KWONG HON WAH v. HILDA C.K. LEE

HCAP 8/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 8 OF 2003

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REASONS  FOR  DECISION

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Introduction

1.  This is the plaintiff’s appeal against parts of the orders made on 28 July 2005 by the master.  At the end of the appeal hearing, I allowed the appeal in the manner set out in more detail below.  The following are the reasons for the decision.  The costs of the hearing before the master will also be dealt with below.

2.  In the original action, only one defendant has been named.  The named defendant, together with her other two siblings, counterclaims against the plaintiff.  For convenience, the plaintiff in the original action will be called “the plaintiff” whereas the other litigants will be called “the defendants” below.

3.  The parties herein were the sons and daughter of the late Madam To (“Mdm To”).  On 24 April 2002, Mdm To left a will which named the plaintiff as the sole executor and beneficiary of her estate.

4.  The background leading to the master’s orders can be summarised as follows.

The Pleaded Case of the Parties

5.  The plaintiff commenced this action in May 2003 seeking the court to decree probate of the said will.  The defendants opposed the claim and allege that Mdm To lacked the mental capacity to execute a valid will; it is alleged she was not of sound mind at the time and hence did not know of the contents of the alleged will.  They counterclaim that Mdm To died intestate and letters of administration should be granted to one or more of the defendants.

The Master’s Orders

6.  One of the master’s orders has much to do with a consent order dated 26 June 2004 (“the Consent Order”).  The defendants considered the plaintiff to have breached parts of the Consent Order and accordingly took out an application seeking either the dismissal of the action or an “unless” order (“the Enforcement Application”).

7.  Further, the defendants served interrogatories on the plaintiff pursuant to RHC Ord 26 r 3(1).  The plaintiff took out a summons for the withdrawal of those interrogatories: Ord 26 r 3(2) (“the Withdrawal Application”).

8.  Finally, the defendants took out an application for leave to amend their defence and counterclaim and to serve another set of interrogatories (respectively “the Amendment Application” and “the Interrogatories Application”).

9.  These applications will collectively be called “the applications under appeal” below.

10.  In short, the master decided substantially in the defendants’ favour in relation to the applications under appeal.  Costs were ordered against the plaintiff.  These costs orders are also the subject-matter of the plaintiff’s appeal.

11.  For ease of comprehension, the reasons for decision will be set out under separate headings below.

The Enforcement Application

12.  The defendants contend in the Enforcement Application that the plaintiff has failed to abide by parts of the Consent Order.  The relevant parts of the Consent Order read:-

“Subject to the undertaking of the Plaintiff … to Court that the Plaintiff will render to the [defendants] cooperation and assistance as may be necessary for retrieving the documents enumerated as items 6 and 7 in the schedule annexed hereto(“the Schedule”) … ” (para. 1(a));

“… the Plaintiff do … make and file an affidavit stating whether he has or has at any time had in his possession, custody or power any of the documents specified in the Schedule … (except documents items 6, 7, 18 and 19)” (para. 1(a));

“There be inspection of the said documents specified in the Schedule … (save items 6, 7, 18 and 19) … ” (para. 2);

“The Plaintiff do … answer the Interrogatories dated 9 January 2004 … ” (para. 3).

13.  The Enforcement application complains that the plaintiff has failed to comply with the Consent Order in that he did not:-

(a)     render the necessary cooperation and assistance for retrieving the documents specified as items 6 and 7 in the Schedule;

(b)    fully answer the Interrogatories;

(c)     produce and provide for inspection:-

(1)   bank passbooks/statements relating to the bank account in the names of Mdm To and the plaintiff’s wife No. 02753710291858 after 8 August 1995;

(2)   the Inventory of the contents of a safe deposit box;

(3)   the Schedule of Property in respect of Mdm To’s estate issued by the Estate Duty Office.

14.  Looking purely at the pleadings, the relevance of the above documents to the issues raised (summarised above) is not immediately apparent.  In fact, the relationship of the said documents to this action can only be discovered after one has read the plaintiff’s witness statement dated 13 December 2003.  This is because they are related to some of the matters first mentioned there.

15.  The Interrogatories referred to above have a similar origin.  The relevant items are in brief:-

(1)     Interrogatory 1: how the business loss of Wing Ti Motors Ltd. came to be borne by the plaintiff;

(2)     Interrogatory 3: whether the name of the plaintiff’s wife was added to a safe deposit box in 2000 as a deputy or as a beneficial joint account holder;

(3)     Interrogatory 4: state the name of payee(s) of 2 sums withdrawn by the plaintiff from money transferred to him by Mdm To and the purpose(s) of such withdrawals;

(4)     Interrogatory 6: whether the plaintiff was merely a deputy or a beneficial joint account holder of a bank account and safe deposit box;

(5)     Interrogatory 7: how Mdm To supported the business of Wing Yick;

(6)     Interrogatory 8: a question similar to that set out in sub-para. (2) above;

(7)     Interrogatory 11: particulars pertaining to medical fees paid for Mdm To’s medical treatment.

16.  In relation to the plaintiff’s undertaking to render cooperation and assistance, the master did not dismiss this action, but ordered the plaintiff to sign a letter in the form specified in the order (para. 1(a) thereof).

17.  In relation to the documents set out in para. 13(c)(1) to (3) above, the master ordered the plaintiff to produce them for inspection and, as regards the Schedule of Property, to make an affidavit confirming the same (para. 1(b) and (c), order dated 28 July, 2005).

18.  In relation to the Interrogatories, the master ordered the plaintiff to answer sub-para. (a) and (d) of Interrogatory 11 (para. 1(d), order dated 28 July 2005).

19.  In my view, when determining the Enforcement Application, one must consider whether the matters sought therein are relevant to the issues raised in the pleadings.  The parts of the Consent Order on which the Enforcement Application is based are in gist concerned with discovery and interrogatories.  In this connection, I note that Ord 24 and Ord 26 have expressly stated that court orders will only be made pursuant to these rules for the fair disposal of an action and/or to save costs: see, for example, Ord 24 rr 8 and 13(1) and Ord 26 rr 1(1) and 4(2).  Accordingly, insofar as the exercise also requires the construction of the terms of the Consent Order, relevance is also a major factor to be taken into account.

20.  The defendants contend that the matters sought in the Enforcement Application are relevant essentially because they have been mentioned by the plaintiff in his said witness statement.

21.  That witness statement (dated 13 December 2003) was written in Chinese.  It was filed and served pursuant to one of the directions given in the summons for direction and is consisted of 85 paragraphs and about 19 pages.  There is no need to go into the details suffice it to say, apart from dealing with the matters which occurred around 24 April 2002 (the day when the will was executed by Mdm To), the plaintiff gave a narration about:-

(a)     Mdm To having returned to Hong Kong to reside since either 1968 or 1972 (or thereabout) while the defendants were residing in the US;

(b)    his close relationship with Mdm To as evidenced by various business and/or monetary transactions between them after Mdm To returned to Hong Kong;

(c)     the deteriorated relationship between Mdm To and most of the defendants since a long time ago.

22.  In relation to the plaintiff’s undertaking to render cooperation and assistance, I agree with his submission that the master’s order is inappropriate in that the form of the letter specified in the order requires not only his signature but also that of his wife.  This is because:-

(1)     insofar as the master’s order also orders the plaintiff’s wife to comply, it suffers from various legal difficulties such as the lack of jurisdiction and breach of rules of natural justice, and

(2)     insofar as it is not intended to affect the plaintiff’s wife, the master’s order is futile because the plaintiff is personally unrelated to the bank account in question whereas his wife is one of the signatories thereof.

23.  In relation to the discovery of documents relating to bank account No. 02753710291858 (see para.13(c)(1) and 17 above), the plaintiff has already supplied 5 years’ bank records to the defendants.  The defendants ask for more records to be supplied but they have not explained the relevance of these records to the issues of the action.  The only basis of this part of their application is the reference to “All documents” in the Consent Order.  However, as the plaintiff correctly points out, despite the use of this phrase, the question of relevance still has to be considered.  The documents sought by the defendants are related to para. 23, plaintiff’s witness statement.  The plaintiff was there dealing with a specific transaction involving the transfer of about HK$470,000 in March 1993.  There must be a valid reason to support a request for records which were dated after 8 August 1995.  There is simply none.

24.  In relation to the Inventory, it should first be noted that its relevance to the issues in the action has not been explained.  Further, the plaintiff has deposed that he did not have the document.  With these matters in mind, the master ought not have made the order.

25.  In relation to the Schedule of Property, again it has not been explained how it is relevant.  The defendants’ complaint is in gist that the plaintiff has supplied in total two Schedules and one of them must have been a wrong document.  I do not consider there should be any doubt which of the two documents was the Schedule of Property from the Estate Duty Office (the one dated 12 November 2002 was signed by the Assistant Commissioner).  But even if there should be any doubt, an order is not justified in the context of this action.

26.  In relation to the Interrogatories (summarised in para. 15(1) to (7) above), likewise there is no need to go into the details but to observe that relevance should be considered when deciding whether to make an order.  In the light of the respective pleaded case, the plaintiff’s answers should already be sufficient.

27.  I also note that some of the Interrogatories are really related to matters of evidence and/or credibility.  To this extent, they were improperly served: Hong Kong Civil Procedure 2004, para. 26/4/6, 26/4/13 and 26/4/15.

The Withdrawal Application

28.  The Interrogatories were served on 24 August 2003.  The relevant items are in short concerned with:-

(a)     Interrogatory 1: the name of payee of a sum withdrawn by the plaintiff from money given to him by Mdm To and the purpose(s) of such withdrawal;

(b)    Interrogatory 2: similar to sub-para. (a) above;

(c)     Interrogatory 3: similar to sub-para. (a) above;

(d)    Interrogatory 5: the bank account into which a cash sum paid to the plaintiff by Mdm To was deposited.

29.  In relation to Interrogatories 1 to 3, the defendants argue that it is unlikely that the plaintiff would immediately make use of the sums if they were in fact gifts from Mdm To (according to the plaintiff, that was the reason why the sums were given to him).  This is essentially a matter of credibility.  For this reason alone, the Interrogatories should be ordered to be withdrawn. 

30.  I also agree with the plaintiff that the Interrogatories are an attempt to fish for materials and that they are irrelevant to the issues in this action: Hong Kong Civil Procedure 2004, para. 26/4/9.

31.  Interrogatory 5 is also irrelevant.

32.  Interrogatory 4 is conceded by the plaintiff to be a proper interrogatory.

The Amendment Application

33.  While the plaintiff accepted that leave should be given to the defendants to amend their defence and counterclaim, he sought from the master a period of 60 days to file and serve his amended reply and defence to counterclaim.  The defendants, on the other hand, contended that the plaintiff should only be given a period of 21 days to do so.  The master ordered the plaintiff to file and serve an amended reply and defence to counterclaim within 28 days.

34.  By the time of the appeal hearing, the plaintiff has in fact already filed and served his amended reply and defence to counterclaim, after having sought (and given) time extensions to do so subsequent to the master’s orders.

35.  This part of the appeal is therefore academic except in relation to the question of costs.

36.  In short, the plaintiff sought a time period of 60 days because he needed to consult a medical expert to respond to the defendants’ new expert report which was concerned with the effect of the lack of oxygen on the mental state of Mdm To.  The last-mentioned matter was first dealt with in detail in the report filed on 28 February 2005.

37.  The relevant parts of the history of this action are as follows.  The defence and counterclaim was filed in June 2003.  Summons for direction was heard before the master in September 2003.  The defendants’ medical expert report was filed in January 2004, but the expert report referred to in para. 36 above was only filed in February 2005.

38.  In these circumstances, I agree with the plaintiff that a time period of 60 days for filing and serving an amended pleading was appropriate.

The Interrogatories Application

39.  The issue between the parties regarding this part of the appeal is similar to that under the heading “The Amendment Application”.

40.  For the same reasons, I also consider the time period sought by the plaintiff to be appropriate.

Conclusion

41.  The appeal is allowed.  The parts of the master’s orders under appeal are set aside.  I will also make the following orders as regards the notice of appeal dated 10 August 2005:-

(1)     an order in terms of para. 1 thereof;

(2)     in relation to para. 2 thereof, save and except Interrogatory 4, the Interrogatories be withdrawn with costs to the plaintiff;

(3)     no order be made in relation to para. 4 thereof.

Appeal against the Master’s Costs Orders

42.  The master ordered the plaintiff to pay the costs of the applications under appeal on the ground that the defendants have been successful substantially.

43.  In view of the matters set out above, the plaintiff has to a large extent been successful in this appeal and in the applications under appeal.  Costs of the applications under appeal should therefore be paid by the defendants to the plaintiff in any event with certificate for counsel.

44.  The plaintiff has advanced alternative arguments that he should not be ordered to pay costs even if he was unsuccessful in this appeal.  Because of the conclusion reached above, there is no need to deal with the alternative arguments.

Other Matters

45.  The issue raised by the pleadings is concerned with one matter, namely, the mental capacity of Mdm To at the time of her execution of the will.

46.  In relation to that matter, I understand that the relevant medical records have already been discovered by the time of the appeal hearing.  Medical experts have already been engaged by the parties to give their respective opinion relating to Mdm To’s mental capacity at the material time.

47.  The matters raised in the applications under appeal are in truth an unnecessary digression from the above dispute.  Yet, the parties underwent a 3-day hearing before the master to pursue those matters.  Altogether 5 appeal bundles were prepared for this appeal.  The main appeal bundle itself already contains 458 pages.  I was informed that a total of about 3 hours were spent during the master hearing merely to argue the Amendment Application and the Interrogatories Application.  As stated in para. 33 and 39 above, the only issue raised there was whether the plaintiff should be given a time period of 60 days or only 21 days.

48.  In my view, this manner of proceeding with interlocutory applications is wholly inappropriate.  It is another example of useless matters (or at most matters of peripheral significance) being allowed to overwhelm (and delay the progress of) the resolution of the real dispute.

Costs Order Nisi

49.  There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this appeal be paid by the defendants to the plaintiff to be taxed if not agreed.  I certify the appeal hearing suitable for attendance by two counsel.