KWOK SUK YIN v. WONG CHU PONG AND OTHERS

HCAP11/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 11 OF 2007

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BETWEEN

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J U D G M E N T

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1.  I will allow the appeal and set aside the order of Master Levy.

2.  The summons of 9 February 2010 asked for several relief. The master dismissed the application on the basis that it was a fishing expedition and this is the appeal from that decision.

3.  The relief asked for in the summons include seeking leave from the court to release the original Will for examination by the Plaintiff’s handwriting expert and, secondly, exchange of list of documents setting out the documents in the possession, custody and control of the parties with regard to handwriting and signature of the deceased within six months prior to the death of the deceased. The third relief asked for is exchange of handwriting expert reports.

4.  The probate action was started in 2007. It was a challenge by the Plaintiff to a purported Will of the deceased dated 19 September 2006. The challenge pleaded in the statement of claim relates to the question of testamentary capacity.

5.  As at today, the statement of claim and the writ do not include a plea of forgery as regards the Will. However, this question of forgery and handwriting evidence has been raised by the solicitor for the Plaintiff way back in 2009 in a couple of listing questionnaires. It was referred to in a questionnaire filed on 17 September 2009, on behalf of the Plaintiff, where there was a reference to the Plaintiff intending to seek leave to adduce handwriting expert evidence. It was again referred to in a listing questionnaire of the Plaintiff dated 3 December 2009 in which one of the proposed directions sought by the Plaintiff was expert directions regarding handwriting experts. I was told that at the listing hearing the master did not grant the direction because the Plaintiff was unable to give the master a definite date when expert evidence would be available. In other words, the application was not dismissed; it was simply not dealt with.

6.  By now, it is quite clear to me that the Plaintiff intends to challenge the authenticity of the Will and, in that regard, the Plaintiff has procured the service of a handwriting expert, Dr Leung, who has provided the Plaintiff with his preliminary views on the matter. But as we all know, in order for a handwriting expert to come to a definite opinion, the original has to be inspected and it is for that purpose the summons seeks leave from the court to release the original Will to the Plaintiff’s solicitors for examination by their handwriting expert.

7.  Today I was told by Mr Ko, on behalf of the Defendants, in so far as this part of the application is concerned, the Defendants would not oppose, although Mr Ko made, at the same time, the submission that because the question of forgery has not been pleaded, it is not an issue in the present action.

8.  I do not regard this latter submission to be a valid objection to relief being granted for the release of the Will to the Plaintiff’s solicitors. By the established practice of a probate action, as soon as an action is commenced, all testamentary scripts will be placed in the custody of the court and in order to have the original examined by a handwriting expert leave is required. Unless the Plaintiff can obtain a proper handwriting expert report, her lawyers cannot be criticised for not raising a plea of forgery in terms of the pleadings. In the circumstances, I do not think one can validly object to the release of the original Will to the Plaintiff simply because the issue of forgery remains to be pleaded.

9.  On the basis of the materials that were available to the master, in other words, even without taking into account of the latest affirmation sought to be adduced on behalf of the Plaintiff for the purpose of this appeal only, I am satisfied that the Plaintiff did have reasonable grounds to ask for the original Will to be inspected and examined by her handwriting expert and, to that extent, I think the master was wrong in refusing that part of the application on the ground that it is a fishing expedition.

10.  I will therefore grant an order in that regard, which will be an order in similar terms to paragraph 1 of the summons, except that the first part of that paragraph, referring to liberty to call a handwriting expert, shall be deleted.

11.  With regard to the specific discovery in terms of documents containing handwriting and signature of the deceased and the exchange of handwriting expert reports, Mr Ko submitted that this should not be dealt with at this stage. Counsel submitted that they should be dealt with only after the Plaintiff sees fit, with the benefit of legal advice, to advance a case of forgery on the pleading. Mr Ko also mentioned the possibility of the Defendants making an attempt to strike out any plea of forgery.

12.  Having considered the possible grounds of striking out which Mr Ko has informed the court at this hearing, I must say that any attempt on that score is likely to be doomed to failure if the Plaintiff obtained a handwriting expert’s opinion in support of the case of forgery.

13.  Be that as it may, in the light of the objections of the Defendants, I will not make an order in terms of the other parts of the application at this stage. I think Mr Kwok is agreeable to have those parts of the application to be adjourned pending the outcome of the examination of the original Will by the handwriting expert, and if the evidence supports the case of forgery, the Plaintiff will make an application for amendment of the pleading to include a claim of forgery. In the light of that, I will not deal with these other parts of the application (other than setting aside the order of the Master) although I can see that there is a strong likelihood that the matter will have to be dealt with at some stage in the future.

14.  Mr Ko invited the Court to dismiss those parts of the application. At this stage, I am not minded to do so. As I said in the course of the hearing, it seems that whether I dismiss it or just adjourn it to be dealt with in the future, the only practical significance seems to be a matter of cost. I shall hear the parties further on submissions as to costs but I think, in the circumstances of the case, it is not unreasonable for the Plaintiff to include those two matters in the summons and I will not dismiss it. Instead, I will just adjourn those other parts of the application to be dealt with in the future at an appropriate stage.

15.  As far as the application for the admission of fresh evidence for the purpose of the appeal is concerned, since the amendment to Order 58 rule 1 by adding subparagraph (5), the former practice of appeal from masters in relation to the admission of fresh evidence is no longer applicable . In Fortis Insurance v Lam Hau Wah, High Court Action 1840/2009, on 30 March 2010, Fok J held that the special grounds required under Order 58 rule 1(5) will be the same as those laid down in Ladd v Marshall in the context of Order 59 rule 10(2).

16.  This judgment was only given to me this morning and I have not heard full submissions on the point. I tentatively agree with the view of Fok J. In any event, as for the present application, I do not see any special grounds for the admission of the fresh evidence. As I said, on the materials before the master, it should be adequately clear that the challenge based on the attack to the signature of the Will by the deceased is a point which has been taken on board by the Plaintiff for quite some time, and as far as the application for the release of the original to the Plaintiff for examination by his own handwriting expert is concerned, it cannot be characterised as a fishing expedition. Therefore, the fresh evidence is not necessary for the purpose of the appeal and I will dismiss that application.

17.  I will now hear the parties on the question of costs.

(Submissions on costs)

18.  I think neither side can be said to be wholly successful in the matter and I think the solicitors for both sides should have been more proactive in terms of coming to agreement in dealing with the matter. I bear in mind that I have refused the application for the admission of fresh evidence but the Plaintiff is, to an extent, successful in getting what she wants in the direction of the preparation of handwriting expert evidence. At the same time I bear in mind that there are two other parts of the application which I have adjourned and, to that extent, I agree not to deal with them at this stage. I think the fair order to be made in the circumstances is, as for all these summonses relating to the present application, including the application for admission of fresh evidence, there shall be an order that each party bear his/her own costs. The order is in respect of costs here and below.

19.  The other part of the application has not been finally disposed of. In the light of the fact that there will be a case management hearing in September, I think we should resolve those matters before that case management conference.

(Submissions on court timetable)

20.  I propose to list the matter to come back before me to deal with the other paragraphs in the summons on 5 July. The outstanding paragraphs of the summons shall be restored for hearing before me on 5 July at 10 am. In the meantime, I would expect steps to be taken to amend the pleadings if so advised on the part of the Plaintiff and to prepare for the striking-out, if any, by the Defendants. If there are such applications, they should come back before me on 5 July. If the parties can agree on the disposal of the remaining parts of the application, they can be dealt with by consent in the usual manner.