ANGELA CHEN v. WAI WAI CHEN

HCAP 10/2020

[2025] HKCFI 3498

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 10 OF 2020

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D E C I S I O N

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Introduction

1.  Before the court today is Angela’s summons taken out on 4 June 2025 for an order that Mr P, one of her witnesses, be examined on oath before trial pursuant to Order 39, rule 1 of the Rules of the High Court on the ground that he may not be able to attend the trial now fixed for February 2027 by reason of his age and his medical condition.

2.  Vivien’s stance is that she has no objection in principle to take deposition of Mr P before trial subject to one condition. Her stance is without admission as to the relevance and/or materiality of his evidence. The condition is that the deposition should proceed on the assumption that the rejoinder appeal, as defined in my earlier decision at [2025] HKCFI 1615, and Vivien’s latest application by summons dated 1 April 2025 (“the latest amendment summons”) to amend her pleadings have been allowed, with further discovery based on such assumed state of pleadings being done before the deposition.

3.  The rejoinder appeal is Vivien’s appeal against the decision made by Mr Justice Wilson Chan in March 2024 refusing some of the amendments she sought to introduce to her rejoinder. I shall call these amendments which have been rejected at first instance but for which Vivien now seeks leave from the Court of Appeal “the rejoinder amendments”.

4.  As regards the latest amendment summons, Angela has agreed to all of the proposed amendments save for two paragraphs. I shall call the amendments which are under objection “the latest proposed amendments”. On the face of those amendments, they do not seem to concern Mr P. And hence it seems unlikely that he will have any evidence to give in that respect.

5.  Angela disagrees with Vivien’s condition. She says that the deposition should proceed not subject to that condition. Hence, that is the issue I need to resolve this morning.

Ruling

6.  I am of the view that the deposition of Mr P should proceed without being subject to Vivien’s condition. In other words, it should proceed based on the present state of the pleadings.

Discussion

7.  I will start my discussion by making two fundamental observations.

8.  First, as regards the rejoinder amendments, they were rejected by Mr Justice Chan. It is true that that decision is now pending appeal. However, the order made by his Lordship takes effect from the date it was made and remains effective as of now.

9.  The general practice of the court is that an order once made stands and has effect unless and until it is overturned, varied or stayed. The action should proceed on that basis notwithstanding the existence of any pending appeals.

10.  Here, in line with how our civil litigation is generally conducted, Mr P’s deposition should, as a starting point of the analysis, proceed on the basis of the existing state of the pleadings, not incorporating the rejoinder amendments for which Vivien failed to convince his Lordship to grant leave.

11.  My second observation is this. It must be recognised that the evidence to be elicited concerning the rejoinder amendments and the latest proposed amendments would only be useful if all three of the following events take place:

(1)  The rejoinder appeal is allowed. (This only applies to the rejoinder amendments.)

(2)  Mr P is not able to give further deposition on those amendments, which would be likely to be in the course of 2026.

(3)  He is not able to attend the trial to testify in February 2027.

12.  For this decision and solely from a case management perspective, I shall call the situation where all three events take place “the worst case scenario”.

13.  The relevant point here is that at this stage, we would not know if the worst case scenario would materialise. Therefore, if we accede to Vivien’s proposal, the court will be acting on a hypothetical basis as it will be proceeding with the deposition on an assumed state of pleadings which would only become relevant in the worst case scenario but not applicable in all other cases.

14.  To hear or manage a case on a hypothetical basis is not a course of action the court normally takes. The court’s time and resources should be spent on resolving real disputes, and decisions should be made on real issues, not hypothetical or academic ones.

15.  If we adopt Vivien’s proposal, more time and costs would be incurred and those costs would not be negligible or insignificant. That is because Vivien is now asking for discovery and possibly a witness statement to be made in respect of the rejoinder amendments and the latest proposed amendments before the deposition is taken. These costs would be wasted if the rejoinder appeal is dismissed.

16.  It is plain that the parties in this action have a lot of resources at their disposal, so they may be able to afford the luxury to waste some costs along the way in this action. But it must be remembered that the court’s resources are also at stake. The court’s duty is to see to it that its resources are fairly distributed among litigants and other users of the court. I would therefore be reluctant to make a decision which would have the result of having not insignificant costs wasted because the court is to hear the case on a hypothetical basis.

17.  Furthermore, generally speaking, as an action progresses, the court would usually case manage it in such a way as to narrow down the issues as much as possible. What Vivien is now asking for is effectively the opposite. She asks the court to look at what is more than necessary at this stage (namely, beyond the present state of the pleadings) and then if it turns out to be not applicable, discard the evidence. I have to say that that is just very foreign to my concept of case management post-CJR.

18.  In light of the two broad observations which I have just made, I think that it is plain for today’s purposes the burden is squarely on Vivien to justify why her condition should be upheld, which, as I see it, is a departure from the general practice of the court. She needs to come up with a very good justification.

19.  The main submission made by Mr Paul Shieh, SC, Mr Johnny Ma, SC and Mr James Man who appear for Vivien is that her proposal would ensure the completeness of the evidence to be taken from Mr P at this juncture so as to secure the just resolution of disputes in accordance with the substantive rights of the parties. Her proposal would ensure that if the rejoinder amendments and the latest proposed amendments are indeed allowed, the evidence would be complete. And if the deposition proceeds on the basis of the existing pleadings and then the amendments are allowed and Mr P cannot testify at trial, the deposition will not have covered all the issues on the pleadings and the court will be placed at a disadvantage in adjudicating on all the issues at trial.

20.  On the other hand, if it turns out that the amendments are not allowed and the deposition is admitted into evidence at the trial, one can simply take out the relevant parts and not treat them as part of the evidence at the trial. There will be time and costs wasted, but in return, according to Vivien’s proposal, there will be certainty that the evidence of Mr P will be complete even in the worst case scenario.

21.  I do not consider that to be a good justification.

22.  If the evidence of Mr P is not complete, that would affect not only Vivien but also Angela. As such, there is no readily discernible or apparent injustice or unfairness as between the parties. It is not ideal or not perfect for the evidence to be incomplete. But the critical question for today, as I see it, is whether the incompleteness would hinder the court’s ability to resolve the case by reference to the substantive rights and obligations of the parties or whether it would lead to any unfairness to Vivien. At this stage, I do not see how that incompleteness would have that effect.

23.  Vivien, in order to succeed today, really needs to point to some prejudice that she may suffer if the deposition is taken without regard to the amendments. As submitted by Mr Benjamin Yu, SC, who appears with Mr Bernard Man, SC and Mr Danny Tang for Angela, Vivien has not identified any prejudice apart from saying that the evidence of Mr P will be incomplete.

24.  In fact, if one thinks about it, the prejudice, if any, would be more to Angela because Mr P is one of her witnesses and Angela will not be able to tender him to speak to the new pleas.

25.  Once you take a step back now and look at the two options, Angela’s proposal is in accordance with the normal way in which we do things in civil litigation, but it has the disadvantage that where the worst case scenario materialises, the evidence of Mr P may not be full. But then there is no unfairness as between the parties as both parties will face the same consequence. Vivien’s proposal requires the court to act on a hypothetical basis and to spend time and resources that may ultimately be wasted.

26.  From a case management perspective and as a matter of justice between the parties, I consider that we should take the former course of action.

Conclusion

27.  I therefore make the order in terms of Angela’s proposed directions, as amended, as follows:

(1)  Mr P be examined on oath before the Hon Tsui J upon the terms set out in the Appendix hereto on 3 November 2025 (with 3 days reserved, and to begin at 10.30am on each day). The examination be held in chambers (open to public). Any party who wishes to vary this part of the order should apply at least 28 days before the hearing.

(2)  The deposition of Mr P taken at the examination pursuant to this Order be filed in the Registry and that office copies thereof may be read and given in evidence at the trial of these proceedings upon further proof of the absence of Mr P by way of an affidavit of Angela’s solicitor.

(3)  Leave be granted to Vivien to amend her re-amended defence filed herein as per the draft re-re-amended defence annexed to the latest amendment summons, and to file and serve her re-re-amended defence within 7 days from the date thereof.

(4)  Angela do have leave to file and serve a re-re-re-amended reply, defence to counterclaim and counterclaim to counterclaim setting out its consequential amendments (if any) within 35 days thereafter.

(5)  Vivien do have leave to (a) amend the amended rejoinder in the manner marked in green as per the draft (save and except paras 16.3 and 16.4A thereof) annexed to the latest amendment summons and (b) make consequential amendments to the amended rejoinder upon the amendments filed in para (4) above within 28 days thereafter.[1]

(6)  The latest amendment summons be adjourned for substantive arguments regarding paras 16.3 and 16.4A of the draft re-amended rejoinder annexed thereto before the Hon Tsui J, with 3 hours reserved, on 24 November 2025 at 10am.

(7)  The parties shall liaise with each other on the proposed directions for the deposition and shall report to the court within 14 days from today.

(8)  Costs of the deposition summons and of the examination be in the cause.[2]

(9)  Costs of the latest amendment summons be reserved.

Appendix

1.  Subject to the terms of this Order and such further or other directions as the Hon Tsui J (“Deposition Judge”) may give as she thinks fit, Order 39 rules 4 to 5, 7 to 11 of the Rules of the High Court (Cap. 4A) shall apply to the examination of Mr P before the Deposition Judge as if the reference to “the examiner” therein are deemed to be the Deposition Judge.

2.  If any person being examined before the Deposition Judge objects to answer any question put to him, or if objection is taken to any such questions, the Deposition Judge shall have the power and discretion to rule thereon forthwith or defer the ruling to and until trial.

3.  The examination shall be taken down by livenote transcription to be arranged by the parties.

4.  Mr P shall, upon the completion of the examination, sign the livenote transcription which shall stand as his deposition.