TANG FOOK WING v. TANG CHUN KEE AND OTHERS

HCA 1294/2014

[2024] HKCFI 3017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1294 OF 2014

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(By original writ and orders to carry on made by Master K. Lo on 27^th October 2016)

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DECISION

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Introduction

1.  By my decision dated 16 July 2024 (“the 16/7/24 Decision”), I allowed the appeal of the defendants from an order of a master and dismissed the two summonses of the plaintiff dated 9 August 2023 and 16 October 2023 respectively for his applications to adduce additional witness statements.

2.  By summons dated 29 July 2024 (“the Summons”), the plaintiff applies for leave to appeal against the 16/7/24 Decision.

3.  By a letter dated 1 August 2024, I directed that the Summons should be disposed of on paper and both Mr Mak, for the plaintiff, and Mr Wong, for the defendants, have filed their written submissions.

4.  In this Decision, I shall adopt all the abbreviations used in the 16/7/24 Decision unless otherwise stated. I shall also refer to the 16/7/2024 Decision for the background facts which will not be repeated here.

5.  The applicable principles relating to applications for leave to appeal against interlocutory orders are well established and need no elaboration. Suffice it to say, in such applications pursuant to section 14AA of the High Court Ordinance, Cap. 4 and O.59 r.2B of the Rules of the High Court, the applicants are required to show that the intended appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the intended appeal should be allowed.

6.  Annexed to the Summons is a document entitled “Draft Grounds of the Proposed Appeal” consisting of 4 broad grounds. I shall examine each of them in light of the parties’ helpful submissions.

Ground 1

7.  The first ground is that I erred in holding that the contents of the 2^nd SWS are inadmissible, irrelevant and non-probative. In coming to this conclusion, it is submitted that I made four mistakes.

8.  First, Mr Mak submits that in assessing the relevance and thus admissibility of the 2^nd SWS, I failed to distinguish primary and collateral issues. He refers to the explanation given by Lord Phillips of Worth Matravers NPJ in HKSAR v Kong Wai Lun (2015) 18 HKCFAR 7 at §§27-28.

9.  In short, evidence that an alleged event did or did not occur is primary issue. A collateral issue does not bear directly on whether a primary fact in issue occurred. It bears on the reliability of the primary evidence. In relation to evidence that goes to a collateral issue, the common law principle that evidence should not be admitted if its probative weight is insufficient to justify the complexity that it will add to the trial applies.

10.  As Mr Mak puts it in his written submission, §§2-7 of the 2^nd SWS are comments of Madam Tang on the credibility of D7 or the reliability of his views about local adoption and inheritance practices. Mere comments are not factual evidence.

11.  I observed (at §26 of the 16/7/2024 Decision) that, in the 2^nd SWS, Madam Tang casts doubt on D7’s neutrality and credibility. I went on to find her criticisms and assessment of D7’s credibility inadmissible, irrelevant and non-probative. A factual witness can adduce factual evidence only. Madam Tang’s opinion on D7’s views is neither here nor there.

12.  Without those comments and analysis of Madam Tang, the plaintiff can still make exactly the same attack on the evidence of D7 by way of cross-examination.

13.  The differences between primary and collateral issues are not really engaged. Madam Tang’s opinion evidence regardless of whether it relates to primary issues or collateral issues is objectionable.

14.  The second alleged error is about my conclusion that Madam Tang’s observation of the contents of the genealogy compiled by D7 referred to in §3 of his 2^nd supplemental witness statement “freshly disclosed on 14 June 2023” are wholly unnecessary and irrelevant (at §27(2) of the 16/7/2024 Decision).

15.  It is submitted that I failed to consider that Madam Tang in her earlier witness statement stated that she was previously involved in helping D7 to compile the genealogy. Mr Mak relies on O.38 r.2A in his submission that it is only fair for Madam Tang to have a chance to answer the evidence of the opposite party.

16.  First, when D7 referred to the genealogy in his 2^nd supplemental witness statement, D7 made it clear that he had referred to the same document in his earlier witness statement dated 15 September 2016. D7 also stated that the genealogy was published in 2015 (after the commencement of these proceedings in 2014). Indeed I have found this evidence in §9 of D7’s witness statement dated 15 September 2016.

17.  More than 2 years later, Madam Tang made her supplemental witness statement on 11 October 2018. In that document, Madam Tang already gave her response to the said genealogy by setting out her involvement in the compilation of the same.

18.  The observations of Madam Tang in the 2^nd SWS are again opinion evidence. Such observations are largely the inferences suggested by Madam Tang based on her surmise and speculation. They are not factual evidence of any probate value. The fact that Madam Tang was involved at some stage in the compilation of the genealogy cannot turn her opinion evidence into admissible evidence.

19.  The third error is that I erred in law in finding Madam Tang has no personal knowledge of local customs regarding adoption and inheritance practice in the Village (at §27(4) of the 16/7/2024 Decision). Mr Mak submits that I failed to consider the evidence which could equip Madam Tang with such personal knowledge including her membership of the Village, her personal network in the Village and her participation of the various social occasions of the Village, etc.

20.  I pointed out that Madam Tang did not state how she had acquired any such knowledge before she gave all the explanations about the alleged local custom. Without disclosing the basis of her knowledge, her explanations are of no probative value. I do not agree that her knowledge should be established by cross-examination at trial.

21.  The fourth error identified by Mr Mak is that I erred in concluding that Madam Tang’s own ignorance of the local custom alleged by D7 could not be of much probative value on the authority of Lee Sun Kiu v Ho Kay Fuk (unreported, HCA 195/2001, 20.8.2004). Mr Mak submits that Madam Tang’s ignorance of local customs should be a matter to be investigated at trial. I believe I have explained clearly my reasoning in §27(5) of the 16/7/2024 Decision as to why an individual’s ignorance of the alleged local customs is insufficient to disprove such local customs. I fail to see why Madam Tang’s professed ignorance is relevant.

Ground 2

22.  This ground concerns my refusal to allow the plaintiff to adduce the 3^rd SWS. The 3^rd SWS relates to the circumstances under which the late Madam Tang Yin signed her witness statements. There are also video recordings capturing her signing of the witness statements and her competence is confirmed to be a non-issue.

23.  Mr Mak submits that I erred in conflating weight and admissibility of Madam Tang Yin’s witness statements. He submits that the 3^rd SWS contains evidence that can add weight and probative value to Madam Tang Yin’s witness statements. By reason of the demise of Madam Tang Yin, her witness statements would be sought to be adduced as hearsay evidence and in the assessment of the weight of her witness statements, the court shall have regard to all the relevant circumstances including those when Madam Tang Yin signed her witness statements.

24.  I am unable to understand, given the fact that Madam Tang Yin’s competence is not in issue, how Madam Tang Yin signed her witness statements in the presence of her solicitors and Madam Tang has anything to do with the weight of the evidence contained in her witness statements. I also fail to understand how Madam Tang’s detailed description of the circumstances shown in the video-recordings in the 3^rd SWS has any probative value.

25.  I am unable to find any merit in Ground 2.

Ground 3

26.  This ground concerns my citation of Ho Wai Tung v Ho Fung [2020] 4 HKLRD 508. Mr Mak makes an effort to distinguish the present case from Ho Wai Tung and submits that I failed to consider the specific context of Ho Wai Tung.

27.  With respect, I find no substance in this ground. I referred to Ho Wai Tung, which was cited to me by Mr Wong, only for the well-settled legal principles. Mr Mak did not and still does not argue against such legal principles.

28.  Mr Mak, however, at the same time, relies on §49 of Ho Wai Tung where Marlene Ng J said,

“… supplemental statement evidence may be required if … there is a need to respond to freshly discovered documents after the 1^st round of witness statements.”

29.  Mr Mak then stresses that the 2^nd SWS is necessary to deal with the freshly discovered evidence disclosed on 14 June 2023 and the 3^rd SWS is required to deal with the demise of Madam Tang Yin on 5 September 2023.

30.  The genealogy was referred to in the witness statement of D7 dated 15 September 2016 and not really freshly discovered. Further, the video-recordings have already covered the circumstances under which Madam Tang Yin signed her witness statements. I do not accept that there is a need for Madam Tang to adduce further evidence.

31.  Even if the plaintiff believes that there is such a necessity, any supplemental witness statements must be admissible, relevant and of probative value. I have already explained why I think the 2^nd SWS and 3^rd SWS are not.

Ground 4

32.  The last ground is about the costs order I made in §41 of the 16/7/2024 Decision.

33.  Mr Mak submits that I did not give the parties any opportunities to make submissions on costs.

34.  But the costs order I made is a costs order nisi. Parties could have taken out a summons to apply for variation with supporting evidence within 14 days after the making of the order nisi pursuant to O.42 r.5B(6).

35.  This ground is unmeritorious.

Conclusion and order

36.  For the reasons given, I am not satisfied that the intended appeal of the plaintiff has any reasonable prospect of success and there is no other reason in the interests of justice that this matter should be heard by the Court of Appeal.

37.  Accordingly, I refuse to grant leave to appeal and I dismiss the Summons.

38.  There is no reason why costs should not follow the event. I make a costs order nisi that the defendants’ costs of and occasioned by the Summons be paid by the plaintiff, to be taxed if not agreed.

39.  Lastly, I thank Mr Mak and Mr Wong for their assistance in this matter.