NG HONG PONG v. LI SHIU TO AND OTHERS

HCA 2135/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2135 OF 2011

____________________

____________________

____________________

DECISION

____________________

1.  This is appeal against the decision of Master Au‑Yeung dated 30 June 2016. He made orders relating to potential expert evidence in the form of a report from a handwriting expert instructed on behalf of the plaintiff.

2.  The action itself is concerned with the title to some property, the plaintiff relying upon a claim of adverse possession against the registered land holder who himself had obtained title to the land by virtue of entering into possession of the land in question when the 1^st defendant, the original registered title‑holder, defaulted in respect of a loan registered against the land.

3.  The potential issue at this stage is whether the plaintiff’s father, now unhappily deceased (he died in May 2005) did in fact sign tenancy agreements with the 3^rd defendant in October 2002 (for one year) and in June 2003 (also for one year).  There is, in passing but possibly worthy of note, an oddity in the fact that the second one‑year tenancy is dated about four months before the expiration of the first one‑year tenancy.

4.  The handwriting expert made a number of findings or conclusions couched in, no doubt to a graphologist clear language, having made comparisons between the deceased’s handwriting on documents agreed to have been signed by him, and the questioned documents.

5.  The sentences which gave rise to the Master’s concern are:

(i)  “Based upon the instructions provided by Fancis Kong and Co, Solicitors, in 2002 Ng Kam Yau [the plaintiff’s father] was suffering from failing health, as such, the evidential value of the six signatures, believed to have been signed by [him] … would have further diminished because these six signatures were probably written years before 2002 when [he] was in good health.”  [my underlining]

(ii)  “One could not rule out the possibility that the signatory was having difficulties in gripping a writing instrument as well as having difficulties in the muscular control whilst executing the two signatures …. It would be seen that old age could be one of the contributing factors ….”  [my underlining]

The next sentence which is repeated many times as the heart of his conclusion is:

(iii)  “Such idiosyncrasies, when considered in combination, could not be satisfactorily explained as being due to the presence of accidental features because the writer [the deceased] was suffering from failing health in 2002, and he would probably be unable to exhibit fine control of the writing instrument … due to perhaps diminishing muscular control of the fingers and arm.  Fully co‑ordinated and flexible muscular control of the fingers and arm would probably be essential ….”  [my underlining]

It is inappropriate for him to base any opinion, in whole or in part, on what he was told by the solicitors instructing him.  It is not admissible.  There is no concrete material stated by him which justified his departure from a professional, independent expert approach in considering some general unauthoritative statement.

6.  Some reliance, post facto it seems, has been placed upon the most cursory of hospital records, all dated May 2012. They cover hospital attendances and treatment from April 1996 when the deceased was about 75.  He had a history of Tuberculosis but there was a gap in his treatment from October 1999 until September 2001 and then a further gap until December 2003, over two years in duration.  Then there was a short gap until September 2004.  After that he was in serious trouble and he died on 28 May 2005 when he was about 84 years of age.

7.  No attempt seems to have been made to obtain any clinical reports on the deceased’s condition when he attended hospital in 2001 which might have provided some medical assessment of his movement, motor control, if any, nor has there been any effort to ascertain if he signedany documents relating to his medical attendances over the relevant period, i.e. 2002 to 2003.  These might have provided something relevant.

8.  None of that limited material entitles the expert to incorporate it as part or parcel of the assumptions he had made.  His report is tainted.  It is not rectifiable.  There is no point in obtaining a further report from him.

9.  The only course is to obtain a joint report, properly prepared, setting out the areas and conclusions upon which the two experts agree, and those upon which they do not agree, setting out their reasons.  There is to beno reference to or consideration of any of the deceased’s health records.  That is outside the remit of these experts, and in any event, such records as they are do not entitle them to take account of them.  What the plaintiff’s graphologist has done is to adopt an inexpert approach.

10.  Ideally there should have been a report by a single expert jointly instructed.  Had that been done this problem would not have arisen.  Only the extra cost involved has deterred me from that course.

11.  I indicated to both Counsel that I took the view that the Master was correct in his approach and decision and that I was minded to order that the reports of both experts, and their joint report should be excluded as evidence and that a new joint report should be obtained from the experts adopting the correct protocol and ignoring the limited medical records.

12.  Both Counsel helpfully accepted this approach.  But inevitably they both had somewhat different stances on the matter of costs.  After hearing from them I decided that there should be no order for costs in respectof the initial respective reports of the two graphologists.  The costs of the joint report should be costs in the cause.

13.  As to the costs of the hearing, before the Master, 50% should be the defendants’ in any event, the other 50% being costs in the cause.  The plaintiff is to bear the costs of the consent summons in any event.  There will be no order as to the costs of the appeal which is dismissed.  The costs of the future joint report will of course be costs in the cause.