CHOW LILY v. CHOW WAI WAI VIOLET AND ANOTHER

HCAP 22/2019

[2024] HKCFI 3027

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 22 OF 2019

_________________

_________________

________________

DECISION

________________

INTRODUCTION

1.  This is the plaintiff’s application to further amend her Re-Re-Amended Statement of Claim which was made by virtue of a summons filed on 10 May 2024 (“the Summons”). 

BACKGROUND

2.  The background of the present case has been summarised by Deputy High Court Judge Leung (as he then was) in [1] – [21] of his Decision dated 30 July 2020 ([2020] HKCFI 1792).  I do not propose to repeat the same here, save to highlight the followings:

(1)  The Deceased had executed the following (purported) wills during his lifetime:

(i)   A will dated 26 February 1987;

(ii)  A will dated 2 June 1989;

(iii) A will dated 27 April 2009;

(iv) A will dated 29 October 2015 (“the 2015 Will”).

(2)  By the Re-Re-Amended Statement of Claim, the plaintiff sought, inter alia, a declaration that the 2015 Will is invalid as it was executed by the Deceased without knowledge and approval of its contents and/or without the requisite testamentary capacity, and/or executed without the requisite animus testandi.

3.  The plaintiff now seeks to add paragraphs 61A to 61Z and Prayer (1) (“the Proposed Amendments”) to her Re-Re-Amended Statement of Claim so as to introduce an additional ground of undue influence in her attempt to set aside the 2015 Will.

LEGAL PRINCIPLES

4.  The legal principles are trite.  They have been summarised by Ng J in Hsu Ming Chi v Lam Shu Chit & Others(HCCL 8/2013, unreported, 22 October 2014) as follows which I gratefully adopt:

“13. It is a guiding principle of cardinal importance on the question of amendment that generally speaking, all such amendments ought to be made ‘for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings’: Re Playmates Investments Ltd [1996] 4 HKC 577 at 582E-H (per Le Pichon J as she then was); Natamon Protpakorn v Citibank NA [2009] 1 HKLRD 455 at para. 25 (per Cheung JA); Hong Kong Civil Procedure 2014 Vol. 1 para. 20/8/6.

14. Leave is readily granted to amend before trial unless it can be shown that the new claim based on the proposed amendment is bound to fail. While the court is entitled to have regard to the merits of the case, it should only do so when the merits are readily apparent, and are so apparent as not to require prolonged investigation: Natamon Protpakorn v Citibank NA supra at para. 25 (per Cheung JA).

15. If the proposed amendments are bound to fail, no leave to amend should be granted. In this regard, the court will take the applicant’s proposed pleaded case to the highest: Bank of China v Leigh Hardwick unrep., HCA 1110 of 2006, 28 August 2013, per Anthony Chan J at para. 2.

16. Absent any real prejudice, an application for amendment, albeit late, must be decided upon the general principle that a court of law seeks to adjudicate on the real issues and disputes between the parties and, if possible, technical and procedural rules should not stand in the way of allowing the parties to raise their real claims or defences before the court for adjudication: VSC Building Products Co Ltd v Kono Insurance Ltd., unrep. HCA 947/2005, 9 September 2009, per A Cheung J (as he then was) at [22].

17. Where prejudice is claimed, the burden is on the party opposing the amendment to show prejudice. There is no injustice to the opposing party if he can be compensated by appropriate orders as to costs: Re Playmates Investments Ltd supra at 582H, 584C (Le Pichon J as she then was).

18. Lastly, in giving effect to the underlying objectives of the Rules of the High Court, including those concerning amendments, the court shall always recognize that the primary aim in exercising the powers of the court is to “secure the just resolution of disputes in accordance with the substantive rights of the parties”: RHC O 1A r 2(2).”

THE DEFENDANTS’ OBJECTIONS

5.  It has been argued on behalf of the defendants that the plaintiff should not be allowed to make the Proposed Amendments for the following reasons:

(1)  There is inexcusable delay in the making of this amendment application;

(2)  It would be unfair to the defendants if the Proposed Amendments are allowed because those amendments would cause serious prejudice to them;

(3)  The plaintiff’s new case of undue influence is bound to fail.

DISCUSSION

Inexcusable delay

6.  To understand the defendants’ arguments in this regard, it is necessary to refer to the following chronology of the relevant events:

(1)  The plaintiff issued the generally endorsed Writ herein on 10 May 2019;

(2)  The plaintiff filed the original Statement of Claim on 9 July 2019;

(3)  The plaintiff amended the Statement of Claim on 15 July 2019;

(4)  In the Decision of DHCJ Simon Leung (as he then was) dated 30 July 2020 (supra) (on application to appoint administrator pendente lite), his Lordship specifically mentioned that there was no allegation in the present action that the Deceased had been subject to duress or undue influence;

(5)  The plaintiff further amended her Statement of Claim on 20 November 2020;

(6)  The plaintiff amended her Statement of Claim for the third time on 29 June 2021;

(7)  Parties exchanged their witness statements in July 2022;

(8)  The plaintiff applied for leave to file, inter alia, a supplemental witness statement in May 2023;

(9)  A trial Judge had been assigned pursuant to Practice Direction 5.7 on 25 September 2023;

(10)  Medical expert reports had been filed and exchanged and a joint expert report had also been filed in November 2023;

(11)  The Initial CMC had been heard on 1 February 2024;

(12)  This Court proceeded to fix the trial dates on 8 March 2024. However, due to (a) the proposed length of trial – being 27 days with the last 2 days reserved for final submissions, and (b) the necessity to accommodate the diaries of this Court as well as leading counsel for both sides, the trial has been fixed to commence in late May 2026.

7.  With the above background, Ms Wu and Ms Law for the defendants submitted that the plaintiff’s delay in the making of this application is inexcusable (indeed, the plaintiff has not filed any Affidavit to explain the delay), because she has had plenty of chances to raise the issue of undue influence in the past 5 years. 

8.  The defendants have also referred this Court to a number of authorities which set out well known principles that:

(1)  A party must raise all the issues it wishes to raise to be dealt with at the trial by way of pleadings and the other party is entitled to know, from a clear pleading, what is the entire case that he has to meet: Sinoearn International Ltd v Hyundai-CCECC Joint Venture (2013) 16 HKCFAR 632 at [30];

(2)  It would be rare for the Court to grant late indulgence even on terms as to costs without a satisfactory explanation being given to justify the delay and the grant of such indulgence.

9.  I am of the view that even though the present application has been made admittedly late without any reason, this should not be a factor which the Court should give too much weight because:

(1)  Even though the present application for leave to amend has indeed been made quite late (5 years since the commencement of this action), the reality is that the commencement of the trial is still more than 18 months away, and there is little doubt that parties, despite such lateness, should still have enough time to complete all procedural steps for the preparation of the trial;

(2)  In the particular circumstances of the present case, the Court should give more weight to the general principle that, absent any real prejudice, the Court should seek to adjudicate on the real issues and disputes between the parties and, if possible, technical and procedural rules should not stand in the way of allowing the parties to raise their real claims.  It should be borne in mind that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties (Order 1A rule 2(2) of the Rules of the High Court (Cap.4A, Laws of Hong Kong) (“the RHC”));

(3)  The authorities cited by the defendants do not assist them because:

(a)  Sinoearn International Ltd (supra) only demonstrates that all issues must be pleaded.  As far as the issue of “undue influence” is concerned, while it has never been pleaded, the purpose of this application is exactly to have the same included as part of the plaintiff’s pleaded case;

(b)  All the authorities cited by the defendants on refusal of the grant of leave to amend on the ground of lateness concern applications made shortly before trial.  The application before this Court does not fall within the same category of cases.

10.  I should also specifically mention that, even though there is no justifiable reason for the delay, this is just one of the matters which the Court should take into account, and the lack of reason herein is in my view not fatal.

11.  The defendants’ counsel have reminded this Court that it should be slow to allow a party taking advantage of the fact that the trial is still more than 18 months away.  However, in my view, the Court must still look at the reality of the matter.  The length of time before the commencement of the trial must be something which the Court should take into consideration.

12.  The defendants also seem to be suggesting that the plaintiff has been applying delaying and scattergun tactics.  It suffices for me to say that this (even if it were true) should no longer be a concern because:

(1)  The trial date has been fixed and there is now a milestone date which normally cannot be moved;

(2)  Upon the confirmation given by both sides at the call-over hearing of the Summons that no further amendment to the pleadings shall be required (except consequential amendments if the present application is allowed), this Court has ordered that no further application for amendment of pleadings may be made by the parties herein. 

Serious prejudice to the defendants

13.  It was submitted on behalf of the defendants that if the plaintiff is allowed to introduce a new case of undue influence, the defendants would be seriously prejudiced in having to incur substantial time and costs for the purpose of preparing additional evidence to counter this new case, for it has been stated by the learned author of Enonchong on Duress, Undue Influence and Unconscionable Dealing (4^th Ed) at paragraph 13-016 that:

“If the party opposing the will alleges facts suggesting the possibility of undue influence as suspicious circumstances, the party propounding the will must produce evidence to rule out the possibility of undue influence […]”

14.  In my view, even if the claim of undue influence has been introduced earlier without delay, the defendants would still have to adduce evidence to meet this new case.  The only difference is that the defendants have to incur costs and time on this matter later rather than sooner.

15.  In such circumstances, the only possible argument which is available to the defendants is that their attention has to be distracted to deal with this matter at this stage.  However, in the circumstances where the trial date is still more than 18 months away, this argument does not have much force.

16.  The defendants’ counsel have also emphasised that it is difficult for the plaintiff to establish this new case of undue influence.  For reasons which I will further explain in the next section of this Decision, I do not think the Court should decide on this matter at this stage. 

17.  In my view, the strongest argument made by the defendants is that, with the new evidence to be adduced, there is a risk that the trial cannot finish within the scheduled time.  It may be recalled that 25 days (from 26 May 2026 to 30 June 2026) have been allocated for the opening submissions and the witnesses to be examined, and then another 2 days (8 – 9 September 2026) have been set aside for closing submissions.  However, the problem is that the leading counsel who has been engaged by the defendants is not free immediately before 26 May 2026.  Neither is he available in the entirety of July 2026.  That means if the evidence cannot be concluded by 30 June 2026, the possibility is that the dates of 8 – 9 September 2026 cannot be used for closing submissions and that in turn means that further dates would have to be fixed for the part-heard trial.  As both sides have engaged leading counsel, it will be difficult to find another two days which may on one hand accommodate their diaries (as well as the court’s diary), and on the other hand are relatively close to 8 – 9 September 2026.   In short, if the case cannot finish within the scheduled time, the completion of the trial is very likely to be seriously delayed.

18.  In this regard, Mr Edward Chan SC for the plaintiff argued that in fact all but one of the factual matters relied on by the plaintiff in support of her case of undue influence have been covered by the pleadings of either of or even both parties, as well as witness statements of the defendants’ witnesses.  The only new factual matter which is now sought to be raised is in relation to a family meeting held in 2015 at Ningbo Residents Association in Central (“the Family Meeting”), which was attended by the Deceased, Lina Chow, Lisa Chow, the plaintiff and the defendants.  He therefore submitted that there should not be much further evidence which is required to be adduced.

19.  On the other hand, the defendants’ counsel submitted that the new evidence is not limited to the Family Meeting and there will be much further evidence to be adduced so as to explain the full background and context of each and every factual event relied on by the plaintiff with a view to dispel any insinuation that there were “suspicious circumstances” capable of supporting an inference that the defendants had exerted undue influence on the Deceased to coerce him into executing the 2015 Will.  There may also well be additional witnesses to be called.

20.  While I do not agree that the new evidence to be adduced should necessarily be limited to covering the Family Meeting, I have doubt whether the defendants would be required to adduce a great deal of evidence consequential to the introduction of the new claim of undue influence, since many of the events relied on by the plaintiff have already been dealt with by the existing witness statements and affirmations. 

21.  In any event, Mr Chan accepted that:

(1)  In the event the Court has to cut down the time for cross-examination so as to fit in the total of 25 days (during which the witnesses are examined), the Court should cut down the time available to the plaintiff’s counsel first because such reduction of time is necessitated by the plaintiff’s late introduction of a new issue;

(2)  He as the plaintiff’s trial counsel shall be bound by the Court’s decision on the maximum amount of time of cross-examination for the purpose of making sure that the trial shall finish within time.

22.  With these clear understandings, I am of the view that the defendants’ concern is gone.

Merits of the new case

23.  In their skeleton submissions, the defendants’ counsel had referred to a number of features of the plaintiff’s application, to the effect that if the new claim of undue influence is genuine, then it would have been made long time ago rather than 5 years since the commencement of this action.  It was then said that, as a result, the Proposed Amendments would not facilitate the determination of the “real” question in controversy between the parties, nor to be necessary either for disposing fairly of the cause or matter or for saving costs. 

24.  However, the defendants’ counsel also stated therein that it is not necessary for the Court to come to a conclusive view one way or the other on whether the plaintiff’s new case of undue influence is bound to fail in order to dispose of the present application.

25.  It was therefore not entirely clear to this Court upon reading the defendants’ skeleton submissions as to whether the defendants were relying on the proposition that the Proposed Amendments should be disallowed because the claim of undue influence is bound to fail. 

26.  The defendants’ position has since then been clarified by the defendants’ counsel at the substantive hearing – I have been told that they are indeed relying on the aforesaid proposition.

27.  On this matter, it should be noted (and accepted by the defendants’ counsel) that undue influence in the probate context is rarely capable of direct proof, and must usually be inferred from the surrounding circumstances. 

28.  I have considered the Proposed Amendments and take the view that it cannot be said that the plaintiff’s case on undue influence is not sustainable as a matter of law or liable to be struck out.  While I appreciate that the defendants’ counsel have put forward a number of matters and seek to demonstrate that the plaintiff’s undue influence is an after-thought, I am of the view that these matters should be considered at the trial rather than at this stage, because in effect the defendants are asking this Court to make a finding of fact that there was no undue inference now. That is not something that the Court should do.

29.  I therefore refuse to disallow the Proposed Amendments on this ground. 

Conclusion

30.  Having balanced all relevant factors, I am of the view that the Court should exercise its discretion in allowing the Proposed Amendments. 

ORDER

31.  I therefore grant leave to the plaintiff to make amendments to her Re-Re-Amended Statement of Claim filed on 29 June 2021 as per the draft annexed to the Summons.

32.  I also give leave to the plaintiff to file and serve her Re-Re-Re-Amended Statement of Claim within 7 days hereof.

CONSEQUENTIAL DIRECTIONS

33.  I also give the following consequential directions on a nisi basis:

(1)  Leave be granted to the defendants to make consequential amendments to their Re-Re-Amended Defence and Counterclaim filed on 27 July 2021 within 28 days hereof;

(2)  Leave be granted to the plaintiff to make consequential amendments to her Re-Amended Reply and Defence to Counterclaim filed on 23 August 2021 within 28 days thereafter;

(3)  Parties shall exchange their respective witness statements covering matters relating to the amendments only within 56 days thereafter;

(4)  A 2^nd Case Management Conference shall be fixed for 23 May 2025 at 10am (with 1 hour reserved).

(5)  Parties shall seek counsel’s advice on the overall conduct of this action and do take out all interlocutory application(s) at least 2 weeks before the 2^nd Case Management Conference, if any.

34.  The above nisi directions 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.

COSTS

35.  In matters relating to costs, it is trite that the Court has a wide and general discretion.  How the discretion ought to be exercised in any given case must depend on the facts and circumstances of the case: China Medical Technologies, Inc & Others v Wu Xiaodong [2024] HKCA 310, at [8].

36.  Order 62 rule 3(2A) of the RHC specifically empowers the court to order the costs of and incidental to any interlocutory proceedings to follow the event or to make such other order as it sees fit.

37.  In other words, as far as interlocutory applications are concerned, ordering costs to follow the event is just an option for the Court.  This applies to amendment applications as well, even though it has been said that, where an application for leave to amend has been resisted but is allowed, the usual order is for the costs of and occasioned by the amendment to be awarded to the other side but the costs of the hearing before the court be awarded to the party who is ultimately successful in obtaining leave.  For example, in the circumstances where the Court considers it not unreasonable for the application to be resisted, the Court may depart from the said usual order: Wong Wai Lung & Ho Lai Heung v Bondfield Development Limited & Another (CACV 214/2006, unreported, 31August 2006), at [15].

38.  In the present case, the amendment application has been admittedly made late, and the plaintiff has not put forward any reason by way of Affidavit to explain her delay, particularly when the lack of plea of undue influence has been specifically mentioned by DHCJ Leung in his Decision dated 30 July 2020 (yet the application was not made until May 2024).

39.  I have not lost sight of the plaintiff’s citation of a number of matters mentioned in the various witness statements and affirmations in the Proposed Amendments.  It may therefore be said that the plaintiff has actually got the idea of running the new case of undue influence after seeing the defendants’ witness statements.  However, it is noted that the witness statements concerned had been exchanged back in July 2022.  Hence, the taking out of the amendment application in May 2024 is by any standard very late.

40.  It is thus reasonable for the defendants to oppose this application.

41.  Furthermore, the Proposed Amendments are on a distinct issue – undue influence.  I hold the tentative view that, in the circumstances of the present case, it would not be fair if the defendants are ordered to bear the plaintiff’s costs of the hearing forthwith.  The fairer order would be for the plaintiff’s entitlement of her costs of the substantive hearing to be linked with the ultimate success of this distinct issue.  Since the defendants have failed to persuade the Court in dismissing the Summons, I do not think they should be able to get their costs of the hearing no matter what happens at the trial.

42.  With the above in mind, I make the following costs order nisi:

(1)  The plaintiff’s costs of the substantive hearing on 9 October 2024 be in the cause of the “undue influence” issue (that means the plaintiff can only recover her costs from the defendants if she succeeds in her new claim of undue influence), with certificate for 2 counsel;

(2)  Costs of and occasioned by the amendments (including the costs of the call-over hearing) be to the defendants in any event.

43.  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.

44.  For the avoidance of doubt, I should make it clear while I consider tentatively that the plaintiff’s entitlement of the cost of the substantive hearing for the Summons should be hinged upon her success of the issue of undue influence at the trial, this costs order should not be interpreted as fettering the trial Judge’s decision on the costs order to be made after trial.