CHOW LILY v. CHOW WAI WAI VIOLET AND ANOTHER

HCAP 22/2019

[2023] HKCFI 948

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 22 OF 2019

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D E C I S I O N

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Introduction

1.  Before me this morning is the summons filed by the 1^st and 2^nd defendants on 27 June 2022 for an order that the interrogatories served on them on 13 June 2022 be withdrawn.

2.  In this decision, I shall call the 1^st and 2^nd defendants by their first name, “Violet” and “Vi Vi”, respectively.

3.  For background of this action, I refer to the decision of Deputy High Court Judge Leung at [2020] HKCFI 1792. In particular, see paras 1 to 21. I shall adopt the defined terms “the 2015 Will” and “the 2009 Will” used there. The former refers to the will executed by the late Chow Yei Ching (“the deceased”) on 29 October 2015. The latter refers to the will which is said to have been executed by the deceased and dated 27 April 2009. An unsigned copy of that will was produced by Messrs Ng & Fang to the defendants’ solicitors in May 2019.

4.  The interrogatories comprise two parts. The first part concerns both Violet and Vi Vi. It contains 11 questions in relation to para 12 of Vi Vi’s 1^st affirmation dated 6 June 2019. The questions concern the 2009 Will. The second part of the interrogatories contains seven questions in relation to para 44 of Violet’s affirmation filed in CAMP 202/2021. The questions concern the safe kept by the deceased in his office. The questions are directed at Violet only.

5.  I note at the outset that the interrogatories were served by the plaintiff just shortly before the parties were due to exchange their witness statements.

6.  The legal principles governing the serving of interrogatories are not in dispute.

The first part of the interrogatories

7.  I am satisfied that the 11 questions raised in the first part of the interrogatories all relate to a matter in question in this action.

8.  Ms Teresa Wu, appearing with Ms Jacqueline Law for the defendants, confirm that the defendants do not take issue with the relevance of the questions. More specifically, the matter in question here is whether the 2009 Will should be admitted to probate. The plaintiff says it should. The defendants’ case, as disclosed in their pleading, is that (1) as of now it is unknown whether the original of that will in fact exists, (2) no signature of the deceased was found on the unsigned copy of the will produced by Messrs Ng & Fang, (3) the will is presumed to have been destroyed by the deceased and there is no evidence to the contrary. The defendants plead that the 2009 Will should not be admitted to probate.

9.  Para 12 of Vi Vi’s 1^st affirmation reads:

“Before instructing CCW through me to prepare the [2015] Will, the Deceased had shown Violet and me a copy of his previous will. I cannot recall when he did that but I recall the said will was prepared by the firm of solicitors Ng & Fang (“N&F”). The Deceased used to retain Mr. Ng Hon Ying (“Peter Ng”) of N&F to handle some of his legal matters.” (underline added)

10.  The 11 questions all pertain to the “copy” of the previous will shown to Violet and Vi Vi by the deceased.

11.  At today’s hearing, Mr Horace Wong, SC, appearing with Mr Abel Lam for the plaintiff, suggests that the word “copy” used in the interrogatories may refer to an original copy and/or a copy copy. Having said that, Mr Wong accepts that the wording of the interrogatories could have been better drafted.

12.  In this application, I must deal with the interrogatories as they are drafted and served.

13.  I shall interpret the word “copy” as used in the interrogatories as a duplicate copy only.

14.  It would appear from the affirmation evidence and witness statements so far filed by the defendants that the previous will shown to Violet and Vi Vi was indeed the 2009 Will.

15.  The evidence is contained in, first, Vi Vi’s 1^st affirmation. In addition to para 12 quoted above, para 13 is relevant:

“I instructed Messrs. P.C. Woo & Co. (“PCW”) to write to N&F on or about 15 April 2019 to obtain a copy of the previous will and any testamentary paper of the Deceased that N&F might have. On 2 May 2019 N&F sent to PCW a copy of a purported Will of the Deceased dated 27 April 2009 (“the 2009 Purported Will”). …The copy of the 2009 Purported Will is not signed by the Deceased. Violet and I have doubts as to whether it is in fact the previous will the Deceased showed us before because the format appears to be different. PCW subsequently called up Peter Ng who confirmed the 2009 Purported Will was the only one he had prepared for the Deceased. Peter Ng further said that after signing it, the Deceased took the original will with him and the copy kept by Peter Ng was not signed. Peter Ng said he added the marks “(s.d.)” on the copy he kept to record the Deceased had in fact signed on the original.” (underline added)

16.  Second, para 38 of Vi Vi’s witness statement dated 30 June 2022. It reads:

“In or about April 2015, when I was still with my last employer, Father, who was then 79 years old, told me that he would like to make a new Will. Father asked me to find a solicitor for him. Father had previously shown me and Violet a Will prepared by his friend, Mr. Ng Hon Ying of Messrs. Ng & Fang. According to Father, that will was by then outdated and he would like to make a new one. I told him to rip up the old one when he made a new will. In this connection, I crave leave to refer to my Affirmation filed on 6 June 2019, and in particular to paragraphs 12 to 13 and 15 thereof, which set out in full my entire knowledge of a purported will of Father dated 27 April 2009 and the relevant circumstances.” (underline added)

17.  Third, paras 75, 76 and 80 of Violet’s witness statement also dated 30 June 2022. Para 75 reads:

“First of all, Father had once shown Vi Vi and me – quite some time ago but the precise year or the details I could not recall – a copy of his will prepared by Messrs. Ng & Fang (“Ng & Fang”), a solicitors’ firm he retained to handle some of his legal matters.” (underline added)

18.  Fourth, paras 8 and 9 of Vi Vi’s 7^th affirmation, which was dated 24 June 2022 and filed in support of the summons. They read:

“The Plaintiff has not identified and hence it is not clear to me what “copy previous will of the Deceased” is being referred to in P’s Letter. If and to the extent that the Plaintiff is referring to a purported Will of the Deceased dated 27 April 2009 (“the 2009 Purported Will”) as the Interrogatories refer to that, I crave leave to refer to my Affirmation filed on 6 June 2019, and in particular to §§12 to 13 and §15 thereof, which set out in full my entire knowledge of the 2009 Purported Will and the relevant circumstances and exhibited a copy of an unsigned version of the 2009 Purported Will at Exhibit CVV-2.”

“Other than the unsigned version of the 2009 Purported Will which has been exhibited, I was and am not in possession of any other “copy” of the 2009 Purported Will. I therefore completely fail to follow “the main reason” of the Plaintiff in requesting the Interrogatories as set out in P’s Letter.” (underline added)

19.  Fifth, and last, paras 9(1) to (5), 10 and 11 of Vi Vi’s 8^th affirmation, which was dated 9 September 2022 and filed in reply to the plaintiff’s opposing affirmation. They read:

“9. …

(1) It was and is the recollection of the 1^st Defendant and mine that the Deceased had shown us a copy of his previous will and that it was prepared by N&F, which the Deceased retained for some legal matters.

(2) The 1^st Defendant and I knew or recalled no more than those matters and therefore instructed PCW to write to N&F to obtain a copy of the previous will and any testamentary paper of the Deceased that N&F might have.

(3) N&F replied and provided us with a copy of the 2009 Purported Will.

(4) PCW called N&F because the copy of the 2009 Purported Will was not signed by the Deceased and its format also appeared to be different from our recollection.

(5) In response to PCW’s enquiry, Peter Ng referred to the marks “(s.d.)” added on the copy of the 2009 Purported Will and explained to PCW that the Deceased had signed on the original and taken it with him. Peter Ng had also clearly confirmed that the 2009 Purported Will was the only one will that N&F had been instructed by the Deceased to prepare and there was no other will.

10. There was and still is no way that either the 1^st Defendant or I could have disclosed and lodged with the Probate Registry of the High Court “the copy of the previous Will shown…by Father with its format allegedly different from the office copy 2009 Will produced by N&F” as alleged by the Plaintiff under paragraph 23 of P’s 8^th Affirmation, as the same was and is never in our possession, custody or control.

11. As made clear by me under paragraph 13 of my first Affirmation, the doubt that the 1^st Defendant and I had about the format of the 2009 Purported Will when we received it from N&F was based on our recollection only and such doubt was removed when Peter Ng confirmed that the 2009 Purported Will was the only will that the Deceased had retained N&F to prepare for him and there was no other. Thus what the Plaintiff allegedly to be her “belief” under paragraph 24 of P’s 8^th Affirmation, namely that “in the premises, I verily believe that Violet and Vi Vi are still in the possession, custody and control of a copy of the previous Will shown to them by Father, otherwise they would not be in the position to compare and contrast the same with the office copy of the 2009 Will provided by N&F and alleged that the 2 versions are different”, is not valid or substantiated, but is based on her own reading and interpretation of the said paragraphs 12 and 13 of my first Affirmation.” (underline added)

20.  In my view, it is not entirely clear from Vi Vi’s 1^st and 7^th affirmations and her witness statement whether the copy of the previous will shown to her and Violet was a copy of the 2009 Will. Vi Vi said that she and Violet “have doubts” on this because the format of the two documents “appear to be different”.

21.  However, after Vi Vi’s 8^th affirmation was filed, the defendants’ position became much clearer. In para 11, Vi Vi confirmed that “such doubt was removed” when the solicitor at Messrs Ng & Fang confirmed that the 2009 Will was the only will that the deceased had asked the firm to prepare. In other words, according to the defendants’ own evidence, based on the revelation made by the solicitor, their position is that the copy of the previous will shown to them was in fact the 2009 Will subsequently disclosed by Messrs Ng & Fang.

22.  In her submissions, Ms Wu expressly confirms that that is the position of the defendants in this action.

23.  In other words, the 11 questions all pertain to the 2009 Will which the plaintiff seeks to admit to probate in this action. They are relevant to the issue whether the original of the 2009 Will exists at all.

24.  Having established relevance, I now turn to the issue whether the interrogatories are necessary for disposing fairly of the action or for saving costs.

25.  The 11 questions can be grouped as follows:

(1)  Paras (a) and (c) – whether the deceased had shown the defendants a copy of the 2009 Will, an unsigned copy of which was subsequently disclosed by Messrs Ng & Fang.

(2)  Paras (e) and (f) – whether the previous will was shown to Violet and Vi Vi at the same time and in the same place and whether the copies shown were identical.

(3)  Paras (i) and (k) – whether the defendants are in possession of the copy of the will shown to them by the deceased and if not, its present whereabouts.

(4)  Para (j) – when and where and in the presence of whom was the copy shown to the defendants.

(5)  Paras (b), (d), (g) and (h) – whether the copy shown bore the signatures of the deceased and the two witnesses as indicated in the unsigned copy of the 2009 Will produced by Messrs Ng & Fang.

26.  Mr Wong, SC submits that the above questions relate to important matters highly relevant to one of the key issues in this action. Furthermore, the defendants are the only persons to whom the deceased had shown his previous will. The plaintiff has no information of what was contained in the document shown. Hence the interrogatories concern matters which are within the knowledge of the defendants and not within the knowledge of the plaintiff. In the circumstances, it is only fair that the defendants should answer the interrogatories before trial relating to what was being shown to them as the previous will of the deceased. This is, Mr Wong submits, essential to the plaintiff’s preparation of the trial. She should be entitled to get the information or admission from the defendants now such that she will not have to incur unnecessary costs on speculating what answers on such important matters would be if they can only be ascertained in cross-examination.

27.  I generally agree with the above submissions. The answers to the interrogatories (with some exceptions as stated below) would help narrow down the issues surrounding the copy of the will shown to the defendants. Prima facie, subject to the exceptions discussed below, I am of the view that the interrogatories are generally necessary for fairly disposing of the action or for saving costs.

28.  Having said that, however, some of the interrogatories have indeed been answered in the defendants’ affirmation evidence and witness statements and hence they should be withdrawn.

29.  Paras (a) and (c) should be withdrawn. The questions have already been answered in Vi Vi’s 1^st, 7^th and 8^th affirmations and her witness statement. See the discussion in paras 20 and 21 above.

30.  Mr Wong takes issue with this. He submits that there is ambiguity in the affirmation evidence. He pinpoints para 8(6) of Vi Vi’s 8^th affirmation. It reads:

“The copy of the 2009 Purported Will as provided by N&F was not signed by the Deceased. The 1^st Defendant and I did have doubt as to whether it was in fact the previous will that the Deceased showed us before as its format appeared to us to be different.”

31.  Later on in the same affirmation, that doubt was said to have been removed. See the extract in para 19 above.

32.  Mr Wong’s point is this. The defendants seem to suggest in para 8(6) that the doubt which they had was whether the copy shown to them was in fact the unsigned copy of the 2009 Will. If that is the case, paras (a) and (c), Mr Wong submits, have not been answered.

33.  Mr Wong may have merit in his analysis of para 8(6) of Vi Vi’s 8^th affirmation. However, when the affirmation evidence of the defendants is read as a whole, it is plain they have already confirmed that the copy shown to them by the deceased was in fact the copy of the 2009 Will. This is an important piece of information which the plaintiff now has. As to the alleged ambiguity arising in para 8(6), I consider that it is a matter for cross-examination. There is no need for the defendants to address this specific point now for the fair disposal of the action.

34.  Paras (e) and (f) should be withdrawn. It is true that neither Violet nor Vi Vi states in their affirmations or their witness statements whether they were shown the copy of the previous will at the same time and in the same place. But it is plain from the extracts above that they were shown “a copy” of the previous will. A plain reading of the evidence is that the copy shown to them was the same.

35.  The questions serve no useful purpose for resolving the issue in dispute. To allow them now would only escalate costs for no benefit. They should not be allowed. The plaintiff may of course consider cross- examining the witnesses on this point at the trial. But there is no unfairness in disallowing the questions at this stage.

36.  Paras (i) and (k) should be withdrawn. They have already been addressed in para 9 of Vi Vi’s 7^th affirmation and para 10 of her 8^th affirmation. See the underlined extracts in paras 18 and 19 above.

37.  Para (j) should be withdrawn.

38.  The “when” question has been addressed in para 12 of Vi Vi’s 1^st affirmation, para 9(2) of her 8^th affirmation and para 75 of Violet’s witness statement. See the underlined extracts in paras 9, 17 and 19 above.

39.  The “where” question serves no useful purpose.

40.  The same applies to the “in whose presence” question. There is nothing in the materials before me that would suggest that the copy of the previous will was shown to someone else other than Violet and Vi Vi. They are fishing interrogatories which should not be allowed.

41.  Paras (b), (d), (g) and (h) should be allowed.

42.  On the defendants’ own evidence, they recollected that the format of the will shown to them and the 2009 Will disclosed by Messrs Ng & Fang are different. Implicitly, it must mean that they had taken a look at the document shown to them by the deceased. The defendants also could recall that it was Messrs Ng & Fang who prepared the will. Implicitly, it suggests that they had looked at page 7 and/or page 8 of the 2009 Will because those are the only two pages of the document which made references to the name of the solicitors.

43.  Nevertheless, the defendants have not mentioned in their evidence so far filed anything about signatures on the copy shown to them. They have also stated that they have already set out in full their entire knowledge of the 2009 Will and the relevant circumstances. Does it mean that they did not see any signatures on the copy shown to them?

44.  I have to say that it is not entirely clear to me. How they have organised the structure of their affirmation evidence and presented the evidence seems to suggest that they did not see any signature as otherwise they would have disclosed this feature.

45.  However, I cannot say with confidence that is necessarily the case.

46.  Whether the copy bore any signature on its face would be a material fact going to the issue of whether in fact the original of the 2009 Will does exist or not and whether the will had been destroyed. Ms Wu states in her oral submissions that the defendants do not dispute in this action that the decreased had signed on the 2009 Will. Hence she argues that the interrogatories are unnecessary.

47.  On this, I have to say that this position of the defendants is not made clear in their pleadings or their evidence so far filed.

48.  These interrogatories should therefore be answered. They should not be left to cross-examination. This is something within the defendants’ knowledge or it is at least something which the defendants are in a better position than the plaintiff to comment on. For the action to be disposed of fairly, the interrogatories should be answered now.

The second part of the interrogatories

49.  The interrogatories relating to the safe are no longer pursued by the plaintiff as they have been addressed in the evidence filed since the service of the interrogatories.

50.  Mr Wong accepts that these interrogatories should be withdrawn.

51.  I accept Ms Wu’s submission that these interrogatories were served prematurely and costs had been wasted on dealing with them. These costs would have been saved had the plaintiff waited to see the witness statements which were due to be exchanged before taking any action.

Order

52.  For the above reasons, I order that the interrogatories served on Violet and Vi Vi without order be withdrawn save for paras 1(b), (d), (g) and (h). The defendants do within 28 days from today answer those interrogatories by affidavit.

[Submissions on costs]

53.  I order that the defendants do have 80% of the costs of the summons. The defendants’ 80% costs be summarily assessed at $290,000, to be paid by the plaintiff within 14 days from today.

54.  It is notable that a majority of the interrogatories relating to the 2009 Will and all the interrogatories relating to the safe were administrated prematurely. The plaintiff has however succeeded on those interrogatories relating to the signatures on the 2009 Will. Applying a broad brush approach, I apportion the costs at 80% which reflects the defendants’ degree of success.