CHOW LILY v. CHOW WAI WAI VIOLET AND ANOTHER

HCAP 22/2019

[2025] HKCFI 4898

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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DECISION

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INTRODUCTION

1.  By a Decision dated 11 July 2025 (“the Decision”)[1], this Court, inter alia, dismissed the plaintiff’s Expert Summon (“the Order”).

2.  By summons filed on 25 July 2025 (“the Leave Summons”), the plaintiff applied for leave to appeal against the Order.

THE APPLICABLE LEGAL PRINCIPLES

3.  The requirement for granting leave to appeal is set out in section 14AA(4) of the High Court Ordinance (Cap 4, Laws of Hong Kong). It is trite that leave to appeal shall not be granted unless the court is satisfied that the intended appeal has a reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard.

4.  It is also well established that a reasonable prospect of success means an appeal with prospects that are more than fanciful without having to be probable (SMSE v KL [2009] 4 HKLRD 125 at [17]).

5.  In the case where the intended appeal is made against a case management decision of the court, what Kwan JA (as she then was) stated in Mimi Kar Kee Wong Hung v Severn Villa Ltd & Others [2012] 1 HKLRD 887 at [31] is instructive:

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

6.  In Li Xiao Yun & Another v China Gas Holdings Limited (CACV 38/2013, unreported, 11 March 2013), Lam JA (as he then was) further explained at [19] that:

“To justify an interference with the Judge’s case management discretion, it is not enough that members of the appellate court may make a different decision had they been the primary judge who exercised the discretion. […]”

7.  Paragraph 38 of Practice Direction 5.2 also provides that:

“The parties should note that case management decisions are matters within the discretion of the master or the judge making that decision and are generally not susceptible to appeals.”

THE GROUNDS OF APPEAL

8.  The plaintiff’s grounds of appeal may be summarised as follows:

(1)  This Court had failed to give proper regard to:

(a)  the important probative value of Dr Ho’s Report, without which the plaintiff would be seriously prejudiced;

(b)  the fact that neither party suggested that the trial could not be effective on the fixed dates;

(c)  the defendants had withdrawn their objection to the admission of Dr Ho’s Report;

(d)  these were not straightforward adversarial but probate proceedings.

(2)  This Court had failed to weigh the probative value of Dr Ho’s Report against the other factors.

(3)  The Court’s proposal that a shortened version of Dr Ho’s Report (without reference to the witness statements) (“the Shortened Version of Dr Ho’s Report”) be admitted is inappropriate.

(4)  There was no basis for the Court to hold that the probative value of the Shortened Version of Dr Ho’s Report is questionable.

(5)  This Court wrongly held that the plaintiff should have made an application for relief from sanctions.

(6)  This Court had placed unjustified reliance on concerns as to whether the trial could be completed in time.

(7)  This Court had placed unjustified and disproportionate weight on the alleged delay on the part of the plaintiff.

DISCUSSION

9.  At the outset, it should be pointed out that this is a case in which the plaintiff is trying to ask the Court of Appeal to interfere with this Court’s exercise of its case management power, which the appellate court would not do unless it can be shown that this Court has, inter alia, gone clearly wrong or erred in principle. However, it can be seen that, generally speaking, the plaintiff’s current complaints are that this Court has not given sufficient weight to certain factors, whilst at the same time given too much weight on other factors. The plaintiff is not contending that this Court has taken irrelevant matters into account, nor that it has not taken relevant matters into account. In these circumstances, the intended appeal clearly does not have any reasonable prospect of success, and therefore leave to appeal should not be granted.

10.  I will further deal with the plaintiff’s individual complaints in turn below.

Probative value of Dr Ho’s Report

11.  The plaintiff has emphasised in her written submissions that this Court has lost sight of the “important probative value” of Dr Ho’s Report, and that the plaintiff would be prejudiced by the Court’s refusal to grant leave to adduce such expert evidence.

12.  It is unclear as to the plaintiff’s basis for alleging that the Court has “lost sight” of the probative value of Dr Ho’s Report. It appears that such a point was made purely because her application for leave to adduce such a report was refused.

13.  In fact, it was because of this Court’s awareness of the probative value of Dr Ho’s Report that it was thought fit to specifically refer to the primary aim in exercising the powers of the Court, namely, to secure the just resolution of disputes in accordance with the substantive rights of the parties (Order 1A rule 2(2) of the Rules of the High Court (Cap.4A, Laws of Hong Kong) (“RHC”)), at [40] of the Decision.

14.  Moreover, it had been expressly mentioned in the Decision that the aforesaid primary aim had to be balanced against the underlying objectives.

15.  Furthermore, it is not enough for the plaintiff to say that she would be prejudiced, which was brought about by her way in conducting the case.

The trial dates

16.  It was submitted on behalf of the plaintiff that:

“Further, the Judge was equally wrong to speculate that there is a great risk of the trial over-running (§39(2) of the Decision) by disregarding P’s confirmation through counsel that the trial would not over-run and would complete within the allotted time. The reason for [P’s confirmation through counsel that the trial would not over-run] was P’s intention to substitute her handwriting expert Ms Ellen Radley with Dr Ho, so as to ensure that the trial would complete within the allotted time. P at all times retains conduct of the trial and is at liberty to call and not call certain witnesses, and the confirmation was given in light of this.”[2]

(emphasis added)

17.  With greatest respect, the allegation that this court had “speculated” that there is a great risk of the trial over-running is clearly without basis. The risk is apparently a very real one as explained in [39(2)] of the Decision. For the sake of completeness, I should also mention that the worry about not being able to complete the trial within the scheduled period if further witness(es) were to be called was already raised at [17] of the Decision on the plaintiff’s Undue Influence Amendment Summons ([2024] HKCFI 3027).

18.  Furthermore, I do not think it can be said that the plaintiff had “confirmed through counsel” that the trial would not over-run. All that the plaintiff’s counsel had said at the hearing was that the plaintiff “remained optimistic” that the evidence could be completed within 25 days.

19.  Even if counsel’s optimism can be described as a “confirmation”, this Court would of course have to assess the weight to be attached to such a “confirmation”, which the Court was not bound to accept. This apparently is something which is within this Court’s discretion to decide.

20.  It should also be noted that it is now said that the so-called “confirmation” was given upon the plaintiff’s alleged intention to substitute her handwriting expert Ms Ellen Radley with Dr Ho. However, with greatest respect, 2 important points must be highlighted here:

(1)  While the plaintiff’s counsel did mention at the hearing about not calling handwriting experts at the trial, that was done so upon his misunderstanding of Mr Yu’s submission. At the hearing, Mr Yu submitted that, in case the trial over-runs, then the handwriting experts might be “shelved” and called to give oral evidence later (in the second truncated part of the trial). Mr Yu had never said that he thought the handwriting experts need not be called[3]. It was upon such misunderstanding on the part of the plaintiff’s counsel that he said this (not calling the handwriting experts) was something which parties could further explore. In other words:

(a)  the “suggestion” of not calling the handwriting experts was actually not made by the plaintiff’s counsel in the first place;

(b)  it is an overstatement to say that the plaintiff had the intention at the time of the hearing not to call her handwriting expert at the trial;

(2)  Further, it was expressly confirmed by the plaintiff’s counsel at the hearing that there was no commitment on the part of the plaintiff not to call her handwriting expert at the trial.

21.  Hence, with greatest respect, it is quite unreasonable for the plaintiff to allege that the Court had “disregarded” the plaintiff’s “confirmation” in such circumstances.

22.  The plaintiff reiterated that she had the right to call or not to call certain witnesses. This is of course true. However, in my view, this Court would have failed in its duty for proactive case management if it had simply left the matter to be handled by the plaintiff’s legal team without proper assurance (which, in the present circumstances, means the express representation as to how the plaintiff would conduct the trial, for example, not to call certain witness(es)).

23.  The plaintiff, in her draft Notice of Appeal, went further and suggested in Ground 5b that:

“[…] In failing to enquire the reason for the confirmation, the Judge failed to have regard to the fact that the Plaintiff retains conduct of the trial and is at liberty to call (and not call) certain witnesses. Had he enquired, the Judge would have appreciated that the Plaintiff intends to substitute her handwriting expert Ms Ellen Radley with Dr Ho, so as to ensure that the trial would not over-run.”

(emphasis is mine)

24.  It is unclear why this Court is said to have a “duty to enquire”. The plaintiff has engaged counsel and it is counsel’s duty to make all the relevant points in support of the plaintiff’s application and to address the Court’s concern.

25.  The plaintiff also submitted that the Court had placed unjustified reliance on concerns as to whether the trial could be completed within time. This Court had already explained why it is important to finish the trial within the scheduled period. Indeed, it is not alleged by the plaintiff that the Court needs not take this matter into consideration. Therefore, this complaint is without merits.

The consensus between the parties

26.  The plaintiff accepted that this Court was not bound by the consensus of the parties regarding expert directions[4].

27.  That being the case, it is not apparent what the plaintiff’s complaint in this regard is about. The Court has duty to manage cases actively (Order 1A rule 4 of the RHC).

The Shortened Version of Dr Ho’s Report

28.  The plaintiff submitted that:

“The judge had originally been minded (§39 of the Decision) to admit [Dr Ho’s Report] without permitting reference to witness evidence. That was, with respect, entirely inappropriate because to the extent that Dr Ho needed to refer to witness evidence in order to form his opinions, it was entirely appropriate for him to do so and it did not involve ‘a second bite of the cherry’.”[5]

29.  It is not understood (and the plaintiff did not explain) why giving her another chance to adduce an expert report and comment on the Deceased’s condition by referring to the witness statements does not amount to “a second bite of the cherry”, given Professor Chiu (the plaintiff’s own expert) has already done so.

30.  It is also difficult to understand why, in principle, it is inappropriate to limit Dr Ho’s evidence to the Shortened Version of Dr Ho’s Report, given Professor Chiu’s limitation was only her lack of expertise in the comparison of MRI images of the Deceased’s brain. It must be borne in mind that it was confirmed by the plaintiff’s counsel at the hearing the only basis upon which another application for expert directions was made was the lack of expertise on the part of Professor Chiu to compare the MRI scan images.

31.  In any event, this discussion is academic, given this Court’s subsequent conclusion that even the Shortened Version of Dr Ho’s Report should not be admitted.

32.  In this regard, it was submitted by the plaintiff that the Court had no basis to conclude that the probative value of such a shorter report is questionable. However, this conclusion was reached upon the frank admission on the part of the plaintiff’s counsel that he could not be sure whether it is feasible for Dr Ho to give his opinion purely on the basis of MRI images without references to the clinical evidence. Insofar as it is alleged that it is unfair for the Court to raise such a question with the plaintiff’s counsel at the hearing, such a submission is rejected. If counsel was of the view that further instruction had to be sought from Dr Ho so as to answer the Court’s query, it was up to him to ask for time at the hearing. However, if he did not do so at the time, it is not open to the plaintiff to make a complaint subsequently.

Relief from Sanctions

33.  The plaintiff submitted that this Court was wrong to conclude that the plaintiff should have applied for relief from sanctions, and that there was no basis for thinking that the application required such relief.

34.  This Court had already explained at [29] of the Decision as to why relief from sanctions was required. In any event, even if the plaintiff is correct in this regard, it cannot salvage her application anyway.

Delay

35.  The plaintiff also stated that the Court had placed unjustified and disproportionate weight on the alleged delay on the part of the plaintiff.

36.  Delay is plainly a matter which this Court was entitled to take into account, especially when the plaintiff had simply failed to give satisfactory reason for such delay.

37.  Further, the plaintiff’s focus on the fact that the application was made 15 months before the trial is beside the point, because this application was said to be made “extremely late” on the bases that the previous expert directions had been given long time ago and that the trial dates had been fixed for a long time.

Nature of probate action

38.  Lastly, the plaintiff relied on the inquisitorial nature of this probate action and submitted that since the Court has a duty to give effect to the testamentary wishes of the Deceased, it ought to allow the admission of Dr Ho’s Report.

39.  As the defendants pointed out, proper case management is still required to be exercised despite the fact that this is a probate case:

(1)  In Chiu Man Fu & Others v Chiu Chung Kwan Ying (HCAP 9/2005, unreported, 31 March 2011) which was a probate action, Poon J (as he then was) held that:

“8. […] In our civil justice system, it is the parties who must carefully and thoroughly prepare their case for trial. If a party has failed to do so, and if after carefully considering all the circumstances, the court thinks that in the overall justice of the case, it should decline to grant him indulgence to make good his slip, he must then bear all the consequences.”

Indeed, with respect, the above comment is entirely apt in the circumstances of the present case.

(2)  In Order 76 rule 1 of the RHC, it is provided that other rules therein (which must include the underlying objectives and the application thereof by the court under Order 1A rules 1 and 2, and the court’s duty to manage cases under Order 1A rule 4) shall be applicable to probate actions. In other words, there is no separate procedural regime which is applicable to probate actions.

DISPOSITION

40.  For reasons of the aforesaid, the Leave Summons is dismissed.

COSTS

41.  I make a costs order nisi that the plaintiff shall bear the defendants’ costs of the Leave Summons. For the avoidance of doubt, I grant certificate for two counsel.

42.  The above order nisi shall become absolute in the absence of application to vary (which, if any, will be disposed of on paper) within 14 days hereof.

43.  The defendants’ costs of the Leave Summons shall be summarily assessed in lieu of taxation.

44.  Unless any application for variation of the aforesaid costs order nisi is made within time, the defendants shall lodge and serve their statement of costs within 7 days after the expiry of the said 14-day period. The plaintiff shall lodge and serve her statement of objection within 7 days thereafter. Summary assessment will be conducted on paper (no matter whether any statement of objection is lodged within time) thereafter. The costs assessed shall be paid by the plaintiff within 14 days after assessment.