CHINACHEM CHARITABLE FOUNDATION LTD v. CHAN CHUN CHUEN AND ANOTHER

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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REASONS  FOR  DECISION

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1.  This is yet another application by the Plaintiff for leave to adduce additional evidence. The application was made after the Plaintiff had closed their case subject to a few matters which are irrelevant for the purpose of this application. By the time of the application, the major witnesses of the defence, including the 1^st Defendant himself, had completed the process of giving evidence in the witness box. Prior to the commencement of the defence case, the Plaintiff had assured this court and the defence that subject to the few matters mentioned, the Plaintiff would not lead further evidence.

2.  The evidence sought to be adduced is not contained in any witness statement. More accurately, the Plaintiff sought leave to issue a subpoena ad testificandum compelling a Mr Leung Kim Ho [“Mr Leung”] to give evidence in respect of some documents which I shall call the Fung Shui notes in this judgment.

3.  Mr Leung had previously been called by the Plaintiff in answer to a subpoena duces tecum in respect of the Fung Shui notes. In view of the fact that it was only for production of the documents, the defence agreed to commence the defence evidence (with the 1^st Defendant going into the witness box) before the return of the subpoena. The return of that subpoena was interposed in the course of the 1^st Defendant’s evidence. On 25 June 2009, in answer to that subpoena Mr Leung told this court that he no longer had the original of the Fung Shui notes though he had once had the same. Thus, he could not produce the documents.

4.  The Plaintiff now sought to have further evidence from Mr Leung regarding the preparation of the Fung Shui notes and it is said the contents of his evidence would be those set out in a newspaper report produced as exhibit P-25. That had been put to the 1^st Defendant in cross-examination and he had disputed what was reported to be said by Mr Leung in P-25.

5.  Inherent in the Plaintiff’s application is an application to re-open the Plaintiff’s case. The Plaintiff said it was an application for leave to call rebuttal evidence to deal with some unexpected evidence given by the 1^st Defendant. I shall examine later whether this submission was correct.

6.  On 8 July, I refused leave and dismissed the Plaintiff’s application. These are the reasons for my decision.

7.  There is no doubt that the court has jurisdiction to allow a party to re-open his case to call further evidence. It is a matter of discretion and there must be good reason in the circumstances of the case to justify such an exceptional course to be taken. Rebuttal evidence to deal with matters that a plaintiff is taken by surprise on relevant issue can be regarded as one of such instances. But there could be others.

8.  In Urban Transport Authority v Nweiser (1992) 28 NSWLR 471, Clarke JA gave the following guidance in the New South Wales Court of Appeal at 478,

“The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not call the witness in the party’s case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstances there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel’s deliberate decision.” 

9.  In L v L HCMC 1 of 2003, 20 April 2005, in an application to re-open the case after evidence had been closed, I applied the approach of Neuberger J (as he then was) in Charlesworth v Relay Roads Ltd  [2000] 1 WLR 230 at p.238 with a caveat that some considerations identified by His Lordship did not apply in the context of an application made before the handing down of a judgment. At para.16, I pinpointed that the discretion must be exercised in a way best designed to achieve justice.

10.  I was referred to older authorities as well as the commentary in Hong Kong Civil Procedure 2009 and Halsbury’s Laws of Hong Kong Vol. 12 (1) (2006 reissue) on rebuttal evidence. I do not find it necessary to consider them at length in this judgment. It suffices to say that I do not think they add anything to what I have already said.

11.  Since the introduction of the Civil Justice Reform in Hong Kong, the court must have regard to the underlying objectives of the rules and the provisions of Order 1A in the exercise of its case management power. I do not think there is any inconsistency between the approach set out in the above-mentioned authorities and the new Order 1A provided it is borne in mind that “justice requires not only that the right answer be given but also that it be achieved by a trial process which is fair to all parties” (per Lord Bingham in O’Brien v Chief Constable of South Wales Police [2005] 2 WLR 1038 at p.1042). I have discussed how the court’s case management discretion regarding leave application for admission of additional evidence should be exercised in the judgment handed down in this action on 11 June 2009 and there is no need for me to reiterate the same.

12.  In the present context, an important consideration is the probative value of the proposed evidence of Mr Leung. It must be noted that the Plaintiff is not seeking leave to call evidence from Mr Leung to establish the authenticity of the copy Fung Shui notes. Mr Yu SC submitted that the Plaintiff had already discharged that burden. The Plaintiff submitted that leave should be granted on the basis that the evidence of Mr Leung would rebut what the 1^st Defendant testified as regards the extent to which the Fung Shui notes reflected what were taught by him during the Fung Shui classes. Mr Yu said that aspect of the 1^st Defendant’s evidence could not have been reasonably contemplated by the Plaintiff and the Plaintiff was taken by surprise.

13.  The Plaintiff said the Fung Shui notes were notes of the lectures given by the 1^st Defendant in 1991. It is not suggested that Nina Wang had attended those lectures and there is no direct connection between those lectures and the material events leading to the 2006 Will. However, Mr Yu submitted what was taught by the 1^st Defendant during the Fung Shui classes in 1991 was relevant to the following issues,

(a)     The 1^st Defendant’s knowledge in respect of Fung Shui will;

(b)    Whether the 1^st Defendant acted as the Fung Shui master of Nina.

These would in turn be relevant to the issue of testamentary intent, viz. whether the 2006 Will (if executed by Nina) was executed merely as a Fung Shui device or as a genuine testamentary instrument.

14.  As regards (a), I am afraid I do not think one can derive much assistance from the Fung Shui notes on whether the 1^st Defendant had knowledge on Fung Shui will. The page in the notes cited by Mr Yu did not seem to me to be of much relevance. More importantly, for the purpose of this trial, I do not consider it matters very much whether the contents of the notes came from the teachings of the 1^st Defendant or from discussions during classes with contributions from students. As long as the 1^st Defendant was present in those classes, it could be said that he had acquired knowledge on matters set out in the notes way back in 1991. Whether and to what extent that knowledge was deployed in 2006 by the 1^st Defendant is of course a quite separate question, on which the Fung Shui notes and what happened during the lectures in 1991 cannot shed any light.

15.  I do not see any sound basis to suggest that the 1^st Defendant had to have the knowledge of the matters set out in the Fung Shui notes before he could have come up with the idea of Fung Shui will. And I do not see any sound reason to suggest that the 1^st Defendant was more likely to come up with an idea of Fung Shui will in 2006 if he had such knowledge in 1991.

16.  Thus, as far as (a) is concerned, the proposed evidence of Mr Leung would not further the Plaintiff’s case over and above the evidence already adduced.

17.  As regards (b), my above observation as to the lack of significance in terms of the 1^st Defendant’s role in the contribution to the contents of the Fung Shui notes (given that he was present in the classes) applies equally. In the cross-examination of the 1^st Defendant, Mr Lok SC on behalf of the Plaintiff tried to associate certain articles retrieved from the excavation at various Chinachem sites with Fung Shui rituals mentioned in the Fung Shui notes. The purpose was to demonstrate that the 1^st Defendant performed Fung Shui rituals for Nina Wang, hence acted as her Fung Shui master.

18.  Whether that line of cross-examination and the evidence so elicited, considered in the light of the other evidence before the court, establish on balance of probabilities that the 1^st Defendant acted as a Fung Shui master to Nina Wang will no doubt be a matter for closing submissions. At this stage, I should not pre-empt what would be said by counsel. But I can say that even bearing in mind these potential argument, I do not regard the evidence of Mr Leung to be of a high degree of materiality to the issues that I ultimately have to decide. At the highest, the evidence would only be of peripheral probative value.

19.  Another important consideration is the fair conduct of the trial. One of the underlying objectives under Order 1A Rule 1 is to ensure fairness between the parties. Mr Yu submitted that the Plaintiff was taken by surprise. In my judgment, a plaintiff cannot rely on a self-induced “surprise” to justify a further chance to adduce evidence.

20.  The Plaintiff was aware of the existence of the Fung Shui notes and Mr Leung’s involvement in their compilation at the latest by December 2008 when two of the relevant magazine articles were included in their list of documents. The Plaintiff did not adequately explain why no attempt was made to contact Mr Leung before the trial commenced. Mr Yu told this court the notes were obtained from a reporter after he posted a message on the blog on 13 May 2009 as to their availability and such a message was seen by the solicitor for the Plaintiff on 24 May 2009. A copy of the notes was obtained by the Plaintiff on 25 May 2009. But there was no explanation as regards why the Plaintiff did not try to locate Mr Leung before a copy of the notes were actually obtained. Mr Yu did not inform this court when and how the Plaintiff was able to locate Mr Leung to facilitate the first subpoena to be issued. The article at Bundle J18 p.144 (included in the December 2008 List of Documents) gave clear information as regards the occupation of Mr Leung. There should not be any difficulty in locating him at where he worked (as demonstrated by the successful service of the first subpoena at his place of work).

21.  Having obtained the copy Fung Shui notes on 25 May 2009, the Plaintiff did not disclose the same until 16 June 2009. Mr Yu attempted to justify the delay in disclosure by saying that initially those advising the Plaintiff considered that the Fung Shui notes were only relevant to credit and the Plaintiff only intended to put them to the 1^st Defendant in cross-examination. Later on, a different view was taken and a supplemental list of documents was filed accordingly.

22.  In terms of the progress of the trial, the delay in disclosure has some significance. The trial was still at an early stage on 25 May 2009. It was during the break between 23 and 29 May. The court resumed with the hearing of the evidence from the Plaintiff’s witnesses on 1 June. The defence only started to call his evidence on 24 June. A disclosure made on 16 June gave the 1^st Defendant much less time to prepare his response to these documents.

23.  There was another application for leave to adduce further evidence which was rejected by this court on 11 June. In the judgment handed down on 11 June, this court examined the approach in a late application for leave to call further evidence. I do not know whether the judgment of 11 June has any bearing on the Plaintiff’s decision to give disclosure of the copy Fung Shui notes on 16 June and not to adduce evidence from Mr Leung as regards the circumstances pertaining to the compilation of the notes as part of the Plaintiff’s case.

24.  Given the apparent low probative value of the evidence of Mr Leung and the lack of satisfactory account of due diligence in procuring such evidence before the trial commenced, it is most likely that an application to call evidence from Mr Leung (even if were made before the close of the Plaintiff’s case) would be strenuously opposed.

25.  If such an application were made before the close of the Plaintiff’s case, the Plaintiff would be required to refer to the relevance of the Fung Shui notes and thereby incidentally disclose the potential line of cross-examination to the 1^st Defendant in advance. That is a price which the Plaintiff does not have to pay by the present application.

26.  The 1^st Defendant inspected the copy notes and served a notice disputing the authenticity on 19 June. Mr Yu submitted it was reasonable on the part of the Plaintiff to assume the 1^st Defendant had no other disputes regarding emanation of the contents of the Fung Shui from his teachings. Is that correct?

27.  Putting aside the question of authenticity, the admission of the Fung Shui notes as documentary evidence without any witness being called pertaining to the circumstances under which such notes came into existence can be prima facie proof that the contents of the notes were materials on “The Celestial Atlas” by Chun Yip Hing Lung Tong. But the admission of the notes as evidence per se does not prove that the 1^st Defendant gave lectures of all the matters set out in the notes. On the face of the notes, there was no information as regards who provided the materials for the compilation of the notes. Mr Leung and another person (not the 1^st Defendant) were identified as the joint editors. There was no reference to the Fung Shui notes in the evidence of the Plaintiff’s witnesses. Nor was there any evidence from the Plaintiff in respect of how Fung Shui classes of Chun Yip Hing Lung Tong was conducted.

28.  Of course, the Plaintiff could elicit information about the Fung Shui classes by cross-examination of the 1^st Defendant without adducing any positive evidence of their own. In so doing, the Plaintiff took the following risk,

(a)     In the absence of any positive evidence from any Plaintiff’s witnesses as regarded the circumstances under which the Fung Shui notes were compiled, the 1^st Defendant was not obliged to address this issue in his witness statements given the peripheral nature of this piece of evidence;

(b)    The answers from the 1^st Defendant may give rise to suggestions that there were other people contributing to the contents of the notes.

29.  If such risk materializes, it is a risk inherent in the decision of the Plaintiff not to call any positive evidence on how the notes came to be prepared as part of their case. The Plaintiff did not have any reason to assume that such risk would not materialize. It is not the kind of surprise that would give rise to any justification to call rebuttal evidence.

30.  In this connection, I reject Mr Yu’s submissions that the circumstances under which the Fung Shui notes were compiled were something within the peculiar knowledge of the 1^st Defendant. As explained above, on the evidence before me, had the Plaintiff exercised due diligence, they could have learnt from Mr Leung how the notes were compiled well before the trial commenced. The present state of affairs is the result of how the Plaintiff chose to prepare their case and present their evidence.

31.  Mr Yu referred to the evidence of the 1^st Defendant given on Day 27 as compared with his later evidence on the contents of notes as being derived from his teachings. Counsel submitted that there had been a change of position on the part of the 1^st Defendant. This is disputed by Mr Chan SC. I do not think it is necessary to resolve this dispute at this stage. Indeed, I believe the effect of the evidence on Day 27 should be a matter for closing submissions.

32.  Even if there were a change of evidence on the part of the 1^st Defendant, it does not assist the Plaintiff in this application for the simple reason that the 1^st Defendant only started to give evidence after the close of the Plaintiff’s case. I agree with Mr Chan that on Day 24, before the 1^st Defendant went into the witness box, it had been categorically confirmed on behalf of the Plaintiff that subject to the exceptions immaterial for present purposes, the Plaintiff would have no further evidence. Hence, it is not a case where the Plaintiff knew or had reasonable ground to believe that the 1^st Defendant would give evidence as he did on Day 27 before the decision of not calling evidence from Mr Leung as to how the Fung Shui notes came to be compiled was made.

33.  Mr Yu placed reliance on the fact that Mr Leung answered the first subpoena on Day 28 and there was no cross-examination of him on behalf of the 1^st Defendant. But it must be borne in mind that the first subpoena was a subpoena duces tecum and this court did not grant leave for the issue of a subpoena ad testificandum. It is not a matter of technicality because as discussed earlier, the Plaintiff would almost certainly face with strenuous opposition and the need to give advanced indication of the line of cross-examination in the application for leave to issue a subpoena ad testificandum. It must not be assumed that the Plaintiff would be successful in getting leave if the application was for a subpoena ad testificandum. Nor can it be assumed that the 1^st Defendant would agree to commence his evidence before the answer of such a subpoena. In fact, it would most likely be otherwise. Hence, it is quite clear that the trial would take a different course if the Plaintiff had applied for a subpoena ad testificandum in the first place. Since Mr Leung was only in the witness box in answer to a subpoena duces tecum and gave no evidence pertaining to the compilation of the Fung Shui notes on Day 28, counsel for the 1^st Defendant was not obliged (and indeed had no right) to cross-examine him on such matters. There is nothing in this part of the argument of Mr Yu.

34.  Counsel also submitted that the 1^st Defendant was under a duty to disclose the notes he made for the purpose of his lectures in those Fung Shui classes. The production of the Fung Shui notes by the Plaintiff, counsel said, was only necessitated by the default of the 1^st Defendant in his own duty to give discovery. First, as pointed out by Mr Chan, the notes referred by the 1^st Defendant in his evidence were not the Fung Shui notes compiled by Mr Leung. They were some summaries the 1^st Defendant made from “The Celestial Atlas” and he no longer had such notes. Given these were notes in respect of Fung Shui classes given in 1991 which have no connection with the events relevant to this case, and given that the 1^st Defendant had admitted he had given Fung Shui classes in his witness statement, I do not think much mileage can be gained by the Plaintiff on this criticism against the 1^st Defendant. Insofar as the Plaintiff considered that the contents of the lectures had any significance in this trial, I do not understand why there was no application for specific discovery or administration of interrogatories by the Plaintiff regarding such matters.

35.  Having regard to the procedural history relevant to the evidence on the Fung Shui notes, this is a clear instance where the 1^st Defendant had agreed to testify on the basis that the Plaintiff would not call any further evidence on the topic. Since I have rejected the submission of Mr Yu based on surprise and in view of the low probative value of the proposed evidence, there is no good reason for allowing the Plaintiff a second bite of the cherry. Indeed, having regard to overall conduct of the case, I am of the view that it would be unfair to allow the Plaintiff to call further evidence on the topic.

36.  The evidence of the trial is coming to an end and if leave is granted for Mr Leung to be called to give evidence that should be presented as part of the Plaintiff’s case (as opposed to being rebuttal evidence), in fairness to the 1^st Defendant the court must consider giving him an opportunity to call further evidence to challenge the evidence of Mr Leung. That could cause serious disruption to the trial schedule bearing in mind that counsel involved have other plans and engagements.

37.  For these reasons, I conclude that the interest of justice is better served by refusing the application.