TIAN HONGMEI v. ZHANG WEI AND OTHERS

HCAP 29/2022

[2023] HKCFI 2675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 29 OF 2022

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DECISION

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INTRODUCTION

1.  This is the plaintiff’s application for summary judgment which was made by virtue of a summons filed on 26 September 2022 (“the Summons”).

BACKGROUND

2.  Cha Mou Sing Payson (“the Deceased”) passed away on 6 November 2020 at the age of 78.

3.  The plaintiff is the surviving spouse of the Deceased.

4.  The 1^st defendant has known the Deceased since 1986 and was a director of several companies owned by the Deceased.

5.  The 2^nd defendant was the Deceased’s secretary.

6.  The 3^rd defendant was the elder sister of the Deceased.

7.  The 4^th defendant was the adopted daughter of the Deceased.

8.  In around August 2020, the Deceased was diagnosed with bile duct cancer. 

9.  His physical condition deteriorated in around late October / early November 2020.  According to the evidence of Hiap Chye Siang (“Karen”) (the Deceased’s housekeeper) which was adduced by the 3^rd defendant, in around early November 2020, the Deceased was often asleep after being administered with morphine which helped reduce his pain.

10.  On 4 November 2020, the Deceased had, in the presence of the plaintiff, Dr Wing Jung King (“Dr King”) (the Deceased’s doctor), Siu Wai Ming (“Siu”) (the Deceased’s driver), Karen and the 2^nd defendant, purportedly signed a will (“the Purported Will”), which, apart from appointing the 1^st to 3^rd defendants as executors of the Deceased’s estate, did not contain any effective clause on the distribution of the Deceased’s estate because the operative parts thereof dealing with such disposition were all left blank.

11.  The process of the Deceased’s “execution” was captured by a video recording taken by the plaintiff (“the Video”).

12.  The Purported Will was also executed by Dr King, Siu and Karen as attesting witnesses.

13.  On around 18 December 2020, the 1^st to 3^rd defendants applied for a grant of probate in respect of the Purported Will (HCAG 15821/2020) (“the Probate Application”).

14.  On around 23 February 2021, the plaintiff entered a caveat (HCCA 764/2021) in respect of the Deceased’s estate.

15.  As the 1^st to 3^rd defendants refused to withdraw the Probate Application, the plaintiff commenced this action.  The 4^th defendant was joined as a defendant herein to ensure that she would be bound by the Judgment.

16.  Paragraph 12 of the Statement of Claim reads:

“12. For completeness and the avoidance of doubt:

12.1 The Deceased also left a signed document, dated 9 July 2020 and witnessed by the 2^nd Defendant, in which he expressed his wish to leave certain cash sums to a number of specified individuals, including the 4^th Defendant.

12.2 The Plaintiff reserves the right to contend that this document is a duly executed will pursuant to section 5(2) of the Wills Ordinance (Cap 30) and/or has the effect of disentitling the 4^th Defendant from receiving any part of the Deceased’s residuary estate.

12.3 The Plaintiff commenced this action seeking the relief prayed for below at this stage for the purpose of obtaining a determination that the Purported Will is invalid and that therefore the 1^st to 3^rd Defendants have no basis to interfere or intermeddle with the administration of the Estate.  It is hoped that after the Court rules in favour of the Plaintiff, the Plaintiff and the 4^th Defendant can discuss and agree on how the Estate should be administered, and that an appropriate uncontested application for grant of representation can be made in due course.”

17.  The plaintiff claims against the defendants, inter alia, for:

(1)  Pronouncement against the validity of the Purported Will;

(2)  Dismissal of the Probate Application;

(3)  Liberty for the plaintiff or the 4^th defendant to apply for an appropriate grant of representation in due course.

18.  Both the 1^st and 2^nd defendants indicated in their respective Acknowledgements of Service that they did not intend to contest the proceedings herein.

19.  The 4^th defendant also indicated in her Affirmation filed on 11 October 2022 that she would adopt a neutral stance as far as the validity of the Purported Will is concerned, and leave has been granted for her to be excused in the substantive hearing of the Summons.

20.  Hence, the only party in opposition against this application is the 3^rd defendant.

THE 3^RD DEFENDANT’S SUMMONS

21.  On 29 August 2023, the 3^rd defendant took out a summons (“the Affidavit Summons”) for leave to file the 2^nd defendant’s 3^rd Affidavit (“Carmen’s 3^rd Aff”). 

22.  It cannot be disputed that this was a late application. 

23.  The Affidavit Summons was dismissed at the hearing with costs.  I will now set out the reasons of such dismissal.

Legal principles

24.  In respect of the legal principles on whether the Court should exercise its discretion to admit late affidavit evidence where there was an order prohibiting the filing of further evidence without leave, my attention had been drawn to the case of Re ZPMC-Red Box Energy Services Ltd [2022] 3 HKLRD 4, [2022] HKCFI 1648, in which Cheng J had adopted the principles set out by Bharwaney J in Parsad v Great Wealthy Engineering Co Ltd [2012] 3 HKLRD 705 as follows[1]:

“Whilst the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties, and which must include the right of a party to rely on admissible, relevant and probative factual evidence, the Court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the late application. These matters have to be considered and weighed in the light of and against the underlying objectives of Civil Justice Reform to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.”

25.  However, it should be borne in mind that Re ZPMC-Red Box Energy Services Ltd (supra) was a winding up case, and therefore Order 32 rule 11A(4) of the Rules of the High Court (Cap.4A, Laws of Hong Kong) (“RHC”) was inapplicable thereto.  The present case, which is an interlocutory application, is different.

26.  Order 32 rule 11A(4) of the RHC provides that:

“Where the determination of the application is adjourned for the hearing of the summons, no further evidence may be adduced unless it appears to the Court that there are exceptional circumstances making it desirable that further evidence should be adduced.”

27.  In Jose Miranda Da Costa Junior & Another v Lorenzo Yih, also known as Yu Chuan Yih & Others (HCA 156/2010, unreported, 28 April 2014), Deputy High Court Judge Le Pichon had the following to say:

“9. The October order made it abundantly clear that no further affidavit was to be filed without the leave of the court. In the post-CJR era, it is inconceivable that leave would be granted in the absence of genuine extenuating circumstances, for example, that the evidence was not available at the date of the earlier affidavit or only came into existence after the date for the filing of that affidavit. In other words, they would be exceptions that normally would fall within the rule in Ladd v Marshall.

10. Further, in exercising the discretion to grant leave, the court is bound to have regard to the objectives of the CJR set out in O 1A, r 1 and to seek to promote the attainment of such objectives.

11. For those reasons, where a direction prohibiting further evidence to be adduced without leave has been given, it has to be read with RHC O 32, r 11A(4). That provides that where the determination of the application is adjourned for the hearing of the summons, no further evidence may be adduced unless it appears to the Court that there are exceptional circumstances making it desirable that further evidence should be adduced.

12. It will be seen that the rationale of O 32, r 11A(4) is to ensure that a case is dealt with as expeditiously as is reasonably practicable and to ensure fairness between the parties (those being the objectives of the CJR stated in O 1A, r 1(b) and (d)): Fortune Assets Development Ltd v De Monsa Investments Ltd, HCA 167/2009, (unrep) 21 August 2009 at §§10-11 and the annotation in Hong Kong Civil Procedure 2014 at 32/11A/3 which states that the sort of ‘exceptional circumstances’ envisaged are likely to be along the lines of the exceptions laid down in Ladd v Marshall [1954] 1 WLR 1489.

13. ‘Special circumstances’ are not made out if a proper review of the potential issues that might arise in proceedings ought to have resulted in the information contained in the affidavit being filed within the time limits imposed: Fortune Assets at §12.  I agree with that approach which is in line with the rationale underlying O 32, r 11A (4) and furthers the CJR objectives identified above.”

28.  The ruling of DHCJ Le Pichon was upheld on appeal (see HCMP 1127/2014, unreported, 21 July 2014).  In his Decision dismissing the applicant’s application for leave to appeal, Lam VP (as Lam PJ then was) explained at [6] that:

“We also do not discern any errors in principle in the exercise of the discretion by the judge with reference to the underlying objectives in Order 1A Rule 1. It does not matter whether the case is within the scope of Order 32 Rule 11A(4). In respect of late application for admission of evidence, the court in the exercise of its case management power must pay regard to timetable already in place and the potential disruption such late application may cause to any substantive hearing. It cannot be seriously suggested that the judge was not entitled to dismiss the application in the absence of good explanation and exceptional circumstances for such late application […]”

29.  Pursuant to Ladd v Marshall [1954] 1 WLR 1489, further evidence is admissible only where such evidence:

(1)  could not have been obtained before with reasonable diligence (“Condition 1”);

(2)  would or might, if believed, have a very important influence on the result of the case, though it need not be decisive (“Condition 2”); and

(3)  is apparently credible though it need not be incontrovertible.

30.  Pausing here, it is noted that it was stated in the commentary in paragraph 32/11A/3 of the Hong Kong Civil Procedure 2023 Vol.1 that:

“Order 32, r.11A(4) only applies to proceedings commenced before a Master who had given directions for the exchange of evidence. Although the reference to ‘the Court’ in O.32, r.11A included a judge, on a proper construction, O.32, r.11A(4) applies to proceedings before a judge in Chambers only if the Master, after giving directions under O.32, r.11A(3), concluded, or acceded to an application, that the master ought to be disposed of by a judge in Chambers. In that event, the judge should not allow further evidence to be adduced unless in exceptional circumstances: See: Dutfield International Group Co Ltd v Nine Dragon Investment Ltd [2013] 4 HKLRD 283 (but cf. Waddington Ltd v Chan Chun Hoo Thomas [2018] HKCFI 580).”

31.  In my view, the above commentary has to be read with caution, because its basis was the decision made in Dutfield International Group Co Ltd v Nine Dragon Investment Ltd [2013] 4 HKLRD 283 which predated the Court of Appeal’s Decision in Jose Miranda Da Costa Junior & Another (supra). 

32.  With the guidance given by Lam VP as quoted above (which is binding on this court), I think the position should be clear that the applicant must demonstrate exceptional circumstances (i.e. satisfy the Ladd v Marshall conditions) in order to obtain leave to adduce further evidence.  It does not matter whether the initial directions for the filing of evidence were given by a Judge or by a Master.  The same principles should apply.  Indeed, the same conclusion has also been reached by Chow J (as Chow JA then was) in Waddington Ltd v Chan Chun Hoo Thomas [2018] HKCFI 580 at [31].

33.  With the above in mind, I now turn to the substantive parts of Carmen’s 3^rd Aff, namely paragraphs 4 to 8 thereof.

Paragraphs 4 – 6

34.  It was submitted on behalf of the 3^rd defendant that paragraphs 4 to 6 of Carmen’s 3^rd Aff set out the relevant factual circumstances surrounding the plaintiff’s knowledge and awareness of whether the document signed by the Deceased was a will and that such matters are material and highly relevant.  With greatest respect, I do not agree.  The issue in the present case is whether the will which was purportedly executed on 4 November 2020 is valid or not.  Whether the plaintiff knew the document which was signed was a will would not shed light on such an issue.  Condition 2 was therefore not satisfied.

35.  Furthermore, the matters which were included in Carmen’s 3^rd Aff were in relation to what happened in November 2020, which plainly were within the 2^nd defendant’s knowledge when she prepared her 1^st and 2^nd Affidavits.   Condition 1 was therefore not satisfied either.

36.  It should further be noted that the plaintiff had already pleaded in the Statement of Claim that she did not know that the Purported Will was a will at the material time[2] and that she thought the document was only required as a matter of formality for the Deceased’s companies[3].  Indeed, the 3^rd defendant had adduced evidence to contradict such assertions when she filed affidavits in opposition.  There was therefore no reason why the 3^rd defendant should be granted leave to further supplement evidence as proposed at such a late stage. 

Paragraphs 7 – 8

37.  Paragraph 7 of Carmen’s 3^rd Aff disputed the plaintiff’s case that she did not understand the contents of a “Relationship Property Agreement” when she signed it, and that she only realised what the document was in July 2021.

38.  Paragraph 8 of Carmen’s 3^rd Aff disputed the plaintiff’s evidence that she was interested in the Deceased’s money or financial affairs and that her mother had not received payments from the Deceased.

39.  It was submitted that the above matters go to the overall credibility of the plaintiff and the other deponents and the weight which the Court should attach to her evidence in the present action.

40.  In this regard, I accept the plaintiff’s submissions that those matters are irrelevant in the circumstances of the present case because the alleged execution process was captured by the Video which, if necessary, could be assessed by the Court itself.  Hence, Condition 2 was not satisfied.

41.  For the above reasons, the 3^rd defendant’s application for leave to adduce Carmen’s 3^rd Aff was dismissed.  The 3^rd defendant had also been ordered to bear the plaintiff’s costs of the Affidavit Summons, with certificate for two counsel.

THE PLAINTIFF’S CASE

42.  Mr Bernard Man SC (leading Mr Thomas Wong) submitted that the Purported Will is invalid for any of the following reasons:

(1)  The Purported Will clearly fails to satisfy the requirements under section 5(1)(a) and (b) of the Wills Ordinance (Cap.30, Laws of Hong Kong) (“the Ordinance”);

(2)  The Deceased plainly lacked testamentary capacity at the time of the purported execution of the Purported Will;

(3)  The Deceased obviously did not know or approve the Purported Will at the time of the purported execution. 

43.  It was further submitted that in the circumstances where no triable issue could be shown, the Court should grant summary judgment even in a probate action.

THE 3^RD DEFENDANT’S ARGUMENTS

44.  The 3^rd defendant was represented by Mr Ambrose Ho SC and Mr Law Man Chung SC (leading Mr Tony Chow, Solicitor Advocate).  In a gist, they argued that the summary judgment application should be dismissed with indemnity costs for the following reasons:

(1)  This probate action is improperly constituted, when the plaintiff has failed to join proper and necessary parties as defendants herein;

(2)  There is non-compliance of Order 15 rule 13A of the RHC in that the plaintiff has not notified the beneficiaries under the will in issue;

(3)  The Statement of Claim is incomplete and defective;

(4)  There are triable issues that cannot be resolved on affidavits.

DISCUSSION

45.  Despite the many arguments made by both sides, I am of the view that the present application may be disposed of on one ground alone.

46.  In Li Cheong v Lee Kwai Tai [2018] 4 HKLRD 120, [2018] HKCA 491 at [47], Yuen JA explained the special features of probate actions as follows (which was quoted by Fok PJ in Li Cheong v Lee Kwai Tai (2020) 23 HKCFAR 116 at [42] with approval):

“It is well-established that a judgment in a probate action is by nature in rem. It is thus incumbent on all those who have rival claims (say, as issue of a deceased person) to advance their claims simultaneously, so that the probate court could adjudicate on them in a judgment which would bind all rival claimants once and for all, with the legal consequence that probate of a will or letters of administration of the deceased person’s estate could be granted by the court properly […]” (emphasis added)

47.  In Choy Po Chun & Another v Au Wing Lun [2012] 2 HKLRD 148, Cheung JA also had the following to say at [16]:

“Order 76 sets out the procedure for a contentious probate action. The defendant had served a counterclaim as required by Order 76, rule 8 propounding the 2008 will. A probate action being of the nature of an action in rem and the court’s function being inquisitorial (Re Fuld (No. 2) [1965] 2 All E.R. 657) the court will, at the trial, make a positive finding as to which is the valid will, or whether the deceased died intestate, and (in the case of an interest action) who is entitled to representation: generally it will not (except in the case of a revocation action) merely dismiss the action without more. A defendant is entitled to give notice with his defence that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the attesting witnesses (Order 62, rule 4) but in other cases he must set up a positive case by way of counterclaim. For the same reason, a defendant may serve a counterclaim, and thus obtain carriage of the action, even where the plaintiff delays in serving a statement of claim. It would rarely be appropriate for a probate action to be dismissed for want of prosecution, see: paragraph 76/8/1 of the Hong Kong Civil Procedure 2012.” (emphasis added)

48.  As explained, by this probate action, the plaintiff has taken the course of merely seeking to, in Mr Man SC’s own words, “get rid of” the 1^st to 3^rd defendants, without taking one step further in asking the Court to make a grant of probate of a will or letters of administration in respect of the Deceased’s estate.  As to whether the Deceased died intestate, the plaintiff’s stance is vague, in that she only stated in paragraph 12 of the Statement of Claim that she reserved her right to contend that a document signed by the Deceased dated 9 July 2020 is a duly executed will pursuant to section 5(2) of the Wills Ordinance and/or that such a will has the effect of disentitling the 4^th defendant from receiving any part of the Deceased’s residuary estate.  On that basis, in the Prayer, she asked, inter alia, for an order that there be “liberty for the plaintiff or the 4^th defendant to apply for an appropriate grant of representation in due course”. 

49.  Hence, while the grant of summary judgment in favour of the plaintiff would bring this probate action to the end, there will be no grant of probate or letters of administration in this probate action.  In the event the plaintiff and the 4^th defendant could not come to any agreement at the end of the day (pursuant to the hope as expressed in paragraph 12.3 of the Statement of Claim), the matter would have to be resolved in another probate action.

50.  It seems to me that this very special course of action taken by the plaintiff is unprecedented (indeed, neither of the legal teams was able to locate any authority in which a similar approach had been adopted) and is against the well-established principles which were time and again referred to by the Courts in Hong Kong.  In my view, the approach adopted by the plaintiff herein is wrong.  The plaintiff is obliged to put forward the entirety of her positive case rather than simply asserting that the Purported Will is invalid (even if the plaintiff is right that there is no chance for the Purported Will to be admitted to probate), because the question of probate in relation to the Deceased’s estate has to be decided by the Court once and for all. 

51.  Therefore, I take the view that the summary judgment application must be dismissed.  The Court should not adjudicate the matter on such a piece-meal basis.  All issues should be placed before the Court. 

52.  Given my decision above, without disrespect to counsel, I consider it inappropriate for me to express any view on the validity of the Purported Will.     

53.  Mr Man SC quoted Re Lau Siu Wah (Deceased) [2005] 1 HKC 364 as an example and contended that, if there is no triable defence on the validity of the Purported Will, there is no reason why the Court should not grant summary judgment.  However, Re Lau Siu Wah (Deceased) is clearly distinguishable in that the plaintiff therein did ask for the issue of a grant of probate in that action such that the probate matter had been decided once and for all, whereas in the present case, the plaintiff is adopting a piece-meal approach.

ORDER

54.  By reasons of the aforesaid, the Summons is hereby dismissed.  I consider that it is more appropriate to make this order rather than granting the 3^rd defendant leave to defend, since the plaintiff’s claim, as it now stands, is defective in the sense that it has not pleaded all the necessary issues.

55.  Following the dismissal of the Summons, directions have to be given for the further conduct of this probate action.

56.  It is understood from the Statement of Claim that the plaintiff is minded to have discussion with the 4^th defendant on how the Deceased’s estate should be administered.  Apparently the result of such discussion would have bearing on how the present probate action should be conducted.  At the same time, I also hope that parties may realistically assess, among other things, the validity of the Purported Will and consider seriously whether further costs should be spent thereon. 

57.  While this Court has a duty to ensure that this probate action is dealt with as expeditiously as is reasonably practicable, its directions should at the same time facilitate settlement of disputes.  Having balanced the above underlying objectives, and having taken into consideration the reasonable time which should be given to the parties for negotiation purpose, I hereby direct that:

(1)  Parties shall use their best endeavours to agree on the directions to be sought for the future conduct of the present case;

(2)  If agreement can be reached, they shall lodge their agreed directions for the Court’s consideration within 3 months hereof;

(3)  If agreement cannot be reached/reached entirely, they shall lodge their respective proposed directions with reasons for disagreement within 3 months hereof;

(4)  In the meantime, the time for the 3^rd and 4^th defendants to file and serve their respective Defence be extended until further order.

58.  For the avoidance of doubt, “parties” referred to above should also include the 1^st and 2^nd defendants in the event part of the directions sought is amendment of the Writ and the Statement of Claim, such that the issues to be dealt with is not limited to the validity of the Purported Will. 

COSTS

59.  I make a costs order nisi that the plaintiff shall bear the costs of the Summons of the 3^rd and 4^th defendants (including all costs reserved, if any) to be assessed on party and party basis, with certificate for two counsel. 

60.  The 3^rd defendant argued that she should be entitled to indemnity costs.  On a preliminary basis, I take the view that there is no special feature in this application which justifies an indemnity costs order despite the unprecedented approach taken by the plaintiff.

61.  The above order nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on paper) within 14 days hereof.

62.  The 3^rd and 4^th defendants’ costs of the Summons and the plaintiff’s costs of the Affidavit Summons (see [41] above) shall be summarily assessed in lieu of taxation. 

63.  Unless any application for variation of the aforesaid costs order nisi is made within time, the receiving parties shall lodge and serve their respective statements of costs within 7 days after the expiry of the said 14-day period.  The paying parties shall lodge and serve their respective statements of objection within 7 days thereafter.  Summary assessment of the costs of the Summons will be conducted on paper (no matter whether any statement of objection is lodged by the paying parties within time) thereafter.  The costs assessed shall be paid by the paying parties within 14 days after assessment.