TING WAI MONASTERY LTD AND OTHERS v. LUNG YAN LOI AND OTHERS

HCMP 2013/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2013 OF 2016

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D E C I S I O N

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1.  On the question of expert evidence on handwriting, there are nine documents with signatures which are said to have been forged. They are helpfully identified in counsel’s notes of submissions, that is, Exhibits LRMJ–7, LRMJ–15, LRMJ–28, LRMJ–29, LRMJ–36, LRMJ–37, LRMJ–39, LRMJ–41 and LRMJ–45. The plaintiffs wish to adduce expert evidence on handwriting while the 1^st and 4^th defendants oppose it.

2.  Mr Li has argued that where there are going to be live factual witnesses, such as the alleged signer and persons who allegedly witnessed the act of signing or the act of forging, expert evidence is unnecessary.  I agree this is a factor, but there is no hard and fast general rule.  The court has to make a qualitative judgment on how useful and relevant the expert evidence is going to be in the light of the parties’ cases and factual evidence.

3.  The documents fall into different categories. LRMJ–15, 36, 39, 41 and 45 are documents bearing what purport to be the 1^st defendant’s signatures; LRMJ–7 concerns the 3^rd plaintiff’s signature; LRMJ–28 concerns the 3^rd defendant’s signature; LRMJ–29 and 37 concern the 2^nd defendant’s signature.  I will deal with them separately.

4.  The 1^st defendant has alleged that the signature of herself on LRMJ–15 was forged; see her 1^st affirmation dated 13 February 2017, at paragraph 43(4).  She has said that her signature on LRMJ–36, 39, 41 and 45 were “forged or obtained from me through a fraud perpetrated on me” or “forged” or “I may have been deceived into signing it”; see her 1^st affirmation at paragraphs 34(4), 52(1) to (2) and 61(1).

5.  In relation to LRMJ–15, 36 and 39, the plaintiffs have adduced affirmation evidence from what are said to be direct witnesses of the signatures in question.  But in relation to LRMJ–41 and 45, it is not entirely clear from the evidence whether the plaintiffs do say that they witnessed the 1^st defendant’s signatures on those two documents.

6.  In relation to LRMJ–15, the 1^st defendant’s allegation is unequivocal.  She says it was forged.  Similarly, in relation to the other four documents, there is an allegation of forgery at least in the alternative to an allegation of fraudulent procurement.  Unless the 1^st defendant abandons her allegation of forgery, there is an issue of the genuineness of the signatures on these five documents, on which I think the plaintiffs are entitled to adduce evidence including expert evidence in addition to any factual evidence they may have.  The expert evidence may have a significant impact in combination with the factual evidence on the outcome, or on the credibility of the primary factual evidence.

7.  As to LRMJ–7, the signature in question is apparently a signature of the 3^rd plaintiff.  The 1^st defendant alleges that the 2^nd plaintiff forged that signature of the 3^rd plaintiff in her presence, but both the 2^nd and 3^rd plaintiffs say that it was the 3^rd plaintiff’s signature and that the 3^rd plaintiff signed it in the 2^nd plaintiff’s presence.  Given that the 1^st defendant does not wish to adduce expert evidence, I think, in relation to this document, it would be disproportionate for the plaintiffs to call in addition expert evidence to try to prove that it was the 3^rd plaintiff’s signature.

8.  LRMJ–28 concerns the 3^rd defendant’s signature.  The 1^st defendant says the 2^nd plaintiff or her client must have forged it; see paragraph 67(5) of her affirmation.  The 2^nd plaintiff says the 3^rd defendant had also told her that he had not signed it; see her 3^rd affirmation, paragraph 84.  So, at the moment, there does not seem to be a real issue as to the genuineness of the signature.  The authorship of it seems to be unknown, but an expert cannot tell us who the author of the signature is, if it is not genuine.

9.  Turning to LRMJ–29 and 37, they are both documents bearing the 2^nd defendant’s signature.  For LRMJ–29, the 2^nd plaintiff says that the 1^st defendant had told her it was not signed by the 2^nd defendant, but by the girlfriend of Kong Pok‑man, and the signature is different from all the other known signatures of the 2^nd defendant; see her 1^st affirmation, paragraphs 87 to 89.  For LRMJ–37, the 2^nd plaintiff says the 1^st defendant forged it in her presence; see her 1^st affirmation, paragraph 64.  The 1^st defendant denies this; see her 1^st affirmation paragraph 52.  It seems to me that if the signatures do indeed look very different, then perhaps an expert cannot add very much.

10.  In any event, these documents are not in the summons, but only mentioned in the proposed directions of the plaintiffs lodged on 3 July 2017, so that, I think, to be fair, the 1^st and 4^th defendants should be given time to consider and respond to the application to adduce expert evidence on handwriting in relation to them if necessary. 

11.  The upshot, therefore, is that I grant the plaintiff’s application in relation to the five documents in the summons bearing the 1^st defendant’s signature, or what appears to be the 1^st defendant’s signature. I refuse the application in relation to LRMJ–7 and LRMJ–28, and the application in relation to LRMJ–29 and LRMJ–37 is adjourned sine die, with liberty to restore.