WONG KWONG YIU v. MOK HING CHUNG

CACV 166/2014

and CACV 239/2014

[2018] HKCA 713

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 166 OF 2014

(ON APPEAL FROM HCAP 8/2010)

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 239 OF 2014

(ON APPEAL FROM HCAP 10/2012)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  We have before us two summonses to adduce fresh evidence at the hearing of the appeal against the judgment of Recorder Coleman SC dated 3 July 2014 (the “Judgment”) in respect of 2 probate actions concerning the estates of two sisters who passed away in 1996 and 2006 respectively. By the Judgment, the judge found that Wong Kwong Yiu (“Wong”) was the adopted son of Wong Yin Ling (the elder sister) (“WYL”) and as such entitled to a grant of Letters of Administration in respect of the estate of WYL. However, the judge rejected Wong’s case on the estate of Wong Yin Sheung, the younger sister (“WYS”), viz she had held property on trust for WYL. Hence, his dismissed the claims by Wong regarding the estate of WYS. He also dismissed Wong’s claim that the Will of WYS of 6 June 2006 appointing Mok Hing Chung (“Mok”) to be the sole executor and beneficiary of her estate was not valid. He ordered that the Will be admitted to probate.

2.  Solicitors for Wong only lodged the application to fix a date for the hearing of the appeal recently notwithstanding the long lapse of time since the giving of the Judgment.  As explained below, the parties are still engaged in attempts to expand the evidential scope of the litigation.

3.  CACV 166/2014 was brought by Wong to appeal against the judge’s finding on the validity of the Will and his rejection of Wong’s trust claim.  On 13 June 2018, a summons was taken out on behalf of Wong to adduce the expert opinion of Dr Yu Yuk Ling as additional evidence at the hearing of the appeal.  

4.  CACV 239/2014 was brought by Mok to appeal against the judge’s finding on Wong’s status as WYL’s adopted son.  On 3 July 2018, a summons was taken out on behalf of Mok to adduce two documents as additional evidence at the hearing of the appeal.

5.  Pursuant to Practice Direction 4.1, skeleton submissions were filed by the parties on the summonses. Having read the same, we are of the view that the matter is suitable for determination without any oral hearing.  Here are our decisions on the summonses.

Applicable legal principles

6.  It is well-established that generally a party seeking leave to adduce new evidence on appeal must satisfy all of the conditions set out in Ladd v Marshall [1954] 1 WLR 1489, that the evidence:

(1)   could not have been obtained with reasonable diligence for use at the hearing below;

(2)   must be such that, if given, would probably have an important influence on the result of the case, though it need not be decisive; and

(3)   must be such as is presumably to be believed.

7.  New evidence may also be adduced if the application of rules of Ladd v Marshall may give rise to injustice, but this only applies in rare cases involving a party who deliberately misleads the court in a material manner or where a strong prima facie case of wilful deception is disclosed: Sky Joy Investment Ltd v Zheng Dunmu [2018] HKCA 259 at [11].

Discussion on Wong’s application

8.  The application by Wong sought to adduce a new medical expert report by Dr Yu, a neurologist.  It was said that such report was prepared in response to the “surprise” in the supplementary witness statement of Dr Kan (lodged just one day before the trial commenced), an orthopaedic surgeon called by Mok to prove the mental capacity of WYS at the time of execution of the Will.  

9.  The so-called “surprise” was that Dr Kan corrected his earlier statement that he had checked if WYS was mentally fit to execute a will on 6 June 2006.  In the supplemental statement, he said that statement was a slip and he had only examined WYS as to her mental capacity to make a decision for operative treatment.

10.  In his first statement of 27 April 2012, Dr Kan gave the context in which he treated WYS as his patient.  He was an orthopaedic surgeon and WYS was admitted to hospital after an accident on 1 February 2006.  X-ray showed that there was a fracture of her proximal right femur and Dr Kan considered to perform close reduction and intramedullary nail to fix the fracture.  That was declined by WYS.  He examined WYS again on 6 June 2006 when she complained of mild pain.  He issued a certificate certifying that WYS was mentally fit to make decision.

11.  In the supplemental statement, Dr Kan said the decision in question was the decision for her medical treatment and care.  He also explained the basis for coming to that view.

12.  In the pleadings in HCAP 8 of 2010, Wong raised the issue of testamentary capacity of WYS in paragraph 4 of his Defence and Counterclaim of 26 May 2010.  Notwithstanding the reference to examination by Dr Kan at paragraph 6(d) in the Amended Reply of Mok, Wong maintained that challenge, see paragraph 5 of the Rejoinder on behalf of Wong.

13.  On 6 February 2012, the Registrar gave directions for expert evidence, including medical expert on mental capacity of WYS at the time of the execution of the Will.  Notwithstanding those directions, Wong elected not to prepare or call such evidence.    

14.  The solicitors for Wong had actually obtained the medical records of WYS, including the certificate of Dr Kan of 6 June 2006.  In a letter of 14 February 2012, solicitors for Wong had already made the following comments regarding the certificate of Dr Kan:

(a)   Dr Kan only treated WYS in respect of her orthopaedic injuries;

(b)   There was no satisfactory information on WYS’s testamentary capacity;

(c)   The medical certificate could not be regarded as expert evidence on testamentary capacity.

15.  Solicitors for Mok replied on 17 February 2012 disputing (a) and (b).  They also clarified that Dr Kan’s medical certificate was not meant to be treated as expert evidence.

16.  Solicitors for Wong wrote again on 21 February 2012, reciting the circumstances in which WYS came to be treated by Dr Kan.

17.  From these correspondence, it was plain that both sides were aware that Dr Kan was only treating WYS as her orthopaedic surgeon and he did not purport to give expert evidence on testamentary capacity.

18.  We are not satisfied that Wong had been misled in that respect by the first statement of Dr Kan.  There was no reason why Wong could not call his own expert to testify on WYS’s testamentary capacity since his solicitors had obtained the medical records of WYS (as he now belatedly did by instructing Dr Yu).  We do not accept the explanation that Wong had to wait for Mok to lodge his expert evidence first.  There was nothing in the directions of the Registrar to that effect.  Since Wong raised the issue of testamentary capacity, irrespective of the ultimate burden of proof, he should be mindful of bringing his own evidence for the trial in that regard. 

19.  This was a case where both sides made the conscious choice of not calling expert evidence on testamentary capacity at the trial.  Through his counsel, Wong ran his case on testamentary capacity by contending that the evidence was not sufficient to prove WYS’s capacity due to the suspicious circumstances surrounding the execution of the Will.  He failed to persuade the judge in that regard.  He is entitled to appeal against that assessment by the judge.   

20.  He said the judge was wrong in holding as follows at [188] of the judgment,

“I do not think that the assessment of a person's mental capacity to make competent decisions as regards their own medical care and treatment is likely to be fundamentally different from the assessment of that person's mental capacity to make competent decisions as regards their own testamentary wishes.”

21.  At this stage, we would not comment on the merit of the argument of Wong in that regard.  It has to be reserved for the substantive appeal. 

22.  But Wong could not be permitted to retract from his deliberate choice of not marshalling his own expert evidence on testamentary capacity at the trial.  That would amount to a second bite of cherry after the first bite had failed.    

23.  We do not agree that the evidence could not have been obtained with reasonable diligence for the trial below.  The first condition of Ladd v Marshall is not satisfied.  The summons of Wong must be dismissed.

24.  Further, having read the report of Dr Yu, we are also of the view that the second condition is not satisfied.  After studying all the medical records of WYS, Dr Yu did not express any view on her mental capacity at the time of the execution of the Will.  His conclusion was confined to the observation that WYS’s testamentary capacity had not been assessed on 6 June 2006 by reference to some general principles on such assessment which is well-known to the Court.  Dr Kan also accepted he had not assessed WYS’s mental capacity for making a will.  With respect, we do not find the report of Dr Yu to be much assistance. 

25.  For these reasons, the summons of Wong of 13 June 2018 is dismissed.

Discussion on Mok’s application

26.  The application by Mok in CACV 239/2014 sought to adduce two new documents: (1) an obituary of Wong Yuk Ting (the father of WYL and WYS) advertised in a newspaper on a day after 3 July 1965; and (2) a Long Term Ordinary Gravesite Certificate dated 5 July 1965 issued to WYL evidencing the purchase of a grave located at Chai Wan Cape Collinson Chinese Cemetery.  It was said that these were discovered “by mere accident” by Mok in a plastic bag after tidying up WYS’s flat at Pobjoy Court.

27.  Mok relied on the obituary notice to contend that Wong Cheung Wing (“WCW”) was the “real” male successor and challenged the evidence of Wong’s mother that Wong was adopted due to the lack of male successor.  Mok relied on the fact that WCW was named as “young master” and “grandson master” in the obituary notice, while Wong did not even feature in that notice.  The certificate was said to “[corroborate] the obituary”.  

28.  Mr Hung contended that Wong’s mother (“Madam Ng”) had been “deliberately presenting a false case” and submitted that these evidence demonstrate the same.

29.  We are not satisfied that the test of Ladd v Marshall is satisfied in respect of Mok’s application. Nor can we see any special circumstances compelling us to depart from Ladd v Marshall in this appeal.

30.  Firstly, we do not accept that the evidence could not have been obtained with reasonable diligence for the trial below. 

31.  As early as in Madam Ng’s affirmation of 16 April 2007, she already stated at paragraph 5 that the purpose of the adoption of Wong by WYL was to ensure the continuation of the male lineage.  The significance of WCW’s status to counter that allegation could not have been missed by Mok.  WCW was after all his natural brother.  Thus, in his witness statement of 30 April 2012, Mok alluded to WCW being adopted by Wong Yuk Ting to continue with the lineage at paragraph 3. 

32.  The issue of WCW’s status and its implications on the case of Wong was canvassed at the trial at some length.  WCW himself gave evidence at the trial.

33.  Though these documents were aged and might not be readily recoverable from Mok’s own records, we do not accept that he or those assisting him could not have obtained at least a copy of the obituary (which was published in newspaper) if reasonable diligence was exercised.  The burden of meeting the first condition in Ladd v Marshall is not discharged simply by asserting that a piece of evidence was discovered by accident after the trial.  Mok had not provided any information as to any attempts before the trial to find evidence on the role played by WCW at the funeral of Wong Yuk Ting. 

34.  We also do not accept that had reasonable diligence been exercised by Mok, he could not have discovered these documents from the flat of WYS before the trial.  WYS died in 2006, the trial took place in 2014.  There was ample time for Mok to make a diligent search for evidence at the flat if he so wished. 

35.  The second condition in Ladd v Marshall is also not met.  The judge was clearly aware of the status of WCW and duly took it into account in assessing the evidence, including the evidence of Madam Ng, see [13] to [14], [24], [57] to [79], [123] to [130].  The judge actually considered that probably it was WCW who performed the rituals at the funerals of Wong family members, see [130].  He also took account of the misleading nature of the evidence of Wong on the purpose of having him adopted.  Despite that, he came to the conclusion that Wong was validly adopted as an i-tze, see [87] to [123] and [129] to [130]. 

36.  As the judge had already assessed the evidence on the basis that WCW played the role of carrying the banner and buying the water at the funerals, the inclusion of these new documents would not change the analysis by the judge.       

37.  Mok could still argue his grounds of appeal at the substantive appeal, including whether the judge was entitled to accept the evidence of Madam Ng in such circumstances.  However, we do not regard the new documents as having important impact on the outcome.

38.  In light of the judge’s analysis (which duly took account of the misleading aspect of the evidence on Wong’s side as to the purpose of the adoption), we do not agree with Mr Hung that this is a rare occasion warranting departure from Ladd v Marshall.

39.  For these reasons, the summons of Mok of 3 July 2018 is dismissed. 

Disposition

40.  Thus, the summons of Mok dated 3 July 2018 in CACV 239/2014 is dismissed.  Subject to the rider in the next paragraph, we also order Mok to pay Wong the costs of this application.

41.  We would exclude the costs of the preparation of the affirmation of Wong Cherk Shing of 13 July 2018 from the costs payable to Wong in this summons.  The affirmation is defective in several respects,

(a)   The deponent was the solicitor for Wong who clearly has no personal knowledge of many of the facts recited in the affirmation.  He did not state his source of information and belief in the affirmation;

(b)   Affirmation concerning factual matters related to the case should be made by the person with the most direct knowledge of such matters instead of a solicitor or his clerk, see Tiong King Sing v Sam Boon Peng Yee HCA 1517/2011, 21 January 2015; Beijing Tong Gang Da Sheng Trade Co Ltd v Allen & Overy [2014] 2 HKLRD 86;

(c)   Many paragraphs in the affirmation are actually submissions rather than evidence.

42.  The summons of Wong dated 13 June 2018 in CACV 166/2014 is dismissed.  Wong shall pay Mok’s costs of the summons.

43.  In the absence of agreement, these costs are to be taxed if not agreed.

44.  In our view, the appeals have been taken too long to come on for hearing and parties have misguidedly been diverted by these unmeritorious applications for admission of additional evidence.  We shall refer the appeals to the Registrar of Civil Appeals to monitor the diligent progress of these appeals which should be listed for hearing without further delay.