CHOW LILY v. CHOW WAI WAI VIOLET AND ANOTHER

HCAP 22/2019

[2026] HKCFI 1148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 22 OF 2019

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DECISION

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A.  INTRODUCTION

1.  This Decision deals with the defendants’ appeal against the decision of a Master who dismissed their application to subpoena Professor Lo Chung-mau (“Professor Lo”)  who treated the Deceased in 2015.

B.  THE RELEVANT BACKGROUND

2.  The background of the present case has been summarised by Deputy High Court Judge Leung (as he then was)  in [1] – [21] of his Decision dated 30 July 2020 ([2020] HKCFI 1792).  For the purpose of this appeal, it suffices for me to highlight the followings.

3.  By the Re-Re-Amended Statement of Claim, the plaintiff sought, inter alia, a declaration that the Deceased’s will dated 29 October 2015 (“the 2015 Will”)  is invalid as it was executed by the Deceased without knowledge and approval of its contents and/or without the requisite testamentary capacity, and/or executed without the requisite animus testandi.

4.  The plaintiff subsequently applied to amend the said pleading by adding an additional ground of undue influence in her attempt to set aside the 2015 Will.

5.  By the Decision of this Court dated 30 October 2024 (“the Amendment Order”), the plaintiff was granted leave to further amend her Re-Re-Amended Statement of Claim pursuant to her application.   Consequential to the granting of such leave, this Court further directed the parties to exchange their respective witness statements covering matters relating to the plaintiff’s amendments in relation to the claim of undue influence.

6.  On 14 February 2025, the plaintiff took out a summons and sought leave to adduce an expert report of Dr Robert Ho.  This summons was heard on 2 July 2025 and was eventually dismissed by virtue of this Court’s Decision dated 11 July 2025 (“the July 2025 Decision”).

7.  On 27 June 2025, the defendants also took out a summons for numerous directions, which were described by their counsel at the time to be consequential to the grant of leave to the plaintiff to adduce further expert evidence from Dr Robert Ho[1]. One of those directions was for leave to file a witness statement of Professor Lo (“the Earlier Application”).  At the end of the day, no order was made on the Earlier Application by virtue of the July 2025 Decision.

8.  On 30 July 2025, the parties exchanged further witness statements pursuant to the Amendment Order.

9.  On 17 September 2025, the defendants filed draft Praecipe for Writ of Subpoena Ad Testificandum for Professor Lo.

10.  On 19 November 2025, a Master refused the application for subpoena to Professor Lo in view of the following comments made by this Court in the July 2025 Decision:

“48(2)  The proposal of introducing Professor Lo Chung Mau as a witness apparently comes too late, bearing in mind his involvement in the matter had already been mentioned all the way back in the first version of the Defence and Counterclaim filed on 6 November 2019;

48(3)  Insofar as it is the defendants’ argument that there are other witnesses who should give additional factual evidence which may constitute ‘clinical evidence’ for the benefit of their independently instructed experts, such an argument must be rejected.  This is because there is no acceptable reason why these witnesses should not be asked to give their witness statements when the parties first exchanged witness statements.  I do not see how it can be argued that the defendants did not see the need in the past.  In light of the amount of money at stake and the financial strength of the parties, it is not reasonable to suggest that the defendants had deliberately withheld from preparing for the case at 100% effort.  With respect, they are simply making use of this opportunity to further ‘perfect’ their case.”

11.  The defendants then appealed against the said decision of the learned Master.

C.    LEGAL PRINCIPLES

12.  Parties have no dispute on the applicable legal principles.

C1.  Appeal from Master’s decision

13.  In relation to an appeal brought against Master’s decision, it is well established that such an appeal is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time.  The judge will give the weight it deserves to the previous decision of the Master, but he is in no way bound by it.  The judge in chambers is in no way fettered by the previous exercise of the Master’s decision (Hong Kong Civil Procedure 2026, Volume 1, paragraph 58/1/2).

C2.  Subpoena

14.  In Big Island Construction (HK)  Limited v Wu Yi Development Company Limited & Another [2010] 2 HKC 356, Poon J (as his Lordship then was)  explained that the proper practice for subpoenaing a witness is as follows:

“2. Generally speaking, a party is entitled to call the oral evidence of witnesses who will assist him in presenting his case as a general right : see Li Man York Evelyn v Li Wat Tat Walton [1997] 3 HKC 532. However, he must act with due diligence in approaching his witnesses well in advance before the trial begins. Based on the witnesses’ response, the following practice should be adopted.

3. If the witness is willing to assist, the party intending to call him should properly prepare his witness statement and exchange it with the other side in accordance with the court’s directions. If he fails to do so, he may not be allowed to call the witness : see Order 38 rule 2A(10)  of the Rules of the High Court.

4. If the witness is unwilling to testify and the party has decided to subpoena him nonetheless, he should so inform the court and the other side at the case management conference. And he should apply to issue the subpoena once the trial dates are known. Upon the issue of the subpoena, he should inform the other side forthwith. The other side should then decide if he wishes to apply to set aside the subpoena on grounds such as that the witness’s evidence is irrelevant or that the trial will be unduly expanded beyond the issues raised in the pleadings and matters necessarily ancillary thereto : see Phipson on Evidence (16^th edn), paragraphs 8-05, 8-08 and 8-20. Any setting aside application should be taken out as soon as practicable. All the applications pertaining to the subpoena should be disposed of before the pre-trial review.

5. The above practice for subpoenaing a witness is to facilitate the more efficient, expeditious and fair management and disposal of cases and to ensure that the trial proper will not be impeded.

6. After the CJR, as well as before it, the parties are expected to carefully and thoroughly think through all the preparatory steps leading up to the trial, including the decision whether to subpoena an unwilling witness. All interlocutory applications, including the one pertaining to a subpoena, should be disposed of before the pre-trial review. A late application may be dismissed on the basis of delay alone : see paragraph 34 of the Practice Direction 5.2 on Case Management. Dismissing a late application for delay alone applies with even greater force when it is taken out in the course of the trial. The applicant must justify the late application with good, strong reasons.

15.  In Chan Cheung Ming Jacky v Siu Sin Man [2014] 5 HKLRD 89, Lam VP (as Lam PJ then was)  had also discussed at length on the principles in this respect:

“19. Since 1997, the role of the court in case management has assumed a greater prominence in our administration of civil justice. Even before the CJR, in L v L HCMC 1 of 2003, 20 April 2005, the court considered the application for leave to issue subpoena from a case management angle when such application was made after the evidence had been closed. In that case, the court conducted a balancing exercise before allowing the case to be re-opened and granted leave for the issue of subpoena. Various factors were considered: the potential disruption to the trial, the prejudice that the other party may suffer, the explanation for the late application, the significance of the new evidence, the overall justice of the matter.

20. Under CJR, Orders 1A and 1B were added to our rules (both the Rules of the High Court as well as the Rules of the District Court). Order 1A rule 2 provides that whenever the court exercises its power under the rules (and that would include the power to grant leave to issue a subpoena), it must seek to give effect to the underlying objectives set out in rule 1. Order 1A Rule 2(2)  is also important:

‘In giving effect to the underlying objectives of these Rules, the Court shall always recognize that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties.’

21. Since the introduction of the CJR, the power to grant leave for the issue of subpoena in a case management context has been considered in Big Island Construction (HK)  Ltd v Wu Yi Development Co Ltd HCA 1957 of 2005, 29 Jan 2010 (Poon J); upheld on appeal in FBC Construction Co Ltd v Lee Ben [2014] 2 HKLRD 1054 at para 223 and Waddington Ltd v Chan Chun Hoo Thomas CACV 136 of 2013, 19 July 2013. Those were cases decided in the context of ordinary civil trials and the courts emphasised that the proper stage to deal with questions relating to the issue of subpoena for witnesses is at the case management conference.

22. By now, it should be recognised that in the exercise of the power to grant leave to issue a subpoena, at least in respect of late applications, in addition to the matters Mortimer VP alluded to in Li Man York Evelyn v Li Wai Tat Walton, supra., the court must also bear in mind its case management duty.

[…]

25. Subject to two caveats, we are in broad agreement with the observations of Poon J in Big Island Construction (HK)  Ltd v Wu Yi Development Co Ltd HCA 1957 of 2005, 29 Jan 2010 paras 2 to 6 on the practice regarding application for leave to issue subpoena in the context of general civil litigation. As we said above, judges and practitioners in Family Court should adopt a similar approach, with necessary modifications having regard to the procedures in the family proceedings.

26. The first caveat we have is about the scope in which the other party to the litigation may apply for the setting aside of a subpoena. We do not intend to delve into the topic at length in this judgment (as it is not necessary to do so in light of the neutral stance of Mr Li). We would only invite attention to the following comments of Phipson on Evidence 18^th Edn para 8-21 and para 4 of the judgment of Poon J should be read in that light:

‘It is not necessarily the case that the other party to the litigation has a right to apply to set aside a witness summons, although the authorities indicate that in specific instances he may object. It has been recognised that an opposing party in litigation may have a limited interest in setting aside a witness summons or subpoena, namely an interest that the hearing should not be allowed to expand beyond the trial of the issues raised by the pleadings and matters necessarily ancillary thereto. If a general right were recognised in an opposing party to raise objections to the witness summons, this may encourage ancillary litigation. An opposing party may object to the production and admissibility of the documents when the witness summons is complied with in court.’

27. The second caveat we have is about the comment of Poon J at para 6 of his judgment on the possibility of an application being dismissed on the basis of delay alone. Whilst we would not rule out this possibility entirely, one must always bear in mind Order 1A Rule 2(2). As with the exercise of other kinds of discretion, the exercise of case management power must be with reference to the facts and circumstances of the case before the court. There is no place for the application of a mechanical rule that the court will invariably refuse an application simply because a party is guilty of serious delay without any good explanation. The court must conduct an overall balancing exercise.

28.  Further, we need to emphasise this: case management by the court does not mean that the judge will dictate the evidence to be adduced.  Even in the context of family proceedings, our system is still primarily operated on an adversarial basis.  In general, subject to the questions of admissibility and relevance, each party in the proceedings is at liberty to call whatever evidence he or she considers necessary provided that procedural requirements are complied with.  Thus, in respect of an application for leave to issue a subpoena made in good time, the approach of Mortimer V-P should prevail.  However, in respect of a late application, the court will have to examine all the relevant circumstances and the significance of the intended evidence to be adduced is one factor to be taken into account.”

D.  DISCUSSION

16.  With the above in mind, I would now look at the relevant factors which this Court should weigh when conducting its balancing exercise.

D1.  Significance of the new evidence

17.  In the plaintiff’s new claim of undue influence, it is alleged that the Deceased was mentally and emotionally vulnerable due to his advanced age and sharply declining health in 2015.  The plaintiff also alleges, inter alia, that the Deceased was of poor medical condition, and that his cognitive functions had been impaired after his minor stroke on 20 August 2015, which rendered him susceptible or more susceptible to undue influence and coercion by the defendants.

18.  To answer the plaintiff’s claim of undue influence, the defendants would like Professor Lo to testify about the following matters:

(1)  His consultations with the Deceased on 27 and 28 October 2015 (i.e. 1 – 2 days before the making of the 2015 Will), including what information had been conveyed regarding surgical options and risks;

(2)  The Deceased’s responses and questions (if any);

(3)  The events leading up to the surgeries scheduled for 5 November 2015 and 12 November 2015;

(4)  The post-operative consultations;

(5)  His observations of the Deceased’s condition and behaviour during the foregoing periods and occasions, including the Deceased’s ability to understand, process and make decisions in relation to the proposed treatment.

19.  It is undisputed that, when considering the issue of undue influence, one of the legal principles which this Court should bear in mind is that the physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will: Re Edwards [2007] EWHC 1119 (Ch)  at [47].

20.  Viewed in such light, I agree that Professor Lo’s evidence is potentially highly relevant to the issue of undue influence because he was the surgeon who treated the Deceased in 2015.  He was the one who explained the surgery options and risks to the Deceased at a time which was very close to the making of the 2015 Will.  He should therefore be able to tell the Court about the Deceased’s ability to understand the information conveyed at the consultation sessions and his ability to make independent decisions concerning his treatment.  The probative value is further added because Professor Lo is prima facie an independent witness.

D2.  Potential disruption to the trial

21.  It was stated by the defendants’ counsel team that Professor Lo’s evidence should not take up more than an hour of the Court’s time, which is minimal given the trial has been scheduled to last for 25 days (not counting 2 other days reserved for closing submissions).

22.  The plaintiff’s counsel did not dispute about the said estimation.

D3.  Defendants’ explanation of the timing of the application

23.  The plaintiff submitted that the defendants’ conduct in seeking the subpoena falls well short of the standard of due diligence.  Reliance has been placed on the fact that this action has been commenced for over 5 years.  It is also said that the new undue influence claim has not changed the “factual landscape” in such a way as to justify the need for Professor Lo to give evidence.

24.  First of all, I disagree with the plaintiff’s submissions that the new case of undue influence does not change the “factual landscape” of the case.  As the defendants pointed out, the plaintiff’s new allegation of undue influence has extended the issues far beyond the original issues concerning testamentary capacity and knowledge and approval.  As the defendants put it, they engage broader questions of mental fitness, emotional state, capability of making independent judgment and general health condition.

25.  As a result, I am of the view that the present application has to be viewed in light of the fact that the plaintiff’s case of undue influence is only introduced relatively recently.  The deadline for the exchange of witness statements on the new issue of undue influence was eventually extended to 31 July 2025.  The defendants have tried to invite Professor Lo to give a witness statement but in vain.  They therefore applied for the issuance of subpoena on 17 September 2025, which was 8 months before the trial which in turn has been scheduled to commence on 26 May 2026.  While it may be said that the application could have been made earlier, I do not think it can be said that the application was made so late that the Court has to attach heavy weight on this factor.

D4.  Prejudice

26.  The plaintiff has not suggested that she would suffer from any prejudice should the defendants be allowed to subpoena Professor Lo.  This is not surprising, because as the plaintiff’s counsel fairly accepted, there still remains some time before the trial commences in late May 2026. 

27.  On the other hand, I am of the view that the defendants would be seriously prejudiced if the subpoena application is dismissed.  I have already explained above why I hold that Professor Lo’s evidence is potentially highly relevant to the issue of undue influence, particularly when he is an independent witness who has had the opportunity to talk to the Deceased very shortly before the making of the 2015 Will.  His evidence is therefore potentially valuable to the defendants.

D5.  Abuse of process of the court

28.  The plaintiff submitted that this application constitutes a clear abuse of process because this Court has already dismissed the defendants’ application to file Professor Lo’s witness statement in the July 2025 Decision.

29.  With respect, this objection is misconceived.

30.  This is because the Earlier Application was made consequential to the plaintiff’s application for further expert directions.  In fact, as pointed out by Mr Yu SC, Ms Wu and Ms Law, the defendants do not even require leave to adduce Professor Lo’s witness statement (if the defendants managed to get one from him)  for the purpose of adducing evidence which is relevant to the issue of undue influence because they have been given a blanket leave to do so pursuant to the Amendment Order.  Applying for leave to issue subpoena in such circumstances is therefore clearly not an abuse of process.

31.  It should also be pointed out at this juncture that, because the defendants have been granted leave to serve witness statement(s)  on the new issue of undue influence, the learned Master’s reliance on [48(2)] and [48(3)] of the July 2025 Decision (which was expressed in another context)  as the reasons for dismissal of the defendants’ application herein (see [10] above)  is not justified. 

D6.  Overall justice of the matter

32.  Looking at the matter in the round, I am of the view that the potential high relevance of Professor Lo’s evidence would no doubt tilt in favour of the court exercising its discretion in granting the application to issue a subpoena.  After all, it must be borne in mind that the Court shall always recognize that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties: Order 1A rule 2(2)  of the Rules of the High Court (Cap.4A, Laws of Hong Kong).

E.  ORDER

33.  For reasons of the aforesaid, I allow the defendants’ appeal, and make the following orders:

(1)  Paragraph 2 of the learned Master’s order dated 19 November 2025 be set aside;

(2)  The defendants’ application to issue a subpoena to Professor Lo be granted.

F.  COSTS

34.  As proposed by the defendants, I make costs order nisi that the costs of this appeal and of the application below be in the cause.

35.  The above order nisi shall become absolute in the absence of application to vary (which, if any, will be disposed of on paper)  within 14 days hereof.