ANGELA CHEN v. WAI WAI CHEN

HCAP 10/2020

[2026] HKCFI 3046

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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BETWEEN

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DECISION

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INTRODUCTION

1.  This probate action concerns the estate of the late Madam Yang Foo-Oi. The plaintiff and the defendant are her two daughters. There have been a number of interlocutory applications taken out since the action was commenced in 2020. As in the previous decisions, I shall call the parties by their first names, Angela (the plaintiff) and Vivien (the defendant), and the deceased “Mother”. I shall call the late Dr Chen Din Hwa, the father of Angela and Vivien, “Father” below. Dr Chen was the founder of the Nan Fung group.

2.  In this action, Angela seeks to propound the will executed by Mother on 15 February 2008 (“the 2008 will”) which left all her assets to Angela and appointed her as the sole executrix.

3.  Vivien, on the other hand, seeks to propound an earlier will made by Mother dated 27 October 2004 (“the 2004 will”) under which there would be an equal division of assets between the two daughters, and both of them were appointed as co-executrices.

4.  For the background of the action and a broad overview of the parties’ pleaded cases, see, eg, the decision of Wilson Chan J at [2024] HKCFI 962, paras 7 to 24.

5.  By summons dated 1 April 2025, Vivien seeks leave to amend her pleadings. Angela has agreed to all the amendments except two in the amended rejoinder, reply to defence to counterclaim and defence to counterclaim to counterclaim. I shall call this pleading simply as “the rejoinder” below. The two disputed amendments are (1) the amendment to para 16.3, and (2) a new para 16.4A.

6.  At the hearing, Vivien confirmed that she would withdraw certain parts from the amendments. This is my decision on the two disputed paragraphs, leaving out the withdrawn parts.

7.  In gist, Vivien is seeking to put in a plea that what Mother said in written evidence in (1) what has been called “the Rostack litigation” in a Californian court in the US in November 2011 and January 2014 and (2) what I shall simply refer to as “the Hong Kong proceedings” was false, and this shows that, first, Mother was a trusting person and was prepared to sign documents put before her by her family member without considering or fully appreciating the effect of what she was signing; and, second, when signing these documents, Mother continued to be influenced by Angela’s false representations.

8.  There can be no dispute that the Rostack litigation and the Hong Kong proceedings do not relate to the 2008 will. However, Vivien wishes to rely on the above plea to challenge Angela’s reliance on what have been referred to in this action as “the post-will acts” which took place from 2008 to 2014, including “the post-will documents” signed during that period. Angela contends that Mother, by the post-will acts, reaffirmed her intention under the 2008 will to leave everything to Angela and explained her reasons for excluding Vivien. Angela therefore wishes to rely on the post-will acts to show that Mother had knowledge and approval of the 2008 will. Vivien says that if her latest proposed plea is proved, it will show that the post-will acts cannot be relied on by Angela to buttress her case on knowledge and approval.

9.  Angela opposes the disputed amendments on the ground that they are both irrelevant and wholly disproportionate.

10.  Whether the disputed amendments should be allowed therefore largely turns on the application of the similar fact evidence principle, as applied by the Court of Appeal in Hong Kong in Amy So v Tony Chiu Yun Kan CACV 212/1994, 17 March 1995, and authoritatively explained by the House of Lords in O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534.

11.  Angela is represented by Mr Benjamin Yu, SC, Mr Bernard Man, SC, Mr Keith Lam and Mr Danny Tang. Vivien is represented by Mr Paul Shieh, SC, Mr Johnny Ma, SC, Mr James Man and Mr Tom Ng.

THE PLEADED CASES

12.  I set out below those parts of the parties’ pleaded cases which are relevant to the disputed amendments.

13.  In her re-re-re-amended reply, defence to counterclaim and counterclaim to counterclaim, Angela pleads to a series of legal or formal documents signed by Mother and what Mother said in medical examinations immediately prior to signing some of these documents between 2008 and 2014. (It is unnecessary to list those documents here save to make a reference to paras 17 and 18 in the decision at [2024] HKCFI 962.)

14.  Angela says that these documents and what Mother orally said reaffirmed her intention under the 2008 will. For instance, in some of the post-will documents, Mother stated that she made the 2008 will because Vivien had done improper things which had disturbed “the Equality Principle” under which there should be parity between Angela and Vivien in the distribution of Father’s wealth. Mother also stated in some of the post-will documents that she made the 2008 will because Vivien had indicated that she did not want Mother’s assets. Angela therefore relies on them to show Mother’s testamentary capacity to make the 2008 will and her knowledge and approval of it. These are two of the issues in dispute in this probate action. It is submitted on behalf of Angela that these post-will acts have significant probative value.

15.  On the issue of knowledge and approval, Vivien says that the burden lies squarely on Angela to prove it affirmatively. In any event, Vivien relies on matters which happened before and up to the execution of the 2008 will, including the suspicious circumstances surrounding and leading up to Mother’s complete volte-face from “the Equality Principle” in the 2008 will.

BASIS OF VIVIEN’S APPLICATION

16.  Vivien now puts forward the disputed amendments to challenge Angela’s reliance on the post-will acts, not only to negate or undermine such reliance but also to put forward a positive case that they cannot be used to buttress Angela’s case on knowledge and approval, and, further, to contend that the post-will acts resulted at least in part from Angela’s knowingly false representations to Mother. The Rostack litigation and the Hong Kong proceedings are pleaded as examples in support of that.

17.  Following the order in Vivien’s submissions, I shall set out the amendment in para 16.4A first, to be followed by that to para 16.3. I would observe at the outset that, as a matter of structure, the amendment in each case comprises two parts – the first part is a plea concerning Mother, and the second part contains an example or examples which are relied on to substantiate that plea.

Para 16.4A

18.  The entire para 16.4A is new.

19.  The “plea” part is this – the post-will acts “could not be used by Angela to buttress Angela’s case on knowledge and approval” as:

(1) Mother had limited or no appreciation of the impact and effect of the important documents (or legal steps) which she had been asked to sign (or take) from time to time;

(2) Mother was a trusting person, and if an important document (or legal steps) was put in front of her to sign by someone from Angela, she would sign or approve it without necessarily considering its detail or effect;

(3) Mother was prepared to sign or approve an important document (or legal step) because it had been suggested to her by a member of her family (or Angela), without fully appreciating the detail and effect of what she was signing or approving; and

(4) Mother had repeatedly executed documents which are inaccurate and/or did not reflect her true intentions.

20.  I shall call the above plea “the para 16.4A plea” in the discussion below.

21.  The “example” part refers to two incidents.

22.  The first incident is the Rostack litigation. It is said that Mother made two witness declarations in support of Angela’s case in that litigation. In the second declaration, Mother stated that certain annotations made in a document were made by Father in the presence of Angela and Vivien in 2005.

23.  Para 16.4A goes on to say that:

(1) Mother was in fact not present on that occasion; and

(2) Mother’s allegation was factually false.

24.  The second incident is the Hong Kong proceedings. Mother signed an affirmation stating that she loved Father and their family deeply, but she later said that the affirmation (which she approved and signed) was actually inaccurate.

25.  Vivien’s reasons for introducing para 16.4A is as follows. If both incidents are established as facts at trial, it would prove the para 16.4A plea, as it would demonstrate Mother’s propensity to sign false and inaccurate documents, which suggests that she had limited or no appreciation of their effect when signing them. Vivien would then be able to argue at trial that Mother might have signed documents simply because she trusted Angela, without necessarily understanding their contents or effects. This would in turn allow Vivien to say at trial that the post-will acts cannot be relied on by Angela to buttress her case of knowledge and approval.

Para 16.3

26.  The background to para 16.3 is that in her re-re-amended defence and counterclaim, Vivien pleads that the 2008 will should be set aside on the ground that it was obtained by fraud and/or fraudulent calumny practised by Angela on Mother.

27.  As presently pleaded, the existing plea in para 16.3 alleges that the post-will acts also resulted at least in part from Angela’s knowingly false representations to Mother.

28.  The new plea in para 16.3 alleges that Mother continued to be influenced by Angela’s false representations after the 2008 will. I shall call this “the para 16.3 plea” in the discussion below.

29.  The example used in support of this plea of continued influence is the two witness declarations made by Mother in the Rostack litigation. In addition to alleging that Mother was in fact not present on that occasion and that Mother’s allegation was factually false, para 16.3 goes on to say that Angela knew that Mother’s allegation was false as the annotations existed at least by November 2003.

30.  Vivien’s reasons for introducing the amendment to para 16.3 are the same as for para 16.4A. In addition, Mr Shieh submits that Vivien is not introducing a newly pleaded case in para 16.3. She is merely giving examples to support her existing plea that Angela had knowingly made false representations to Mother after the 2008 will was made.

LEGAL PRINCIPLES

31.  There is no dispute over the legal principles governing (1) amendments to pleadings, and (2) the similar fact evidence principle.

32.  On amendments, the general principle is that, absent any real prejudice, all such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided. But an amendment will not be allowed if it would serve no useful purpose: see, eg, Thapa Kamala v Tong Ming-Kay (PC4373) [2023] HKCA 1016, para 31.

33.  On similar fact evidence, it has been recognised that evidence of what happened on an earlier occasion may make the occurrence of what happened on the occasion in question more or less probable. In O’Brien, Lord Bingham said, at para 4:

“To regard evidence of [apparently similar] earlier events as potentially probative is a process of thought which an entirely rational, objective and fair-minded person might, depending on the facts, follow.”

34.  In Hong Kong, the Court of Appeal held in Amy So (at p10) that in civil cases, the courts will admit evidence of similar facts if it is logically probative, ie logically relevant, in determining the matter which is in issue but such facts may still be excluded on grounds of fairness if they tend to waste time, embarrass the inquiry with collateral issues, prejudice the parties with the fact-finding tribunal, and encourage attacks without notice.

35.  In O’Brien, the House of Lords explained the court’s approach when faced with a request to present evidence which is said to be similar fact evidence. The court undertakes a two-stage inquiry.

36.  The question at the first stage is whether the evidence is admissible. That question turns, and turns only on, its relevance. Assuming (provisionally) that it is true, the evidence is relevant if it is logically probative or disprobative of a matter which requires proof at trial. Put in less technical terms, relevant evidence is evidence which makes the matter in question more or less probable: O’Brien at para 4.

37.  As put by Lord Phillips, at para 53, the test at the first stage is:

“I would simply apply the test of relevance as the test of admissibility of similar fact evidence in a civil suit. Such evidence is admissible if it is potentially probative of an issue in the action.”

38.  If admissibility is established, the court proceeds to the second stage in which it will decide whether, as a matter of case management, the evidence should be admitted. This stage is about the control of the evidence to be adduced at trial. The court will give effect to the underlying objectives of cost-effectiveness, expedition, proportionality, procedural economy, and fairness as between the parties, with the recognition that the primary aim is to secure the just resolution of disputes in accordance with the substantive rights of the parties: Order 1A, rules 1 and 2; O’Brien at paras 54 to 56.

39.  On the one hand, there is plainly an argument that if relevant evidence is not admitted, a wrong result may be reached. On the other hand, the opposing party may argue that the admission of the evidence will distort the trial, add to its length and complexity, and distract the attention of the court by focusing attention on issues collateral to the issue in dispute. At the second stage, the task of the court is therefore to weigh the conflicting policy considerations and makes a judgment call as to whether the similar fact evidence should be allowed. The overriding objective will be to promote the ends of justice. The court should bear in mind that:

“justice requires not only that the right answer be given but also that it be achieved by a trial process which is fair to all parties.” (O’Brien at paras 5 to 6)

40.  On a practical level, the court will assess the potential significance of the evidence in the context of the case as a whole, and the cogency of the evidence. At the same time, it has been said that the similar fact evidence should be reasonably conclusive, not of the matter which requires proof at the trial, but of the collateral facts to which the evidence relates, as otherwise the court will have to spend time to rule on the collateral facts. The court should therefore consider:

“whether the evidence in question is likely to be relatively uncontroversial, or whether its admission is likely to create side issues which will unbalance the trial and make it harder to see the wood from the trees.”

41.  See O’Brien at paras 5, 46 and 56. See also Amy So at p11 in which the Court of Appeal made a similar remark about the “reasonably conclusive” point. The two-stage inquiry explained in O’Brien was subsequently applied by first instance courts in Hong Kong in Choi Chun Ming v Cosco-HIT Terminals (Hong Kong) Ltd [2009] 3 HKLRD 402 and, recently, CMBICDHAW Investments Ltd v Li Lei [2025] HKCFI 3616.

42.  It will be clear from the above discussion that the similar fact evidence principle is meant to apply to evidence, not pleadings. The principle is often invoked in the context of a discovery application, an application for leave to adduce witness statements or to expunge parts of witness statements. The issue may also arise in the course of cross-examination at a trial.

43.  Here, the application before me is an application to amend pleadings. However, it is common ground, as confirmed at the hearing, that the application is to be decided under the similar fact evidence principle. I shall therefore proceed to do so, and add that in the event that I refuse the disputed amendments, it will logically follow that any evidence relating to them should not be admitted at the trial.

DISCUSSION

44.  The starting point of the discussion is that there can be no dispute that the subject matter of the Rostack litigation and that of the Hong Kong proceedings are unrelated to either the 2008 will or the post-will acts. There is no direct connection between them. That appears to be the main contention of Angela. And I accept that to be correct.

45.  However, that is not the end of the matter. In light of the nature of the disputed amendments, Vivien submits that they should be allowed under the similar fact evidence principle.

The first stage under O’Brien

46.  I am of the view that the para 16.4A plea and the para 16.3 plea, as set out in paras 19 and 28 above, are relevant to the issue of Mother’s knowledge and approval of the 2008 will.

47.  Angela relies on the post-will acts to show that Mother had knowledge and approval of the contents of the 2008 will.

48.  Assuming that the para 16.4A plea is proved at trial, Vivien will prove, in gist, that Mother was prepared to sign documents put in front of her by Angela without fully appreciating their effect, and that she had repeatedly signed documents which are inaccurate or did not reflect her true intentions. Vivien’s argument is that this raises query as to whether the post-will documents signed by Mother were signed in similar circumstances. The question which should be asked at the first stage of the inquiry is whether a rational, objective and fair-minded fact-finding tribunal would, may or might have the same query. In my view, the answer is self-evidently yes. In that case, it can reasonably be argued that the post-will documents cannot be relied on to support Angela’s contention. The plea is therefore probative of the issue of knowledge and approval.

49.  Furthermore, where the para 16.3 plea is proved at trial, Vivien will prove that Mother continued to be influenced by Angela’s false representations after the signing of the 2008 will. Where that is the case, it will make Vivien’s existing plea that the post-will acts resulted at least in part from Angela’s knowingly false representations more probable. The para 16.3 plea is therefore potentially probative of the issue of knowledge and approval.

50.  However, it does not follow from the view which I have just reached that Vivien has satisfied the first stage of the inquiry under O’Brien. This is because I find that even if the examples as pleaded in the two disputed amendments are proved, they are not sufficient to substantiate the two pleas.

51.  As regards para 16.4A, even if it is proved at trial that Mother’s allegation made in her witness declarations in the Rostack litigation was false, that does not necessarily show that that was the case because she had signed the documents without fully appreciating their contents or effects. Mother could have made the false allegation due to other reasons. There is simply no further plea in the disputed amendments spelling out the circumstances in which the witness declarations were signed by Mother. As such, the example of the Rostack litigation, even if proved at trial, will not go to support the para 16.4A plea.

52.  Similarly, even if it is proved at trial that Mother made an inaccurate statement in the affirmation in the Hong Kong proceedings, that does not necessarily show that that was the case because she had signed the affirmation without fully appreciating its contents or effects. Mother could have made the inaccurate statement for other reasons. Again, there is simply no further plea in the disputed amendments spelling out the circumstances in which the affirmation was made by Mother. Therefore, the example of the Hong Kong proceedings, even if proved, will not go to support the para 16.4A plea.

53.  The same analysis applies to the para 16.3 plea. As submitted by Mr Yu, other than pleading that Angela knew that Mother’s allegation was false, there are simply no pleas on what representations were made by Angela to Mother when the latter made the allegation in the Rostack litigation.

54.  The examples of the Rostack litigation and the Hong Kong proceedings are the only examples put forward by Vivien to support the new pleas. However, one can readily come to the conclusion at this stage that the two examples, even if proved at trial, are not sufficient for that purpose. There is therefore an obvious gap here in that Vivien fails to demonstrate that the new pleas can be proved. She therefore fails to show relevance.

55.  For this reason, the disputed amendments should not be allowed.

The second stage under O’Brien

56.  It is therefore unnecessary to proceed to discuss the second stage of the inquiry under O’Brien. However, I shall briefly state my views in case I am wrong on my conclusion for the first stage.

57.  In deciding whether the evidence should be admitted, I consider that the most weighty factor is that the evidence relating to the Rostack litigation and the Hong Kong proceedings are controversial.

58.  If admitted, the court will have to try, for instance, the issue of whether Mother’s allegation in the Rostack litigation was in fact false and, if so, the circumstances in which that false allegation was made. These matters can hardly be said to be “reasonably conclusive”. This will create a side issue which adds to the already long list of issues in this probate action. As submitted by Angela, there will be serious implications on consequential pleadings, the scope of discovery, witness statements, the evidence to be given at trial, and the length of the trial. I agree with that submission. It would be a disproportionate exercise to undertake even if one takes the view that the new evidence is going to be of some significance.

59.  It is submitted on behalf of Vivien that the Rostack litigation has already been canvassed in the evidence. Witness statements made by one of the existing witnesses to be called by Vivien refer to the litigation. This being the case, the court should be more ready to grant leave for the disputed amendments, as the evidence is already there and this would mitigate any assertion of proportionality. I do not agree with the submission. The short answer to this is the point made in Angela’s written submission, namely that Angela’s side has not adduced evidence relating to the Rostack litigation.

60.  Quite apart from the additional time and efforts to be incurred, the notion of introducing a new controversial issue to the trial in order to help resolve an existing controversial issue seems to me to be unhelpful, if not counter-productive, in the present action. As things stand, it is expected that the court will hear a lot of evidence on the issue of knowledge and approval, including the post-will acts. It makes more sense for the court to focus on such evidence, rather than being drawn into another controversy.

61.  In conclusion, given the controversial nature of the new pleas, they should not be allowed.

62.  At the hearing, Mr Shieh made the submission that in deciding whether it would be proportionate to admit similar fact evidence in a probate action, the court should adopt a more inclusive approach than may be the case in ordinary civil litigation. This flows from the inquisitorial nature of probate proceedings. He drew support from para 154 of Tan Cheng Gay v Tan Choo Suan [2025] HKCFI 4788.

63.  It is unnecessary to express any view on this submission. This is because the present case is a clear-cut case in which the similar fact evidence should not be admitted, whether one applies a “more inclusive” approach or an ordinary one.

Other arguments

64.  I should lastly deal with two other arguments made by Vivien in support of the disputed amendments.

65.  First, Vivien contends that the post-will acts happened after the signing of the 2008 will and as such they do not constitute probative evidence of knowledge and approval on the part of Mother. But if they are relevant, as Angela is relying on Mother’s out-of-court statements and conduct in circumstances where she cannot be cross-examined, the court should have regard to the totality of the evidence, including events that happened in around the same period from 2008 to 2014, for the purpose of assessing the reliability of the post-will acts. Vivien therefore says that she is entitled to refer to the Rostack litigation and the Hong Kong proceedings.

66.  I reject that submission. Mr Yu submits, and I agree, that applying the logic, one may argue that anything said by Mother during that period, whether accurate or inaccurate, should become the subject matter of the trial, and that simply cannot be right. Vivien’s reliance on the English decision in Shagang Shipping Co Ltd v HNA Group Co Ltd [2020] 1 WLR 3549 at paras 104 to 112 is misplaced. The discussion there is about the admissibility of evidence obtained by torture, which is totally irrelevant to the present case.

67.  Second, Vivien argues that it cannot be right or fair to allow Angela to cherry-pick the post-will acts which she relies on to support her case, but then to preclude Vivien from pleading other post-will incidents which Vivien wishes to rely on to negate Angela’s case. The court should not be constrained to adopt a blinkered and one-sided view of the post-will events. If it is disproportionate to consider Vivien’s post-will events, the logical solution is to excise Angela’s pleas concerning the post-will acts in the rejoinder.

68.  In my view, there is no merit in this argument. The new pleas proposed by Vivien are different in content and nature from Angela’s pleas. Whether the former should be admitted is to be resolved by applying the similar fact evidence principle, and I have resolved the issue against Vivien. By contrast, the post-will acts relied on by Angela relate directly to the 2008 will. There is no logical reason why Vivien’s pleas and Angela’s pleas must be treated in the same manner.

CONCLUSION

69.  In conclusion, the disputed amendments are irrelevant to the issue in dispute, both in the direct sense and under the similar fact evidence principle. For that reason, I order that Vivien’s summons insofar as it concerns the disputed paragraphs be dismissed.

70.  As regards costs of the summons on the whole, I would ask the parties to try to come to an agreement within 14 days and, if no agreement can be reached, they should jointly write to the court by the same deadline stating the costs orders which they would each ask for, and their proposed directions for resolving the disagreement.