FOO SUI CHUNG, the executor of the estate of WONG KAI WAH, Deceased v. WONG TAT SHAN, the administratrix of the estate of WONG KAI SO, Deceased

HCA 419/2020

[2026] HKCFI 5555

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 419 OF 2020

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BETWEEN

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REASONS FOR DECISION
AND RULING ON COSTS

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INTRODUCTION

1.  This was the pre-trial review hearing and the hearing of the summons taken out by the Plaintiff on 25 June 2026 (“the SWS Summons”), for leave to adduce his 3^rd supplemental witness statement (“PSWS-3^rd”). PSWS-3^rd was to solely deal with facts pertaining to the making and authenticity of the witness statement of Wong Kai Wah, Deceased, dated 15 July 2021 (“Kai Wah’s WS”) and a video clip recording its making. The Defendant opposed the SWS Summons.

2.  After hearing the parties, I dismissed the SWS Summons but reserved the question of costs. Here are my reasons.

BACKGROUND

3.  The original plaintiff (“Kai Wah”) and the original Defendant (“Kai So”) are elder sister and brother, respectively. They have 3 other siblings. Their father died intestate in 1970, leaving the subject property (“the Property”) as the major item in his estate (“the Estate”).

4.  By a Deed of Family Arrangement dated 8 October 1994 executed by all the siblings, it was stated that the siblings agreed and declared that the Estate be vested in Kai Wah, to the intent that she shall become the sole and beneficial owner thereof without being liable for payment to the other siblings, and that the other siblings agreed to disclaim absolutely their interest in the Estate.

5.  An Assent, dated the same date, stipulated that the siblings assigned and confirmed onto Kai Wah the property as absolute owner.

6.  By an Assignment dated 3 May 2014, Kai Wah purportedly sold the Property to Kai So at a consideration of HK$3.8 million. Kai So had never paid the consideration to Kai Wah (“The 2014 Transaction”).

7.  At all material times, Kai Wah, but not other siblings, had resided at the Property.

8.  Kai Wah (now represented by her son as executor, the Plaintiff) sues Kai So (now represented by his daughter as administratrix, the Defendant) for payment of the HK$3.8 million.

9.  The defence is that the Property was beneficially owned by the 5 siblings in equal shares after the passing of the Father. The 2014 Transaction was for Kai Wah to hold the Property on trust for the siblings. The Plaintiff had acknowledged receipt of the HK$3.8 million (“Receipt Clause”) on the Assignment and there was estoppel arising therefrom. The Defendant counterclaims against the Plaintiff for a declaration of trust, vacant possession of the Property and mesne profits from 3 May 2014 onwards.

10.  The Reply merely joins issue on the Defence and the Plaintiff denied the Counterclaim by repeating the Statement of Claim.

11.  Kai Wah/the Plaintiff has been legally represented all along. When Kai Wah was diagnosed with cancer in about August 2019, her then solicitors, KB Chau, had taken the precaution of having Kai Wah’s WS executed and having the process video taped and witnessed by the Plaintiff, who was handling these proceedings on her behalf. Apart from filing a Notice of Non-Admission (“the Notice”), the Defendant has not put forward a positive case to question the authenticity of Kai Wah’s WS.

12.  Kai Wah passed away on 18 March 2022.

13.  The Plaintiff took out a summons on 18 September 2025 for leave to amend the Reply and Defence to Counterclaim (“the Amendment Summons”). It was dismissed by DHCJ Grace Chow on 25 June 2026, a week before this pre-trial review, on the ground of delay, with costs to the Defendant and Legal Aid taxation of the Plaintiff’s own costs.

14.  On the same afternoon of that dismissal, the Plaintiff took out the SWS Summons.

LEGAL PRINCIPLES FOR GRANTING LEAVE TO FILE FURTHER WITNESS STATEMENT

15.  The legal principles applicable to, and highly pertinent in, this application have been summarised in Yang Yani (楊亞妮) v Fang Mingyun (方明雲) [2024] 1 HKLRD 632, 634-635 at §§5-10:

“5. It is well-established that whether to give leave to adduce late witness statements is a balancing exercise. The discretion is to be exercised after the Court has considered all the circumstances, including, amongst others, the prejudice caused to the opponent and any conscious flouting of rules of court, practice directions and/or case management timetables, or any over-reaching or deliberate manoeuvring on the part of the applicant …

6. The Court may exercise discretion to allow late interlocutory application where there are exceptional circumstances to explain and justify the delay …

7. There are numerous authorities that held that delay alone could be a ground for refusal of leave to adduce new evidence, since delay, derailing or prolonging of a trial is prejudicial to a respondent, who has every right to expect that a trial fixed months ahead with due notice to the parties could proceed without disruption and time and costs being wasted. If a party were to make last minute fundamental changes to his case, it would be unfair to his opponent to have to divert his energy and attention away from the actual preparation for trial. On the other hand, the mere fact that an applicant would face considerable difficulties in establishing his case is no reason to allow the new evidence if this would lead to the trial being adjourned part-heard. …

8. Although a proposed new witness statement might be short, this does not mean that the cross-examination would be correspondingly brief …

9. A change of legal representation normally would not amount to a valid justification for the Court to grant leave to adduce new evidence at a late stage: …

10. That said, the Court must recognise that, under O.1A r.2 of Rules of the High Court (Cap.4A, Sub.Leg.), the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties. The Court shall give effect to the underlying objectives when it exercises any of its powers.” [underline added]

16.  In that case, the defendants were allowed to file one supplemental and two new witness statement pursuant to a summons taken out one day before the pre-trial review by their new team of solicitors. Whilst noting that a change of legal team was not usually a good reason to justify delay, on the facts of that case, the change was not due to a tactical move. The exceptional circumstances that occurred was of the outgoing firm of solicitors not handling the case with care, its failure to inform the defendants of the progress of the case, the Law Society’s intervention of the outgoing firm’s practice, and the defendants’ late acquisition of knowledge of that intervention. The defendants could not be entirely faulted for the unenviable situation they found themselves in.

ANALYSES

17.  In the present case, the Plaintiff, as a layman, could not personally be held liable for taking out the SWS Summons late. KB Chau did not inform him or counsel about the Notice until 23 June 2026.

18.  However, the problem lay with the contents of Kai Wah’s WS, which could broadly be split into 2 Parts. Part 1 (§§1-3) contained facts relating to the Father’s ownership of the property, Kai Wah’s succession and residence at the property, and the Assignment, which were not disputed. Exclusion of Part (1) would not cause prejudice to any party.

19.  Part 2 (§§4-5) stated that there was an alleged common understanding and agreement between Kai Wah and Kai So that Kai So would execute the Assignment first but pay later. As Kai So allowed Kai Wah to continue occupying the Property unconditionally, Kai Wah did not claim for payment from Kai So until close to expiry of limitation period.

20.  The application to amend the Reply and Defence to Counterclaim was along the lines of Part 2. The Plaintiff claimed that by reason of the Defendant’s conduct, the Defendant was estopped and/or waived the right to assert that his payment obligation had been discharged or to rely on the Receipt Clause to deny the obligation to pay the consideration. As the Amendment Summons had been dismissed by DHCJ Grace Chow, Part 2 was thus not relevant to any pleaded issue, and should not be adduced.

21.  As Kai Wah’s WS should not be adduced, there was no point adducing the PSWS-3^rd and the video clip to explain how Kai Wah’s WS came to be executed. Accordingly, I had dismissed the SWS Summons.

COSTS

22.  Costs should follow the event and be to the Defendant to be similarly assessed. I have to consider who should bear any or all of the Defendant’s costs. No blame could be laid on KB Chau in having Kai Wah’s WS executed and video recorded. Nor could the Plaintiff be blamed for the delay in taking out the SWS Summons late.

23.  However, there is a prima facia case to show KB Chau’s:

(1) Failure to advise the Plaintiff on the legal effect and proper handling of the Notice, and failure to inform the Plaintiff or his counsel of the existence of the Notice until some 9 months later, in June 2026 (§13 of Ms Tjia’s submission dated 29 June 2026).

(2) Failure to handle the Summons with care: KB Chau last assisted the Plaintiff by filing the SWS Summons and supporting affirmation on 26 June 2026. It was subsequently indicated that the Legal Aid Department did not approve the filing of the SWS Summons and KB Chau demanded the Defendant’s solicitor to return the Summons and the supporting affirmation as they would like to “withdraw” such an application. DLA replaced KB Chau with the Plaintiff’s current team of lawyers on 26 June 2026. Ms Tjia informed this Court that her team had not been told that KB Chau had attempted to withdraw the SWS Summons. In fact there was no withdrawal.

(3) Failure to fix the Amendment Summons and the SWS Summons for hearing together to save costs.

24.  I therefore order as follows:

(1) Costs of the SWS Summons be to the Defendant. A costs statement is to be provided by 7 October 2026 and grounds of objection by 14 October 2026. There should be summary assessment on the papers.

(2) KB Chau do show cause in writing to this Court within 21 days as to why (i) they should not bear the costs of and incidental to the SWS Summons, including the costs of this hearing and for the failures set out in paragraph 23 above; (ii) they should not be deprived of legal aid taxation of their own costs of and incidental to the SWS Summons. The Court will decide if a hearing is necessary after reading KB Chau’s causes.

25.  I thank counsel for their assistance.