CHINACHEM CHARITABLE FOUNDATION LTD v. CHAN CHUN CHUEN AND ANOTHER

Judgment Summary

HCAP 8/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 8 OF 2007

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J U D G M E N T

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1.  The late Nina Wang [“Nina”] was the chairwoman of the Chinachem group and was one of the richest woman in Asia. But wealth cannot offer an answer to all the problems in life, particularly in the wake of the final rest that every human being has to face eventually. Rather, wealth may bring about a problem as to how one should deal with it after one’s death. Making a will is an option. However when there is more than one wills, it may lead to litigation. This is what happened in this case.

2.  Very often, some previously private and secret aspects of the life of a deceased would come to light in a probate action. The court often has to hear evidence about some darkest corners of a testator or testatrix’s affairs. At the beginning of the trial, I have urged parties to be mindful of their duty to be respectful to the deceased and to be dignified in the conduct of its proceedings. I am grateful for counsel’s high standard of professional judgment in their conduct of the evidence. 

3.  Likewise, in this judgment this court will strive to focus on the real issues and present the reasons for its decision without any unnecessary and unwarranted intrusion into the privacy of Nina.

4.  Nina was first diagnosed with cancer in January 2004. After consultation with Dr Goldstein in the U.S., she underwent surgery within a matter of days. Unfortunately, some cancerous lymph nodes were too close to vital organs to be removed. The diagnosis was Stage IV adenocarcinoma of the endometrium. The prognosis was grave with less than 10% chance of survival for 5 years. She received extensive medical treatments in Boston, Singapore and finally in Hong Kong. Despite that, the cancer spread and by December 2005 she was told that the cancer was incurable and treatment could only be palliative. Sadly she passed away on 3 April 2007.

5.  Soon after her death, the 1^st Defendant[1] through his lawyers informed the family members[2] of Nina that he had in his possession a document purported to be the last will of Nina made on 16 October 2006. Under that purported will, all the rest, residue and remainder of the estate of Nina were given, devised and bequeathed to the 1^st Defendant. It also stated that the testatrix believed the 1^st Defendant would be capable of determining the distribution and use of her estate in a good and proper way and the will was established “entirely and wholeheartedly for the need and good of her family and loved ones”.

6.  In this judgment, I shall call this document the 2006 Will. The 2006 Will is vigorously challenged by the Plaintiff on a number of grounds to be discussed later.

7.  The Plaintiff is a charitable organization set up by Nina and her late husband Teddy in 1988. It is named as the beneficiary[3] of the entire estate of Nina under another will of Nina made on 28 July 2002. I shall call this the 2002 Will. The 2002 Will also contained directions as regards the management of the Plaintiff and the objectives it should fulfill. There is no provision in the 2002 Will for the 1st Defendant.

8.  The Secretary for Justice is a party to this action because of the charitable nature of the Plaintiff. In view of the active part played by the Plaintiff, the Secretary did not instruct counsel to appear at the trial.

A brief overview

9.  The 1^st Defendant does not dispute the authenticity of the 2002 Will. Though he claimed it was made for a specific purpose[4], I do not understand the 1^st Defendant to be contending that the 2002 Will should not be admitted to probate if the 2006 Will were held to be a forgery or otherwise invalid or ineffective.

10.  The two attesting witnesses to the 2002 Will came to give evidence in this trial. Their evidence on attestation is not seriously challenged and I find them to be truthful in that regard. Based on their evidence, I am satisfied as to the due execution and attestation of the 2002 Will. The requirements under Section 5(1) of the Wills Ordinance were complied with.

11.  The dispute in this trial therefore focuses on the validity of the 2006 Will. The issues pertaining to the 2006 Will are formulated by the parties as follows,

(1)     whether the 2006 Will was executed by Nina;

(2)     whether the 2006 Will was the same document as a document that Winfield Wong and Ng Shun Mo attested on 16 October 2006;

(3)     whether the 2006 Will was duly executed by Nina and duly attested pursuant to Section 5(1) of the Wills Ordinance;

(4)     whether the 2006 Will was duly executed by Nina under Section 5(2) of the Wills Ordinance;

(5)     whether Nina had the requisite capacity to execute the 2006 Will;

(6)     whether Nina knew and approved of the contents of the 2006 Will, and in particular, whether the circumstances of the 2006 Will means that the 1^st Defendant must prove specifically that it expressed the true will of Nina, and whether the 1^st Defendant can do so;

(7)     whether Nina had testamentary intention in relation to the 2006 Will;

(8)     whether the execution of the 2006 Will was obtained by undue influence of the 1^st Defendant;

(9)     whether the 2006 Will was, on its true construction, only a partial will, taking effect only in respect of property not disposed of by the 2002 Will.

12.  Issue (1) is self-explanatory and it is a question of fact.

13.  Issue (2) requires some explanation. Though the Plaintiff disputed the 2006 Will, it is not disputed that Nina did execute a document on 16 October 2006 and Winfield Wong and Ng Shun Mo attested to her signature in that document. The Plaintiff contended that the document so executed and attested was a will making a specific bequest of $10 million odd to the 1^st Defendant, not the 2006 Will. In this judgment I shall call that document “the Specific Bequest Will”. On the other hand, the 1^st Defendant’s case is that there is no such document and the document executed and attested on that occasion was the 2006 Will.

14.  The Specific Bequest Will cannot be found after the death of Nina and no-one seeks to propound the same for probate in this action.

15.  Issues (3) and (4) are in substance variations of the issue of authenticity with a twist in the burden of proof based on the evidential paradox Lord Scott adverted to in Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387 at para.628 and the analysis of burden of proof at para.176 by Ribeiro PJ.[5] In addition, the Plaintiff relies on the evidence of Winfield Wong and Ng Shun Mo, the attesting witnesses on the face of the 2006 Will. These witnesses did not confirm the genuineness of the 2006 Will. The Plaintiff contends that the 1^st Defendant fails in satisfying the burden required by Section 5 of the Wills Ordinance.

16.  Issue (5) is essentially a matter of dispute in the medical expert evidence. The Plaintiff contends that due to her ill-health caused by the cancer and the lack of adequate medical treatment shortly after her return to Hong Kong from Singapore in October 2006, Nina suffered from delirium when the 2006 Will was purportedly made. As such, even assuming she did execute the 2006 Will, it was done without the requisite testamentary capacity.

17.  Issue (6) as elaborated by the parties in their respective notes submitted to the court when the case was opened boils down to this: whether there are suspicious circumstances pertaining to the preparation and execution of the 2006 Will that triggered the burden on the part of the 2^nd Defendant to prove knowledge and approval affirmatively. Evidentially, the Plaintiff relies on the same evidence on due execution and testamentary capacity to support this challenge. However, as submitted by Mr Mill QC, if this court finds in favour of the Plaintiff on issues (1) and (2), there is no need to consider issue (6). On the other hand, if this court finds in favour of the 1^st Defendant on issues (1) and (2), one may need to examine whether there is any room for calling into question as to Nina’s knowledge and approval of the 2006 Will.

18.  Issue (7) only arises if the court finds that the 2006 Will was authentic and properly executed with the requisite capacity and duly attested. In a nutshell, the Plaintiff contends that if the court makes such findings, the court should still refuse to admit the 2006 Will to probate on the ground that it was executed as a Fung Shui document without any real intention on the part of Nina to give it any testamentary effect. As I have stated in my judgment on 11 June 2009, in particular paras.10 to 15, the focus is on Nina’s subjective intention rather than the validity of some Fung Shui practices.

19.  In the context of probate proceedings, for the purpose of issue (8), I agree with Mr Mill that the test for undue influence is different from that applicable for inter vivos transaction. There is no presumption arising out of any special relationship. Inducement or persuasion is not good enough. Probate undue influence requires coercion, see Wingrove v Wingrove (1885) LR 11 P & D 81.

20.  Issue (9) is a pure question of construction.

21.  Before I consider the necessary issues at length I have to deal with the relevant factual matrix in this case.

Nina

22.  Nina was married to Teddy Wang in 1955 when she was 18. After their marriage, they worked hard together to build up the Chinachem empire. Since 1960s, they became successful in the property development business in Hong Kong. Chinachem Group became one of the largest private property developer in Hong Kong. The couple worked long hours and they had no child. Their devotion to their business is well known.

23.  In one of the interviews given by Nina during her lifetime recorded in the two DVDs in Bundle J 17, she gave a brief account of how she and Teddy built up the Chinachem business empire in the 1960’s and 1970’s. They started with a very modest setup and Nina had to learn new skills in order to assist in the business. With shrewd business acumen, they were able to establish Chinachem as a large private property developer.

24.  By early 1980’s, the couple had become extremely wealthy. Unfortunately, they also became the target of kidnappers. In 1983, the couple was kidnapped. Nina was released in order to procure the payment of the ransom. The ransom was paid and Teddy was subsequently released.

25.  On 10 April 1990, Teddy Wang was kidnapped for the second time. A ransom of US$60 million was demanded. After the payment of US$30 million, the account designated by the kidnappers was closed. Subsequently, some of the kidnappers were arrested in Taiwan and in Hong Kong. However, Teddy was not released nor found despite much effort on the part of Nina. Such effort is evidenced by the documents (including letters written by Nina to various authorities and persons) in Bundle J11 and J12.

26.  As shown in the interviews (and this is confirmed by the employees of Chinachem giving evidence) she was very much a hands-on person. After the disappearance of Teddy, she became the chairwoman of Chinachem. She succeeded in taking the business to new heights. Her business acumen was demonstrated by projects like the Nina Tower and No.129 Repulse Bay Road.

27.  As evidenced by the interviews she was a kind-hearted person devoting a lot of her time and monies to charitable works. She placed emphasis on education and promotion of mutual understanding between China and the rest of the world. She established an Agricultural Prize in the mainland to provide financial rewards for farmers.

28.  She also talked about the setting up of the Plaintiff as her joint idea with Teddy. She explained how she and Teddy decided that they would leave their wealth to charitable works to help those in need as opposed to leaving it to family members.

29.  She was very patriotic. To highlight her confidence in Hong Kong after the reunification, she decided to build the world’s tallest building in Tsuen Wan in the 1990’s. To express her joy over the reunification, Chinachem bid for the first piece of land auctioned by the Government after the reunification at record high price. She said she always remembered her identity as a Chinese wherever she was. She did a lot of charitable works in the mainland, some of which were highlighted in the interviews.

The 2002 Will

30.  As mentioned, the Plaintiff was set up in 1988 by Teddy and Nina. That was long before the probate litigation between Nina and her father-in-law[6].  Since then, Nina had been making charitable donations in the mainland as well as internationally. In recognition of her good works, the World Federation of United Nations Association issued a first day cover in 1996 depicting her own painting of the Nina Tower. Another first day cover was issued in 1997 depicting another painting of hers.

31.  In the mainland, she set up the Agricultural Prize in the mainland in 1995 and the scholarship programme for PRC officers to attend the business school at the Harvard University in 1997. Over the years, she made substantial charitable donations to these programmes[7]. Again all these started before HCAP 8 of 1999.

32.  Mrs Tong[8] and Dinly Au[9] gave evidence about how they were involved in the drafting and amending of the 2002 Will. Mrs Tong testified that Nina asked her to prepare a first draft based on instructions from Nina. After the first draft was available, there were several revisions before it was executed by Nina in the presence of the two attesting witnesses.

33.  After its execution, Nina mentioned to the press that she was leaving her estate to charitable purposes after her death. According to Ng Shun Mo[10], Nina also handed to him the original and several certified copies of the 2002 Will for safekeeping. She instructed him that if anything should happen to her, he should announce it.

34.  Ng Shun Mo tried to clarify with Nina after the execution of a document by Nina with him signing as an attesting witness on 16 October 2006. He believed that document was a partial will[11]. On a Saturday after Nina came back to her residence at the Chinachem Golden Plaza from hospital, Ng Shun Mo asked Nina what was happening to her and why she needed to make a partial will in addition to the 2002 Will. Nina told him, “Don’t bother so much. I am fine. Just concentrate on your work and do it properly.”

35.  I accept the evidence of these witnesses in these respects. It is significant that on that occasion Nina did not tell Ng Shun Mo to destroy or forget about the 2002 Will. Nor did she take that opportunity to countermand her previous instruction about the announcement of the 2002 Will should anything happen to her.

36.  Apart from naming the Plaintiff as beneficiary, the 2002 Will also expressed Nina’s wish that the management of the Plaintiff shall be supervised by an authority making up of the Secretary General of the United Nations, the Premier of the People’s Republic of China and the Chief Executive of the Hong Kong Special Administrative Region. It is provided in the 2002 Will that in addition to continuing with its existing charitable works and developing the same, the Plaintiff shall set up a Chinese prize with worldwide significance similar to the Nobel Prize. Nina also expressed the wish that the Plaintiff shall maintain and expand the business of the Chinachem Group in order to use part of the profit generated from the business for charitable purposes.  She also provided in the 2002 Will that the Plaintiff was to look after the parents of Teddy and the siblings of Teddy and their children. It should also provide assistance to the educational needs of the staff of Chinachem and their children.

37.  The principal object clause of the Plaintiff in its Memorandum of Association set out the charitable activities that the Plaintiff may engage in. Broadly speaking, it can accommodate the wishes of Nina expressed in the 2002 Will as regards her specified charitable objectives. It may be arguable whether the provisions for Teddy’s parents and siblings and their children and staff of Chinachem fall within the object clause. But this is not a question that this court needs to resolve in the present context.

38.  Over the years, very substantial donations were made by the Plaintiff for various charitable purposes. In 2004, a total sum of $27.8 million was donated. In 2005, a total sum of $16.2 million. Whilst in 2006 the donation was only $151,000, in between January to 3 April 2007 the donation was $30 million.

39.  Joseph Leung[12] gave evidence about how these donations were decided upon during Nina’s lifetime. For small amounts, like $100,000 or $200,000, he would make the decision as chairman of the board of governors of the Plaintiff. For large projects, he would make recommendations to Nina for her approval. Nina took to charitable works particularly in the fields of education, medicine and agriculture. As regards the project to set up a prize similar to the Nobel Prize, he had discussed it with Nina in mid 2005.

40.  Dinly Au testified that over the years, apart from the small donations, the decisions over the affairs of the Plaintiff were made by Nina.

41.  The contemporaneous documents show Nina’s active involvement in the affairs of the Plaintiff up till the very last stage of her life. All along Nina adopted a hands-on approach in respect of her business generally. The same applies to the affairs of the Plaintiff. I find the evidence from these witnesses on these matters credible and I accept them.

42.  In respect of the donation of $30 million in March 2007 to the China Association of Social Workers, Mrs Tong was able to tell the court how Nina came to such decision and documents were produced to show her involvement, including correspondence with Vice Premier Hui on the matter.

43.  This was perhaps one of the last, if not the final, charitable donations made by Nina before her death. However, it was submitted on behalf of the 1^st Defendant that the donation was made as a result of commitment made in 2005 and as such, cannot be evidence of a general charitable intent on the part of Nina after her probate dispute with her father-in-law had ended. It was submitted that Nina’s apparent generosity was motivated by an intent to secure personal benefit in her probate litigation and the criminal investigation against her.

44.  I reject the 1^st Defendant’s evidence and submission made on his behalf regarding the ulterior motive of Nina in the making of the 2002 Will and donations to various Chinese entities. As discussed at greater length below, I do not find the 1^st Defendant to be a credible witness. I find he is prepared to say anything to advance his claim in this action.

45.  As regards this $30 million donation, even though an indication had been made in 2005, it was obviously a very preliminary indication as there was apparently no follow-up immediately afterwards. For Nina, a lot had happened since 2005. Given the rapid deterioration of her health from the second half of 2006 to early 2007, nobody could blame her if Nina withhold further action in the project for the time being. The letter of 1^st March 2007 from Mr Tsui of the China Association of Social Workers shows that the commitment on Nina’s part was only made in 2007, not in 2005. In my judgment, her decision to take up the project again and make the donation in 2007 was a genuine reflection of a charitable intent on her part.

46.  This does not sit well with the 1^st Defendant’s theory that by 2007 Nina had made another will (viz. the 2006 Will) without any charitable provision to replace the 2002 Will because her crisis in the probate litigation had been over. If Nina’s charitable works were tainted by such ulterior motive as suggested by the 1^st Defendant, that she had changed her mind in October 2006 and decided after all she would leave everything to the 1^st Defendant instead of charity despite her much professed and widely known charitable testamentary intent, why in 2007 when she was in very poor health would she care about a non-binding indication she made in 2005?

47.  According to several witnesses, Nina continued to have a keen interest over the setting up of a prize like the Nobel Prize after the making of the 2002 Will. Mrs Tong and Dr Gong testified about the efforts made in 2005 and 2006 studying other similar charitable foundations and in approaching Sir Run Run Shaw for co-operation in that regard.

48.  The 1^st Defendant also gave evidence confirming that to be the wish of Nina in his supplemental witness statement though he subsequently changed his evidence in his cross-examination[13] and downscaled it to a scholarship by the time of mid October 2006. He said his last discussion about Nobel Prize was in November 2005 and by then it was understood that the idea was not viable as Nina could not join in the Shaw Prize. This is contradicted by his evidence in his supplemental witness statement about his alleged advice in June 2006 regarding approaching Sir Run Run Shaw[14].

49.  In this respect, I prefer the evidence of siblings to that of the 1^st Defendant. The 1^st Defendant made no attempt to explain the departure from his witness statement in his oral testimony. On his own evidence, he met Nina for the first time in November 2005 after he had stopped seeing her for a couple of years. If the subject of Nobel Prize was closed in that discussion, there was no reason why he said specifically in his supplemental witness statement Nina made known such her wish to set up a similar prize after giving him the 2006 Will[15].

50.  A friend of Nina called Stephen Lau gave evidence about Nina asking his view about the 2002 Will after she had made it. According to him, there were several discussions. The first was in 2003 and the last one was in about mid 2006 (between June and September). Throughout that period, his impression was that Nina was firm on her intention to make the bequest as set out in the 2002 Will. He was involved in the presentation of a letter in 2005 (mistakenly dated 2000, amended by hand) to a minister of the PRC Government inviting the latter to be one of the persons in charge of the Plaintiff. In March 2006, Nina requested him to follow-up the matter when she indicated her wish to donate US$2 million to a training programme for PRC officials at the George Washington University. Stephen Lau did so in May 2006 when he visited Beijing. Through an ex-official formerly working at the State Council, he got a reply that the minister could not decide whether to take up the invitation for himself. He relayed that to Nina shortly afterwards.

51.  The evidence of this witness, which I accept to be true, indicates that up to mid-2006, Nina was serious about the 2002 Will. His evidence also rebuts the suggestion of the 1^st Defendant that the 2002 Will was only a device of Nina to enlist help from the Central Government in her probate litigation against her father-in-law.

52.  The siblings were well aware of the charitable intention on the part of Nina. Apart from their involvement in some of the works of the Plaintiff as deposed by them, Nina had made know her intention to bequeath everything to charity upon her death even before her probate litigation with her father-in-law[16]. They gave evidence as to Nina’s continued interest and concern with charitable works after she won the probate case in the Court of Final Appeal. Mrs Tong referred to Nina’s interest in exploring possible co-operation with the Community Chest, Chinese Medicine Development Foundation and Chinese Women Development Foundation in 2006. In November 2006, she asked Dr Gong to come back to Hong Kong to help her in the running of the Plaintiff. As this would involve the relocation of Dr Gong (together with her husband) from the United States, Nina had to be serious about the works of the Plaintiff on a long-term basis before making such a request to Dr Gong.

53.  The 1^st Defendant did not challenge these aspects of their evidence. It was submitted on his behalf that the discussions of Nina’s charitable intent does not mean she had not changed her mind about leaving everything to the Plaintiff since the discussions did not relate to what would happen after Nina’s death. I cannot accept this submission. It is based on an inadequate and selective interpretation of the evidence, in particular placing undue emphasis on a small part of the evidence of Dr Gong as to her discussions with Nina.

54.  It was understandable that there was no explicit discussion on what were to happen after her death when Nina, with a strong will to live, was fighting hard to survive. But the significance of these discussions in the overall picture is that Nina continued to exhibit a firm motivation in charitable works and associated them with the Plaintiff even after the end of the probate litigation and her execution of the document in October 2006. This is inconsistent with the 1^st Defendant’s theory of Nina’s charitable intent being geared to her ulterior motive concerning the probate litigation.

55.  Further, if the intention of Nina were to appoint the 1^st Defendant as her successor with a view that he should continue with her good works after her death (as he testified in his evidence on her oral instructions to him after she handed him the 2006 Will), one would have expected Nina to ask the 1^st Defendant to assist her in running the affairs of the Plaintiff instead of turning to her sisters.

56.  Thirdly, the evidence of these siblings (and that of Stephen Lau) contradicted the 1^st Defendant’s assertion that Nina paid very little attention to the Plaintiff as she did not find it important or significant[17]. Here, we also have the evidence of Dinly Au on Nina’s instructions as to the change in the constitution of the board of Plaintiff rebutting the 1^st Defendant’s suggestion that Nina did not intend the Plaintiff to continue with its operation after her death. 

57.  Dinly Au testified as to Nina’s concern about the make-up of the board of governors of the Plaintiff in March 2007 and how she gave instructions as to the appointment of her siblings shortly prior to her death. According to her evidence, in February 2007 Nina’s godson proposed changes to be made in the board of the Plaintiff, including adding him to be one of the directors. Dinly Au, after consulting Mrs Tong, sought instructions from Nina on 5 March 2007. Nina was very concerned and instructed her not to proceed with that proposal. Nina emphasized that the Plaintiff was very important and apart from adding her siblings as directors[18], no change should be made. On 31 March 2007, she confirmed with Nina the addition of her siblings as directors of the Plaintiff. She prepared the minute on 2 April (though it was dated 30 March) and it was then signed by Joseph Leung and the two other directors. Dinly Au reported to Nina on 2 April 2007 that the reconstitution of the board of the Plaintiff had been done. She also informed the siblings of their appointments.

58.  Mr Mill submitted that Dinly Au was a biased witness who was willing to give untruthful evidence. Counsel reminded the court of her evidence about her mistake as to the source of the copy of letter from Nina to Mr Jia produced to the court. It was submitted that her explanation to the court as to how she made the mistake was patently untrue.

59.  The submission of Mr Mill was directed mainly at Dinly Au’s evidence about Nina’s health[19]. But I take it into account in assessing the reliability of Dinly Au’s evidence on the change of the board of the Plaintiff. Mr Mill cross-examined Dinly Au about this part of her evidence as well. But the high water-mark of his cross-examination in this aspect was its apparent inconsistency with her evidence on the RCG transaction. It turns out that inconsistency is more apparent than real since Dinly Au only came to know of that transaction on 2 April 2007.

60.  In respect of the events pertaining to the change in the composition of the Plaintiff’s board, Dinly Au’s evidence is corroborated by the evidence of Mrs Tong[20]. Dinly Au also produced a piece of contemporaneous note setting out the proposal of the godson and recording that she had taken instructions from Nina on 5 March 2007[21]. Even though Mr Mill also suggested the siblings to have exaggerated their evidence to suit their purposes, I do not think he went so far as saying that Mrs Tong and Dinly Au conspired together to make up a story about the request of the godson and the response of Nina. It was never suggested by counsel to these witnesses that Nina did not give such instructions on 5 March. As regards the confirmation on 31 March, Dinly Au and Mrs Tong agreed that it was Dinly who did the talking whilst Nina only nodded her head to indicate her agreement. Dinly was satisfied that Nina understood what she was confirming. That was also good enough for Joseph Leung who signed the minute on 2 April.

61.  For the purpose of this trial, I do not think it is necessary to consider at great length what happened on 31 March. As far as what actually happened, I accept the evidence of Dinly Au and Mrs Tong on events leading to change of the Plaintiff’s board. The most important thing is that, even putting aside what happened on 31 March, Nina showed great concern about the Plaintiff on 5 March when she was told about the proposal of her godson and said the Plaintiff was very important.

62.  All these show that right up to March 2007 Nina apparently still intended the Plaintiff to continue with the charitable works she had started and to pursue the setting up of a prize similar to the Nobel Prize. This can only be materialized and meaningful if the 2002 Will was regarded by her as remaining in force. On the other hand, all these would be inexplicable if all her estate were to be given to the 1^st Defendant according to the tenor of the 2006 Will.

63.  Apart from the media coverage of Nina’s 2002 Will in Hong Kong, she also had interviews in the mainland regarding her charitable intentions. In one of such interviews, she even made a statement that she celebrated her Valentine’s Day in the mainland because she regarded those benefited from her charitable works as her valentines. As late as 4 January 2007, Nina wrote a letter to a Vice Premier of the PRC reiterating her everlasting intention to contribute to the welfare of the nation by continuing with her charitable works. 

64.  If Nina had revoked the 2002 Will and replaced it with a will giving her entire estate to the 1^st Defendant, that would be a complete departure from her publicly avowed charitable intention. It would also be a complete turnaround of what she had led her siblings and those in Chinachem to believe to be her testamentary wish. She would have been putting up a large-scale farce up till the very last stage of her life. Did she do that? The 1^st Defendant said she did because (1) her charitable bequest in the 2002 Will was merely a public image enhancement exercise and her donations to Chinese entities were her efforts to garner assistance from the Central Government concerning the probate dispute. Thus, after the dispute had ended in her favour, it was not surprising that she changed her mind[22]; and (2) she loved him so much that she wanted to give him everything[23]. I shall deal with (2) later. But I can dispose of (1) at this juncture.

65.  To support his case on (1), the 1^st Defendant relied on,

(a)     His own evidence as to what Nina told him as regards the 2002 Will;

(b)    A letter written by Nina to the Procurator General of the PRC on 13 September 2005;

(c)     The contrast between Nina’s donations prior to September 2005 (when she won her case in the Court of Final Appeal) and those after that date;

(d)    The lack of action on the part of Nina to re-organize the Plaintiff to cater for the implementation of the 2002 Will or to invite the various authorities specified in the 2002 Will to take part in the supervision of the Plaintiff.

66.  Though he was not involved in the drafting and preparation of the 2002 Will, 1^st Defendant said he was told by Nina of her wish to enhance her public image so that the Chinese government would support her in her probate litigation. He said in his witness statement[24],

“I therefore believe that Nina made the 2002 Will at least in part as a temporary expedient in order to please the Chinese government by encouraging them to believe that she would give away her money. I was doubtful then that the Chinese would or could intervene usefully on Nina’s behalf in the litigation, but it was clear to me that Nina had such a belief.”

67.  In the next section discussing the relationship between Nina and the 1^st Defendant, I shall have more comments on the credibility of the 1^st Defendant. In a nutshell, I do not find him to be truthful.

68.  Even the 1^st Defendant acknowledged readily that such a temporary expedient would not work insofar as its impact on the probate litigation is concerned. I do not believe Nina was so naïve to entertain such a belief. Further, the 1^st Defendant testified that after her arrest in 2002, Nina thought that her telephone might have been tapped and she had to be cautious about her communication with the 1^st Defendant. It would be foolhardy for Nina to tell the 1^st Defendant such things over phone notwithstanding precautions being taken.

69.  As discussed earlier, Nina’s charitable works and her desire to help those in needs started well before the probate dispute and continued afterwards. Though the provision in the 2002 Will can be said to be the ultimate act of charity, even before that there had already been worldwide recognition of Nina as a philanthropist. As mentioned, she remained enthusiastic about the works of the Plaintiff and the 2002 Will after the end of the probate dispute. I do not find any sound basis for suggesting that the making of the 2002 Will was a public image enhancement exercise with a view to procure support in her probate litigation.

70.  Regarding the letter to the Procurator General of the PRC, it was delivered on 13 September 2005. The Court of Final Appeal hearing took place from 11 to 22 July 2005. The judgment was handed down on 16 September 2005. Even though the last paragraph of the letter referred to oppressions from some dark force and appealed to the Procurator General to urge the Secretary for Justice to protect people in a fair and just manner, that could not possibly be referring the probate litigation. I do not think the letter supported the 1^st Defendant’s assertion as to the tainted purpose of the 2002 Will.

71.  Whilst the amount of donations made in 2006 was less than those in the previous years, as outlined above, Nina continued to be involved in the exploration of new charitable works. Given the deterioration in her health in the second half of 2006, I do not find the reduction in donation in that year to be of significance. Further, she made a decision to donate $30 million in 2007. For reasons already given, Mr Mill failed to persuade me that this donation should not be regarded as evidence of a continued charitable intent on the part of Nina after the end of her probate dispute.

72.  Mrs Tong was cross-examined about the steps taken by Nina to enlist the agreement of the various persons mentioned in the 2002 Will to act as the supervisory body. She said Nina told her approaches had been made. Mr Mill submitted that her evidence could not be believed because nothing in writing was produced to substantiate that. Mrs Tong did produce the letter of September 2005 to the Procurator General. But Mr Mill said it was not quite in line with the provisions of the 2002 Will. With respect, I do not accept that such approaches had to be evidenced in writing. To the contrary, it is more likely that initial approaches were done informally and orally. Further, given the nature of matter, since the 2002 Will would not take effect until the death of Nina, it would be difficult to anticipate who would be the bearers of the public office mentioned in the 2002 Will. Hence, I do not find it surprising that there was not much written evidence.

73.  Even though strictly speaking, the 2005 letter was not an approach to one of the personnel identified in the 2002 Will, it was evidence of Nina’s approach to a high official to supervise the works of the Plaintiff. The evidence is corroborated by the evidence of Stephen Lau as to follow-up in that regard. Such approach was in line with the spirit of the 2002 Will putting the Plaintiff under the supervision of several high level public personnel.

74.  After due consideration of Mr Mill’s submissions, I reject the first limb of the 1^st Defendant’s case as to why Nina would replace the 2002 Will by the 2006 Will. I can now turn to the second limb, viz. Nina loved him so much that she wanted to give him everything. That involves the examination of the relationship between Nina and the 1^st Defendant.

The introduction of 1^st Defendant to Nina 

75.  Nina came to know the 1^st Defendant through the introduction of Gilbert Leung in 1991. At that time, Gilbert Leung was a member of the Legislative Council.

76.  He gave evidence about the circumstances leading to such introduction. He himself came to know the 1^st Defendant through Abraham Razzack and Yip Wan Tak in early 1992. The 1^st Defendant was introduced to him as a Fung Shui master. Gilbert Leung sought Fung Shui advice from the 1^st Defendant in respect of the criminal charges he then faced. Gilbert Leung reckoned that the 1^st Defendant was a fairly popular Fung Shui master in a fairly exclusive circle with many famous clients.

77.  Gilbert Leung had business relationship with Nina. He said the 1^st Defendant asked him to introduce Nina to him and he claimed that he could help Nina find Teddy Wang. The 1^st Defendant told Gilbert Leung that Teddy was wounded and was in a remote island on the east side of Hong Kong waters. Gilbert Leung told Nina the same. A lunch meeting at the New Snow Garden Restaurant was arranged.

78.  At the meeting which took place on 12 March 1992, according to Gilbert Leung’s evidence, the 1^st Defendant repeated to Nina what he told Gilbert Leung as to the whereabout of Teddy. Nina believed him and asked him to help.

79.  The 1^st Defendant then asked Gilbert Leung to take him on his boat to various temples on the east side of Hong Kong waters. The 1^st Defendant chose a temple at Kau Sai Chau on account of its good Fung Shui and asked Nina to go there to pray. At the temple, the 1^st Defendant repeated to Nina his message that he could rescue Teddy. They went to the temple again several times.

80.  Gilbert Leung said the 1^st Defendant appeared to be able to exert great influence over Nina. He referred to the design of Chinachem’s logo by the 1^st Defendant and the change of layout at the Chinachem’s office on his suggestion. He was aware that the 1^st Defendant paid frequent nighttime visits to Nina.

81.  But Gilbert Leung did not think they had a love affair. He said  Nina was very busy in the daytime and it was not surprising that the 1^st Defendant had to visit her at night. He knew Nina missed her husband and her purpose of getting to know the 1^st Defendant was to locate Teddy. He also knew the wife of the 1^st Defendant and he found it surprising and difficult to understand how the 1^st Defendant could develop an intimate relationship with Nina.

82.  Gilbert Leung testified that the 1^st Defendant continued to provide Fung Shui services to him and other clients after he was introduced to Nina. He told the court the 1^st Defendant advised him to burn real banknotes for Fung Shui rituals, dig a hole at his house, smear chicken’s blood and put jade pieces and ancient coins into it. The 1^st Defendant wrote him Fung Shui poems. All these were done with a view to getting him out of trouble regarding his criminal charges. But at the end, he was convicted and imprisoned. Despite that, Gilbert Leung said he still trusted the 1^st Defendant. When the 1^st Defendant visited him at the prison in about mid July 1993, according to Gilbert Leung’s evidence, the 1^st Defendant suddenly asked him to sign some blank pieces of paper to enable the former to manage his properties and assets. However, the papers were confiscated by the staff of the Correctional Services.

83.  He also testified that the 1^st Defendant provided Fung Shui advices to Nina in terms of the design of the logo of Chinachem, the move of her residence to the Chinachem Golden Plaza and changing the setting at her office.

84.  Gilbert Leung said the 1^st Defendant had told him that he had studied medicine in Toronto, Canada and he had to quit because one of his patients died of wrong treatment and he had to return to Hong Kong without having obtained a degree in medicine. It is Gilbert Leung’s evidence that he had relayed the 1^st Defendant’s medical training to Nina. As far as I can see, this is only of peripheral relevance though the Plaintiff suggested that this was a gimmick of the 1^st Defendant to gain the trust and confidence of Nina.

85.  The other aspects of Gilbert Leung’s evidence are basically germane only to the general credibility of the witnesses and I do not propose to go into the details.

86.  The 1^st Defendant disputed many aspects of the evidence of Gilbert Leung. However, he accepted the following in his evidence,

(a)     He was introduced to Nina by Gilbert Leung at a lunch meeting at a restaurant (though he said the introduction was not made at his request);

(b)    He was introduced as a Fung Shui master and he mentioned to Nina about the Celestial Atlas with a hope to get Fung Shui business from Nina during the meeting. He also agreed that Nina had enquired about using Fung Shui to locate Teddy (though he said he had not suggested that this could be done);

(c)     He provided Fung Shui services to Gilbert Leung and continued to do so until the latter’s imprisonment in 1993. He gave advice to Gilbert Leung regarding burning of banknotes and digging of a hole for Fung Shui at his residence for Fung Shui purpose  (though he disputed about the remuneration he received, the value of the banknotes to be burnt and certain details regarding the Fung Shui rituals he performed for Gilbert Leung);

(d)    Digging of holes were ideas introduced by him to Nina and he had supervised digging of holes for her for Fung Shui purposes in accordance with the Celestial Atlas (though he said this was not for the purpose of locating Teddy and subsequently Nina adopted this as a façade to facilitate his frequent visits);

(e)     Burning of banknotes was also introduced by him to Nina (though he regarded it more as a philosophical idea than a Fung Shui matter);

(f)     He wrote poems or riddles on the back of banknotes for Gilbert Leung (though he said it had no Fung Shui effect and it was only done to satisfy the demand of Gilbert Leung);

(g)     He designed the new logo for Chinachem group at Nina’s request (though he said he had not told Gilbert Leung);

(h)     He and Nina did not act in an intimate manner in front of Gilbert Leung (though they secretly maintained an intimate relationship since March 1992).

87.  For the purposes of this trial, I do not find it necessary to resolve each and every dispute of facts between the 1^st Defendant and Gilbert Leung. As far as issues having direct relevance to the initial relationship between Nina and the 1^st Defendant are concerned, the evidence of the 1^st Defendant outlined above already shed some light on it. Also I find it helpful to resolve the following,

a.      Whether Gilbert Leung introduced the 1^st Defendant to Nina at his request;

b.      Whether the 1^st Defendant went on various boat trips with Gilbert Leung to chose a temple to conduct ceremony for locating Teddy and eventually chose the temple at Kau Sai Chau for that purpose;

c.      Whether the 1^st Defendant continued to practise as a Fung Shui master after he knew Nina.

88.  For the sake of assessing the general credibility of witnesses, I would also resolve,

a.      Whether the 1^st Defendant informed Gilbert Leung that he had medical training;

b.      Whether the 1^st Defendant requested Gilbert Leung to signed blank pieces of papers in prison to enable the former to manage his properties.

89.  Mr Mill cross-examined Gilbert Leung at some length in respect of his involvement in a transaction in June 2007 between a company in the Chinachem Group as vendor and Land Perfect Limited as purchaser regarding certain lots in Ng Tung Chai Village, Tai Po. Gilbert Leung had an interest in the purchaser. Gilbert Leung’s first witness statement was signed on 15 May 2007. The insinuation was that the sale was an advantage given to Gilbert Leung in exchange for his giving evidence for the Plaintiff.

90.  Since this is a collateral issue relevant only to credit, I do not wish to overburden this already lengthy judgment with disproportionate details. In my judgment, the 1^st Defendant did not have a solid ground for suggesting an advantage was given to Gilbert Leung. There was a valuation report showing that the sale was not conducted at an undervalue and Joseph Leung had explained why the sale was in the interest of the Chinachem Group. Gilbert Leung gave some promotional materials to potential investors painting a rosy picture as to the profitability of a columbarium to be built on these lots. But as explained by Gilbert Leung, the figures in the materials were subject to many contingencies. And subsequently they were found to be unrealistic.

91.  In my view, for present purposes, it is more germane to test the evidence of Gilbert Leung and the 1^st Defendant in terms of inherent probabilities.

92.  On the introduction of the 1^st Defendant to Nina, I accept the evidence of Gilbert Leung that he made the introduction at the request of the 1^st Defendant. Even on the 1^st Defendant’s own evidence, he was hoping to get business from Nina at the first meeting. During that time, after the cessation of the Fung Shui school, his only source of income was his Fung Shui practice. He was getting Fung Shui business through the personal connections of his clients. For example, he was introduced to Gilbert Leung through Yip Wan Tak, whom in turn was introduced to him by Madam Wong Lai Ming. On the other hand, Gilbert Leung did not have anything to gain by making the introduction.

93.  Having been introduced, the 1^st Defendant had to impress Nina. Again on his own evidence, Nina was trying locate Teddy. Thus when she asked him whether he could use his Fung Shui to locate Teddy, I do not believe the 1^st Defendant told her that it was not possible. During the course of his evidence, I can observe that the 1^st Defendant was good at grasping the thinking of the others and making responses accordingly. That was probably why some people said he was good at reading people’s faces. He was able to tell what other people wanted and if he wished he could say or do whatever it took to impress them.

94.  Gilbert Leung’ evidence was that at that meeting the 1^st Defendant was much more positive in promoting his ability in locating Teddy. According to Gilbert Leung, the 1^st Defendant told Nina he was confident in locating Teddy who, the 1^st Defendant said, was wounded and at a remote island on the east side of Hong Kong waters.

95.  I think in this part of his evidence Gilbert Leung had exaggerated the optimism expressed by the 1^st Defendant about locating Teddy during the first meeting. I do not believe the 1^st Defendant actually specified that Teddy was on a remote island. If he had been that specific, steps would be taken to locate Teddy at the various islands instead of locating temples for ceremony to be conducted.

96.  However, neither do I believe that the 1^st Defendant was as passive as he testified. As I said, he was trying to impress Nina and he knew that her concern was the location of Teddy at that time. I believe he exploited that to try to obtain business from Nina. After all, his purpose of getting to know her was to get business. Thus, on all probabilities, he took the opportunity and said something to generate a hope on the part of Nina. He needed not be as specific as testified by Gilbert Leung in order to achieve that.

97.  My finding is that the 1^st Defendant succeeded in impressing Nina that his Fung Shui method might work in locating Teddy and Nina did engage his service for that purpose. What services did the 1^st Defendant provide as a Fung Shui master? In order to show Nina that he was making an effort, the 1^st Defendant had to do something. He said he made some diagrams according to the Celestial Atlas and in around May or June 1992, holes were dug for the first time. I shall come to that later. But in addition to that, I find that he also located temple purportedly with good Fung Shui so that Nina could pray for the return of Teddy there. He said in his evidence he did advise Nina to pray at temples. And I find that to be the reason why there were boat trips to locate temple for ceremony as testified by Gilbert Leung.

98.  Gilbert Leung said the 1^st Defendant recited a poem to express the view that the temple at Kau Sai Chau was a place of good Fung Shui. Though 1^st Defendant denied he had been looking for temples, he could not be sure whether he had used that poem to describe Kau Sai Chau when he made his 4^th Supplemental witness statement. When he came to testify in the witness box on Day 29, he denied he had said that. But he agreed that it was a common Fung Shui phrase.

99.  The 1^st Defendant also accepted that in a boat trip to this temple in mid August 1992, Nina introduced him to her sister Mrs Tong as her Fung Shui master. As explained later, my finding is that at that stage the 1^st Defendant did not have any intimate relationship with Nina and he was really acting as her Fung Shui master. Thus, I do not believe when Nina made that introduction to her sister, it was intended to be a façade to hide the true relationship between her and the 1^st Defendant.

100.  The evidence of Wang Tian Yi corroborated Gilbert Leung’s evidence that the 1^st Defendant did provide Fung Shui services to Nina for the purpose of procuring the return of Teddy. He said Nina told him so.

101.  Further, the 1^st Defendant produced a file containing documents concerning Teddy in discovery. He said the file was given to him by Nina in 1993 when he asked her how Teddy was kidnapped. She said he would know after reading the file. The file contained several documents including correspondence with Hong Kong Police and other authorities regarding efforts to locate Teddy. The materials in the file were very detail and I do not think Nina would hand the file to the 1^st Defendant simply to satisfy his casual inquiry about Teddy. I agree with the submission of the Plaintiff that the file was supplied by Nina to facilitate what she believed to be the 1^st Defendant’s efforts in locating Teddy. Thus, at least up to 1993, the 1^st Defendant provided Fung Shui services to Nina in connection with the search for Teddy.

102.  In this connection, I reject the evidence of the 1^st Defendant that he did not choose the temple and these boat trips were arranged by Nina just for fun. For reasons to be elaborated later, it is my finding that the 1^st Defendant did not start to have an intimate relationship with Nina as early as he testified. Up to the time of the first boat trip to the temple at Kau Sai Chau, I believe he was still trying to impress Nina by performing Fung Shui services for her. Given the concern of Nina at that time, the Fung Shui services he performed had to be the procurement of the return of Teddy.

103.  In so finding, I am not saying that the trips to the temple after the 1^st Defendant had formed an intimate relationship could not have been trips for fun. One trip was video-taped and the 1^st Defendant produced that tape as evidence. That was a trip in mid 1993.  The 1^st Defendant said for the first time in the witness box that that particular trip was to commemorate their relationship before the deity. After watching the tape several times, I still cannot tell whether Nina was praying for the return of Teddy in the temple or praying for her relationship with the 1^st Defendant on that occasion. But I do not think what happened on that occasion shed much light on boat trips undertaken in 1992 when the relationship between the 1^st Defendant and Nina was quite different.

104.  On the continued practice of Fung Shui by the 1^st Defendant after he knew Nina, he admitted that he had provided services to Gilbert Leung up to the time when the latter was convicted. Gilbert Leung gave evidence that the 1^st Defendant was providing Fung Shui services to other famous people up to 1993. The 1^st Defendant denied that. He said he ceased practice soon after he knew Nina. He referred to the lack of Fung Shui appointments in the latter part of 1992 in his diary to support him.

105.  On this issue, I prefer the evidence of Gilbert Leung. I do not derive much assistance from the diary. There were only a few entries in the latter part of 1992. This suggests that the 1^st Defendant simply adopted another means to record his appointments, be it Fung Shui appointments or otherwise. The diary shows that he had quite a number of Fung Shui clients. After they knew each other, he mostly saw Nina during night time. There was no reason why he could not continue with his practice during the daytime. Since it is my finding that his relationship with Nina did not turn into an intimate one until September 1992, there was no reason why he did not maintain his practice and reputation as a Fung Shui master in order to make a living up to that time. Even before the disclosure of his diary, Gilbert Leung had named the clients the 1^st Defendant was serving in 1992 in his first witness statement. He must have learnt that from the 1^st Defendant.

106.  In the witness box, Gilbert Leung recalled that at the wedding banquet in September 1992, the 1^st Defendant relayed to him about the provision of Fung Shui service to a particular client and the matter was then ongoing. Quite a number of guests at the banquet were his Fung Shui clients. If he had ceased his Fung Shui practice for a while by then, why did he invite them to his banquet?

107.  I think the 1^st Defendant was hiding the truth in this respect in order to give the court an impression that he was not much a Fung Shui master. I do not believe him. There is ample evidence showing that he was practising Fung Shui and quite well sought after. I do not believe those clients (and many of them were shrewd businessmen or women or professional people and some were intelligent and famous political figures) would have engaged him (and some even introduced him to others) if the 1^st Defendant did not demonstrate a good working knowledge of Fung Shui. Neither do I believe that he would be able to teach in Fung Shui classes to Fung Shui practitioners if he did not have some reputation as a Fung Shui master and show some knowledge on the topic. His assertion that those students actually had to teach him back is, in my view, quite unbelievable.

108.  Turning to the issue whether he had told Gilbert Leung that he had medical training in Canada, I also prefer the evidence of Gilbert Leung to the evidence of the 1^st Defendant. In this connection, Wang Tian Yi testified that Nina had told him the 1^st Defendant was a doctor from Canada. Dr Kung also testified to the same effect. There was no reason why Nina would do so unless she was so told, either by the 1^st Defendant or Gilbert Leung. As far as Gilbert Leung is concerned, I cannot see any reason why he would introduce the 1^st Defendant as having medical training in Canada to Nina unless he had been so told by the 1^st Defendant.

109.  The introduction of the 1^st Defendant in the Georgetown University document referred to him as having received university education in biological engineering in Canada. I find marked failure on the part of the defence to provide a satisfactory explanation as regards how such introduction came to be furnished on behalf of the 1^st Defendant. I believe the 1^st Defendant connived in such false pretence despite his protestation to the contrary. This illustrates that the 1^st Defendant had a propensity to enhance his image by some non-existent qualification.

110.  On the signing of blank pieces of paper in prison, it is unlikely that Gilbert Leung was so naïve so as to entrust the 1^st Defendant with the management of his affairs after the 1^st Defendant’s Fung Shui failed to help him with his criminal charges. I am not satisfied that the 1^st Defendant had made such request.

The relationship between Nina and the 1^st Defendant

111.  Many articles and objects of personal nature were produced by the 1^st Defendant as gifts from Nina to prove he had a close relationship with her. He also produced audio recordings, photographs and videos taken and some notes written by Nina to him. He said these photographs and videos represented a small part of those taken throughout the relationship because most were destroyed at the request of Nina when she was investigated in the previous probate dispute.

112.  When the case was opened, Mr Chang informed the court that the Plaintiff accepted that the materials produced by the 1^st Defendant indicate there was an intimate relationship between him and Nina. But the Plaintiff did not accept the details of the relationship were as set out in the 1^st Defendant’s witness statements[25].

113.  In the course of this trial, witnesses and counsel had used different descriptions[26] to depict the relationship between Nina and the 1^st Defendant whilst the 1^st Defendant maintained that it was a relationship on par with that between wife and husband. He said Nina addressed him as “hubby pig” and “hubbykins”[27]. I do not find it helpful to be involved in a debate about whether a particular general description accurately reflects every aspect of that relationship. Indeed it would be dangerous to generalize. For the purpose of this judgment, the crucial questions about the relationship are,

(a)     Whether the 1^st Defendant performed services for Nina as a Fung Shui master and whether such services continued in parallel with an intimate relationship;

(b)    How did the relationship evolve up to October 2006 when it is alleged that Nina decided to give the 1^st Defendant everything.

And I shall focus on these issues.

114.  The Plaintiff also disputed the timing as to the commencement of intimate relationship. As this factual issue has a bearing on issue (a), I shall first address it.

115.  The 1^st Defendant initially pleaded in his original Rejoinder that his intimate relationship with Nina started in September 1992. He also pleaded that it was about three months after he was introduced to Nina that the relationship turned into a romantic and sexual one.  However, by an amendment made in February 2009, he brought forward the commencement of intimate relationship to April 1992. As he was only introduced to Nina by Gilbert Leung in March 1992, in effect the 1^st Defendant said he developed an intimate relationship with Nina within a month after they came to know each other.

116.  That assertion has to be assessed against the fact that he married his wife on 9 March 1992 (though they had been living together since 1990). They held their wedding banquet on 28 September 1992.  His wife testified that it was in October 1992, after the wedding banquet that the 1^st Defendant started bringing back large sums of money, viz. more than $1 million[28]. She said she understood that in the early days, when the 1^st Defendant brought back money from Nina, it was payment for his Fung Shui advice to Nina[29]. The 1^st Defendant said his wife had asked him in July 1992 whether he was having an affair with Nina and he lied to her that he only provided Fung Shui and massage service to Nina[30]. In contrast, the wife said she queried the 1^st Defendant’s relationship with Nina about half a year after April[31]. She was reluctant to accept in the witness box that the 1^st Defendant had told her he supplied massage service to Nina[32]. She discerned that the 1^st Defendant increased his visits to Nina in September 1992[33].

117.  She recalled meeting Nina two times before they had a trip to Beijing together in August. Those two occasions were visits by Nina to her home, the first one at Shatin whilst the second was in July 1992 after they had moved to a new home[34]. In August 1992, there was also a boat trip organized by Nina where she and the 1^st Defendant attended as a couple and Mrs Tong met them for the first time. If the 1^st Defendant were already having an intensely affectionate affair with Nina since April as depicted by him in his evidence[35], it would be impossible that his wife did not notice it.  If that were the case, I believe it would also be impossible for the 1^st Defendant to convince his wife to go on the trip to Beijing with Nina in August 1992.

118.  Further, up to mid 1992, Nina was staying at the living quarter of Chinachem Golden Plaza with Mrs Tong and her daughter. After the kidnapping experience, she did not want to be alone for security reasons. It was only after the enhancement of security measures in late 1992 that Mrs Tong and her daughter reduced their stay there. Hence, it was high likely for the 1^st Defendant and Nina to develop a secret affair at the living quarter in April 1992 without the knowledge of Mrs Tong.

119.  When the 1^st Defendant testified in court, he said he first had sexual intercourse with Nina around May 1992[36]. When confronted with his pleadings, he said it was late April or early May. He claimed he remembered the date by reference to some entries in his diary. When it was pointed out to him that the relevant entries were from 31 March to 2 April, he corrected himself again and said the event occurred on 3 April[37].

120.  When he was cross-examined about the departure from the original plea in the Rejoinder that the event occurred in September, he explained this was because after 3 April, sexual intercourse did not take place very frequently until it increased in August and September[38]. 

121.  This explanation contradicted his evidence in his witness statement. He said since the first sexual intercourse, he saw Nina every night except Sundays. Whenever they were together, he would massage her and they would then engage in loving and passionate sex[39].

122.  The 1^st Defendant said the entries in the diary assisted him in recalling the date because the entries showed he was “out” for those 3 days. He testified that it was actually a period of 3 days when he did not see Nina after he sensed that things were developing too rapidly between him and Nina. The three days separation was not mentioned at all in his witness statement. Nor were there any reference to the three entries in his diary.  Instead, he said in the Chinese version of his statement that when he hesitated about his relationship, Nina called him soon afterwards and asked him to go to her living quarter[40].

123.  When he was confronted with this discrepancy in cross-examination, he tried to excuse himself by saying that this was because he did not have the diary when he prepared his witness statement[41]. But this excuse is demonstrably false because he specifically referred to this diary at paragraph 10 of the witness statement.

124.  I find on the evidence before this court that the 1^st Defendant did not commence an intimate relationship with Nina until September 1992. I reject the 1^st Defendant’s evidence as to how the relationship had rapidly developed after their first meeting. I believe the 1^st Defendant did not provide any massaging service to Nina until some time in September. As mentioned, this is pertinent to the question whether he had acted as a Fung Shui master for Nina. The 1^st Defendant’s case is that he had never provided Fung Shui services to Nina and actually Nina did not like him to practice Fung Shui[42]. He said he ceased to practise Fung Shui soon after he knew her. He said all the apparent rituals of Fung Shui conducted by him on behalf of Nina and introduction of him as her Fung Shui master by Nina were a façade to facilitate the two of them staying close to each other[43].

125.  There are several matters which do not sit well with such claim of the 1^st Defendant. First, the 1^st Defendant was known to be a Fung Shui master and he was introduced to Nina as such. As he himself admitted, Nina expressed an interest in securing his Fung Shui service for locating Teddy. Second, there is evidence that he continued to conduct himself as a Fung Shui master and provided services to other clients even after he knew Nina. Third, apparently Fung Shui rituals were performed by him for Nina soon after they knew each other.

126.  As regards the first matter, the 1^st Defendant gave evidence to the effect that he was no Fung Shui master and had little knowledge about the subject. I have already explained why I find such evidence to be disingenuous.

127.  In this respect, it is Raymond Chu’s evidence that he came to know the 1^st Defendant through the introduction of Yip Wan Tak in 1992. The latter introduced the 1^st Defendant as a very good Fung Shui master. In those days, Raymond Chu was a solicitor and his firm handled many conveyancing transactions for the 1^st Defendant. He was aware that the 1^st Defendant was able to buy landed properties without mortgage and he believed the 1^st Defendant obtained his money from Fung Shui services performed for Nina.

128.  As regards the second matter, the 1^st Defendant relied on his diary to support his case. Again I have explained why I do not find that credible in discussing the evidence of Gilbert Leung. Further, even on his own evidence, the 1^st Defendant continued to provide Fung Shui services to Gilbert Leung. If, as he testified, Nina did not like him to practise Fung Shui and had asked him to be distant from Gilbert Leung, and if he had no need to derive any income from Fung Shui practice, I do not see any reason why he continued to be involved in serving Gilbert Leung when he himself (according to the 1^st Defendant’s evidence in the witness box) was fully aware that his so-called services were ineffective.

129.  As regards the third matter, he said intimate relationship developed soon after he knew Nina. He asked the court to believe that he only provided massage to her instead of any Fung Shui advice. I have explained why I reject his evidence and set out my finding as to the commencement of intimate relationship.

130.  Counsel for the Plaintiff submitted that the 1^st Defendant deliberately pushed forward the commencement of such relationship to give credence to his case that he at no time acted as a Fung Shui master for Nina.

131.  I agree with that submission. Between March and September 1992, the hole-digging exercises had begun in May 1992. The 1^st Defendant said so in his witness statements[44]. Hence, he had to find an explanation as to why these exercises executed under his supervision ostensibly for Fung Shui purposes[45] were actually something else.  He came up with the explanation that these exercises were Nina’s idea as she wanted to test the theory in the 1^st Defendant’s Fung Shui book, the Celestial Atlas. And he maintained that it was not done for the purpose of locating Teddy. According to him, it was only done to improve her luck generally.

132.  Such an explanation can only hold water so long as the court accepts that by the time these exercises commenced the 1^st Defendant had already been transformed from a Fung Shui master (the capacity in which he was introduced to her) to a lover in the eyes of Nina. If intimacy were yet to be developed in May 1992, the 1^st Defendant could only be acting as a Fung Shui master when he supervised the exercise at that time. In that case, what was said by him to be ostensible would have been the real purpose of the exercise as far as Nina was concerned.  

133.  Thus it is essential to the 1^st Defendant’s case that he already had an intimate relationship with Nina earlier than May 1992. The original plea that the close romantic and intimate relationship ran from September 1992 became rather inconvenient from his point of view. It is noteworthy that even though he had tried to explain why he recalled the date of first sexual intercourse by reference to his diary, he had not explained how he came to make “the mistake” in his original pleading. He did not tell the court how he initially pinpointed September 1992 as the commencement of intimate relationship. As mentioned, he only accounted for that by saying intimate acts increased in frequency after September, contradicting what he said in his own witness statement.

134.  Hence, not only do I find the 1^st Defendant’s evidence about the commencement of his intimate relationship with Nina incredible, I also find him tailoring his case to suit his own purposes rather than giving evidence of truth.

135.  I have alluded to the location of temples by the 1^st Defendant as a Fung Shui service performed by him for Nina. I also believe the hole-digging exercises were part of the Fung Shui services provided by him. As this activity commenced prior to the development of intimate relationship, there was no need to maintain any façade. The Fung Shui purpose of the activity was real rather than ostensible. Indeed it would be difficult to see what other purposes could there be for the digging of holes supervised by a Fung Shui master (and the 1^st Defendant had no other capacity in May 1992). Even though there was no evidence of the 1^st Defendant wearing any ceremonial gown or saying any prayers or burning any offerings, incense, or joss sticks or candles, there is no suggestion that the holes were dug for any functional purposes.

136.  At the introduction meeting, Nina was interested in using the 1^st Defendant’s Fung Shui techniques to locate Teddy. In May 1992, before any intimate relationship developed, the only purpose for which Nina would engage his service was to locate Teddy. Even after September 1992, Nina told Wang Tian Yi as well as Wong Leung Woon in the 1990’s that the purpose of the hole-digging was for locating Teddy. She asked Wong Leung Woon to keep the hole-digging confidential. Thus the exercises could not be performed for the purpose of bolstering the image of the 1^st Defendant as a Fung Shui master in maintaining a façade to the underlying intimate relationship.

137.  I do not believe that the exercises were for the purpose of testing the applicability of the teachings in the Celestial Atlas in improving Nina’s general luck. According to the evidence of Wong Leung Woon, the hole-digging activities were very extensive involving a lot of labour and time. They were conducted at different Chinachem sites and lasted up to 1999. If the exercises were for testing, I do not believe that they would last that long and extended over so many sites. Further, in order to be meaningful as a test, there had to be some specific criteria and naturally in the 1990’s the location of Teddy would be the primary objective of Nina. When the 1^st Defendant was cross-examined about it, he had to resort to his lame excuse of the exercises, viz. to maintain a façade for their intimate relationship[46].

138.  Under cross-examination, the 1^st Defendant admitted that the idea of hole-digging was first suggested by him[47]. And we know that it first took place in May 1992 at a time, according to my finding, when there was no intimate relationship. It could not be a game for fun. I find that it was commissioned by Nina as a Fung Shui exercise for the location of Teddy.

139.  Ng Shun Mo gave evidence about Nina giving him a note written on Chun Yip Hing Lung Tong’s note paper, the 1^st Defendant’s Fung Shui school, regarding proposed dates and timings good for the sale of a Chinachem real estate development in August 1992. Nina told him that it was obtained from her Fung Shui master. Nina knew nobody else from that school and the 1^st Defendant had to be the person whom Nina referred to as her Fung Shui master.

140.  The 1^st Defendant received substantial payments from Nina in those years. He said he had received several millions of dollar from her in 1992 before September and he used some money to organize his wedding banquet. There is no concrete evidence as to the actual amounts paid and I doubt whether the 1^st Defendant had told us the true position. But there was certainly an improvement in his living standard and I believe he did receive substantial amounts from Nina (though the sums were probably not as large as those he testified in view of the evidence of his wife that he only brought back sums exceeding $1 million after October 1992).

141.  With my rejection of his evidence about the commencement of intimate relationship earlier than September 1992, I find that payments prior to September were made by Nina for his Fung Shui services. This was in line with the evidence of the wife as to her understanding as to the nature of the payments. In other words, the relationship between 1^st Defendant and Nina started off as a relationship of Fung Shui master and client on a commercial basis. And the objective of Nina in retaining the service of the 1^st Defendant was to locate her missing husband Teddy.

142.  There is no reliable evidence as to when precisely after September 1992 did the intimate relationship start. In the present context, it is not important whether it started in September or a few months later. The 1^st Defendant produced some photographs of him and Nina together in 1992 and 1993. For the purpose of this judgment, I shall proceed on the basis that intimate relationship started in September 1992.

143.  Did the development of the intimate relationship change the purpose of the hole-digging exercises in the 1990’s? In view of the following, I find that the location of Teddy remained the purpose of such exercises remained throughout those years,

(a)     For reasons given there was no other discernible purpose once the evidence of the 1^st Defendant is rejected. I do not believe they were conducted as façade to hide the intimate relationship because Nina actually wanted to keep the exercises confidential. Further, according to my findings, the 1^st Defendant had actually been acting as her Fung Shui master, there was no need to have any façade. 

(b)    Nina herself told Wang Tian Yi and Wong Leung Woon that the exercises were for the location of Teddy. She also told Mrs Tong that she used the service of the 1^st Defendant for locating Teddy.

(c)     Even after September 1992, notwithstanding the intimacy between Nina and the 1^st Defendant, she was still concerned about locating Teddy. Thus she gave the file concerning Teddy to the 1^st Defendant in 1993. Some of the holes dug in 1995 were at a site at Ap Lei Chau where Teddy’s car was found after he was kidnapped and this was the reason Nina gave to Wong Leung Woon for digging holes there. Dr Kung gave evidence about Nina’s belief that Teddy was still alive throughout 1990’s and up to 2000. She refused to let Dr Kung sell his clinic at Peace Avenue because she entertained the possibility that Teddy would turn up at that clinic after his release like what had happened in the first kidnap[48].  

144.  Apart from the digging of holes and location of temples, the 1^st Defendant also provided other Fung Shui services to Nina. He re-designed the logo of the Chinachem group in 1993. After he came up with one design, it was put up at a shopping mall, Subsequently he designed another one which was adopted by the group[49]. In connection with the first design, the 1^st Defendant wrote an explanatory note setting out the concepts underlying his design. He denied the suggestion that the note was couched in occult language. Rather he said it was about philosophy and the fate of a person’s life.

145.  He was a Fung Shui master, not an artist nor a graphic designer. Whether one describes his explanatory note as philosophy of life or occult teachings, plainly the design was not a piece of artwork commissioned for its aesthetic value. I have no hesitation in rejecting his evidence that Nina asked him to design the logo because she wished to associate with his Chun Yip Hing Lung Tong. Such an association made no sense as Nina did not want to draw attention to her liaison with the 1^st Defendant nor to advertise her belief in Fung Shui (as testified by Wong Leung Woon).

146.  Large quantities of jade pieces were retrieved by the Plaintiff from the holes dug. The 1^st Defendant admitted that the jade pieces were procured by him. He said in his evidence that the pieces were engraved with the four characters “如心如意” dictated by Nina. As one can readily see from the jade piece produced as exhibit, instead of these four characters, scripts were engraved upon it. The 1^st Defendant could not offer any explanation as to this discrepancy. Notwithstanding his evidence that he got other jade pieces in his possession which he could produce to prove himself, he did not do so. I do not believe Nina dictated these scripts to be written on the jade pieces. In my judgment, the scripts and the procurement of the jade pieces were Fung Shui services supplied by the 1^st Defendant and they were to be used in conjunction with the hole-diggings.

147.  The 1^st Defendant also performed hole-digging exercise in relation to a joint venture business of Nina in Henan. Wang Tian Yi gave evidence in connection with that. Though he himself was not present when the exercise was done, he was able to say the hole-digging was suggested by the 1^st Defendant after the joint venture was established. The objective of that was to pray for blessing as to the success of the business.

148.  The 1^st Defendant admitted he was present when this hole was dug. I notice he actually dodged the question when Mr Lok SC asked him whether he supervised the digging of the hole. He replied that both Nina and him were present[50]. If he was merely present passively without doing anything in terms of supervision of the digging of the hole, it could not demonstrate that he was a Fung Shui master which was his alleged objective of that exercise. In any event, I do not believe the 1^st Defendant’s assertion that the digging of that hole was for the purpose of demonstrating that he was a Fung Shui master so as to create a façade. I find it difficult to believe that people would not accept Nina’s introduction of the 1^st Defendant as a Fung Shui master and I fail to see why such a demonstration would be necessary.     

149.  I believe the hole digging at the factory of the joint venture business was Fung Shui service provided by the 1^st Defendant as testified by Wang Tian Yi. I prefer his evidence to that of the 1^st Defendant.

150.  Mrs Tong also gave evidence that Nina had another Fung Shui master Master Lee and his apprentice So So. She had their services for about two years after she knew the 1^st Defendant. After that Nina decided to rely on the service of the 1^st Defendant because she found his theory more appealing. Master Lee and So So ceased to provide further service to Nina until 2003 or 2004 when Nina sought their help in relation to the probate litigation. If the 1^st Defendant did not provide Nina with Fung Shui services, who else did Nina consult after she stopped  using Master Lee whom she had trusted very much?

151.  Hence, even after the formation of an intimate relationship the 1^st Defendant continued to act as Nina’s Fung Shui adviser at the same time. The 1^st Defendant testified that Nina gave him substantial amounts of money by way of gift from 1993 to 1997 set out in Schedule 1 to his Re-Amended Rejoinder. As I find that the 1^st Defendant had provided Fung Shui services to Nina during these years, some of these payments were probably payment for services, like those payments prior to September 1992. It is not necessary for the purpose of this trial to determine how much were payment for services and how much were gifts from Nina.

152.  The 1^st Defendant had three children with his wife, born between 1993 and 1998. He spent his birthdays, summer and Christmas vacations with his family. He said Nina understood that they could not and would not marry and she understood his need to be with his family. In other words, Nina was aware all the time that the 1^st Defendant would not be leaving his family and he would always be the husband of his wife and the father of his children. This was a man having a family in which she would not be a member.

153.  On the 1^st Defendant’s own evidence, Nina was jealous about his love for his family. She was shocked when he and his wife gave birth to his first son. She declined his suggestion to take his children as her god-children. According to the 1^st Defendant, she wanted to have children with him and for that purpose she underwent oestrogen stimulation treatment. Even taking such assertion on its face value notwithstanding my misgivings as to the credibility of the 1^st Defendant, it shows that Nina was amiss about the 1^st Defendant being the father of another woman’s children. Despite her treatments, the fact remains she did not have any children with the 1^st Defendant.

154.  The 1^st Defendant also said he had discussion with Nina about her coming to live with his family under one household after they have grown old. At the same time, he also told the court how his wife resented his affairs with Nina and how he worried all the time she might divorce him or make a scene at Nina’s office. From her manner of giving evidence in the witness box and what she testified to, I can sense her resentment and anger about the unfaithfulness of the 1^st Defendant. Doubtless, Nina had equally sensed that resentment as the 1^st Defendant said she had to avoid the wife of the 1^st Defendant at Pacific Place on an occasion. Apart from the visits to the 1^st Defendant’s home and the trip to Beijing before September 1992, there was no evidence of further encounter between the two ladies or Nina visiting the home of the 1^st Defendant. Neither was there any suggestion that the 1^st Defendant had brought his children to visit Nina. Ricky Chan, a brother of the 1^st Defendant, testified that the 1^st Defendant had to dash into a separate room to have telephone conversation with Nina instead of doing so in the presence of his wife[51]. I do not believe the proposition of Nina going to live with the 1^st Defendant’s family, assuming it had been mentioned (which I doubt very much), had ever been a serious one.

155.  As far as Nina was concerned, her intimate relationship with the 1^st Defendant had always been a secret which she did not want others to know. It was against such background that Nina faced the probate litigation with her father-in-law. The evidence is that she used other Fung Shui masters in relation to that piece of litigation. I believe she did not use the 1^st Defendant, not because she did not believe in his Fung Shui services (as the 1^st Defendant claimed)[52], but because it would risk the exposure of her intimate relationship with him and that might jeopardize her prospect in the probate litigation.

156.  Contacts between Nina and the 1^st Defendant were reduced during the course of the probate litigation to avoid attention being drawn to her relationship with him. Apart from telling him to destroy all the photos and videos, he said they stopped seeing each other after her arrest in 2002. This highlights the surreptitious nature and the lack of permanency in their relationship. According to the 1^st Defendant, they had conversations over the phone but Nina had to be cautious as she was worried that her phone might have been tapped.

157.  As mentioned, Nina made the 2002 Will on 28 July 2002. I have given my reasons for rejecting the 1^st Defendant’s evidence and submission that the 2002 Will was only intended by Nina to be an expedient measure to solicit assistance from the Central Government regarding her probate dispute. Instead it is my finding that the 2002 Will was the product of Nina’s charitable aspiration, an aspiration consistently held by her both before and after her probate dispute. This is also important in the consideration of the relationship between Nina and the 1^st Defendant. Even though Nina gave the 1^st Defendant substantial gifts, the 2002 Will shows that she was not prepared to give him everything as at July 2002. As far as her estate was concerned, she placed a higher regard on her charitable objectives than the 1^st Defendant. This is not surprising as she had already been very generous to the 1^st Defendant and he, according to his evidence, repeatedly assured her he was leading a very comfortable life and he had no need of her money.

158.  The 1^st Defendant was not with Nina when she was arrested in December 2002. He was in Canada. In the following years, Nina suffered several major setbacks in her life. Her appeal in the probate case was heard in September 2003. She was diagnosed with cancer in 2004 and despite surgery the prognosis was a bleak one. In June the same year, she lost her appeal in the probate litigation in the Court of Appeal. Nina used the services of other Fung Shui masters. Her appeal to the Court of Final Appeal was heard on 11 July 2005. All these times, the 1^st Defendant could not give much support to Nina except limited contacts by telephone. He spent his time on learning to pilot a helicopter and starting the business of RCG Holdings Limited [“RCG”]. 

159.  Nina won her appeal on 16 September 2005 and she was informed that her criminal charges would be dropped on 21 November 2005. The 1^st Defendant said he reunited with Nina in person again on 24 November 2005 at Boston. Before that, Nina had learnt about the placement of RCG and on 4 November 2005 she subscribed for 13.15 millions shares at the price of ₤5 million. I shall come back to the several placements of RCG shares later.

160.  Wong Leung Woon testified that in September 2005 after winning her appeal, Nina phoned him and told him the 1^st Defendant would give him instructions about hole-digging again at Chinachem sites. For quite a while the 1^st Defendant did not contact him and he reported that to Nina in a subsequent conversation. He said Nina appeared to be upset. Then on 23 November 2005 (and he was quite certain about the date because works actually started on 24 November 2005 according to the records kept by his company) the 1^st Defendant met him at the Repulse Bay site and gave him instructions for hole-digging there. The 1^st Defendant told him to dig as deep as possible.

161.  The 1^st Defendant denied that he had met Wong Leung Woon at the Repulse Bay site or gave instructions to dig holes on that date. He said he was busy on 23 November 2005 as he was flying to Boston to meet Nina that evening. His flight departed at 19:55. He initially said that Nina only told him to supervise digging of holes at Repulse Bay after they had come back from Boston at the end of 2005. He told Nina that the digging of holes was useless but she insisted on it[53]. Thus, according to his version, it was in January 2006 that he met Wong Leung Woon. Later he changed his evidence. He said Nina asked him to contact Wong Leung Woon when they were at Boston in late November 2005 and he refused. She complained that he was no longer obedient to her. He then gave instructions to Wong Leung Woon in December 2005[54]. 

162.  The evidence of the 1^st Defendant in the witness box was contradicted by his own pleadings. In his Re-amended Rejoinder, it was pleaded that Nina asked the 1^st Defendant to dig holes at Chinachem sites shortly before they resumed meeting each other[55]. His final version in the witness box is also inconsistent with his witness statement as to the timing when this happened.   

163.  I prefer the evidence of Wong Leung Woon to that of the 1^st Defendant. Apart from the former being supported by records as to the commencement of work and the latter subject to unexplained variations at different times, I find Wong Leung Woon to be a much more straightforward witness. As pointed out by counsel for the Plaintiff, the 1^st Defendant’s flight schedule could fit in with Wong Leung Woon’s testimony since Wong Leung Woon actually took him to the Airport Express station after the meeting.  It is also inherently more probable that Nina was anxious for the exercise to be started immediately (as it was done for the sake of her health, as discussed later) and the 1^st Defendant had been subject to her remonstration for his tardiness. Thus he gave instructions to Wong Leung Woon before he flew to Boston to meet her.

164.  Subsequently, more holes were dug at other Chinachem sites under the supervision of the 1^st Defendant. In June 2006, holes were dug at Fanling Town Centre and the L’Hotel. Then around the mid-Autumn festival of 2006, holes were dug at Chinachem Golden Plaza. For reasons given earlier, I reject the evidence of the 1^st Defendant that these holes were dug for fun or for the sake of creating a disguise. Those were Fung Shui exercises. Given Nina’s prime concern at that time, they must have been done for the sake of restoring her health. 

165.  I find that after their re-union, the 1^st Defendant again acted as a Fung Shui master for Nina and, in addition to the digging of the holes, he gave her Fung Shui advices from time to time. The advices included traveling schedule (as testified by Dr Gong) which sometimes resulted in deferments of her medical appointments and the Fung Shui aspects of a particular room at the Hong Kong Sanatorium (as testified by Mrs Tong).   

166.  Apart from Fung Shui services, the 1^st Defendant also provided massage services for Nina and maintained an intimate relationship with her. He was with her when she had medical treatments at Boston in November and December 2005 and June 2006. During the time when Nina stayed at the L’Hotel in 2006, he would also reserve a room there in the name of his brother. He produced four notes which was said to be written by Nina for him during their stay in Boston. He said he visited Nina on a daily basis whenever both of them were in Hong Kong.

167.  But the close relationship between them remained one of a surreptitious nature. The 1^st Defendant asked his brother to book the hotel room at the L’Hotel in the latter’s name. His visits were not known to Nina’s siblings. It was suggested by counsel on behalf of the 1^st Defendant that Nina told Molly not to accompany her during her medical consultation at Boston in June 2006 as the 1^st Defendant was going to be with her at Boston[56].

168.  According to Dr Gong, Nina told her it was due to the Fung Shui advice she had received regarding the clash in the Zodiac signs of Dr Gong with hers. This is corroborated by the evidence of the treating doctors. The 1^st Defendant denied he had given such advice to Nina. He also denied he had tried to alienate Nina from her siblings. In this connection, there is a dispute between him and Mrs Tong as regards whether after Nina was discharged from the Hong Kong Sanatorium on 19 October 2006 he had advised Nina not to stay at the University Heights together with her siblings.

169.  On this point, I prefer the evidence of the Plaintiff’s witnesses to that of the 1^st Defendant. Though I can see the point made by Mr Mill regarding Nina’s keeping a distance from her siblings to preserve the secrecy of her clandestine relationship with the 1^st Defendant, I do not believe she invented these so-called Fung Shui advices in order to achieve such purpose. Nor was it necessary for her to use such excuse. She was able to meet the 1^st Defendant secretly during her trip to Singapore in August to September 2006 notwithstanding that she was accompanied by Dr Gong and her mother. As I explained, the 1^st Defendant did provide Fung Shui advices to Nina during that time. Mrs Tong was quite specific in her evidence about Nina’s conversation with the 1^st Defendant about the Fung Shui of the room at the Hong Kong Sanatorium.

170.  In any event, the 1^st Defendant at least accepted that his close relationship with Nina remained a matter of secret between them. It was neither known to Nina’s siblings nor to those in the senior management of Chinachem.  

171.  It was only in mid October 2006 that the siblings became aware that Nina was still relying on the services of the 1^st Defendant. Before Nina was admitted to the Hong Kong Sanatorium, on 14 October 2006 she instructed Mrs Tong to exchange contact numbers with the 1^st Defendant to facilitate the latter knowing her whereabouts. Mrs Tong thus became aware that Nina still maintained contact with the 1^st Defendant. There were occasions where he came across each of the siblings separately when he visited Nina after October. There was no suggestion from the 1^st Defendant that he was prevented from seeing Nina. However, as far as the siblings were concerned, he was Nina’s Fung Shui master who also provided massage services to her.

172.  On the other hand, the 1^st Defendant did not want to court the attention of the siblings. Thus in late October 2006, when Dr Kung went to the Hong Kong Sanatorium at the urgent call of Nina during midnight, the 1^st Defendant avoided him. When they met each other in the corridor, the 1^st Defendant simply walked past without acknowledging Dr Kung. He said he did not want to explain to Dr Kung why he was there[57]. When Dr Kung enquired with Nina, she said the 1^st Defendant was there to provide her with massage services.

173.  On subsequent occasions in late March and April 2007 when the 1^st Defendant met Mrs Tong and Dr Gong when he visited Nina at the hospital, he acted as masseur and Fung Shui master rather than as lover of Nina. The 1^st Defendant disagreed with Dr Gong as to whether he had a lengthy conversation with her on one of those occasions. In that respect, I prefer the evidence of Dr Gong. I believe the 1^st Defendant’s denial was part of his overall strategy of denying that he had acted as a Fung Shui master for Nina. 

174.  My finding is that in October 2006, the relationship between Nina and the 1^st Defendant was similar to their relationship prior to 2002: the 1^st Defendant acted as her Fung Shui adviser and at the same time they had a clandestine relationship. Like the situation in the 1990’s, the 1^st Defendant obtained financial benefits out of the relationship in terms of Nina’s investment into his company RCG and three very large remittances to his other company. Nina did not want to let people know about such relationship. I shall now consider the RCG investment.

Nina’s investment in RCG and the 1^st Defendant’s role in procuring the same

175.  There were altogether three subscriptions by Nina to the private placements of the shares of RCG. In November 2005, Nina subscribed for about ₤5 million worth of shares which account for about half of the total placement shares. In May 2006, Nina subscribed for 28,037,382 shares at about ₤15 million. In March 2007, Nina subscribed for ₤24.6 million worth of shares (more than half of the total placement). On top of that, she also acquired an additional 4.07 million shares from 4 senior executives of RCG: Raymond Chu, Anita Chau, Maggie Tam (a sister of the 1^st Defendant’s wife) and Lawrence Ying at 10p per share. The total amount involved for the last placement was therefore about ₤30 million.

176.  The last subscription and acquisition took place just before the death of Nina. After that exercise, she became the single largest shareholder in RCG. Before that, the 1^st Defendant was the largest shareholder in the company. The company was founded by the 1^st Defendant and it became a listed company on AIM of the London Stock Exchange in July 2004.

177.  The four senior executives benefited from the sale to Nina. Raymond Chu obtained a profit of ₤2,843,500 whilst Anita Chau obtained a profit of ₤1.21 million.

178.  The transactions were handled through Thomas Chan of Goldman Sachs in Singapore. He testified that he acted upon instructions from Nina in handling the purchase. According to him, Nina called him in early October 2005 to express a strong interest in investing into this company and informed him that the company was about to have a placement. Nina asked him to contact Raymond Chu to register her interest. He did so and he also talked to Anita Chau.

179.  As regards the third placement, he said Nina had alerted him of it in February 2007 and asked him to call Raymond Chu in respect of her subscription. He did so and put forward an indication of interest on behalf of Nina. By that time, he had been told by Nina that she had a good friend surnamed Chan investing in this company. He said the order was placed in early March 2007 but it was not tape-recorded. There were several conversations in March in which Nina wanted to find out the status of the placement. The last conversation he had with Nina was on 28 March 2007 when he informed her of the allocation of shares and she was quite pleased.

180.  In view of the substantial nature of these orders, I find it surprising that there was no tape-recording kept for the same. Be that as it may, Thomas Chan said Nina was happy to proceed with the third placement as she did on the two previous occasions. Though Nina had asked him to look into the company, Thomas Chan appeared to conduct a rather casual study of the company. He did not even enquire with Raymond Chu about the ultimate owner of the major corporate shareholder. He was quite contented with saying that he had no adverse comment and Goldman Sachs did not cover this company.

181.  A fax was sent to Chinachem office on 2 April 2007 (though the fax was dated 30 March 2007) seeking confirmation of the third placement and payment on 4 April 2007. That triggered doubts raised by Joseph Leung concerning the order and Dinly Au was asked to make enquiries with Thomas Chan.

182.  According to Dinly Au, when she questioned Thomas Chan about the transaction, he told her that a Mr Chan contacted him to give instructions which was subsequently confirmed by Nina on 1 April 2007 by saying “ah ah”. This is disputed by Thomas Chan in the witness box.

183.  As I said in the course of the evidence of Thomas Chan, this trial is not about the rescission of the order placed on behalf of Nina in the third placement. Apart from its relevance on the general credibility of Dinly Au, the 1^st Defendant relied on the transaction to show the mental capacity of Nina. In that respect, I am of the view that its relevance is limited. The Plaintiff’s case on lack of mental capacity is based on delirium operating upon Nina on 16 October 2006. There is no suggestion and it is not necessary for the Plaintiff to establish a similar mental state in February or March 2007. The medical experts who gave evidence in that respect focused on Nina’s condition in October 2006. By its nature, delirium is a temporary state. Hence, even if Nina was of sound mind in February or March 2007, it does not rebut her susceptibility to delirium in October 2006.

184.  The subscription for these placements could be indicative of the relationship between the 1^st Defendant and Nina. Nina’s interest in RCG was not originated from Goldman Sachs as they did not cover this company. From the evidence of Thomas Chan, Raymond Chu and the 1^st Defendant himself, it is obvious that Nina’s interest in RCG stemmed from what the 1^st Defendant told her before the first placement in November 2005. Thomas Chan’s evidence is that on each occasion, Nina alerted him as to the intended placement and told him to contact Raymond Chu for details. Raymond Chu said he first learnt of Nina’s interest in RCG through the 1^st Defendant. But the 1^st Defendant said he had not requested Nina to subscribe for the placements.

185.  Raymond Chu admitted that the interest from Nina (and other investors) was relevant to the board’s decision to offer the third placement though it remained an independent decision made on the basis that the placement was in the interest of the company.

186.  The 1^st Defendant said Nina was pleased to learn of his success in RCG and she was eager to support the company as she was positive with its prospect. There is not much evidence before me with regard to the prospect of the company as between late 2005 and early 2007. The placement prices increased from 38p per share in the first placement to 53.5p per share in the second placement to 131p per share in the third placement. Since these were private placements, there was no independent assessment by any professional financial advisers. There were investors other than Nina who subscribed for the shares of RCG in the placements.

187.  The 1^st Defendant said Nina invested in RCG based on her commercial decision. However, there is no evidence from the 1^st Defendant or Raymond Chu that she had been supplied with the corporate or financial information pertaining to the placements and the business development plans of RCG before she decided to subscribe to each placement. The discussions between Thomas Chan and Raymond Chu were casual in nature and Thomas Chan was at pain to emphasize in his evidence that Goldman Sachs merely acted as a facilitator. In other words, Goldman Sachs did not give any advice to Nina on these placements.

188.  I do not accept the evidence of the 1^st Defendant regarding how Nina came to subscribe for the placements. Even on his own evidence, by 2007 Nina was very ill and she even told him that she might not be able to spend the next Chinese New Year with him. Hence, it is difficult to understand why she would still be bothered about subscribing to the third placement.

189.  Despite the lack of tape-recording and the ill-health of Nina, I do not think I can reject the evidence of Thomas Chan that he had obtained Nina’s consent over phone before he placed order for the third placement. As Mr Chang pointed out, the order was a substantial one. It is a serious allegation against a senior and experienced banker that such an order was placed without instructions. There is little evidence to support such allegation.

190.  The evidence of Joseph Leung was that Thomas Chan told him the transaction was confirmed over the telephone by Nina. When he asked Dinly about her enquiry with Thomas Chan, she told him Thomas Chan said the transaction was fixed by a Mr Chan of RCG and Thomas Chan phoned up Nina to obtain confirmation from Nina. He did not mention Dinly telling him Thomas Chan said Nina replied “ah ah”.

191.  I find it inherently unlikely that Thomas Chan, an experienced banker, would tell Dinly Au that he only had a reply from Nina by way of “ah ah” and treated that as confirmation. It is even more unlikely that he would agree to Dinly Au’s suggestion that the answer of Nina could equally mean “no”.  

192.  I find Thomas Chan was acting on instructions from Nina in respect of the third placement. I do not think he told Dinly Au he had obtained confirmation from Nina on 1^st April since his last conversation with Nina was on 28 March. When Dinly Au talked to him several days later on 2 April, it was unlikely that he gave a wrong date due to lapse of memory.

193.  When Dinly Au was cross-examined on this part of her evidence[58], she said she could not remember whether she had talked to Nina about the RCG transaction though she was certain she did not mention the name of Thomas Chan. Dinly Au had conversations with Nina on 31 March and 2 April. She could not have raised the matter with Nina on 31 March since the Goldman Sachs letter regarding the purchase was only faxed to Chinachem on 2 April and Joseph Leung only asked Dinly Au to make enquiries after that. If Dinly Au had got an ambiguous answer from Thomas Chan on 2 April regarding Nina’s confirmation of the transaction, the most natural thing for her to do was to ask Nina.

194.  In her witness statement[59], Dinly Au said by then Nina was unable to communicate effectively. Yet she was able to say Nina gave her instructions regarding the change of the board of the Plaintiff. She was therefore cross-examined as to the apparent inconsistency. But in fact as far as 2 April is concerned, Dinly Au’s evidence was that she only reported to Nina that the documents effecting the change had been done and Nina nodded her head to indicate she understood[60]. The instructions of Nina was given on 5 March and confirmed on 31 March.

195.  I believe Dinly Au did try to ask Nina about the RCG transaction on 2 April since, as she had to be aware, by that stage she was the only means of communication between Joseph Leung and Nina. However, due to her condition, Nina was only able to give some ambiguous response. And Dinly Au had confused that as what Thomas Chan had told her on the phone earlier that date.

196.  There is an apparent inconsistency between Thomas Chan and Anita Chau as regards the release of information about the third placement. Anita Chau said the company did not decide on a third placement until mid March 2007. Yet Thomas Chan said he was alerted by Nina in February. I must say regrettably I do not find Anita Chau to be a reliable witness.

197.  She tried to impress the court that a line was drawn between the 1^st Defendant as the largest shareholder of the company (until the completion of the third placement) and the management of the company. She said she regarded the 1^st Defendant as her friend rather than her boss after the company became listed.   

198.  It is plain to me that the 1^st Defendant was the boss of both Anita Chau and Raymond Chu. Raymond Chu admitted that. Anita Chau was less forthcoming. Under cross-examination, Anita Chau admitted that she owed her position in the company to the 1^st Defendant and without the latter’s support, she could not be a director in the company.

199.  She further admitted that she and Raymond Chu served as the liaison between the 1^st Defendant and his lawyers in the present proceedings. She attended the trial during the course of the Plaintiff’s evidence (when the 1^st Defendant was mostly absent). She admitted having frequent contacts with the 1^st Defendant about the case. Yet, she wanted this court to believe that her attendance at this trial was not only assisting the 1^st Defendant (and for that she said it was simply because he was her friend) but also to keep an interest on the development of the matter by reason of the majority shareholding held by Nina’s nominee company Veron. She said there were queries from other shareholders of RCG who wanted to find out the result of this case and its potential impact on RCG.

200.  I find such evidence hard to believe. If the shareholders of RCG were interested in the development of this case, they can learn it from the media. In any event, it is difficult to see how a shareholder other than the 1^st Defendant and Veron would have any interest in the trial process itself (as opposed to the result as set out in the judgment of this court). No matter how much time they spent in court during the trial, Raymond Chu and Anita Chow could not tell the shareholders of RCG what to expect and they cannot offer any reliable advice in that regard. I do not believe Anita Chow when she gave this as a justification for her attendance at the trial.

201.  Given her role in the litigation, it is incredible that she had taken no step to find out how the inaccurate curriculum vitae of the 1^st Defendant came to be supplied to the representative of Georgetown University. She was the person through whom the information was passed onto Georgetown University. She was asked about the document by the solicitor for the 1^st Defendant soon after it was put to the 1^st Defendant in cross-examination (and she said she had forgotten about that incident until she was reminded by the solicitor after she had finished with her evidence, as a result of which she was recalled). And she read about the media report as to the Plaintiff’s attack on the 1^st Defendant by reference to such inaccuracies. The person who supplied the document was the 1^st Defendant’s secretary who had an office in the headquarter of RCG (a fact that Anita Chow did not mention). I do not believe her when she said she did not check further because the solicitor did not ask her to do so.  

202.  I do not need to speculate as to the reasons why the defence did not get to the bottom of this. It is a matter solely within their power and ability to have the relevant evidence produced. The point has been taken squarely and fairly by the Plaintiff. In view of the unexplained omission on the part of the defence, this court can draw adverse inference against the 1^st Defendant.

203.  Raymond Chu said he had received Nina’s indication of interest on the third placement before the placement was decided by the board. Though it is not necessary for present purposes to decide whether Anita Chau knew about that, it is probable that she did. She admitted that there were discussions on major projects in January and February of 2007 by the board and she and Raymond were responsible for fund raising. 

204.  It is unlikely that Nina would instruct Thomas Chan to make an indication of interest without solicitation. Given that the 1^st Defendant was the only person who had information regarding RCG and also had access to Nina at the material time, I find on the balance of probability that she was told by the 1^st Defendant as to the possibility of the RCG placements. In a way, the 1^st Defendant gave evidence that he had actually suggested Nina to invest in RCG. He said this was his reaction when Nina gave him the first substantial payment of $688 million in December 2005. I shall deal with the three substantial payments later. But I find as a fact that the 1^st Defendant actively procured Nina’s investment in RCG way back in November 2005, even before they met each other again in Boston.  

205.  This finding contradicted the 1^st Defendant’s evidence that he did not want Nina’s money and he had never asked for it[61]. In my judgment, the 1^st Defendant’s own conduct betrayed him. If he did not want Nina’s money, why would he give her the account number of his company for the three substantial remittances? 

206.  It is more convenient to come back to these substantial remittances later.  At this juncture, I simply state that I reject the claim of the 1^st Defendant that financial reward had never been a consideration in his relationship with Nina. The reality was that he had gained a lot financially from his association with Nina and he successfully procured her very substantial investment into RCG.

207.  I will now turn to address the question whether on top of the RCG investment and the three very substantial remittances Nina also decided to give him her entire estate by way of testamentary gift.

Is the 2006 Will a forgery?

208.  Issues (1) and (2) in the List of Issues can be regarded as two broad aspects of the issue of authenticity. They are in fact two sides of the same coin. There is no dispute that a document was executed by Nina on 16 October 2006 and Winfield Wong and Ng Shun Mo signed on that document as attesting witnesses. If that document were found to be the 2006 Will, then the 2006 Will is a genuine document. If that document were found to be the Specific Bequest Will, the 2006 Will is a forgery. There is no suggestion that more than one document was executed by Nina and attested by Winfield Wong and Ng Shun Mo on 16 October 2006.

The proper approach

209.  I was reminded by counsel on the applicable legal principles on burden and standard proof in dealing with serious allegations like forgery in the context of a probate action. As far as the law in Hong Kong is concerned, the leading case is the judgment of the Court of Final Appeal in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387. In particular, I have reminded myself as to the proper approach as set out in the judgment of Ribeiro PJ at paras.171 to 187 and Lord Scott NPJ at paras.621 to 631. Counsel for the 1^st Defendant highlighted the application of the Re H principle and the Lee Ming Tee principle in the present case. In the context of a probate action, these principles were explained by Ribeiro PJ at paras.182 to 184 and para.187. See also the judgment of Lord Scott NPJ at paras.625 and 626.

210.  Counsel for the Plaintiff drew attention to the fact that in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, no point was taken as to knowledge and approval and testamentary capacity. The sole issue raised by the party challenging the will in that case was forgery. That point was made in relation to the submissions on the applicability of the second rule of Barry v Butlin in the present case. The scope of that rule was discussed by Ribeiro PJ at paras.204 to 221. The analysis of His Lordship clearly explained that the rule, as extended by Tyrrell v Painton [1894] P 151 is only relevant to the question of knowledge and approval. At para.223 to 235, Ribeiro PJ went on to dissect the error of the trial judge in applying the rule to the question of forgery and at para.227, it was said that such an approach “derive from a fundamental misunderstanding of the second rule in Barry v Butlin”. See also the judgment of Litton NPJ at para.473, the judgment of Lord Scott NPJ at para.627.

211.  Even though the issue of knowledge and approval has been raised in the present case, the issue does not call for consideration until the court reaches the conclusion that the 2006 Will was genuine. In my judgment, the pleas as to knowledge and approval does not provide a platform for the application of the second rule of Barry v Butlin when the court is dealing with the prior question of forgery. The 1^st Defendant is not required to dispel any suspicious circumstances when he discharges the legal burden of proving the due execution of the 2006 Will. As explained in Nina Kung,the Plaintiff bears the evidential burden in putting forward evidence of sufficient cogency to raise the issue of forgery and the cogency of such evidence has to be commensurate with the serious nature of forgery raised against the 2006 Will. Unanswered suspicion cannot be elevated to proof of forgery in the disguise of drawing inference.

212.  This is not a case where the court has heard direct evidence from a person witnessing the process of forgery. By the very nature of things, evidence of that kind can rarely be obtained. Instead, apart from the evidence of the two attesting witnesses and the circumstantial evidence relevant to the assessment of the genuineness of the 2006 Will, parties relied upon handwriting and forensic expert evidence.

213.  There is no suggestion whatsoever in the evidence or pleadings that Winfield Wong and/or Ng Shun Mo conspired with someone to make up the 2006 Will with the signature of Nina forged by a skilled forger. Nor is there any suggestion that Winfield Wong and/or Ng Shun Mo had unwittingly signed on a blank piece of paper used by someone to produce the 2006 Will by forging Nina’s signature or vice versa. Hence, issues (1) and (2), on the facts in the present case, are in substance different aspects of the same question of fact: either all three signatures are forged or all of them are genuine. Under such circumstances, if one of the signatures is proved to be genuine, the 2006 Will must also be genuine. 

214.  However, it does not mean the Plaintiff must satisfy the court by handwriting expert evidence that all three signatures are forged. By its nature, expert evidence is an opinion expressed by a witness based on his own expert knowledge. In the assessment of expert opinion, the court must always bear in mind the limitations inherent in an expert’s opinion. The court must also have regard to the other evidence relevant to the question of forgery.

215.  Sometimes there are simply insufficient materials for an expert to come to a reliable opinion that can meaningfully assist the court. In respect of the signature of Ng Shun Mo on the 2006 Will, there is a disagreement between the handwriting experts whether one can meaningfully draw a conclusion on its authenticity. For reasons given below, I prefer the evidence of Mr Radley and Dr Giles whose evidence is that by reason of the simplicity of Ng Shun Mo’s signature, it cannot be established by handwriting expert opinion whether the signature in the 2006 Will is genuine or forged.

216.  In other words, the inability on the part of the handwriting experts to prove that the signature of Ng Shun Mo in the 2006 Will was forged does not mean the signature has been proved to be genuine. It only means that the court has to resolve the issue of authenticity of the 2006 Will without conclusive proof as to the authenticity of that particular signature from the point of view of a handwriting expert. Even so, if the court were satisfied by other evidence that the 2006 Will is a forgery, the court is still obliged to make such a finding. Inferentially the court can conclude that the signature of Ng Shun Mo must also be a forgery though there is insufficient handwriting expert opinion evidence to prove that. In coming to such a conclusion, the court is simply recognizing that handwriting expert evidence is not the only means to prove a forgery. When there is other compelling evidence satisfying the court that a document is forged, it is the duty of the court to make such a finding untrammeled by the inadequacies inherent in handwriting examination.

217.  In the present case, Mr Westwood said in his report he could express a positive opinion of identity regarding Ng Shun Mo’s signature. Thus, before coming to a conclusion of forgery, the court has to be satisfied that he was wrong and due to inherent limitation the authenticity of the signature in question cannot be proved by handwriting examination. Further, the court has to be satisfied that the other evidence on forgery is cogent and compelling enough to support such a finding.

218.  There are cases where the court can properly hold that the evidence of attesting witness prevails over the evidence of handwriting expert, see Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 paras.15 and 393; Fuller v Strum [2002] 1 WLR 1097.

219.  Evidence relevant to the authenticity of the 2006 Will is not confined to the opinion evidence of the handwriting experts. In this trial, there is forensic evidence referred to as Electro Static Detection Apparatus “ESDA” evidence and the common conclusion of the document examiners that the signature of Nina in the 2006 Will was signed after the crease on the face of the document had been created. These pieces of evidence have immense significance in this case which I shall explain below.

220.  Further, we also have testimonies from the two attesting witnesses as regards how a document was executed on 16 October 2006. Their evidence was tested by skilful cross-examination on behalf of the 1^st Defendant. According to Winfield Wong, the document he attested to on that date was a partial will. Ng Shun Mo confirmed Winfield Wong had said so at the time when Nina asked them to act as attesting witnesses though he (viz. Ng Shun Mo) himself did not pay attention to the contents at that time. This observation was also subsequently repeated by Winfield Wong when Ng Shun Mo enquired with him about the contents of that document at a later date. In other words, the attesting witnesses did not give affirmative evidence supporting the 2006 Will. Their evidence about the manner in which the document was executed has to be considered together with the ESDA and other forensic evidence.

221.  On the other hand, the 1^st Defendant testified that Nina gave him the 2006 Will together with an unsigned draft (which I shall call the “Unsigned Document”) during his visit on 16 October 2006. Even though the 1^st Defendant was not present at the time of execution, his evidence (if accepted by the court) is evidence supporting the authenticity of the 2006 Will because it is highly unlikely that Nina would give him a forged document and then instructed him on how he should deal with her estate.

222.  The 1^st Defendant also relied on the evidence of his wife and sought to establish that he had shown her the 2006 Will on 18 October 2006, just two days after its execution. If such evidence were accepted, counsel submitted it is unlikely that the 1^st Defendant could have time to procure a forged will to be prepared during the short time lapse available.

223.  As observed during closing submissions, the court must also take into account other circumstantial evidence relevant to the question of authenticity, including the inherent likelihood of authenticity as well as the inherent likelihood of forgery in the overall circumstances of the case before it can properly reach a conclusion. But as mentioned above, the court should guard against imposing on the 1^st Defendant an additional burden of dispelling suspicious circumstances (as the rule of Barry v Butlin has no application on the question of forgery). Nor should the court draw an inference against the 1^st Defendant which is not properly grounded in the primary facts established by the evidence. That would be conjecture in disguise and the Lee Ming Tee principle forbids the same.

224.  In short, the question of authenticity is not to be determined solely by reference to the opinion evidence of the three handwriting experts: Mr Radley, Dr Giles and Mr Westwood. For reasons I shall explain later, in my overall assessment of the relevant evidence on this issue, though the opinion evidence is directly relevant, the other evidence is more important.

225.  Further, as I shall demonstrate, even though I am satisfied that the respective experts are well qualified to express opinions on the authenticity of the signatures on the 2006 Will and they are   experienced in the field, and they have each given detailed reasons in support of their opinions (although the observations of Dr Giles may not be as comprehensive as the other two experts given the 1^st Defendant’s switch to Mr Westwood), their opinions remain views formed with a high degree of subjectivity on their parts. 

226.  Hence, it is important to bear in mind the observations of Chan PJ in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 at p.404 paras.17 to 20 regarding the nature of handwriting expert evidence. In particular, at para.20,

“Whilst the factual part of the evidence of an expert is verifiable and is reliable or unreliable as any other piece of factual evidence, the opinion part of an expert’s evidence is totally different. Handwriting analysis is not an exact science and the opinion of a handwriting expert, however objective it is, is inherently less precise than a conclusion based on the results of a scientific analysis. The acceptability of an expert’s opinion depends very much on how sound and convincing the reasons for his opinion are.”

227.  And the court must assess the weight to be attached to an opinion expressed by a handwriting expert in the light of other evidence relevant on the issue of forgery, see paras.12 to 15 of the judgment of Chan PJ in Nina Kung.

The physical evidence stemming from document examination

228.  In my judgment, the submission on behalf of the Plaintiff that one should start from the hard physical evidence in dealing with the issue of authenticity of the 2006 Will is the correct approach. I shall start by considering the hard physical evidence relied upon by counsel. Before I embark on that exercise, I should make it clear that all my findings and conclusions in this judgment are reached after due consideration being given to all the relevant evidence presented.  Whilst I may present my findings and conclusions at different parts of this judgment when I deem it convenient to do so (and sometimes the findings and conclusions will be set out after a discussion on one aspect of the evidence with the other relevant evidence discussed elsewhere), that should not be taken as a neglect on my part to consider other evidence relevant to the same issue before I reach the conclusions. It is simply for ease of presentation that I discussed such other evidence in other parts of the judgment.

229.  According to the 1^st Defendant, the 2006 Will was given to him by Nina on 16 October 2006 late at night. It was contained in an envelope which Nina told him not to open until he returned to his home. He did so and when he opened the envelope, he found the 2006 Will together with an unsigned draft version of the 2006 Will [“the Unsigned Document”]. The two documents were not stapled nor otherwise pasted together.

230.  The Unsigned Document was not referred to in the affidavit of testamentary scripts made by the 1^st Defendant in these proceedings. But he made a disclosure of the Unsigned Document in an affidavit of 4 June 2008. He explained that he had shown the Unsigned Document to his solicitors together with the 2006 Will after the death of Nina. However, at that time his solicitors did not consider the Unsigned Document falls within the meaning of testamentary script. Subsequently, his solicitors advised him though the status of the Unsigned Document remained unclear, he should make disclosure of it in any event. He did so accordingly.

231.  The contents of the Unsigned Document were similar to the 2006 Will except for a few corrections made in the latter. But it was not signed by any person. It was examined by the experts using the ESDA technique. Mr Radley explained the ESDA technique as follows,

“The ESDA technique reveals writing impressions on documents which have been caused by one document having been written upon whilst physically resting on top of the document under examination. The writing process consequently imparts impressions of the writing onto the document below leaving visible indented writing impressions in the underlying paper surface or electrostatic writing impressions invisible to the naked eye which can be highlighted with the ESDA technique.”[62]

232.  The Unsigned Document does not bear any visible indented writing impressions. However, ESDA examination by the experts does show electrostatic writing impressions invisible to the naked eyes.

233.  The result of such examination is described by Mr Radley in his report,

“The [Unsigned Document] bears impressions of all the handwritten entries on the [2006 Will] and these are in perfect register, i.e. the ESDA life produced … can be exactly superimposed on top of all three of the signatures and associated handwritten details.”[63]

234.  This observation is not disputed by the other forensic experts who also inspected the Unsigned Document together with the 2006 Will.  I shall refer to this feature as the Perfect Register.

235.  The Perfect Register implies that,

(a)     The writings and the signatures on the 2006 Will were written and signed when it was placed on top of the Unsigned Document. In other words, the two documents were together when the 2006 Will was signed;

(b)    There was no substantial movement in the handling of the documents causing displacement of the Unsigned Document or the 2006 Will in between the execution of the three signatures on the 2006 Will.

236.  In connection with (b), the experts also agreed that there was no sign that the two documents were pinned, stapled or pasted together.

237.  Another important observation made by Mr Radley (and not disputed by other experts) is that there was a crease on the 2006 Will and the purported signature of Nina on the 2006 Will was written across the crease. Expert examination establishes that the Nina signature was executed after the crease was made on the document.

238.  Another expert Mr Tytell inspected the 2006 Will and the Unsigned Document and compared the type design on these documents with those produced by typewriters available at the Chinachem offices. His conclusion, which is not challenged by the defence, is that the 2006 Will and the Unsigned Document were produced on the same typewriter but not on any of the types of typewriters used at Chinachem offices.

The implications of the hard physical evidence in conjunction with the evidence on the execution process

239.  The hard physical evidence has to be considered against the testimonies of the attesting witnesses as regards the execution process on 16 October 2006. Both Winfield Wong and Ng Shun Mo gave evidence in that regard and they were subjected to lengthy cross-examination. In view of the significance of how the document was handled, this court adopted the exceptional course of directing that their demonstrations be recorded.

240.  As Mr Mill QC submitted, there are discrepancies in the evidence of the two attesting witnesses regarding the details of the execution process. Moreover, by reason of the rule in Re Fuld (No 2) [1965] P 405 and my ruling on 15 December 2008, the 1^st Defendant obtained discovery of different versions of draft statements of these witnesses and attendance notes taken at meetings with them. Reference was made to different versions in these drafts and notes in the course of cross-examination.  

241.  In his closing submissions, Mr Mill submitted that the court should prefer the evidence of Ng Shun Mo to that of Winfield Wong except the timing of the occasion. As to the latter, Winfield Wong’s evidence is corroborated by the evidence of Dinly Au and he had also checked with his secretary and office email records.

242.  Mr Mill further submitted that Winfield Wong is not reliable in his recollection of the events and counsel tried to demonstrate that by reference to the several different versions in the various drafts and notes prepared at meetings with the Plaintiff’s lawyers. It is further submitted that Winfield Wong gave partial and inaccurate evidence due to pressure he was under to assist the Plaintiff. Emphasis was placed on Winfield Wong’s response to Mr Mill’s suggestion that there was tremendous pressure on him to say that the document he witnessed was not the 2006 Will. Winfield Wong said,

“… psychologically speaking, there must be pressure, but I think that I should say according to what I can remember.”[64]

243.  The 1^st Defendant submitted that Winfield Wong made a mistake as to the document that he had witnessed on that occasion because he only took a quick glance of it and he was then under tremendous pressure to hold this position because he knew that the Plaintiff’s case of forgery was totally dependent on his evidence and Chinachem had continued importance in his career development.

244.  This part of the submission was perhaps directed against Winfield Wong’s evidence that the document he attested to on 16 October 2006 was a partial will with a specific bequest. But the point does have relevance in the general reliability of Winfield Wong and I have taken the submission into account in assessing his evidence generally.

245.  Winfield Wong is a solicitor and as such an officer of the court. It is a serious accusation to suggest that he gave false evidence under pressure. With respect, I do not find the criticism to be well-founded. Winfield Wong had been stating at the earliest moment that the document he attested to contained a specific gift and it was a partial will only. In fact, he had said so even before the matter became contentious. He observed that the document was a partial will in the presence of Nina at the time when he was asked to attest to her execution of the same. He repeated that observation when Ng Shun Mo asked him about the content of the document on 17^th or 18^th October 2006.

246.  After the death of Nina, he repeated the same observation in his witness statement of 7 April 2007. Mr Mill suggested he was under pressure to stick to a mistaken position when he gave evidence in the witness box. As far as I can see, with the exception of some drafts prepared by Mr Sujanani[65] (which for reasons given below cannot be regarded as evidence of change of stance on the part of Winfield Wong) there is no evidence suggesting Winfield Wong had at any stage believed he might have been mistaken about his observation that the document he attested to was a partial will with a gift of a specific sum. Thus there was no question of his having succumbed to any pressure emanating from the Plaintiff to stick to his evidence. There was simply no evidence whatsoever that the Plaintiff had exerted such pressure on him.

247.  Further, as Mr Mill had observed, at the early stage of this action, the Plaintiff did not assert a positive case of forgery in respect of the 2006 Will. I do not see any basis for suggesting that the Plaintiff had exerted tremendous pressure on Winfield Wong to testify on forgery at a time when the case was not even advanced. The plea of forgery was only added in 2009 after the Plaintiff had obtained expert evidence to support it. At that stage the evidence of Winfield Wong had been disclosed. By then the case of forgery was not wholly dependent upon the evidence of Winfield Wong even though his evidence would still be important.   

248.  Except in one draft version[66], all other drafts contained the observation of Winfield Wong that there was no provision in the 2006 Will for a gift of a specific sum to a named beneficiary, this being a matter he distinctly recalled regarding the document he attested to. The earliest version was in fact the one Winfield Wong signed on 7 April 2007.

249.  The exception was a draft statutory declaration produced by Mr Sujanani and emailed to Winfield Wong on 13 April 2007. There was a meeting at Mr Sujanani’s chambers on 12 April 2007 and a solicitor Ms Fanny Cheng was present. According to her attendance note, Winfield Wong gave an account of what happened on 16 October 2006. He said he had a quick glance of the document he attested and he told Nina it was a partial will. He suggested Nina to instruct a solicitor to prepare a complete will. He also said he only signed one document for Nina on that day. Whilst the attendance note did not record Winfield Wong mentioning a bequest of a specific sum on that occasion, it had already been referred to in his earlier signed statement of 7 April 2007. And there was nothing in the attendance note to suggest that he had changed his evidence at this meeting.

250.  Mr Sujanani produced the 13 April 2007 draft which contained a paragraph 18 as follows,

“Having read Document A [viz. the 2006 Will], I have the following comments to make,

(a)     I believe that this was probably the document that I had witnessed in late 2006 in the presence of Mrs Wang and Mr Ng Shun Mo, although I note that there is no provision made in Document A in relation to a gift of a sum of around HK$10 million to a Mr Chan. This is a matter I recall from the document which I had witnessed in late 2006 at the request, and in the presence, of Mrs Wang and Mr Ng Shun Mo.

(b)     Document A deals with the residue or remainder of Mrs Wang’s estate. This is consistent with the document I had witnessed in late 2006 where, having read the document, I specifically raised with Mrs Wang my concerns that it was only a partial Will, as it dealt only with the residue or balance of her estate and did not deal with the entirety of her estate and her agreement to, and knowledge of, this.

(c)     I believe it is my signature which appears at the right hand side on Document A. The ID Card number written next to my signature is my ID Card number. I also notice that I had written my name in block letters. This was probably because I may have forgotten to bring along my personal name chop.

(d)     I also notice that there appears to be my firm’s chop on this document, although it is upside down. I do recall having once used my firm’s chop upside down on the execution of a document although I cannot now say with certainty that that occurred on this occasion.”

251.  In the same draft, para.8 referred to the specific gift when an account was given as to what happened on 16 October 2006,

“Upon reading the document[67], two matters came to my mind. First, I noticed that it was only a partial will or a codicil as it only dealt with the residue or remainder of Mrs Wang’s estate, and not with the entirety of her estate. Secondly, I recall there was a gift of a specific sum of money to a beneficiary by the name of a Mr Chan. I cannot now recall the full name of the beneficiary nor the exact amount of the gift, though I believe it was in the sum of around HK$10 million.”

252.  Thus, even on the face of the draft, there is an internal conflict between paragraph 8 and paragraph 18(a) and (c). In fact there is an internal inconsistency between the first and second sentences of paragraph 18(a). And there is also an internal inconsistency between the two sentences in paragraph 8. Further, Winfield Wong testified that he did not say at any stage that the document “was a codicil as it only dealt with the residue or remainder of Nina’s estate”. 

253.  On 14 April 2007, Mr Sujanani emailed to Winfield Wong saying that it was not necessary to make a statutory declaration. He therefore converted the draft statutory declaration into a witness statement format and invited Winfield Wong to consider its contents. He also requested Winfield Wong to let him know whether he had any amendments.

254.  Winfield Wong did not sign any of these drafts. As far as written records show, he responded in a email of 17 April 2007 saying,

“…having considered the matter, I think the statement that I made on the 7 April 2007 is sufficient”.

In cross-examination, Mr Mill suggested to Winfield Wong that he should have taken that opportunity to refute the inaccuracies in the draft prepared by Mr Sujanani. I do not agree. Bearing in mind that Mr Sujanani made it clear in the email that Winfield Wong could make amendments to the draft, a refusal to sign the draft together with the contents of the previous statement signed by him on 7 April should be sufficient indication that the unsigned version was not adopted.

255.  Hence, Winfield Wong did not adopt the drafts as his evidence. Afterwards, several other drafts were prepared and there was no repetition of the acceptance of the 2006 Will as the document attested to by him (as in paragraph 18(a) and (c) of these drafts) in any of the subsequent versions.

256.  Winfield Wong was cross-examined about these drafts. He described what happened at the meeting at Mr Sujanani’s chambers leading to these drafts[68]. He said there were discussions with the lawyers acting for the Plaintiff and he was told another draft would be prepared. He recalled they had added something which he regarded as comments and speculations and there were certain matters he was not comfortable or was not in agreement with. Some of the proposed amendments were what the lawyers thought to be possible situation. Many scenarios were mentioned and some were put into the draft. But Winfield Wong did not approve it. Hence in the end he did not sign any amended version and stuck to his original statement of 7 April 2007.

257.  Fanny Cheng’s attendance note of 12 April 2007 did not show that Winfield Wong had indicated at that meeting the 2006 Will was the document he attested to on 16 October 2006. Further, in subsequent meetings with the lawyers acting for the Plaintiff, Winfield Wong had been adamant that the document he attested to only contained a specific gift of a certain sum of money[69] and it did not read “rest, residue and remainder” and therefore it could not be the 2006 Will.

258.  At this juncture, given that Winfield Wong did not sign the drafts prepared by Mr Sujanani, it is relevant to reiterate what I said at paras. 16, 17 and 19 of my judgment in this case on 15 December 2008[70] regarding the evidential value of such drafts. The contents of these drafts would only be relevant insofar as this court accepts that the contents accurately represent what were actually said by Winfield Wong at the meeting on 12 April 2007. If the court were so satisfied, it will have to ask what weight it can give to such evidence in the light of the subsequent refusal of Winfield Wong to adopt the same and whether the fact that Winfield Wong had made such inconsistent statements on 12 April 2007 should affect the weight of the evidence he gave in the witness box. 

259.  Mr Mill submitted that Mr Sujanani must have been satisfied by the end of the meeting on 12 April 2007 that Winfield Wong’s evidence was that the 2006 Will was the document he attested to for otherwise he would not prepare the drafts in such manner. Counsel also referred to the invitation of this court to the parties to consider the calling of Mr Sujanani as a witness on Day 9. What I said on that occasion was as follows,

“… I invite the parties[71] to consider the possibility of calling Mr Sujanani because in the light of what has transpired in the cross-examination of Mr Wong … in the absence of any evidence I would have to assume counsel was taking a statement in accordance with the usual procedures.”[72]

I made it clear later that this was only an invitation, not a direction that Mr Sujanani must be called[73].

260.  As the trial proceeded, neither party decided to call Mr Sujanani. Mr Mill submitted the court should draw the inference that the Plaintiff ascertained what Mr Sujanani would say if called and concluded that it was better off leaving the matter as it stood.

261.  At the time when I made that invitation, the court was not aware of the 12 April 2007 attendance note of Fanny Cheng although counsel mentioned about some documents obtained from her would be disclosed later[74]. In so saying, I should not be taken as criticizing counsel since Fanny Cheng only sent those documents to the solicitors for the Plaintiff in the evening of Day 8. The documents were shown to the defence in the course of Day 9 and Mr Mill informed the court in that afternoon one of the documents was about a meeting with Winfield Wong on 12 April 2007 without specifying that to be an attendance note[75]. By that stage, the court had not yet been given any copy of the document. Hence, when the court commented that the invitation was not a direction, I had not had the opportunity to read the attendance note.

262.  When I made the invitation, I highlighted what the position would be in the absence of evidence. But in respect of the meeting on 12 April 2006, we now have evidence in the form of the attendance note of Fanny Cheng. If Winfield Wong had said at that meeting he believed the 2006 Will was the document he attested to, it would be a significant departure from what he had stated in the statement of 7 April 2007. It would be surprising if neither Mr Sujanani nor Fanny Cheng asked him about the change and no record was made about the reasons Winfield Wong gave for such departure in the attendance note.  

263.  We also have evidence from Winfield Wong himself. He gave an account of what happened at the meeting when Mr Mill asked him questions with reference to the attendance note. Given the lapse of time and the number of meetings he had with the lawyers, it is understandable that he might not recall exactly whether something happened at this particular meeting on 12 April 2007 or some subsequent meetings with the lawyers of the Plaintiff. He frankly admitted that he might have mixed up in that regard.

264.  In addition, focusing on the question whether he had actually told Mr Sujanani the disputed matters in paragraphs 8 and 18 of the drafts, we have circumstantial evidence on Winfield Wong’s position both before and after the drafts were prepared, consistently maintaining that the document he attested was a partial will which only provided for a gift of a specific sum to a Mr Chan.

265.  I agree with Mr Mill that an inference can be drawn from the Plaintiff not taking up my invitation that whatever evidence Mr Sujanani could give would not improve the Plaintiff’s case as regards what had happened at the meeting on 12 April 2007. But it does not mean the court must infer that Mr Sujanani’s evidence would contradict the account of Winfield Wong in respect of the disputed matters in paragraphs 8 and 18 of the drafts. The court has no reason to believe Fanny Cheng was not doing her job properly in taking down important points when she made a contemporaneous attendance note.   

266.  Further, we have some evidence corroborating Winfield Wong’s testimony that at that stage Mr Sujanani was exploring various scenarios. Mr Mill suggested that the idea of treating the 2006 Will as a codicil emanated from Mr Sujanani[76]. Winfield Wong’s understanding was that there was a difference between a codicil and a partial will. He regarded the document he attested to as a partial will since it was only a document making a gift of a specific sum to a beneficiary without any provision dealing with the rest of the estate. On the other hand, he regarded the 2006 Will as a codicil because it purports to dispose of the residue of her estate[77]. Mr Sujanani took a different view: he regarded a partial will to be the same as a codicil. Winfield Wong’s evidence that the idea of codicil came from Mr Sujanani is corroborated by the fact that Winfield Wong refused to add the word “codicil” at paragraph 8 of his statement as proposed by Mr Sujanani[78].

267.  Indeed, if one considers the paper trail in respect of the preparation of the various draft statements contained in Bundle B1, it clearly supports Winfield Wong’s testimony that at that stage the lawyers for the Plaintiff were putting forward various versions for Winfield Wong’s consideration on the understanding that if he found any draft to be inaccurate he was at liberty to amend the same.

268.  Having regard to all the evidence, I do not think the drafts of 13 and 14 April 2007 can be regarded as accurate records of what Winfield Wong had said on 12 April 2007. As the unsigned drafts were not approved by Winfield Wong, they cannot be treated as his statements. It follows the inconsistent statements in these drafts cannot discredit the testimony of Winfield Wong.

269.  Coming back to the evidence on the execution process of 16 October 2006, the evidence of the attesting witnesses is relevant in conjunction with the hard physical evidence mentioned above in the following respects,

(a)     whether a crease was present when the document was signed by the attesting witnesses and Nina;

(b)    whether there was another document placed underneath the will when it was executed on 16 October 2006;

(c)     whether in the course of signing by Nina and the two attesting witnesses there had been substantial movements in the handling of the document occasioning displacement of the relative position of the will and the document underneath (assuming there were two documents).

270.  As regards the crease, Winfield Wong testified that when he signed the document as attesting witness on 16 October 2006 (and he said he signed after Nina and Ng Shun Mo had signed) the document had not been folded[79]. He was not asked specifically about Nina signing over the crease. But he was asked whether the document was folded or unfolded when Nina carried it into the conference room. In response, he said he thought it was not folded. Later on Mr Mill asked whether it was possible that Nina brought it in folded and then she unfolded it when giving it to Winfield Wong. Winfield Wong said he could not remember.

271.  Ng Shun Mo stated in his witness statement of 13 April 2007 that when he came into the conference room, he saw Nina holding a sheet of paper in her hand and the document appeared to be folded in half. But as he demonstrated in the course of his testimony in the witness box, in making such description he meant a looped-fold instead of a flat-fold. And this is corroborated by his statement given and recorded by Fanny Cheng at a meeting on 10 April 2007[80]. When Mr Mill put to him that this was not normally how one would understand by the expression “folded in half”, Ng Shun Mo referred to the illustration in the statement of 10 April 2007 and explained that since he did not know English well he was not clear as to whether this was the proper description in English[81].

272.  Mr Mill suggested that even if a document had been flat-folded in a way producing a crease at the fold, it could still be held in the manner described by Ng Shun Mo. Even if Mr Mill were correct, that contention does not mean Ng Shun Mo’s evidence establishes that a crease had been produced when the document was signed on 16 October 2006. It only means that Ng Shun Mo’s evidence is neutral in that regard.

273.  In any event, whilst I accept that a document which had been subject to a flat-fold might still be held loosely by holding the top and the bottom together, I do not think it was the same as how Ng Shun Mo described Nina was holding the document on 16 October 2006. In my judgment, Ng Shun Mo’s evidence suggests that there was no crease on the face of the document when it was executed.

274.  Hence, as far as the evidence of the attesting witnesses is concerned, both Winfield Wong and Ng Shun Mo supported the Plaintiff’s case that there was no crease on the face of the document when it was executed by Nina on 16 October 2006.

275.  Inherent probabilities also support the Plaintiff’s case. According to both Winfield Wong and Ng Shun Mo, notwithstanding the discrepancy as to whether Nina signed in both of their presence, she was the first one to sign the document.  If the 2006 Will was the document signed on that occasion, she had plenty of space to affix her signature beneath the crease. As Mr Chang submitted, it is most unnatural for a person to sign across a crease when there is enough space to sign elsewhere. In this respect, counsel relied on a similar observation by Dr Giles, the forensic expert formerly engaged by the 1^st Defendant.

276.  Based on the evidence, I find that on 16 October 2006 when Nina signed the document attested to by Winfield Wong and Ng Shun Mo there was no crease on it.

277.  As regards the number of copies present when the document was signed on 16 October 2006, Winfield Wong testified he could not remember whether there was more than one sheet of paper. On the other hand, Ng Shun Mo testified categorically that there was only one sheet of paper.

278.  Winfield Wong had read the document, albeit quickly. He observed instantly that it was a partial will. If there were actually two copies, one slightly different from another, it could not have escaped his attention. If he noted the differences, I believe he would have asked Nina which version was to be executed. Even if he failed to note the differences, he would have asked Nina whether she wanted to execute both or just one of them. But he did not raise any of these queries. This indicates that Winfield Wong only found a one-page document when he read it.

279.  As Ng Shun Mo said in response to cross-examination by Mr Mill, he did not see Winfield Wong flipping to a second page in reading the document. When he signed it and pushed it back to Winfield afterwards, he did not feel there was a second page.

280.  Unlike the other details at the meeting, this is not a matter where one might easily have mixed up. I accept the evidence of Ng Shun Mo and find that when Nina executed and the two attesting witnesses signed the document on 16 October 2006, there was only a one-page document in front of them.

281.  As regards the manner in which the document was handled and passed around, the demonstrations by Winfield Wong and Ng Shun Mo in court were recorded. I viewed the recordings several times together with the photographs depicting the conference table used during the process. Mr Chang particularly drew my attention to the length of the conference table and the distance between Winfield Wong and Nina when she handed the document to him.

282.  Mr Chang submitted and I do not think Mr Mill can dispute that the following motions are likely to cause slippage between two sheets of paper,

(a)     picking up the document off the table into the air;

(b)    placing the document from the air onto the table;

(c)     passing the document in the air from one person to another;

(d)    orientating or turning the document on the table surface;

(e)     ‘addressing’ the paper to the customized angle of the writer for writing or signing on it. 

283.  In connection with the question of slippage, it should be noted that the ESDA evidence shows that the two sheets of paper (viz. the 2006 Will and the Unsigned Document) were slightly misaligned at the edges when the three signatures were executed. There was a displacement of about 0.5 mm to the right and 1.75 mm on the top. Further it shows that the fold-creases of the two sheets were not aligned at the time of signing. Hence, the Perfect Register cannot be explained by the fixation of the relative position of the two sheets by the creases or by manual alignments of the two sheets by the three persons who signed the document (assuming that the signatures were affixed by three persons as it must be if the 2006 Will were a genuine document).

284.  Further, as pointed out by Mr Chang, the presence of mis-aligned crease fold would increase the chance of slippage when the document was handled by different persons.

285.  Neither Winfield Wong nor Ng Shun Mo testified that the document was simply resting on the table at the same place with each of the three signatories coming to the same spot to affix their respective signature. Mr Mill did not suggest that as an explanation since there is no evidential basis for such an explanation to be put.

286.  The experts agreed that sliding the document across the table could reduce potential slippage of papers. Mr Mill took that to the extreme in his oral closing submissions by contending that the Perfect Register was a neutral factor insofar as the document was slid across the table. I think that was an over-simplification. It depends on what happened before and after the document had been slid from one position to another in the course of the signing process. 

287.  It should be borne in mind that according to the evidence of Winfield Wong as well as that of Ng Shun Mo, Nina sat at the head of the conference table whilst Winfield was at another side. This means that when Nina passed the document to Winfield, even assuming that it was slid across to him, he had to orientate the document to his direction to facilitate his reading and signing. Further, both witnesses testified that Winfield had actually held the document in the air when he read it. If it had been slid to him, Winfield Wong had to pick it up and orientate it to his direction for him to read it. After reading it he had to place the same down on the table for Ng Shun Mo to sign before he himself signed. Thus, it could not have been a simple sliding of the document across the table in the whole process.

288.  There is a difference between Winfield Wong and Ng Shun Mo as regards whether Nina signed the document in their presence. Winfield Wong said she signed after he made the remark that it was a partial will and she should get a solicitor to prepare a formal will and she indicated she understood. He also testified that he asked Nina to put down the date after she signed. On the other hand, Ng Shun Mo testified that Nina had already signed the document before he entered the room.

289.  Both witnesses stood by their evidence in the witness box[82]. Winfield Wong was asked about an attendance note of 21 May 2007 taken by the former solicitor of the Plaintiff[83]. In the attendance note, the solicitor wrote the following,

“WW --- not certain he saw NW sign the document before Ng”.

When he was asked about this by Mr Mill, Winfield Wong said the lawyers at the meeting kept asking him whether it was possible he did not see Nina signed despite he had earlier said it was not like that.

290.  In a subsequent attendance note of 23 November 2007[84], Winfield Wong was recorded to have stated that he saw Nina sign the document.

291.  Notwithstanding the apparent uncertainty recorded in the attendance note of 21 May 2007 and the contrary evidence of Ng Shun Mo, I believe Winfield Wong correctly recalled that Nina did sign the document in his presence on 16 October 2006. Nina did not have any legal training and there is no evidence suggesting that she was familiar with the provisions under Section 5(1)(c) of the Wills Ordinance.

292.  The evidence actually suggests she was not aware that it would have been sufficient if she acknowledged her signature in the presence of the attesting witnesses even though she did not sign the document in their presence. In the preparation of the 2002 Will, Nina had actually signed a copy of that will in the absence of any witnesses and subsequently asked Dinly Au and Joseph Leung to sign as attesting witnesses. However, Joseph Leung declined to sign as Nina did not sign in his presence and she was not in Hong Kong. As a result, Nina executed another copy in the presence of Heng Kim Thiam and Li Chi Ming.      

293.  Thus, when she was about to execute another testamentary document in October 2006, it is more likely than not that she would sign the document in the presence of the attesting witnesses.

294.  Moreover, if Nina had already signed before meeting Winfield Wong and Ng Shun Mo, Winfield Wong would need to ask her to confirm that to be her signature. But the evidence of Ng Shun Mo did not mention Winfield Wong doing so.

295.  Further, as submitted by Mr Chang, Winfield Wong played a more active role in the attestation process and he therefore should have a clearer recollection of what actually happened. On the contrary, Ng Shun Mo played a relatively minor role during the process.

296.  Another difference between the evidence of Winfield Wong and that of Ng Shun Mo is about the manner in which the document was passed around as shown in their respective demonstration. According to Ng Shun Mo the document was slid across the table when Nina gave it to Winfield Wong. According to Winfield Wong, the document was handed by Nina to him in the air. 

297.  Again because Winfield Wong was more involved in the process I prefer his evidence to that of Ng Shun Mo in this regard. Further, since Winfield Wong had read the document by holding it in the air before he asked Nina to sign, it would be natural for him to simply hand the document back to Nina in the manner he demonstrated instead of putting it back onto the table and then slid it across to Nina. Ng Shun Mo did not give any evidence on how Winfield Wong handed the document back to Nina because on his version of event Nina had already signed before she met them.

298.  Given my findings as to how the document was handled at the meeting of 16 October 2006, inevitably there would have been some displacement of the papers, assuming there were two sheets of paper, during the process. This would produce a result incompatible with the Perfect Register.

299.  But my primary conclusion is that there was only one sheet of paper without any crease-fold when it was executed by Nina in the presence of Winfield Wong and Ng Shun Mo. It follows that the document executed on that occasion cannot be the 2006 Will in the light of the ESDA evidence.

300.  In coming to the above conclusion, I have duly taken into account the other evidence relevant to the question of forgery. As I have said above, the handwriting expert opinions are relevant. But before I discuss that, I need to refer to the factual and circumstantial evidence.

Partial will

301.  Winfield Wong testified that the document he witnessed Nina signing on 16 October 2006 was a partial will. He made that remark spontaneously as he read it before passing it back to Nina for her signature. Ng Shun Mo corroborated him as to the spontaneous utterance although he did not recall Nina signing it in his presence. He said she had already signed.

302.  When Ng Shun Mo enquired with Winfield Wong several days after 16 October 2006, Winfield Wong again told him that the document was a partial will making a specific gift of over $10 million to a person. Both Winfield Wong and Ng Shun Mo testified to that incident. Though there were minor differences between them as regards whether Winfield Wong recalled the name of the beneficiary on that occasion and whether Ng Shun Mo told Winfield to keep the matter confidential, they were in agreement that Winfield Wong said it was a partial will making a gift of a specific sum of money to a person.

303.  Ng Shun Mo had to be concerned because he had previously been instructed by Nina to keep in his custody the 2002 Will and to announce it after her death. He wanted to know whether the document executed on 16 October 2006 had any significant impact on the 2002 Will. After hearing what Winfield Wong said on that occasion, Ng Shun Mo was able to inform Dr Kung on 22 October 2006 that the 16 October document was a partial will making a specific gift of a sum over $10 million to a person surnamed Chan.

304.  Winfield Wong also reported to his senior partner Raymond Lau within a week from 16 October 2006 that he had attested to a partial will for Nina.

305.  On a Saturday in October 2006, Ng Shun Mo asked Nina about the partial will. She told him not to bother so much.

306.  These events are significant in determining whether the 2006 Will is the document executed on 16 October 2006. As explained below, Winfield Wong attributed a particular meaning to the expression “partial will” which excluded a document like the 2006 Will[85]. When he used that expression on 16 October 2006, he had also told Nina its implication, viz. she had not completely disposed of her estate by the document executed on that date.

307.  This court has to decide whether as a matter of fact these events occurred as deposed by the witnesses. I shall consider the reliability of the evidence of the witnesses. But it is fair to say Mr Mill had not suggested to the factual witnesses that they were lying in respect of these events though the accuracy of their recollection was challenged.

308.  For reasons given below, I do not regard the 1^st Defendant’s challenge to their recollection valid and I find their evidence on the material parts of these events to be reliable. It is my finding that these events, as set out in the several paragraphs above did occur. Since the comment of Winfield Wong on 16 October 2006 was spontaneous, subject to the likelihood of Winfield Wong making a mistake in his reading of document on that occasion, it constituted contemporaneous evidence of the nature of the document he attested to on 16 October.

309.  Further the response of Nina to such comment was also spontaneous. Subject to a submission by Mr Mill that she was only fobbing off queries from Winfield Wong and Ng Shun Mo, such response constituted contemporaneous evidence of her understanding as to the nature of the document executed by her on 16 October. As explained at greater length below, her understanding can serve as evidence supporting the accuracy of Winfield Wong’s understanding on the effect of the document.

310.  The other events in October 2006 when the expression “partial will” was used to describe the document either by Winfield Wong or Ng Shun Mo did not take place on the same occasion as the execution of the document on 16 October 2006. However, at that stage there was no reason why Winfield Wong or Ng Shun Mo should give an inaccurate description to the document. They can serve as evidence of Winfield Wong’s recollection as to the nature of the document in October 2006 and his then understanding of its effect.    

311.  Though Mr Mill made submissions on the unreliability of the evidence of Winfield Wong on various grounds, I note that counsel was unable to suggest that Winfield Wong and Ng Shun Mo were lying or that they were mistaken about Winfield Wong’s spontaneous remark on 16 October 2006 and the reiteration that the document was a partial will in a subsequent dialogue between Ng Shun Mo and Winfield Wong[86].

312.  On the contrary, it was accepted on behalf of the 1^st Defendant that Winfield Wong did genuinely believe what he attested to on 16 October 2006 was a partial will though it was said that he was mistaken due to the fact that he only had a quick glimpse of the document and he had misread the identity card number of the 1^st Defendant as a bequest of a specific sum of money[87].

313.  Winfield Wong categorically denied that he had made such a mistake. He said his clearest recollection was that there was a specific gift in the document he attested to on 16 October 2006 and that document could not be the 2006 Will[88]. Mr Mill suggested Winfield Wong’s refusal to accept the possibility that he had made a mistake was not honest.

314.  Before I further discuss Mr Mill’s submissions on the unreliability of Winfield Wong’s evidence, I shall examine the response of Nina to the remark that the document she executed on 16 October 2006 was a partial will. The 1^st Defendant’s case is that Nina had full testamentary capacity and knew what she was doing when she executed the document. In other words, she knew she was giving away her entire estate to the 1^st Defendant. Hence when Winfield Wong told her the document was a partial will and there were still a lot of other matters she needed to make arrangement for by having a formal will properly prepared by a solicitor, she would have been surprised as it would be inconsistent with her understanding of its effect. If, as suggested by Mr Mill on behalf of the 1^st Defendant, Winfield Wong had misread the document, I believe Nina would have at least asked for clarification from Winfield Wong as regards why he made such an observation.

315.  According to the evidence of Winfield Wong as well as that of Ng Shun Mo, Nina did not raise any query. Instead, she indicated she understood and agreed with Winfield Wong’s remark. Winfield’s evidence on the spontaneous response of Nina was more specific. Apart from saying that she understood, Nina also said she would deal with it later[89]. Ng Shun Mo only testified that Nina responded by saying she knew[90]. In any event, according to both witnesses, Nina went ahead and executed the document without saying or doing anything to suggest Winfield Wong’s remark did not accord with her understanding of the effect of it.  

316.  Ng Shun Mo had also asked Nina about the partial will on a Saturday after 16 October 2006 (still in October).  According to him, Nina remarked by saying,

“Don’t bother so much. I am fine. Just concentrate on your work and do it.”[91]

317.  Bearing in mind that this occurred shortly after the execution of the document on 16October and there was no indication that Nina did not understand what Ng Shun Mo was referring to in that conversation, it is clear to me that she understood he was talking about the document she executed on 16 October. 

318.  By virtue of the spontaneous remarks of Winfield Wong made on 16 October, Nina must have understood that the effect of a partial will was not a complete disposition of her estate. Notwithstanding that, Nina did not correct Ng Shun Mo on that Saturday as to the notion that the document was a partial will.

319.  This had to be considered against the background that Nina had previously instructed Ng Shun Mo to be the keeper of the 2002 Will and to announce it upon her death. As mentioned, she did not at any stage revoke these instructions to Ng Shun Mo. If her intention were to make a testamentary disposition of her entire estate to the 1^st Defendant by the 16 October document, I believe she would at least have countermanded such instructions given the conflicts between the 2002 Will and the 2006 Will.

320.  In his oral closing submissions, Mr Mill put forward the suggestion that due to her clandestine relationship with the 1^st Defendant she did not wish to draw attention to the disposition in his favour under the 2006 Will and she only did the absolute minimum necessary in order to make it legally free from attack. Counsel further said Nina was aware how unpopular that decision would be and she did not wish to have a huge range of possible approaches from people trying to dissuade her[92].

321.  I cannot accept these submissions. The evidence shows that Nina was a firm person and she made all major decisions which she expected those around her to accept. The evidence of Dinly Au and Wong Leung Woon support this conclusion. The most extreme case of not following her instructions was Joseph Leung’s refusal to sign off the authorization for the transfer of $688 million in December 2005. But that did not prevent her from carrying out her wish. On personal matters, the evidence shows that her siblings were not able to dissuade her from living at the L Hotel instead of staying with Dr Kung at University Height. Dr Gong gave evidence as to how Nina had not allowed her to accompany her for medical treatments on several occasions. Dr Kung gave evidence about how Nina insisted on heeding Fung Shui advices despite his disbelief. Further, notwithstanding Nina’s knowledge of Dr Kung’s opinion of the 1^st Defendant, she continued to maintain her liaison with him.

322.  As to the clandestine aspect of her relationship with the 1^st Defendant, it is a non-starter. Had Nina really made a testamentary disposition in favour of the 1^st Defendant as per the 2006 Will, she had to realize the opprobrium this would inevitably cause in view of the wide media coverage previously given on her intention to donate her entire estate for charitable purposes. Even on the scenario that the 2006 Will was only made public after her death, Nina could surely foresee the potential damage to her reputation should a probate action ensue. It would certainly expose many aspects of her private life to the public gaze which she had strived hard to keep under wraps when she was alive. In a nutshell, I find it unlikely that Nina would have wanted this.       

323.  Thus if her true intention were to give her entire estate to the 1^st Defendant, Nina would have taken every precaution to ensure that the 2006 Will achieve that objective and it would be immune from any legal challenge. In this connection, she must have appreciated that her failure to countermand her instructions to Ng Shun Mo to keep and announce the 2002 Will after her death would be a recipe for disaster.  This is particularly so when she was well aware of the fact that both Ng Shun Mo and Winfield Wong believed they had only attested to a partial will on 16 October 2006. I do not agree that Nina had done the bare minimum to avoid legal challenges to the 2006 Will (assuming that she had such intention) when she did not even countermand her instructions to Ng Shun Mo.

324.  Mr Chang submitted that if the document executed on 16 October 2006 were the 2006 Will, unless it is a Fung Shui will it is unlikely Nina was merely fobbing off Winfield Wong and Ng Shun Mo when she responded to their reference to that document as a partial will[93]. I agree. 

325.  In my judgment, taking all these into account, Ng Shun Mo’s evidence about his conversation with Nina, if accepted by the court, is also evidence pointing to Nina’s acknowledgment that the document she executed on 16 October 2006 was a partial will as observed by Winfield Wong.

326.  Mr Mill suggested to Ng Shun Mo that he was mistaken in his recollection about this conversation. Ng Shun Mo disagreed[94]. Even though Ng Shun Mo failed to mention the conversation he had with Nina on that Saturday in his witness statement, I do not think Mr Mill went so far as to suggest that Ng Shun Mo made up this conversation. The omission in the witness statement was probably due to the failure on the part of whoever taking the statement in thoroughly exploring the matter. I find his evidence in this respect, as with other aspects which I accept in other parts of this judgment, to be truthful and reliable.

327.  Thus it is my finding that Nina herself understood the document she executed on 16 October 2006 was a partial will which did not dispose of her entire estate in favour of the beneficiary named in that document.

328.  There is no direct evidence on who was actually responsible for the preparation and drafting of the 16 October 2006 document. We know it was not drafted by Winfield Wong, nor any one from Chinachem. At the same time, the 1^st Defendant said he also had no idea as to who drafted the document. He said he was just given the set of document (consisting of the 2006 Will and the Unsigned Document) contained in an envelope by Nina. Bearing in mind the degree of close involvement of Nina in the preparation of the 2002 Will and the evidence on how hands-on she was in dealing with her business as well as personal matters, it can be inferred that she had an accurate understanding of the document she brought forward for execution on 16 October 2006. As explained, her understanding was that it was a partial will which did not dispose of her entire estate and it was in line with the spontaneous comments on the document by Winfield Wong on 16 October.

329.  This serves as a strong corroboration of Winfield Wong’s recollection that the document he attested to on 16 October 2006 was a partial will.

330.  Coming back to Mr Mill’s criticism on the reliability of Winfield Wong, I have already dealt with counsel’s submission on the pressure under which Winfield Wong testified in the witness stand and some apparently inconsistent statements in various draft versions of his witness statement which were not adopted by Winfield Wong.

331.  In addition, Mr Mill submitted that Winfield Wong had only had a quick glance of the document as he was trying to avoid prying into the private affairs of Nina and he was only interested in knowing the nature of the document. As such, there are details about the document that he could not remember, e.g. the total number of paragraphs in it, the exact language used for the specific bequest, the full name of the beneficiary. He accepted the signature and handwriting attributable to him on the 2006 Will were similar to his own signature and handwriting[95]. Counsel said Winfield Wong probably got a wrong impression that it was a specific gift when he saw that there was a number and a name. He said the number was actually the identity card number of the 1^st Defendant and Winfield Wong had mistaken that to be a gift of more than $10 million.

332.  With respect, I find the suggestion that Winfield Wong had misread the identity card number of the 1^st Defendant as the amount of the specific bequest to be bizarre. A dollar sign is very different from the abbreviation “HKID” which was clearly typed in front of the identity card number of the 1^st Defendant in the 2006 Will. Winfield Wong was (and still is) a practising solicitor and he had many years of experience in dealing with probate matters and wills. Even though he might not have taken very much time in reading the document on 16 October 2006, I do not believe he could have made such a fundamental mistake. He must have read enough to enable him to form an opinion in his mind before he actually made the observation that it was a partial will.

333.  It is understandable that he could not remember clearly other small details like the full name of the beneficiary, the exact amount of the specific bequest, what were written in the fourth paragraph and the total number of paragraphs in the document as these were not important for his purpose. But the evidence (as set out above) clearly establishes the fact that he made a spontaneous comment that this was a partial will. Thus, he mind must have addressed his mind to the effect of the document in the process of reading before such a comment could have been made. Having done so, it is not surprising that this had a deeper impression on him than the other details.

334.  I do not attach too much significance on Winfield Wong’s acceptance of similarities in the signature and handwriting in the 2006 Will and those of his own. No doubt there are similarities and it was only fair for Winfield Wong, not having any expertise in handwriting, to accept that. But he had steadfastly maintained that the document he attested to was one making a bequest of a specific amount and therefore the 2006 Will was not the document.

335.  Then it is said that Winfield Wong’s evidence cannot be relied upon because of faulty recollection demonstrated by several crucial changes in his instructions to the Plaintiff’s former lawyers[96].

336.  I have already dealt with the supposed change on the most crucial aspect, viz. whether the 2006 Will was the document he attested to given that it did not contain a specific bequest. As regards the other changes referred to by the 1^st Defendant, it suffices for me to make the following observations,

(a)     As I said above, at that stage the former lawyers of the Plaintiff were putting forward various versions for Winfield Wong’s consideration on the understanding that if he found any draft to be inaccurate he was at liberty to amend the same. Hence, whatever recorded in the unsigned drafts cannot be regarded as the evidence of Winfield Wong. This applies equally to the paragraphs in the draft statement of 12 April 2007 dealing with residue and the chop[97] ;

(b)    Further, in view of the evidence of Winfield Wong as to how the meetings with the Plaintiff’s former lawyers were conducted and the inputs of the lawyers to the draft statements, the contents of the attendance notes might not have accurately reflected the firm statements of Winfield Wong as regards what actually happened on 16 October 2006;

(c)     Even if Winfield Wong had wavered on other details regarding the process of execution on 16 October 2006, he had been very consistent as to the bequest of a specific sum in the document executed;

(d)    The evidence of Winfield Wong on the effect of the document is corroborated by the response of Nina as discussed above.   

337.  Counsel made reference to the evidence of Winfield Wong as regards the position in the document where it referred to the specific bequest, in particular his agreement with Mr Mill’s suggestion that he could not tell which line in the paragraph the bequest was stated and all he could tell was that it was at the same spot where the 2006 Will contained the reference to the 1^st Defendant with his identity card number[98]. I do not think this advances the 1^st Defendant’s case any further. There is a huge difference between confusion as to the relative position of a provision and confusion of the reference to a specific amount of money with an identity card number.

338.  Winfield Wong was also adamant that the document executed on 16 October 2006 did not refer to the “residue” or the “remainder” of the estate[99]. He also gave an explanation why he described the document as a partial will instead of a codicil. He only regarded a document disposing of the residue as a codicil. And because the document executed on 16 October 2006 did not contain any disposition regarding the residue, he did not regard it as a codicil. As discussed earlier, this became a point of disagreement between him and Mr Sujanani.

339.  I have already referred to the implication of this disagreement in the earlier discussion on the draft statement of 13 April 2007. Taken together with his spontaneous remark of partial will, Winfield Wong’s own understanding as to the difference between a partial will and a codicil provides a good reason for him to recall that the document he attested to did not contain any provision for residue or remainder of the estate.

340.  This was actually the point he made in the only signed witness statement he gave for this case. In his witness statement of 7 April 2007, a statement made soon after he became aware that the matter was likely to become contentious, he said the following in relation to the absence of any reference to the residue in the document he attested to on 16 October 2006,

“8.     Upon reading the document [viz. the document he attested to], two matters came to my mind. First I noticed that it was only a partial will since there was only a specific gift of a certain sum of money to a named beneficiary. I do not now recall the name of the beneficiary nor the exact amount of the gift, though I believe it was more than HK$10 million. Secondly, there was no provision made in this Will for the residue of Mrs Wang’s estate.

9.      I then confirmed with Mrs Wang as to whether this was her Will. She replied in the affirmative. I then brought to her attention that it was only a partial Will because the residue had not been dealt with but only a specific gift of a certain sum of money to a beneficiary.

10.    She replied that she knew that. She also said she would deal with the residue of the estate later.

 …

20.    Having read Document A [viz. the 2006 Will], I have the following comments to make: …

(2)     Document A deals with Mrs Wang’s entire estate. This is in contrast to the Will which I had witnessed in late 2006 where, having read the Will, I specifically raised with Mrs Wang my concerns that it was only a partial Will, as it did not deal with the residue of her estate, apart from the specific gift of money to a beneficiary; and her agreement to, and knowledge of, this; …

(7)     Further, the wording of Document A is, I believe important. The wording recites that it deals with “All of the rest and residue and remainder of my estate”. This was the very matter to which I had specifically drawn Mrs Wang’s attention to when I was asked to witness her Will in late 2006, and which matters were all absent from the Will I was asked to witness and did witness.”  (Emphasis supplied by me)

341.  When Winfield Wong gave evidence in court[100], he clarified that on 16 October 2006 he did not say specifically that the document did not deal with the residue of Nina’s estate and Nina did not use the expression residue. What actually happened, according to Winfield Wong, was that he told her she had many things that had to be handled subsequently and dealt with, it would be better for her to get a solicitor to make arrangement properly for her. Nina replied she would deal with it later.   

342.  It is entirely understandable that Winfield Wong did not actually use the expression “residue” when he had the conversation with Nina since a layperson might not readily understand the meaning of the expression. But in essence, Winfield Wong told Nina that there were assets she had not disposed of by this document and she indicated she understood.

343.  As far as Winfield Wong’s understanding of the effect of the document he attested to is concerned, I believe what he said in these paragraphs in the statement of 7 April 2007 give us a good idea what went on in his mind when he told Nina that it was only a partial will. They were actually two sides of the same coin: (1) the document only contained a bequest of a specific amount to a person; and (2) the document did not deal with the residue of Nina’s estate. And it is Winfield Wong’s understanding and perception (including his perceived difference between a partial will and codicil) that is important in appreciating the significance of his use of the expression “partial will” to describe the document when he conversed with Nina on 16 October 2006.

344.  When Mr Mill cross-examined Winfield Wong, he suggested Winfield Wong concluded that the document was a partial will only because he saw that it provided for a specific gift and when he gave evidence he simply inferred that there was no reference to the residue. Winfield Wong disagreed and said he recalled that there was no reference to the residue in the document[101].

345.  In this respect, I believe Winfield Wong. He must have read the whole document before he could come to the conclusion that the document did not provide for other things apart from the specific gift. Thus, had there been a provision for the residue of the estate in addition to the specific gift, Winfield Wong must have read it. Further, in the 2006 Will, the reference to “the rest, residue and remainder” of the estate was at the very beginning of the operative part of the document, a few lines above the reference to the identity card number of the 1^st Defendant. Hence it was impossible for Winfield Wong to have missed it before he noticed the name and the identity card number even assuming for a moment that he mistook the latter to be the provision for a specific gift.

346.  Counsel referred to the attendance note of 21 May 2007[102] and suggested that Winfield Wong would equally describe the 2006 Will as a partial will[103]. Winfield Wong disagreed and reiterated that it was Mr Sujanani who equated a partial will with a codicil, a proposition which Winfield Wong steadfastly rejected[104].

347.  I have read the attendance note several times. Having regard to all the evidence, I am satisfied and find that Winfield Wong had all along been drawing a distinction between a partial will and a codicil. Thus, he deleted the reference to the word “codicil” in the draft prepared by Mr Sujanani on 2 May 2007[105].

348.  In the attendance note of 21 May 2007, the part which counsel relied upon was as follows,

“If had seen this document [viz. the 2006 Will] --- WW would have asked if NW done previous Wills as no revocation clause. WW would have said this is only a codicil --- seems previous Will as this only partial Will. Not advise on content as gift for NW to decide.”

349.  The note was not taken in complete sentences and it is not entirely clear what exactly did the phrase “seems previous Will as this only partial Will” mean to convey. But there is a clear statement in the earlier part of the same attendance note indicating that Winfield Wong did not regard the 2006 Will as a partial will and he would not tell Nina that it was a partial will. It reads[106],

“view document [viz. the 2006 Will] --- doubt if one signed is because absence of specific gift --- recalls specific gift. Also if this content same as doc read not advise NW that this a partial will.”

If Winfield Wong did subsequently depart from this position (and a position he had been holding since Mr Sujanani brought up the suggestion that codicil is equal to a partial will) at the same meeting, I would expect the lawyers present to seek clarification and record the same in the attendance note. But there is no such record in the attendance note of 21 May 2007.

350.  I do not think the attendance note shows that Winfield Wong regarded the 2006 Will as a partial will. It follows that his spontaneous comment on 16 October 2006 as to the nature of the document he attested to provides contemporaneous evidence that it was not the 2006 Will. It does not simply depend on the current recollection of Winfield Wong as regards what he read on 16 October 2006. It is part of the event on that fateful day and, as I have already observed, there is ample evidence to establish that the spontaneous utterance[107] was made and Mr Mill did not (and he could not) suggest that the comment had not been made.

351.  The 1^st Defendant also attacked the reliability of Winfield Wong by referring to discrepancies between his evidence and that of Ng Shun Mo as regards what happened on 16 October 2006. In his written closing submissions, Mr Mill identified the principal differences between the two witnesses[108]. Some of the discrepancies I have dealt with in the discussion on the evidence as to the execution process that is relevant to the implication flowing from the hard physical evidence.

352.  The other discrepancies identified are: (1) the order of arrival at the meeting of 16 October; (2) timing of the meeting; (3) location of Nina and the attesting witnesses in the conference room; and (4) order of leaving the conference room.    

353.  These other discrepancies are not germane to Winfield Wong’s evidence on his spontaneous comments of partial will. In any event, having considered the evidence pertaining to such discrepancies, I think they show imperfect recollection of some relatively insignificant details on the part of the two attesting witnesses. This is natural and understandable. I do not find such discrepancies as casting any doubt on the material evidence of these witnesses on Winfield Wong’s “partial will” comments and the events mentioned at the beginning of this section.

354.  A submission was also made as regards the refusal on the part of Winfield Wong and Ng Shun Mo to co-operate with the solicitors of the 1^st Defendant when they were approached for statements about the 2006 Will. I accept that Winfield Wong and Ng Shun Mo were less than forthcoming in their respective response to the invitation from the solicitors for the 1^st Defendant. Each of them gave a statement to the Plaintiff’s former solicitors soon after the death of Nina. But the 1^st Defendant had to issue a summons for subpoenas before their respective witness statements were disclosed to his lawyers in September 2008. Even though there was less delay in the provision of sample signatures by Winfield Wong and Ng Shun Mo, Winfield Wong demanded $100,000 for the exercise on account of the fees charged by his solicitors in relation to the matter. In contrast, Ng Shun Mo’s solicitors charged $6,000 for the exercise.

355.  The 1^st Defendant’s counsel devoted an entire sub-section of his written closing submissions and an appendix to this topic.  For my part, I do not find it necessary to go through all the details in this judgment. Suffice to say I have carefully considered the matters canvassed. At the end of the day, the pertinent issue is the credibility and reliability of these two witnesses as regards the points I discussed above. I can see from the 1^st Defendant’s point of view how the lack of co-operation on the part of these witnesses could incite distrust on his part as to their evidence. I have therefore made sure that the 1^st Defendant was given access to all necessary materials to test their credibility and reliability. Draft statements and attendance notes were made available. Counsel was given every opportunity to cross-examine the witnesses on discrepancies as well as incentive for or inducement to these witnesses to give evidence for the Plaintiff. I also paid careful attention in the assessment of their evidence in considering whether their evidence was tainted by whatever loyalty or bias they harboured for or against any party.

356.  After hearing all the evidence and submissions, as far as the pertinent matters discussed above regarding the event on 16 October 2006 are concerned, I am satisfied that the evidence of Winfield Wong and Ng Shun Mo is not tainted by any conscious or subconscious bias against the 1^st Defendant or loyalty in favour of the Plaintiff.

357.  As mentioned, Mr Mill did not (and on the evidence he could not) suggest that Winfield Wong’s spontaneous comments of partial will was a fabrication or the product of conspiracy between the two attesting witnesses to give such evidence. It was accepted that the spontaneous comments had been made. There is no question of this evidence being distorted on account of bias.

358.  As regards their evidence relevant to the points emerged from the hard physical evidence, I do not believe the witnesses had tailored their evidence to favour the Plaintiff. In fact, Ng Shun Mo’s evidence was set out in his statements well before their significance in the light of the forensic examination could have been appreciated. The same can be said regarding Winfield Wong’s evidence about Nina’s execution of the document in their presence.

359.  Winfield Wong’s communications with the Plaintiff’s lawyers and his refusal to subscribe to the idea of the document attested to being a codicil is, in my view, indicative that his prime concern was the truth rather than giving evidence in favour of the Plaintiff.

360.  Hence, the evidence of Winfield Wong and Ng Shun Mo proves that the document attested to by them on 16 October 2006 was not the 2006 Will.

The 1^st Defendant’s evidence on the provenance of the 2006 Will

361.  I now turn to examine the evidence of the 1^st Defendant as to the provenance of the 2006 Will. He said he did not know how the 2006 Will was prepared and executed. He was not present at the occasion when Nina executed the same. Thus he could not give any direct evidence on the attestation of the 2006 Will. But as I said above, he gave evidence as to the provenance of the 2006 Will. If such evidence were accepted by the court, it would be indirect evidence supporting the authenticity of the 2006 Will as there was no reason why Nina would give him a forged will.

362.  The 1^st Defendant testified that on 15 October 2006, he met Nina as usual (viz. late at night) and she told him not to leave Hong Kong in the next few days. Then on 16 October early in the morning at 7:05 and 7:22 am, Nina phoned him and asked him to come to her living quarter at about 10:30 pm that evening. When he met her that evening, she told him to get an envelope on the top of a cupboard. Then she told him to open the envelope and cautioned him to be careful with fingerprints regarding the documents inside.

363.  After he took the documents out from the envelope, he found there were two documents, viz. the 2006 Will and the Unsigned Document. He had a quick look and realized that the first document was a will with his name on it. He said to Nina, “You are going to give me trouble.” Nina told him to take the envelope and the documents back to his home and keep it safely and securely.

364.  He went home with the documents and put them into two plastic folders. Then he read the contents again. Nina called him and asked him to go back to her residence. He returned and reiterated that this would cause him trouble. Nina replied that that would be his problem.

365.  She then gave him some oral instructions. She instructed him to look after the Kung and the Wang family. He asked her how  that was to be done. She told him to provide living expenses to the Wang family, in particular the sister of Teddy Wang (in accordance with the wish of Teddy Wang) and to maintain the living standard of the Kung family.

366.  Nina stressed the importance of educating the next generation. Nina asked the 1^st Defendant to look after the education needs of those children in the Wang and Kung families and children of the staff of Chinachem who were doing well in their study. He was instructed to set up a scholarship for the latter.

367.  He said Nina paid high regard to the wish of Teddy and the latter did not want members of the Kung family to take part in the management of Chinachem. Initially, in his Supplemental Witness Statement[109], he said Nina also instructed him to set up a prize similar to the Nobel Prize. But in his oral evidence, under cross-examination, he retracted that and said by that stage Nina realized that the idea was not workable and the most that could be done was to set up a scholarship[110].

368.  In his first witness statement[111], the 1^st Defendant said Nina also told him on that occasion to keep the status quo of Chinachem and to manage it well. She also said she made this will at that stage because she did not want to leave it to a time when she had no ability to do so.

369.  Though the 1^st Defendant did not ask Nina how and by whom the documents were prepared, he said he believed Nina was good in English and she could type[112]. In his list of documents, a 1958 certificate issued by Maryknoll Convent was disclosed to make the last point. However, when he was cross-examined as to the reason why he kept such a document, he said he did not know how it was obtained by him and his lawyer did not show it to him[113]. 

370.  I have discussed certain aspects pertaining to the credibility of the 1^st Defendant in my above consideration as to his relationship with Nina. In short, I do not find him to be a credible witness and I find in many respects his evidence was tailored to suit his convenience. I do not believe what he testified regarding the provenance of the 2006 Will. Apart from my general assessment of his credibility, I also find his evidence incredible on account of the following broad grounds which I shall elaborate at greater length below.

(a)     The unlikelihood of Nina making the 1^st Defendant the person to inherit her entire estate and to discharge the responsibilities imposed upon her successor;

(b)    The physical condition of Nina and the events leading to the night of 16 October;

(c)     The inexplicable features in the 1^st Defendant’s version of events in the night of 16 October;

(d)    The secrecy in the 1^st Defendant’s handling of the 2006 Will before Nina’s death in contrast with the high profile manner in which he handled it soon after her demise. 

371.  In coming to such conclusion, I have not overlooked Mr Mill’s submission on the inherent probabilities and I shall deal with it later. Nor am I ignoring the stricture against elevating suspicious circumstances to positive proof of forgery emphasized by the Court of Final Appeal in Nina Kung. In this part of the judgment, I am only considering the credibility of the 1^st Defendant’s evidence as to the provenance of the 2006 Will. I do not think the approach laid down in Nina Kung forbids the court from taking inherent probabilities into account in the assessment of the credibility of a witness’s evidence. What is forbidden is the drawing of an inference of forgery simply on account of suspicious circumstances.

372.  Thus, even though I reject the evidence of the 1^st Defendant on the provenance of the 2006 Will, it does not mean that I can thereby conclude that the 2006 Will is a forgery. It only means that in the assessment of the other evidence relevant to the question of forgery, the 1^st Defendant’s evidence on the provenance of the 2006 Will cannot tilt the balance. I recognize that there must still be cogent evidence commensurate with the Re H standard before the court can reach a finding of forgery.

The improbability of Nina appointing the 1^st Defendant to be her successor and appointing him as successor in such a manner

373.  To start with, as I said earlier, even though Nina had a secret liaison with the 1^st Defendant, I do not believe that their relationship was such that she was prepared to give him her entire estate irrespective of her other commitments and responsibilities. I do not believe Nina would give him the steer or chairmanship of the Chinachem business empire built up by the joint efforts of Nina and Teddy bearing in mind that he had not proved himself to be a man of good business acumen capable of leading such empire.

374.  Further, he was at all time the husband of another woman with whom three children were born. At no time had there been any suggestion that he would leave that woman for Nina. Giving him gifts or even large sums of money during Nina’s lifetime when he made her happy is one thing. Making him her sole heir in respect of her entire estate (carrying with it the responsibility of running the Chinachem business empire and implementing her charitable objectives) is quite different. 

375.  For reasons I have already discussed, I believe until her death Nina intended to use her estate for charitable purposes as stipulated in the 2002 Will. Given the lavish lifestyle of the 1^st Defendant, he was not a natural candidate for carrying out such objectives.

376.  Even though the 1^st Defendant had various business ventures, including a real estate business which was not that successful, it is not suggested that he had the necessary commercial experience to run a large business conglomerate like the Chinachem group[114]. I have read the transcripts of some telephone calls between Nina and the 1^st Defendant. Some of them do contain conversations regarding some business transactions Nina was considering, and she did discuss with the 1^st Defendant on some of them. But I do not think such evidence can be elevated to evidence establishing Nina having a high regard for the commercial ability of the 1^st Defendant, so much so that she would place the entire business in his hands.

377.  The 1^st Defendant himself testified that on the earlier occasion when Nina made him a director in a joint venture company in China, he told her not to give him any job position which would involve concrete duties[115]. He also testified that he did not regard himself to be competent to take up the invitation by Nina to join the board of Chinachem[116] and he was afraid that his participation in her business would lead to quarrels as he would not do things well and Nina would regarded him to be lazy, not attentive and not up to standard[117].

378.  It should be noted that even on the 1^st Defendant’s case, Nina did not name him as beneficiary to her estate simply for the purpose of making a gift to him. He said Nina gave him some oral instructions for him to follow and he regarded such instructions to be important[118]. His understanding was that he was obliged to follow those instructions even though they were not set out in writing. It was therefore not a simple testamentary gift. It was a gift attached with certain responsibilities including the responsibility to run the Chinachem group and to materialize the charitable objectives of Nina.

379.  Had Nina formed an intention to place such responsibilities on the 1^st Defendant, she would have taken steps to ensure that the 1^st Defendant’s entitlement to her estate would not be subject to any unnecessary challenges. Having been involved in a heavy piece of litigation with her father-in-law that lasted for years with so many uncertainties in between, Nina had first hand experience of how costly and attritional probate litigation could be and the adverse effect it could cause to the business of Chinachem. She would certainly take precaution to avoid a similar fate falling upon her successor-in-title. The 1^st Defendant testified that she was concerned about the security of the 2006 Will on an occasion when he visited her in January 2007. There is no reason why a woman like Nina would not foresee the difficulties in the transition of power over the Chinachem empire if the senior management has doubts about the validity of the 2006 Will. 

380.  Nina was aware that she had made an earlier will in 2002 and had knowledge of Winfield Wong and Ng Shun Mo’s understanding as to the effect of the document they attested to on 16 October 2006. I have alluded to the steps she would have taken regarding her instructions to Ng Shun Mo about the 2002 Will. In addition, as shown by her ability to prevent her god-son Anthony Cheung from being appointed as a director of the Plaintiff, Nina was still very much in control as far as major decisions were concerned up to at least March 2007. She could therefore give oral instructions to the senior management in Chinachem about her succession plan and direct measures to be taken to facilitate the smooth assumption of control by the 1^st Defendant. But she did not make any preparations along these lines.

381.  When one compares the oral instructions allegedly given to the 1^st Defendant during that fateful night and the contents of the 2002 Will, one cannot help but notice the striking similarities as to the provisions in the two testamentary exercises. The difference was in terms of provision for Kung family members. The 1^st Defendant also changed his evidence when he testified in the witness box about whether the oral instructions included the setting up of a prize equivalent to the Nobel Prize. To implement her wish to have her testamentary instructions carried out under the leadership of the 1^st Defendant, all she needed to do was to procure the appointment of the 1^st Defendant as the chairman of the Plaintiff. When the 1^st Defendant was cross-examined along this line, he said Nina did not pay attention to the Plaintiff and she did not intend to let it continue with its operation. I have examined the works of the Plaintiff over the years and Nina’s active participation in it right till the final stage of her life. I prefer the evidence of the Plaintiff’s witnesses about Nina’s dedication to the charitable works undertaken by the Plaintiff to the 1^st Defendant’s evidence.

382.  Mr Mill submitted that in view of the clandestine nature of Nina’s relationship with the 1^st Defendant and the unpopularity of the choice, she would probably want to keep her appointment of him as her successor a secret. But counsel acknowledged it was inevitable that Winfield Wong and Ng Shun Mo acquired knowledge of the contents of the will as attesting witnesses. According to their evidence, Nina did not request them to keep the matter secret.

383.  The involvement of Ng Shun Mo is significant because (1) he had been instructed to keep and announce the 2002 Will; (2) he was in the senior management of Chinachem; and (3) he had contacts with Dr Kung. Thus if there were a testamentary appointment by Nina of the 1^st Defendant as successor in place of the Plaintiff and it was unpopular, Ng Shun Mo would be concerned[119] and any wish on the part of Nina to keep the matter confidential would be frustrated as far as the siblings of Nina and the senior management of Chinachem were concerned.

384.  Actually, the 1^st Defendant gave conflicting evidence about Nina’s wish to keep her relationship with him secret. On the one hand, he testified that Nina had asked him to join Chinachem and become its chairman and she would then be able to focus on her health. The appointment of the 1^st Defendant to join the board of Chinachem, not to mention his appointment as chairman, would be a very high profile act causing media interest in the background of the 1^st Defendant. It would inevitably lead to the exposure of their relationship and her health problems. That would be inconsistent with a wish to keep the relationship a secret.

385.  The 1^st Defendant gave different versions of Nina’s invitation to him to join Chinachem at different stages. In his first witness statement[120], he said she asked him to join the board of Chinachem after she had given the 2006 Will to him. In his supplemental statement[121], he said after their reunion in 2005, Nina invited him to join the board of Chinachem several times and he believed she wanted him to become its chairman. When he was cross-examined, his evidence became this: when they reunited in November 2005 Nina said she wanted him to become the chairman. And he declined the invitation. He said that was the only occasion she asked him to be the chairman though there were other occasions where she asked him to join Chinachem[122].

386.  On the other hand, he said Nina wanted to conceal their relationship and to maintain the charade that he was her Fung Shui master by asking him to supervise the digging of holes after they reunited.

387.  I mention these to highlight the internal inconsistency in the 1^st Defendant’s own evidence. As far as the findings of this court are concerned, I have set out in earlier part of this judgment discussing the relationship between the 1^st Defendant and Nina my finding that these holes digging exercises were commissioned by Nina on what she believed to be sound Fung Shui advice of the 1^st Defendant. They were not done as a charade. As regards the 1^st Defendant evidence on Nina’s invitation to him to join the board, even taking into account of their secret liaison, due to the various changes in his testimony and his general lack of credibility, and the inherent unlikelihood of Nina choosing him to succeed her leadership of Chinachem, I do not believe him.

388.  As a matter of fact, not only did Nina refrain from taking steps to announce her succession plan to the senior management of Chinachem, she at no time told her siblings that it was her wish to entrust Chinachem to the 1^st Defendant after her death. On 14 October 2006, when Mrs Tong met the 1^st Defendant at the living quarter of Nina, Nina told her that the 1^st Defendant came to perform massage for her. On another occasion in late October when Dr Kung came across the 1^st Defendant at the hospital after the latter paid a visit to Nina, Nina again told Dr Kung that the 1^st Defendant came to perform massage[123]. From Dr Kung’s rather uncharitable remark concerning the 1^st Defendant, Nina had to be well aware of the sentiment harboured by Dr Kung towards the 1^st Defendant. Nina was also aware of her other sibling Dr Gong’s attitude towards the 1^st Defendant in the light of her previous attempts to dissuade her from being subject to his influence[124].

389.  It could not have escaped Nina that if she did nothing to make known to her siblings such a controversial appointment of successor (if that were really her intention), serious conflict would inevitably ensue after her death. This was particularly so when she had instructed Ng Shun Mo to announce the 2002 Will to her siblings after her death and she had not countermanded that instruction when Ng Shun Mo brought up the question of partial will shortly after the execution of the document on 16 October 2006.    

390.  Coming back to Mr Mill’s submission about Nina’s probable wish to maintain secrecy, I think one has to place oneself in her position in the period between October 2006 and March 2007. The merit of the submission can be tested as follows. Assuming Nina did intend to appoint the 1^st Defendant as a successor to her business empire and to carry out her wishes as per her alleged oral instructions, she faced a dilemma. She had to choose between (1) keeping the clandestine relationship with the 1^st Defendant secret and hoping things could be sorted out amicably after her death and (2) letting at least the senior management of Chinachem and her siblings know in advance her succession plan and if necessary exerting some personal influence to persuade those close to her to accept her decision. If she chose the former, based on what she knew, the prospect of an amicable resolution of the situation was dim. It would probably lead to another probate action. If she chose the latter, she could at least try to preserve some kind of secrecy by asking her siblings and the senior management to respect her wish of confidentiality. 

391.  If Nina had really been seriously planning to make the 1^st Defendant her successor in the Chinachem empire, I do not think she would fail to see the wisdom of choosing the latter course over the former. To suggest Nina would simply shrug it off and said to the 1^st Defendant that it was his problem[125] is totally out of character of a shrewd businesswoman who had cared so much for her business empire during her lifetime. It is simply incredible.

392.  Mr Mill submitted that Nina did take steps to enhance the status of the 1^st Defendant so as to make him the natural and fitting heir to take over the Chinachem business[126]. Counsel referred to the three sums of $688 million each paid by Nina to the 1^st Defendant’s nominee in December 2005 and June and October 2006 respectively. These monies were paid, counsel said, to ensure that the 1^st Defendant was established as a wealthy and successful man. It was suggested that these payments were made in conjunction with Nina’s invitations to 1^st Defendant to join the board of Chinachem and/or take over the mantle of chairmanship of the business empire.

393.  Counsel for the Plaintiff contended that these payments were made for Fung Shui services associated with the digging of holes. I will come back to Plaintiff’s submission as to the nature of these payments later. But irrespective of my finding as to whether they were payments for Fung Shui services, I am very certain that they were not made for the purposes suggested by Mr Mill.

394.  First, there is simply a lack of evidential basis for such suggestion. The 1^st Defendant did not testify that Nina made these payments to him for the purpose of establishing him as a fitting heir to the Chinachem empire. He said it was a simple unsolicited and unwanted gift. He spent the money on buying aircraft and luxury properties and invested in PRC projects and a company listed on the Hong Kong GEM board. There is no evidence showing these investments had anything to do with the business of Chinachem.

395.  As regards the suggestion that the payments were made in conjunction with Nina’s invitations to the 1^st Defendant to join Chinachem, I have already explained why I do not believe such invitations had ever been made. In his testimony, the 1^st Defendant did not suggest that Nina had said anything to him linking these payments with his future succession to her leadership of the Chinachem empire. When cross-examined about why Nina made these gifts to him, the 1^st Defendant said it was because she loved him[127]. He said he had even argued with her because he did not need the money and he did not want it. But she insisted on making such gifts. If the real purpose of Nina were to establish him financially as her heir, she would have told him why it was important to make him wealthier. Even on the evidence of the 1^st Defendant, nothing of that sort had been said. 

396.  Second, if the purpose of the gifts were to establish the 1^st Defendant, it is difficult to reconcile that with the manner in which the funds were procured and the involvement of the senior management of Chinachem in the process. These payments were paid to a bank account of a BVI company called Offshore Group Holdings Limited [“OGHL”], which was beneficially owned by the 1^st Defendant. The first payment was made in December 2005 whilst Nina was not in Hong Kong. There was insufficient cash-flow for Nina to make that payment and she had to utilize her loan facilities to do so[128]. And because she was not in Hong Kong, she had to instruct Dinly Au by long-distance phone call to get the particulars of the payee from a note left in her drawer before she flew to Boston on 6 December 2005. She had to ask Joseph Leung on 9 December to arrange for the transfer of funds and Joseph refused to do so because Nina was not willing to disclose the purpose of the transfer. He got so upset that he tendered resignation on the same date. The transfer had to be signed off by Ng Shun Mo and KP Chan, the latter only agreed to do so after Nina gave him a written confirmation. If it was just a gift to establish the 1^st Defendant, it is difficult to understand why Nina was in such a hurry.

397.  Further, Nina kept a set of draft documents given to her by the 1^st Defendant concerning a tripartite transaction for the acquisition of 49% in OGHL. In those documents, the ultimate beneficiary of OGHL was stated to be a Chan Chun Hung Bobby. It did not take much imagination for any person having access to such documents to associate the 1^st Defendant with that person, who turns out to be his brother and nominee in holding the shares of OGHL. The draft documents were actually discovered by Dinly Au in an envelope from the personal effects of Nina after her demise. At the back of the envelope Nina had written down the name and the account number of OGHL. It is as good as telling those who might have access to her personal effects, including Dinly Au, to whom the money had gone as far as the three payments are concerned. Such gifts cannot be conducive to the establishment of the 1^st Defendant in the eyes of the senior management of Chinachem.

398.  It could not have escaped Nina that the more important task in establishing the 1^st Defendant as her successor (if that were her plan) was to enhance his image as a businessman with sound commercial judgment as opposed to a Fung Shui master. Yet, according to the 1^st Defendant, Nina was positively cultivating the latter image by ordering the hole-digging exercises. It does not make any sense.

399.  I therefore reject Mr Mill’s submissions on the nature of these payments. I do not think it can be inferred from these payments that Nina intended the 1^st Defendant to be her heir. On the contrary, if she were to give him everything under the 2006 Will and he was not in need of any money, why would she go to such length (using her credit facilities) to pay such large sums to him?

Health of Nina and preparation of the document executed on 16 October 

400.  Nina had all along fought her cancer with a strong will to live.  Therefore I have to consider the possibility that she did not take steps to project the 1^st Defendant as her successor because of her optimism. After reviewing the evidence assisted by the helpful chronologies supplied by the parties, I rule out that possibility.

401.  Even on the 1^st Defendant’s evidence, Nina worried that she might not be able to make the 2006 Will if she did not do so by mid October 2006. Thus she told him she wanted to do it when she was still able.

402.  There is other evidence showing that she was actually very weak by mid October 2006. It was unlikely that she could have drafted, typed and prepared the document she executed on 16 October 2006 all by herself. A brief survey of the decline of her condition from August 2006 onwards will bear this out.

403.  Thomas Chan gave evidence regarding Nina’s well being at his meeting with her in Singapore on 14 August 2006 at the lobby lounge of a hotel. Mr Chang challenged that evidence and pointed out that Nina required a wheelchair when she arrived at the airport and on admission to the hospital on 15 August. According to the medical notes of the KK Women’s an Children’s hospital[129], when Nina attended the hospital on 15 August at 8:30am, it was reported that she had been feeling weak and lethargic. She experienced breathlessness on mild exertion and she had been eating but not too well.

404.  Mrs Tong accompanied Nina during that Singaporean visit. She said she had to help Nina in her bathing because Nina was too weak to get in and out of the bathtub by herself. However, because Thomas Chan had not yet given his evidence when Mrs Tong testified and there was no witness statement from Thomas Chan, Mrs Tong was not asked about this meeting at the lobby lounge.

405.  The meeting with Thomas Chan was short. He observed that Nina could walk by herself to the lift after the meeting. He also said Nina was unaccompanied at the meeting. I do not regard the evidence of Thomas Chan as being inconsistent with the evidence of Mrs Tong or the hospital record. As far as the general physical condition of Nina is concerned, the most reliable evidence must be the medical record.

406.  However, I believe Nina’s condition deteriorated rapidly from August to October 2006. By mid-October 2006, Nina realized her condition was very bad. In early October, without treatment by way of abdominal tap and pleural tap, the ascites and pleural effusion had rendered breathing difficult for her[130]. It made her easily tired and breathless on mild exertion. Constipation was another problem. She lost her appetite. She had to defer treatments twice because she was not physically well enough to fly to Singapore. During her hospitalization in Singapore between 4 to 11 October 2006, her condition was described by Dr Tan as lethargic. On 4 October, an abdominal tap was performed draining 1.75 litres of ascitic fluid from her. Then on 5 October, 700-800 mls of fluid were drained from her left chest. She was unable to eat and had to live on TPN from 6 to 9 October. Pleural effusion re-accumulated and on 10 October her left thorax was drained again. Her condition was so poor that Professor Tay testified as follows,

“At this time, I would have stopped all treatment if Nina had so wished. Further pursuit of anti-cancer therapy would compromise her quality of life and did not seem to be working.”

407.  Professor Tay had a discussion with Nina and Mrs Tong on 10 October 2006. He told them Nina’s prognosis was very bleak. In his opinion, if Nina did not have good medical support and maintenance, she could collapse at any time. He was worried as Nina’s condition could deteriorate for the worse anytime. She was advised by the doctors in Singapore that her condition did not permit her to fly to Singapore for treatment in the future. Due to her weak condition, her return to Hong Kong was delayed for two days.

408.  Insofar as the 1^st Defendant still relied on the nursing notes to suggest that Nina’s condition were not as serious as depicted by the treating doctors, Professor Tay gave an explanation in his oral evidence as to how the nursing notes were compiled and the purposes for which such notes were kept[131]. The treating doctors also kept their own contemporaneous notes. I do not think the nursing notes provided a good ground for doubting the treating doctors’ evidence on Nina’s condition and prognosis. 

409.  Even though Nina gave an impression to the Singaporean doctors that she refused to accept she was losing the battle and she would fight on despite doctors’ opinions that treatments were futile, she actually understood the implications of the advice from them. This is clearly borne out in the 1^st Defendant’s evidence as to Nina’s own perception as to the seriousness of her condition. She told him she was seriously ill and so ill that she could not even go to Singapore[132].

410.  Nina was reluctant to have medical treatments in Hong Kong as she was worried about news of her illness being leaked to the public. Hence, to her, it was a last resort. By mid-October, she realized she had no other option because she was too weak to travel to Singapore and she needed local medical care.

411.  Apart from the medical evidence, the Plaintiff called several factual witnesses to testify about Nina’s physical condition around mid-October 2006. Mr Mill made some submissions regarding the credibility of the siblings. Counsel said their animosity towards the 1^st Defendant was obvious and such animosity has infected their evidence. It was also submitted that the siblings had deliberately exaggerated the severity of Nina’s condition in order to improve the Plaintiff’s chance of success. Another witness, Dinly Au, was also said to be untruthful and biased so that she described Nina as “very ill” and “extremely ill” whenever possible.

412.  Putting aside the evidence of these witnesses for the time being, there are other factual witnesses who gave evidence on the health of Nina. There is evidence from a cleaning worker[133] attending to the tidiness of the living quarter of Nina at Chinachem Golden Plaza and a room attendant[134] at the L’Hotel cleaning the suite in which Nina stayed in 2006. These witnesses had to clean the room, utensil and beddings when Nina vomited in her living quarter or hotel suite.

413.  It is not necessary to go into the details. I do not see any basis for doubting the credibility of these witnesses. From their evidence, it is quite clear that by late September 2006, Nina was very weak and she had difficulties in walking without any assistance. She was tired most of the time and she did not eat much. Quite often, she vomited badly. She also suffered from incontinence.

414.  Some other staff[135] of the L’Hotel also gave evidence as to how Nina had become less active in enquiring about the business of the hotel as her health declined since about July 2006 and how she needed assistance with walking.

415.  Two staff of Chinachem[136] working on the same floor where Nina had her office gave evidence as to the observable decline in Nina’s health since July/August 2006.   

416.  In his supplemental witness statement[137], the 1^st Defendant said the siblings had grossly exaggerated Nina’s poor health. He said she was still capable of walking around inside her room by herself without any assistance and she did not suffer from any incontinence. He admitted she had used wheelchair on some occasions for convenience and she did vomit and suffer from shortness of breath from time to time. However, he said she had not lost her appetite and he found her quite talkative. He said Nina’s condition did not prompt him to believe she needed immediate medical attention. 

417.  At this juncture, I do not propose to deal with the dispute in respect of the mental capacity of Nina and I confine myself to the examination of the physical condition of Nina around mid October 2006. As far as the condition of Nina around mid October 2006 is concerned, I find the evidence of Mrs Tong and Dr Kung to be more consistent with that given by these other witnesses and the medical records as compared with the evidence of the 1^st Defendant. I prefer their evidence to that of the 1^st Defendant. 

418.  Nina flew back from Singapore on 11 October 2006. Upon arrival, she used a wheelchair to get to her car. At Nina’s request, a crab meal was arranged for her in the afternoon. But she was only able to taste it without actually swallowing much. She was then brought to the L’ Hotel. She stayed there until 13 October. She had to delay her return to the office because she was not feeling well and vomited badly on 12 October.

419.  From 13 to 16 October, she lived at the living quarter at Chinachem Golden Plaza. She had a telephone conference in the afternoon of 13 October which lasted for more than 2 hours. Dinly Au found Nina to be weak and sick and her evidence is that Nina did not sign any documents from 11 to 19 October. When Mrs Tong brought her some documents to sign on 13 October, she found Nina having a bad headache.

420.  It was Dr Kung’s birthday on 14 October but Nina was too sick to attend the celebration dinner that evening. Mrs Tong brought Nina her favourite food after the dinner but she did not eat it. She told Mrs Tong that she had vomited badly. It was on that occasion Nina told Mrs Tong to give her contact information to the 1^st Defendant.

421.  Nina had to put off a site visit with Mr Heng on 15 October. Dr Kung visited Nina around 1:30 pm. She looked weak and tired and she had a severe headache. She was lying down on the sofa bed all the time. The food Mrs Tong brought her the night before was not consumed.

422.  Dr Kung visited her again in the morning of 16 October at around 8:00am. She appeared to be quite weak and she was not willing to talk. She was still lying on the sofa bed.

423.  Nina asked Dinly Au to arrange for Winfield Wong and Ng Shun Mo to come to her office to attest to her execution of a document that morning. She was able to get dressed by herself. During the course of the execution of the document, she was able to communicate with Winfield Wong without any apparent difficulties and she understood questions from him and answered clearly. At the same time, Ng Shun Mo said Nina looked very tired and she was very thin.

424.  Mrs Tong saw her around noon and Nina was so weak that Mrs Tong called Dr Kung to come around during lunch time. When Dr Kung met her, Nina agreed to seek medical treatment locally. At first she suggested Shenzhen. But after Dr Kung told her the greater risk of leakage of news as to her ill-health in Shenzhen, she agreed to seek medical treatment in Hong Kong. Dr Kung then made arrangement for consulting Dr Thomas Leung at the Hong Kong Sanatorium that evening.

425.  That evening Dr Kung came to the living quarter to bring Nina to see Dr Leung. From the living quarter, Nina had to walk past the office area and then go down one floor through a big staircase before she reached the lift. Dr Kung gave evidence on how Nina had to be assisted by him for that part of her journey. This is corroborated by what happened on another occasion in October witnessed by Dinly Au where Nina had to be carried by a security personnel to her living quarter when she returned because she was too weak to climb the stair.   

426.  At the consultation, according to Dr Leung, Nina participated and she gave consent for treatment. She was admitted to the Hong Kong Sanatorium on 18 October and received chemotherapy, TPN and blood transfusion. When she received her medical treatments in Singapore, TPN was the nutritional support administered to Nina necessitated by her loss of appetite and prone to vomiting. After her return to Hong Kong on 11 October, she did not have any TPN treatment until 18 October.

427.  I have examined the condition of Nina from 11 to 18 October at length in order to demonstrate that her physical mobility during that period was greatly restricted. In particular, after she had moved back to the Chinachem Golden Plaza on 13 October 2006, she was virtually confined to her living quarter and her office. I find as a fact that she was too weak physically to travel up and down by herself the staircase leading to the lower level where she could have access to the lift. Also, the preponderance of the evidence is that between 14 and 16 October, she spent most of her time sleeping or lying on her bed and she was not as energetic as the 1^st Defendant depicted in his evidence.

428.  It would be absurd to suggest that Nina prepared the document executed on 16 October 2006 by herself.  Even though she had learnt typing in the 1950’s, it is ridiculous to suggest she typed this document in October 2006 when she was seriously ill, not to mention that she had to type the document for at least two times: in the envelope there were both the 2006 Will as well as the Unsigned Document.

429.  These documents were in English and contained some legal jargons which would not be familiar to a layman. Mr Mill suggested in his final submission that the contents could have been copied from some specimen wills available on the internet. There is no evidence suggesting that Nina had the habit of using the internet. Given her state of health in October 2006, it is difficult to see how she would have the energy to make such a search even if she had access to the internet. And it is not only a matter of searching over the internet, she would also have to understand what these specimen wills were purporting to do. She was quite cautious when the 2002 Will was prepared. Several drafts were prepared and considered. In her home-made will made in 2002, she used the Chinese language. If she were drafting another will, and if she were to copy from a precedent, she would probably copy from the wordings of the 2002 Will as she only needs to make very little modification to achieve her purpose (assuming she intended to make the 1^st Defendant the sole beneficiary as opposed to the Plaintiff). It would be much easier than searching over the internet for an English precedent.

430.  I have no hesitation in concluding that the 2006 Will and the Unsigned Document were not prepared by Nina. Who prepared them (or the Specific Bequest Will, which was the document executed on 16 October according to the Plaintiff’s case)?

431.  In October 2006, there were only a few people who had access to Nina. As mentioned, neither the siblings nor any one in Chinachem office close to Nina prepared these documents. I have no doubt that they were telling the truth because I am quite satisfied that the 2006 Will was a big shock to them when the 1^st Defendant put it forward after the death of Nina. By elimination, the only other person who had met Nina at that time who was likely to have a part to play in the preparation of these documents was the 1^st Defendant. If Nina were to make him the sole beneficiary of her estate (or to make a specific bequest to him) and she could not do it by herself, naturally she would ask him to help her in getting the will prepared.

432.  Yet the 1^st Defendant said Nina had not discussed this will with him before she handed him the executed documents on 16 October 2006. I find that unbelievable. By saying that he was not involved in the preparation of the 2006 Will, the 1^st Defendant avoided the need to give satisfactory answers to some questions which cast light on the authenticity of the document: when and to whom did Nina give instructions for the 2006 Will to be prepared? Why did she not engage a lawyer to prepare such document? Who actually drafted the document for her and why he did not call such person to come forward to give evidence? Why was the will drafted in English?

Some inexplicable features

433.  According to the 1^st Defendant, when Nina told him to retrieve the envelope containing the 2006 Will, she asked him to open the envelope and check the contents but cautioned him to “watch fingerprints” meaning that he should not leave any fingerprints on the document.

434.  As submitted by Plaintiff’s counsel, this caution did not make any sense. If Nina did intend to give the 2006 Will to the 1^st Defendant for safekeeping, it would be natural that his fingerprints could be found on the document. Nina did not make a similar request to Ng Shun Mo when she asked him to keep the 2002 Will. Throughout the process of execution, Nina did not request Winfield Wong or Ng Shun Mo not to leave any fingerprints on the document.

435.  The 1^st Defendant said he did not know why Nina gave him such a caution. When he was asked to think about the reason, he suggested it might have something to do with Nina’s experience in previous litigation and Nina learnt that wills had to be dealt with carefully. I must confess I have difficulty in understanding how that could be the reason. Anyway, the 1^st Defendant said he just followed Nina’s instructions.

436.  The Plaintiff suggested the 1^st Defendant made up this caution to forestall challenge to the authenticity of the 2006 Will on the ground that Nina’s fingerprints could not be found on it. I find that to be speculative and I do not need think it is necessary to identify a reason for lying. All I need to say is that I do not believe Nina gave him that caution. There is an element of internal inconsistency in the 1^st Defendant’s story. The 1^st Defendant’s evidence was that everyone would follow Nina’s wishes[138]. Thus, on his own case, she had no reason to believe that the 2006 Will would be subject to challenge and she had no need to be cautious about fingerprints.

437.  The 1^st Defendant said after he had a look at the documents, Nina told him to take them away even though he had some questions he wanted to ask. And she told him to come back afterwards. He did so accordingly. When he returned, she gave him some oral instructions.

438.  If Nina intended to give him some oral instructions which were not set out in the will itself, it would be more sensible to discuss those with him and make sure he understood before giving him the possession of the will. In any event, there was no reason why she required him to take the documents away first and making him come back before giving him her oral instructions.

439.  Nina told him to read the documents before coming back for oral instructions. He said he did so and he understood that Nina was giving everything to him. But when he went back, he did not ask Nina why the 2006 Will provided that it was for the need and good of her family and loved ones when he would have her entire estate. He did not ask her who came within her definition of “family and loved ones”. The 2006 Will stipulates that he would determine the distribution and use of her estate in a good and proper way. But on what basis was he supposed to make the distribution?  Who would be entitled? And how much would each beneficiary be entitled? How did that square with his own idea that she was giving everything to him? Even the oral instructions of Nina did not give him much guidance in that regard. Yet he did not question Nina as to how much was to spend on looking after the Wang family, how much on the Kung family, and how much on providing scholarships to children of the staff of Chinachem. And how much he could spend on his own self and his family. Nor were there any subsequent discussions between him and Nina on these matters.

440.  If he was serious about performing Nina’s wishes faithfully, he should make sure he understood what her wishes were. That occasion was the most appropriate time for him to ask her these questions. But he did not deem it necessary to do so. Nor did he do so on any subsequent occasions.

441.  The response he gave to Nina, according to him, was that this would give him trouble. I shall now turn my focus to this alleged reaction and as I shall demonstrate, it is simply incredible.

The 1^st Defendant’s handling of the 2006 Will

442.  According to his own evidence, the 1^st Defendant said he was surprised that she would give him everything[139]. At the same time, he was worried about how to deal with the matter[140]. Instead of expressing gratitude or joy, he told Nina that the 2006 Will would cause him a lot of trouble. And her reaction to that comment was telling him to go home to read the document[141] and then to come back afterwards. He also said Nina simply said it was his problems instead of hers[142].

443.  Against such background, it is remarkable that Raymond Chu was not aware of the 2006 Will before Nina’s death. Raymond Chu said he was the trusted adviser of the 1^st Defendant who consulted him on a lot of matters since the 1990’s.

444.  The 1^st Defendant said he was worried about the trouble that the 2006 Will might bring him. He said he had shown it to his wife. But she did not give him any advice on how to deal with it. The most natural person he would have turned to was Raymond Chu. Yet the defence case is that he did not consult Raymond Chu at all before Nina’s death.

445.  But immediately after the death of Nina (when a person who loved Nina should still be grieving for her passing away), he telephoned Raymond Chu and asked him to come back immediately from his holiday in Dubai so that he could consult him about the 2006 Will on 4 April 2007. From what actually happened afterwards as outlined below, the irresistible inference is that the consultation was about the 1^st Defendant’s strategy in asserting his claim to Nina’s estate.

446.  The 1^st Defendant made his move promptly after the death of Nina. It is quite apparent that he knew the 2006 Will would be controversial and his claim would be contested. Thus he did not even bother to wait until the end of Nina’s funeral before making any preparation for claiming the estate of Nina. On 4 April, before he told the siblings of Nina about the 2006 Will or showed them a copy of that, he retained a solicitor firm to act for him and instructed them to contact Winfield Wong to procure an affidavit of due execution from him. Before 6:00 pm on that date, solicitor for the 1^st Defendant contacted a partner of Winfield Wong by phone informing him of the 1^st Defendant’s claim and putting forward the request for affidavit. 

447.  If he were not expecting litigation (and if he really believed that there would not be any challenge to the 2006 Will as he testified[143]), it is difficult to understand why he would immediately go to a solicitor about the 2006 Will instead of discussing the matter with the siblings first. Indeed, it is difficult to understand why he had to proceed so soon after Nina’s death. And even assuming he had a good reason for proceeding promptly, it is difficult to understand why he did not mention the 2006 Will to the siblings at his meeting with them on 4 April 2007 at Mr Sujanani’s chambers.

448.  When there was no positive response from Winfield Wong, his solicitor repeatedly chased up by letters without even showing a copy of the 2006 Will to Winfield Wong. Further, by 13 April 2007, his solicitor was able to say in a letter to Ford Kwan & Co that they had obtained advice from London leading counsel that as a solicitor Winfield Wong was obliged to provide such an affidavit.

449.  On 5 April 2007, solicitor for the 1^st Defendant handed Mr Sujanani a copy of the 2006 Will for it to be shown to the siblings. As a result, the Plaintiff had to engage lawyers to investigate about the execution of the document on 16^th October 2006 even though Nina’s funeral did not take place until 18 April 2007.

450.  The 1^st Defendant adopted a high profile approach in seeking to have the 2006 Will propounded. On 13 April 2007, his solicitor informed the media that he was acting for the beneficiary of Nina’s estate and the Plaintiff was not the beneficiary. In effect, the 1^st Defendant lost no time in telling the public that the 2002 Will was not the last will of Nina. He was making preparation for a contest with the Plaintiff in respect of the estate of Nina.

451.  On 19 April 2007, the day after Nina’s funeral, the 1^st Defendant sent a SMS message to Mrs Tong saying that the 2006 Will was handed to him by Nina on 16 October 2006 after 10:30 pm shortly after Dr Kung had left the living quarter at Chinachem. He further said if necessary tests could be performed to verify what he said. He asked the siblings to respect the wish of Nina but he had nothing to say if the matter had to be litigated in court.

452.  On 20 April 2007, solicitor for the 1^st Defendant held a press conference to announce that the 1^st Defendant was the sole beneficiary of Nina’s estate under the 2006 Will.

453.  Thus, instead of taking a passive and defensive position, the 1^st Defendant was proceeding aggressively to assert his claim to the estate as soon as Nina died. I do not believe he had not contemplated about the prospect of litigation before the death of Nina (as he testified in the witness box[144]). From the way he proceeded after 3 April 2007, it is plain to me that he knew all the time that there would be a legal battle for Nina’s estate. In order to secure his position in the litigation, no time was lost by his solicitor in the attempt to procure an affidavit of due execution from Winfield Wong. 

454.  Counsel for the Plaintiff submitted that the 1^st Defendant had been keeping old document like Nina’s 1958 typing course certificate issued by Maryknoll Convent and photographs, videos and telephone recordings to prepare for this legal battle. Whilst the 1^st Defendant did not have any satisfactory explanation on why such materials were kept by him, I do not think I can draw the inference that he had been collecting evidence for the purpose of this litigation way back in the 1990’s.

455.  Be that as it may, there is sufficient evidence to lead me to the conclusion that the 1^st Defendant had been contemplating a legal battle for Nina’s estate for quite some time before her demise. In other words, he had the time and opportunity to consult Raymond Chu or other lawyers before Nina’s death as to the steps that could be taken to reinforce his position under the 2006 Will. Yet according to him (and also Raymond Chu) he did not consult any person. The only thing he did, according to him, was to show the 2006 Will to his wife.

456.  The 1^st Defendant’s wife gave evidence that he had shown her the 2006 Will on 18 October 2006. In my judgment, her evidence does not help him.

457.  First, even taking her evidence at its highest, his wife only said she had a quick look at the document on that occasion and she did not really read it. She said she was not clear about its content. Under cross-examination, she said she saw the English name of the 1^st Defendant and his identity card number on the document. And she was told by the 1^st Defendant that his lady boss gave him a will.

458.  In other words, she did not see for herself that the document was a will, not to mention examining whether it was a will giving the whole estate of Nina to the 1^st Defendant.

459.  Second, the wife did not refer to the date of the occasion in her first witness statement made on 23 October 2008. She was only able to pinpoint the date in her supplemental witness statement of 9 June 2009. She said she was able to do so by reference to her recollection about the TV programme she was watching on that date and the activities of her children around that time. After checking such recollection with her diary, she was able to conclude that the date of the incident was 18 October 2006.

460.  When she was cross-examined, the wife explained why she was not able to recall the date in her first statement. She said when she made her first statement she had just finished her holiday and she could not remember many things when she was suddenly asked about the event. Subsequently she was asked by the lawyers to think more carefully and seek more information, and that was how she came to recall the date in the supplemental statement.

461.  I cannot accept that explanation. The significance as to the close proximity in time between the 1^st Defendant purportedly getting the 2006 Will from Nina and his showing it to the wife was appreciated by whoever preparing the first witness statement. At paragraph 17 of that statement, it was said that the wife believed the 1^st Defendant showed it to her shortly after he received it. Thus, the wife must have been asked to check whether she could recall the date even when the first statement was prepared.

462.  Given that the date of the 2006 Will was clearly stated on the document, and the 1^st Defendant could recall the date when it was given to him, if it was shortly after the will was given and before the overseas trips of the children that the incident occurred, there should not be any difficulties in checking the same by reference to the diary that the wife had always had. At least, the week could be identified.

463.  Further, I find it unbelievable that if the 1^st Defendant had shown the 2006 Will to his wife, and both of them said they were worried about the trouble that it might bring to the family and their children, there was no discussion between them whether they should reject the bequest from Nina and told Nina about it. After all, it is their evidence that both of them considered they had sufficient wealth and did not need more money. They were of the view that the family and the children were already very happy and they had more money than they can spend. If that were so, as far as they are concerned, the 2006 Will is a curse rather than a blessing.

464.  The wife said though she was concerned about her children, she had not applied her mind to the implication of accepting the gift in the 2006 Will. She said the same with regard to the source of the 1^st Defendant enormous income after he knew Nina. At the same time, she testified that even before her trip to Beijing with Nina in 1992 she had suspicions about the relationship between the 1^st Defendant and Nina. After the trip, she realized that the problem was really big and she felt that in September 1992 the 1^st Defendant increased his late night visits to Nina.

465.  Though she said she did not want to know how much money the 1^st Defendant got from Nina, the wife could not have failed to notice that he had became very wealthy after his acquaintance with Nina. Prior to March 1992, the family was living at a flat in Shatin with the 1^st Defendant as the sole breadwinner making about $10,000 to $20,000 per month by operating a Fung Shui school.  The household expenses were around $10,000 per month. After the 1^st Defendant’s association with Nina, the family became very well off. There was a wedding banquet at the Grand Hyatt Hotel. In the latter part of 1992, they moved to reside at Mount Austin Road at a rent of $100,000 per month. Then starting from 1993, the 1^st Defendant was able to fund a number of property acquisitions at substantial prices, some of which exceeded $10 millions. I need not repeat the details of the 1^st Defendant’s own case which are set out in Schedule 2 to the Amended Rejoinder.

466.  By the end of 1992, the wife must have realized that the 1^st Defendant did not earn such money from Nina merely on account of his Fung Shui services. Though the wife repeatedly said she had no interest in the money and she did not care how the 1^st Defendant generated his fortune, the truth is (as put by Mr Chang and she agreed) she had been enjoying his wealth and she had no qualm about it.

467.  If the wife were really as nonchalant about money as she would want this court believe, I fail to understand how she could tolerate the clandestine affair of the 1^st Defendant. In the course of her evidence, I could sense her resentment towards the unfaithfulness on the part of the 1^st Defendant. Thus, she still had difficulties in accepting that the family wealth was derived from the 1^st Defendant’s association with Nina. She deliberately turned a blind eye towards the source of wealth and she said whoever was the beneficiary to Nina’s estate had nothing to do with her. She did not impress me as suffering all these for the sake of the 1^st Defendant. And as I observed above, she did not come to court to give testimony in support of her husband’s case in this trial for the sake of her children.    

468.  Whatever her motive was in giving evidence in this trial, it could not have escaped her mind that her evidence would assist the 1^st Defendant in his attempt to propound the 2006 Will. If he were successful, the wife believed it would make them very rich (this is also the evidence of the wife at paragraph 18 of her first statement). At the same time, the wife would certainly appreciate that losing the case would have serious financial impact on the family fortune in terms of potential liability for legal costs, not to mention the possibility of proceedings of a more serious nature if the 2006 Will is found to be a forgery. 

469.  I do not believe the wife was telling the truth when she testified that the 1^st Defendant had shown her what he said to be a will from Nina on 18 October 2006. I think she gave such evidence simply with a view to bolster up the 1^st Defendant’s case without regard to the truth. I reject all her evidence as regards the 1^st Defendant showing her a copy of Nina’s will.  

470.  Likewise, I do not believe the 1^st Defendant’s own evidence that he had shown the 2006 Will to his wife. His reason for doing so, according to him, was his concern about the problems that the 2006 Will might bring. As I said, if he really had such concern, the person he most likely would consult was Raymond Chu. He did not do so despite, even on his own evidence, his wife did not give him any advice. In fact, on their evidence, there was not much discussion between him and his wife about the matter. She just uttered “Mm” and did not talk to him further[145]. Her reaction was cold, or maybe even resentful[146]. And there was no further discussion between them subsequently about it notwithstanding both of them said they had a concern over the same. I find their evidence over this episode contrived and unreal.

471.  If the 1^st Defendant really got the 2006 Will from Nina under the circumstances as he testified and if he was really concerned about the exposure of the clandestine relationship but at the same time genuinely intended to carry out the oral instructions of Nina as he wishes this court to believe, he must have known that he could not keep the relationship secret whilst at the same time performed the role as the successor to Nina’s estate. He had to realize that he had to make a choice: either he declined Nina’s invitation to become her heir or he made some preparations before Nina’s death to pave the way for taking up such a role. From his conducts after the death of Nina, he obviously did not choose the former.

472.  There were many opportunities when he could have the confirmed with Nina’s siblings and the senior management of Chinachem the testamentary wishes of Nina. Alternatively, he could ask Nina to confirm that to some trustworthy independent witnesses. Still better, he could ask Nina to make a will properly prepared by a solicitor to the same effect. At the very least, he could take up the offers of Nina (according to his evidence) to become a director in Chinachem and to take part in some of the important occasions (like the opening of the Nina Tower in 2007) and board meetings. Without taking any of these steps, with an almost certain prospect that the 2006 Will would be challenged, he would surely encounter difficulties in executing the oral instructions of Nina.

473.  I believe he did not take any of these steps because he did not obtain the 2006 Will in the manner he described to this court. Nina did not invite him to join the board of Chinachem nor did she invite him to attend the board meetings and the other important functions of Chinachem. I believe up to her death she wanted to keep her relationship with the 1^st Defendant secret and she wanted that buried together with her after she passed away. I do not believe she would be happy about the exposure of that dark corner of her life in the manner as it had happened in the course of this trial. 

474.  I do not believe he had ever told Nina that the 2006 Will would bring him a lot of trouble. As his conducts after the death of Nina (including his conduct during the trial) show, he had no qualms at all about the exposure of his relationship with Nina so long as it served his objective of proving the 2006 Will. He said he was worried about hurting his wife and his family upon the exposure of this relationship, yet he put forward his wife as a witness in this trial (thereby exposing her to cross-examination about her knowledge as to the relationship between him and Nina) and made reference to how he chose his daughter’s birthday to please Nina in his evidence. He is willing to pay any price to achieve his aim.

The opinion evidence of the handwriting experts

475.  Now I turn to the opinion evidence of the handwriting experts. Mr Westwood, the expert called by the 1^st Defendant, was of the opinion that the signature of Nina on the 2006 Will was written by Nina, the signature of Winfield Wong on the 2006 Will was written by Winfield Wong. He also held the view that it is highly probable that the handwritten entries associated with Winfield Wong’s signature on the 2006 Will was written by Winfield Wong. In his written report, he expressed the opinion it was probable that the signature of Ng Shun Mo and the associated handwritten entries on that document was written by Ng Shun Mo. If accepted by the court after considering all the evidence (not only the handwriting expert opinions), his evidence establishes that the 2006 Will is genuine.

476.  On the other hand, Mr Radley, the expert called by the Plaintiff, testified that it is highly unlikely that Nina signed the 2006 Will. His final opinion was that Winfield Wong did not sign the 2006 Will. As regards the signature and handwritings of Ng Shun Mo, he regarded them as too simple and basic and as such susceptible to being copied with success by a skilled penman.  He was unable to express a conclusive opinion as to whether Ng Shun Mo wrote the signature and associated handwritings on the 2006 Will.

477.  Initially, the 1^st Defendant engaged another expert, Dr Giles. She had written a report on 29 March 2009. Like Mr Radley, she was inconclusive regarding the signature and associated handwriting of Ng Shun Mo.  With regard to the signature of Nina on the 2006 Will, her opinion, as set out in the report was,

“The number and nature of the differences observed amount to strong positive evidence that the signature … is a very well executed simulation.”

478.  Dr Giles expressed a similar opinion regarding the signature of Winfield Wong.

“The number and nature of the differences observed amount to strong positive evidence that the signature … is not genuine but is a high quality simulation.”

479.  The 1^st Defendant disclosed the report of Dr Giles (and other notes of attendance with her) in the application for leave to send the documents to Mr Westwood for examination. That application was considered in my judgment of 15 May 2009. Though he did not call Dr Giles to give evidence, the 1^st Defendant accepted that the report of Dr Giles could be taken into account in this trial.   

480.  In Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, Chan PJ, Ribeiro PJ and Litton NPJ (and also the judgment of Waung J in the Court of Appeal in CACV 460 of 2002) gave guidance as to how the court should deal with the opinion evidence of handwriting experts. It was emphasized that there should be a consolidated evaluation of the signatures, taking into account all relevant factors[147]. Further, a trial judge should not assume the role of an expert by drawing his own conclusion without proper evidential foundation from the experts in an area where expertise is required[148].

481.  Very often, the disagreement between the experts is about how the established methodology should be applied. This happened in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 where at para.90 Chan PJ summarized neatly the position as follows,

“All the experts agreed that it is important to identify the significant similarities and differences (or dissimilarities) between the Wang signatures and the known samples. Admittedly there are some similarities and dissimilarities. What the experts did not agree was (1) whether a particular feature is a similarity or dissimilarity, and (2) whether these similarities and dissimilarities were significant or not. What one party regards as a significant similarity is considered by the other part as a significant difference.”

482.  The same disagreement arises in the present case. What Mr Radley identified as significant differences were regarded by Mr Westwood as similarities. Each expert referred extensively to features which they characterized as “similarities” or “differences” and sometimes such characterization depends on what they perceived from the specimens available as “the range of variations” and their views on whether a particular departure from the specimen is “significant” or “fundamental”, or whether a particular similarity is “subtle” or “inconspicuous”.  They also disagreed upon whether one feature can be regarded as “rarities” or “accidentals”. All these require a high degree of subjective assessment, or in the words of Ribeiro PJ, “a softer, less precise, facet involving professional judgment of a relatively subjective nature”[149]. 

483.  This is not surprising as it is inherent in the nature of the consolidation evaluation. But a necessary consequence is that in these areas of subjective expert judgments, they are not readily verifiable and there is always substantial room for disagreement. When faced with conflicts in the expert opinions of a highly subjective nature, a judge has to do the best he can (always bearing in mind that he himself lacks the expertise, training, and experience of the expert) to see whether the evidence of a particular expert is convincing and cogent. As I observed in Best Origin Limited v Commissioner of Rating and Valuation LDGA 14 of 1998, 25 February 2008, paras. 97 to 105, one of the important criteria that the court can adopt in testing the reliability of the evidence of an expert is his impartiality and due observance of his overriding duty to the court. Though judges may not be as well qualified as experts in the areas of the latter’s expertise, we are experienced and well trained in detecting partisan and biased witnesses (both in respect of ordinary factual witnesses and expert witnesses).  

484.  An expert should not advance an argument or use a piece of information or data to support his opinion unless he is professionally convinced of the validity of the argument or the appropriateness of the use of that supporting material. The inclusion of something the validity of which the expert himself considered doubtful in his report inevitably undermines his credibility in the court’s assessment[150]. An independent and impartial professional expert should not resort to a tactic of putting forward some plausible arguments in favour of his client which he personally has difficulty in vouchsafing and leaving it to his counterpart to convince the court that the arguments should be rejected. In my view, such an expert has not discharged his overriding duty to the court, which is to use his own professional expertise to assist the court without regard to the exigencies of litigation.

485.  Here lies the crucial distinction between an advocate and an expert witness. Even though counsel and solicitor also owes an overriding duty to the court in certain respects, the court understands that as advocates they are not impartial as they also have a duty to present the case of their respective clients. But the position of an expert witness is different. His evidence is admitted to assist the court on a subject which requires expertise he has acquired (but not the court). Therefore, what the court wishes to hear is the expert’s own independent professional opinion on the topic instead of a biased view constructed and put forward for the purpose of advancing a party’s position.  Given the court’s lack of expertise on the subject which an expert gives his evidence, the strict adherence by expert to the duty of independence is important for the proper administration of justice. Whilst there might still be bona fide reasonable disagreements between two experts, the disagreements should only be based on independent professional judgments instead of being client interest driven.

486.  Sometimes, the line between professional divergence in opinion and biased partisan debate may not be easy to draw. But the court is vigilant in ensuring that the integrity of the legal process would not be tainted by evidence of an expert who put a party’s interest above his professional duty to the court. If it can be shown that an expert persistently adopted a stance which he himself had obvious difficulty in sustaining, most of the time this is the hallmark of the expert’s failure to adhere to the duty of independence.       

487.  Further, a judge is assisted by counsel (who in turn are assisted by their own expert) at the trial. Counsel’s cross-examination of an expert witness will assist the court in forming a view as to the reliability of his evidence. Very often, the most telling indicia of the professionalism and impartiality of an expert witness is how he deals with his weakest point under cross-examination. In Best Origin,I have set out what this court expects from an expert witness when he is faced with his own mistake after he produced his report. Instead of keeping silent and hoping that the point would not be discovered, he should correct it on his own volition as soon as practicable.

488.  Another acid test on the reliability of an expert witness is the way in which he deals with the arguments of his counterpart. Nowadays, the court expects expert witnesses to act responsibly and professionally in meeting the points raised by the experts on the other side. The whole point of requiring expert reports to be served or exchanged and directing meetings of experts and the preparation of joint statements/reports is to facilitate independent and frank communications between the experts in order to narrow down their differences through a dialogue on a professional level. The objective is to focus on the real issues that need to be adjudicated by the court. Unnecessary and unhelpful arguments should be trimmed down through these pre-trial procedures.

489.  No matter how experienced and well qualified an expert may be, it is always possible that he misses some salient points in the preparation of his first report despite the exercise of due care and diligence. Further, with the accelerated growth and development of human knowledge, new techniques or learning may emerge. Also, especially in areas where an opinion depends a lot on subjectivity, whilst there is always scope for reasonable disagreement, every expert would appreciate that amongst the arguments he relied upon, some is of greater force than others. An impartial and responsible expert, after studying the report of his counterpart, should re-assess his own views and if there are valid points against his opinion, he should acknowledge them instead of finding other new material to salvage an exposed weakness.

490.  The joint meeting is an opportunity for the experts to narrow their differences. It takes two to tango. It requires both experts to focus on the objective of the meeting and act responsibly and frankly with each other. At such meeting, an expert should bear in mind his overriding duty to the court to act independently without any fear of compromising his client’s position. Thus if his professional judgment dictates that a concession should be made in the light of arguments advanced by the other side, he should not feel inhibited from doing so due to conflicting opinion previously expressed by him in favour of his client. On matters within his expertise, an expert needs not seek instructions from his client before reaching an agreement with the other side’s expert. A self-respecting expert should not accept instructions that placed limitations on his professional judgment in the performance of his duty as an expert witness. And it is not proper for lawyers to give such instructions on behalf of his clients. In line with his duty to act independently, an expert should not be dictated by his client in respect of the substance of his expert evidence and the agreement to be reached in joint meeting.

491.  Thus, instead of spending time on indiscriminant defence of one’s position, expert witnesses should give due weight to the arguments set out in their counterpart’s opinion and try to reach agreement on points which are not worthy of argument. Unfortunately, there are occasions (here I am speaking generally rather than with specific reference to what happened in this trial) where some experts jumped straight to a defensive mode instead of adopting a “step-back and look” approach in considering the other side’s arguments. In so doing, I am afraid that such expert is abandoning his impartiality and neglecting his overriding duty to the court. 

492.  Worse still, there are occasions where expert uses the joint meeting and reply reports as platforms for putting forward new arguments and open new fronts for debate. Confronted with such a report, the other side would retaliate by putting in further materials in the name of rebuttal. More issues are raised. A vicious cycle is perpetuated. Instead of narrowing down the differences, expert issues are proliferated. The presentation of too many (including some unnecessary) expert issues not only adds to the costs and time of a trial, it also creates a risk of diverting the court’s attention away from the central issues in a case. It is not conducive to the effective resolution of the dispute. In many instances, the proliferation of issues is the hallmark of an expert struggling to defend an indefensible position by generating new issues as smokescreen.      

493.  Obviously, such an approach is inconsistent with the underlying objectives under Order 1A. Even though there is no reference to the expert witness in Order 1A Rule 3, after the commencement of the rules introduced by the Civil Justice Reform, an expert giving evidence in court has to observe the Code of Conduct in Appendix D, see Order 38 Rules 37B and 37C. Paragraph 13 of the Code of Conduct highlights the importance of an expert witness exercising his independent professional judgment in relation to expert meeting and joint report.

494.  Coming back to handwriting expert evidence, as Waung J observed in Nina Kung v Wong Din Shin CACV 460 of 2002 at para.1163(14), there are three possible outcomes upon an assessment of a questioned signature after an expert has conducted a consolidated evaluation: (a) genuine; (b) not sure; and (c) forgery. Option (b) highlights the inherent limitation of handwriting examination. 

495.  In the present case, there was disagreement between the experts as to whether a meaningful opinion can be formed regarding the signature and associated handwritten entries of Ng Shun Mo in the 2006 Will.  It would be convenient to start my consideration of the expert evidence by dealing with this issue.

496.  But before I do so, I wish to deal with Mr Mill’s criticism that Mr Radley was pre-disposed towards an opinion of forgery and for that reason he did not carry out a consolidated evaluation by considering similarities as well as differences. Mr Radley said he had taken similarities into account before he came to his conclusion though he had not set out specific similarities in his report. There were indeed references to consideration of similarities in his Finalized Report.

497.  Counsel criticized Mr Radley on his failure to set out his analysis on similarities in his own report as a breach of the Code of Conduct. Mr Radley explained that in his many years of practice, he had written reports in this way and he had not seen reports setting out similarities when the opinion of the expert was in favour of forgery.

498.  Paragraph 8 (c) of the Code of Conduct requires an expert witness to set out the reasons for his opinion in his report. The purpose is to inform the court and the other parties the reasoning process of the expert witness. This is important because as observed by Chan PJ in Nina Kung,

“The acceptability of an expert’s opinion depends very much on how sound and convincing the reasons for his opinion are.”[151]

Unless an expert set out in his report his reasons for arriving at his opinion in a manner that is comprehensible to layman, the report would not be of much use to the court. In some instances, the court has to consider the expert report in interlocutory applications without the benefit of hearing oral evidence from an expert. Further, an expert should not leave the substance of his reason to his elaboration in the course of his oral evidence. That would be contrary to the rationale of the requirement in the Code, which is to facilitate full and frank discussion of expert issues at the pre-trial stage with a view to cut down unnecessary issues at the trial.

499.  In the present instance, Mr Radley had set out his reasons for his conclusions in his report. Is Mr Mill correct in saying that he should set out the similarities individually and his analysis thereof as part of his reasons? In my judgment, it depends on the significance of the features. As Mr Radley pointed out, in a sense all the features which are not differences can be regarded as similarities. And as I shall explain below, there is simply no point in referring to similarities if they are of no significance. Even though Mr Westwood was able to supply a long list of additional similarities (additional to the similarities he discerned in the features identified by Mr Radley) in his Report, as explained below many of those are unhelpful for the purpose of identification and non-identification. I do not think it is conducive to effective administration of justice to require these (or similarities of the same nature) to be set out and then discounted for their lack of significance in Mr Radley’s report.

500.  It would be different if there were significant similarities. If a handwriting expert has come across significant features (whether similarities or differences) which are indicative of a conclusion contrary to his own (be it for or against the authenticity of the document), he should set them out and explain why despite the existence of such features he still holds a contrary opinion. This flows from the duty to provide the court with independent assistance. In Re J [1990] FCR 192, Cazalet J emphasized that an expert should not omit to consider material facts which could detract from his concluded opinion. This was incorporated as part of the Ikarian Reefer guidelines on expert duties. I see no reason why this duty should not manifest itself in the expert report presented to the court. In the Model Form of Expert’s Report introduced by the Academy of Experts, under the reasons for an expert’s opinion, an expert should set out any material facts or matters that detract from his opinion and any points that should fairly be made against any of the opinions expressed[152].

501.  Putting aside Mr Westwood’s additional similarities, Mr Mill have not pinpointed any other significant similarities which Mr Radley should have considered in his Finalized Report. Whilst I agree that Mr Radley had not set out any material consideration which detract from his conclusion, the same criticism can be leveled against Mr Westwood, perhaps even with greater force in the light of my analysis of some aspects of his opinions in the following discussion.

502.  Mr Mill criticized Mr Radley for equating rarities with differences. I agree that the choice of wordings can be improved. However, as explained later, the meaning has clearly been set out in Mr Radley’s report. Equally, Mr Westwood can be criticized for equating rarities with similarities.

503.  At para.36 of his Finalised Report, Mr Radley said,

“As a result of certain pen movements being relatively easily copied, any copy of a signature will in some respects conform with a genuine master signature being copied. The adage applies to handwriting and signature comparisons in (sic.) that it is not the identification of similarities between signatures or writings that shows common authorship, it is the lack of significant differences.”

504.  Mr Mill said the second sentence in this paragraph demonstrated that Mr Radley adopted a methodology inconsistent with the consolidated evaluation espoused by the Court of Final Appeal in Nina Kung. When he was cross-examined about it, Mr Radley explained that in that sentence he was making the same point canvassed by Osborn[153] that the presence of similarities per se is not sufficient to lead to a conclusion of identity. There must also be no significant difference. That proposition is entirely consistent with the approach of espoused in Nina Kung, see in particular the judgment of Chan PJ at para.26. Mr Westwood also agreed with that in his evidence[154]. Properly understood, there is no merit in Mr Mill’s criticism towards this paragraph.

505.  Taking into account of the conduct of Mr Radley throughout his involvement in this case in the round, I do not think he is biased. As shown in the Joint Report, he made concessions and retractions from his previous opinions when it was proper to do so.  He also did not over-rate the significance of a difference[155].  Whilst there are points advanced by him that I reject (as set out below), on the whole I believe Mr Radley gave his evidence mindful of his overriding duty towards the court. 

Ng Shun Mo’s signature and handwriting

506.  I have alluded to Mr Westwood’s position on the Ng Shun Mo signature and handwriting in the 2006 Will as set out in his Report, viz. it is probable that they were written by Ng Shun Mo. He maintained the same position after meeting with Mr Radley. This is clearly set out in the Joint Report[156].  It should be noted that by then Mr Radley had already pinpointed the questionable feature in relation to the second “0” of the “2006” in the handwriting[157]. 

507.  Further questionable features were identified by Mr Radley in his Second Supplemental Report[158]. Despite that Mr Radley held to his opinion that due to the simplicity of the signature and the large range of variation in the available specimen handwritings, no meaningful handwriting expert opinion can be offered as regards the authenticity or forgery of the Ng Shun Mo signature and handwriting in the 2006 Will[159]. Mr Radley maintained this position in the witness box though he was accused by Mr Mill as trying to put a negative spin on the signature and handwriting [160]. Counsel also made a fair point that Mr Radley’s questionable features were not mentioned in the finalized report and the first supplemental report as they should have[161].

508.  When he was cross-examined by Mr Mill, Mr Radley said he could have made out a case based on the questionable features as evidence pointing towards forgery but in the end, as he honestly believed that they are not sufficient to support a meaningful opinion after weighing all the pros and cons, he gave the court his honest opinion[162]. This was an echo of what he said in his examination-in-chief[163],

“All in all, although I’m sure those instructing me would love for me to say something positive, I really don’t feel there is a sufficiency of evidence to offer a meaningful opinion other than, in my view, taking it on its own, it is inconclusive.”

509.  When Mr Westwood gave evidence in the witness box, he had heard all Mr Radley had to say about these questionable features. In his examination-in-chief, he maintained his position in the written reports[164].

510.  Yet, when he was referred to these features in cross-examination, Mr Westwood admitted that the “2006” feature in the handwriting did cause him some concern. And though there was no similar concern in respect of the Ng Shun Mo signature,

“but it doesn’t allow me to express a positive opinion. So I am absolutely squarely sitting on the fence. Maybe it’s a forgery; maybe it’s not. I don’t know.”[165]

511.  Counsel for the 1^st Defendant chose not to re-examine Mr Westwood as to the apparent change of his position. There was also no reference to Mr Westwood’s oral evidence in the written closing submissions of the 1^st Defendant regarding the Ng Shun Mo signature and handwriting[166]. In his oral closing submissions, Mr Mill submitted that Mr Westwood’s oral evidence quoted above should not be interpreted as a change in his evidence on the Ng Shun Mo signature and handwriting. He said counsel for the Plaintiff had not put to Mr Westwood that he had changed his evidence and all that he was saying was that he could not say definitely either way[167].

512.  With respect, I cannot accept this submission. Mr Westwood stated quite clearly that he could not offer a positive opinion in respect of the Ng Shun Mo signature. This follows from his admission that the “2006” feature did cause him concern about the Ng Shun Mo handwriting. And then he also said quite categorically that the signature may be genuine and it may be a forgery. By using the expression ‘absolutely squarely sitting on the fence’, it is quite clear that Mr Westwood told the court that he could not say one way or the other. He could not tell which scenario was more probable. Taking into account of the context in which this statement was made, there was nothing in the exchange between counsel and witness to warrant the scaling down of the effect of his answer in the manner suggested by Mr Mill.

513.  Neither do I see any unfairness arising from Mr Chang’s ending the questioning on that topic there and then. I fail to see why counsel should put to Mr Westwood that he had changed his evidence when the answer given in the witness box was accepted by the Plaintiff. Further, if there was any ambiguity in the answer (and I have held there was none) counsel for the 1^st Defendant had the opportunity to clarify that by way of re-examination.

514.  Further, the evidence of Mr Westwood on the Ng Shun Mo signature and handwriting was preceded by Mr Chang’s cross-examination of this witness with reference to Mr Radley’s observations in his Second Supplemental Report as to the lack of significance regarding the similarities identified by Mr Westwood.

515.  This part of the cross-examination initially begun on Day 23 with Mr Chang referred to a similarity (relied upon by Mr Westwood) in the Nina signature commented upon by Mr Radley at paragraph 53 of his Second Supplemental Report[168].

516.  The point made by Mr Radley was that the similarities identified by Mr Westwood were not significant because there were wide ranges of variation in the specimens regarding those features, as such no matter how a forger erred in simulation, he would find himself falling within the range. In his own words, Mr Radley’s point was that “no lose” features have no identification value[169]. On top of that Mr Radley also referred to the ease of copying a feature and the obviousness of the features to the forger. Thus, he put forward the following opinion at para.67 of his Second Supplemental Report,

“Consequently, the nature of the similarity and the extent of the ‘target’ has to be taken into consideration in assessing significance. One considers firstly, is it an extremely complex pen movement difficult to reproduce? Secondly, is the forger likely to observe the same? Thirdly what scope is there for an error in a copying process being masked by a wide range of variation?”

I shall call this the Radley Test of Significance. 

517.  Properly understood, the “no-lose” argument is simply a shorthand for the obvious proposition that if a particular feature is shown to be so variable within the wide range of variation in the available specimens, it has no significance for handwriting examination purposes because anything can be a match. It is a distinct point from Mr Radley’s evidence on the optimum size of specimens which Mr Mill castigated as fundamentally unscientific[170], a point which I shall consider later. No matter how large the size of the specimens, if the range of variations for a particular feature is small, the feature will be significant for handwriting examination purposes. Conversely, no matter how small the size of the specimens, if the range of variations for that feature is large, the feature will not be significant. I therefore reject Mr Mill’s submission that the no-lose point just goes back to the same point about the size of specimens[171].   

518.  Mr Chang’s cross-examination on Day 23 zoomed in on Mr Radley’s no lose argument, referring specifically to the beginning stroke of the Nina signature. Mr Westwood relied on this as one of the subtle similarities to support his conclusion of genuineness in his report[172]. When cross-examined about it on Day 23, instead of tackling the no lose point put to him by counsel[173], he told the court that actually the feature had not been replicated[174]. He suggested that if there was a forger trying to replicate this, he would have discarded this signature appearing on the 2006 Will and started again. He alluded to the faintness of this stroke as compared with the rest of the signature. At one point, counsel thought Mr Westwood was saying that this feature in the Nina signature was not similar to the specimens. Mr Westwood clarified that was not his evidence[175]. He was actually referring to the lack of obviousness of the feature as opposed to it not being dissimilar when he said it was not replicated. But that did not deal with the no lose proposition.

519.  When Mr Chang realized that Mr Westwood might not be dealing with the point he asked him about, he tried again. Unfortunately, Mr Westwood diverted the attention to another feature and after clarification counsel brought him back on the right track[176]. Mr Chang put the point fairly and squarely again. Instead of giving a reasoned explanation why he disagreed with Mr Radley, Mr Westwood simply observed that the proposition ran contrary to the whole methodology they used and the experts might as well pack up and go home[177].

520.  Understandably, Mr Chang did not find that very helpful and he painstaking tried to analyse the point with Mr Westwood. When Mr Chang tried to go through the exercise step by step, Mr Westwood said he had to read through the report again. Mr Chang then decided to stop the questions on that aspect to give Mr Westwood time to read the Second Supplemental Report again over the night.

521.  Pausing here, I do not believe Mr Westwood had not grasped the “no lose” proposition advanced by Mr Radley before he went into the witness box. Mr Mill cross-examined Mr Radley on it [178] and it is unlikely that counsel did so without first considering the views of his own expert. Further, one of the main points of disagreement between the experts is the significance (or the lack thereof) of the similarities. It is unbelievable that Mr Westwood had not addressed his mind to the comments of Mr Radley in this respect before he went into the witness box. Thus, I do not understand why Mr Westwood could not deal with the “no lose” proposition put to him by counsel when he was first given the opportunity to do so.

522.  When Mr Chang came back to the issue again on Day 24, Mr Westwood accepted that the illustrations of Radley showed a wide range of variations for each feature. But he did not accept the “no lose” proposition because even though the point is valid on an individual basis, one must have regard to the combination effect. Mr Westwood used the metaphor of a tapestry to describe it,

“… he’s got to produce this as a tapestry. He’s got to bring together this string of features … He’s got to do it all, tie it all together, put out of his own head his own writing, habitual characteristics, and weave it altogether in a very subtle pattern.”[179]

This basically summed up Mr Westwood’s point about Mr Radley’s comments on the similarities. I shall call it the Westwood Rebuttal. It had been put by Mr Mill to Mr Radley in the cross-examination of the latter[180]. 

523.  After clarification of this difference, Mr Chang had Mr Westwood’s agreement on Mr Radley’s observations on the individual features as far as similarities are concerned both in respect of the Nina signature, the Winfield Wong and the Ng Shun Mo signature[181]. It was immediately after this line of cross-examination and concession by Mr Westwood as to Mr Radley’s observations about the similarities that Mr Westwood gave his evidence on not expressing any positive opinion about Ng Shun Mo’s signature and handwriting.

524.  In his report, regarding the Ng Shun Mo signature Mr Westwood identified 19 similarities, 9 of which he specified as subtle. Mr Radley demonstrated in his Second Supplemental report that (except Mr Westwood’s feature (i)[182] and (t), which was not referred by Mr Radley) these “similarities” derived from features with wide range of variation in the specimens. As mentioned, in cross-examination, Mr Westwood did not quarrel with these observations of Mr Radley on an individual basis.

525.  Mr Radley also quoted the following from Huber & Headrick, Handwriting identification: facts and fundamentals p.273,

“Shorter signatures, those in which letter forms have diminished to simply undulating lines, and those, wherein proper structure and design has been sacrificed in favour of embellishments that almost invariably suffer from great variation from one execution to the next, make a good reproduction more difficult to discriminate from the genuine.”

526.  I agree with Mr Radley that this observation can aptly be applied to the signature of Ng Shun Mo. The signature is simplistic in structure with features which vary a great deal in the specimens. I do not think it is necessary to go through all the features. Most of the features relied upon by Mr Westwood, including those he suggested as subtle, were indeed quite obvious and, as Mr Radley observed, easy to be copied. Further, as shown by Mr Radley, the ranges of variation in respect of these features are so large that for each feature even though specimens with similar feature can be identified one can easily refer to many other specimens with a lot of varieties. In my view, Mr Radley’s “no lose” proposition is a valid observation.

527.  I can illustrate this by an example. Feature (a), a subtle feature of Mr Westwood regarding the Ng Shun Mo signature, is the length of the long diagonal introductory stroke relative to the width of the body of the signature. In his report, Mr Westwood cited 4 specimens showing similar proportion as the questioned signature (2.5 times) and another specimen with a proportion of 3 times. Mr Radley pointed to a specimen which has a proportion of 1.5 times. It is quite obvious that the introductory stroke is elongated and this is easily copied. As regards the proportion, given the range of variations, it could be anything in between 1.5 time and 3 times. In short there is no uniformity and one cannot draw any meaningful conclusion from it.

528.  Another example, feature (b), another subtle feature of Mr Westwood: the degree of curvature of the long diagonal introductory stroke. Mr Westwood cited 5 specimens as showing similar curvature. On the other hand, Mr Radley identified different forms of that diagonal stroke ranging from relatively uniform curve, relatively straight line, starting with a curve and then proceeding straight and lone curing upstroke flattening at the top of the stroke. Hence, apart from being diagonal and elongated, it could almost be anything. Again no meaningful conclusion can be drawn from this feature.

529.  Yet another example of Mr Westwood’s subtle feature, feature (j): the proportions of the left and right portions of the “m” like second component of the signature where the left portion is narrower than the right portion. Mr Westwood cited 3 specimens displaying the same characteristic. On the other hand, Mr Radley is able to cite specimen displaying the other way round: viz. the left portion is wider than the right portion and specimen displaying equal width of the two portions. Again it could be anything and no significance can be attached to such so-called similarity. 

530.  I can give more examples but it is not necessary. As mentioned, Mr Westwood had no quarrel with Mr Radley’s analysis. His only riposte was the Westwood Rebuttal. But it is difficult to see how one can rely on the accumulation of neutral features to come to a positive opinion. One only needs to take the three examples above to see how far the Westwood Rebuttal can take. For each of the feature, no matter how the questioned signature is executed, the relevant feature would be within the range of variations. No matter how one ties them together in the overall tapestry, they add nothing to the scale.

531.  In this connection, it is necessary to mention some dictum in the Court of Final Appeal in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 in relation to matching variations. It is correct that the court considered that matching variations can be evidence of genuineness and the more matching variations, the stronger the inference, see Litton NPJ at paras.515 and 525; Chan PJ at paras.105-6, 117. But one must remember the context in which these observations were made. In that case, the court had to deal with several questioned signatures by the same signatory. The point made was that if the variations found in these questioned signatures (manifesting differently in each of them) all fell within the range of variations emerged from the specimen signatures, they can be strong evidence of genuineness because as Litton NPJ put it at para.515,

“It would be an extraordinary skilful forger who would be able to carry the range of variations found in the genuine signatures in his head and to put into his simulated signatures the same variations.”

532.  The quotation by Chan PJ at para.105 of p.368-9 of Osborn, Questioned Documents, 2^nd Edn clearly borne out that the court was focusing on the scenario where there were several questioned signatures displaying natural variations. The second quotation from Osborn reads,

“It necessarily follows, therefore, that if the several lines of a disputed document, or several signatures under investigation, show these natural variations of writing of the same word or letter, all of course within the scope of variation of the genuine writing, this variation itself … is as strong evidence of genuineness as the opposition condition is evidence of forgery.”

533.  As far as the signatures in the present case are concerned, we are not dealing with such a situation. Each signatory only signed once on the 2006 Will. Hence, there is no natural variation of questioned signatures to start with and thus no comparison with the scope of variation in the genuine signatures. And as far as handwritings are concerned, the amount of writings underneath each signature is small. Mr Westwood included some variations in his list of similarities in the Winfield Wong writings and Ng Shun Mo writings.

534.  I do not think what the Court of Final Appeal said about matching variations diminish the force of Mr Radley’s “no-lose” proposition which is one facet of the Radley Test of Significance. If the range of variations is so great that it is difficult to envisage a variation falling out of the range, the match is not significant for the simple reason that a match is inevitable and as such neutral for the purpose of checking whether the signature(s) or writing(s) are genuine.

535.  As regards the Ng Shun Mo handwriting, Mr Westwood identified a number of similarities[183]. As far as internal variations of the questioned writings are concerned, he referred to the variation in size and orientation of the bowls of the two “6” and compared that with 6 sets of specimen writings[184]. The handwritings are basically numerals and as Mr Radley observed they are not difficult to copy. I do not deem it necessary to go through the list of similarities of Mr Westwood in view of,

(a)     His acceptance of the proposition that notwithstanding many similarities, the presence of significant differences would prevent one from arriving at a conclusion of identity[185];

(b)    He accepted that there are features in the Ng Shun Mo handwriting that caused him concern, in particular the second zero of “2006”[186];

(c)     He conceded that his attempt in explanation about the “2006” problem does not fully account for it.

536.  In view of that, even on his own evidence, Mr Westwood is unable to express any positive opinion about the Ng Shun Mo handwriting.

537.  As far as the handwriting expert opinions are concerned, I find that the conclusion solely from handwriting examination is neutral. I prefer the evidence of Mr Radley and Dr Giles to that of Mr Westwood (in his reports). In other words, they cannot prove whether the Ng Shun Mo signature and handwriting on the 2006 Will is genuine or forged. I am further satisfied that it is due to the inherent limitations in the handwriting examination of such a signature and writing that no conclusion can properly be formed. Mr Westwood realized that and that was the reason why he made the belated concession under cross-examination.

Nina signature and handwriting

538.  The handwriting underneath the Nina signature on the 2006 Will was the date of execution. All the experts giving evidence before this court agreed that no conclusion could be derived from the handwriting examination of the writings.

539.  As regards the Nina signature on the 2006 Will, there are 135 specimens used by the experts[187] for handwriting examination. Out of those 135 signatures, 81 are agreed as acceptable. The Plaintiff disputed the value of 42 specimens extracted from hospital records. Mr Radley considered them to be poor specimens for handwriting examination purposes in view of the obvious deterioration in the pen control of Nina in executing those signatures. In this connection, he was supported by Dr Giles who commented on the hospital records in her preliminary report[188],

“Overall the pattern suggests that medical procedures or medication had a substantial affect of Mrs Wang’s signature whilst she was receiving treatment. In consequence the signatures made on the hospital documents have to be considered atypical signatures.”

540.  Mr Radley did not exclude all the hospital signatures from consideration. Three such signatures were agreed to be acceptable.

541.  It is agreed amongst the experts that the Nina signature on the 2006 Will is a well-controlled one[189]. Further in handwriting examination, it is important to compare like with like. Both Mr Radley and Mr Westwood acknowledged that[190]. Hence, the inappropriate comparisons of the questioned Nina signature with specimen signatures executed with poor control would inevitably compromise the integrity of the whole exercise.

542.  Mr Radley had actually examined the hospital signatures and did not exclude them for all purposes. He told the court that those signatures are useful in showing the sequence of Nina’s execution of the signature. But he did not regard the non-agreed hospital signatures to be appropriate reference for comparing the controlled structure of the signature[191].

543.  As said, Mr Radley agreed three hospital signatures as acceptable by reason of their execution with good control. Thus the test is not whether they are hospital records, but whether good control was displayed in their execution. And it also depends on the particular feature in question and the extent to which there would be distortion as a result of lack of good control.

544.  Mr Westwood was cross-examined as to his use of these non-agreed hospital signatures for comparison. He said the purpose was to show a range of variation[192]. This is significant because a fundamental point in his approach is that once a match can be found within the specimens, it cannot be regarded as a difference. Instead, it has to be regarded as a similarity since it falls within the range of variation in the person’s signatures. Thus, for some differences identified by Mr Radley, Mr Westwood was able to reclassify them as similarities with reference to the poorly executed hospital signatures.

545.  In his cross-examination, Mr Chang demonstrated the absurdity of this approach by taking specimen 55, a signature obviously executed with poor control by Nina on 6 March 2007 in one of hospital records. When asked about the utility of referring to this signature for the purpose of this trial, Mr Westwood responded as follows[193],

“It shows a range of variation which is what Mr Radley has acknowledged. It’s written on the same day as 56 which shows much better pen control.”

“It’s just showing on that day how her signature might vary …”

546.  But that is not an answer to the question. Mr Westwood surely appreciated that this trial is not about the variation of pen control of Nina on 6 March 2007. The 2006 Will was purportedly executed on 16 October 2006. In his own reports, Mr Westwood did not refer to anything which suggested that the variation of pen control on 6 March 2007 had any bearing at all on the issues that this court requires the assistance of handwriting experts. Instead, he used specimen 55 to deal with Mr Radley’s features (vii) concerning the T-bar being short. Regrettably, I considered these answers from Mr Westwood as nothing other than prevarication. There was no legitimate reason why he should refer to specimen 56 when he was asked about his purpose of referring to specimen 55. As with factual witnesses, an expert witness who resorts to such tactic in dealing with cross-examination would not emerge with much credit in the eyes of the court.

547.  When his attention was directed back to his own use of specimen 55, Mr Westwood said,

“All I’m saying, there are times when Mrs Wang was capable of doing an extremely short T-bar to wit the one on the screen [viz. specimen 55]. That’s just showing the extreme of variation.” (My emphasis)

548.  He should have given that answer immediately when he was asked about his use of specimen 55 for the purpose of this trial. If he needed to refer back to his reports to refresh his recollection before answering the question, he would be given opportunity to do so. But regrettably, as I have demonstrated, he tried to dodge the topic by making reference to specimen 56, which has nothing to do with his use of specimen 55 in this trial.

549.  It is perhaps not difficult to understand why Mr Westwood was not too forthcoming about his real use of specimen 55. The inappropriateness of such use was exposed by Mr Chang’s invitation to Mr Westwood to point out the T-bar in specimen 55. Because of the loss of pen control in the execution of specimen 55, the so-called T-bar in that specimen was nothing but, as Mr Westwood himself described under cross-examination, a “little U-shape thing at the top there”[194]. It is as plain as a pikestaff that no meaningful conclusion can be drawn from the comparison of the questioned signature with the specimen in respect of feature (vii). When confronted with such absurdity, Mr Westwood tried to retract and attempt another diversion[195],

“I’m saying, not to compare with the questioned signature one on one, but is a way of demonstrating the range of variation of this writer when she came to writing the crossbar of the ‘T’. There are some that are --- if you go down to 58 --- let’s go to some others that aren’t so deteriorated to keep everybody happy, 97j, chart 11. Let’s take a look there.”

550.  With respect, it is not a question of keeping everybody happy. The question is whether it is appropriate for Mr Westwood to refer to specimen 55 as supporting his conclusion that feature (vii) is accounted for as being within the range of variation of Nina’s specimen signatures and as such the feature should be regarded as a similarity[196]. If it is not appropriate (and I find that Mr Westwood should have appreciated right from the beginning that it is not appropriate), it should not be included as a reference in his reports. The court expects due exercise of independent professional judgment by an expert in every step he takes in the preparation of his evidence and that includes the preparation of the first report. And when the inappropriate use of this reference was pinpointed by Mr Radley at the expert meeting and the Joint Report (and also by Dr Giles in her preliminary report), Mr Westwood should have corrected himself. There was simply no justification for the charade to be maintained when Mr Chang cross-examined him about it.

551.  Mr Westwood’s attempt to divert to other specimens on feature (vii) was unsuccessful. Mr Chang drew him back to focus on his use of specimen 55. Counsel asked him whether he would exclude deteriorated signatures as contamination in choosing his specimens for comparison. Mr Westwood replied[197],

“Not if I was satisfied that they are in fact genuine signatures but nevertheless written in a deteriorated fashion. Because to discard them assumes that when Mrs Wang --- that everybody knows precisely how Mrs Wang was feeling on the day in question.”

Later, he further explained that he used deteriorated signatures because they could show “relationships, ratios, comparative heights and sizes”[198] notwithstanding the obvious loss of pen control in their execution. 

552.  In other words, Mr Westwood still maintained that specimen 55 was useful for present purposes despite the demonstration of the obvious absurdity of this position. It is sad to observe an experienced expert like Mr Westwood to stake his reputation in such a manner. He was not comparing like with like. I do not believe it was due to oversight or mistake that he did not appreciate no meaningful use can be made of specimen 55 in respect of feature (vii). I am driven to the conclusion that in his persistent refusal to acknowledge his reference to specimen 55 as being inappropriate, Mr Westwood had abandoned his impartiality.

553.  Mr Westwood used the deteriorated hospital signatures extensively in his exercise. This is summarized by him in a Wang Signature Table which was handed to the court and the Plaintiff’s lawyers on Day 23[199]. The Plaintiff had made submissions about this Table in closing submissions. Putting aside those submissions for the time being, I have checked through Mr Westwood references to the deteriorated hospital signatures in the light of the features he relied upon. With some specific exceptions I shall discuss below, I agree with Mr Radley that they are not appropriate specimens.

554.  In fact, I find some references to be so obviously inappropriate that the absurdity of their inclusion is very much akin to his use of specimen 55 in respect of feature (vii). Perhaps it is convenient to start with feature (vii) again. Apart from specimen 55, Mr Westwood also relied on specimen 60. A cursory examination of specimen 60, a signature by Nina on 27 March 2007, shows that it was poorly executed when apparently she did not even have the strength to write properly. As Mr Radley commented when he referred to a comparison of this signature with the questioned signature,

“I’m really at a loss as to what to say. I just don’t think it is at all appropriate.”

Yet Mr Westwood asked this court to accept that such a signature is useful for the purpose of showing relationships, ratios, comparative heights and sizes. And he used this to support his conclusion that feature (vii) is within the range of Nina’s signatures and as such a similarity as opposed to a difference. With the many other similarities he identified, he asked this court to agree with his opinion that the questioned signature is a genuine one.

555.  It is significant to note that regarding feature (vii), the only specimens relied upon by Mr Westwood in his Table, which must be regarded as his final opinion, are specimens 55 and 60.

556.  Turning next to feature (viii), the deteriorated hospital signatures Mr Westwood relied upon are specimens 43b, 49, 51, 52, 57 and 60. I have made my observations regarding specimen 60 and they apply with equal force in respect feature (viii). The lack of proper pen control in the execution of specimen 60 simply render such comparison meaningless. Specimens 49, 51, 52 and 57 were executed in February and March 2007 and again it is plain that the loss of pen control made anything possible there. These are also obviously inappropriate signatures to be included in the exercise.

557.  Whilst specimen 43b is comparatively firmer in its execution, it is also apparent that Nina had difficulty in writing the middle part of the signature in between the capital “N” of “Nina” and the “W” of “Wang”. Feature (viii) is in respect of the curvature of the T-bar in that middle part. I agree with Mr Radley that this is not an appropriate comparable.

558.  Though I am prepared to accept Mr Westwood’s use of specimen 43b as falling within the scope of reasonable disagreement between experts, I do not see any justification at all as to the use of the other deteriorated hospital signatures in respect of feature (viii). In my view, these signatures are so obviously inappropriate that Mr Westwood should not have included them in his report in the first place.

559.  Feature (v) is the relative height of the “i” in “Nina” to the “na”. Mr Westwood used the following deteriorated hospital signatures to support him: specimens 25, 29, 32, 34, 44, 52, 53, 56. I have addressed specimen 52 in the context of the above discussion on feature (viii). The same comment applies in the context of feature (v). Specimen 53 is another example of an obvious loss of control signature (the whole signature is actually deformed) and no meaningful conclusion can be drawn from its comparison with the questioned signature. Though not as extreme as specimens 52 and 53, specimens 25, 29, 32 and 44 also belong to the category of obviously poor and inappropriate signatures in view of the lack of proper control. References to these specimens to support a conclusion only serve to distort the overall picture.

560.  Specimen 56 was a signature made on 6 March 2007. The structure for the “na” of “Nina” was poorly formed with struggling looping movements. Since feature (v) is about the proportion of the “i” to the looping up and down strokes of the “na”, specimen 56 is not an appropriate comparison.  

561.  As for specimen 34, whilst there are features suggestive of some loss of control (e.g. the position of the “i” dot in “Nina”), I am prepared to regard it as not so completely out of control to render a comparison for feature (v) meaningless.

562.  But I do not think my conclusion on specimen 34 justifies Mr Westwood’s inappropriate use of the other deteriorated hospital signatures.

563.  Feature (iv) is no longer relied upon by the Plaintiff and I make no comment on Mr Westwood’s use of the deteriorated hospital signatures under this feature.  

564.  Feature (iii) is the rounded pen movement at the bottom of the right hand of the “N” of “Nina”. Mr Radley said the vast majority of the specimens showed an abrupt angular stroke. Mr Westwood cited two examples from the deteriorated hospital signatures, specimens 21 and 25. I agree with Mr Radley that these two were inappropriate comparables in view of the patent poor pen control in the execution of these signatures and the likelihood of poor control impinging on the formation of the feature.

565.  Feature (i) is the rounded stroke at the bottom of the left hand of the “N” of “Nina”. Out of the 9 specimens Mr Westwood cited in his table to support his conclusion that this is a similarity as opposed to a difference, 6 are from the deteriorated hospital signatures: specimens 25, 37, 39, 40, 48 and 58. As in the case of feature (i), I find all these signatures exhibiting symptoms of poorly controlled execution which was likely to have impinged upon the formation of this feature. I agree with Mr Radley that they were not appropriate comparables. In particular, the loss of control in respect of specimen 58 was so severe that I am surprised that an experienced expert like Mr Westwood would include it as a point of reference at all.

566.  Lastly, for feature (xi) Mr Westwood cited 5 deteriorated hospital signatures to support his view: specimens 28, 38, 48, 56 and 61. This feature is the slanting of the left hand of the “W” of “Wang”. I find specimens 28, 38 and 48 to be patently poor execution and the loss of pen control had caused a deformation of the whole “Wang”. Mr Westwood should not have included them in the exercise in the first place.

567.  Whilst specimen 61 displayed a less deformed “Wang”, the overall execution shows a lack of firmness. Coupled with the contorted manner in which the “W” was executed, I agree with Mr Radley that this is not an appropriate comparable. But I regard this as a reasonable disagreement between the experts and unlike the other three obvious inappropriate specimens mentioned in the preceding paragraph, I would not regard the citation of specimen 61 as evidence of bias on the part of Mr Westwood.

568.  As for specimen 56, notwithstanding some evidence of lack of control (in respect of the “H”), I am prepared to regard it as an appropriate comparison as regards feature (xi).

569.  By including deteriorated signatures inappropriately in constructing his range of variations, Mr Westwood has distorted the overall picture.  It is not a defence to say that for these features Mr Westwood cited other specimens which the court accepts as appropriate. Mr Westwood put forward a positive case that the Nina signature in the 2006 Will is a genuine signature. Insofar as he drew support from these inappropriate specimens (the inappropriateness of which I found to be so obvious that could not have escaped him) Mr Westwood in effect created an impression that he had a stronger base to build his positive opinion than he, as an impartial expert, should put forward.

570.  The Plaintiff also criticized Mr Westwood for his use of specimen signatures having only the word “Nina”. There are 12 “Nina-only signatures”. From the Westwood table on Wang signature, it can be seen that Mr Westwood used these signatures in dealing with Mr Radley’s feature (vi), viz. the “i- dot” of the word “Nina”.

571.  In addition Mr Westwood also used the Nina-only signatures to support some of his similarities set out at para.20 of his report of 7 May 2009[200]. The Plaintiff did not raise any objection to the use of these signatures for the purposes related to these similarities. 

572.  As regards feature (vi), there are two main elements and Mr Radley emphasized the difference in the pen movement in the execution of the specimen full signatures (viz. excluding the Nina-only signatures) and that for the Nina-only signatures. Mr Radley referred to specimen signature 23 to illustrate the sequence of the pen movement in the full signature.

573.  Of the two main elements in the questioned signature, the first relates to the commencement upstroke of the “i-dot” with an 11 o’clock inclination. The second relates to the delicate trailing stroke to the right. Mr Radley said both of them were unusual and he regarded the pen movement in the questioned signature as fundamentally different.

574.  The “i-dot” in the full signatures was an intermediate stroke, leading onto the T-bar of the initial T. On the other hand, the “i-dot” in the Nina-only signatures was a terminal stroke. Mr Westwood agreed with Mr Radley in respect of these observations. Thus, the Plaintiff submitted that it was inappropriate to use the “i-dot” in the Nina-only signatures for comparison with the “i-dot” in the questioned full signature, applying the principle that immediate stroke should not be compared with terminal stroke. Under cross-examination, Mr Westwood accepted the principle but he sought refuge behind Mr Radley’s proposition that the style of the full signature facilitated forgery as it could be done in separate components[201]. Mr Westwood was of the view that the “i-dot” could be a natural break for the forger, if there be one.

575.  With respect, I do not think Mr Westwood answered the point. Mr Radley’s proposition can be found at para.32 of his first report[202]. Whilst Mr Radley did refer to the “i-dot” as being unjoined with the other parts of the full signature, and as such a forger could lift the pen from the paper and observe the structure of the next component in the process of simulation, he did not say that this would escape detection. In his oral testimony, he emphasized that in the known writings the “i-dot” was a streak because Nina was going off to do the “T” and the long stroke was the result of dashing from doing the i-dot to the T-bar[203]. And this would not be a feature in the Nina-only signature as the i-dot there was terminal and Nina did not have to rush on to do the T-bar[204]. This explains why it is inappropriate to use Nina-only signatures for handwriting comparison for the purpose of feature (vi).

576.  Though it can be said that the explanation applied with greater force to the second element, it has not been suggested to Mr Radley that it has no application to the first element. I think the feature should be examined as a whole instead of breaking it into two features. It is also noteworthy that these Nina-only signatures were executed on the same occasion as two full signatures (98a and 98b). They were all found on the same document, viz. an Inland Revenue affirmation executed on 2 December 2005. A comparison between 98a and 98b on the one hand and the Nina-only signatures readily borne out the difference in the “i-dot”. And this also illustrate that such difference in the Nina-only signatures is not accidental.

577.  I agree with Mr Radley that the use of Nina-only signatures in respect of feature (vi) is inappropriate. As demonstrated by the Plaintiff in the closing submissions, the inappropriate use of the Nina-only signatures grossly distorted the rarity ratio of the occurrence of the feature in the overall picture.

578.  I shall now turn to the individual features relied upon by the experts. As all agreed, it is not a number game. And as put by Osborn, Questioned Documents,

“mere similarities do not necessarily prove genuineness any more than mere superficial differences necessarily prove lack of genuineness.”[205]

579.  It is necessary to see whether the features identified as similarities or differences have any significance. As Mr Radley said, in a way features that are not different can be regarded as similar. But the weight that can be attached to a similarity obviously depends on how difficult it is being observed and copied, the possibility of an error being masked by a wide range of variation[206] and the manner in which the stroke was executed in the questioned signature. In respect of the last feature, Mr Westwood observed that for the questioned Nina signature there was no evidence of hesitation, unusual pen stops and/or pen lifts, retouching or guidelines suggestive of freehand simulation or tracing. In general, Mr Radley agreed except in respect of the “an” of the “Wang”. As to the latter, he observed if one traces over the questioned signature, one could feel that the fluency was not there[207].

580.  As mentioned, Mr Westwood regarded all the features identified by Mr Radley for which at least one comparable can be found should not be characterized as difference. Rather Mr Westwood regarded them as similarities. And he relied on such similarities, together with the other similarities set out in his report of 7 May 2009 and the combination of moderately rare features to come to his conclusion that it was highly probable that the questioned Nina signature was written by Nina. Before I embark on a discussion of the Radley features, I shall first deal with the additional similarities identified by Mr Westwood at para.20 of his 7 May 2009 report.

581.  Mr Radley commented on these additional similarities in his Second Supplemental Report. Using Mr Westwood’s feature (a) by way of illustration, Mr Radley demonstrated because of the wide range of variation in the specimens, the so-called similarity with a small number of matches is of little relevance[208].  This is the “no-lose” proposition of Mr Radley[209] which I have already alluded to. I have also explained why the Westwood Rebuttal is inadequate to answer the no-lose point. There were also disagreements between the two experts as to whether a particular feature is a subtle one. 

582.  Mr Radley then dealt with all the Westwood features one by one in his Second Supplemental Report[210]. In the context of my discussion of Ng Shun Mo signatures, I have digressed and referred to the unsatisfactory manner in which Mr Westwood responded to cross-examination about the Radley “no-lose” proposition and his own similarities on Days 23 and 24. I am not going to repeat what I have said. In a nutshell, under cross-examination, Mr Westwood’s additional similarities are reduced to one point: the Westwood Rebuttal. He accepted individually speaking, Mr Radley’s illustrations as to the wide range of variations for each Westwood features were correct and it was possible for a forger to make a mistake for a feature and still fall within the range. It might also be possible for the forger to make several mistakes of similar nature. But Mr Westwood took the view that it would be quite another thing for the forger to weave it all together in a convincing manner[211].  

583.  Mr Westwood had not explained how the “weaving together” of several neutral features (viz. features falling within so wide a range of variation that no matter how they were being executed they would be characterized as genuine) can be anything other than “convincing” according to his test. He listed 27 additional similarities under paragraph 20 of his 7 May 2009 report. Amongst them, 15 were regarded by him as subtle. Given his agreement with Mr Radley’s comments on an individual basis, I shall not go through the whole list. Instead I will just pick some examples to give some flavour as to what are relied upon by Mr Westwood as evidence of the questioned signature being a genuine one.

584.  Starting with Westwood feature (a) of the Nina signature, it is the angular commencement of the introductory stroke of the letter “N”. Mr Westwood cited 4 examples[212] out of a total of 135 specimens[213]. Mr Radley dealt with this at great length in his Second Supplemental Report[214]. First, Mr Radley regarded this as an obvious feature and not difficult to copy. That is plainly right. Second, Mr Radley used several other specimens to demonstrate that it could either be a cup-shaped curved introductory stroke or a longer stroke or short or even without an introductory hook and still falling within the range of variations. Further, the stroke could have been started from a great variety of position in relation to the other parts of the left hand of the “N”. Applying the Radley Test of Significance, this feature cannot be of much help in telling whether the questioned signature was executed by Nina.

585.  Turning to Westwood feature (b), it is the degree of curvature of the upward stroke in the left hand portion of the “N”. Again 4 examples were cited by Mr Westwood. Mr Radley dealt with the feature at para.94 of his Second Supplemental Report. He demonstrated by examples that the upward stroke could be slightly curved, very curved, very straight and slightly wavy. Mr Westwood did not suggest this to be a subtle feature. I agree with Mr Radley that this is of no assistance.

586.  Westwood feature (g): the relative slants of the left and right sides of the “N” where the left side slants slightly to the right and right side exhibits a marked slant to the left. Mr Westwood cited 5 examples. I do not understand Mr Westwood to be referring to the precise angles of elevation of each hand slanting upwards as he did not provide the measurement of the angles in the examples cited and compare that with the questioned signature. He must be taken as referring to the visual comparison between the way in which the left hand slanting to the right and the right hand slanting to the left. Mr Radley responded at para.81 of his Second Supplemental Report. I agree with Mr Radley that it is not a subtle feature and it could be easily copied given the variations in the extent to which each side slant to the right or left respectively in the specimens. Not much weight can be attached to such a similarity.

587.  Westwood feature (i): the even but rising alignment of the upper extremities of the left and right sides of the “N” and the left side of the “W”. 8 examples were cited by Mr Westwood. The reference to this feature is quite remarkable. As Mr Radley pointed out in para.84 of his Second Supplemental Report, there are many variations found amongst the specimens. In the charts of Mr Westwood, on any single one of them, one only needs to take the specimen above or below those he cited as example and put a ruler to these upper extremities to see how random the position is. In most of the specimens, the three points do not align. Sometimes the extremity of the left hand of the “N” is the highest point, sometimes the extremity of the right hand of the “N” is the highest point and sometimes the extremity of the left side of the “W” is the highest. Even amongst the examples cited by Mr Westwood, the angles of elevation in the alignment are markedly different, say between specimens 25 and 26. To me, Mr Westwood’s reliance on this as a subtle similarity betrays a desperate attempt to construct a case of the questioned signature being a genuine one. Such artificial construct compromised his professional independence.

588.  Another obviously misuse of alignment is Westwood feature (r): the relative alignment of the lower extremity of the letter “H” and the lower left portion of the letter “W”. Mr Radley dealt with it at para.101 of his Second Supplemental Report. If one were to go through all the specimens and see how that feature appears in all of them, it can readily be shown that it is a random type of situation where anything is possible. Again, Mr Westwood’s attempt to draw support from such feature smacks of compromise of professional independence.

589.  Westwood feature (m) is the relative slants of the letter “i” and the staff of “a” in “Nina” and he cited 4 examples. As far as the staff of “a” is concerned, to a large extent it is dictated by the structure of the letter “a”. As regards the slant of “i”, as pointed out by Mr Radley, the specimens exhibited a large variety. As a result, as far as the relativity of the slants is concerned, the range is great and it becomes a “no-lose” situation. Hence, the feature is not significant.

590.  Westwood feature (p) is the relative spacing between “T” and “H” and the tail of “a” of “Nina”: “T” is closer to the tail of “a” than to “H”.  8 examples were cited by Mr Westwood. He regarded it as a subtle feature. Mr Radley responded at paras.87 of his Second Supplemental Report. As pointed out by Mr Radley, there was another stroke between “T” and “H”, supposedly a full-stop after the initial “T”. In some specimens, that stroke is a dot, in some a second mimicked stroke. In either case, this stroke naturally caused additional space between “T” and “H”. If a comparison of the inter-stroke spacing is to be made, it should be between (1) the spacing between the tail of “a” and “T” on the one hand and (2) the spacing between the “T” and the full-stop. I agree with Mr Radley that no significance can be attached to feature (p).

591.  Another feature regarded by Mr Westwood to be subtle is his feature (u): in the letter “W” the proximity of the middle peak to the upper extremity of the right portion of the “W”. He cited 3 examples. Mr Radley commented upon this at para.88 of his Second Supplemental Report. Instead of a subtle feature, it is indeed very obvious that the right portion in the “W” written by Nina in her specimen signatures leaned towards the middle peak. As regards the proximity, if one were general about it, all the right portion in the specimens can be said to be proximate to the middle peak. But that would be too general and any person trying to copy would get such obvious feature right. If one were to be more precise, then as demonstrated by Mr Radley, the variety in the formation and the relative position of the right portion of the “W” in the specimens is large and it becomes a “no-lose” situation. Thus, no significance can be attached to this feature.

592.  A related feature is Westwood feature (v): the angular change in pen direction in the lower right hand portion of the “W”. He cited 5 examples. Mr Radley dealt with it at para.89 of his Second Supplemental Report. It is related to feature (u) because to form a right portion with its upper extremity close to the middle peak the pen must move towards the middle after writing the lower part of the right loop in the “W”. Hence the change in the pen direction by itself cannot be an independent feature. As far as angularity is concerned, Mr Radley correctly pointed out that amongst the specimens there are those the relevant loop was rounded as opposed to angular and for angular ones, there are variety as well. Hence, it is another obvious and “no-lose” situation.

593.  I think I have given enough examples to demonstrate the obvious lack of significance of the additional similarities put forward by Mr Westwood. I have examined each of the Westwood features in the light of his observations and examples and considered Mr Radley’s comments on them. I agree with Mr Radley that these so-called additional features add nothing to the overall assessment. Neither do I see any significance in “weaving them together”. In my view, these additional similarities are nothing but a gigantic smokescreen.

594.  I now turn to the features identified by Mr Radley. Altogether 17 features were identified in his Finalised Report[215]. He identified a further feature (xviii) and it was discussed by both experts in the Joint Report[216]. By the time of the Joint Report, Mr Radley conceded that four features were no longer significant in view of further documents examined: features (iv), (xii), (xiii) and (xvi). Thus, I will focus on the remaining 14 features. Amongst these 14 features exhibited in the questioned Nina signature, Mr Radley accepted similar features are found in some specimens (though rarely) in respect of 6 of them. This is summarized in a table annexed to the Plaintiff’s closing submissions[217]. For these rare features, Mr Radley stated his position as follows in the Joint Report[218],

“Whilst most of the features referred to as ‘differences’ do show very limited numbers of corresponding characteristics within the extremely large number of samples presented, he considers they cannot be assessed in isolation. The significance lies in the overall consideration of the signature in question in the light of the combination of these rare features. One does not expect to find a large number of rarities and accidentals, all produced in one questioned signature. Such coincidental occurrence of such a large number of features he regards as highly improbable.”

595.  On the other hand, Mr Westwood was able to identify a greater number of comparables in the specimens to the Radley features. He found comparables for all 18 features and set them out in the Westwood Table. Because of that, Mr Westwood classified these features as similarities rather than differences. I have already alluded to the dispute regarding the use of the deteriorated hospital records and the Nina-only signatures. Putting those aside, there are still disagreements between the experts on whether other specimens exhibiting similar features.

596.  Before embarking on the consideration of the Radley features, it is opportune to deal with the debate on terminology. When Mr Radley was cross-examined, he was questioned about his definitions for “differences”, “accidentals” and “rarities”. Even though he used the expressions “accidentals” and “rarities” and attempted to define them[219], ultimately Mr Radley said they tended to merge because on most occasions one cannot tell how an odd feature came about simply by document examination. The upshot of his evidence was that accidentals become a sub-set of rarities and based on a pool of specimens, the rarity value can be worked out[220]. He accepted that one could not jump to conclusion that a signature was a forgery from one or two rare occurrences. But if one went up the ladder, there came a point where the accumulation of these rare occurrences in one single signature became significant. And this is the reason why he included the rarities in his definition of “differences”. This accumulation argument is a major plank in Mr Radley’s conclusion that the questioned Nina signature was a forgery in the present case. The point was made at the very beginning at para.37 of Mr Radley’s first report[221].   

597.  Thus, when he referred to his features as differences, Mr Radley had pointed out at para.39 of his first report that the differences identified by him were “characteristics being differently constructed in the questioned signature relative to the known signatures, or at least the vast majority of known signatures”[222] (my emphasis) and as such encompassing accidentals and rarities. And this was made crystal clear from what he said at paras.58 to 62 of the same report[223].

598.  Mr Mill challenged Mr Radley’s definition for “differences” and referred to para.67 of his Finalised Report[224] where Mr Radley had defined “differences” as features falling outside the range of known writings and “similarities” as those falling within the range. Mr Mill further suggested that the definitions at para.67 were the standard definitions for document examiners.[225]

599.  In his closing submissions, Mr Mill submitted that Mr Radley’s approach at para.39 deliberately including features which were not differences is inconsistent with the approach approved by the Court of Final Appeal in Nina Kung and criticized Mr Radley for turning what Osborn referred to as “damaging divergence” into “differences”. Counsel submitted that Mr Westwood’s approach, strictly following the range of variation test, should be preferred.

600.  On the other hand, Mr Chang submitted that all these were merely semantics. Counsel said the heart of the dispute is the associated probability of each feature and it does not matter whether they are called “differences”, “divergences” or “differences with a few exceptions”.

601.  Whilst it would have been better had Mr Radley been more felicitous in his choice of expression at para.39 and other part of his evidence when he encompassed rarities in his consideration, I do not think he had set out to mislead anybody. As I said, it was quite clear in the overall context that the Radley features included rarities and he was relying on the accumulative effect of rare occurrences. I agree with Mr Chang that the debate should focus on the validity of this argument (which Mr Mill called the Osborn-Radley statistical point in his closing submissions[226], and I shall adopt the same in this judgment) as opposed to the definitions of words used in his report.

602.  I do not think the Court of Final Appeal in Nina Kung decided that the Osborn-Radley statistical point is invalid. When Chan PJ discussed the consolidated evaluation, His Lordship only gave a general overview of the approach in handwriting examination. I do not think His Lordship intended to exclude from consideration the probability of rare features in the overall assessment. In this connection, amongst the textbook authorities cited at para.23(c) of his judgment, reference was made to Osborn p.205-251. The Osborn-Radley statistical point, including the reference to the Newcomb principle was discussed by Osborn at p.230-232.

603.  Mr Westwood agreed that at least a number of the Radley features[227] are moderately rare. But he regarded this as evidence of the questioned signature being a genuine one because the likelihood of a forger managing to incorporate several rare features into one signature is minimal[228].  In his Closing Submissions, Mr Mill said Mr Chang had misunderstood the point made by Mr Westwood. Mr Mill put the case of Mr Westwood as follows[229],

“… if the [questioned signature] includes (say) 15 features which really did only appear rarely in Mrs Wang’s other signatures, that confirms that the signature was written by Mrs Wang because there is no realistic possibility of a forger producing a simulated signature which contained 15 features, most if not all of which were errors on his part (i.e. did not appear in the model he was using) but all of which were to be found in one or more of Mrs Wang’s genuine signatures.”

604.  Mr Mill said Mr Chang had misunderstood Mr Westwood as saying that the forger was correctly copying the 15 rare features from a model signature. With respect, that was not a misunderstanding. Mr Westwood had said so in terms at paragraph 38 of his report[230]. In the cross-examination, Mr Chang challenged this as a fundamental fallacy on the part of Mr Westwood. Perhaps realizing the validity of Mr Chang’s point, Mr Westwood then shifted his position by adopting Mr Chang’s scenario and harked back on his Westwood Rebuttal, viz. the weaving together of the features as a subtle tapestry[231]. Mr Westwood did not actually give the evidence to the effect as set out in Mr Mill’s submissions. And neither did Mr Mill re-examined Mr Westwood on the topic. 

605.  I have dealt with the Westwood Rebuttal above. In the absence of any evidential basis for the reformulation, it is merely an assertion made in submissions. The reformulation is against the opinion of Mr Radley, which is supported by Osborn and Huber & Headrick[232]. If the reformulation were correct, the odds must always be in favour of a finding of identification when one finds a significant number (say more than 10) of rarities in a questioned signature. I cannot accept that.

606.  Turning back to the Osborn-Radley statistical point, Huber & Headrick qualified it and pointed out that the Newcomb rule should only be applied to independent events. Thus,

“For the application of the principle to be valid in any discipline, some data must be available to demonstrate the independence and the significance of the characteristics of the items that are under study.”[233]

607.  This was picked up by Mr Westwood when he was cross-examined by Mr Chang. He rejected the proposition in Osborn on the ground that in handwriting examination one cannot establish that all the features relied upon are in fact independent[234]. Then he made the point that for a determination that a feature was a rarity for the application of the principle, there had to be samples of signatures that truly represent what the writer did over a lifetime and this was not available in the present case[235].

608.  Mr Mill reiterated Mr Westwood’s second point in his Closing submissions[236] but not the first one. This is not surprising in the light of the evidence which were analysed by the Plaintiff in their Closing submissions[237] on the independence of the features. Subject to the observations I made as to the inter-dependence of specific Radley features (and therefore I do not regard all of them to be independent) and the burden of proof, I am in agreement with the Plaintiff.

609.  I think the legal burden of proof lies on the party evoking the Osborn-Radley statistical point to prove that the rarities are independent. But I do not think a handwriting expert needs to establish the causes contributing to such rarities before they can show a prima facie case of independence. This can be done, as Mr Radley did, by an expert using his expertise in analyzing the signature. It is inherent in handwriting examination that in many respects an opinion has to be expressed even though one cannot say what has caused a particular feature to be executed in a particular manner. Handwriting experts expressed opinions on that basis day in and day out.  The court always bears this in mind. After a prima facie opinion was expressed, it is up to the party challenging that prima facie opinion to put forward grounds for asserting that what is apparently independent is actually explainable by the same cause, and as such the rarities in issue are not truly independent. In other words, the evidential burden is shifted once a prima facie opinion of independence is established. 

610.  As submitted by the Plaintiff, Mr Westwood had not put forward any evidence to suggest that all the Radley features could be collapsed into a few features. No matter how one looks at these features, there are sufficient number of independent features to trigger the Osborn-Radley statistical point.

611.  Coming back to the point about the need to have specimen signatures of a lifetime, Mr Mill pushed Mr Westwood’s point to its logical extreme by contending,

“…the exercise would only be valid if the true rarity of each of the features relied on were ascertained. That would entail reviewing all the signatures which the writer in question had ever produced.”[238] (My emphasis)

612.  As Mr Chang said, this would set an impossible task for any document examiner. With respect, Mr Mill’s submissions did not accurately reflect the evidence of Mr Westwood. On Day 22, p.131, Mr Westwood said,

“To establish that somebody couldn’t have done something, you must have samples of their signatures that truly represent what they did over a lifetime, almost, in terms of their mature signatures.” (My emphasis)

613.  Then, on Day 23 p.2, Mr Westwood was asked whether one needs signatures collected over a lifetime and he answered,

“I didn’t say you would need to have that. I said you need to take account of how many signatures a person may have written in a lifetime, I believe.” (My emphasis)

614.  As an expert, Mr Westwood knew that opinions are expressed frequently on the basis on limited number of specimens available. As Mr Chang pointed out, if signatures of a lifetime were required before a handwriting expert’s opinion is admissible, this would drive them out of business. Again it is inherent in the nature of handwriting expert opinions that the expert could not possibly have examined all the signatures of the supposed writer, and most of the time not even samples made over a lifetime. Sometimes, the pool of the samples may be too small that an expert acting responsibly has to tell the court that no useful opinion can be formed. But most of the time, handwriting experts are able to work on not many sample signatures to arrive at an opinion. As Mr Radley said, the number of specimens for Nina’s signature available in the present case is exceptional.

615.  In formulating their opinions, handwriting experts should take into account of the number of specimens that have been examined in deciding the scale of probability in the opinion expressed.  This is also familiar to Mr Westwood. He steadfastly maintained by reference to Huber & Headrick [239]that handwriting expert can never eliminate someone as the writer because it embraces speculation as to what other documents by the same writer may reveal and elimination is a broad and all-inclusive statement. But he admitted that he has given opinions where he said it was highly unlikely that a writing or signature was written by a particular person and that could have been done by reference to less than 40 samples[240].

616.  It is for the court to assess the weight to be accorded to an opinion put forward by an expert and one of the matters that the court would take into account is the size of the samples. As far as I can remember, there has not been a case where the court rejects a handwriting expert opinion simply because of the absence of samples over a lifetime of the writer. 

617.  Of course what I have said in the preceding paragraphs is about handwriting expert opinion in general rather than the application of the Osborn-Radley statistical point. But is there any justification for a different criteria to be applied when one is dealing with the Osborn-Radley statistical point? I do not think so. I appreciate that the less sample signatures available, the less reliable the conclusion from the application of the Osborn-Radley statistical point would be. But one must remember the Osborn-Radley statistical point is only one facet of the expert opinion and the court will assess the overall weight to be accorded to a particular opinion having regard to all the evidence (not only the handwriting opinions). And in a civil trial, the court never demands the high standard of proof commensurate with the process of elimination postulated by Huber & Headrick. I do not regard the absence of sample signatures throughout the writer’s lifetime as militating against the application of the Osborn-Radley statistical point. Of course, the weight to be attached to the conclusion derived therefrom must obviously vary according to the size of the samples, amongst other relevant factors.

618.  At this juncture, it is convenient to deal with the criticism of Mr Mill on Mr Radley’s view about the size of sample signatures. Referring to paragraph 38 of Mr Radley’s Second Supplemental Report and his oral evidence given on Day 21, Mr Mill submitted that Mr Radley regarded too many specimen signatures as an embarrassment and complained of the unfairness of being given too many samples for examination[241].

619.  With respect, I do not understand Mr Radley as saying that too many specimens would render the exercise invalid. If he had ever subscribed to such a proposition, Mr Mill would be justified in castigating him as being unscientific. But that is not what Mr Radley said. Nor did he complain about the size of the specimens. Though he did say that his standard request was for 15 to 20 samples[242] and he quoted from Osborn to say that 25 to 75 signatures “is not often helpful”, I think in giving such evidence Mr Radley was actually explaining the need to take into account of the rarity value of a particular feature, especially when the sample size is large. This is apparent from a careful reading of paragraphs 32 to 38 of the Second Supplemental Report. This is precisely what Mr Radley said in paragraph 38 and it is manifested in his agreement to the court’s understanding of the position on Day 21[243].

620.  The point made by Mr Radley can be summarized into two steps,

(a)     The larger the size of samples, naturally the range of variation will be extended. And therefore it would be easier for an error on the part of a simulator to be masked by variations;

(b)    Hence it is not right to disregard features found only in a small percentage of a large size of samples without taking into account of their rarity value and the probability of a combination of many rare features in one signature.  

621.  Mr Mill only focused on the first step in his criticism as if Mr Radley simply said because of (a) we should not have too many specimens for comparison. As explained, this is not the approach of Mr Radley and I find Mr Radley’s point about the need to take into account of the rarity value of a feature to be in line with common sense and the writings by Osborn and Huber & Headrick.

622.  With these observations in mind, I now consider the Radley features. As I said, Mr Radley had conceded that four features were no longer significant and I will focus on the remaining 14[244]. For most of the Radley features, even though Mr Radley called it differences and Mr Westwood called it similarities, it cannot be disputed that assessed against the specimens available (excluding the inappropriate comparisons mentioned above), many of them are actually rarities. According to the Radley table, there are 8 features that there is not even a single match in the specimens. For the remaining 6, there are matches (according to Mr Radley) ranging from 1 to 5 out of a total of 81 samples.

623.  On the other hand, in the Westwood table, at least one match can be found for all the features. The one with the highest match is feature (v) with 16 matches out of a total of 135 specimens. But there are many features which even on Mr Westwood’s own reckoning has a matching percentage of less than 5%. These include features (ii), (iii), (vii), (ix), (x), (xvii) and (xviii). They are all prima facie independent features and there is no evidence from Mr Westwood suggesting that they are not so. Mr Westwood treated these as similarities and, as such (together with the Westwood Rebuttal) he regarded them as evidence of identification to support an overall opinion that the questioned signature was written by the same person writing the specimens. In my judgment, such an approach obviously fails to do justice to the rarity values of these matches (even without taking into account of my comments below on some of Mr Westwood’s matches). Like what happened in the context of the Westwood similarities (which Mr Radley characterized as no lose features), the Westwood Rebuttal provided a convenient escape for Mr Westwood to the Osborn-Radley statistical point but it actually did not offer any real answer.    

624.  Having regard to all the expert opinions (including those of Dr Giles), I do not think all the Radley features can be taken as independent. I agree with Dr Giles that Radley features (i) and (ii) should be taken together[245]. These are features in respect of the left hand downward stroke of the “N” and its slightly angular turn to traverse horizontally. Feature (i) focused on the roundedness (or curvature) of the turn (including the extent of curvature) as opposed to an abrupt sharp angular traverse in most of the specimens whereas feature (ii) focused on the execution of the curvature with angularity (not a smooth and rapid execution). I am of the view that the two features are dependant and they should not be treated as two separate events in the application of the Osborn-Radley statistical point.

625.  Mr Radley had no match for feature (i) and two matches for feature (ii). I have difficulty in understanding why the matches for feature (ii), viz. specimens 97h and 97j, cannot equally be regarded as matches for feature (i). Mr Radley referred to the difference in the extent of curvature. That may well be correct. But on this point I agree with Mr Westwood that the difference is not that significant.

626.  Mr Westwood had 9 matches for feature (i) and 3 matches for feature (ii). Of the 9 matches, I have already explained why I do not regard the 6 deteriorated hospital signatures as appropriate comparisons. Of the remaining 3 matches, I agree with Mr Westwood regarding specimens 97h and 97j for both features. Mr Westwood cited specimen 106 for feature (i) and specimen 103 for feature (ii). In this connection, he had the support of Dr Giles (though she did not differentiate between the two features).

627.  Specimen 103 is quite different from the questioned signature in respect of these features, in particular feature (i) aspect of this combined feature. In respect of feature (ii), I agree with Mr Radley that specimen 103 is a wholly different series of three individual pen movements instead of a deflection in one curvature. I do not regard specimen 103 as evidence that the questioned signature is within the range of variations.

628.  As regards specimen 106, Mr Radley again referred to the difference in the extent of the curvature. As in the case of specimens 97h and 97j, I do not think the difference is that significant. Whilst 106 is less angular in the curve, I think it should be taken into account in considering whether the combined features (i) and (ii) in the questioned signature is within the range of variations.

629.  In summary, for the combined feature in respect of the left hand turn of the “N”, there are 3 specimens out of 81[246] showing that the questioned signature is within range.

630.  In relation to this feature, or more precisely Radley feature (ii), Mr Westwood said it is an extremely subtle feature and as such a subtle similarity, viz. being fallen within the range of variations, constitutes significant proof of identity as it is unlikely that a forger would pick up such a little nuance in copying[247]. On the basis of his evidence, Mr Mill contended that the similarity of the questioned signature with the nearly imperceptible angularity in specimens 97h and 97j tends to confirm that the former was written by Nina[248].

631.  I agree that (as in the case of the Westwood additional similarities) subtleness should be taken into account in assessing the significance of a feature. It is part of the Radley Test of Significance. But that cannot pre-empt the court from considering the rarity value of the feature in the overall assessment. In the context of simulation, subtleness will be relevant if it is in the specimen the forger used as a model. This is recognized by Mr Westwood when he adverted to the subtleness of this feature on Day 23. On the other hand, the hypothesis of the Plaintiff is that the feature, being a rarity (hence the relevance of the rarity value), was unlikely to be present in the model used by the forger and its presence in the questioned signature was not the result of a successful copying of a subtle feature. Rather, according to the Plaintiff, it is more probable that it was the result of a mistake on the part of the forger. This was also understood by Mr Westwood, as borne out by his evidence on Day 23.  

632.  Radley feature (iii) is the rounded pen movement before the right hand upward stroke of the “N”. Mr Radley had two matches whilst Mr Westwood had 6 (2 of which are from the deteriorated hospital signatures). I have already explained why the 2 deteriorated hospital signatures should be excluded. As regards the other 2 additional matches of Mr Westwood, Mr Radley said specimen 110 was slightly deteriorated and specimen 106 was a different pen movement. I agree with Mr Radley as to the latter but I am not persuaded that specimen 110 should be excluded from consideration. Thus, there are 3 matches out of a total of 81.

633.  For Radley feature (v), Mr Radley had 2 matches out of a total sample size of 81. The feature is the relative proportion of the “i” in “Nina” and the subsequent looping up/down pen movements forming “na”. He regarded it as a significant difference.  This is also a point which worried Dr Giles[249]. Excluding the inappropriate deteriorated hospital signatures, Mr Westwood’s matches are reduced to 9[250]. 

634.  I agree with the Plaintiff’s submissions that in some of Mr Westwood’s matches, he had only referred to the immediate stroke next to the “i” as opposed to the whole set of up and down loops forming the “na”. That is not a correct comparison. Mr Radley had described the feature clearly several times and in his oral evidence he described it as a series of “e”. For this reason, one cannot ignore the dimension of the subsequent “e”s. Applying the correct criteria, specimens FDS-11, 97f, 97d and 10a do not constitute samples of the feature.

635.  As for the rest of Mr Westwood’s matches, though they may not be up to the exact proportion as per the questioned signature, I shall accept them as matches. Thus, altogether there are 5 matches out of a total of 81: specimens 4, 70a, 7b, 34 and 77.  

636.  Radley feature (vi): the “i” dot in “Nina”. Mr Radley and Mr Westwood split this into two sub-features in their respective tables. I do not think what in substance is one feature should be split into two. It is also a point that worried Dr Giles. She dealt with it as one feature and obviously there was only one stroke. She said in her comments on 17 April 2009 that in the specimens,

“The dots over the ‘i’ of ‘Nina’ are usually dashes; and where they are smaller tick-like forms, … they are always a light initial mark ending with a strong downward stroke, whereas in the Will it begins with a heavy mark and ends with a light pen stroke.”[251]

637.  In her report, Dr Giles identified this as a difference outside the range of variation seen in the specimens[252]. This, together with other significant differences led her to the conclusion that despite the presence of similarities with the specimens[253], the questioned signature was not genuine and there is strong positive evidence that the questioned signature is a very well executed simulation[254].

638.  Mr Radley had 2 matches for sub-feature (a) and 1 match for sub-feature (b). But if the whole feature is considered as one, the only match is specimen 96b. 

639.  I have alluded to Mr Westwood’s inappropriate use of the Nina-only signatures as specimens for this feature. Excluding those, Mr Westwood had 6 matches for sub-feature (a) and 2 for sub-feature (b). Considering the feature as a whole, in addition to specimen 96b, I accept specimen 69 as another example. The other matches are different.

640.  Thus, there are 2 matches out of 81 specimens for this feature.

641.  Radley features (vii) and (viii): the “T-bar”. I agree with Dr Giles that these are in substance one feature and should be considered together[255]. Mr Radley had no match for both. Mr Westwood had 2 matches for (vii), both of which I consider to be inappropriate use of the deteriorated hospital signatures, and 8 matches for (viii), 7 of which are again inappropriate deteriorated hospital signatures. The only remaining match of Mr Westwood for (viii) is specimen FDS 11. If the two features are considered as one, which I ruled to be the proper approach, FDS 11 is not a match. This actually shows the distortion caused by splitting one feature into two.

642.  Dr Giles suggested reference be made to specimens 4 and 80[256]. Neither Mr Radley nor Mr Westwood considered them to be comparable. I have examined these specimens and I agree with them.

643.  Dr Giles also put forward an explanation that the features may be explained by the fact that the dash in the questioned signature was written in the crease of the unfolded paper. That was at most a tentative suggestion and it was not pursued by Mr Westwood. Nor was it put to Mr Radley in cross-examination. I do not think there is sufficient evidence before this court to support such explanation.

644.  For this feature (viz. combining Radley features (vii) and (viii) as one), there is no match. In other words, it falls outside the range of variations.

645.  Radley feature (ix) is the downstroke of the “T” and the mimicking full stop next to it. Instead of the mimicking downstroke at the full stop, the questioned signature exhibited a near horizontal short pen stroke. Mr Radley found no match whilst Mr Westwood had 4 though Mr Radley agreed that specimens 95 and 97j did not show any mimicking full stop. 

646.  In the cross-examination of Mr Westwood, Mr Chang said the issue between the parties was not simply whether the full stop was mimicking the preceding downstroke. Mr Westwood answered that the purpose of his “matches” was to demonstrate variations[257] and he did not say they were comparable with the questioned signature.

647.  Dr Giles considered the full stop in the questioned signature did mimic the preceding downstroke and was curved. She said in this respect the questioned signature was the same as specimens 5, 7b and 16.

648.  Having considered all the expert opinions, and mindful that Dr Giles had not been called and therefore not subject to any cross-examination, and having studied the specimens cited by them (including the ones cited by Dr Giles), I conclude that Radley feature (ix) is relatively prone to variations given the nature of the mimicking pen movement. Sometimes the mimicking is more pronounced and sometimes less. Like Dr Giles, I can discern a slight curvature in the questioned full stop which is suggestive of a less pronounced mimicking. Specimens 5 and 16 show that the questioned signature is within the range of variations. At the same time it should be observed that the majority of the specimens show a pronounced mimicking with an introductory downward curving stroke which is absent in the questioned signature.

649.  Radley feature (x) is the “H”. Mr Radley and Mr Westwood split it into three sub-features. I do not think it is appropriate. The three elements are combined together to form the whole character of the “H”. Focusing on one element will easily lead one to lose sight of the whole picture. Mr Radley started off (in his reports) by referring to this as one feature and I think we should stick to it.

650.  Mr Radley had one match which incorporates all three elements, viz. specimen 101. He had four more matches for element (c). If those four matches were placed by the side of the questioned signature with feature (x) considered as a whole, they are not matches at all.

651.  Mr Westwood had 5 matches for element (a), 1 for (b) and 5 for (c). The matches for (c) are the same as Mr Radley’s and I need not repeat what has been said. The four additional matches for element (a), if examined against feature (x) as a whole, again are not real matches at all.

652.  Dr Giles’ observation on feature (x) is noteworthy. She said,

“…the initial ‘H” in the Will falls well outside the range of variation in the undisputed signatures because none of them includes such a high joining stroke between the two verticals combines with such a long right-hand vertical.”[258]

653.  She regarded the positioning and shape of the initials “T H” as another difference indicating that the questioned signature is not genuine[259].

654.  I agree with Dr Giles that feature (x) is out of range. Notwithstanding both Mr Radley and Mr Westwood regarded specimen 101 as a match for one aspect of feature (x) (as a result of wrongly splitting the feature into 3 sub-features in their consideration), it does not have the long right hand vertical.

655.  Radley feature (xi): the “slope” of the initial downstroke of the “W”. Mr Radley had no match for this feature although he agreed that 3 specimens (viz. specimens 15, 66 and 79) had a similar but lesser slope. Mr Westwood had 9 matches, 4 of which I excluded as inappropriate deteriorated hospital signatures. I accept the remaining 5 as matches even though the the “slopes” might not be at the same angle. The rarity ratio is 5 out of 82 (82 instead of 81 as I have included specimen 56 as a match which was excluded altogether in the Radley table).

656.  Radley feature (xiv): instead of the mimicking pen strokes in the “an” and the stroke leading to the top loop of “g” of “Wang”, the questioned signature’s “an” were written in a significantly different manner with a diversity of slopes. Mr Radley had no match for this feature and considered it to be a fundamental difference as the pen movements were different. He regarded the awkwardness of the non-mimicking arrhythmic pen strokes in the questioned signature as unnatural and, as such, evidence of simulation.

657.  Mr Westwood complained that Mr Radley had moved the goalpost in respect of feature (xiv) in two respects,

(a)     By referring to the “g” in addition to the “an” in the “Wang”;

(b)    By referring to the rhythm in addition to the mimicking pen movements.

658.  In his finalised report of 23 March 2009, Mr Radley described the feature as follows,

“The following letters ‘an’ or the pen movements representing them in the known writings again generally show a mimicked form of pen stroke with similar slopes of the elements one to another. The bowl (curved portion of the ‘a’) in the signature in question points towards ‘1 o’clock’ the joining stroke ‘a/n’ is then approximately at ’10 o’clock’ followed by a near retrace stroke at a similar angle. This is then followed in the questioned signature by a virtually right angled, near vertical pen movement which is retraced and turns horizontally to construct the top loop of the ‘g’. This diversity of slopes for these pen strokes is significantly different from the known writings which, as previously indicated, tend to show a mimicking of the pen movements in the same directions and these are rapidly executed.” 

659.  It must be said that the end point of the feature was not expressed in the clearest term. The reference to the pen stroke turning horizontally to construct the top loop of the “g” can encompass the top loop but it can equally be confined to the stroke leading to the top loop (without including the loop itself). The imprecision in language might have stemmed from the difficulty in pinpointing in some specimens where the “n” ended as the “g” began. My understanding is that as far as feature (xiv) is concerned, Mr Radley originally referred to the “an” plus the stroke leading onto the “g” but stopped just before the top loop of the “g”. He regarded the top loop of the “g” as feature (xv). In the illustration at p.3 of his Illustration Bundle, the arrow at the top loop of the “g” was identified as feature (xv).  Mr Radley used specimen 4 as his best illustration of the feature when he gave evidence in the witness box[260]. If the top loop of “g” were to be included as part of the feature, specimen 65 would be a better example.

660.  Unfortunately, the description used in the Joint Report is even more ambiguous. Sub-feature (v) was said to be,

“the retrace movement at the top of letter “n” turns into a slightly curved horizontal stroke which goes on to form the top loop of the letter “g”.”[261] (my emphasis)

661.  To be fair, it was also recorded in the Joint Report at para.37 (v) that Mr Westwood regarded the orientation of the upper loop of the “g” as not being part of feature (xiv). Rather he took it to be feature (xv). And Mr Radley did not express any disagreement with that observation.

662.  In Mr Radley’s examination-in-chief, Mr Chang described it as the “ang” structure[262]. To further confuse matter, in the enlargements of the “Wang” used by Mr Radley in the course of his evidence with various arrows indicating the slopes, he included the top loop of “g”[263]. To that extent, Mr Westwood was correct in complaining that Mr Radley had moved the goalpost. But Mr Mill had no difficulty in cross-examining Mr Radley and in the references to the “97s specimens”, he made no reference to the top loop of the “g”[264]. In fact, he described it as the “an” feature[265].   

663.  Actually, amongst the specimens, the top loop of the “g” took various forms. Sometimes it was quite distinct but sometimes it was just a tiny twist of the pen. Sometimes it is difficult to tell where the “n” ended and where the “g” began. It cannot be said that the known writings generally show a “g” being part of the mimicking pen stroke. This underscores that, on proper analysis, under Radley feature (xiv) the mimicking and rhythm should be confined to the “an” plus stroke without including the top loop of the “g”.

664.  This also appears to be in line with the view of Dr Giles. In her report, one of the significant differences observed was “the shape of the character group ‘an’”[266]. And commenting on Radley feature (xiv), she said,

“This is Dr Giles’ third real worry. There may be a similar shift in the slope of these upward movements in [8a], but otherwise point (xiv) is unparalleled. She considers that this section of the signature is highly indicative of simulation.”[267]

665.  As regards the rhythm of the pen movement, Mr Radley demonstrated the point when he gave evidence. Commenting on the way in which the “an” in the questioned signature was written, he said,

“To actually produce that up-down movement --- and we have quite a considerable retrace here, this pen movement is just not rhythmic. … if you try and trace over the questioned signature, I think you will feel that the fluency is not there.”[268]

Referring to specimen 4 to demonstrate this feature, he said

“a looping pen movement is rhythmic, it goes up and then up, then up, then down. It just has a nice smooth rhythm to it.”[269]

666.  The rhythm flowed from the mimicking up-down pen movements having similar slopes and it was disrupted by retraces at different angles with diversity of slopes in the questioned signature. Though Mr Radley did not use the expression “rhythm” in his written reports, the point had been made in his finalized report. And it had been clarified to Mr Westwood during the Joint meeting.

667.  Right from the beginning, Mr Westwood understood the point is about the diversity of the slopes. He commented on that in his preliminary report at para.30 where he referred to his Appendix O for illustration of his reply[270]. He again referred back to this Appendix to supplement his table [271]when he was cross-examined by Mr Chang, after hearing Mr Radley’s evidence about rhythm. And Mr Radley had made clear to Mr Westwood at the joint meeting that the feature was not about the individual elements as it had to be examined as a whole to show the diversity and rhythm. 

668.  Against such background, I find it difficult to understand why Mr Westwood still insisted on putting forward so-called matches which are obviously unhelpful in terms of the examination of the feature as a whole. In the Westwood Table produced by him at the trial on Day 23 (after Mr Radley had given his evidence), Mr Westwood splitted this feature into 5 sub-features. But his commentaries on all his matches are in respect of one small fragmented part of the feature. The matches in his table are not real matches at all but, as Mr Radley quite rightly observed, an attempt of atomization which is inappropriate. I do not accept Mr Westwood’s explanation that he was only adopting the individual elements described by Mr Radley and numbered them into 5 sub-features. I do not believe he had not understood that the so-called 5 elements had to be considered together with the diversity of slopes and retraces at awkward angles in terms of the flow of the pen movement. I regret to say I regard Mr Westwood’s approach on this feature as nothing other than an attempt to cause confusion.

669.  His complaint about the shifting of the goalpost in Mr Radley’s reference to rhythm is, again, in my judgment, another smokescreen, hoping to divert the court’s focus away from the real issue. As I said, though the expression was not used, the substance of Mr Radley’s point about rhythm had been set out in the reports and further clarified during the joint meeting. Thus, in the Joint Report, Mr Radley said at para.37[272],

“… the diversity of slopes for the pen strokes [in the questioned signature]… is significantly different from the known writings (signatures) which show a mimicking of the rapidly executed pen movements for the latter strokes in the same direction.”

“… the awkwardness of the non-mimicking arrhythmic pen strokes are not natural in comparison with the known writings and is typical of a simulation.”

670.  Mr Radley explained how the expression “rhythm” came to be used when he was recalled to give evidence on Day 24. He said at the joint meeting Mr Westwood did not seem to appreciate what he described in his report about mimicking and,

“… And I explained it could be equated with rhythm. … You cannot have rhythm with just one beat. It’s got to be a series of beats. … The pen’s moving … in a rhythmic pattern…. The movements here, here and here are mimicking each other.”[273]

671.  But Mr Westwood refused to understand the point and tried to downscale its significance as a mere combination. At para.37 of the Joint Report, he said,

“Mr Westwood, whilst agreeing that they do not appear in combination, disagrees with the significance of [Mr Radley’s] observation as pointing towards non-genuineness. This is for the reason that relatively rare events will, from time to time, appear in combination.”

As we shall see, it eventually transpired that Mr Westwood did appreciate the point about rhythm and he was able to quote some examples that he regarded as similar lack of rhythm as in the questioned signature. But he had chosen not to acknowledge the point about rhythm in the Joint Report.

672.  Thus, it is not a case of Mr Radley moving the goalpost by abandoning his case on mimicking pen movements in favour of a case on rhythm[274]. The mimicking pen movements have always been part and parcel of the manifestation of the rhythm. Mr Radley said the following in his evidence-in-chief,

“I am talking about a rhythmic, mimicking of several pen movements. It has to be. If you are talking about mimicking action, it has to be one line against the next, against the next, against the next, and so on.”[275] 

673.  Rather it is a case of Mr Westwood steadfastly refused to be engaged on the real point in issue. No wonder Mr Radley was at times quite frustrated. When cross-examined by Mr Mill about the feature, he said,

“…what I’m referring to here and what I made perfectly clear in [para.37 of the Joint Report], is that Mr Westwood is talking about something totally different to my point. That was explained to Mr Westwood but he still maintained he wanted to keep this [viz. his atomization of the feature] in. … But the whole essence of this is that it is the rhythmic stroke throughout the signature. And you cannot look at a rhythmic stroke of one stroke. … Mr Westwood is replying to a question that has not been asked.”[276]

674.  Why did Mr Westwood avoid the real point? It could not be due to misunderstanding. As explained, it has been adequately set out in Mr Radley’s finalized report. Dr Giles had no difficulty in understanding it. I do not believe Mr Westwood, a more experienced document examiner having been practising in the field longer than Dr Giles, could have missed the point. In fact, the point was so obvious that even a layman would have no difficulty in understanding it at all. I regret to say there is only one conclusion open to me: like the atomization of the feature, Mr Westwood’s attempt to reduce to the feature to mimicking pen movements and his accusation of Mr Radley moving the goalpost in terms of rhythm are just manoeuvres to hide Mr Westwood’s inability to provide a real answer to the point.

675.  Mr Westwood used the purported redefinition of feature (xiv) as rhythm to forestall cross-examination. When he was asked by Mr Chang whether he put forward specimen 97a as the closest specimen for this feature in the Westwood Table[277], he had difficulty in giving a straight answer. He at first said 97a was a common denominator, and after several questions directing his focus back to the real question, he said it was a very good example where there was a lack of rhythm but then he qualified by saying “I wouldn’t say necessarily the closest.” He then observed there were at least 6 others. Naturally, Mr Chang asked him which one was put forward as the closest. Mr Westwood then harked back on his purported difficulty in defining the feature and distinguishing between mimicking and rhythm[278].  

676.  Mr Chang then tried to take Mr Westwood to Dr Giles’ opinion about feature (xiv). His first response was that he did not know whether Dr Giles had prepared a report and said he did not recall having read anything written by Dr Giles on the examination of the questioned signature.[279] He tried to support that position by saying he did not want to get involved in Dr Giles’ opinion as he rather examined the signatures himself. That is not an adequate answer because whilst I can understand why Mr Westwood would prefer not to read anything from Dr Giles before he prepared his first full report, there was no reason at all why he should not read it afterwards. Since the report and written comments of Dr Giles had been admitted as evidence for the purpose of the trial, I cannot believe that solicitors for the 1^st Defendant had not supplied Mr Westwood with the same. Mr Westwood should be aware that he would be cross-examined about the opinions of Dr Giles. Thus, I find these responses of Mr Westwood rather surprising.

677.  As it turned out, Mr Westwood had read the report and comments of Dr Giles. He admitted that he had  made a mistake after a few questions and informed the court that he read Dr Giles’ report on 19 May 2009 and prior to that he had been given some information verbally[280]. He had also read the comments of Dr Giles on the Radley features though it transpired that he had read an earlier version than the one included in Trial Bundle I(2). The version he read had some difference in the latter part of the commentary about feature (xiv).

678.  Mr Westwood said he only read Dr Giles’s comment that the feature was highly indicative of simulation for the first time when the revised version was shown to him in the witness box[281]. I find it hard to fathom as to why the solicitors for the 1^st Defendant would show Mr Westwood the earlier version of the meeting notes but not the revised version. Be that as it may, even in the earlier version, it had recorded that Dr Giles had real worry about the feature and it was unparallel except specimen 8a.

679.  It took a fair bit of cross-examination before Mr Westwood finally accepted that he appreciated the feature was “an” as a combination[282]. And he admitted that apart from looking at the individual elements “bit by bit”, he had also looked at it globally[283]. When Mr Chang demonstrated by reference to the Joint Report that Mr Westwood only looked at the individual elements, Mr Westwood resorted to the excuse of the goalpost being shifted[284]. When further pressed about his statement in the Joint Report as to the lack of significance of the lack of equivalent for a combination of all the elements, Mr Westwood said,

“… in our joint discussion I drew Mr Radley’s attention to a number of examples where the specimens lacked the rhythm similar to what he’s trying to say about the questioned document.”[285]

680.  This answer indicates at least by the time of the joint meeting, Mr Westwood knew Mr Radley’s point about rhythm and that feature (xiv) was not about the individual elements. And it also belies Mr Mill’s complaint about Mr Chang’s equating combination with rhythm[286]. The complaint was readily adopted by Mr Westwood who further seized on that to make another complaint about the shifting of the goalpost from mimicking to rhythm. Further, in his evidence contrasting specimens 98a with 98b[287], Mr Westwood was able to say specimen 98a had a good rhythm, showing he had no difficulty in understanding the point. To me, all these complaints were disingenuous since Mr Westwood actually knew what the real point Mr Radley was making under his feature (xiv) and his own evidence belies his complaint.

681.  In his re-examination, Mr Mill was able to elicit from Mr Westwood that he had a list of eight examples where the rhythm breaks down and then evidence on these eight examples were given. Mr Chang did not object to the evidence being led but put down a marker that Mr Radley had not been cross-examined about the same. As a result, Mr Radley had to be recalled to deal with four of those examples.

682.  It was said that these examples were discussed at the joint meeting but four of them had not find their way into the joint report. In my view, this is highly unsatisfactory. If Mr Westwood intended to refer to these eight examples to deal with the rhythm, he should make sure that they were all mentioned in the Joint Report and specifically commented upon them in respect of rhythm. To have them up his sleeves and release the same in the course of re-examination is a contravention of the court’s direction for expert meeting and joint report. I must say such a practice falls short of what the court expects from experts coming to give evidence and smacks of poor tactical moves to forestall these examples from being considered by the court with proper assistance from experts.

683.  At the very least, Mr Westwood should have told Mr Mill about the additional examples in good time so that counsel could cross-examine Mr Radley about them when he was giving evidence. As Mr Mill did not do so, and counsel apparently had no difficulty understanding Mr Radley’s evidence on rhythm, I must assume Mr Westwood did not inform Mr Mill as to his intention to refer to the four examples until after Mr Radley had finished giving his evidence.

684.  Actually, Mr Mill did not lead any evidence from Mr Westwood about these examples specifically on the question of rhythm. What was put forward to deal with feature (xiv) in his examination in chief was the Westwood Table breaking the feature down into 5 sub-features. Up to that stage, as far as materials shown to the court are concerned, Mr Westwood still refused to be engaged on the real point under feature (xiv).

685.  Since there is no evidence from Mr Radley disputing Mr Westwood’s evidence that the four additional examples on rhythm were mentioned at the joint meeting, but had not been included in the Joint Report, I shall proceed on the basis that what Mr Westwood testified did occur. Even so, there is no justification for the evidence relating to the 4 examples not being disclosed to the court and counsel at a more opportune moment. As far as the court is concerned, this is an ambush.

686.  Be that as it may, the evidence was led in the re-examination without objection from Mr Chang and Mr Radley was able to deal with the four additional examples when he was recalled to give evidence. Under such circumstances, I shall take them into account. But this cannot be treated as a precedent that similar tolerance will be shown by the court in the future.

687.  This is the reason behind the difference between the Plaintiff’s version of the Westwood Table and the Westwood Table produced by him on Day 23. The Plaintiff’s version is attached as Annex II to Chapter VII of the Closing Submissions. In that table, there are 8 matches viz. those put forward by Mr Westwood in his re-examination for the lack of rhythm.

688.  The 8 matches are: specimens 96b, 8b, 98b, 97a, 97g, 97j, 69, 70b. Having duly taken the comments of Mr Westwood and Mr Radley in respect of them, I agree with Mr Radley that none of them demonstrated the awkward lack of mimicking and rhythm as per the questioned signature. The “an” in specimens 96b, 8b, 97a, 97g are signatures with a good mimicking and rhythmic pattern. The “an” in specimens 69 and 70b are not properly formed and, as explained by Mr Radley, no useful comparison can be made.  Specimen 98b again had a deformed “an” but there was no incongruity in terms of the rhythm of the loop as in the questioned signature. Specimen 97j, like the questioned signature, had a “valley” in the lower part of the left side of the “n”. But taken as a whole, there was no such diversity of slope as in the case of the questioned signature where the axis of “a” is at a completely different angle to the up down pen movement of the adjacent “n”. 

689.  Therefore I agree with Mr Radley and Dr Giles that feature (xiv) is a significant difference with no match in the specimens.

690.  Radley feature (xv) is the top loop (or the eyelet) of the “g” in “Wang”. Mr Radley had no match for the feature whilst Mr Westwood had 11. Dr Giles had 6 matches[288]. Notwithstanding Mr Radley’s observations about the difference in the magnitude of the eyelet in the matches, I accept specimens 23, 74a, 83, 95, 101 and 105 as matches. Further, amongst the specimens, as mentioned earlier, the “top loop of the g” manifested itself in a great variety of forms (and sometimes it is just a twist of the pen). It is not a very distinct feature. Thus, in the Joint Report, Mr Radley does not attribute great significance to this point on its own but regarded it as a further discrepancy in the series of pen movements taken together with feature (xiv). For my part, I do not think this adds much to what feature (xiv) by itself already demonstrates.

691.  Radley feature (xvii): the stepped alignments of the four components of the signature. Mr Radley had no match for this feature whilst Mr Westwood had 3. Dr Giles regarded this point as unconvincing and she took the view that for this feature, signatures written in a blank space should be considered separately from those written on a space with a baseline. Of the 10 specimens written in blank spaces, she commented that they showed a variety of layout with 4 exhibiting a stepped pattern.  But she did not identify these specimens in her comments. She also identified quite a number of specimens where the “T.H.” were written above the baselines, including imaginary ones where the signatures were on blank spaces.  

692.  Mr Radley accepted in the Joint Report that the specimens showed virtually every permutation and combination of steps up and down. He explained that the feature was not merely the stepped alignments but the combination and magnitude of vertical displacements. He regarded the stepwise pattern in the questioned signature as distinctive.

693.  In the Plaintiff’s closing submissions, much was said about the 3 matches of Mr Westwood were not really matches in terms of the so-called “up-up-up” pattern and given that the 1^st Defendant was unable to find one single match amongst so many specimens, this must be a difference significantly pointing to forgery.

694.  I do not accept this submission. The significance of a difference must be viewed against the distinctiveness of the feature. In other words, to what extent the pattern shown in the specimen (as opposed to the questioned signature) can be regarded as a special characteristic of the writer. This is part of the Radley Test of Significance and it really comes back to his “no lose point”. What we have here is, as pointed out by Dr Giles and accepted by Mr Radley in the Joint Report, the specimen signatures show a great variety in pattern. It follows that the feature cannot be distinctive for the purpose of identification or non-identification.

695.  It is quite arbitrary that the feature was dissected into 4 sections for demonstrating the “up-up-up” pattern. I note that in Mr Radley’s depiction of the feature, the fourth section is the “ang” of the “Wang” instead of the whole “Wang”. The “W” in the questioned signature actually has two base alignments, one for the first “V” formation of the “W” and then a lower alignment for the second “V” formation. Thus, if this is taken into account, the pattern will become “up-up-up-down-up” instead of “up-up-up”. In this connection, I do not think Mr Radley had made any real effort in dealing with Mr Mill’s cross-examination when counsel asked him about the difference in alignment between the right side and the left side of the “W”[289].

696.  Further, why should we ignore the base of the “g” in considering the alignment? It has never been explained.

697.  For some specimen signatures, there is a rather uniform alignment for the middle part of the signature comprising of “ina T.H.” and then the “Wang” with another alignment. As far as baseline alignments are concerned, those signatures would have a three-step pattern as opposed to a four or five or six-step ones.

698.  I do not intend to play the part of a handwriting expert by analyzing all the specimens and listing out all their alignment patterns. It is not appropriate for me to do so. What I try to demonstrate here is that on the expert evidence before me, given the large variety of patterns in the specimens, I am not satisfied that in the present case any useful purpose can be served by comparing the baseline alignments to arrive at an opinion on identification or non-identification.

699.  Further, as demonstrated by Mr Mill’s cross-examination of Mr Radley, it is not a case where there was absolutely no match in the specimen. Specimen 109 was put to him and when it was apparent that the pattern was the same, “up-up-up”, Mr Radley had to refer to the size of the elevation[290]. With respect, I find such differentiation to be a tenuous one. Another specimen showing similar pattern is specimen 20.

700.  Radley feature (xviii): the loop between the initial upstroke of the “N” and the subsequent downstroke. Mr Radley had 1 match whilst Mr Westwood had 2. Dr Giles had no opportunity to consider this one as the feature was only put forward at the joint meeting of Mr Radley and Mr Westwood. The agreed match is specimen 19 whilst Mr Westwood’s additional match is 43a, which Mr Radley considered to be a slightly deteriorated hospital signature. I am prepared to accept 43a as a match but it is still a rarity with 2 matches out of 82.

701.  It can be seen from the above analysis that putting the Radley features where a few matches can be found in the same category as significant similarities indicating genuineness is clearly wrong. Yet that is the approach of Mr Westwood.

702.  Amongst the Radley features, I find the following to be more significant than the others: (i) and (ii) (treated a one feature), (iii), (v), (vi), (x), (xiv) and (xviii). For these features, (x) and (xiv) are out of range. Features (vii) and (viii), which I regard as one feature, though less significant than those first mentioned in this paragraph, are also out of range. Feature (vi) is also regarded by Dr Giles to be a difference incompatible with genuineness. Though I have accepted that there are 2 matches out of 81, it is still a significant feature that I must take into account. For the features having matches (except features (ix), (xv) and (xvii) which I do not find helpful), taking into account their rarity ratios, even without undertaking the calculation by reference to the Huber formula as the Plaintiff did in their closing submissions, common sense tells us how unlikely it is that all these rarities occurred at the same time in one single event.

703.  Mr Radley tried to illustrate that by Table 1 (attached to his Second Supplemental Report) showing the number of rarities in each specimen. Even adopting Mr Westwood’s identification of matches, the highest number of rarities in one specimen is 4 (in respect of specimen 101). Mr Mill attacked this illustration by contending that Mr Radley had not taken into account of all rarities (including those not identified as Radley features) in the exercise. Counsel made an attempt to show there were other rarities by reference to specimen 66. This was not covered in any reports of Mr Westwood and Mr Radley refused to participate in an exercise of assessing whether a particular feature could be regarded as a rarity in the witness box without proper consideration. Counsel explained the reason why the matter proceeded in such manner was because the statistical point was not raised by Mr Radley until his quotation of Osborn in his Second Supplemental Report[291].

704.  With respect, I do not think it was a point brought up lately by Mr Radley. I agree with the submission of Mr Chang that the accumulative effect of the rarities had been ventilated in Mr Radley’s finalized report and, as demonstrated in Dr Giles’ comment on Radley feature (xi), experts in the field should have no difficulty in understanding that Mr Radley was making a statistical point[292]. Yet when he was cross-examined about paragraph 58 of the finalized report, Mr Westwood said he did not see the connection with Osborn for the reason that it was referring to accidentals. However, though he did not connect it with Osborn he was aware of the statistical argument as it had been raised many times in other cases[293]. Mr Westwood said he did not agree with the argument. Quite plainly, paragraph 58 was not only about accidentals and in view of Dr Giles’ comments and Mr Westwood’s evidence, I do not believe the Radley-Osborn statistical point was only appreciated by those advising the 1^st Defendant when Mr Radley served his Second Supplemental Report. 

705.  In the circumstances, if the 1^st Defendant intended to challenge the Radley-Osborn statistical point by raising an issue about the existence of other rarities, they should have file evidence on such other rarities before the joint meeting. Mr Westwood did not do so. Nor was there any reference to such other rarities at the joint meeting or the Joint Report. Instead, Mr Westwood saw fit to do an exercise on other rarities regarding specimen 66 to facilitate Mr Mill’s cross-examination of Mr Radley. No warning was given to Mr Radley and those acting for the Plaintiff (not to mention the court) that this was coming. I must say this is wholly against the spirit and the terms of the expert directions. It is an ambush which has no place in modern litigation. Mr Chang was entitled to object and he did object. Nobody can criticize Mr Radley for declining to participate in such an exercise.

706.  To be fair to Mr Mill, he accepted that the court should not take into account what had been said about the other rarities regarding specimen 66[294]. But in his closing submissions, counsel still challenged the Radley Osborn statistical point on the ground that the existence of other rarities was ignored by Mr Radley[295].  

707.  As things stand, I have no evidence from the 1^st Defendant as to the so-called other rarities. There may be many. There may be few. I do not know. It is not for me, not being an expert in the field, to guess. As I have demonstrated, this state of affairs was brought about by the 1^st Defendant’s deliberate choice of not putting this issue on other rarities in their expert evidence.

708.  What I shall do is to take note of the fact that Mr Radley’s Table 1 was compiled only with regard to the rarities identified amongst the Radley features. And I will not assume the same result will be yielded if one were to undertake the huge exercise of going through all the rarities in all the specimens including those not identified as the Radley features. But in my view, this limitation on Table 1 does not reduce the force of the Radley Osborn statistical point. As I said, common sense tells us this is a sound proposition.

709.  Of the Radley features where I find no match, (xiv) is a feature which Dr Giles regarded as highly indicative of simulation. She grouped (vii), (viii) and (x) together as “the positioning and shape of the initials “TH”, being one of the several differences which she regarded as incompatible with the questioned signature being genuine. I consider them as two different features with (vii) and (viii) counted as one and (x) as another, with no match for each of them.

710.  Apart from claiming (wrongly, I held) that these were similarities instead of differences, Mr Westwood did not offer any explanation for how the differences could have manifested themselves in the questioned signature if it was executed by Nina. Mr Westwood accepted that notwithstanding the presence of numerous similarities one could not form an opinion of identity when there are significant differences that cannot reasonably be explained[296]. On this premise, Mr Westwood’s conclusion that the Nina signature in the 2006 Will was a genuine one cannot stand.

711.  Taking into account these significant differences, considering the rarities (and the respective rarity ratio of each rare feature) and their accumulation in the questioned signature, and having due regard to the so-called additional similarities put forward by Mr Westwood, I must reject Mr Westwood’s conclusion that the Nina signature was a genuine one. For the reasons given, Mr Westwood failed to persuade this court that there were significant similarities between the questioned signature and the specimens. Applying the consolidated approach, giving due weight to the Westwood additional features and the rarities, I accept Mr Radley’s opinion (shared by Dr Giles) that the Nina signature is a highly skilled simulation.

The Winfield Wong signature

712.  There are 34 specimen signatures used by the experts for comparison. Amongst them, 20 were written by Winfield Wong on one single occasion specifically for the purpose of this case; 4 were facsimiles or photocopies only; 9 were written in the course of business; the last one was contained in exhibit P-5 when Winfield Wong demonstrated to this court what happened on 16 October 2006 in the course of his evidence.

713.  The available specimens were more limited when Mr Radley and Dr Giles gave their respective reports in March 2009. Mr Radley was then more guarded as to his opinion that the Winfield Wong signature on the 2006 Will was not genuine. As he had more specimens, particularly more signatures written in the course of business, his opinion became more definite. It is common ground that “made to order” specimens are usually unsatisfactory because they do not show the variability expected from different occasions and circumstances and they would be self-consciously unnatural resulting in “artificial consistency”[297].  

714.  Mr Radley explained how the additional business specimen signatures were important in reinforcing his observations about some significant differences[298]. With the limited number of samples the majority of which were “made to order” signatures in the first batch of specimens, I can understand why he was more guarded in his initial opinion. The most important consideration is the validity of his opinion in the light of all the specimens now available. 

715.  The signature executed in the demonstration in court was also made under unusual circumstances. Mr Radley had watched the video recording of the demonstration and he observed that Winfield Wong was extremely nervous and the signature and the writing were problematic. He invited the court’s attention to the quality of the “f” in the court signature and the terminal “G” in the writing. I also note that the number “9” in the identity card number in P-5 also shown signs of nervousness.

716.  Dr Giles had fewer specimens for comparison. She was only given the 20 “made to order” specimens plus specimen 95 and 5 copy signatures[299]. 

717.  What I have said about the general points of disagreement between Mr Westwood and Mr Radley in the context of the Nina signature equally applies here. Like what I have done for the Nina signature, I start by considering the additional similarities identified by Mr Westwood in his Report of 7 May 2009. Altogether 26 similarities were listed, of which 17 were said to be subtle features. Mr Radley commented on those in his Second Supplemental Report. Again his observations were that the so-called similarities fell into a huge range of variation leading virtually to no-lose situations and many of the features are not subtle. Mr Westwood agreed that the features did fall within the range of variation and did not express any dissent to Mr Radley’s comments[300].   

718.  Thus I see no need to go through the list one by one though I did consider them individually and collectively. I will only just pick some examples to show how these additional similarities fit into the Radley Test of Significance. Westwood feature (b) is the relative lengths of the downward diagonal stroke and the subsequent upstroke introduction of the “W”. To start with, the shape of the downward diagonal stroke and the subsequent upstroke is an obvious feature, most likely to be observed when someone tried to simulate the Winfield Wong signature. The shape actually defines the approximate length of the strokes. If one were to consider the actual proportions, the specimens show that they vary a lot. The feature cannot be of much assistance for the purpose of identification or non-identification.

719.  Westwood feature (c) is the relative alignment of the commencement of the signature and the upper extremity of the left peak of the “W”.  The questioned signature has an introductory point slightly lower than the left peak. So are specimens 86, 88, FDS1 and 89. But there are specimens where the introductory point is level with the left peak like specimens 87, 98, 95, 62b, 62e and 62n. And there are specimens where the introductory point is higher than the left peak: specimens 62a, 62f, 62h, 62m, 62o, 62p and 62r.  It is a no-lose situation.

720.  Westwood feature (f) is the form and/or axis of the “e”-like loop representing the right hand portion of the “W”. As demonstrated by Mr Radley, the axis of this “e”-like loop in the specimens ranges from pointing towards 1 o’clock to 12 o’clock. Basically anything is possible. Even amongst the example cited by Mr Westwood there are variations: compare the questioned signature with specimens 88, 62e and 62q. No significance can be attached to such a feature.

721.  Westwood feature (g) is the relative close positioning of the arrowhead-like diacritic above the “e”-like loop. One needs not be an expert and it only takes a casual examination of the specimens to see the variation regarding the position of the diacritic relative to the “e”-like loop is great. The examples where the diacritic is as close as the one shown in the questioned signature are much smaller than those farther away. I do not think one can draw any support of genuineness from this feature.

722.  Westwood features (h) and (i) are about the tented arch of the letter “n” and they can be considered together. In my view, they are in substance one feature. I do not understand why Mr Westwood regarded them as subtle features. It is correct that most of the specimens have this tented arch but the arch takes a variety of forms. Sometimes, like the questioned signature, the arch looks a well-balanced one. But sometimes, the arch is leaning onto one side, like specimens 86, 88, FDS1, FDS2, 62k, 62s, 62t. As regards the curvature of the right hand side of the arch, whilst most specimens show a curvature, the extent of curve varies: compare the questioned signature with 62d, 62j, 62k, 62o, 62p, 62q, 62r, 86 and 87. I can accept that the feature in the questioned signature is similar to the ones found in specimens 98, 62c and 62f. But the shape varies in the other specimens. Given the simplicity of the feature and the ease of copying the same, together with the large quantity of variations, I do not regard this as a significant similarity.

723.  Westwood feature (j): the alignment of the top of the tented arch and the introductory hook of the letter “g”. Like Mr Radley, I have difficulties in understanding what precisely Mr Westwood referred to. Even amongst the examples cited by him, the relevant alignment in the questioned signature is different from that found in specimen 62m. And specimen 86 and 87 are copy signatures which apparently do not have any hook. In any event, if Mr Westwood is referring to the perpendicular (relative to the baseline) alignment of the turning point of the introductory hook with the top of the arch, a casual examination of the specimens show that the variation is indeed great. Most of the specimens do not show such alignment. Further as Mr Radley pointed out, Mr Westwood should have considered this with the distinct angle of the introductory stroke of the hook in the questioned signature, which is Radley feature (vi) and clearly a more significant aspect of the hook. I do not regard Westwood feature (j) as a significant similarity.

724.  Westwood feature (k) is the intersection of the staff of the “g” with the lower portion of the right hand of the tented arch. Again a casual examination of the specimens will show that this is a non-point. The range of variation is so large that the only constant for the feature is the staff has an intersection with the tent. Chart 1 prepared by Mr Westwood has 6 specimens and none of them has the same or similar intersection in the questioned signature. The intersections (for the specimens in Chart 1) all appear close to the top of the arch (in specimens 87 and 98, it actually intersects at the top). The 2 examples cited by Mr Westwood are actually the only instances where the intersection is at the lower portion of the arch and the other specimens are way off the mark. I am surprised that Mr Westwood put forward this as a significant similarity.

725.  Westwood feature (m) is the slightly angular pen movement in the upper left portion of the first “e” of the “ee”-like structure. Mr Radley thought Mr Westwood referred to the second “e” instead of the first one[301]. Mr Westwood did not dissent when he was asked about Mr Radley’s comments in the Second Supplemental Report.  If Mr Westwood actually referred to the first “e”, the specimens actually show a great variety of how that first “e” is being written, e.g. specimens 87, 98, FDS1, FDS2, 62c, 62e, 62f, 62g, 62i. As such, it is not a significant characteristic of the signature. However, if Mr Westwood did refer to the second “e”, Mr Radley accepted it to be a subtle feature and corresponded well with the known writings[302]. But he went on to comment about inflection on the left hand side of this “e”. This shall be considered in the context of Radley feature (xi).

726.  Westwood feature (o) is the variations in orientation and form of the two loops in the “ee”-like structure. It shall be considered together with Radley feature (xii).

727.  Westwood feature (p) is the tapering of the spur at the end of the terminal stroke of the “ee”-like structure and it shall be considered together with Radley feature (xiii).

728.  Westwood feature (u) is the relatively lighter pen pressure on the upstroke compared with the heavier downstroke in the eyelet in the middle of the “W”. Bearing in mind that the eyelet is a middle stroke following the downstroke of the leftside of the “W”, it is difficult to see how that eyelet could be written otherwise. As Mr Radley put it,

“this is a general point in any handwriting where the abductor movement is with the fingers pushing the pen away from the fulcrum of the hand as opposed to the adducer movement which is the fingers pulling the pen downwards into the paper.”[303]

As an experienced document examiner, Mr Westwood should appreciate this. I agree with Mr Radley that no significance can be attached to this feature. I find it remarkable that Mr Westwood deemed fit to put forward such an insignificant feature to support his conclusion of identity.

729.  Westwood feature (v) is the relative alignment of the upper extremities of the left, middle and right portions of the “W”. I am at a loss as to what Mr Westwood wanted to demonstrate. Amongst the examples he cited, the alignments are different: one only needs to compare the difference between the top of the middle eyelet and the right extremity of the questioned signature with that found in specimens 86, 87, 98 to see the point. If Mr Westwood were only referring to the fact that the left extremity is slightly higher than the middle with the right extremity much higher, then it is not a subtle feature. Further, as demonstrated by Mr Radley in his Second Supplemental Report[304], the variation is great. Compare also specimens 62a, 62b, 62c, 62f, 62l and 62s, all executed on the same occasion as the “made to order” specimens. It is really a “no-lose” situation.

730.  Westwood features (w) and (x) are about the positioning of the horizontal stroke cutting across the “W”. Feature (w) is the comparison of the protrusion to the right with the protrusion to the left of the respective limbs of the “W”. This is obviously a bad point. A casual examination of the specimens shows that there is no uniformity in this respect. One can see the variety by reference to these specimens: 87, 88, 98, FDS1, FDS2, 95, 62b, 62c, 62f, 62h, 62k, 62n, 62q, 62r and 62t.  Feature (x) is the intersection point with the middle of the “W”. Again the range of variation is so great that I do not see what assistance can be derived by Mr Westwood from it. See specimens 86, 87, 88, 98, 95, 62a, 62b, 62c, 62d, 62e, 62f, 62h, 62i, FDS9a, FDS9b, FDS9c, FDS9d.

731.  The same observation can be made about Westwood feature (y) insofar as it refers to the positioning of the diacritic to the right of the “g”. The specimens show apart from a general statement that it is to the right of the “g” and to the left or near to the top of the left limb of the W above the horizontal bar, it can be anywhere around that area. The form of the diacritic also varies and the one in the questioned signature looks different from many of the specimens: see 98, FDS1, FDS2, FDS 9b, FDS9c, FDS9d, 89, 95, 62b, 62c, 62d, 62e, 62f, 62g, 62i, 62j, 62k, 62m, 62n, 62o etc.

732.  As for Westwood feature (z), the relative alignment of the upper extremities of the left portion of the “W” of “Wong”, the bowl of the letter “g” and the diacritic to the right of the “g”, given what I said about the randomness as to the position of the diacritic when dealing with feature (y), coupled with the randomness as to the relative position of the bowl of the “g” as shown in the specimens, it is difficult to regard the relative alignment under feature (z) as a significant feature.

733.  The above should be sufficient to illustrate the futility of the exercise. I regret to say Mr Westwood’s additional similarities do not add anything useful to the assessment.

734.  Before I turn to the Radley features, which Mr Westwood regarded as similarities[305] and Mr Radley regarded as differences, I should say something more about Dr Giles’ position on the Winfield Wong signature. As mentioned, she had limited number of specimens for comparison when she wrote the report. She was however able to form the view that there is strong positive evidence that the questioned signature is not genuine but is a high quality simulation based on 5 differences noted by her[306]. Her engagement ended before she had an opportunity to give her comments about the Radley features. Though she found the questioned signature fluently written, she also observed she found no guide lines,

“The questioned signature and handwritings in the name Winfield Wong Wing Cheung are firmly written without any sign of overwriting, retraces or hesitation. There are a number of pen line breaks within this signature and light pen trails are seen in some of these areas.”[307]

735.  In connection with the fluency of the questioned signature, Mr Westwood noted in his report that,

“I found no evidence of hesitation, unusual pen stops and/or pen lifts, retouching in or guidelines near the handwritten entries which might suggest that they are the product of freehand simulation or tracing.”[308] 

736.  On the other hand, Mr Radley said in his Finalized report,

“Certain elements of the signature are not, on microscopic examination, in my opinion fluently and spontaneously executed. There is a slight element of ‘drawing’ of certain features unlike the known signatures.”[309]

737.  From the evidence, as far as the signature is concerned, Mr Radley’s comment appeared to direct towards the “g”[310] and the “ee”-like structure[311]. The comment can also be viewed in the light of the additional Radley feature (xxiii). I shall deal with the same in the context of my discussion on each Radley feature.

738.  Mr Radley initially had 15 features for the Winfield Wong signatures. By the time of the joint meeting, he had retracted 2 of them[312] and he added an additional one, viz. feature (xxiii). I shall now consider them.

739.  Radley feature (ii) is the downstroke following what Mr Radley called the initial “Y” and the curve (or U-shape) leading upward again in the questioned signature. Mr Radley said in the specimens, the bends are angular. In the Joint Report, the experts agreed that the questioned signature is slightly outside the range of variation shown in the specimens.

740.  Mr Mill accepted that the usual signatures demonstrated angularity but he contended that the feature is a rarity and the “similarity” is significant because of its rarity value [313]. In the Westwood Table, 5 matches were identified (including exhibit P-5).  Mr Radley had no match in his Table. Mr Mill criticized Mr Radley’s refusal to accept P-5 as a comparable. Counsel submitted that P-5 provides a good comparison for both Radley features (i) and (ii) and there was no reason why Mr Radley refused to retract (ii) despite his concession as to (i).

741.  P-5 had not yet been released to the experts for their examination when they prepared the Joint Report. Hence, Mr Radley’s concession in respect of feature (i) was not because of his examination of P-5. Be that as it may, whilst I agree with Mr Radley there were signs of nervousness in the execution of P-5, I am not persuaded that P-5 should not be counted as a comparable in respect of feature (ii). I accept it as a match.

742.  As for the other 4 matches cited by Mr Westwood, I agree specimens 98 and 62f are matches. Specimens 62p and 62q are angular and do not support Mr Westwood.

743.  Hence, for Radley feature (ii), it is a rarity with 3 matches out of 34. Mr Mill’s submission on the significance the similarity on account of its rarity is based on Mr Westwood’s view on rarity. I have discussed and rejected that in the context of my consideration of the Nina signature and the Radley Osborn Statistical Point.

744.  Mr Chang submitted that the feature is a significant difference by reason of the difference in the pen movements. Mr Radley accounted for the difference by describing how the angular feature in the known signatures was produced by hand movement instead of finger movement producing a curved feature as in the questioned signature. But this account was rebutted by exhibit P-5. Mr Radley actually referred to the video recording of Winfield Wong’s demonstration in his explanation of hand movement. Thus, hand movement can also produce the curve in question. That was the point put by Mr Mill to Mr Radley in cross-examination[314]. In my view, Mr Radley did not provide a satisfactory answer. He tried to dodge the question and ultimately said the signature at P-5 was shaky. But shakiness does not explain the curvature at P-5 being produced by hand movement. There is no sign of shakiness in that curvature. In the light of that, I must reject Mr Chang’s submission on significance.

745.  Radley features (iii), (iv) and (v) are in respect of the “en” structure immediately after the initial W. They were considered together by Mr Mill in his submissions. In the Joint Report, it was agreed that feature (v) may be influenced by feature (iv). As I see it, all these features are about the relative size, the shape and positioning of the left side of the “n” and they should be considered as one feature. They are not independent events for the purpose of the application of the Radley Osborn Statistical Point.

746.  Mr Chang mis-described feature (iii) as the short ‘i’ before the ‘n’ in his closing submissions[315]. Mr Radley’s own description in his Finalized Report is as follows,

“…a small ‘i’ shaped structure presumably representing the intital downstroke of the ‘n’. This is relatively short in the questioned signature in comparison with the known signatures.”[316] (my emphasis)

Hence, the short ‘i’ in feature (iii) is actually the initial part of the ‘n’.

747.  Feature (iv) was originally described by Mr Radley as,

“The slope of this small downstroke is to the right. It does not curve back to the left as seen in the known signatures.”

This was clarified in the Joint Report as referring to the open loop formation.

748.  Feature (v) is the wide spacing between the looped portion of the preceding ‘e’ shaped pen movement and the following up/down pen movement of the ‘i’ shape in the questioned signature contrasting with the corresponding spacing in the specimens. Plainly, the shape of the so-called ‘i’, or rather the existence or non-existence of the open loop formation (viz. feature (iv) described above) would have a bearing on the spacing.

749.  Mr Radley had no matches for features (iii) and (v) and he agreed FDS-9d as a match for feature (iv). Mr Westwood had no match for feature (iii)[317] and 4 matches for (iv) and 3 matches for (v). For the additional Westwood matches for feature (iv), specimens 62b, 62k and 62p, there were narrow eyelets. For the Westwood matches for features (v), he actually agreed that they were not exact matches in the Joint Report though specimens 98 and 62o were close. He also cited specimen 62p in his Table as a match for this feature.     

750.  As I said, the three features should be considered as one and I do not attach too much significance to feature (v) by itself. The spacing is clearly dictated by the shape and the size of the initial part of the “n”. Viewed as one feature, I do not think there is any match for it. The so-called matches for the split-elements are more apparent than real when the initial part of the “n” is considered as a whole. Even FDS9d is markedly different from the questioned signature. My conclusion is that this should be regarded as one feature without any match in the specimens.

751.  Mr Mill relied on P-5 in his closing submissions in respect of feature (v) though Mr Westwood did not cite it in his Table. The initial part of the ‘n’ in P-5 (and in fact the whole “en” structure there) is deformed and I do not think any useful comparison can be made for this purpose. In any event, as I said, feature (v) is not significant by itself.

752.  Radley features (vi) and (vii) are the introductory stroke of the “g” (or some, like Dr Giles, Mr Chang and Mr Mill, would regard it as “f”) and the slope of the upward pen movement forming the initial part of the loop. In their respective Tables, neither expert had any matches for these features. Dr Giles cited the angle of the in-stroke to the “f” (essentially the same as Radley feature (vi)) as a significant difference in her report.

753.  Mr Mill submitted that these should be considered together with Radley features (viii), (ix) and (x) which are about the downstroke of the “g”. Counsel said all five features were the result of the sweeping movement taking off vertically from the preceding “n” and returning to the paper further round its natural curve than in the specimens, leading to both sides of the introductory flourish of the “g” or “f” being at different angles and the loop being more erect (or less dropping) and the staff being more erect also[318].  Counsel submitted there was no difference in the whole pen movement apart from beginning at a slightly later point in the sweeping movement and this was not surprising as specimens 86 and 87 showed Winfield Wong sometimes wrote the “g” or “f” quite differently.

754.  This is very interesting because not only did Mr Westwood not give evidence to such effect, as far as the features pertaining to downstroke being dictated by the introductory stroke and the slope of the beginning part of the loop is concerned he actually gave evidence inconsistent with Mr Mill’s proposition. In his Preliminary Report, when dealing with Radley features (vi) and (vii), Mr Westwood did not cite any specimens that had the same introductory flourish or with the same erected loop as the questioned signature. Yet, he was able to cite a number of comparables for features (viii), (ix) and (x). This implies that features (vi) and (vii) do not dictate the three subsequent features.

755.  Having said so, I can see a correlation between features (vi) and (vii) themselves. The angle of the introductory stroke has a great impact on the sloping angle of the subsequent stroke. I think they should be considered together as one feature.

756.  Mr Radley regarded these as significant differences. He explained how the pen moved in the air after finishing with the preceding “n” and illustrated how uncharacteristic the strokes in the questioned signature was when compared to the specimens. In the questioned signature, the introductory stroke was coming from high to low, coming in from 1 o’clock direction, before turning to slope upwards to form the loop. On the other hand, using specimen 62e as a typical example for illustration, the introductory stroke was coming from low to high, coming in from 5 o’clock direction, before turning to slope downwards to form the loop.

757.  Mr Westwood did not regard these as significant. In his Preliminary Report, in respect of feature (vi), he cited specimens 62a and 62q as examples of “g” without any introductory strokes as demonstrating the existence of significant variation. I find that wholly irrelevant given that we are talking about a questioned signature with an introductory stroke and feature (vi) is about the direction of that stroke. Then Mr Westwood cited specimen 98 for the angle between the introductory stroke and the long sweeping curve. Again that did not address feature (vi).

758.  In respect of feature (vii) he cited specimens 98, 62c and 62f as examples of upward rising axis in the loop of the “g” and commented on the overall form of the “g” loop. Again, in so doing, Mr Westwood was not addressing the difference pinpointed by Radley feature (vii). It was subsequently agreed in the Joint Report that the “g” loop had nothing to do with this feature.   

759.  In the Joint Report, apart from agreeing that there was no match and stating that he did not regard these features as significant, not much was said on these two features. Mr Westwood said there was a wide range of angles for feature (vi).  

760.  Understandably, in the witness box Mr Westwood was asked about what he meant by that last comment. After identifying that the direction of the introductory stroke in the questioned signature was 1 o’clock, Mr Westwood cited specimen 62g as an introductory stroke coming in from 4 o’clock. Then he cited specimen 62a as a stroke coming in from 11 o’clock. He carried on to say,

“So I’m saying the range is from 4 o’clock through to 11 o’clock. So that must embrace 1 o’clock.”[319]

761.  Mr Chang commented that this answer was absolute nonsense. With respect, I agree. Mr Westwood clearly appreciated that feature (vi) was about the introductory stroke[320] and he himself recognized that specimen 62a had no introductory stroke (he said so in terms in his Preliminary Report). To use specimen 62a to create a range of variation up to 11 o’clock is manifestly inappropriate. In so doing, Mr Westwood simply threw his credibility as expert witness out of the window.

762.  If one were to consider the range of variation properly by considering the specimens with introductory strokes only, the range is from 3 o’clock to 5 o’clock. The questioned signature is way out of range. Likewise there is no match for the upward sloping stroke leading to the “g” loop.

763.  Though I treated Radley features (vi) and (vii) as one feature instead of two, I agree with Mr Radley that it is a very significant difference. I reject Mr Mill’s submissions that this was not a fundamental difference in the pen movement. Nor do I think specimens 87 and 89 provided support for reducing its significance. Those were old signatures and they fall neatly within the usual range for Radley features (vi) and (vii).

764.  Coming next to the downstroke of “g”, I shall consider Radley features (viii), (ix) and (x) together. Mr Radley had no matches for all three features whilst Mr Westwood had 6 matches for feature (viii), 5 for (ix) and 5 for (x). I will deal with Radley feature (x) before I come back to the other two. In substance, it is the alignment of the right tip of the “g” loop and the lowest point of the downstroke. The range of variation for this alignment in the specimens is great. Of the 5 matches cited by Mr Westwood, I regard specimens 95, FDS2, FDS9a and FDS9c as matches notwithstanding the comments of Mr Radley in the Joint Report. Even though the alignment in the questioned signature is more vertical, given the nature of the feature and the wide range of variation in the specimens, I do not think a slight variation can be of significance. Applying the Radley Test of Significance, I do not think this feature is of much assistance.

765.  Radley features (viii) and (ix) should be considered together because when Mr Radley explained in his oral testimony what he meant by the downstroke being drawn (feature (viii)), he referred to the stroke being straightish (sic), not having variation of pen pressure with curvatures[321]. And curvature is feature (ix).

766.  Mr Radley agreed that there are other examples where the curves were not entirely smooth but he regarded the questioned signature as “drawn as opposed to spontaneously written”. He also placed emphasis on the line quality in the questioned signature. Though he did not retract the point, he accepted in the Joint Report that there are lines in the specimens having similar appearance. His final position was that he did not put forward this as a significant feature[322].

767.  Mr Chang reminded the court in his closing submissions that laboured and drawn lines point to simulation and are indicia of forgery[323].  With respect, that is too generalized. It must depend on the reasons why a certain stroke is said to be laboured or drawn and comparison needs to be made with specimens in respect of the identified characteristics. Mr Radley had done so and under cross-examination he agreed with Mr Mill that though poor line quality could be significant, it was not so on this occasion since the author himself exhibited the same quality[324].

768.  Amongst the specimens, there is quite a range of variation as regards the curvature of this downstroke. I agree with Mr Westwood that in terms of straightness and curvature, specimens 62a, 62b, 62c and 62d can be regarded as matches. Mr Radley referred to the downstroke being vertical in the questioned signature. This was not mentioned in the reports and Mr Westwood was not asked about this.

769.  On the whole, I do not derive much assistance from these features.

770.  Radley features (xi), (xii) and (xiii) are in respect of the “ee”-like structure. Mr Radley and Mr Westwood agreed there is 1 match for feature (xi). Mr Radley had no match for features (xii) and (xiii) whilst Mr Westwood had 2 matches for (xii) and 5 matches for (xiii).

771.  I think features (xi) and (xii) should be considered together because feature (xi) refers to the structure being laboured and not fluent and feature (xii) (referring to the relative elevation of the two “e”s) is relevant to the overall structure. I do not think they are independent events in the application of the Radley Osborn Statistical Point.

772.  For the lack of fluency, Mr Radley explained in his oral testimony that he was contrasting the angularity and the slowing of the pen at the questioned signature with the very quick execution of this structure in the known writings[325]. As for the angularity aspect, Mr Westwood cited this as an additional similarity in his additional feature (m). I have partly dealt with it above. In that context, apart from specimen 95, Mr Westwood cited specimens 62m, 62n and 62o. In the context of Radley feature (xi), the focus is on the first “e” and the slowing of the pen as it comes round. I agree that the first “e” in those three specimens showed a narrow eyelet in the first “e” like the questioned signature but Mr Radley was actually focusing on the left side of that “e” and the subsequent tail before leading onto the second “e”. The latter part is what Mr Radley referred to as the inflection when he commented on Westwood feature (m). The slowing of the pen at that point resulted in the higher elevation of the first “e”, thus the correlation between features (xi) and (xii).  And I agree with Mr Radley that Westwood feature (m) should not be considered in isolation. Likewise, Westwood feature (o) should also be considered together.  

773.  The agreed match for feature (xi) is specimen 95. Mr Westwood cited it as a match for feature (xii) as well. Though Mr Radley accepted that there is a difference in elevation between the first and the second “e” in specimen 95, he regarded the actual disparity in height is not the same. Having considered the point, I accept specimen 95 as a match for feature (xii). The other match cited by Mr Westwood is specimen 111. That was a signature executed at an angle and in a somewhat cramped manner. I do not think it can be taken as a match.

774.  Features (xi) and (xii) and Westwood features (m) and (o), considered as one feature, is a rarity with only one match.

775.  Mr Chang again made a submission about poor line quality as indicia of forgery[326]. It is not necessary to repeat what I said in the context of Radley feature (viii). Though I agree that it is a factor to be taken into account, and I bear in mind that Mr Radley was not addressing in the context of feature (xi) when he agreed with Mr Mill on the lack of significance in terms of poor line quality, I do not think feature (xi) is put forward by Mr Radley as a significant indicia of forgery per se.

776.  Radley feature (xiii) is the angular terminal stroke of the “ee”. Westwood feature (p) is essentially about the same point. In the Joint Report, it was agreed that specimen FDS9a is the closest to the questioned signature. In my judgment, Mr Radley’s illustration at p.57 sufficiently disposed of Mr Westwood’s citation of specimens 62a, 62f, 62p and 98 as matches. I accept Mr Radley’s evidence that in those instances the pen movements were different. In the questioned signature, there was a stop at the right end of the tail followed by an emphatic pen movement to the left which Mr Radley described as a retrace. These were not found in those specimens where, as explained by Mr Radley, more delicate loops were found at that point.

777.  As regards FDS9a, Mr Westwood produced a comparison to show that the angle of the “hook” (13º) is similar to the questioned signature (15º). But Mr Radley said the feature is not about the angle. Mr Radley said FDS9a was a “light delicate stroke at a similar angle”. He contrasted between “a relatively lightening of pen pressure as we get to the end” in the specimens (including FDS9a) and the “emphatic along the line stop, hard hook back” in the questioned signature[327].     

778.  Thus when Mr Radley was cross-examined by Mr Mill on FDS9a, he repeated the exercise, drawing a distinction between the “thickness” of the “emphatic stroke” in the questioned signature and the delicate and light stroke in FDS9a[328]. I accept that evidence and in fact I have not heard any dissent from Mr Westwood in that respect when he testified orally. Apart from adopting his reports, Mr Westwood did not give any oral evidence on this feature.

779.  But there is a specimen signature which Mr Radley had to accept as showing an emphatic stroke instead of a delicate one[329]. This is the signature executed by Winfield Wong at the demonstration in court, exhibit P-5.  Mr Radley tried to suggest that P-5 was not comparable because it was distorted and unnatural. But as far as this feature is concerned, there did not appear to be any distortion and Mr Radley had not explained how the distortion at other parts of the signature had affected it. I regard P-5 as a match for feature (xiii).

780.  Radley feature (xiii) and Westwood feature (p) is a rarity with only one match.

781.  Radley feature (xv) is the terminal stroke of the “W”, the small hook pointing towards 3 o’clock. Mr Westwood had one match whilst Mr Radley did not have any. The Westwood match is specimen 62f. Mr Radley said though there was a similar hook there, it was pointing towards 4 o’clock. Mr Westwood was of the view that this difference in the trajectories is not significant.

782.  Mr Chang said it was the same as a difference identified by Dr Giles in her report as “the undulating exit hook”. I am not sure if this was the same feature and I have no evidence to that effect. I cannot make that assumption. 

783.  An examination of the specimens shows that the terminal strokes of the “W” vary a lot. Sometimes there are hooks, sometimes not. When a hook appears, it mostly points inwards as opposed to the questioned signature and the specimen 62f pointing outwards. The lack of uniformity is demonstrated by the “made to order” signatures, viz. specimens 62a to 62t. They were all signed on the same occasion. Notwithstanding that, amongst them, we have all kinds of terminal strokes, including 62f. Against such background, I agree with Mr Westwood that a difference between 3 o’clock and 4 o’clock is not material. It is a rarity with 1 match out of 34.

784.  Radley feature (xxiii): the two ends of the horizontal bar across the W. It is actually two features, one in respect of the left end and another one in respect of the right end. They were canvassed by Mr Radley and Mr Westwood in the Joint Report. Actually, as far as the feature on the left side of the bar is concerned, it was Dr Giles who first referred to it in her report as a difference,

“the lack of a hook at the beginning of cross stroke of the “W”[330]

785.  In view of tight time schedule within which the handwriting experts had to work to fit into the trial schedule in the present case, the lack of objection on the 1^st Defendant to these points being canvassed, the ability of both sides to fully investigate on the points and address the court on them, I consider it is right that they should be taken into account in this trial. But this should not be regarded as a precedent or general charter for permitting new points to be taken by an expert at joint meeting or Joint Report. As I said, the purpose of a joint meeting is to narrow down issues. It is not an opportunity for the proliferation of issues. In general, the raising of new issues at the joint expert meeting should be discouraged.

786.  Adopting Mr Chang’s nomenclature in his Closing Submissions, Radley feature (xxiii)(a) is the left hand side feature of this horizontal bar. The primary point is the absence in the questioned signature of an introductory stroke which can be found in all the specimens. Mr Radley at the same time note that in the questioned signature there was a faint line “joining” the horizontal bar approximately one third away from the left end. I say “joining” because the experts agreed that it was not possible to determine whether the faint line is a continuous pen movement which went on to form the beginning of the horizontal bar or a separate stroke which happened to intersect with it.

787.  Mr Westwood did not identify any match which, like the questioned signature, had no introductory stroke. He referred to the presence of striation between the left hand end of the horizontal stroke and the left hand staff of the “W” as an indication that there was no retracing of the horizontal bar over the faint stroke. In other words, he was more inclined to the view that the faint line did not continue on to function as an invisible introductory stroke.

788.  It was the suggestion of Mr Mill to Mr Radley that the faint line could be an accidental where the signatory simply hit the paper accidentally. Mr Radley did not regard it as accidental and said it was a totally wrong pen movement in the air. He said the pen should not be there[331].

789.  Though Mr Westwood was less committed in his oral evidence as to the absence of retracing when he was cross-examined about this aspect, he did not put forward any positive case that the faint line was an introductory stroke with a retracing. He could not form any definite opinion about the faint stroke. When asked about what he said in the Joint Report as regards the striation, he told the court,

“… I am saying it’s all ifs. You can’t tell.”[332]

790.  Mr Westwood agreed as a fact that in the questioned signature the bar started without any emphatic introductory stroke from below the bar though he disagreed that this is significant.[333]    

791.  It is therefore rather surprising that Mr Mill advanced a theory regarding this feature based on retracing in his closing submissions[334]. Counsel suggested,

“In the questioned signature the pen has hit the paper before the intended starting-point of the left-right horizontal stroke and has slightly changed direction from an upward to a downward slope as it prepares to reverse direction: it has then re-traced that movement from left to right and extended it into the horizontal stroke, giving it a slight upward slope.”

792.  If I may ask rhetorically: where is the evidence to show that the faint stroke has changed direction from an upward to a downward slope as it prepares to reverse direction? The experts agreed that what happened to that faint stroke after it came to the intersection point with the horizontal bar cannot be determined. Mr Westwood said it was all ‘ifs’. In short, one cannot tell whether the faint stroke continued on to function as an introductory stroke of the horizontal bar or it went elsewhere. For all we know, it might even stop at that point. I am not satisfied that the faint stroke was an introductory stroke of the horizontal bar.

793.  In any event, it cannot be denied that there was no emphatic introductory stroke from below the bar which is the feature relied upon by Mr Radley. It is a feature with no match and I agree with Mr Radley (and Dr Giles) that it is a significant difference.

794.  Radley feature (xxiii)(b): the long thin dragline/ terminal spur at the right hand end of the horizontal bar. Similar dragline or spur were found in specimens 62a, 62b though not in the same length as the one found in the questioned signature. The terminal strokes vary a lot in the specimens: some are without any terminal spur or dragline, some terminated with a short spur or hook like specimens 62t, 62f. There is one which continued on to join the beginning of the capital “W”: specimen FDS9c. Though the dragline in the questioned signature is longer, I do not think this can be regarded as a significant feature for the purpose of identification or non-identification. On this point, I agree with Mr Westwood.

795.  To sum up, in respect of the Winfield Wong signature, I find there are 3 significant differences with no match at all (Radley features (iii), (iv) and (v) as one feature, Radley features (vi) and (vii) as another one and Radley features (xxiii)(a) as the third one). These are independent features and amongst the three, the second and third ones are fundamental differences. Apart from claiming that these features fell within the ordinary range of variations or that the differences were not significant (both contentions I have rejected), Mr Westwood did not put forward other explanations for these differences.

796.  In addition, there are 4 independent rarities: Radley feature (ii), features (xi) and (xii) as one rare feature, feature (xiii) and feature (xv). The independent rarities cannot be treated as similarities without regard to their rarity value. 

797.  And in respect of the additional similarities of Mr Westwood, given their nature and lack of significance for reasons given, even taking the Westwood Rebuttal into account, they could not outweigh the finding of significant differences in the consolidated evaluation.

798.  I bear in mind the size of the sample specimens and the fact that 20 of them were  “made to order” signatures and 4 were photocopies and 1 was a signature executed in court demonstration. As I have said above, the size would have a bearing on the weight the court attaches to the application of the Radley Osborn Statistical point. Also the number of rarities is not as significant as that in the case of the Nina signature. 

799.  I find there is sufficient evidence to persuade me to reject Mr Westwood’s positive opinion that the Winfield Wong signature was a genuine one. There are unaccounted for significant and fundamental differences. Mr Westwood agreed that a positive opinion of identification cannot be reached in such circumstances notwithstanding large number of similarities.

800.  As regards Mr Radley and Dr Giles’ opinions that the questioned Winfield Wong signature is a highly skilled simulation, though some of the features relied on them were rejected by me as being significant, I think there is sufficient evidence to support their conclusions. In addition, their opinions are corroborated by evidence other than the handwriting expert evidence discussed earlier.

801.  My conclusion is that the Winfield Wong signature in the 2006 Will was not genuine.

Winfield Wong writings

802.  In respect of the writings (viz. the identity card number and the name written in capital letters) associated with Winfield Wong in the 2006 Will, Mr Westwood is of the opinion that it is highly probable that they were written by Winfield Wong. On the other hand, Mr Radley takes a cautious stance and considers there is moderate evidence supporting the proposition that the writings were not made by him.[335] Dr Giles was inconclusive in this respect[336].

803.  The inadequacy of specimen writings must be borne in mind. The only specimen writings (as opposed to signatures) available to the experts are the 20 “made to order” specimens written by Winfield Wong on one single occasion. There is a reproduction of the name “WONG WING CHEUNG” (but not the identity card number) in specimen 87 but it has not been established that those were written by Winfield Wong. The other documents with specimen Winfield Wong signatures (viz. produced in the ordinary course of business) did not have any writings that can be used for comparison. In addition, Mr Radley and Mr Westwood had examined exhibit P-5.

804.  I have alluded to the unsatisfactory aspects of “made to order” signatures and exhibit P-5. Reproduction specimen is also unsatisfactory because some features may not come out in photocopy. Thus, we do not have a satisfactory pool of specimen of Winfield Wong writings to support a definite handwriting opinion.

805.  Mr Radley identified several features which he regarded as differences. Whilst acknowledging there were also similarities, he was of the opinion that there is moderate evidence (meaning over the balance of probability) that Winfield Wong was not the person who wrote the writing He also said it is far from conclusive[337].

806.  Bearing in mind my misgivings about the specimens available, the possibility of the range of variations demonstrated by the specimens being not representative of Winfield Wong writing is larger than the case of the signatures. Further, unlike signatures which usually exhibit more personal characteristics, writings of numerals and capital letters are more impersonal. I do not think handwriting examination on such a basis can give rise to a solid foundation for a conclusion on identification or non-identification.

807.  In the light of that, I will highlight several more notable features of Mr Radley and then deal with the opinion of Mr Westwood in respect of the writings.

808.  The most notable feature is Radley feature (xxii): wispy draglines. There are two kinds of draglines. If a person has a writing habit of not lifting the pen entirely off the paper between one stroke and the next one, draglines will appear in his writings. As shown in the specimen writings (and signatures as well), Winfield Wong has such a habit. Thus, one can find draglines in the specimens. Since the writer knows how the next stroke should be written and is confident about where the pen will hit the paper heavily again, those draglines would be fluent, rapidly executed and natural. It is also directional as the pen knows where it is going. This is not the subject of Radley feature (xxii).

809.  In contrast, as Mr Radley explained, there are meandering wispy hesitant faint draglines in the questioned writings at various points, most notably at the letter “D”, the numeral “9”, the “(4)”, the letter “U” and the last “G”. They are unnatural and meandering in such manner which indicates hesitation on the part of the writer. The pen changed directions all the time. Mr Radley considered that these are the results of the writer trying to copy Winfield Wong’s style of writings with draglines unsuccessfully. This addressed Mr Mill’s point that the meandering lines were not found in the Nina, Ng Shun Mo signatures and writings.

810.  Mr Radley explained in his oral evidence why it is difficult to copy even though the presence of draglines in the specimens are not difficult to observe,

“It is one of the things that is very difficult to get the pen pressure right because the difference between producing a small deposit of ink on the paper, whether it is here or whether it’s here, the height above the paper between hitting those top paper fibres and not hitting them is incredibly small. It is very, very, very small. If he gets it wrong just a little bit and hits the paper a bit too early, then you’re going to graze the top surfaces of the paper, as I believe we have here … with the meandering lines.”[338]  

811.  Mr Westwood accepted that there were faint meandering lines in the questioned writing which are not found in the specimens. But he suggested that these meandering lines may simply be the result of inattention in the execution of a freely and fluently written entry. He was of the view that it was impossible to tell whether these meandering lines were intended to be part of the questioned entry or when they were produced relative to the entry in question. He postulated that it was possible that they were extraneous ink marks produced by some person or persons pointing at the entry with a pen[339].   

812.  When he came to give evidence in the witness box, Mr Westwood suggested that the meandering lines could be the result of Winfield Wong hovering above the paper when he wrote. He tried to pinpoint the hovering action by reference to what Winfield Wong did during the course of demonstration. However, he agreed with Mr Chang that on that occasion, the hovering was way above the paper and it was before he signed his name (thus before the writings were executed). And there was no meandering line in the writings produced in the court demonstration in exhibit P-5[340].  However, Mr Westwood said that was only one occasion and it might well be possible that on another occasion Winfield Wong’s pen was not that far away from the paper and in a larger pool of specimens there could be meandering lines produced from similar hovering or odd touching of the paper.

813.  As Mr Westwood had said in another context, all these are a lot of “ifs”. What he has not been able to demonstrate is that his theory of meandering lines being the product of Winfield Wong’s own hovering in the course of writing is supported by a single instance in the specimens. He said it is due to the limited specimen samples.

814.  I have commented on the sample size as regards the Winfield Wong writings. Though Mr Westwood is entitled to challenge a positive opinion of non-identification due to the limit in sample size, I do not think he can draw support for his positive opinion of identification therefrom. The fact remains that Mr Westwood’s theory is not supported by any evidence other than his suppositions. On the evidence, the presence of the meandering lines is not accounted for. And this is a formidable hurdle to a positive opinion of identification.

815.  Mr Mill referred to FDS9a and FDS9c as examples of presence of meandering lines in genuine Winfield Wong signatures. Mr Chang said they were different as they were ‘ink strings’ or ‘goop strings’. Without expert evidence, I cannot resolve the point. If they were in the same category as the meandering lines referred to by Mr Radley, I cannot understand why Mr Westwood did not refer to them in his evidence. I do not consider it appropriate to entertain new points in closing submissions which should be the subject matter of expert evidence.

816.  Another more notable Radley feature in respect of Winfield Wong writing is feature (xviii): the static start and retracing at the beginning stroke of the numeral “9” with a wispy dragline. Mr Westwood pointed out there is a large range of variations in the specimens. Whilst I agree with Mr Westwood that there are similar or even longer retracing in the specimens, I do not think what he said in the Joint Report[341] satisfactorily account for the static start and the wispy introductory stroke. As shown in Mr Radley’s illustration[342], the pen movement of the stroke in the questioned writing is different from those in the specimens.

817.  Radley feature (xx): the letter “E” in “CHEUNG”. Mr Westwood’s only comparable is specimen 87. As mentioned, it has not been established that this was written by Winfield Wong and he had not been asked about it when he gave evidence.

818.  Mr Westwood had listed 40 additional similarities for Winfield Wong writings in his report of 7 May 2009. Mr Radley commented on some of them in his Second Supplemental Report. Many of the Westwood features, like his additional features in respect of the signatures, fall within the Radley no-lose situation. Some are in fact rarities as opposed to typical similarities found amongst the specimens. Some typical features can be quite easily copied. I can illustrate by a few examples.

819.  Westwood features (a) to (e) are all in respect of the letter “D”. Features (a) and (c) are the introductory hooks of the staff and the curve of the “D” respectively. Whilst I agree that the introductory hook to the curve is a characteristic manifested in most the specimen writings, the introductory hook for the staff is not that prevalent. Further, the relative positions of these hooks in the questioned writing appear to be quite different from all the specimens.

820.  Westwood feature (b) is the forward slant of the staff. As Mr Radley pointed out, there is only 1 match out of 20. It appears to be a rarity.

821.  Westwood features (d) and (e) are the overall form of the curve and the bias at 3 o’clock. Given the way a letter “D” is to be written, I do not see any significance for these features.

822.  Westwood feature (f) is the relative angular curve on the right side of “0” in the identity card number and the “O” in “WONG”. Specimen 62a was cited as comparable. However, the other specimens demonstrated much more rounded “0” and “O”. At most it is only a rarity.

823.  Westwood features (g) to (k) are about the numeral “9”. I have discussed the beginning stroke in the context of Radley feature (xviii). This corresponds with Westwood features (g) and (h). The difference is much more significant. Feature (i) is in respect of the bowl of the “9” and feature (k) is the straightness of the staff. These are common features for anyone who writes a “9”. Further, there is quite a variety in the staff appearing in the specimens. Feature (j) is the eyelet at the top of the staff. It is a characteristic reflected in all the specimens though the shape and size of the eyelet varies as the straightness of the staff varies. It can be easily copied.

824.  Westwood feature (n) is the overall forms of the “44”, including the hooks and spurs at the top of the strokes. Whilst acknowledging the hooks and spurs as a characteristic of the specimen writings, Mr Radley pointed out the relatively flat horizontal strokes are rare and the hook at the end of second “4” bending beneath the horizontal has no match in the specimens. Speaking on an overall basis, Mr Radley regarded the “44” in the questioned writing to be a rarity. I agree.

825.  Westwood feature (o) is the positioning of the lower left hand corner of the second “4” in “44” relative to the first “4” and the intersection of these two numerals. If one looks at the specimens, the lower left hand corner of the second “4” has occupied a large variety of position relative to the first “4”. The only constant appears that it is on the right hand side of the first “4” (and it cannot be otherwise). The corner can be slightly below the horizontal stroke of the first “4”, or below it, touching it, or away from it. The questioned writing seems to be the only case where there is a clear intersection though specimen 62e is close. It is a typical no-lose situation.

826.  Westwood feature (r) is the overall form of the third “4” and the curvature of the initial downward diagonal stroke. I do not see any reason why the overall form of the third “4” should be a distinct feature from the overall forms of the other two “4”s. The third “4” in the questioned writing looks rather different from the other two “4”s. But this does not appear to be the case for the specimen writings. Actually if one examines all the “4”s, the curvatures of the initial downward diagonal strokes vary and there are not that many “4”s with an initial downward diagonal stroke resembling the one in question. Again it is a no-lose situation.

827.  Westwood features (p), (q), and (s) are easily copied features. Feature (p) is the form of the numeral “2”. Feature (q) is the relative size, form and positioning of the brackets. Feature (s) is the proportions of size and shape of the left and right bowls of the “W”s.  There is no complex and unusual structure in these features shown in the specimens.

828.  Westwood feature (u) is the terminal eyelets in the right portion of the “W”s. Eyelets can be easily copied. There are specimens with eyelets and specimens without. Sometimes there are eyelets in one of the “W”s in the whole specimens, sometimes both.  There are more cases where eyelets appearing in the first “W” but not in the second one then the other way round. There are cases where eyelets are about the same size. To talk about the relative size of eyelets and put forward the first eyelet smaller than the second one as a feature is rather unhelpful. Looking all the specimens, it is another no-lose situation.

829.  Westwood features (w), (x) and (y) are about the “N”s. As Mr Westwood himself partly acknowledged by his own feature (y), there are quite a bit of variations in the “N”s. Feature (y) is about the terminal stroke of the “N”s. The same can be said regarding the valley and the left side of the “N”s which are features (w) and  (x). As held by the Court of Final Appeal, internal variations in questioned writings, if matched with internal variations amongst the specimens, can be a good point of similarity[343]. This is acknowledged by Mr Radley. But, as noted by him, these features can all be easily copied and can hardly be regarded as significant.  

830.  The same can be said for the “G”s, which is the subject matter of Westwood features (z), (aa), (ab), (ac), and (al). I do not see any reason why the “G” of “CHEUNG” should be considered separately from the other “G”s. Feature (z) is the introductory hook. Mr Radley pointed out, and I agree, that the hooks in the questioned writings are different in that there are threadlike structures which cannot be found in the specimens. Feature (aa) is the variation in the lower bowls of “G”, feature (ab) is the variation between closed bowl and open bowl, feature (ac) is the horizontal cross bar and the shape of the termination, feature (al) is the overall form of the third “G” in the questioned writings. The specimens show a great range of variations regarding these features and primarily they are no-lose situations. I take into account the internal variation point but again they can be easily copied.

831.  Westwood features (ah), (ai), (aj) and (ak) are in respect of the letter “U” in “CHEUNG”. Feature (ah) is the introductory hook and Mr Westwood cited specimens 62h, 62n and 62q as comparables. It can be seen from these specimens that the so-called introductory hooks in these “U”s were the result of the end stroke of the preceding “E” continuing on to form the commencing stroke of the “U”. In many cases in the specimens this is done without the pen lifting from the paper, thus forming a small loop at the commencement of the “U”, e.g. 62d, 62f and 62i. As such, the “E” and “U” in the specimens are closely knitted like sticking together. On the other hand, there is a relatively larger spacing between the “E” and “U” in the questioned writing and it is not apparent whether the hook of the “U” was a continuing pen movement of the preceding “E”.

832.  The spacing observation is equally applicable to the “UN” spacing. In the specimens, in many cases the tail of the “U” continues on to form the eyelet in the commencing stroke of the “N”, e.g. specimens 62a, 62b, 62c, 62n, 62o, 62q, 62r, 62t. Even in cases where the commencing stroke of “N” is a retrace rather than an eyelet, it always connects with the tail of the “U”. In contrast, there is a relative wide gap between the “U” and the “N” with the tail of the “U” turning upwards to give rise to a somewhat distinct stroke with no connection to the subsequent “N”. This is much more significant than Westwood feature (ak) the relative size of the “U” to “E” and “N”.

833.  Westwood features (ai) and (aj): the relatively straight left side of the “U” and the small right side. There is wide range of variations in the specimens for these features and they cannot be significant.

834.  I have also taken into account other Westwood features. But I do not think they take the matter much further in terms of identification or non-identification.

835.  On an accumulated evaluation, my conclusion in respect of the Winfield Wong writings is that there are significant differences which Mr Westwood cannot satisfactorily account for. In the light of that, his opinion of identification should be rejected.

836.  On the other hand, by reason of the limited size of the samples for Winfield Wong writings, notwithstanding the opinion of Mr Radley, I do not think one can come to any conclusion on the balance of probabilities. In other words, as far as handwriting examination is concerned, no conclusion can be reached as to whether the Winfield Wong writings were written by him or someone else.

Mr Mill’s argument on inherent probabilities

837.  At the forefront of his closing submissions on the forgery point, Mr Mill tried to draw support from the fact that the plea of forgery were only put in lately. Mr Mill submitted that the former legal team and the management of the Plaintiff did not believe in the forgery point at the early stage of this action. Counsel said they were right because there was nothing in the forgery point.

838.  I do not think it is profitable for this court to speculate why the plea of forgery was not made earlier or what went through the minds of those representing the Plaintiff at the earlier part of the proceedings. The duty of this court is to decide this case by reference to the evidence presented at the trial. Whatever were the views taken by other person on the materials presented to them, including lawyers formerly acting for the Plaintiff, they are generally of no relevance and inadmissible as far as this trial is concerned.

839.  The previous conduct of a party may sometimes be relevant if the party has first hand knowledge about some material facts and his previous conduct is inconsistent with the evidence he gave. But this is not the situation in the present case. As far as I can see, apart from Winfield Wong and to a lesser extent Ng Shun Mo, no-one else in the Plaintiff’s management had first hand knowledge about the contents of the document executed on 16 October 2006. Winfield Wong and Ng Shun Mo had steadfastly maintained that the document they witnessed was a partial will, not the 2006 Will. Every opportunity has been given to Mr Mill to cross-examine them with regard to their previous conduct and statements. I have already set out my consideration of their evidence.

840.  Aside from that, I see no significance in terms of the relative late plea of forgery. This court is not interested in finding out whether the former legal team should have addressed the issue earlier as it has no bearing whatsoever for the determination of the issues that I have to decide.

841.  Mr Mill put forward 6 inherent improbabilities regarding the 2006 Will being a forgery. Before I consider them, I should address a more fundamental point raised by Mr Mill in his oral closing submissions. Counsel submitted that unless this court can be satisfied with the Plaintiff’s case on Fung Shuiwill, the case of forgery will collapse. Mr Mill said once it is seen that whatever was signed on 16 October was not for Fung Shuipurpose, the Plaintiff’s submissions on forgery are starkly exposed as an elaborate attempt to deny the reality.  

842.  I will deal with the Fung Shuiwill issue later. But at this juncture I must say firmly that I disagree with Mr Mill’s submission about the establishment of the Fung Shui will being essential to the Plaintiff’s case on forgery. Mr Mill said the only case that made any potential sense for Nina to have executed the Specific Bequest Will (as opposed to the 2006 Will) was its execution for Fung Shuipurpose. Counsel said given the relationship between Nina and the 1^st Defendant and her generosity towards him in the past and around the time when the document was executed, a specific bequest of $10 million odd was financially derisory and emotionally nonsensical. Counsel also referred to the Plaintiff’s pleadings at paragraph 412(8) and (43) of the Re-Amended Reply and Defence to Counterclaim and suggested if the court shall find against the Plaintiff on the Fung Shuiwill issue, the pleaded case on forgery must fail.

843.  Whilst I agree with Mr Mill that one must have regard to the underlying relationship between Nina and the 1^st Defendant and consider the mindset of Nina on 16 October 2006 against that background in assessing the likelihood of the 2006 Will being a forgery (and I have done so in the above analysis), and to that extent there is an interrelation on the factual aspects of the case on forgery and the case on testamentary intent, I do not think the Plaintiff must negate the testamentary intent as regards the document executed on 16 October 2006 in order to succeed on forgery.

844.  As a matter of pleadings, I do not think the Plaintiff has pleaded a case of forgery dependent upon the establishment of Fung Shuiintent on the part of Nina in respect of the document executed on 16 October 2006. The pleas in paragraph 412 of the Amended Reply and Defence to Counterclaim are clearly pleaded as a plea alternative to the plea of forgery. It was further pleaded specifically that the Plaintiff is not required to oppose or negate the Specific Bequest Will which neither the 1^st Defendant nor anybody else is seeking to put forward or propound.

845.  Mr Mill’s proposition hinges on two points,

(a)     The Plaintiff must account for the mindset of Nina for the execution of the document on 16 October 2006 in dealing with the factual matrix relevant to the case of forgery. Unless the Plaintiff succeeds on the Fung Shui will case, the document executed on 16 October 2006 must have been executed with testamentary intent;

(b)    If the document executed on 16 October 2006 was one executed with testamentary intent, it must have been the 2006 Will instead of the Specific Bequest Will. 

846.  I think the arguments should be considered as a whole instead of breaking it down into two stages. As pleaded by the Plaintiff, since nobody is propounding the Specific Bequest Will, the intention of Nina behind the execution of such a document is not directly relevant for the purpose of this trial. But Mr Mill said given that it was an occasion where apparently a testamentary document had been executed, the court should consider that as evidence of Nina’s mindset on 16 October 2006 and, in the absence of any credible evidence to the contrary, the court should infer from that Nina had a testamentary intent in favour of the 1^st Defendant at that point in time. However it could be misleading in the present context if one were to consider testamentary intent in general. In the present circumstances, I think it is important to distinguish between a testamentary intent to make a specific bequest and a testamentary intent to bequeath the entire estate. 

847.  I have considered the evidence of Winfield Wong and Ng Shun Mo regarding what happened on 16 October 2006. In the light of the comment of Winfield Wong on partial will and Nina’s acknowledgment, even if one were to draw any inference from the prima facie testamentary nature of the document, it will be an inference that the testamentary intent in favour of the 1^st Defendant was likewise “partial”, viz. at the most Nina only intended to make a specific bequest of $10 million odd to the 1^st Defendant. I see no basis for elevating that to a testamentary intent of bequeathing her entire estate to the 1^st Defendant.

848.  Even though Nina’s mindset is one of the relevant considerations, it is not the only consideration on the question of forgery. The factual evidence as regards what actually happened is also important. After all, short of Nina giving direct evidence as to her mindset at that time (and this is impossible), the court can only draw inference as to her mindset based on surrounding circumstances. I have considered the underlying relationship between Nina and the 1^st Defendant and explained why in the light of the 2002 Will I do not regard their relationship as necessarily pointing towards the authenticity of the 2006 Will. I have also analysed the mindset of Nina by reference to her conducts before, during and after the execution of the document and explained why I find she did not have a mindset to make a testamentary disposition of her entire estate to the 1^st Defendant on 16 October 2006. In other words, I am able to conclude that Nina did not have any testamentary intent to bequeath her entire estate to the 1^st Defendant.

849.  Further, given my finding against the 1^st Defendant as regards his story on the provenance of the 2006 Will and his knowledge about the preparation of the document executed on 16 October 2006, the implication is that there are material facts known to the 1^st Defendant in these respects which he had chosen not to tell the court. Such withheld information can definitely shed light on the intention on the part of Nina as regards the document she executed on 16 October 2006. The same can be said with regard to the 3 substantial payments by Nina in 2005 and 2006 in favour of the 1^st Defendant’s nominee company.

850.  It may be argued that it would be unjust if he were allowed to exploit such self-created evidential lacuna to translate it into an inference of general testamentary intent regarding the entire estate in his favour. Yet as discussed later, there are limitations on the court’s ability to draw adverse inference against a party lying about material events. Further, as explained later, on the materials before the court, an inference can be drawn against the existence of a testamentary intent on the part of Nina to bequeath her entire estate to the 1^st Defendant. But I do not feel able to draw an inference that the Specific Bequest Will was executed as a Fung Shui device. How do these conclusions fit into Mr Mill’s contention? 

851.  Once the due execution of a will is proved, there is a rebuttable presumption that it was intended to be admitted to probate[344]. But Mr Mill’s argument is not about the proof or disproof of testamentary intent after the execution of the 2006 Will has been proved. What Mr Mill sought to do is to rely on the prima facie testamentary nature of the 16 October 2006 event to prove the due execution of the 2006 Will. If the 1^st Defendant wants to rely on the testamentary intent manifested by Nina on that occasion to bolster his case on the due execution of the 2006 Will, it is not good enough for him to point to a presumption of testamentary intent for a specific bequest. What he needs is a testamentary intent for a bequest of the entire estate. But that is something which this court infers against.

852.  Mr Mill focused on the past generosity of Nina towards the 1^st Defendant and the three substantial payments in 2005 and 2006 to contend that it would be absurd for Nina to make a testamentary gift of a derisory sum in favour of the 1^st Defendant. Mr Mill went as far as submitting that it would be an insult and rebuff, as such there was no reason why Nina would let the 1^st Defendant know about it before her death.

853.  In view of the 1^st Defendant withholding information about the nature of the three substantial payments, I do not think they can be regarded as simple gifts to him for the purpose of assessing the generosity of Nina towards him in 2005 and 2006. Though $10 million odd is a relative small amount compared to what Nina had given the 1^st Defendant in the past, I do not think one can regard it as derisory bearing in mind the 1^st Defendant’s own evidence that he had repeatedly told Nina that he already had everything he wanted and needed nothing from her. Nor do I see any basis for suggesting that such a bequest would be regarded as a rebuff or insult. Certainly the 1^st Defendant had not said so in his evidence. Moreover, as I have said, Nina had different considerations for the disposition of her entire estate (including the whole Chinachem business empire) as opposed to some lavish gifts by way of cash. 

854.  In short, I cannot see any inherent absurdity of the provisions in the Specific Bequest Will. And I do not agree that as a pre-requisite to the forgery case the Plaintiff must succeed in the Fung Shui will case.

855.  This also partly dealt with the first inherent improbability of Mr Mill: the contents of the Specific Bequest Will. Under this heading, Mr Mill also submitted that if Nina did make a specific bequest to the 1^st Defendant, she would have done similar thing for others in her family. I do not regard this as taking his primary point much further. First, the 2002 Will already had provision for some Kung family members. Second, in the light of what she had done in the past, I see nothing inherently improbable that she only made a specific bequest in favour of the 1^st Defendant.

856.  Mr Mill further submitted that a Specific Bequest Will would risk drawing attention to the clandestine relationship between Nina and the 1^st Defendant. As Mr Chang pointed out, all the more so for the 2006 Will. I also agree with Mr Chang that the Specific Bequest Will leaving a relatively small amount to the 1^st Defendant was less likely to arouse attention or concern. Such a bequest is perfectly consistent with a client and Fung Shui master relationship in view of Nina’s gratuity to other masters in the past.  And it was unlikely to lead to litigation.

857.  The last point of Mr Mill under this heading is that on the Fung Shuiwill scenario, since the 1^st Defendant was able to dictate the terms of the document he could have procured a document disposing the entire estate to him instead of a Specific Bequest Will. In response, Mr Chang said it is fallacious to proceed on the assumption or speculation that the 1^st Defendant would ask Nina to sign “whatever” or “anything” that is Fung Shui related without regard to Nina’s moods, feelings and her likely reactions. Mr Chang further referred to the evidence of Dr Ho regarding Nina complaining to him about people asking her to sign documents she did not understand.

858.  As I said, the 1^st Defendant had withheld material information from this court regarding the genesis and preparation of the Specific Bequest Will/2006 Will. It is my finding that the 1^st Defendant was the person assisting Nina in the preparation of the document executed on 16 October 2006, whether it is the Specific Bequest Will or the 2006 Will. Yet he chose not to tell the court the truth about how the document came into being. He had not told the court that he was able to get Nina to sign anything for Fung Shuipurposes. Thus Mr Mill’s submission is based on supposition instead of evidence. And I do not think it is a reasonable supposition. I see no basis for the proposition that under the Fung Shuiwill scenario the 1^st Defendant was able to ask Nina to sign anything he liked. There is a huge difference between Nina agreeing to execute the Specific Bequest Will for Fung Shuipurpose and she agreeing to execute the 2006 Will for such purpose.   

859.  The second head of inherent improbable element of Mr Mill is the high risk associated with the forging of the 2006 Will based on the Specific Bequest Will. Counsel said the 1^st Defendant would see that one of the attesting witness to the Specific Bequest Will was Winfield Wong, a solicitor and he had no way of telling whether a copy or draft had been kept either by Nina or her secretary or assistant or by the solicitor. If such a copy was kept the forgery would be easily exposed. Mr Mill went as far as suggesting that as a layman the 1^st Defendant on seeing a solicitor’s chop and the legal language employed in the Specific Bequest Will would assume that it was prepared by the solicitor with full record of its terms. In any event, the solicitor would be expected to have a clear recollection of the contents of the document.

860.  This submission fails to take into account of the scenario that the 1^st Defendant was involved in the preparation of the document executed on 16 October 2006 and he was able to ascertain from Nina whether any copy had been made. It is my finding that the 1^st Defendant was the one assisting Nina in the preparation of the document and he therefore knew that the solicitor only acted as a witness and no draft or other record of its terms was kept by anyone. As regards the making of copy of the document after its execution, the 1^st Defendant could readily find out from Nina whether any copies had been made and decide how he should act accordingly.

861.  I acknowledge that there is a risk arising from the recollection of the attesting witnesses about the contents of the document. Like the risk associated with forged signatures, it is inherent in any forgery where some signatories or witnesses survive. It is partly on account of the improbability of taking such risk that the court requires high standard of proof for such a serious allegation. But it does not mean it would not happen. The court just has to examine whether the cogency of the evidence is commensurate with the seriousness of allegation.

862.  The 1^st Defendant’s involvement in the preparation of the document also addresses Mr Mill’s submission about the risk associated with the typewriters. The 1^st Defendant knew that nobody could say that the typewriters in Chinachem and Ford Kwan & Co. were used to produce the document executed on 16 October 2006 (because in fact it was not), hence there was no risk associated with typeface and spacing comparison.

863.  In his oral submission, Mr Mill submitted that if the 1^st Defendant wanted to alter the Specific Bequest Will, he could just add a couple of zeros to the figure and it would be less risky. That submission assumes that there was sufficient space in the Specific Bequest Will for the zeros to be added. Further, it is equally subject to the risk of being exposed by the attesting witnesses recalling that the figure was not as large as that. Though it is probably easier to forge a couple of zeros than to forge three signatures, there is still risk associated with such forgery being detected. And the return is different. I do not think this submission advances the 1^st Defendant’s case very much.

864.  Mr Mill’s third inherent improbable element is the unlikelihood of finding and controlling a dishonest calligrapher. In essence, the submission is that it is difficult to find such a skilled calligrapher, and it is inherently unlikely that such a calligrapher would participate in such a high risk forgery, and further it would expose the 1^st Defendant to unlimited blackmail. Mr Mill referred to evidence of Mr Radley and some comments of Huber canvassed in the course of trial. In his oral submission, Mr Mill also added the risk of blackmail associated with the engagement of a person drafting the document.

865.  With respect, I think Mr Chang is correct in saying that these are points that can be advanced in every case of skilled forgery, though I also note Mr Mill’s submission that not all forgery case attracts as much public attention as this one. It is not necessary for the Plaintiff to identify the forger. Like the previous high risk point, I think these are matters that the court had taken into account in demanding a high standard of proof. On the other hand, if the evidence before the court is sufficiently cogent to meet the high standard required under the Re H principle and the Lee Ming Tee principle as explained by the Court of Final Appeal, it is the duty of the court to make a finding accordingly even though the court cannot identify the forger.

866.  The fourth inherently improbable element is the signing of the 2006 Will on top of the Unsigned Document. Mr Mill said it was unnecessary for the 1^st Defendant to make up the Unsigned Document if the 2006 Will is forged. Producing a forged replica added to the risk of detection. Further, it is unlikely that the forger would execute the 2006 Will on top of the Unsigned Document and there was no displacement of the papers in the course of the process of forging three different signatures and associated handwriting.

867.  As regards the risk associated with the forged replica, they are risk stemming from typeface and spacing comparison. For reasons given, there is no risk in those respects given the 1^st Defendant’s role in the preparation of the document. I agree with Mr Chang that I should not speculate on why the Unsigned Document was created. There can be rational reasons for a forger doing so like the creation of an impression that the 2006 Will had gone through a process of drafting. But I need not come to a finding on that. The 1^st Defendant had chosen to withhold from this court the surrounding circumstances leading to the drafting and production of the document to Nina for execution. By asking the court to rule out a case of forgery based on the lack of information to assess the probabilities of the so-called improbabilities, the 1^st Defendant is actually taking advantage of a situation he had created.

868.  The hard physical evidence shows that the three signatures in the 2006 Will were executed when that document was placed on top of the Unsigned Document and there was no displacement of the papers in the course of the signing. The factual evidence shows that displacement of the papers was likely to have occurred when the document was executed by three different persons on 16 October 2006, viz. Nina, Winfield Wong and Ng Shun Mo. Mr Mill submitted the displacement of papers was also likely if one forger had to forge three signatures. Since the forger is not identified, I have no means of telling whether he was capable or incapable of doing that without causing any displacement of the papers. What I know is that the three signatures on the 2006 Will were apparently executed fluently. And the probability of displacement occasioned by the execution of the same document by three persons with it being passed around in the process must be significantly higher than that associated with it being executed by the same person.  

869.  Mr Mill’s fifth inherent improbable element is the Nina signature was executed over the crease in the 2006 Will. His submission is that the 1^st Defendant and the forger would have no way of telling whether on 16 October 2006 Nina had signed after the crease had been created and it would be natural for them to assume she folded the paper after she signed. Hence, it is unlikely that the forger would fold the paper before simulating Nina’s signature on the 2006 Will.

870.  Mr Chang’s answer is that it was probable that the forger was presented with the Specific Bequest Will (by then it had been folded) and the 2006 Will (also folded). He saw that the Nina signature was across the crease and he just copied that without paying any attention to the sequence.

871.  Mr Mill said in his oral submission that the forging of signature was difficult enough without doing it over a crease. Even if the forger were presented with a document with a crease, he would not do it over the crease as he would appreciate normally one only creased it after one had signed.

872.  This submission was made by way of logical deduction. It assumes that the forger found it difficult to forge the signature over the crease and addressed his mind to the normal sequence of signing and folding instead of copying what was shown to him. As Mr Chang pointed out, this court should not speculate how this came about. And it is not necessary for this court to do so. So long as there could be possible explanation on how that would come about (and Mr Chang’s account is entirely possible), the forgery case is not inherently improbable. The court will then focus on what the evidence points to. In the present instance, the evidence accepted by this court pointed to the conclusion that Nina did not fold the document until after she had executed it on 16 October 2006.

873.  The last inherent improbable element of Mr Mill is the improbability as to the conspiracy. Insofar as that element refers to the tight time frame for undertaking the forgery exercise in the light of the evidence on the showing of the 2006 Will to the 1^st Defendant’s wife, I have already explained why I reject such evidence.

874.  Mr Mill also urged this court to take into account of the absence of any evidence of propensity of the 1^st Defendant to criminal behaviour, the wealth he already possessed and the risk he would expose himself and his family to by engaging in forgery.

875.  I agree I should take these into account. But I do not think they can be elevated to the level of pre-empting the court from making a finding of forgery despite clear and cogent evidence.

Conclusion on forgery

876.  Having considered all the evidence, viz. factual evidence and expert opinions, as well as considering relevant circumstantial background, including the relationship between Nina and the 1^st Defendant and her mindset in October 2006, I find that the 2006 Will was not signed by Nina and it was not attested to by Winfield Wong and Ng Shun Mo. The 2006 Will was not the document executed by Nina in the presence of Winfield Wong and Ng Shun Mo on 16 October 2006. I find that the document executed on that occasion was the Specific Bequest Will. In other words, I decided issues (1) and (2) in Paragraph 11 above in favour of the Plaintiff.

877.  As a result of this finding, the other issues are academic and the court needs not deal with them in this judgment.  However, I will briefly deal with testamentary capacity and testamentary intent. Given my finding on forgery, those issues would be considered with regard to the execution of the Specific Bequest Will instead of the 2006 Will. I will explain why.

878.  As Mr Chang submitted, no-one is propounding the Specific Bequest Will. Further, it cannot be found. Even though the probate court has an inquisitorial role, normally in such circumstances the court is not concerned with such a document.

879.  However, I am not dealing with these issues for the purpose of considering whether the Specific Bequest Will should be admitted to probate. Rather, it is to demonstrate that insofar as issues raised in those regards may be considered as having a bearing on the resolution of the forgery issue, they have been considered by the court. In this regard, I have already explained why in my view it is not essential for the Plaintiff to establish its case on Fung Shuiwill with regard to the Specific Bequest Will before it can succeed on the forgery issue. But I think it is useful for me to comment briefly on the topic.

Testamentary Intent

880.  In this connection, I reiterate what I said in my judgment on 11 June 2009, in particular paras.10 to 15.

881.  The law is not in dispute and the Plaintiff referred to several authorities at Chapter XI para.2 of their Closing Submissions. The requisite intent was considered by the English Court of Appeal in Corbett v Newey [1998] Ch 57. That case was about the distinction between a will which is on its face conditional (valid at law) and a will which is unconditional on its face but purports to be conditional by some extraneous direction of the testator at the time of execution (as such invalid on account of the lack of immediate testamentary intent).

882.  For our purposes, we only need to focus on the explanation of the requisite intent. Waite LJ said at p.65,

“Animus testandi, or testamentary intent, means an intention to make ‘a revocable ambulatory disposition of the maker’s property which is to take effect on death:’ see In re Berger, decd. [1990] Ch 118, 129 per Mustill LJ. A will, in other words, subjects the assets of the testator, from the moment of its execution, to a series of dispositions, which, unless revoked, will operate at his death. It is true that those dispositions will remain inchoate until his death, but they operate immediately as ambulatory provisions varying in range or subject matter according as the assets in the ownership of the testator during his lifetime may change in nature, value or extent. Since a will operates from the moment of execution, it necessarily follows that to possess the necessary animus testandi the testator must intend that this dispositive (though revocable and ambulatory) regime will be called into play immediately and not postponed to, or made dependent upon, some future event or condition.”

883.  Further, Morritt LJ said at p.68,

“The authorities establish that if it is shown by extrinsic evidence that a document which appears to be a will was not intended by the maker to operate as such then it will not be admitted to probate.”

884.  Thus, if Nina did not have the intention to make a revocable ambulatory disposition of her property which is to take effect on death when she executed the document on 16 October 2006, the document should not be admitted to probate. In the present case, the Plaintiff said she did not have such intention because she only executed the document for Fung Shuipurpose as a ritualistic tool to prolong her life.

885.  As a matter of pleadings, the Plaintiff advanced the case of Fung Shuiwill in respect of the 2006 Will by way of alternative. Mr Chang emphasized that since no one is seeking to propound the Specific Bequest Will, the question as to whether that will was a mere Fung Shui device is not an issue that calls for determination in this trial. However, in the light of the submission of Mr Mill regarding the improbability of a Specific Bequest Will other than a Fung Shui will being executed by Nina (which I have rejected for reasons given above), for the sake of completeness Mr Chang contended that the Fung Shuiwill argument is applicable to both the 2006 Will and the Specific Bequest Will.

886.  In this connection, as I have already concluded in favour of the Plaintiff on the forgery issue and rejected Mr Mill’s submission on the improbability of a genuine Specific Bequest Will, strictly speaking I need not deal with issue of Fung Shuiwill at all. However, in view of the time spent on the issue at the trial and in deference to counsel’s submissions, I will try to cover it as succinctly as possible bearing in mind the length of this judgment.

887.  At the outset the following points must be borne in mind,

(a)     According to my finding, the 1^st Defendant lied and withheld relevant information from this court regarding the circumstances leading to the three substantial payments in 2005 and 2006 and their real nature;

(b)    According to my finding, the 1^st Defendant was involved in the preparation of the Specific Bequest Will and he lied and withheld relevant information from this court regarding the circumstances leading to the preparation of the Specific Bequest Will and the execution of the same on 16 October 2006;

(c)     According to my finding, the 1^st Defendant lied about him not providing any Fung Shuiservices to Nina. I find that he actually provided Fung Shuiservices for Nina after their reunion in 2005, including the hole digging exercises testified by Wong Leung Woon. And such Fung Shuiexercises were for the restoration of Nina’s health.

888.  I should also acknowledge that the Plaintiff had no direct evidence as regards how the Specific Bequest Will came to be prepared. This is due to the fact that the document was not drafted nor typed by those in the Chinachem or Ford Kwan & Co. The person actually involved, viz. the 1^st Defendant, had denied his involvement and chosen not to tell the court the true story. As such the Plaintiff’s case on Fung Shui will is basically circumstantial.

889.  In deciding whether the circumstantial evidence, including the drawing of permissible adverse inference in accordance with the principle set out by the Court of Final Appeal in Nina Kung, there are material differences between the 2006 Will and the Specific Bequest Will.

890.  First, the effect of the two wills are substantially different, especially as regards the right of the Plaintiff under the 2002 Will. As I have explained, the factual matrix as found by this court pointed firmly to the conclusion that Nina intended the Plaintiff to carry on with her charitable works after her death and at all time she had no wish to revoke the 2002 Will. This provides great support for the Plaintiff’s case on Fung Shui will as far as the 2006 Will is concerned. At the very least, there is a cogent prima facie case that the 2006 Will was not executed by Nina with testamentary intent, based on which the court can draw the necessary adverse inference (in accordance with the principle laid down in Nina Kung and Lee Ming Tee) on account of the 1^st Defendant’s withholding of relevant information regarding the discussion leading to and the preparation of the 2006 Will. The adverse inference of lack of testamentary intent can be drawn by the court even without reaching a firm conclusion whether the document was a Fung Shui device. But this line of argument is not applicable in relation to the Specific Bequest Will since it could co-exist with the 2002 Will.

891.  Second, one criticism of Mr Mill on the Plaintiff’s case on Fung Shui will as applied to the Specific Bequest Will is that it was a very small disposition relative to the size of Nina’s estate. In the first report of Master Szeto, he said the petitioner had to give up everything. Though he later retracted from that, Master Szeto accepted that the more you give away the more likely it would be received well by the god. Counsel asked rhetorically why Nina would have thought that simply giving away a tiny fraction of her estate would have appeased the gods sufficiently[345]. Irrespective of the merit of this criticism, it has no applicaton to the 2006 Will.

892.  Given my finding on forgery, I do not have the factual basis for considering the Fung Shui will argument in the context of the 2006 Will. For all I know, if the document presented for attestation on 16 October 2006 were the 2006 Will, the events might have taken a different course and there could well be conversations between the attesting witnesses and Nina shedding light on her testamentary intent or the lack thereof in respect of the document. In these circumstances, I do not propose to say anything more as regards the alternative case of the Plaintiff on Fung Shui will in respect of the 2006 Will if it were the document executed by Nina.

893.  In the following discussion, I only focus on the Fung Shui will argument in respect of the Specific Bequest Will. 

894.  The Plaintiff and the 1^st Defendant has each called one Fung Shui expert giving evidence on Fung Shui related matters. I have discussed the limited relevance of the evidence of Fung Shui experts in my judgment on 11 June 2009. I need not repeat the same discussion here. Further, even though Master Szeto gave evidence about registration of Fung Shui practitioners in mainland China, he also testified that different masters had different practices and one master cannot tell how another master conduct his or her practice. I was not told about the standard adopted for registration in the mainland. Fung Shui is not a universally accredited discipline being taught in our formal education system. As far as Hong Kong is concerned, any person can run a Fung Shui class or held himself out as a Fung Shui practitioner or master based on his or her own knowledge or understanding of Fung Shui. There is no independent objective assessment (and by the inherent nature of the subject I doubt if there can be such assessment) and thus no quality assurance whatsoever. Against such background, it is rather futile to debate whether a person is a good Fung Shui master or whether a particular Fung Shui theory or practice is sound.

895.  Moreover, for reasons set out in my judgment of 11 June 2009, I do not think the resolution of the issues in this trial requires this court to determine whether the alleged Fung Shui practices of the 1^st Defendant or the concept of Fung Shui will were sound or effective. As I said on a number of occasions, that question is not susceptible to determination in a court of law. Rather the relevant questions are whether the 1^st Defendant had proffered what Nina perceived to be Fung Shui advices to her and whether she had acted upon the same in the execution of the Specific Bequest Will. These are questions of fact.

896.  Therefore, the evidence of Mr Joseph Yu, focusing on the validity and consistency of the alleged Fung Shui practices with some Fung Shui theories, based on his own research by reading some works on Fung Shui and logic and common sense, were quite beside the point. I do not find such evidence to be of much assistance in this trial. Even though Fung Shui is not a science, Mr Yu developed his Fung Shui theory by making use of mathematical methods and his own logical deductions. It is not my function to adjudicate whether such an approach is sound. But there is no evidence that his approach is shared by many Fung Shui practitioners in Hong Kong. Mr Yu taught classes and practised his Fung Shui overseas but not in Hong Kong or the mainland or Taiwan. Therefore he cannot give useful evidence as regards local practices. He frankly admitted that he had no knowledge of Taoist practices and Fa Discipline. He did not practise planting of life base though he had researched into it on a theoretical level. He was therefore not in a position to dispute Master Szeto’s evidence that the Celestial Atlas (as shown in the Fung Shui notes compiled by Mr Leung) was about planting of life base, Mao Shan art of divination and closely related to the Fa Discipline. 

897.  As regards the evidence of Master Szeto, he was able to testify on the following practices based on his personal experience as a Fung Shui practitioner of over 30 years in Hong Kong, Macau and the mainland. These practices are relevant to my assessment of the likelihood of the Specific Bequest Will being executed as a Fung Shui device.

898.  According to him,

(a)     There is a Fung Shui practice called Rebirth after Death involving the presentation of a petition to a deity or deities seeking, amongst other things, the prolongation of one’s life. Such a petition is also known as a Fung Shui will. The client would sign the petition for use in the rituals to be conducted by a Fung Shui master and the petition would be burnt in the course of the rituals.

(b)    But the wordings of the petition varied, depending on the practice of the individual master. There is no rule that the petition must provide for the disposition of all the assets of the client. In the precedent petition exhibited by Master Szeto in his supplemental report, there is no disposition in favour of any person apart from offerings being made. Master Szeto also said a donation to charities may serve the same purpose.

(c)     The essential part of a petition is that the petitioner would seek guidance and help from the deity or deities.

(d)    There is another Fung Shui practice called planting a life-base involving digging of holes or a series of holes connected to each other. In the latter case, items would be put into some of the holes whilst some other holes could be empty. Jade pieces, paper talismans, scripts or paper artifacts can be put into such holes. Personal items like hair, nails, blood, clothings or shoes are put in as well.

(e)     Planting of life-base can be done in conjunction with Rebirth after Death. Alternatively, the two practices can be performed separately.

(f)     Fung Shui masters in Hong Kong customarily charge fees in amounts with figures 3, 6 and 8.

899.  However, for the reasons I have canvassed in my judgment of 11 June 2009, it does not necessarily follow from the existence of these practices that they had influenced the mind of Nina when she executed the Specific Bequest Will in October 2006. Insofar as Master Szeto attempted to draw conclusion in that regard, it is a usurpation of the function of this court. This issue, which is essentially a factual finding, should be resolved by the court having regard to all the evidence. I do not accept one can form a conclusive opinion as to the purpose of the Specific Bequest Will (or the 2006 Will) simply based on the similarities between certain features in the Fung Shui practices testified by Master Szeto and the facts of the present case.

900.  Master Szeto also gave evidence on the Fung Shui artifacts he could observe at the former residence of Nina. Coupled with the other evidence on Nina’s involvement with Fung Shui and the fees she paid to various masters (including her observance of the advices from various Fung Shui masters in her litigation with her father-in-law), I find that Nina was a firm believer in Fung Shui[346].

901.  But did she know about the concept of Fung Shui will? I have found that the 1^st Defendant was acting as her Fung Shui master and he was involved in the preparation of the Specific Bequest Will which was the document executed on 16 October 2002. Nina had used his Fung Shui services in dealing with her health problems by commissioning him to undertake the hole-digging exercises which had the hallmarks of the Fung Shui practice of Planting a Life Base. If the 1^st Defendant had knowledge about the practice of Fung Shui will, in the circumstances of the present case, the court can infer that the 1^st Defendant had told Nina about the practice.   

902.  Is there any evidence that the 1^st Defendant had knowledge about the concept of Fung Shui will? The Plaintiff relied on the following,

(a)     The 1^st Defendant had practiced as a Fung Shui master;

(b)    According to Master Szeto, based on his reading of the Fung Shui Notes, the Fung Shui practised by 1^st Defendant belonged to the Fa Discipline;

(c)     Fung Shui will was a prevalent practice amongst Fa Discipline Fung Shui masters;

(d)    Planting of Life Base and Fung Shui will are both practices to prolong life and the 1^st Defendant’s holes digging exercises were in substance Planting of Life Base;

(e)     The Fung Shui Notes, the contents of which had to be familiar to the 1^st Defendant irrespective of its authorship, contained reference to practice akin to Fung Shui will;

(f)     The 1^st Defendant was well capable of improvising in matching his Fung Shui practice with the needs of his clients.    

903.  I have read the relevant pages[347] of the Fung Shui Notes referred to by the Plaintiff several times. That section of the Notes talks about “Spirit” and one of the practical uses is the increase of a person’s lifespan by utilizing the “spirit” of another being. But it is a different practice from the Fung Shui will practice described by Master Szeto. There was no reference to the execution of a petition or a will by the beneficiary. The Notes said it was necessary for the master performing the ceremony to focus on his request at the time of the ceremony. If the master has difficulty in focusing, he could write the request on piece of yellow paper in advance and burn it in the ceremony.

904.  Even taking into account of the 1^st Defendant’s ability to improvise, I do not think the Fung Shui Notes provides the necessary evidential foundation to an inference that the 1^st Defendant had knowledge about the practice of Fung Shui will.

905.  As regards the prevalence of the practice amongst Fa Discipline Fung Shui masters, I do not think Master Szeto had clearly distinguished between the different life prolongation rituals mentioned by him when he gave evidence as to the persons he knew engaging in such practices[348]. If one were to confine to Fung Shui will it is not clear to me how prevalent the practice was. Taking into account of all the matters alluded to in paragraph 902 above, I do not find a sufficient basis for inferring that the 1^st Defendant had knowledge of Fung Shui will. But there are other matters that I have to consider before I can reach a final conclusion on the inference to be drawn.

906.  The Plaintiff also relied on the wordings of the 2006 Will (and the same wordings in the Specific Request Will). Of the whole document, Master Szeto could only pinpointed the last paragraph in the 2006 Will as an indication that the document was a Fung Shui will. That paragraph reads,

“I am deeply and thankfully convinced that my will is proudly guided with God help. I thank you all.”

He said the plea for guidance from God is the essential part of a Fung Shui will. But is that the only essential element?

907.  Master Szeto also produced the precedent he used[349] for his ceremony which is in the form of a petition instead of a will. There are many features in that precedent which are different from the 2006 Will (and inferentially also absent in the Specific Bequest Will). First, it begins by specifically addressing the deity instead of reciting one’s demise. Second, it sets out the date and time of birth of the person seeking help (and this was said to be essential in the precedent). And this is absent in the 2006 Will and the Specific Bequest Will. Third, it sets out the matter for which the person seeks the help of God and what he hopes to achieve (and again this was said to be essential in the precedent). Again we do not find any request for the prolongation of life in the 2006 Will and the Specific Bequest Will. Quite the opposite, it starts off by saying that by the time the document was announced Nina would have rested in peace. Fourth, the precedent contained a promise to make an offering to God whereas the 2006 Will (and likewise the Specific Bequest Will) was, on its face, a disposition in favour of the 1^st Defendant. Fifth, the precedent was to be signed by the person seeking help whereas the Specific Bequest Will was also attested to by two witnesses. 

908.  I understand and accept this precedent is not a prescription followed by all the Fung Shui practitioners. Master Szeto said that each master could have his own practice. But I think the 1^st Defendant is entitled to ask the court to take into account of these important differences in assessing the Plaintiff’s case of Fung Shui will. Despite what he said about the possibility of the other parts of the precedent presented orally by the Fung Shui master during the ceremony, I have difficulty in accepting Master Szeto’s conclusion derived as it were simply from the similarity in the paragraph I referred to. Though the paragraph is unusual for an ordinary will, I do not think it is a clear pointer towards a Fung Shui will. There could be other explanation for a reference to the help of God in a will.

909.  There is nothing in the conversations between Nina and the attesting witnesses on 16 October 2006 suggesting that the Specific Bequest Will was a mere Fung Shui device or for some other reasons not to be treated as testamentary in nature. When Ng Shun Mo asked Nina about the partial will about one week later, she did not say anything that shed any light on the Fung Shui nature of the document. I agree that these cannot be conclusive as we have evidence to the effect that Nina did not want others to enquire about her Fung Shui belief. But it remains the fact that the attesting witnesses cannot provide an answer to Mr Mill’s rhetorical question: why would Nina arrange for the document to be attested by two witnesses if it was merely a Fung Shui device.

910.  Mr Chang asked the court to draw inference from the three substantial remittances that they were payments by Nina to the 1^st Defendant for Fung Shui services. Further counsel invited the court to draw inference from the proximity in time of these events: the execution of the Specifc Bequest Will on 16 October 2006, the third remittance, Nina’s deterioration of health despite the hole-digging exercises and her apparent respite after admission to the Hong Kong Sanatorium. Counsel submitted a fair inference is that the third remittance was payment for services pertaining to the Fung Shui will.

911.  Even though the court may draw adverse inference against a party withholding material evidence from the court (and this includes telling lies on material events), the Court of Final Appeal in Lee Ming Tee and Nina Kung has clearly explained the limits to such exercise. Inference must be properly grounded in primary facts found. The court must not engage in what in substance is conjecture under the disguise of drawing inference. If the primary facts can give rise to conflicting inferences of equal degrees of probability so that the choice between them is merely a matter of conjecture, the court cannot draw an inference one way or another.

912.  I have discussed how this principle applied in the context of drawing adverse inference against a party who withhold relevant information from court in Natuzzi v De Coro Ltd HCA 4166 of 2003, 16 June 2006 paras.10-12 and I reiterated what I said there. Based on the Australian authorities cited by Ribeiro PJ in Nina Kung, I had derived two propositions which I applied in that case,

(a)     An inference can be drawn in a civil case if the evidence give rise to a reasonable and definite inference that is more probable than the other conflicting inferences;

(b)    But the facts proved must provide a reasonable basis for a definite conclusion before one enters the realm of inference. The court should not make a finding on the basis that one guess is more probable than another.

913.  Thus, one must always start from the primary facts proved in a case before turning to the inference to be drawn.

914.  What are the primary facts here? We have a will making a specific bequest to a Fung Shui master who was also a close friend. The will also contained a paragraph stating that it was guided by God. The Fung Shui master had provided Fung Shui services to Nina and at the relevant time the services were performed to address her health problem. The services by way of hole-digging exercises did not bring about the cure.

915.  Mr Chang asked the court to accept the evidence of his witnesses. According to the evidence of the siblings, the 1^st Defendant had told Nina that he had talked to Buddha and Buddha said she could live up to 90 years old. In the light of my assessment of the credibility of the various witnesses (including the 1^st Defendant, who denied having said so), I accept the siblings’ evidence in this respect. I find as a fact that the 1^st Defendant had assured Nina that Buddha told him that she could live up to 90.

916.  Another fact Mr Chang relied upon is the 1^st Defendant’s statement to Dr Kung that he had told Nina that he had managed to transmit all her sickness to him. Again I accept the evidence of Dr Kung.  

917.  It is my finding that the 1^st Defendant was involved in the preparation of the Specific Bequest Will. Based on the evidence of Master Szeto, I accepted that the Fung Shui circle, some masters practised rituals with the objective of prolonging the life of beneficiaries and “Fung Shui will” was a ritual of such nature. The ritual involves a petition to deity. But the precedent produced by Master Szeto is not in the form of a will. The Specific Bequest Will did not even set out any request to a deity to prolong Nina’s life. As explained above, I do not regard the similarity in the last paragraph of the Specific Bequest Will with Master Sxeto’s precedent petition as providing a sound evidential basis to lead to a reasonable inference that the document was a device for Fung Shui ritual.

918.  Even assuming I agree with Mr Chang that the court can infer that all the three remittances were payments for Fung Shui services, I still have to ask whether there are sufficient primary facts to support a reasonable inference that the Fung Shui services provided by the 1^st Defendant included a ceremony using the Specific Bequest Will as a Fung Shui will.

919.  In my judgment, taking into account all the above primary facts, and bearing in mind that the Specific Bequest Will is not inconsistent with the 2002 Will (which I found Nina had an intention to keep it as her valid testamentary will up till her death), I do not think there is sufficient evidence to warrant this court to draw a reasonable inference that the Specific Bequest Will was a device used for the Fung Shui will ritual notwithstanding my firm conclusion that the 1^st Defendant withheld relevant information from this court as regards the genesis of that document.

Testamentary capacity

920.  Since the question of testamentary capacity regarding the 2006 Will has become academic, I shall be very brief. The only reason why I discuss this issue is to set out clearly why I do not think Nina was suffering from delirium when she executed the Specific Bequest Will on 16 October 2006. Thus, she fully understood what Winfield Wong said about the partial will when she responded to his remark. Further, given her continued wish to honour her 2002 Will, it is unlikely that the document executed by Nina with full mental capacity was the 2006 Will.

921.  To be fair to the witnesses and counsel, at the time when mental capacity was addressed at the trial, they focused on the factual premise that the 2006 Will was the document executed on 16 October 2006. Thus, perhaps not much consideration had been given to the scenario found by this court in the context of testamentary capacity. The Plaintiff did not put forward a case of lack of testamentary capacity as far as the Specific Bequest will is concerned.

922.  The Plaintiff’s case of delirium is based on the dramatic drop in Nina’s haemoglobin levels during the few days after her return from Singapore on 11 October 2006.  Whilst that provides a theoretical basis for the possible occurrence of delirium, one must have regard to what actually happened between 13 and 16 October 2006 to see whether Nina actually suffered from delirium in the morning of 16 October 2006. It is accepted by Professor Jones, the Plaintiff’s expert, that physiological abnormalities (such as electrolyte disturbances and anaemia) are necessary but not sufficient criteria for a finding of delirium[350]. Abnormal behaviour must also be proven.

923.  If one examines what this court find to have happened during the relevant period, viz. between 12 and 16 October 2006, excluding the execution of the document in the morning of 16 October 2006, one cannot detect any evidence of abnormal behaviour on the part of Nina. Mr Mill helpfully outlined those events in his Closing submissions[351] and I need not repeat the same here. I have rejected the evidence of the 1^st Defendant as regards Nina’s communication with him about the will. But counsel’s primary point is still valid: there is no evidence of abnormal behaviour.

924.  To that list of events of Mr Mill, I can add the various encounters between Nina and her siblings between those dates: including her 14 October instructions to Mrs Tong to facilitate the 1^st Defendant’s contact with her (probably in anticipation of her hospitalization), the visit by Dr Kung to Nina on 15 and 16 October, the cancellation of her site visit with Mr Heng on 15 October. The siblings were contented to leave Nina on her own during 15 October. This would be unlikely if Nina had exhibited any abnormal behaviour between 12 and 15 October. 

925.  Turning to what happened when the Specific Bequest Will was executed, the evidence of the two attesting witnesses shows that Nina knew what she was doing and she was able to respond to Winfield Wong’s remark as to the nature of the document intelligently and clearly. Given that there is no inconsistency between the Specific Bequest Will and long-held charitable intent of Nina as embodied in the 2002 Will, the execution of the former document on 16 October 2006 cannot be an abnormal behaviour.

926.  In the Plaintiff’s closing submissions and reply submissions, much was said about the events cited by Mr Mill were about Nina making decisions not of a testamentary nature, as such do not constitute evidence that she had testamentary capacity on 16 October 2006. But the evidential burden is on the party challenging testamentary capacity. Unless delirium is established, the evidential burden has not been discharged. Without abnormal behaviour around the relevant period, a delirium episode at the time of the execution of the Specific Bequest Will cannot be established.

927.  In Professor Jacoby’s experience, disturbance of the sleep/wake cycle was invariably present in person suffering from deilirium. Professor Jones did not appear to dissent from that proposition when he was cross-examined[352]. Though Professor Jones suggested that there was some evidence of such disturbance, when probed further, he agreed with Mr Mill that there was no evidence of wakefulness at night and the daytime sleepiness by itself is not evidence of disturbance of sleep/wake cycle.  

928.  As far as the medical records show, there had not been any diagnosis by any treating doctors that Nina was suffering from delirium during October 2006. Professor Jacoby found no evidence of disorientation or fluctuating attention, the other hallmarks of delirium. That must be considered in the light of the experts’ evidence that delirium is often under-diagnosed. Professor Jones explained to this court the risk of diagnostic overshadowing. Be that as it may, the evidential burden is on the party challenging testamentary capacity.

929.  Another indicia against delirium is the recollection of what occurred during a delirious episode. Professor Jones stated in his Reply Report that a person acted while in delirium might not remember what he had done[353]. Against such background, Professor Jones was asked to comment about the significance of Nina’s response when Ng Shun Mo asked her why she made a partial will about one week after its execution. Professor Jones was of the opinion that because of the shortness of her reply, it did not amount to a sophisticated recall by Nina as to what happened when she made the document. As a general proposition, Professor Jones agreed that if a person made a will under delirium and was subsequently asked about it, he would express surprise and try to find out what sort of will he had made.

930.  Though the response of Nina was short, it has to be considered against the background that the reference to “partial will” was not an expression commonly used. Winfield Wong had given a simple explanation of that expression on 16 October. When Ng Shun Mo used the same expression in asking Nina about the Specific Bequest Will some time later, Nina did not have difficulty in understanding the same. Nina did not express any surprise nor did she ask what document Ng Shun Mo was referring to. If Nina did not recall what happened on 16 October, when she was asked about a will by Ng Shun Mo, bearing in mind that she had asked him to keep the 2002 Will for her, she would have assumed that Ng Shun Mo was referring to the 2002 Will and it would be odd that he referred to that will as a partial will. In view of these, I do not share the view of Professor Jones that the response is not significant. In my judgment, it shows Nina’s recollection of the event on 16 October and as such, it militates against the case of delirium.  

931.  On the preponderance of the evidence, I do not think Nina suffered from delirium at the time when she executed the Specific Bequest Will.

Relief

932.  For all these reasons, I dismiss the Counterclaim of the 1^st Defendant. On the Plaintiff’s claim, I pronounce for the force and validity of the last will of Nina dated 28 July 2002 and pronounce against the force and validity of the alleged last will dated 16 October 2006.

933.  I also order the caveats previously entered be vacated. I wish to hear from the parties as regards the order that this court should make regarding the grant of probate in the light of this judgment. For that purpose, parties are directed to lodge written submissions on that point within 21 days from the handing down of this judgment.

934.  I make a costs order nisi that the 1^st Defendant shall pay the costs of the Plaintiff. Regarding the costs of the 2^nd and 3^rd Defendants, I direct that them, insofar as they wish to seek costs, to take out a summons for the same within 21 days from the handing down of this judgment.

935.  Lastly, I wish to express my gratitude to all counsel involved for their invaluable assistance in this trial.

[1] The relationship between the 1^st Defendant and Nina is one of the main disputes in the present case and I shall deal with it at length below.

[2] The brother and sisters of Nina who are now the majority governing directors of the Plaintiff.

[3] Wang Din Shin (previously the 3^rd Defendant in this action) contends that the Plaintiff is only an executor and trustee under the 2002 Will. There is no such issue between the Plaintiff and the remaining defendants. It is not necessary in the context of the present action to deal with such issue.  While I shall proceed in this judgment on the basis that the Plaintiff is the beneficiary under the 2002 Will, whatever said in this judgment shall not prejudice the future determination of the issue between the Plaintiff and Wang Din Shin, if necessary.

[4] He claimed that the 2002 Will was made by Nina to procure the assistance of the mainland authorities in dealing with her litigation with Wang Din Shin in HCAP 8 of 1999 and the criminal charge against her regarding the will of Teddy propounded by her. Nina lost in first instance and she was arrested by the Commercial Crime Bureau in December 2002. Her appeal was dismissed by a majority in the Court of Appeal on 28 June 2004. She finally succeeded in the Court of Final Appeal on 16 September 2005. This claim of the 1^st Defendant is relevant in the consideration of the authenticity and validity of the 2006 Will as shall be explained below.

[5] See paras.186 to 200 of Plaintiff’s Opening.

[6] HCAP 8 of 1999 and the subsequent appeals to the Court of Appeal and the Court of Final Appeal

[7] The Agricultural Prize was suspended after 2000. There were discussions on restructuring the Prize afterwards.

[8] Nina’s younger sister. The other siblings are Dr Gong and Dr Kung.

[9] Nina’s secretary.

[10] A senior staff who had been with Chinachem for 37 years. He and Winfield Wong were the two attesting witnesses to the execution of a document on 16 October 2006. They were also named as the attesting witnesses in the 2006 Will.

[11] It means the document executed on 16 October 2006 only made a gift of a specific sum of money to a person. As such, it would not have the effect of revoking the 2002 Will. 

[12] Another senior staff in Chinachem. He is also a governor of the Plaintiff and has been so since April 1990.

[13] Day 30 p.22-26; p.29-32

[14] D p.138, para.44

[15] D p.138, para.45

[16] Evidence of Kung Liu Yuan Chun, C(1) p.146 para.73

[17] Day 30 p.26

[18] The expression actually used by Nina was “Mrs Tong and the like” which Dinly Au understood to be referring to her three siblings. This was subsequently confirmed by Nina on 31 March 2007.

[19] 1^st Defendant’s Closing submissions paras.28 and 29

[20] Day 12 p.121-128.

[21] C(4) p.75-51

[22] 1^st Defendant’s Closing submissions, paras.457-468

[23] 1^st Defendant’s Closing submissions, paras.12

[24] D p.79 para.90. See also Day 30 p.78-80

[25] Day 2 p.33-36

[26] Some descriptions used were of a pejorative nature.

[27] According to the 1^st Defendant, Nina called Teddy “hubby”. Hence she decided to call the 1^st Defendant by these names. Thus notwithstanding her secret liaison with the 1^st Defendant, he did not replace Teddy in her heart and mind.

[28] Day 33 p.29

[29] D p.174 para.12; confirmed on Day 33 p.29-30

[30] D p.65 para.51

[31] Day 33 p.30-31

[32] Day 33 p.31-33

[33] Day 33 p.38

[34] Day 33 p.45-46

[35] D p.57-64

[36] Day 29 p.84

[37] Day 29 p.85-87

[38] Day 30 p.1-2

[39] D59-60 para.35

[40] D10 para.31

[41] Day 29 p.89

[42] D p.14 Para.44

[43] D p.13 Para.43 and p.14 para.46.

[44] D p.171-110 paras.22(2) and 23; p.69 para.62

[45] This is how the 1^st Defendant chose to describe the ostensible purpose of the exercises in his own witness statement. Further, on his own case, it was an exercise to apply the theory of Celestial Atlas to see whether luck would be improved. Hence, on his own case, it was meant to be perceived as Fung Shui related. It was therefore rather futile for his counsel to cross-examine Wong Leung Woon at length about the details of the rituals. 

[46] Day 29 p.42

[47] Day 29 p.40-41

[48] Day 17 p.61-64. Thus, up to today, the clinic was still there though it was not used. In this connection, the 1^st Defendant doubted if that was the attitude of Nina as she had not told him about it. However, he admitted that whenever Nina heard possible news about Teddy, she would investigate it. See Day 29 p.37-39. As between the two on their evidence as to Nina’s belief about Teddy, I prefer the evidence of Dr Kung.

[49] Day 29 p.9-14

[50] Day 30 p.55-56

[51] Day 33 p.93. And his evidence also suggested that discussion about Nina in the Chan family gathering would be conducted after the wife had left to sit in the living room whilst they were still at the dinning table.

[52] As I have already found, she had been using his services in respect of the location of Teddy and other general matters throughout the 1990’s.

[53] Day 29 p.45

[54] Day 31 p.28-30

[55] Para.67.2 of the Re-amended Rejoinder

[56] Day 15 p.60

[57] D p.141 para.53.

[58] Day 19 p.4-11

[59] C(4) p.35 para.127

[60] Day 18 p.88

[61] Day 31 p.74

[62] Para.110 of the Finalised Report of Mr Radley 23 March 2009

[63] Para.111 of the Finalised Report of Mr Radley 23 March 2009

[64] Day 5 p.64

[65] A barrister friend of Nina. He also acted as counsel for the Plaintiff until the change of legal representation. At the initial stage, he interviewed and took statements from the attesting witnesses.