YIP SAU CHING v. YIP CHE SHING AND OTHERS

HCAP 31/2018

[2021] HKCFI 1315

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 31 OF 2018

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(By Original Action)

(By Counterclaim)

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D E C I S I O N

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Introduction

1.  On 25 May 2020, the 1st to 4th defendants by original action (1st to 4th plaintiffs by counterclaim) (“the Defendants”) sought leave to adduce expert evidence at the trial of this action on the issue of the mental capacity of Mr Ip Chan-kee (“the Deceased”), that “the said expert report shall be prepared by Professor Helen F K Chiu, a specialist in psychiatry, served within 42 days after the filing of the supplemental witness statements.”

2.  It should be noted at the outset that no supporting affirmation was filed together with the summons as one would perhaps have expected.  Whilst this is unusual, in the sense that unless the reasons for seeking the said expert evidence is obvious, one would normally find the need to set out the basis of the need for expert evidence so that all the parties are clear as to the exact reasons and basis for seeking such expert evidence.  Of course, I am not suggesting that in any given case, just because no supporting affirmation has been filed, the application ought by this reason alone, be refused.

3.  On 3 September 2020, the Master granted leave to adduce expert evidence on “the issue of mental capacity” of the Deceased at the time of the execution of the two Wills in question, dated respectively 20 February 2012 and 12 March 2012.  The deceased was hospitalised in or around August 2017 and sadly passed away on 1 October 2017.  The issue of capacity is at the centre of the present proceedings and it is unnecessary for present purposes to say more about the background leading to the dispute.

4.  On 16 September 2020, the plaintiffs by original action, who are also the defendants by counterclaim (“the Plaintiffs”), filed a notice of appeal to a Judge in chambers.  This is the hearing before me today.  The position of the Defendants is that the Wills are invalid by reason of capacity and other reasons.

Applicable principles

5.  The applicable principles in an application such as the present have been set out by the Court of Appeal in Shenzhen Futaihong Precision Industry Company Ltd and Others v BYD Company Ltd and Others, [2019] 2 HKC 175.  The following paragraphs of the judgment are particularly germane for the purposes of the present application:

“4. In the Final Report on Civil Justice Reform, the Working Party identified the following as conditions for admissibility of expert evidence at paragraph 596:

(a)  The subject matter of the opinion must fall within an area in which expert evidence may properly be given;

(b)  The witness must be qualified as an expert to give the evidence of the type in question;

(c)  His evidence must be relevant to the issues being litigated.

5. In light of the issues raised in this appeal, we need to elaborate on conditions (a) and (c). The Working Party cited a judgment of King CJ in R v Bonython (1984) 38 SASR 45 in which condition (a) was explained:

‘… This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court.’

6. On condition (c), the observations of Evans-Lombe J in Barings plc v Coopers & Lybrand [2001] PNLR 22 at [45] have often been cited:

‘ … Evidence meeting [condition (a)] can still be excluded by the Court if the Court takes the view that calling it will not be helpful to the Court in resolving any issue in the case justly. Such evidence will not be helpful where the issue to be decided is … one on which the Court is able to come to a fully informed decision without hearing such evidence.’

7. In Hong Kong, after the implementation of Civil Justice Reform, our courts can also take account of the probative value of an expert report in exercising case management power[1], see the discussion at [3193] of Hong Kong Civil Court Practice and the authorities cited therein.

8. Gone are the days when parties are at liberty to adduce expert evidence without any control by the court. In addition to the substantive conditions discussed above, the use of expert evidence is subject to procedural requirements contained in the rules to guard against misuse or mismanagement of expert evidence. As explained in Chok Yick Interior Design & Engineering Co Ltd v Lau Chi Lun HCA 1480/2008, 5 May 2010, parties should apply for expert directions as a step in the preparation of a case. Though Order 38, rule 36 provides for application for expert directions to be made before expert evidence can be adduced, it does not prescribe the stage at which such directions are to be applied for. In line with modern litigation ethos, generally the court expects such directions to be sought well in advance to give sufficient time to the parties to comply with the same before application is made to set down the case for trial. In the Timetabling Questionnaire to be filed after close of pleadings under Practice Direction 5.2, parties are required to inform the court if they intend to call expert evidence and provide relevant information relating to it. In the Listing Questionnaire to be filed before the case management conference or pre-trial review, a party has to confirm that expert evidence has been exchanged. In addition, if the expert directions provide for meeting of experts and filing of a joint report thereafter, they should also be complied with before the application to set down the case for trial.

9. The giving of expert directions is very much a matter of case management. In Chok Yick Interior Design & Engineering Co Ltd v Lau Chi Lun, supra, the case management role of the court in giving expert directions was explained at [7] to [9]:

‘ 7. I wish to stress that application for expert directions is not a mere formality. It is an integral part of the case management process. As a trial judge, I have seen far too many cases where the lack of proper preparation of expert evidence resulted in unnecessary costs and time spent on evidence which is of no help to the resolution of the dispute. And such wasteful exercise cost the parties a great deal of money, not only in terms of the fees paid to the experts, but also legal costs spent on paying for the lawyers’ reading, understanding of the reports, discussing the matter with the experts and then the time (and costs) of the lawyers explaining and exploring the expert evidence with the judge by way of submissions and the examination and cross-examination of the experts during trial. Very often, it is not only the party responsible for the mismanagement of expert evidence who has to pay such costs, similar costs have to be incurred (at least on an upfront basis) by his opponent.

8. Such wastage is not consistent with the underlying objectives set out in Order 1A Rule 1. Thus, the court, in the performance of its case management duty under Order 1A Rule 4, should give expert directions to avoid the mismanagement of expert evidence. And the parties and their legal representatives have a duty to assist the court in formulating the appropriate directions (Order 1A Rule 3). Further, the parties and their legal representatives have a duty to ensure that, once given, expert directions are strictly adhered to. The experts, in accordance with their overriding duty to the court, must try their best to comply with the directions.

9. When parties come to the court to seek expert directions, the court shall first consider whether expert evidence is required for the just resolution of the issues before the court. If the court is satisfied that expert evidence is required, it would then consider what directions should be given in order to further the underlying objectives in the circumstances of the case. Gone are the days when the court only directed exchange of expert reports before trial as condition for admission of expert evidence. Nowadays, whilst there should be flexibility in the light of the circumstances of each case, in order to narrow down the expert issues, the court will usually consider giving directions for expert meeting and joint report. Further, the court has the option of ordering the appointment of a single joint expert under Order 38 Rule 4A.’

10. In light of the great varieties of issues that may arise and the areas of expertise for which expert evidence may be considered by the court, the time and the manner in which an application for expert directions is to be made must vary depending on the circumstances of the case. In an ordinary run of the mill situation, like medical reports in personal injury litigation or valuation reports in compensation cases in the Lands Tribunal, there are established protocols for seeking expert directions and parties are expected to follow those protocols. In a piece of complex litigation, particularly where the area in which expert evidence is sought to be adduced is unconventional or more controversial, the party who seeks expert directions (who also bears the burden of persuading the court that expert evidence is helpful and appropriate) should consider the timing of the application and the materials to be presented to support the application more carefully. There are cases where it may be more helpful to have the evidential issues more clearly identified with the exchange of documents and witness statements before expert directions are sought. Also, in some cases it may be useful to have the intended expert report at hand to explain to the court the nature of such evidence and to demonstrate the necessity for having such evidence. These observations are applicable to some of the contested issues in the present case.

…

12. With respect, we do not regard those observations as militating against the duty of a judge in exercising the case management function when giving expert directions as discussed above. In other words, the court will not give directions for expert evidence to be adduced (carrying with it the incidence of substantial costs being incurred on its preparation and court time spent on the same) simply on the basis that the court cannot rule out a possibility of such evidence being relevant and helpful in the sense as discussed above. If the applicant for expert directions fails to persuade the court on relevance and necessity of such evidence, the application should be dismissed.

13. Ultimately, it is a case management decision of the court based on its assessment of whether expert directions should be given and if so on what terms. Like other case management decisions, the Court of Appeal will be circumspect in interfering with such decisions. We would not do so unless the decisions were not made in accordance with established principles or were otherwise plainly wrong…

18.  In the circumstances of this case, we are of the view it would have been much better if the issues on confidential information were more precisely defined, whether through particulars, interrogatories or witness statements, before an application was made for expert directions.  If it is not possible to formulate the expert issues more precisely, the party applying for expert directions should produce a draft expert report to support the application so that the court would be able to assess how relevant and necessary it is to have such evidence at the trial.”

6.  My understanding is that the Court of Appeal has comprehensively restated the applicable principles in light of the Civil Justice Reforms.  In addition, it has made it clear that whatever might have been the position before, leave will not be granted if the court is simply persuaded it could not rule out the possibility such evidence being relevant and helpful.  As recognised by the Court of Appeal, “the time and manner in which an application for expert direction is to be made must vary depending on the circumstances of the case” and is pre-eminently a matter for case management.  Limited reliance therefore can be placed on authorities for the purpose of determining whether the court should, or should not grant leave as the exercise is, by definition a very fact specific one.

Analysis

7.  Mr Herbert Leung for the Defendants succinctly and skilfully sought to highlight the following matters to justify why a direction for expert evidence had been made out.  As no affidavit evidence had been filed in support of the said summons, he primarily prayed in aid and highlighted a number of features as pleaded in the defendants’ case in particular: 

“The deceased’s mental state was observed to be deteriorating since after 2007. The deceased was observed to be forgetful, irrational, confused and acting strangely. Examples are set out in paragraph 6.1 above and 7.2 to 7.8 below.”

“The deceased cannot remember the whereabouts of his personal belongings, in particular since 2011. He frequently forgot what he said and where his things were.

7.3: The deceased also entertained erroneous suspicion that someone else stole his things, including his underwear.

7.4: The deceased often murmured to himself, he said something which was incomprehensible, delusional or obviously untrue. For example, he claimed that he saw ‘the true Ip Chan-kee’ (that is himself) and that Li Ka-shing, the well-known Hong Kong businessman, was coming to his house. This started in 2011 and the frequency of it drastically increased in 2016. The deceased withdrew HK$500,000 from the mother’s bank account for his denture and artificial teeth.

7.6: On one occasion the deceased spent about HK$300,000 on crafts and art pieces bought from a Chinese emporium.

7.7: On another occasion in or about 2014, the deceased purchased coupons for over 40 boxes of mooncakes at the same time while in fact he did not have any need to do so.”

And finally,

“6.3: Upon being told about the matters pleaded in paragraph 6.2 above, the 4th defendant asked Yip Sau-ling why she did not ask if the deceased would like to add the names of the 1st to 4th defendants into the said Will. Yip Sau-ling replied that, ‘The deceased has already forgotten about you’.”

8.  In the absence of the draft medical report, I cannot infer nor assume that the proposed medical expert evidence will be of probative value for the determination of the issues at trial.  Some of the matters highlighted above, while these may at first blush be said to be consistent with one or more medical conditions, it could not be said that these are necessarily probative of the same. Some of those matters may also be at first blush be consistent with either eccentricity, extravagance or other reasons.  Mr Leung further highlighted certain passages in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (being the 21st edition of Williams on Executors and the 9th edition of Mortimer on Probate) which surveyed some of the causes of medical incapacity (in particular see paragraphs 10-10 to paragraphs 10-24).

9.  On the basis of the materials before me, I simply cannot determine that the purpose of the medical expert evidence will be helpful or relevant or that there is enough primary evidence from which a medical expert would be able to opine one way or the other.  I should also point out that Mr Leung very fairly drew attention to Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers, 4th Edition at paragraph 17.10 which dealt with the issue of retrospective assessment, which is, and would be, the exercise to be conducted here:

“Any such retrospective assessment will have to be based upon medical notes made at the time...” (my emphasis)

“...as well as on other non-medical information which may help to suggest the nature of the person’s mental functioning at the time and whether they may have been susceptible to exertion of undue influence or pressure. When making a retrospective assessment, it is important that doctors are clear as to the relevant legal test they are applying. Clearly, the doctor will have to indicate that the assessment was retrospective and may therefore be unreliable.”

10.  I must confess that when I first read the papers, there was an immediate and obvious attraction to the point that medical expert evidence would be helpful, as is usually the case, because the core issue to be tried in these types of cases is that of mental and testamentary capacity.

11.  What is unusual in the present case is the absence of contemporaneous medical records in the sense of contemporaneous to the date of execution of the Wills, i.e February and March of 2012.  The only possible relevant records which have been identified concern the Deceased’s hospitalisation in or about 2017, which the Defendants suggest in the correspondence was the result of “mental stress and confusions”.  There are other matters relied upon, including WhatsApp messages.  I need not set them in detail or in full here, and, in fairness, Mr Leung did not seek to place heavy reliance on those peripheral matters.

12.  All in all, I am not persuaded that a case of medical expert evidence has been made out on the present evidence and matters before me.  Taken at its highest, it could be said at this juncture that I simply cannot rule out the possibility that expert medical evidence might possibly be probative or relevant.

13.  I should mention that Mr Lam in his skeleton submissions submitted that as a fall-back to his primary case, if I were minded to dismiss the appeal, I should vary the order of the Master, varying the direction so that instead of exchange of reports, there be sequential exchanges of reports.  Given my decision above and notwithstanding his able submissions to justify the same, it is unnecessary for me to deal with this matter.

14.  All in all, at present I cannot say that the expert medical evidence sought to be either relevant or necessary, and for these reasons I would allow the appeal and set aside the order of the Master. 

15.  I should point out that Mr Lam very fairly accepted that my decision would not prevent the Defendants (if so advised) from applying de novo for expert evidence once armed with a draft expert report so that the court would be able to assess how relevant and/or necessary it would be to have such evidence at the trial.

16.  I will now hear the parties as to costs.

(Discussion re costs)

17.  I will order costs of the Appeal only and not disturb the costs order below.

18.  Having perused the statement of costs for summary assessment of the Plaintiff and heard submissions by the paying party, and bearing in mind that no evidence had been filed by the Defendants, I will allow counsel fees in full and with $140,000 for profit costs, so the total will be $225,200, to be payable within 14 days.