CHEUK SHU YIN v. LAW YEUK KAN AND ANOTHER

[English Translation – 英譯本]

CACV17/2013

IN THE HIGH COURT OF THE HONG KONG

SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 17 OF 2013

(ON APPEAL FROM HIGH COURT PROBATE ACTION NO. 3 OF 2011)

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JUDGMENT

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Hon Chu JA (giving the judgment of the Court):

Background

1.  The plaintiff is the ex-wife of Law Yeuk Wai (transliteration) (“the deceased”). The 1^st defendant is the deceased’s elder sister. The 2^nd defendant is the deceased’s father.

2.  The factual background and the disputes in this case were detailed in the judgment of Deputy High Court Judge B Chu (as she then was) handed down on 9 January 2013. They are not repeated herein.

3.  To put it simply, the deceased died of illness at Nanshan Hospital in Shenzhen on 28 February 2010. When he was alive he made three wills, the last of which was made at Nanshan Hospital on 19 February 2010 (“the 3^rd will”). The 1^st and 2^nd defendants are the executors of the 3^rd will. The 2^nd defendant and his wife (the deceased’s mother) are the beneficiaries of the 3^rd will.

4.  The plaintiff challenged the validity of the 3^rd will and brought the probate action in the Court of the First Instance, asking the court to pronounce against the validity of the will. After trial, Deputy Judge B Chu found the 3^rd will to be valid and set aside the caveat filed by the plaintiff.

5.  On 29 January 2013, the plaintiff issued a notice of appeal, asking the Court of Appeal to reverse the judgment of Deputy Judge B Chu. Up till now the hearing date of the appeal has not yet been fixed due to various disputes between parties over the contents of the appeal bundles and other matters.

The plaintiff’s applications by summons

6.  By summonses issued on 15 October and 11 November 2015, the plaintiff made three applications. Prior to that, the plaintiff made the relevant requests in writing to the Registrar of Civil Appeals. On the advice of the Registrar of Civil Appeals, the plaintiff issued the summonses which this Court shall deal with now.

7.  The plaintiff ‘s three applications are:

(1)  to seek an order that the 1^st defendant discloses his movement records on 6 February 2010 to the plaintiff and the court before a date is fixed for the hearing of the appeal;

(2)  to seek an order that the management office of King Nga Court, Tai Po shall issue proof of the presence of the plaintiff at the doorway of Flat 2401, King Yan House, King Nga Court and of fact that she dropped a letter into the letter box of that flat on 10 September 2015; and

(3)  to seek an order that the plaintiff may ask the Family Court for the original of a letter dated 19 February 2010 addressed to the Family Court in the name of the deceased, and then for forensic analysis to be arranged to examine whether that letter was written by the deceased himself on that day, before it is adduced as fresh evidence in the appeal.

8.  The 1^st and 2^nd defendants oppose the plaintiff’s applications. For these applications, the parties have filed multiple affidavits.

Discussion

9.  Having considered the affidavits filed by the parties and the applications, we are of the view that pursuant to Order 59 rule 14A (1) of the Rules of the High Court, the applications may be determined without a hearing on the basis of the affidavits and written submissions by the parties only.

10.  The plaintiff’s first and second applications are seeking an order for discovery to require the disclosure of the documents as mentioned above in paragraph 7 to her and the court by the third parties who are unrelated to the proceedings (namely, the Hong Kong Immigration Department and the Management Office of King Nga Court, Tai Po). Order 24 rules 7, 7A and 8 of the Rules of the High Court provide that the party applying for an order for disclosure must prove that (1) the information required to be disclosed relates to the matters of the cause in substance; (2) the person who is required to disclose the information has it in his possession, custody or power; and (3) disclosure of the information is necessary either for disposing fairly of the cause or matter for saving costs.

11.  The plaintiff’s applications clearly do not satisfy the provision of Order 24. HCAP 3/2011 is a probate action in which the issue between the parties was whether the 3^rd will was legally valid or not.  In this appeal, the only question the court has to deal with is whether Deputy Judge B Chu was correct to find the 3^rd will to be valid. The information which the plaintiff is asking to disclose, that is, the movement records and whether or not the plaintiff has been to and served documents at the residential address at King Nga Court, Tai Po, does not appear to be related to the issue in the case and the question in this appeal.

12.  We are aware that the plaintiff has asked the court to assist her in taking evidence from the third parties in Hong Kong and Shenzhen during the appeal. We must point out that evidence should be taken prior to the trial proper at the Court of the First Instance, and all the evidence intended to be produced must be submitted at trial. An appeal is not the second trial or a retrial. An appeal focuses on reviewing whether the trial judge was correct in the finding of facts and the application of legal principles, rather than giving the losing party the second chance to collect evidence, prepare the case, prove the case or make good the deficiencies at trial all over again. In the present case, the case has proceeded into the stage of appeal, the Court of Appeal will not grant any applications for the purpose of collecting evidence or proving the case further or all over again. The court should even not allow such activities of collecting evidence further or all over again to delay the progress of the appeal.

13.  As regards the third application, it is again an application to collect and adduce fresh evidence on appeal. The legal principle we have mentioned above is also applicable. Further, if a litigant intends to adduce fresh evidence on appeal, he must make an application by summons to the Court of Appeal, and show that the application has fully complied with the legal principle for adducing fresh evidence. Pursuant to the principle established in Ladd v Marshall [1954] 1 WLR 1489, the party asking to adduce fresh evidence must show that: (1) the intended fresh evidence could not have been obtained with reasonable diligence for use at the hearing; (2) the intended fresh evidence would probably have an important influence on the result of the case; and (3) the intended fresh evidence must be apparently credible.

14.  The third application involves a letter dated 19 February 2010 to the Family Court in the name of the deceased, in which the court was just informed that the deceased who was ill then could not appear in the hearing. The letter was produced at trial, and was confirmed by the witness who gave evidence in court. The plaintiff did not challenge the authenticity of the letter at that time, nor did she oppose the admission of the letter as evidence. More importantly, whether or not this letter to the court was written by the deceased himself is not at all related to the only question in the appeal, that is, whether Deputy Judge B Chu was correct to rule that the 3^rd will was valid.

15.  Given the aforesaid reasons, we cannot possibly grant the third application.

Order of this Court

16.  We refuse all the plaintiff’s applications and dismiss the summonses dated 15 October and 11 November 2015.

17.  Following the general principle on costs, the plaintiff should pay costs to the defendants, since her applications have failed. We make a costs order nisi that the plaintiff do pay the costs of the two summonses to the 1^st and 2^nd defendants in the sum of $2,000; either party who asks for amendment of the sum must file the grounds with the court and serve on the other party within 14 days from the date of this judgment; and the other party who intends to reply must file the reply with the court and serve on the applying party within 14 days thereafter. The court would then make a determination in writing. If neither party makes an application within the prescribed time period, the costs order nisi shall become absolute after 14 days from the date of this judgment.

Case Management

18.  As regards the progress of this appeal and case management, we consider it necessary to give the following explanation. This appeal commenced as early as 29 January 2013. There has been a lapse of more than three years since then. However, preparation of the appeal bundles has not been completed, and the hearing date for the appeal has yet to be fixed. Such a situation is very undesirable. The delay is mainly due to various disputes, which have not been settled, over matters of documents to be included in the appeal bundles, the pagination, the time and form of serving the documents, etc.

19.  We hereby remind the plaintiff that only documents and evidence directly related to the question on appeal, which must have been produced at the trial, can be included in the appeal bundle.

20.  This appeal has been proceeding slowly with many unnecessary applications. It has deviated from the requirements of Order 1A of the Rules of the High Court, that is, parties must work actively with the court to achieve the underlying objectives, which include ensuring that a case is dealt with as expeditiously as is reasonably practicable.

21.  We are of the view that when managing appeals, in particular those involving unrepresented litigants, the Master should set a strict but reasonably fair timetable for the preparation of appeal bundles and other preparation work and enforce it substantively. At the same time, the overall progress of the appeal should be reviewed from time to time. The litigants should not be left free to lead, causing complications and stagnation to the case. In future, if and when an appeal has dragged on for long, the Registrar of Civil Appeals should consider taking the initiative to place the case before a judge of the Court of Appeal for decision as to whether, due to lack of co-operation of one of the parties, appropriate orders, including dismissing the appeal, should be made.

22.  As regards the question of the validity of the 3^rd will of the deceased, besides the commencement of the action in Hong Kong, the plaintiff also has been running around in Guangdong Province in respect of the matter. On the other hand, the 2^nd defendant is aged 87. Hence, this appeal should moreover be dealt with expeditiously and effectively to bring an end to the disputes between the parties as soon as possible.

23.  With this in mind, we urge the parties to work with the Registrar of Civil Appeals actively and should not to dispute over matters unrelated to the question in the appeal anymore. The plaintiff must comply with the directions of the Registrar of Civil Appeals to get the appeal bundles and the relevant matters ready before 31 August 2016 in order for a hearing date to be fixed for the appeal. The Registrar of Civil Appeals may at his discretion extend the said time limit, but extension should only be granted where there are sufficiently good reasons.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.