LAM WAI LIK ERIC AND OTHERS v. TAM SUET MUI

CACV 10/2021

[2023] HKCA 1066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 10 OF 2021

(ON APPEAL FROM HCAP NO 5 OF 2015)

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J U D G M E N T
(Defendant’s summons to amend the Notice of Appeal)

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Hon Yuen JA (giving the Judgment of the Court):

Background

1.  In HCAP No.5 of 2015, judgment was given by W Chan J (“the Judge”) on 14 December 2020¹ after an 18-day trial in the matter of the estate of Lam Chok Wai (“the Deceased”). 

2.  The issues at trial included:

-  the genuineness of the Deceased’s signatures on, and the ink-dating of, a will made in 1999 (“the 1999 Will”), and

-  the Deceased’s testamentary capacity, and knowledge and approval, in respect of the 1999 Will and another will made in 2005 (“the 2005 Will”). 

3.  The defendant, the Deceased’s co-habitant, was the sole beneficiary under both these wills.  An earlier will (“the 1987 Will”) of the Deceased benefitted the plaintiffs (the 2^nd plaintiff being his wife and the other two plaintiffs, their sons). 

4.  The trial involved evidence from doctors who had treated the Deceased after he suffered some strokes, legal professionals who had attested the 1999 Will and the 2005 Will, and expert witnesses on handwriting and ink-dating. 

5.1  In the judgment, the Judge found that the 1999 Will had indeed been signed by the Deceased in 1999, but that he did not have testamentary capacity to make the will. 

5.2  As for the 2005 Will, the Judge found that the Deceased did not have testamentary capacity to make the will, and he did not know and approve of its contents. 

5.3  The Judge then pronounced in solemn form for the 1987 Will. 

6.  The defendant filed an appeal on 11 January 2021, and the plaintiffs filed a respondent’s notice on 1 February 2021.

7.  The appeal was heard on 16 May 2023, after which judgment was reserved.

The defendant’s summons to amend the Notice of Appeal

8.1  On 16 June 2023 however, the defendant issued a summons in this court for the following orders:

(1)  leave to amend her Notice of Appeal to raise an additional ground;

(2)  service of the Amended Notice of Appeal be dispensed with;

(3)  directions from the court regarding the restoration of the appeal for the hearing of the additional ground.

8.2  The additional ground of appeal which the defendant seeks leave to argue is as follows:

“On the issue of the Deceased’s testamentary capacity (“the Issue”), the learned Judge has extensively copied (virtually verbatim and in exact format) the Plaintiffs’ closing submissions thereby ignoring to mention or discuss the evidence and arguments put forward by the Defendant.  That led a reasonable person to conclude that the learned Judge did not put his mind to the evidence and issues in dispute and did not render an impartial and independent decision.  In such circumstances, the Court of Appeal should not accord to the learned Judge’s determination on the Issue the customary respect which it would otherwise do as to the weight he attached to a particular piece of evidence and to his ultimate conclusion”.

8.3   The additional order which the defendant seeks to add is as follows:

“Further in the alternative, there be a retrial on the issue of the Deceased’s testamentary capacity before another judge”².

9.1  The summons was supported by an affirmation of the defendant’s solicitor Mak Hing Kwan filed the same day.  Ms Mak said that on 13 June 2023, the defendant and her legal team became aware of the Court of Appeal’s decision in Wong To Yick Wood Lock Ointment Ltd v Singapore Medicine Co and Others³(handed down on 9 June 2023), which set aside the judge’s judgment on the ground of “judicial copying”.  Ms Mak then said [§4]:

“The decision rang a bell for the Defendant’s legal team because they always had the impression that the learned Judge copied rather extensively the Plaintiffs’ submissions in his Judgment of this case, as in Wong To Yick” (underlining added).

9.2  Ms Mak then compared passages in the Judgment with the submissions of the respective parties, in particular the plaintiffs’ submissions on the issue of the Deceased’s testamentary capacity when he made the 1999 Will.      

10.  In the plaintiffs’ solicitor’s affirmation in opposition, apart from referring to the issues⁴ in which the Judge had found in favour of the defendant, it was disclosed that the solicitor who attested the 1999 Will and the 2005 Will, who had given oral evidence at the trial, has since died.

Discussion

11.  In accordance with general practice⁵, the application for amendment will be resolved by way of a paper application without an oral hearing.

12.  In July and August 2023, the parties filed written submissions which we have considered.

13.1  In the defendant’s submissions, counsel sought to explain the application to raise the additional ground now by submitting that the Wong To Yick judgment had “broken new ground” in the area of the law on judicial copying. 

13.2   We do not agree.  Some 18 years before Wong To Yick, the Court of Final Appeal had in Nina Kung v Wong Din Shin⁶ proscribed “judicial copying” in the sternest terms, holding:

“448. The fundamental point is that a judge must bring an independent mind to his judicial function and be seen to do so. Wholesale copying of one side’s submissions is bound to raise doubts in the mind of the other side as to whether this has occurred and whether the points made by that other side’s behalf have been adequately considered. ... ”.

13.3  The Court of Appeal had in a number of cases⁷ before Wong To Yick also referred to the above principle. 

14.1  However, the defendant’s counsel submitted that Wong To Yick was the first decision in which an appeal had succeeded on the ground of judicial copying “alone”⁸.  

14.2  That is neither here nor there.  Since 2005, legal professionals have been aware of the proscription against judicial copying in Nina Kung.  It has been advanced as a ground of appeal, among other grounds, in many cases.  Wong To Yick simply happened to be the first case where this ground was hived off from other grounds as a matter of case management. 

14.3  In other words, the allowing of the appeal in Wong To Yick on this ground was only the result of the court’s application of the above principle, which is well-established law.  Whilst (in an appropriate case) it may be said that ground is broken by new law, that cannot be said of simply the result of a case applying well-established law (as in Wong To Yick).

15.  No other reason has been given by the defendant why the additional ground was not raised earlier, even though as admitted in §4 of Ms Mak’s affirmation, the defendant’s legal team “always had the impression” that the judge had copied the plaintiffs’ submissions. 

16.1  Although the Court of Appeal has an untrammelled discretion to give leave to amend a notice of appeal, since the Civil Justice Reform, its power should be exercised with due regard to the underlying objectives in Order 1A of the Rules of the High Court⁹.  Notwithstanding the admitted awareness of the defendant’s legal team of the extent of copying, they did not raise it as a ground throughout the 2 years that had elapsed between the lodging of the appeal and the hearing of the appeal, and not until after judgment was reserved after the conclusion of the appeal hearing.  The additional ground would require a new date to be fixed for the hearing of the new ground of appeal.  No doubt that would take time (when the respondents are entitled to think that the appeal process was about to draw to a close) and of course, additional costs.

16.2  The underlying objectives of the rules of the High Court include increase in cost-effectiveness of proceedings, dealing with cases as expeditiously as reasonably practicable, procedural economy, and fairness between the parties. It is clear that to allow the amendment now would be contradictory to these objectives. 

17.  Accordingly, the defendant’s summons is dismissed with costs.  Having considered the plaintiffs’ statement of costs for summary assessment, we would assess the costs at $90,000.