TSO TAK LEE v. TSO CHUI YAN AND ANOTHER

HCAP 29/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 29 OF 2012

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DECISION

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The application

1. This is the plaintiff’s application for leave to adduce two expert reports in support of his claims against the defendants in these proceedings.  The expert reports were prepared by Dr. Tsang Fan Kwong and Dr. Chung Sze Yuen, both of whom are psychiatrists.

2. The defendants oppose the application on the grounds, inter alia, that they had never treated Madam Kam Yuk Fung, the deceased mother of the plaintiff and the 1^st defendant (“the deceased”).  The defendants take the view that the expert reports are not very helpful and they will cause unnecessary costs and time.[1]  However, as an alternative, the defendants propose to restrict the parties to one expert report only.[2]

3. Mr. P.W. Wong, counsel acts for the plaintiff.  Mr. A. Poon, counsel acts for the defendants.

The relevant legal principles

4. The relevant legal principles on expert evidence are set out in my previous Decision DBS Bank (Hong Kong) Ltd v Sit Pan Jin HCA 382/2009, (unreported, 9 November 2012 at para 12):-

a.    Under Order 38 rule 36 of RHC, unless the parties agree, no expert evidence may be adduced at the trial without leave of court.  See Fung Chun Man v Hospital Authority HCPI 1113/2006 by Bharwaney J on 24 June 2011;

b.    The court is concerned with proper directions for expert evidence in order not to cause delay and waste of expenses. Faith Bright Development Limited v Ng Kwok Kuen [2010] 5 HKLRD 425 at 430-431;

c.    Where the proposed expert evidence is plainly inadmissible or irrelevant, the court will refuse admission of such evidence. If the court cannot form a clear view on the relevance or the evidence is clearly relevant, it should grant leave for the evidence to be adduced at the trial. The evidence is relevant if it is helpful to the court in arriving at its decision on one or more of the issues to be resolved.  Wong Hoi Fung v American International Assurance Company (Bermuda) Limited & Shrila Chan [2002] 3 HKLRD 507;

e.    When there is a dispute over whether expert evidence should be adduced at trial, the court has to examine the pleadings to determine whether the proposed expert evidence is required in the pleaded case.[3]Yeung Ga Wai v Lau Ming Shum HCA798/2004 delivered on 19 July 2012.

f.    Expert evidence must be confined to the live issues of dispute between the parties, which must be sought from the pleadings China Gold Finance Limited v. CIL Holdings Limited & Ors (HCA2900/2001, (unreported, 25 September 2012, at para.17-18.)”

5. It will be convenient to examine the parties’ pleaded case first.

The pleased case

6. The plaintiff claims against the defendants, the 1^st defendant being the administratrix of the deceased’s estate and the 2^nd defendant being her husband, asking the Court to, amongst other things, revoke the Letters of Administration granted to the 1^st defendant relating to the deceased’s estate; account for the estate’s assets; delivery up of all the deceased’s estate to the plaintiff as the sole beneficiary under the deceased’s Will.

7. The plaintiff alleged in his Statement of Claim that the deceased had made her Will on 12 November 2001 (“the Will”) in the presence of two solicitors in which she appointed the plaintiff as the sole executor and devised all her estate to the plaintiff alone.[4]

8. The 1^st defendant had falsely held out to all the other family members that the deceased had died intestate.  She had further applied to the court and obtained the Letters of Administration of the deceased’s estate.[5]  She had also distributed the deceased’s estate to her advantage by, inter alia, assigning the property in Russell Street to her husband, the 2^nd defendant by an Assignment dated 20 October 2008.

9. There had been oral agreement between the plaintiff and the defendants that the defendants would return the properties in the estate to the plaintiff, which the defendants had failed to do.

10. The defendants do not dispute the existence of the Will, but they say that the Will is invalid and void by reason that the deceased was mentally incapacitated when she executed the Will on 12 November 2001, relying upon the findings of two registered psychiatrists, Dr. Wong Sze-man Queenie and Dr. Miao Yin King, both of Department of Psychiatry, Pamela Youde Nethersole Eastern Hospital.[6]

11. The 1^st defendant further says that she had shown the Will to the family members in the 1^st meeting held in early 2004 where the plaintiff had told the family members to ignore the Will.[7]  The plaintiff had denied this allegation in his Reply at paragraph 6.

This issues in dispute relating to expert evidence

12. The issues in dispute are quite clear from the above disputed facts.

13. As far as the expert evidence is concerned, the defendants rely upon their psychiatrists to say that the deceased was a mental patient and that she did not have the mental capacity when she executed the Will.  Therefore, the Will, as agreed by all members of the family, including the plaintiff, was void.  This must be the basis upon which she had made her non-contentious application for the Letters of Administration, which was granted to her by the Probate Registry.

14. On the other hand, the plaintiff now says that the 1^st defendant had never shown the Will to the family members.  He denied that he had agreed that the Will should be void.  He further asserts that the Will was duly executed before two solicitors, who had given their views that the deceased was of testamentary capacity for the execution of the Will.  The plaintiff will rely upon, apart from the evidence of the two solicitors, his own experts to say that the deceased could have had intermittent lucid mental capacity and she would have had such mental capacity when she executed the Will.

15. The validity of the Will is the key issue at trial.

Discussion

16. Since the defendants have no dispute over the existence of the Will, the burden will be on them to prove that the Will was void or invalid.  They will rely upon the medical reports of the government psychiatrists, whose reports only say generally that the deceased was a mental patient.  They had not specified whether the deceased had the mental capacity at the time when she executed the Will.  They had not, in their reports, given any opinions on intermittent mental capacity for a mental patient.  This may form a lacuna, which the trial Judge may require expert evidence from the plaintiff to determine the mental capacity of the deceased at the time of execution of the Will, given the fact that there were two solicitors present who had given their views in support of the fact that the deceased had the mental capacity at the time of execution of the Will.  The solicitors’ views, as challenged by the defendants, are by no means expert evidence.  The plaintiff may have to call expert evidence to meet the challenge.

17. Mr. Wong submits that the plaintiff requires two expert reports to be adduced as evidence because Dr. Chung’s report is focused on detailed opinion of different issues on delusional disorder on the one hand and mental capacity to execute the Will on the other hand,[8] whereas Dr. Tsang will say about the question of possible delusion against the children at about the time of her execution of her Will.  Dr. Tsang had also placed emphasis on the statements of the two solicitors present at the execution of the Will. Dr. Chung and Dr. Tsang have different focuses.  Dr. Tsang discussed the psychotic switch, which was not discussed by Dr. Chung.

18. Mr. Poon replies that if the plaintiff were allowed to call the two experts, the defendants would have to call two experts to counter their evidence.  The costs for the trial will be increased.  The defendants do not intend to call Dr. Wong as she is unable to say whether the deceased had the mental capacity at the time of execution of the Will.  The Court should also consider that the plaintiff had allowed the distribution of the deceased’s assets among the siblings, therefore the plaintiff must have known that the Will was of no effect. The plaintiff’s experts have only said that there was possibility that the deceased was having the mental capacity. Their reports may not be useful.

19. However, Mr. Poon agrees that whether the Will was executed by the deceased with mental capacity is a live issue for the trial and the court would require expert evidence to make the decision on this issue.  He suggests that only one expert report will be necessary and perhaps the experts can combine their expert reports, so that the defendants may only call one expert to respond to the expert report.  I should also say that the fact the plaintiff had allowed the 1^st defendant to distribute the assets amongst the sibling will be a fact to be considered by the trial judge when he determines the credibility of the evidence of the plaintiff and his experts.

20. I agree with Mr. Wong that there will be waste of costs if the court were to ask the plaintiff’s two experts to combine their reports into one.  As the plaintiff has already prepared the two expert reports, it will be unreasonable to ask the plaintiff to spend further costs on getting the psychiatrists to make a joint report.  There is a possibility that they may not be able to come to a joint report, in which event, there will be further applications to this Court for further directions on the expert evidence.

Conclusion

21. I would allow the plaintiff to adduce the expert reports of Dr. Chung and Dr. Tsang at the trial. The plaintiff’s application is allowed.

22. On the question of costs, there is no dispute that the costs should follow the event.  The plaintiff’s costs are to be assessed under Order 62 rule 9A RHC.  With the schedule of the costs from the plaintiff, this Court now assesses the costs, including all the costs reserved and today’s hearing (with counsel’s certificate) at $76,000 to be paid by the defendants to the plaintiff within 14 days from the date hereof.

23. The Court now makes an order in terms as follows:

a. The plaintiff’s application is allowed as per paragraph 21;

b. Costs of this application are as per paragraph 22.