CHAN WAI MING v. XIE WEIQIN AND OTHERS

HCAP 8/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO.8 OF 2016

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DECISION

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THE APPLICATIONS

1.  The plaintiff (“P”) by summons dated 6 July 2017 applies for the following:

a. Leave to issue the summons out of time, which is not opposed;

b. The original of the Will allegedly executed by the Deceased on 5 February 2015 be released by the Probate Registry to P’s solicitors for examination by P’s handwriting expert (“the Release Application”);

c. Specific discovery against the 1^st Defendant (“D1”) of the original documents set out in a schedule to the summons for the same to be released to the expert for examination (“the Discovery Application”); and

d. Costs.

2.  The parties are legally represented.[1]

3.  Master S.Lo has also adjourned the costs of the “Unless Order” made by consent of the parties dated 14 September 2017 to this Court for determination.

COSTS ON THE UNLESS ORDER

4.  D1 submits that P should pay the costs of and incidental to the Unless Order Summons which were unnecessarily caused to be incurred by the Plaintiff.  Alternatively, the costs of and incidental to the Unless Order Summons should be in the cause.

5.  This costs issue can be disposed easily without much debate.  The Unless Order was made by consent of D1, it lies bad in D1’s mouth to say that such Order was unnecessary.  D1 accepts that she did not comply with the Unless Order.  She has not given good reason why she should not comply with the Order.  As such, she is in default of the Unless Order and should be liable for her own default.  She should bear the costs, in my view, on an indemnity basis.  So I order.

DISCUSSION

Release Application

6.  This is a dispute over the validity of the Deceased’s Will in that it was not executed by the Deceased.[2]

7.  D1’s stance is that:

a. in respect of the Release Application, the 1^st Defendant proposes that the Will be released by the Probate Registry for examination by a single joint handwriting expert to be appointed by the Plaintiff and the 1^st Defendant, or alternatively, by the Court where the parties cannot agree on who should be the single joint handwriting expert; and

b. in respect of the Discovery Application, it is premature and in any event too wide in scope, relying upon Kwok Suk Yin v Wong Chu Pong (unrep, HCAP 11/2007, 14 April 2010)

8.  D1 has now changed the focus of P’s first request in the summons to whether there should be a single joint expert to report on the authenticity of the signature of the Deceased.  I shall take it that she has no objection to P’s request for the original Will to be inspected by the expert on handwriting.  P’s request becomes uncontested.

9.  This morning, D1 submits that this issue of forged Will is not pleaded in the pleadings.  However, paragraph 39 of the Statement of Claim has already pleaded that the Deceased did not execute the Will.  The burden is therefore on P to prove the case.  P is now asking for disclosure of the documents in order to prove the case.  The signature on the Will must be relevant.

10.  The next question is whether a single joint expert should be appointed, as proposed by D1.  P’s position is not clear from the written submissions.

11.  In the circumstances, this Court will grant an order in terms of P’s summons for the original Will to be inspected by the expert on handwriting in accordance with section 73 of the Probate and Administration Ordinance, Cap.10:

“All original wills and other documents which are under the control of the court in the Registry shall be deposited and preserved in such places as the Chief Justice may direct, and any wills or other documents so deposited shall, subject to the control of the court and the provisions of probate rules and orders, be open to inspection.”

12.  The above Order is also subject to the statutory requirements under Order 76, rule 5 RHC.

13.  The original Will is only to be inspected. It should not be taken outside the Probate Registry.  The inspection of the original Will has to be done in accordance with the directions of the Probate Registry or the Probate Master by the handwriting expert.  So I order.  I shall summarily assess the costs at the end of this hearing myself.

Single joint expert

14.  As to whether there should be a single joint expert, D1 has submitted that she agrees there should be one in order to save costs and time.  However, P is telling this Court that the present application is for P to obtain expert advice as to the authenticity of the signature on the Will.  Before the expert’s finding, P cannot plead forgery in the pleadings.  It can be seen that the Will and the documents asked for are not for expert evidence at this stage because no expert directions have been given for the trial.  As such, the issue of single joint expert, which is for the expert evidence for the trial, simply does not arise.

Discovery

15.  As to the application for discovery of the documents set out in the schedule attached to the summons, D1’s objections are:

a. It is a premature application; and

b. The scope is too wide.

16.  D1 relies upon the case of Kwok Suk Yin. In this case, the plaintiff applied for inspection of the original Will from the Probate Registry and discovery of documents from the defendant.  The first request was not in dispute. As to discovery, there is no idea from the Judgment as to what documents the plaintiff was discovering from the defendant.  Suffice it to say, the learned judge said that the plaintiff agreed that those documents could be useful after forgery could be pleaded after expert evidence on the authenticity of the Will.  If forgery could be pleaded, he could not see how discovery for those documents could be resisted.  On this basis, he did not dismiss the plaintiff’s application for discovery, but ordered it to remain on the file, to be dealt with at a later stage.

17.  Clearly, in that case, the documents were not necessary for the expert report. They can be deferred to a later stage.

18.  For the present case, P is obviously asking for 26 documents, apart from the first one, which is a medical note, all of which are title deeds registered at the Land Registry, for the purpose of providing more samples for the handwriting expert.  These title deeds are easy to be retrieved by D1 if they are available.  It will not incur extra costs for retrieval of the documents.

19.  I do not agree that the case management of this case should follow that of Kwok Suk Yin.  The reason is simple: they are of different fact.

20.  For the reasons above, I reject D1’s opposition that they are premature.  I also reject D1’s argument that they are too wide because all of them are title deeds which are easily available, providing more samples for the handwriting expert.  Since D1 agrees that there should be expert evidence, herself nominating a single joint expert, it will be of mutual benefit to P and D1 that their expert(s) should be provided with sufficient samples to compile the expert report.

21.  I accede to P’s request on discovery as well.

COSTS AND ORDER

22.  As to the costs of this application, including the costs reserved and today’s hearing, the parties agree that D1 shall pay a sum of $200,000 to P for all the costs of the Unless Order and this application (with counsel’s certificate), including all costs reserved and today’s hearing to be paid within 14 days from the date hereof.  The costs of P shall be taxed in accordance with the Legal Aid Regulations.

23.  I shall now make an order in terms as follows:

a. In terms of P’s summons subject to paragraphs 11-13 above;

b. Cost be as per paragraph 22.

c. The 2^nd Case Management Conference be fixed at 9:30 a.m. on 16 May 2018 and the parties shall file and serve the Listing Questionnaires at least 7 days before the hearing.