CHAN YUK KWAN v. THE ESTATE OF CHOW SING KA, DECEASED

cacv 173 & 228/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no S. 173 & 228 of 2006

(on appeal from HCA 6/2003)

BETWEEN

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J U D G M E N T

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Hon Rogers Acting CJHC:

1.  These are two appeals.  They arise out of similar facts.  Although it has been argued that these were not case management decisions, they are, in my view, case management decisions.

2.  On 12 May, Deputy High Court Judge Chan dismissed an application to admit expert handwriting evidence in respect of what were said to be the two memoranda which were addenda to an insurance policy.  On 18 May, when he handed down his written decision, he made an order that no expert evidence should be adduced at the trial of the action.  That seems to me to apply to both parties, not simply to the Defendant.  That related specifically to expert evidence in relation to a document which consisted in part of a copy of a deceased’s identity card, together with a written statement at the side, which was signed by the Plaintiff.

3.  Dealing with the latter first, this had been produced under a general leave to adduce expert evidence.  It is the Plaintiff’s case that she had lent the deceased a sum of $1.3 million, which he had used to purchase a flat.  The document in question contains a photocopy of the deceased’s identity card with what is agreed to be his signature underneath.  But at the righthand side is a written statement, saying:

“Chow Sing-ka borrows from Chan Yuk-kwan...”

In other words the Plaintiff.

“...HK$1.3 million.  And have already received (International Bank of Asia Limited cheque no. 882765).  It is agreed that full repayment shall be made on or before 31^st December 2002.”

And it is signed by the Plaintiff.  Now, there is no dispute between the parties that what was written at the side was not written by the deceased.  The signature on the right-hand side is agreed by both parties to have been written by the Plaintiff.

4.  The Plaintiff says that what was written above was written by her brother.  The expert report, which was submitted, says that the Chinese script written on the right-hand side of the photocopy of the identity card in Item 1 was in the form of a promissory note by the lender.  Well, so much is agreed.  It then goes on:

“The absence of the signature of the borrower in the appropriate signing spaces marked by red lines on annexure 2 attached, suggests that the Chinese script written in Item 1 had not been acknowledged by the borrower.”

5.  As far as that is concerned, that is a matter for evidence, primarily from the Plaintiff, possibly from her brother, but certainly has nothing, as far as I am concerned, to do with an expert on writing, and therefore would be inadmissible as expert evidence from an expert on writing.  It then goes on:

“I am therefore of the opinion that the Chinese script written in Item 1 was simply a declaration made and signed by the lender.”

And the same applies to that statement.  He then goes on:

“My examination of the questioned document (item 1) has also revealed that the different ink colour and ink flow suggested that two different ballpoints had been used.”

6.  I would simply say there that this court has not been shown the document, since it is kept in the safe of the Plaintiff’s solicitors, and it was not thought necessary to be brought to court this morning.  But if there is different ink colour, it would hardly take a genius to conclude that different pens had been used.

7.  The conclusion which is made is that:

“Summarising the findings, as revealed in my examination and comparison of the contents of the four items, I am of the opinion that the evidence is sufficient for me in drawing a conclusion of a confirmature nature that:

“The Chinese script in the questioned document (Item 1) was a written declaration made and signed by Chan Yuk-kwan on a spare copy of the supplemental document in the form of the attached experimental example which belonged to the card holder and accessible to the signatory of the declaration.” ”

8.  In so far as the expert has said that the writing on the right-hand side is not that of the deceased, there is absolutely nothing between the parties on that.  It has never been suggested that it was.  But in so far as this expert on writing purports to suggest that the Plaintiff has written this after the deceased’s death or at least without his knowledge on a spare copy of his identity card, that evidence is totally inadmissible from any expert.  In my view, the judge was quite right to make a further order that no expert evidence should be adduced.  This evidence is useless.

9.  I then turn to the evidence that was sought to be admitted in relation to the supplemental statement.  What is said there is there were two what were called “amendment” or “supplemental applications” to an insurance policy.  The first amendment was dated 11 May 1999, and it says:

“I spend 2 to 3 days per week to work in Dongguan of the PRC.  I spend the rest of my time staying in Hong Kong to manage business.”

And there is a signature at the bottom of the proposed insured.  And there is also a signature of the agent/witness, apparently a Miss Money Chiu.

10.  Then the next similar amendment/supplemental to application form is dated 14 May 1999, and it again has a signature of the proposed insured.  There is again the signature of the agent/witness, Money Chiu.

11.  Now it said that those two signatures of the proposed insured were not the signatures of the deceased.  That is said on the basis of a comparison of sample signatures which apparently came from conveyancing documents.  To my rather unskilled eye, it is true that the signatures of the proposed insured on the two forms do look slightly different.  But, to my mind, they look like a rather shaky signature of somebody who perhaps is not very well.  But be that as it may, they are not grossly different.  They are somewhat different, and, as I say, they look rather shaky.

12.  But the first point to be made on these documents is that there is the signature of the agent/witness Money Chiu.  So to my mind, the most important evidence in relation to these documents would be the evidence of the agent/witness: what she has got to say about these documents and how they came to be signed.

13.  But the other thing is that the second amendment or supplement to application reads:

“I provide the supplemental information of the beneficiaries as follows:”

The first one is the Plaintiff, and the second one is the Plaintiff’s daughter.  The Plaintiff is described as the fiancée, and the daughter is described as the daughter of the fiancée.  These documents in themselves are really very peripheral to the whole case, because they only go to support the Plaintiff’s case that the deceased intended to look after her.  When one considers the actual nature of the claim, which is the claim for return of the money lent, the whole matter is so peripheral that, in my view, I would doubt that these documents would count for very much in the case anyway.

14.  But be that as it may, the expert has purported to give the following evidence.  He says, in relation to the first document, which has really got nothing to do with this case at all, that the differences which he has found in the signatures are sufficient in evidence in suggesting that the signature of item 2 was not signed by the same signatory as the signatures in Item 1, 4 and 5.

15.  When he comes to the second amendment/supplement application, having referred to some of the differences, he again says that:

“These significant differences, in my opinion, are sufficient in evidence in suggesting that the signature in Item 3 was not signed by the same signatory in the same signatures in Items 1, 4 and 5.”

That evidence is about as weak as it comes.  He does not say it was not.  He just says it is sufficient to suggest that it was not.  That is as far as his evidence goes.  To my mind, it is useless evidence in any event.

16.  In my view, the Deputy Judge was right in his case management decision to prevent this sort of evidence going in, because all it would do is to extend the length of the trial unnecessarily and, on doubt, cause the Plaintiff to call expert witnesses, have cross-examination.  The whole matter would go off at a tangent and be of no consequence.

17.  I would therefore dismiss both the appeals.

Hon Le Pichon JA:

18.  I agree with the judgment of the Vice President.  I would simply add this short observation.  In the memorandum expert report, the expert opined that the written declaration was made and signed by the Plaintiff.  Mr Smith seeks to suggest that that is relevant evidence because the Plaintiff’s affirmations filed state that the writing was actually written out by her brother, who was present.

19.  In my view, there is simply no scientific basis for the expert to come to the conclusion that he did because he had no specimen writing of the Plaintiff’s upon which he could make any comparison.  So the whole thing is of no probative value at all.