LEE WAI HO v. FUNG KUI CHUEN

HCAP 21/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 21 OF 2011

___________________

________________________

BETWEEN

________________________

_______________________________

DECISION

_______________________________

The Fact

1.  This is a probate action where the plaintiff is the surviving natural sister, who will be entitled to the deceased’s estate under intestacy.  The deceased had executed a Will in 2005, which was prepared by a firm of solicitors, witnessed by a clerk of the firm. In her Will, she had bequeathed the whole of her property to the defendant, who is also the sole executor of the estate.[1] The plaintiff claimed against the defendant on the validity of the Will, saying that the testator executed the Will without the requisite testamentary capacity in that she was, at the material time, suffering from Alzheimer dementia and she was not of sound mind to understand the contents of the Will.  The plaintiff also alleged that the Will was made by the deceased under undue influence or improper pressure from the defendant.  The defendant denied all the plaintiff’s allegations and maintained that he had cohabited with the deceased and the deceased’s mother and he looked after them before they passed away.

The Application

2.  The plaintiff has taken out a summons for leave to adduce medical expert evidence on the mental capacity of the deceased pursuant to Order 38, rules 4, 36 & 37 of RHC.  The plaintiff intended that the expert will comment on the factual observations of the plaintiff’s witnesses and give his/her own opinion as to whether the deceased could have the testamentary capacity at the material time.[2]

3.  The defendant contests this application on the ground that there had been medical records of the deceased from the Pamela Youde Nethersole Eastern Hospital, the Ruttonjee and Tang Shiu Kin Hospital and Dr. Leung Chi Wah. In those medical reports, there is nothing to suggest that the deceased might not have had the requisite testamentary capacity at the time of execution of the Will.[3]  The proposed expert evidence by the plaintiff will not assist the court in resolving the issues in this case. It will cause delay and waste costs.[4]

4.  Mr. M. Ho, Counsel, acts for the plaintiff and Mr. A. Cheung, Counsel, for the defendant.

Legal Issue – Expert Opinion on Uncertain Facts

5.  There is no dispute over the trite legal principles on admissible expert evidence as set down in Wong Hoi Fung v. American International Assurance Co. (Bermuda) Ltd. [2002] 3 HKLRD 507, summarized by Deputy Judge Au Yeung in Citibank N.A. v. Noble Treasure Limited  Others HCA2639/2008 at §10:

“The principles for giving leave to adduce expert evidence are not in dispute. They have been laid down in the cases of Wong Hoi Fung v. AIA [2002] 3 HKLRD 507 and Kam Hing v. PIC [2009] 4 HKC 531. In a nutshell, a test of admissibility and relevance is applied. Where the proposed expert evidence is plainly inadmissible or irrelevant, the court ought to exercise its discretion to refuse the admission of such evidence. However, if the court cannot form a clear view on the relevance of the proposed expert evidence or where it considers that the proposed evidence is clearly relevant, then it should grant leave for the evidence to be adduced at the trial. Expert evidence is relevant if it is helpful to the court in arriving at its decision on one or more issues to be resolved.

6.  However, I consider that the crux of today’s dispute is not on the relevance of the medical evidence, but rather on the admissibility of the evidence to be prepared in the way proposed by the plaintiff.  Mr. Ho for the plaintiff says in his skeleton submissions at § 2:

“The deceased is no longer living and hence cannot be medically examined by the expert. It is therefore intended that the expert will comment on the factual observations of the Plaintiff’s witnesses and give his/her own opinion as to whether the Deceased could have the testamentary capacity at the material time. Expert evidence of this form is well-recognized by the law.”

He refers to Hong Kong Civil Procedure (2012), which states:

“The facts upon which an expert bases his opinion must be properly proved …The factual evidence may come from the expert …However, an expert witness may comment on facts established by other witnesses (including other experts…The witness may also rely on studies done by others which he accepts as correct by reason of his expertise…”

It is important to note that the facts of the witnesses must be properly proved.  This is logical because the expert will usually give his opinion on the person he has examined, tested or treated, which are direct evidence, on which he can base to form his expert opinion.  It is inconceivable that he can give expert opinion on uncertain facts or facts, which are subject to verification or challenge in court without any finding as to the facts or the extent to which the court finds to be true.  Such expert opinion will not be admissible; or even if admissible, will not be of probative value for the court.

7.  I ask Mr. Ho as to how the witness evidence is to be proved for the expert to give opinion on.  Mr. Ho asks for an adjournment so that he may discuss with Mr. Cheung as to what evidence they may agree so that the plaintiff’s expert may give the expert opinion.  Mr. Ho agrees that if the factual evidence is uncertain and yet the expert has to give opinion on it, the expert evidence will not have probative value.

Agreed Directions

8.  After the adjournment, both counsel agree that the plaintiff may have expert opinion on the medical consultation notes written by Sze Pui Ka on 19 May 2005 and printed by Siu, Lok Man of the Rutonjee & Tang Shiu Kin Hospital dated 20 September 2012 on page 146 and page 147 of the bundle of documents.

9.  Mr. Cheung has no objection to the application, provided that leave will be given to the defendant to call Dr. Sze to give oral evidence.

10.  As to costs of this application, Mr. Ho proposes that the costs should be in the cause.  Mr. Cheung asks for costs because the plaintiff has failed on the application for leave to adduce expert evidence on the witnesses’ evidence, which this court has found against.  Mr. Ho then submits that Mr. Cheung had argued against giving leave to the plaintiff to call expert evidence on the medical evidence of Dr. Sze, so the costs should be in the cause.  Having considered the arguments, I consider that the fair order should be the costs be in the cause.

Order

11.  I shall make an order in terms as follows:

a.   Leave to the plaintiff to call one expert at the trial to give evidence on the medical findings of Dr. Sze Pui Ka as shown on her consultation notes on 19 May 2005 and the expert shall serve the expert report on the defendant within 28 days from the date hereof;

b.   The defendant be at liberty to call Dr. Sze to give evidence at the trial;

c.   Costs of this application, including the costs reserved and the costs for today’s hearing (with a counsel’s certificate) be in the cause, to be taxed, if not agreed.

Setting Down for Trial

12.  As agreed by the parties, in order save time and costs for case management, I shall give the following directions for this case to proceed to trial without further interlocutory hearing:

a.   Leave to the plaintiff to set down within 42 days for a 6-day trial before a probate judge alone in the fixture list.  There be a pre-trial review before the trial judge for 30 minutes on a date 12 weeks before trial.  Parties shall raise the issue of recusal of the trial judge, if any, and shall confirm the length of the trial by counsel in charge at the pre-trial review.  Upon setting down, all interlocutory applications shall be listed to be heard by the Trial Judge or a Judge;

b.   The Case Management Conference scheduled on 9 January 2013 be vacated;

c.   Costs of the Case Management Conference be in the cause.