HO YAT WAH v. CHUNG HANG HIM (the sole executrix named in the will of Madam CHAN YUK MUI, deceased)

HCA 731/2014

[2019] HKCFI 3041

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 731 OF 2014

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J U D G M E N T

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A. INTRODUCTION

1.  By the Amended Summons dated 21 August 2019, the plaintiff seeks leave to file and serve:

(1) the Expert Report prepared by Mr Robert Radley dated 8 September 2017 (“Radley Report”); and

(2) the Joint Experts’ Report (“Joint Report”) prepared by Mr Radley and Mr Sze Chung Leung (“Mr Leung”) dated 5 October 2018 obtained pursuant to the order of DHCJ Keith dated 7 June 2018,

in addition to the Single Joint Expert Report prepared by Mr Leung dated 15 May 2017 (“SJE Report”).

B. BACKGROUND

2.  The plaintiff first applied to adduce the Radley Report by way of summons on 11 December 2017 and the application was heard by DHCJ Keith on 20 March 2018.

3.  The relevant facts of the case have been succinctly set out by DHCJ Keith in his Judgment of 7 June 2018 (the “Judgement”):

(1) The plaintiff is in the transportation business.  Madam Chan Yuk Mui (the “Deceased”) was his personal secretary for many years.  She was first diagnosed with breast cancer in 2007.  It recurred in 2010 and she died on 12 November 2012;

(2) The defendant, the Deceased’s only son, is the sole beneficiary under her will and the sole executor of her estate;

(3) It is the plaintiff’s case that in 1990, in order to keep his own assets separate from the assets of his business, he and the Deceased agreed that she would hold some of his assets in trust for him, including seven properties (three of which had been sold before the passing of the Deceased), jewellery, shares and foreign currency.  Therefore, the plaintiff remains the beneficial owner of these assets;

(4) The defendant denies that there were any assets held by the Deceased on trust for the plaintiff.  He claims that the Deceased was always the beneficial and the legal owner of the assets;

(5) As pointed out by DHCJ Keith in the Judgment, the critical part of the plaintiff’s case for the present purposes is that five weeks before the Deceased died, on 9 October 2012, the Deceased and the plaintiff went to the office of Leon Lai, a solicitor and the plaintiff’s cousin, where the plaintiff and Mr Lai claimed that she had wanted to sign a confirmation that the four remaining real estate properties belonged to the plaintiff.  The Deceased did sign a document to that effect (the “Confirmation Document”) on that occasion in the presence of the plaintiff and Mr Lai. The defendant, on the other hand, claims that the Confirmation Document is a forgery;

(6) The defendant applied for the appointment of a single joint expert to report to the court on the genuineness of the Deceased’s signature on the Confirmation Document;

(7) The plaintiff opposed the application claiming that expert evidence was not needed since Mr Lai eye-witnessed the Deceased’s signing of the Confirmation Document.  However, the plaintiff did not object to the appointment of a single joint expert nor to the defendant’s choice of Mr Leung being the single joint expert if there was to be expert evidence on the topic;

(8) On 7 October 2016, Master Kwang gave leave for Mr Leung to be engaged as the single joint expert;

(9) On 15 May 2017, Mr Leung produced the SJE Report in which he concluded that the signature of the Deceased on the Confirmation Document (“the signature in question”) was a forgery;

(10) Unsatisfied with the SJE Report, the plaintiff sought advice from his own expert, Mr Radley on the same topic. On 8 September 2017 the Radley Report was produced with the finding that the evidence was inconclusive whether the signature in question was genuine or not; and

(11) The plaintiff applied to rely on the Radley Report as evidence at the trial and the defendant objected.

4.  Mr Leung and Mr Radley, in their respective reports, agree that there are significant differences between the signature in question and the known signatures of the Deceased.

5.  However, they differ in what those differences are attributable to: Mr Leung says they are attributable to their different authorship, whilst Mr Radley cannot exclude the possibility that the state of the Deceased’s health and the medication she was on contributed to those differences.

6.  DHCJ Keith considered the legal principles set out in Daimler AG v Leiduck (No 1) [2014] 3 HKLRD 56 and Bharwaney J’s observations in Law Chung Fai v Lam Ming Kuen [2010] HKEC 1410 on whether to allow the plaintiff, who is dissatisfied with the opinion of the single joint expert, to rely on the Radley Report.

7.  Applying the relevant legal principles to the circumstances of the present case, DHCJ Keith recognized at paragraphs 26 and 27 of the Judgment that:

(1) The plaintiff’s wish to commission and rely upon another expert’s opinion is entirely understandable (paragraph 26);

(2) The issue whether the Deceased signed the Confirmation Document is at the heart of the case;

(3) There are reasons which are far from fanciful for questioning the basis on which Mr Leung concluded that the differences between the signature in question and the Deceased’s known signatures were attributable to different authorship rather than the state of her health;

(4) Hence, it might well be appropriate to permit the plaintiff to rely on the Radley Report provided that this would not have a really significant impact on:

(a) The time which would elapse before the case came on for trial; and

(b) The costs which would be incurred by the parties, in particular the defendant who is of lesser means.

8.  DHCJ Keith, although inclined to allow the plaintiff’s application, decided to leave the decision to this court after considering Lord Woolf’s observation in Daniels v Walker [2000] 1 WLR 1382 that where a party or both parties obtain their own expert reports:

“... decision should not be taken until there has been a meeting between the experts involved. It may be that an agreement could then be reached; it may be that agreement is reached as a result of asking the appropriate questions. It is only as a last resort that you accept that it is necessary for oral evidence to be given by the experts before the court. The cross-examination of expert witnesses at the hearing, even in a substantial case, can be very expensive.” (emphasis supplied)

C. DISCUSSION

C1.    Irreconcilable Differences between the Experts

9.  Mr Leung and Mr Radley remain strongly divided in the Joint Report in that the former is adamant on the signature in question being a product of forgery and the latter cannot definitively conclude whether it was a forgery or rather the result of impaired penmanship due to ill-health.  Their disagreements stem from their different perspectives towards the significance of the Deceased’s health condition at the time when the signature in question was made, including her then physical and mental conditions and the effects of medical treatment.  In general and overall, Mr Leung is adamant that evaluation of the effects of health condition and medical treatment was outside the remit of the professional forensic document examiner.  Mr Radley, on the other hand, maintains that careful and thorough consideration of such is part and parcel of the job of an expert in this field.  He claims that a significant proportion of the vast amount of cases he had dealt with in his career involved examination of the handwritings of persons in ill health.

10.  Mr Leung is almost in agreement with Mr Radley on the possibility of the trauma of medical and drug treatment, physical weakness accompanied by psychological stress affecting a patient’s ability to manipulate the pen.  However, the former is of the view that “in spite of all these interferences, the signatory’s own writing habits remain the same”. In fact, Mr Leung strongly opines that a person’s writing habit prevails over any illness that person may suffer. 

11.  Mr Radley, on the other hand, asserts how the physical condition of a person could affect his penmanship even though the person’s mind adheres to the writing habits.  He opines that “if, due to ill-health or medication, the fingers are not working in the habitual way, letterforms will change with a variety of unpredictable effects”. 

C2.    Amount/Issue at Stake

12.  The authenticity of the Deceased’s signature on the Confirmation Document is at the heart of both the plaintiff’s case and the defendant’s case.  It would impact upon the credibility of the plaintiff as a witness as well as Mr Lai as a witness.  Equally, it would impact upon the defendant’s claim that the Deceased had the beneficial interest in the four properties.

13.  As regard the amount at stake in these proceedings, based on the calculations included in the Statement of Claim, the value of the jewellery and the cash at bank amount to some HK$27 million. Adding the market value of the shares purchased out of the profit of the three properties and of the remaining four real estate properties, the total estimated amount may well approach HK$100 million.

C3.    Time

14.  On the timing of the case, I note that this case has not been set down for trial and no milestone date will be affected.

C4.    Costs

15.  I am of the view that the costs which will be incurred by the parties will not be disproportionate to the amount at stake.  Further, I agree that this court will be assisted by the Joint Report in addition to the SJE Report and the Radley Report and save costs.  With the assistance of the Joint Report setting out the differences between the experts, trial time may well be significantly saved.

D. CONCLUSION

16.  For the reasons set out above, and upon balancing all the relevant considerations, I am of the view that it is just and accords with the underlying objectives of the Rules of the High Court to grant leave to the plaintiff to adduce evidence from his own expert to challenge the SJE Report or aspects thereof.  Accordingly, I make an order in terms of paragraph 1 of the Amended Summons.

17.  At the hearing, the parties agreed that costs should follow the event.  In the premises, I order that the costs of the application be paid by the defendant to the plaintiff, such costs are to be taxed if not agreed with certificate for one counsel only.

18.  Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.