FU SHU WAH & FU SHU WING in their personal capacities as beneficiaries AND in their capacities as the Administrators of THE ESTATE of HO SUNG LAI（何崇禮）, DECEASED v. FU MEI YUK

HCA 2791/2015

[2019] HKCFI 2969

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2791 OF 2015

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DECISION

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Background

1.  This is the hearing of the plaintiffs’ (“Plaintiffs”) appeal against Master Au-Yeung’s order made on 27 September 2019 in relation to the Plaintiffs’ summons filed on 25 April 2019.  In their summons, the Plaintiffs sought, inter alia, leave to file the second supplemental witness statements of Fu Shu Wah and Fu Shu Wing and a witness statement of their mother’s sister, Ho Sung Mei.  Master Au-Yeung granted the Plaintiffs leave to file and serve the witness statement of Ho Sung Mei containing only paragraphs 1, 2, 8 (excluding the last sentence therein), 9 and 17 but dismissed all other applications in the summons.

2.  The Plaintiffs have also taken out a summons filed on 2 December 2019, seeking to strike out the defendant’s (“Defendant”) affidavit filed in opposition to the appeal.  The affidavit contains a lot of irrelevant matters in relation to this appeal.  The Defendant is acting in person.  I have already stood down the hearing for half a day to enable her to study the hearing bundle which she claimed she had not received.  For expediency, I shall take her affidavit into account but make no order on the summons.

The facts and the issues

3.  The Plaintiffs and the Defendant are three of the six children of their deceased mother, Ho Sung Lai, who died intestate on 1 September 2011 (“the deceased”).  The Plaintiffs were appointed as administrators of the estate of the deceased.  The estate consists mainly of a property in Fanling (“the property”).  Since 2012, the siblings were engaged in a probate action in HCAP 31/2012 and in HCA 813/2013 in which the Plaintiffs were defendants.  On 7 February 2014, the six siblings entered into a settlement agreement regarding the property through mediation.  It was agreed that the Defendant shall deliver vacant possession of the property to the Plaintiffs within three months after signing of the settlement agreement.  The Defendant failed to do so and the Plaintiffs commenced the present action.  The Defendant’s defence is that she had no mental capacity when entering the settlement agreement which should therefore be rescinded and in any event the parties have agreed to set aside the settlement agreement.  The issues raised by the pleadings are:

(a)  whether at the time of signing the settlement agreement the Defendant did not have the required mental capacity to sign it; and

(b)  whether the parties had entered into a binding agreement to set aside the settlement agreement.

4.  In essence, the Plaintiffs appeal against the Master’s refusal to grant leave to file paragraph 9 of the proposed second supplemental witness statements of the Plaintiffs and paragraphs 12 and 13 of the proposed witness statement of Ho Sung Mei.  These paragraphs refer to an incident in December 2018 in which one of the siblings, Fu Siu Ming, wrote a letter to Ho Sung Mei setting out the background of the parties’ dispute and enclosing some documents which the Plaintiffs felt objectionable.  These documents include:

(a)  a covering letter signed by Fu Siu Ming;

(b)  Tang Kai Sun’s witness statement dated 25 October 2018 (not filed or served);

(c)  Fu Siu Ming’s witness statement dated 25 August 2017;

(d)  Fu Siu Ming’s supplemental witness statement dated 25 August 2018 (not filed or served);

(e)  Defendant’s witness statement dated 25 August 2017;

(f)  Defendant’s supplemental witness statement dated 18 October 2018 (not filed and served);

(g)  Plaintiffs’ defence in HCA 813/2013 dated 14 August 2013; and

(h)  some apparently medical reports of the deceased.

The Plaintiffs’ objections are based on confidentiality. 

Discussion

5.  The Plaintiffs argue that it appears that the Defendant and/or Fu Siu Ming have used their personal data, namely the defence filed in HCA 813/2013, for another purpose which is not the original purpose when collecting it.  The Defendant and/or Fu Siu Ming were in breach of Principle 3 of the Data Protection Principles under Schedule 1 to the Personal Data (Privacy) Ordinance, Cap 486.

6.  They argue that the medical reports of the deceased are regarded as part of the deceased’s estate which may not be disclosed to a third party, namely Ho Sung Mei, without their consent.  But they could not advance any argument why such violation of their rights would support their claim that these paragraphs should be included in the witness statements.

7.  As for the witness statement of the Defendant and Fu Siu Ming, the general rule is that witness statements exchanged under Order 38, rule 2A of the Rules of the High Court are not put in evidence by the fact of exchange and remain confidential until the witness makes the statement public by verifying it on oath in the witness box: see Hong Kong Civil Procedure 2020 [1].  The Plaintiffs acknowledge that the Defendant and/or Fu Siu Ming may waive the privilege.  Indeed, by disclosing them to Ho Sung Mei, they are deemed to have waived the privilege.  Thus, the Plaintiffs pray in aid section 2 of the Mediation Ordinance, Cap 620 and argue that certain paragraphs of these witness statements fall within the definition of mediation communications and are bound by the confidentiality rules set out in section 8. Hence, the Defendant may not disclose these witness statements or the offending part therein to Ho Sung Mei.  The Plaintiffs raised no objection based on confidentiality to the three witness statements which have not been filed or served.

8.  Even if the Defendant was in breach of confidentiality principle under the Personal Data (Privacy) Ordinance and Mediation Ordinance, the Plaintiffs are not seeking any redress under these Ordinances.  They are not seeking to restrain the Defendant from using or producing these documents.  Instead, what they are trying to do is to adopt the Defendant’s breach and seek to produce these documents and the covering letter as evidence of impropriety on the part of Fu Siu Ming for the purpose of laying the foundation for discrediting Ho Siu Ming when cross-examining her at the substantive hearing.  It can be readily seen that the sole purpose of adducing the evidence in the various paragraphs in these witness statements excluded by the Master is not directly related to the trial issues but is to form the basis for launching a collateral attack on the Defendant’s witness or the Defendant herself.

9.  The Plaintiffs argue that the Defendant’s purpose in disclosing the documents to Ho Sung Mei was to smear the Plaintiffs and to influence Ho Sung Mei when giving her witness statement or when testifying at the substantive hearing.  They suggest that such conduct amounted to an attempt to pervert the course of justice. 

10.  I find such argument very convoluted.  Ho Sung Mei made her previous witness statement on 7 September 2018, three months before she received Fu Siu Ming’s letter.  Thus, at the time she gave her previous witness statement she could not have been influenced by the letter and the documents contained therein.  That witness statement was struck out by Master Andy Ho for having been filed without leave.  Ho Sung Mei was not a witness.  There could be no perversion of the course of justice or attempt to pervert. 

11.  The Plaintiffs now seek leave to file a fresh witness statement of Ho Sung Mei.  As the Master observed, it is an extended witness statement of the previous one which had been struck out.  This witness statement was written after Ho Sung Mei had received Fu Siu Ming’s letter and the documents.  In paragraphs 12 and 13 of the witness statement which Master Au-Yeung excluded, Ho Sung Mei mentioned the letter and document sent to her by Fu Siu Ming.  She said that she considered what the Defendant or Fu Siu Ming did was calculated to influence her and to prevent her from doing justice among the siblings.  She considered the Defendant’s and/or Fu Siu Ming’s conduct objectionable and reported to the Plaintiffs.  Obviously, Ho Sung Mei was not the least affected by the letter and documents.  However, the Plaintiffs may argue that there was nevertheless an attempt to pervert the course of justice by attempting to influence a potential witness.

12.  Be that as it may, whether there was an attempt to pervert or an improper motive, putting it loosely, depends on the subjective intention of the person who disclosed the mediation communications, namely the Defendant and/or Fu Siu Ming.  Usually, their answer is conclusive.  It is open to them to give innocent explanations for what they did.  Though their express subjective intention has to be tested against the objective factual circumstances, a very strong or compelling inference to be raised from objective facts is required to overturn their express subjective intention.  Here, the intended cross- examination must be rested on the premise that the Defendant’s and Fu Siu Ming’s witness statements are false, otherwise there could be no perversion or improper motive.  But the truth or falsity of those statements are really the crux of the matter at trial.  Without establishing that the statements are false, there is no basis for any adverse inference to be drawn from their answers given in cross-examination.  If the Plaintiffs could establish the falsity, there would be no need for the cross-examination.  The Plaintiffs’ argument for cross- examination on the letter and documents is just circular and serve no real purpose.  

13.  Furthermore, as mentioned in paragraph 3, there are only two trial issues, the Defendant’s mental capacity and agreement to set aside the settlement agreement.  The letter and documents contained a whole load of allegations about the rights and wrongs of the siblings, most if not all of which are in dispute.  Those issues are irrelevant.  The trial will be unreasonably burdened with investigation into those irrelevant issues.  If those allegations are redacted, the cross-examination would probably be nugatory.

14.  The Plaintiffs referred me to the Court of Final Appeal decision in Champion Concord Ltd v Lau Koon Foo (No 1) [2] in which it was held that confidentiality in mediation is a sacrosanct principle which must be strictly observed save in exceptional circumstances. Though that statement is obiter, it is a very powerful statement from the highest court in Hong Kong which is binding on me.  However, the Plaintiffs are not arguing on how to preserve confidentiality.  They are arguing that because of the Defendant’s and/or Fu Siu Ming’s breach they should be punished by being cross-examined at trial on the mediation communications, otherwise this sacrosanct principle may be disregarded at will.  The principle is to preserve confidentiality.  But what the Plaintiffs are seeking is to continue and amplify the breach as a punishment and not as a sanction to preserve confidentiality.  The usual sanctions are injunction and damages.  The sanction suggested by the Plaintiffs is effectively indulging in the breach of confidentiality.  Such abuse of confidential information is novel and not supported by authority.  It should not be allowed.

Conclusion

15.  All in all, the evidence contained in these paragraphs are irrelevant to the trial issues.  They are in dispute.  Their inclusion in the witness statements would raise numerous side-issues which are unconnected with the trial issues.  The costs and time to be incurred in proving these side- issues would be out of all proportion with those required in proving the trial issues.  Cross-examination based on these side-issues could serve no useful purpose.  There is no legal basis for such misuse of confidential information.  For all these reasons, these paragraphs in three witness statements should be excluded.

16.  There was some complaint that the Master should not have dismissed paragraphs 3 and 4 of the Plaintiffs’ summons as the Plaintiffs had indicated that they would not be pursuing those applications and the Master proceeded on the understanding that the Plaintiffs were to withdraw those applications.  They argue that there is a distinction between dismissing an application and allowing the application to be withdrawn.  Be that as it may, there was no application made to withdraw those applications.  The Master could not be criticised for dismissing them as being abandoned at the hearing.

17.  For all these reasons, the appeal is dismissed. Usually, costs should follow the event.  However, the appeal has to be stood down for half a day to enable the Defendant to study the hearing bundle which she claimed she has not received.  The Plaintiffs’ costs wasted far exceeded the costs she would be entitled.  I therefore make no order as to costs.