LAU KIN WING KEN AND ANOTHER v. DENG YUJIAO AND ANOTHER

HCAP 21/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 21 OF 2013

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D E C I S I O N

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The application

1.  This is the Plaintiffs’ (“Ps”) summons under O.26, r. 3(2) RHC asking the Court to order withdrawal of the 1^st Interrogatories attached to the summons on the following grounds:

(a)   irrelevant/unrelated to any matter in question in the cause or matter;

(b)   solely relating to the credit of Ps;

(c)   asking for evidence from Ps; and

(d)   not necessary either for disposing fairly of the cause or matter or for saving costs.[1]

Order 26, rule 3(2)

2.  O.26, r.3(2) provides:

“(2) A party on whom interrogatories without order are served may, within 14 days of the service of the interrogatories, apply to the Court for the interrogatories to be varied or withdrawn and, on any such application, the Court may make such order as it thinks fit (including an order that the party who served the interrogatories shall not serve further interrogatories without order).”

3.  This application is contested and the parties are legally represented.[2]

4.  There are 12 questions with many other related questions under the 1^st Interrogatories.  I shall not set them out here.  I shall deal with them below.

Factual background

5.  Relevant to this application, the facts of the case are that Ps in October 2013, by way of Writ of Summons sought to challenge the validity of a will made by the late Mr. Lau Heung (“the Deceased”) on 8 November 2011 (“the 2011 Will”) under which the 1^st and 2^nd defendants (“Ds”) were appointed the executors and the trustees and the estate of the Deceased was inherited by 12 beneficiaries, including Ds.  The estate included two shops and the total worth of the estate is about HK$80 million.  Ps are the children born by Madam Lai Lai Siu (黎麗笑) (“Madam Lai”), allegedly the wife or tsip (妾) of the Deceased.  The grounds of challenge of the 2011 Will are that the Deceased had suffered from dementia about one year before 2011 when the will was made.  Ps therefore say that the 2011 Will had been executed by the Deceased without the requisite testamentary capacity and/or knowledge or approval of its contents.[3]  Ps ask the court to make a declaration that the 2011 Will was, for those reasons, invalid and to revoke the probate granted to Ds in March 2013.

6.  Madam Lai had instituted legal proceedings against the estate seeking reliefs for reasonable financial provisions under the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) in FCMP 221/2013.  The proceedings had been stayed by the court pending the result of this action.

7.  Ps submit that they seek to set aside the 2011 Will so that the Deceased died intestate and the estate would be equally distributed to all the children, including Ps.

8.  Ds dispute Ps’ allegations and say that on the date of execution of the 2011 Will, the Deceased was attended by Dr. Hsu Yau Que, who was of the view that the Deceased was fully conscious, mentally alert and sound and able to make decisions.  The Deceased had the testamentary capacity to make the 2011 Will and had full knowledge and approval of the contents therein. [4]

The relevant legal principles

9.  The legal principles in relation to O.26, r.3 are not in dispute. They are summarized by Ma J. (as he then was) in Kao Lee & Yip (a firm) v Donald Koo Hoi-yan & Ors, (unreported, HCA 8847/1993, 23 April 2002) at §7:

‘ (1) The general principle is that interrogatories are admissible where they go to support the applicant’s case or destroy the opponent’s : see Hong Kong Civil Procedure 2002 at paragraph 26/4/7. The width of this general principle is similar to the Peruvian Guano principles governing discovery of documents.

  (2) However, this only goes to the question of admissibility.  Whether a court will in its discretion allow interrogatories is entirely a different matter.  Too often in the past, there has been a tendency to order interrogatories once admissibility is demonstrated.  This is wrong.

  (3) In the exercise of its discretion, the court must bear in mind that interrogatories will be ordered only where they are necessary either for disposing fairly of the cause or matter, or for saving costs : cf RHC, Order 26, rule 1(1); Hong Kong Civil Procedure 2002 at paragraph 26/4/11.  This is the key consideration going to the exercise of discretion.

  (4) The particular factors that a court will take into account in deciding whether or not to exercise its discretion are well known : see Lee Nui Foon v. Ocean Park Corporation (No.2) [1995] 2 HKC 395; Hong Kong Civil Procedure 2002 at paragraphs 26/4/5 to 26/4/34.  It is not necessary for me to repeat these principles at length.

  (5) I would, however, draw special attention to the case of Det Danske Hedeselskabet v. KDM International plc [1994] 2 Lloyds 534.  There, Colman J referred to various considerations (or “yardsticks” as he termed them) for the court to bear in mind when considering the question of interrogatories : see page 537 (col.1).  I set out one of these considerations in full :

“Fifthly, requests for information ascertainable by cross examination at the trial are inappropriate unless the party questioning can establish that it is essential for the proper preparation of his case that such information is made available to him before trial, in the sense that if the matter is left until cross examination at the trial that party will, or probably will be irremediably prejudiced in his conduct of the trial or the trial may be unduly interrupted or otherwise disorangised by the late emergence of the information.”

 (6) The administering of interrogatories is not for the purpose of enabling a party to indulge in some sort of deposition taking exercise or to enable him to have a “dry run” in cross examination against the other side prior to trial.  As I have already said, the key consideration is the factor of necessity referred to the RHC, Order 26, rule 1(1).’

10.  Lee Nui Foon case has set down the following general legal principles on how to exercise the discretion, the ultimate decision must be the court’s:

(a) The interrogatories must be relevant to the issues of dispute and must be necessary for a fair trial or saving costs;

(b) They must not be fishing;

(c) They must not be oppressive;

(d) They must not be prolix or unnecessary;

(e) They must not be imprecise;

(f) They must not be evidence that the other side intends to adduce;

(g) They must not be for opinion; and

(h) They must not be discovery of documents.

Discussion

11.  Bearing in mind the above legal principles, I shall now deal with the questions in the 1^st Interrogatories.

12.  It is not in dispute that the core issue in dispute between the parties in these proceedings is whether the Deceased possessed the requisite mental capacity to execute the 2011 Will.  This is a matter of fact to be found by the trial judge after considering all the relevant evidence at the trial.

13.  This Court has not lost sight of the fact that these are probate proceedings where the 2011 Will is being challenged.  The Court of Final Appeal in Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387, Lord Scott of Foscote, NPJ said at paragraph 643: “It is well-established that probate proceedings where probate of a will in solemn form is sought are not straightforward adversarial proceedings between the parties to the litigation. The function of the court has an inquisitorial element to it.”  The scope of the evidence will be appropriately adjusted to fulfil this function.

14.  Having considered the questions in the 1^st Interrogatories, I have come to my view that they are either irrelevant to the issues in dispute for this action or they are, to use the word of the court in Koo Lee &Yip (a firm) case “ a dry run in cross examination prior to trial”.  I therefore order Ds to withdraw them or they should be dismissed.  What follow are my reasons.

15.  Questions 1 to 6 are for P2.

16.  Questions 1 to 4 relate to the sketch mentioned in paragraph 19 of P1’s witness statement.  This issue is not pleaded in the pleadings and P1 has not mentioned in what respect this sketch is related to the mental capacity of the Deceased at the time of the execution of the 2011 Will.  Ps admit that the sketch is not relevant to the issue in dispute.[5]  This begs the question why P1 should include such fact in his witness statement.  Ps submit this morning that at the trial, Ps may raise this issue to the trial court or alternatively, they may amend their pleadings in order to put this issue at trial.

17.  In the first place, it is trite law that witness statements cannot take the place of pleadings in civil proceedings.  The court will not allow evidence not pleaded in the pleadings.  This is rather settled as decided by the Court of Final Appeal in Sinoearn International Ltd v Hyundai- CCECC Joint Venture (a firm) (2013) 16 HKCFAR 632.  In any event, in my view, the sketch does not assist the trial judge for determination of the issue in question.

18.  It will be unwise to speculate how Ps will amend their case at this stage.  This Court is only concerned with what have been pleaded in the pleadings as they stand now.  Its decision must be made on this basis, not on the speculation of the future pleadings, which are unknown.

19.  Question 5 refers to paragraph 30 of P1’s witness statement in which P1 said that he had knowledge of the 2011 Will at the deathbed of the Deceased, but he did not know the contents of it, not until four months later after he obtained a copy of it through his solicitors.  It is irrelevant to enquire whether P2 had the knowledge of those facts herself.  It is obviously irrelevant to the issues in dispute.

20.  Question 6 does not concern the Deed of Severance executed by the Deceased.  This issue was not pleaded in the pleadings.  It is irrelevant.

21.  Questions 7 to 11 are for P1.

22.  Questions 7 to 10 relate to the issue of the sketch.  For the reasons as mentioned in paragraph 17 above, the issue of the sketch is irrelevant to the issues in dispute.

23.  Question 11 is a series of cross-examination on P1 on issues which have not been pleaded in the pleadings.  They may be relevant to the credibility of P1’s evidence in relation to the main issues in dispute.  They are, nonetheless subject to argument at the trial as to whether they are admissible evidence for the trial.  In any event, to test the credibility of the witness’s evidence belongs to the function of cross-examination, but should not be made through interrogatory as it does not relate to the issues as pleaded in the pleadings.  Those questions are not for a fair trial or saving costs.

24.  Question 12 concerns the relationship between P1’s mother and the Deceased, which is not an issue pleaded in the pleadings.  Ps admit that this issue is irrelevant to the issues in dispute in this action.[6]  This issue will probably overlap with the issue in dispute in the family proceedings FCMP 221/2013.[7]  It is irrelevant to the issues in dispute in this action.

25.  For the reasons above, all the questions are disallowed and should be withdrawn or otherwise be dismissed.

Costs and order

26.  As to the costs of this application, there seems to be no reason why the costs should not follow the event (with certificate for counsel) and Ds have no objection to liability.  As to quantum, Ds say that the solicitor’s charge is inflated, bearing in mind of the argument put by Ps that those questions are irrelevant.  The costs are assessed summarily in a broad brush approach at $65,000 to be paid by Ds to Ps within 14 days from the date of this order.

27.  I shall make an order in terms as follows:

(a) Ds shall withdraw the 1^st Interrogatories or they be dismissed;

(b) Costs be as per paragraph 26 above.

28.  As to the case management of this matter, both counsel for the trial confirm today that the matter, after this Decision, is ready for trial and there will be a Case Management Conference two weeks later.  In view of their readiness today, there is no reason why this Court should not give directions on leave to set down, obviating the costs and time for the Case Management Conference.  I shall give direction for setting down as follows:

(a) Leave to the plaintiffs to set down within 42 days for a 8-day trial before a judge alone in the fixture list in consultation with counsel’s diaries. There be a pre-trial review before the trial judge for 30 minutes on a date 12 weeks before trial. Parties shall (if the trial judge is a mono-lingual judge) prepare the agreed/certified translation for the Chinese documents, raise the issues of recusal of the trial judge, or related proceedings or actions, if any, and shall confirm the length of the trial by counsel in charge at the pre-trial review. At the setting down the plaintiffs shall produce a letter to the Listing Clerk confirming that there are no outstanding interlocutory applications pending. Before the pre-trial review, all interlocutory applications shall be listed to be heard by the Registrar or a Master.

(b) Liberty to apply;

(c) The Case Management Conference on 27 July 2016 be vacated;

(d) Costs of the Case Management Conference be in the cause (15 minutes).