TANG FOOK WING v. TANG CHUN KEE AND OTHERS

CAMP 218/2024, [2025] HKCA 456

On an intended appeal from [2024] HKCFI 1873

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 218 OF 2024

(ON AN INTENDED APPEAL FROM HCA NO 1294 OF 2014)

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(By original writ and orders to carry on made by Master K. Lo on 27^th October 2016)

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J U D G M E N T

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Hon Poon CJHC (giving the Judgment of the Court):

A.  Introduction

1.  By a decision dated 16 July 2024, ([2024] HKCFI 1873) (“Decision”), Deputy High Court Judge Kent Yee (“the Judge”) allowed the 1^st to 12^th defendants’ appeal from an order of a master and dismissed the plaintiff’s applications to adduce the second and third supplemental witness statements (“the 2^nd SWS” and “the 3^rd SWS” respectively) of 鄧美蓮 (“TML”). The plaintiff’s application for leave to appeal was dismissed by the Judge on 24 October 2024 ([2024] HKCFI 3017). He now renews the application before this Court. Having considered the papers before us, we take the view that it is appropriate to deal with the application on paper without an oral hearing, pursuant to Order 59, Rule 2A(5)(a) of the Rules of the High Court (Cap 4A). We now hand down our judgment.

2.  The essential facts of this case have been set out in the Decision, and will not be repeated here. For the reasons that he gave, the Judge dismissed the plaintiff’s application on the ground that the contents of the 2^nd SWS and the 3^rd SWS are inadmissible, irrelevant and non-probative.

B.  Discussion

3.  The applicable principles for leave to appeal are well established:

(1)  Leave can be granted if the court is satisfied that (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard. Reasonable prospects of success involve the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”. As the leave requirement was introduced largely to address satellite litigation on interlocutory issues which almost invariably gives rise to major delay and expense, so for the court to be satisfied that the appeal does have “reasonable prospects of success”, merely showing that the appeal is “arguable” and “not fanciful” would not be sufficient.

(2)  Even if the threshold test of reasonable prospect of success is satisfied, the court still retains discretion whether to grant leave, although the fact there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion. The court may refuse leave to appeal in the interests of procedural economy and proportionality.

(3)  Case management decisions are only subject to appeal in rare circumstances. The appellant faces a “very high hurdle” and must show that the judge “has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task”, or if the judge “erred in principle or the order was irrational having regard to the issues that had to be resolved”. It need hardly be emphasised that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible.

See Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887 at §§29 to 31.

4.  In respect of admissibility of witness statements, the general principles may be summarised below:

(1)  A witness statement must not contain any inadmissible evidence. It must not contain any statement of information or believe even if the grounds and reasons thereof are given. Unless so stated by the party serving it, the witness statement will not be treated as evidence under the rules relating to hearsay evidence.

(2)  Like the oral evidence of the trial witness, a witness statement must not contain any expression of opinion, but be confined to matters of facts. A witness as to fact cannot give statements of information of belief and/or expressions of opinion. The primary objection to opinion evidence by witnesses as to fact is that (a) if the opinion rests on no evidence or inadmissible evidence it is worthless, but (b) if the opinion rests on admissible evidence it usurps the function of the trial judge who is the trier of law and fact. On such basis, non-expert opinion is generally inadmissible.

(3)  Order 38 Rule 2A(8) of the RHC expressly provides that nothing in Rule 2A will make admissible evidence otherwise inadmissible. There is accordingly an obligation on the parties preparing witnesses’ statements to be served pursuant to Order 38 Rule 2A(2) of the RHC to ensure that they contain no inadmissible evidence. This means that they must take care to omit any statements of information and belief, even if the grounds and sources thereof are given, and any expression of opinion. If the witness statement should by chance contain such material, it should be corrected as soon as possible or otherwise the opposite party may apply to strike out such material or in appropriate cases for the service of a fresh statement.

See Ho Wai Tung v Ho Fung [2020] 4 HKLRD 508 at §§36 to 38; Hong Kong Civil Procedure 2025 at §§38/2A/6 and 38/2A/15.

5.  The plaintiff seeks to raise three grounds of appeal. We will deal with them in turn below.

B1.  The first ground

6.  The first ground concerns the 2^nd SWS. It contends that:

(1)  The Judge erred in law in holding that the “assessment” of the 7^th defendant’s credibility in the 2^nd SWS is not admissible.

(2)  The Judge erred in law in finding that the “observations” of the contents of the genealogy compiled by the 7^th defendant are wholly unnecessary and irrelevant.

(3)  The Judge erred in law in finding that TML has no personal knowledge of local customs regrading adoption and inheritance practice in the Village. Whether TML has acquired personal knowledge or sufficiency of such knowledge about the local customs through her participating in various events should be a matter to be tested at trial.

(4)  The Judge erred in law in finding “one member’s ignorance of the local custom could not be of much probative value”, which should be, instead, be fully tested at trial.

7.  We have read the 2^nd SWS. Apart from the assertions that the genealogy was compiled after the dispute arose and that the 7^th defendant refused to recognise the plaintiff as the adoptee in the genealogy, it contains no factual evidence whatsoever. It is nothing more than TML’s own opinion on the matters covered.

8.  Moreover, both the timing of the compilation of the genealogy and the exclusion of the plaintiff as the adoptee in the genealogy have already been mentioned in TML’s 1^st supplemental witness statements at §13. It is wholly unnecessary to repeat the same in the 2^nd SWS.

9.  Further, as to TML has no personal knowledge of local customs regarding adoption and inheritance practice in the Village, as the Judge rightly pointed out at §27(4) of the Decision, TML never stated how she has acquired any knowledge of the local custom relating to inheritance and adoption matters. Indeed, nowhere in the 2^nd SWS did TML profess that she has personal knowledge or state the source from which she derives her knowledge over the matters set out at §7 to 18 of the 2^nd SWS.

B2.  The second ground

10.  The second ground complains that:

(1)  The Judge conflated the question of weight and reliability with the question of admissibility by holding “the video-recordings are sufficient” to assess weight of Madam Tang Yin’s statements.

(2)  The Judge erred in holding that “the 3^rd SWS is simply redundant” of the video-recordings. The video-recordings concern only the signing of the 1^st witness statement of Madam Tang Yin, while the 3^rd SWS describes particulars of the signing of that witness statement (including before and after the environment of recordings) and Madam Tang Yin’s supplemental witness statement on 11 October 2018 and the signing of two affirmations by Madam Tang Yin in 2022.

(3)  By excluding the 3^rd SWS, the Judge deprived the trial judge’s opportunity to properly assess weight and reliability of Madam Tang Yin’s statements as hearsay evidence. It is contended that weight and reliability assessment of hearsay evidence from Madam Tang Yin (now deceased) is an important issue in the proceedings and should be left to the trial judge after having heard all the evidence.

(4)  Competence of Madam Tang Yin is a matter for the trial judge. The Judge failed to consider that the 3^rd SWS can add weight to the manner of how Madam Tang Yin signed her witness statements and the 3^rd SWS showed the manner in which Madam Tang Yin signed the witness statements.

(5)  The Judge failed to consider section 49 of the Evidence Ordinance (Cap 8), which requires the court, when assessing weight of hearsay evidence, to have regard to the circumstances from which any inference can be reasonable drawn as to reliability of the evidence. The 3^rd SWS provides the circumstances of the making of Madam Tang Yin’s statements, so that the court shall take it into consideration.

11.  We have also read the 3^rd SWS. It is apparent that its main purpose is to establish that Madam Tang Yin was competent to execute all the witness statements and affirmation: see the introductory paragraphs and the conclusions on each of Madam Tang Yin’s witness statements and affirmations (see in particular §§3, 4, 17, 21 and 26 of the 3^rd SWS).

12.  However, as confirmed by the defendants, the competence of Madam Tang Yin has never been an issue. Moreover, the relevant video recordings have already been disclosed to demonstrate the competence of Madam Tang Yin. As such, insofar as the 3^rd SWS is relevant to the competence of Madam Tang Yin, it is not necessary and redundant.

13.  Contrary to the plaintiff’s contention, we do not accept that the 3^rd SWS is relevant to the weight of the evidence of Madam Tang Yin. For it does not in any way purport to corroborate or otherwise deal with the basis of the evidence of Madam Tang Yin. All that it seeks to do is to provide an account on the process of how Madam Tang Yin signed the relevant witness statements and affirmations.

14.  Section 49 of the Evidence Ordinance does not assist the plaintiff. That section provides that in estimating the weight to be given to hearsay evidence in civil proceedings, the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence. Regard may be had to the matters set out in section 49(2). The plaintiff has failed to explain or demonstrate how the contents of the 3^rd SWS fall within the scope of any of the considerations relevant to weighing of hearsay evidence under section 49. A bare statement that the Judge failed to consider that provision is not enough.

B3.  The third ground

15.  The third ground contends that the Judge failed to address the issue that, while the defendants have confirmed no delay and no prejudice would be suffered by them if the 2^nd SWS and the 3^rd SWS were admitted, there would be substantial prejudice suffered by the plaintiff if the 2^nd SWS and 3^rd SWS were not admitted to fill in gaps in their statement evidence and secure or facilitate a just resolution of the dispute between the parties.

16.  However, the third ground does not stand alone. When the first and second grounds fall away, so must it.

C.  Conclusion

17.  In conclusion, none of the grounds of appeal is reasonably arguable and the plaintiff’s intended appeal has no reasonable prospect of success. Nor is there any other reason in the interests of justice why the appeal should be heard. We accordingly dismiss the plaintiff’s renewed application for leave to appeal with costs to the 1^st to 12^th defendants, to be summarily assessed if not agreed.

18.  We further direct the plaintiff to file and serve a statement of objection (limited 2 pages) in response to the statement of costs filed and served by the 1^st to 12^th defendants on 20 November 2024 within 14 days. Subject to such further directions, we will assess the 1^st to 12^th defendants’ costs summarily on paper.

19.  As the plaintiff’s application is totally without merit, we make an order that no party may request the present determination to be reconsidered at an oral hearing inter partes pursuant to Order 59, rule 2A(8) of the RHC.