd v Astley [1911] AC 674 at p.687, the distinction between conjecture and the drawing of a proper inference was explained as follows:

“… where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture …”

64. At para 186, citing Jones v Dunkel (1958-59) 101 CLR 298 at 305, His Lordship stressed that it is not permissible for the court to choose the more likely of two guesses if neither is properly justified by the primary facts found.

65. Further, at paras 230 and 233-4, Ribeiro PJ criticised the judge in that case in adopting the approach of making a finding of forgery on the basis of the appellant’s failure to dispel suspicious circumstances.  That was a case in which the appellant, in propounding a will in a probate action, bore the burden of proof on the execution of a will.  Thus His Lordship discussed the matter in the context of evidential burden of proof at para 233:

“… The evidential burden on the respondent was to adduce evidence which, properly assessed was capable of justifying a reasonable inference that the relevant signatures were forged. It was not enough merely to raise ‘suspicious circumstances’ about matters surrounding the contested will. That is an approach which places a burden on the proponent which is potentially impossible to dispel, human ingenuity being such that, with little effort, a procession of supposedly suspicious circumstances and unanswered questions can be paraded before the court. …”

66. A fortiori, the same must be true in respect of a case like the present where the Plaintiff bore the legal as well as the evidential burden to prove forgery.

67. Mr Sussex submitted that the Judge acted against the guidance from the Court of Final Appeal in drawing an inference against the opposing defendants.  Two main lines of arguments were made by counsel.  First, the extraneous circumstances relied upon by the Judge amounted to no more than unanswered or unexplained circumstances (which the defendants did not carry any burden to dispel) and as such do not constitute primary facts justifying an inference of forgery as opposed to a conjecture.  Second, even in the Judge’s own findings as set out at paras 154 to 158, the Judge himself was not able to say which scenario was more likely: the signatures being forged or the father signing the documents without any knowledge or without any intention to give legal effect to them.

68. Mr Aiken resisted the appeal by contending that the Judge actually took into account inherent probabilities in coming to the conclusion that the signatures were forged.  In his Supplemental Skeleton Submissions of 14 July 2014, counsel referred to the following as the matters pointing to the inherent improbabilities of the signatures on the instruments of transfer and the sold notes being genuine signatures:

“(1) Father’s overriding objective to provide for the family fairly and to ensure that Mother would be sufficiently taken care of (see Judgment, paras 10-15 and 17 [CB1/103-5].

(2) Evidence of Stephanie on the alleged “secret” between her and Father and her failure to remember such transfer until 2005 (Judgment, paras 83-86; 155-156 [CB1/126-7]). See also the judge’s view on Tony’s evidence (Judgment, paras 115-116 [CB1/136]).

(3) Inherent inconsistencies between Stephanie’s evidence on the “secret” transfer and Philip’s evidence on the “kitchen conversation” before Father’s operation (Judgment, paras 102 and 103 [CB1/131-2]). [See also the judge’s finding that it was unreal for Father to tell that he was devoid of wealth and assets in front of Mother and children (Judgment, para 121 [CB1/138])].

(4) Lydia Chiu’s admission (her Witness Statement, paras 7 and 8 [D/60], Transcript, Day 21 p.39 line 11 to p.41 line 3 [B4/1642-4]), that she never actually saw Father sign any of the documents in front of her. In fact, Father was not even in her presence to identify his signatures (Judgment, para 154 [CB1/147]).

(5) The disproportionate division amongst the children and the omission of any allocation to Mother, in view of the alleged transfer of 20 shares (see Judgment, paras 77 [CB1/124]). Particularly, the division was inconsistent with the NSMAL scale which Tony said he persuaded Father to adopt in relation to the allotment of shares in March 1997 (Transcript, Day 17, p.105 line 9 – p.107 line 20 [B3/1280-21]).

(6) Father would not have forgotten about the transfer documents. Neither would he have agreed to surrender control of his family companies, given that he recovered well from the surgery and resumed work thereafter (Judgment, para 158 [CB1/149]).

(7) Statutory book of HEL produced by Philip Group, which was purported to be a genuine contemporaneous document but was later found to be a reconstruction of the old records (Judgment, para 32 [CB1/110]) (see also Transcript, Day 3, p.30 line 5 to p.37 line 3 [B1/354-361]).

(8) The Agenda for the EGM of CAGL on 12 July 2005 [F1/263] in which Father was regarded as still holding 20 shares in CAGL (Judgment, paras 87-89 and 107) [CB1/127-8, 133]. Hence, CAGL proceeded on the basis that Father still held 20 shares (Judgment, para 157 [CB1/148]). Assuming that there was a secret between Father and Stephanie about the transfer, Stephanie should have corrected the Agenda which recorded Father as still the owner of 20 shares. Alternatively, assuming Philip was right in that there was a conversation before the operation in May 1997 in which Father told Mother and children that he had disposed of all his wealth and assets, Philip (or Olympia) should have pointed out that the information stated in the Agenda was wrong.

(9) Philip’s Group’s change of evidence on whether actual meetings were held during the period between 1 and 8 May 1997 (Judgment, paras 92-95 [CB1/129-130]).

(10) The circumstances in which the transfer documents were signed (Judgment, paras 79-82 [CB1/125-6]).

(11) Lack of original documents produced (Judgment, paras 32, 165 and 167) [CB1/110, 151]).

(12) Bizzare state of a series of documents dated 8 May 1997 (Judgment, para 76 [CB1/124]).

(13) Self-serving statement contained in Philip’s Group’s pleading (Judgment, para 29 [CB1/34]).

(14) Philip’s evidence that he did not know that Father had undergone a series of medical tests in the first week of May 1997 which was regarded as incredible by the judge (Judgment, para. 104 [CB1/132]).

(15) Tony’s false marriage certificate (Judgment, para 140 [CB1/143]).”

69. Some of these related to the rejection of the evidence of the opposing defendants by the Judge. However, the rejection of their evidence per se does not provide a reasonable foundation of primary facts for an inference that the signatures were forged.  Otherwise, the court in effect imposes a burden on these defendants to dispel suspicion, an approach disapproved by the Court of Final Appeal in Nina Kung v Wong Din Shin, supra.

70. In respect of the father’s objective to provide for the Plaintiff, it was achieved by the resolution of Hultucktong Enterprise Limited [“HEL”] of 18 Feb 1983 modelled upon article 44 of the articles of association of Ng Sheung Ming Association Limited [“NSMAL”]. There is no evidence to suggest that the opposing defendants intended to exercise their voting power in CAGL in any way to upset the HEL resolution. The cessation of provision after dispute arose was due to the freezing of the company accounts by the bank.  As submitted by Mr Sussex, it had never been achieved by way of giving the Plaintiff majority shareholding in the family companies.  As discussed in the course of hearing, if the consensus of the family members with regard to the provision for the Plaintiff under this scheme is not honoured by the majority of the shareholders in CAGL, Mr Aiken did not dispute that there are corporate law remedies open to the Plaintiff.  Thus, the Judge’s perception at para 138 of the judgment that the reduction of the Plaintiff’s shareholding amounted to a “downgrading” of his regard for her cannot be sustained. 

71. As for the distribution of shares amongst the children, which was also a point alluded to by the Judge at para 156 of his judgment (thus a matter the Judge took into account), even under the original resolution the distribution was not equal, Philip, as the eldest son, got more than the other children.  Under the official resolution (which the Judge did not feel able to find as a forgery notwithstanding that he perceived the same as aberrant behaviour on the part of the father), some children got more shares than others: Jeremy got 18 shares; Philip, and Tony got 16 shares each whilst other got 8 shares each.  Against such background, the unequal distribution of the 20 shares in question (with Philip getting 9 shares; Tony and Jeremy each getting 3 shares and the others each get 1 share) cannot per se be a reasonable basis for inferring that the signatures of the father on these documents were forged.

72. Some matters Mr Aiken relied upon are, in our judgment, neutral in terms of the drawing of an inference of forgery as opposed to mere suspicion about the genesis of the transfers: Lydia Chiu not witnessing the actual signing of the documents; the maintenance of control of the family companies by the father after his recovery from the surgery; the statutory books of HEL being a reconstruction of old records; the circumstances under which the documents were signed by the transferees; the lack of original documents alluded to at paras 32, 165 and 167 of the judgment; how the dates were put on the documents and the rejection of Stephanie’s evidence at para 76 of the judgment; the false marriage certificate (see our earlier discussion on this topic). 

73. At para 165 of his judgment, instead of coming to a conclusion that there was forgery of documents, the Judge said, “Mystery surrounds a vast number of documents which have failed to be disclosed.” And at para 167, he said, “Given the somewhat lackadaisical and/or obstructive way in which Philip’s group have dealt with disclosure it is possible that some matters may emerge in the future from the woodwork.  One obvious interpretation of this situation is that the offenders have something to hide.”   

74. The Judge was entitled to be critical about the failings on the part of these defendants in proper disclosure of documents.  But “mystery” and “something to hide” cannot be elevated to become the foundation for a positive finding of forgery. Forgery is a finding of a more serious nature which requires more compelling evidence to overcome its inherent improbability (see ADS v Brothers (2000) 3 HKCFAR 70 at p.78F and 96 I; HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336 at para 72).

75. Reliance is also placed on item 10 of a draft agenda of a meeting of CAGL of 12 July 2005 (which according to the Judge was not held, see para 88 of his judgment).  The Judge referred to this piece of evidence at paras 87, 88 and 107 of his judgment. The item was apparently deleted from a version of the agenda which was relied upon by Philip, see para 107.  At para 157, the Judge again pinpointed this as evidence of CAGL proceeded on the basis that 20 shares were still held under the father’s name in 2005. 

76. This draft version was overlooked and neither Andrew nor Tony gave evidence on it (see para 88 of the judgment).  The Judge found Philip’s evidence on this deleted item unsatisfactory. But he did not make any finding on the identity of the person who included this in the draft and how it came to be deleted.  Thus, the Judge said at para 107, “It remains somewhat of a mystery.”

77. It is not clear from the judgment as to why the Judge referred to this draft version (the document was marked as a draft)  as if it was an act of CAGL at para 157 of his judgment.  It is also not clear as to how (and on what evidential basis) the Judge had resolved the mystery as to whether Philip or Tony or other opposing children was/were involved in the inclusion or deletion of item 10.

78. Without any findings by the Judge that Philip, Olympia or Stephanie had knowledge about item 10, there is no foundation for making the comments as set out at sub-para (8) of Mr Aiken’s submissions.

79. To the extent the Judge referred to the fact that the father stayed on the register of CAGL as a shareholder of 20 shares to support his view that CAGL proceeded on the basis that he still held 20 shares, no-one can quarrel against that.  Likewise, the Judge was entitled to take into account of the lapse of time between the alleged date of execution of these documents in May 1997 and their re-emergence from secrecy in 2005.  With the rejection of the evidence of the opposing defendants, there was no satisfactory account for such belated completion of the transfers (in terms of the signing of the documents by the transferees and the tendering of the same for registration by CAGL) despite the demise of the father in 2002.  Yet the critical question remains: do these matters, coupled with the other less compelling evidence discussed above, provide a proper foundation for an inference of forgery?

80. Before that question is answered, one must also have regard to the evidence pointing against forgery. In his skeleton submissions, Mr Sussex criticised the Judge for “[belittling] the value of the expert evidence”.  Notwithstanding the limitations arising from examination of copies instead of originals, both handwriting experts expressed opinions on the authenticity of the signatures of the father on the instruments of transfer.  Mr Browne considered there was very strong evidence that the signatures were genuine.  Mr Leung considered that, with one exception, the signatures were probably written by the father.  The exception was in respect of the transfer in favour of Eleanor.  Because of it being partly damaged by tiny holes punched on the ink strokes, Mr Leung could only say that it may have been written by the father.  There is simply no handwriting expert evidence supporting the case of forgery.

81. We accept that the expert evidence cannot be conclusive.  As it has been said, handwriting expert evidence is not the only means to prove forgery.  When there is other compelling evidence pointing towards forgery, the court should not shy away from so finding simply because of inconclusive handwriting expert evidence which can be subject to its own inherent inadequacies in the resolution of such an issue (see Nina Kung v Wong Din Shin, supra, para 12 to 15, 393; Chinachem Charitable Foundation v Chan Chun Chuen HCAP 8 of 2007, 2 Feb 2010 paras 214-6).

82. However, it does not mean that the expert evidence can be brushed aside in the weighing process.  To be fair to the Judge, he did not disregard the expert evidence altogether.  At para 43 of his judgment, the Judge said:

“… Overall the evidence [viz the handwriting expert evidence] in relation to the signatures of the father is inconclusive. I could not find positively one way or the other. The reservations shared by both experts reflect my own but I have had the advantage over them of considering the substantial extraneous evidence. Given the problems in relation to the material considered, this is not in my view an exercise to be repeated.”

83. In our judgment, the Judge was entitled to take the view that, given the limitations arising from examination of copies instead of originals, the expert evidence was inconclusive.  But with respect, this is not a case where the expert evidence was of no value at all.  Both experts put forward their opinions and Mr Leung gave some reasons for his opinion.  The Judge did not spell out what substantial extraneous evidence he had in mind at para 43.  However, insofar as the Judge’s reference to the availability of a forger’s skill is concerned, we do not think this is a matter which should be in the balance for the reasons we have already given earlier.  As regards other extraneous evidence, they must be weighed against the evidence pointing against forgery, including the expert evidence.

84. Coming back to the Judge’s conclusion at para 154, and reading it in light of the other paragraphs in the judgment, we cannot say that he had made a definite and conclusive finding that the signatures of the father on the instruments of transfer were forged.  At the highest, he was only able to say that the defendants did not satisfy him that the signatures were genuine.  But that was not the right question to ask in the present case.  He has not directed himself to consider whether the circumstantial matters identified at different parts of his judgment provide a proper foundation of compelling evidence to overcome the inherent improbability and other evidence pointing against forgery. 

85. Had he directed himself to that question, as we now do, he would have appreciated that the evidence is not compelling enough.  Indirectly, the Judge had given this answer: he postulated the possibility of the father executing the documents but for some other reasons they were not meant to be effective.  This shows that in the Judge’s mind the circumstantial evidence is equally consistent with some other scenarios not involving forgery.  As such, in line with the correct approach set out in cases like Richard Evans & Co Ltd v Astley, supra, the evidence is not strong enough to warrant an inference of forgery. 

86. We have already explained why in the present case the Plaintiff cannot rely on those other scenarios.

Disposition

87. For these reasons, we allow the appeal by the 1^st, 4^th, 5^th, 7^th and 9^th Defendants in CACV 281 of 2012 and dismiss the appeal by the Plaintiff in CACV 1 of 2013. The order of the Judge in respect of the 20 shares originally held in the name of the father is set aside and the claim of the Plaintiff in respect of those shares is dismissed.

88. We also make a costs order nisi that the Plaintiff shall pay the costs of the 1^st, 4^th, 5^th, 7^th and 9^th Defendants in these appeals (except the further round of post-hearing submissions for which we would not order any costs) and such costs are to be taxed with certificate for 2 counsel. As regards the costs of the other defendants, they basically supported the position of the Plaintiff in these appeals. Their participation in the appeal did not substantially increase the costs of the proceedings. We would make no order as to costs as between them and the other parties.