CHIU MAN FU AND OTHERS v. CHIU CHUNG KWAN YING

HCAP9/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 9 OF 2005

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BETWEEN

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D E C I S I O N (NO. 2)

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Introduction

1.  On Day 23 of the trial, I heard submissions on whether certain portions in Dr Huang Chen-ya’s reports dated 10 and 18 March 2011(“the 2^nd and 3^rd Report” respectively) be deleted because they concerned factual matters that ought to have been put to Dr Ng Wai Cheong and Dr Bell Tse when they gave evidence.  I agreed with Mr Yu, SC for the defendant that those factual matters ought to have been put to the two doctors and directed that the objectionable portions should be removed.  I then left the actual removal to the parties.  They have since been unable to agree on the parts to be removed.  Pursuant to my direction, the parties have lodged their written submissions with the court and I will dispose of the matter on paper.

2.  The portions that the defendant objected to fall into two broad categories :

(1)   paragraphs 1.3 and 1.4 of the 2^nd Report and paragraphs 5 and 6 of the 3^rd Report; and

(2)   paragraphs 1.6 to 1.8 of the 2^nd Report and paragraphs 8 to 11 of the 3^rd Report.

I will deal with them in turn.

The 1^st Category

3.  I first look at paragraphs 1.3 and 1.4 of the 2^nd Report.

4.  The 2^nd Report concerned Dr Ng’s evidence.  He dealt with the 2^nd supplementary witness statement of Dr Ng dated 28 February 2011.  In particular, he addressed the sufficiency of the mental state examination conducted by Dr Ng on the Deceased shortly before he executed the will on 5 June 2003, the subject matter of this action.  For easy reference, the two paragraphs are reproduced below (the parts shown as deleted have been accepted by the plaintiffs as ought to have been deleted) :

“1.3 It is not clear therefore what questions were asked to establish that Mr Chiu was orientated in time and place, whether leading questions with clues were asked. For example, to ask ‘Do you know that you are [at] Messrs. Deacon’s office?’ would not qualify as a proper question to establish orientation in place. Nor is it clear whether the question asked and the answers given were sufficiently specific. For example, a cognitively impaired person may still know that he/she is in Hong Kong, but not precisely which part of Hong Kong or which building.

1.4 Mr Chiu (hereafter CYC) was asked about his views on three stocks, and the real estate. Since there is no documentation of what he said, it is impossible to determine whether Dr Ng’s opinion that CYC’s views were ‘well informed and rational’ is reliable.  It is not known from the statement whether CYC knew just the past performance of these stocks or were up to date.  Without a list of things which Dr Ng would consider essential for CYC to know, in order to demonstrate that he has a well informed and rational mind, it is not possible to know how much CYC might have known or not known.  More importantly, a test of CYC’s mental capacity using views on the stock market require the choice amongst stocks which have significant upside as well as downside risk, so that a rational choice is clearly in operation, in taking a positive or negative position.  In other words, the test must involve options with likelihood of either gain or loss, understanding of differing consequence of options, and reason for a decision based on such understanding.  The patient must be able to describe the contents of his or her understanding, and explain clearly the reason for his or her decision among such options.  Given that these three stocks, HSBC, Sun Hung Kai Property, and China Mobile are all blue chips, it is not clear how they would qualify for a test of mental capacity, and rational choice.”

5.  The defendant objected to paragraphs 1.3 and 1.4 in their entirety.  Mr Yu took two points essentially.  First, the matters ought to have put to Dr Ng but were not.  It is not open to the plaintiffs to seek to rely on Dr Huang to pass comments on the basis of something which could have been but was not clarified with Dr Ng.  It is also unfair to criticize Dr Ng’s evidence in the absence of cross-examination of specific areas referred to.  Second, they are in any event matters to be decided by the court.

6.  Mr Sarony, SC for the plaintiffs submitted that paragraph 1.3 is premised on the facts that Dr Huang observed from Dr Ng’s latest witness statement as stated in paragraphs 1.1 and 1.2, which are not being challenged.  Dr Huang then stated that it is not clear what questions were in fact asked and whether they, as well as the answers, were sufficiently specific.  He then illustrated the point with the example that he gave there.  Similarly, Dr Huang based his opinion in paragraph 1.4 on two observed facts, namely, the Deceased was asked about his views on three stocks and the real estate and there is no documentation of what he said.  He then set out a cogent explanation of how such an examination should be formulated.  He was there addressing the methodology.  In short, Dr Huang gave his opinion on various aspects of Dr Ng’s examination based on facts observed from Dr Ng’s latest witness statement.  He is entitled to give such evidence to assist the court in its evaluation of the sufficiency or otherwise of Dr Ng’s examination.

7.  I think it is important to bear in mind that although the 2^nd Report did not come into existence until 7 days after Dr Ng’s oral testimony, what Dr Huang did was to comment on what Dr Ng has said in his latest witness statement concerning the examination that he performed on the Deceased before he signed the will on 5 June 2003.  Dr Huang was not asked to and he did not express any opinion on what Dr Ng had said in court.  When Dr Huang’s report is so understood, I agree with Mr Sarony’s submission that there is no question of the plaintiffs trying to subvert the procedure by introducing evidence via the 2^nd Report without first putting the questions to Dr Ng for cross-examination.  Further, Mr Yu is entitled, if he so wishes, to attack Dr Huang’s opinions as expressed in paragraphs 1.3 and 1.4 in cross-examination by reference to what Dr Ng had said in his oral testimony.  I can see no real prejudice to the defendant. Finally, I do not think what Dr Huang has said in paragraphs 1.3 and 1.4 offend the basic principle that the matters in dispute are to be resolved by the court and the court alone.

8.  For these reasons, I direct that there should be further deletion in paragraphs 1.3 and 1.4 of the 2^nd Report.

9.  I now turn to paragraphs 5 and 6 of the 3^rd Report.

10.  The 3^rd Report dealt with Dr Bell Tse’s witness statement dated 11 February 2011.  The defendant objected to the entirety of paragraphs 5 and 6.  The plaintiffs agreed to delete some parts but not the following sentences :

“Paragraph 5 :

‘Because of the brevity of the notes, the depth/quality of the response could not however be ascertained.’

‘However, there is no record of CYC contacting or seeing Dr. Tse about the result, and’

‘It is unlikely that Dr. Tse would have not tried to determine in more details the nature of the headache. It seems likely that CYC was unable to provide such information.’

‘There was no record of CYC making if any response to this or saying anything about his health problems or his diabetic control which surely Dr. Tse would have enquired about.’

‘and again no information about his important stroke risk factor, namely the diabetes mellitus’

Paragraph 6 :

‘Thus, in 2002 Dr. Tse’s encounter with CYC were brief. Dr. Tse would have no knowledge of CYC’s mental state in the period after 16^th July 2002 till 31^st May 2004.’”

11.  Mr Yu first submitted that the sentences suffered from the same defect as the 2^nd Report : they are matters ought to have been put to Dr Tse in cross-examination.  But, like the 2^nd Report, Dr Huang did not deal with Dr Tse’s oral testimony in the 3^rd Report. He discussed Dr Tse’s evidence in his witness statement and what he could observe from there.  What I have said in paragraph 7 above equally applies here.  The sentences objected to shall stay.

The 2^nd Category

12.  Mr Yu submitted that paragraphs 1.6 to 1.8 of the 2^nd Report and paragraphs 8 to 11 of the 3^rd Report are argumentative or alternatively the defendant’s expert should be given an opportunity to reply.  Mr Sarony submitted that those paragraphs should remain stay and it is too late for the defendant’s expert to address the issues.  But he has very fairly said that the plaintiffs have no desire to shut out the defendant’s expert opinion should the court wish to hear from them and subject to an opportunity to respond if thought necessary.  Given Mr Sarony’s stance, I will not accede to Mr Yu’s application.  Rather, I will direct the defendant’s expert to file and serve a further report on or before 23 June 2011 and that Dr Huang is to file and serve a report in reply on or before 30 June, if so advised.

Costs

13.  There will be an order nisi that the costs be in the cause.