HO YAT WAH v. CHUNG HANG HIM (the sole executrix named in the will of Madam CHAN YUK MUI, deceased)

HCA 731/2014

[2018] HKCFI 1265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 731 OF 2014

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JUDGMENT

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Introduction

1.  Since 2009, courts have been permitted to order the parties to litigation to appoint a single joint expert to give evidence on a particular topic.  One of the advantages of doing that is that time and costs will be saved if theparties have not yet obtained reports from such experts as they each proposeto instruct themselves.  Another advantage—which some people might say is the more important advantage—is that it helps to make expert evidence more independent and objective.  That applies even if experts comply withthe Code of Conduct for Expert Witnesses in Appendix D to Order 38 of the Rules of the High Court.  The appointment of a single joint expert is now commonplace.

2.  But what happens if one of the parties is dissatisfied with the opinion of the single joint expert?  Suppose it then instructs an expert of itsown and obtains a report more favourable to its case.  Should it be allowed to rely on that report?  That is the issue which has arisen in this case.  The law on the topic is relatively clear.  It was set out in a characteristicallycomprehensive way by Recorder Lisa Wong SC (as she then was) in DaimlerAG v Leiduck (No 1) [2014] 3 HKLRD 56, though some of Bharwaney J’s observations in Law Chung Fai v Lam Ming Kuen [2010] HKEC 1410 (which Recorder Wong adopted in a later judgment, Daimler AG v Leiduck (No 2)[2018] 1 HKLRD 40) are also relevant.  The more difficult question is how the law should be applied in a particular case.  But first it is necessary to set the scene by a brief summary of the parties’ respective cases which give rise to the issue on which expert evidence is required.

The relevant facts

3.  The plaintiff, Ho Yat Wah, is in the transportation business.  His personal secretary for many years was Madam Chan Yuk Mui.  She wasfirst diagnosed with breast cancer in 2007.  It recurred in 2010 and she died on 12 November 2012.  The defendant, Chung Hang Him, is her only son.  He is the sole beneficiary under her will, and the sole executor of her estate.  He claims that his mother was in a romantic relationship with Mr Ho for many years.  Mr Ho denies that their relationship was romantic.  He says that their relationship was a close professional working one, but that it was at all times platonic.

4.  Mr Ho’s case is that he relied on Madam Chan and trusted her completely.  In 1990, in order to keep his own assets separate from the assetsof his business, they agreed that she would hold some of his assets in trust for him.  Over the years, they included seven properties (although three were sold before Madam Chan’s death), jewellery, shares and foreign currency.  Mr Ho’s case, therefore, is that he remained the beneficial owner of all these assets.  Mr Chung’s case is that his mother was always the beneficial, as well as the legal, owner of these assets.  In particular, she had bought the seven properties with her own money.  Indeed, in her last will, as well as in a previous will, she had included these properties (in so far as they had not by then been sold) among her assets.  Mr Chung denies that there were any assets held by his mother on trust for Mr Ho.

5.  The critical part of Mr Ho’s case for present purposes is that on 9 October 2012—five weeks before Madam Chan died—Mr Ho and Madam Chan went to the office of Leon Lai, a solicitor and Mr Ho’s cousin. Mr Ho and Mr Lai claim that Madam Chan said that she wanted to sign something to confirm that the four remaining properties belonged to Mr Ho.  They claim that she signed a document to that effect on that occasion, and did so in the presence of both of them.  Mr Chung’s case is that this is untrue, and that the document purporting to be the one signed by his mother is a forgery.

The instruction of a joint sole expert

6.  Whether Madam Chan signed this document is plainly one of the core factual issues in the case.  If she did not, it would completely undermine Mr Ho’s credibility on that issue—and that could well have a catastrophic effect on how the court looks at his claim to have entered into an agreement with Madam Chan for the creation of a trust at all.  It would also have a very considerable impact on Mr Lai’s professional reputation.  Unsurprisingly Mr Chung’s advisers wanted a report from a handwriting expert as to whether it was indeed his mother’s signature on the document.

7.  Mr Ho’s advisers were opposed to that suggestion.  They said that since both Mr Ho and Mr Lai had witnessed her signing of the document, the appointment of a handwriting expert would be a waste of time and cost.  So Mr Chung’s solicitors applied for the appointment of a single joint expert to report to the court on the genuineness or otherwise of what purported to be his mother’s signature on the document.  That application was opposed on the basis that expert evidence was not needed in view of the eye witness evidence of Mr Ho and Mr Lai, but if there was to be expert evidence on the topic, it was not suggested that it should not be in the form of a report from a single joint expert, nor was there any opposition to Mr Chung’s solicitors’ choice of such an expert, Leung Sze Chung, an acknowledged expert in the field.  On 7 October 2016, Master Kwang gave leave for the parties to engage Mr Leung as a single joint expert to report on the genuineness or otherwise of what purported to be Madam Chan’s signature on the document.

8.  Mr Leung produced his report on 15 May 2017.  He used a 9 point scale ranging from “written by” to “not written by” to describe his conclusion.  In between those extremes were various degrees of uncertaintyor inconclusiveness.  His conclusion was at the end of the scale: in his expert opinion, the signature in question was not that of Madam Chan.

The instruction of another expert

9.  Unsurprisingly, Mr Ho’s advisers were disappointed with that conclusion.  They instructed another expert, Robert Radley, another acknowledged expert in the field, to prepare a report on the genuineness or otherwise of the signature in question.  He produced his report on 8 September 2017.  His conclusion was that that the evidence was inconclusive.  He could not say, one way or the other, whether the signature was genuine or not.

10.  There is much common ground between Mr Leung and Mr Radley.  They agree that there are significant differences between the signature on the document in question and the known signatures of Madam Chan.  Where they differ is what those differences are attributable to.  Mr Leung says that they are attributable to their different authorship.  Mr Radley disagrees.  He cannot exclude the possibility that the differences are attributable to the state of Madam Chan’s health and the medication she was on.  I shall have to return to their reports in greater detail later on in this judgment.

11.  Mr Ho’s advisers now apply for leave to rely on Mr Radley’s report at the trial.  That is opposed by Mr Chung.  The hearing of the application took place on 20 March 2018.  At the conclusion of the hearing, I reserved judgment.  I proceeded to write it immediately, doing some research of my own on the relevant law.  As a result of that research, I sent anote to the parties on 22 March 2018.  I shall come to that note after I havesummarised the law as it appears from the authorities which were cited to me, and after I have explained the reports of Mr Leung and Mr Radley in more detail.

The relevant legal principles

12.  In Leiduck (No 1), Recorder Wong examined the principles governing the reception of additional expert evidence following the appointment of a single joint expert.  At [32] – [33] she said:

“ The appointment of a single joint expert …, whether by agreement between the parties or imposed by the Court, does not per se bar a party from seeking leave to instruct its own expert to challenge the [single joint expert’s] evidence or aspects thereof.

Leave should and would be granted if, upon balancing all relevant considerations, it is just and accords with the underlying objectives of Civil Justice Reform … to do so.”

13.  Recorder Wong then set out at [34] a list of nine factors which had been identified in the jurisprudence of England and Wales to be taken into account in deciding whether to allow the evidence of another expert in addition to that of the single joint expert.  They were:

“ (1) the nature of the dispute;

(2) the number of disputes on which the expert evidence is relevant;

(3) the reason for requiring the second report;

(4) the amount at stake or the nature of the issues at stake;

(5) the effect of permitting a second expert report on the conduct of the trial;

(6) the delay in making the application;

(7) the delay that might be caused in the conduct of the proceedings;

(8) any other special features;

(9) the overall justice to the parties.”

She later at [38] added two other factors to this list:

“ (1) whether the [single joint expert’s] report can be challenged by cross-examination without the need for a further report; and (2) whether the parties have already engaged own-party experts.”

14.  Recorder Wong then turned to how compelling the reason for wanting evidence from an additional expert has to be.  There was uncertainty in England and Wales over whether there had to be “good reasons” or whether it was sufficient for “reasons which are not fanciful” to be shown.  Recorder Wong said at [36]:

“ … I am inclined to think that, for what is essentially a case management decision to be made to achieve justice and upon balancing all material factors of which the reasons for challenging the [single joint expert’s] opinion is but one, it should be sufficient if those reasons are not fanciful, particularly if the other considerations also point to own-party expert evidence being appropriate.”

15.  Bharwaney J’s judgment in Law Chung Fai was in a different but related context.  One of the parties wished to commission a report from an expert in place of the expert who had previously been instructed.  In summarising the principles to be applied when deciding whether a party should be permitted to change an expert witness, Bharwaney J drew much of his thinking from the judgment of Lam J (as he then was) in Chinachem Charitable Foundation Ltd v Chan Chun Chuen and anor [2009] 5 HKC 190,and said a number of things of importance to the present case.  First, he spelt out some of the factors to be taken into account on applications of this kind when seeking to promote the underlying objectives of the recent reforms to civil procedure.  At [9] he said at (a) that these included the need

“ … to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.”

16.  Secondly, he warned of the need for the court to guard against “expert shopping”.  At [9] he said:

“ (c) Expert shopping is undesirable and, whenever possible, the court will use its powers to prevent it. It can lead to potential unfairness between those who can afford to shop around for the opinions of more than one expert and those who cannot. Expert shopping is not conducive to cost effectiveness of the proceedings and the expeditious disposal of a case.

…

(e) To curtail expert shopping, the court may refuse to grant leave if the only reason for calling a substitute expert is that his opinion is more favourable to the party calling him than the opinion of the original expert.

(f) However, if the court is satisfied that the just resolution of a dispute requires leave to be granted for a substitute expert to be called, it should not refuse leave simply because the opinion of the substitute expert is more favourable than that of the original expert.”

17.  Thirdly, Bharwaney J thought that it was necessary for the court to form a provisional view about the utility of the new report.  At [9] he said:

“ In every case, the court should examine the grounds put forward by the substitute expert and make a preliminary assessment of the cogency of those grounds as compared with those set out in the report of the original expert and the report of the expert engaged by the other side. If the court is satisfied that there are relevant matters canvassed by the substitute expert which may be important to the just resolution of the dispute which was omitted from the reports of the original expert, a prima facie case would be made [out] for the admission of the substitute expert report in the interests of the just resolution of the dispute.”

Among the other factors which Bharwaney J said should be taken into account were “the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the change of experts”, the last of those factors echoing what Recorder Wong had said in Leiduck (No 1).  He concluded by stressing the need “to ensure a level playing field” with “fair access to proper experts for all parties”.

Mr Leung’s report

18.  Mr Leung was provided with 28 examples of the known signature of Madam Chan.  23 of them were original signatures, the remaining 5 being copies.  Only 4 of them were written in 2012, the year ofthe signature on the document in question.  Mr Leung identified a number ofdifferences between the known signatures of Madam Chan and the signature on the document in question. He noted some features of the signature on the document in question which were indicative of forgery: instances of what appeared to be retouching, hesitation, and a break in the writing (known as a hiatus).  He also noted dissimilarities between one of Madam Chan’s known signatures and her other known signatures, but he attributed that to different things in different places in his report.  At para 5.2.3, he said that it was “possibly due to failing health”, whereas in para 6.2 he said that it was“consistent with poor pen control”.  He added, though, that the dissimilarities between this example of Madam Chan’s known signature and her other known signatures were different in nature from the distinctive features of the signature on the document in question.  His conclusion was:

“ The fundamental nature and the variety of dissimilarities found in combination between the questioned signature and the known examples are consistent with different authorship and contradict any suggestion of disguise as a deliberate departure, on the part of the signatory, from her normal writing habits. I am therefore of the opinion that the questioned signature … was not written by the late Madam Chan ….”

19.  Importantly, it looks as if Mr Leung may not have taken the state of Madam Chan’s health into account to the extent that it may have been necessary to do so.  The joint instructions he received in a letter signed by both Mr Ho’s solicitors and Mr Chung’s solicitors enclosed “[m]edical notes, records and reports of [Madam Chan] for the year 2012 until [her] death”, but (a) those notes, records and reports were not itemised, and (b) when Mr Leung came to itemise in paras 1.2 – 1.4 of his report the documents he had received from both sets of solicitors, he did not refer to these notes, records and reports at all.  Indeed, apart from the reference to her failing health in para 5.2.3 of his report, he said nothing else about its impact on her writing.

Mr Radley’s report

20.  Mr Radley had seen Mr Leung’s report when he prepared his own.  Unfortunately, he did not realise that Mr Leung’s report had been written in his capacity as a single joint expert.  Mr Radley thought that Mr Leung had been instructed by Mr Chung’s solicitors, even though Mr Leung’s report had made it clear that he had been instructed jointly by both parties to the litigation. 

21.  Three features of Mr Radley’s report are noticeable. First, he commented at length on Mr Leung’s report.  Secondly, he was only providedwith 5 examples of Madam Chan’s known signature, of which only 3 were in 2012, and of those 3, only 2 were original signatures, the other being a copy.  As for the 23 other examples considered by Mr Leung, Mr Radley had to rely on the photographs of them in Mr Leung’s report (though he did say that the photographs were “extremely good”).  Thirdly, Mr Radley referred to the large amount of documentation which he had been provided with about the state of Madam Chan’s health in 2012, including the medication she was taking.  Those documents showed, in particular, that she had been undergoing chemotherapy at the time when the document with the signature in question had purportedly been signed, and for two weeks from the next day she had been in hospital where she was described as “very weak” and where she “slept most of the time”.

22.  Mr Radley did not “entirely” agree with Mr Leung about the features of the signature on the document in question which were said by Mr Leung to be indicative of forgery, but he broadly agreed with Mr Leung that there were differences between the known signatures of Madam Chan and the signature on the document in question.  Indeed, he thought that there were considerable differences even in the four known signatures of Madam Chan in 2012, even though he thought that the limited number of known signatures of Madam Chan in 2012 was “a major obstacle” to reaching a reliable conclusion on the authorship of the signature in question.  But as I have already said, the principal difference between him and Mr Leung relates to what the differences between the known signatures of Madam Chan and the signature on the document in question were attributable to.  Mr Radley said that one of the imponderables was what the potential side effects were of the drugs Madam Chan was taking, and what those side effects may have had on her handwriting.  His conclusion was that:

“ … without knowing very precisely the writing capabilities of Madam Chan around the period of the signing of the [document] in question, there is no way of determining whether the differencesobserved between the questioned signature and the known writings are the result of natural variation of an individual due to failing health and/or drugs, or whether these could be the result of errors of forgery.”

Discussion

23.  Mr Jonathan Ah-weng for Mr Chung contended that this was a classic case of expert shopping.  Mr Ho was dissatisfied with Mr Leung’s report, and he therefore looked for another expert whose report could be used to attack it.  If Mr Ho was permitted to rely on Mr Radley’s report, Mr Chung would have to instruct an expert of his own to report on Mr Radley’s report.  That was an expense he could ill afford, and contrasted with the comparative wealth of Mr Ho.

24.  In addition, Mr Ah-weng attacked Mr Radley’s reasons for concluding that the evidence about the authorship of the signature on the document in question was inconclusive.  He pointed out that Mr Radley examined only a limited number of the known signatures of Madam Chan.  There was no basis, he said, for Mr Radley to treat the limited number of known signatures of Madam Chan in 2012 as problematic.  In any event, Mr Ah-weng asserted that if Mr Leung had brought the state of Madam Chan’s health into the equation, he would have been acting outside his expertise (andthe expertise of Mr Radley, for that matter), as their expertise was limited to handwriting.

25.  There are, as ever, countervailing considerations.  It could be said that Mr Leung had himself expressed a view about the state of Madam Chan’s health by attributing the differences between Madam Chan’s known signatures and the signature on the document in question to their different authorship.  He was therefore excluding the possibility that they were attributable to the state of her health—a topic which he said was outside his area of expertise.  And although it might be said that Mr Ho was expert shopping, that is a charge which can be levelled at any litigant who is dissatisfied with the opinion of the single joint expert and commissions the opinion of another expert.  In any event, whether or not criticisms can be made of Mr Radley’s report, the focus at the moment is on Mr Leung’s report, and whether any shortcomings in his report justify instructing another expert in the field.

26.  I appreciate that after Mr Leung had been shown Mr Radley’s report, he said that he had considered Madam Chan’s “medical conditions”, but that does not sit easily with his failure to mention in his report that he had been provided with the notes, records and medical reports on Madam Chan.  Nor does it explain why he excluded the state of her health as a reason for the dissimilarities between her known signatures (with the possible exception of the one signature whose deviation from the norm was “possibly due to failing health”) and the signature on the document in question.  In these circumstances, Mr Ho’s wish to commission and rely upon another expert’s opinion is entirely understandable.

27.  Since:

(a)   the issue whether Madam Chan signed the document in question is at the heart of the case (because if she did it will be difficult for her son to contend that she had a beneficial interest in the four properties to which the document related), and

(b)   there are reasons which are far from fanciful for questioning the basis on which Mr Leung excluded the possibility that the differences between Madam Chan’s known signatures and her signature on the document in question were attributable to different authorship rather than the state of her health,

it might well be appropriate to permit Mr Ho to rely on Mr Radley’s report, provided that this would not have a really significant impact on (a) the time which would elapse before the case came on for trial, and (b) the costs which would be incurred by the parties, particularly by Mr Chung who is a man of more limited means than Mr Ho.  However, it would not be right for me to reach a concluded opinion about that for the reasons which I set out in my note to the parties.  It is to that note that I now turn.

The note sent to the parties

28.  The judgment to which I drew the parties’ attention in my note was that of the Court of Appeal in England in Daniels v Walker [2000] 1 WLR 1382.  It was one of the first cases to come before the Court of Appeal after the rule change allowing a single joint expert to be instructed.  There was a passage in the judgment which raised the question of whether the current application might be premature.  Lord Woolf MR (as he then was) acknowledged that there may well be cases in which one of the parties is dissatisfied with the opinion of the single joint expert for reasons which are not fanciful, and obtains a report from another expert.  He added at p 1387E–F:

“ In the majority of cases, the sensible approach will not be to ask the court straight away to allow the dissatisfied party to call a second expert. In many cases it would be wrong to make a decision until one is in a position to consider the situation in the round.”

Lord Woolf then dealt with the case, as here, where much was at stake.  At pp 1387H – 1388A, he said:

“ If there is disagreement on [the single joint expert’s] report, then there would be an issue as to whether to ask questions or whether to get your own expert’s report. If questions do not resolve the matter and a party, or both parties, obtain their own expert’s reports, then that will result in a decision having to be reached as to what evidence should be called. That decision should not be taken untilthere has been a meeting between the experts involved. It may be that agreement could then be reached; it may be that agreement is reached as a result of asking the appropriate questions. It is only as a last resort that you accept that it is necessary for oral evidenceto be given by the experts before the court. The cross-examination of expert witnesses at the hearing, even in a substantial case, can be very expensive.” (Emphasis supplied)

29.  My note went on to disclose my current inclination, which was for Mr Ho’s application for leave to rely on Mr Radley’s report at the trial of the action to be adjourned to enable Mr Leung to be provided with Madam Chan’s medical records if he had not been provided with them previously— that being a distinct possibility in the light of his failure to list them in his report as documents which he had been provided with.  That would have given Mr Leung an opportunity to consider them if he had not previously done so.  He and Mr Radley could then discuss (if necessary by video link or conference call as they are based in Hong Kong and the UK respectively) whether they were any closer to agreeing what the differences between the known signatures of Madam Chan and the signature on the document in question were attributable to.  They could then compile a joint report to the court setting out the areas on which they agreed and disagreed.  My note concluded that only then would the court be in an informed position—‌in conformity with what was said in Daniels v Walker—‌to decide whether to permit Mr Ho to rely on Mr Radley’s report at the trial.  Mr Ho’s legal team were content with an order along those lines.

30.  Mr Chung’s legal team strongly argued against that.  They filed lengthy submissions from Mr Ah-weng (which were emailed to me on 30 April 2018) inviting the court to determine Mr Ho’s application on its merits.  On 9 May 2018 I was informed that Mr Ho’s legal team did not wish to reply to them.  I intend no discourtesy to Mr Ah-Weng if I do not follow his example of dissecting Lord Woolf’s short ex tempore judgment in Daniels v Walker line by line.  Indeed, much of Mr Ah-weng’s submissionsrepeated in a different form his original submissions.  His core point, though, was that the court’s first task was to decide whether the reasons for seeking the report of another expert were not fanciful because it was only if they were not that the balancing exercise to which Recorder Wong referred had to be conducted, and it was only then that the factors identified in Daniels v Walker fell to be considered.  He contended, as he had contended on the hearing of the application, that the reasons for relying on Mr Radley’s report were fanciful, and that therefore the factors identified in Daniels v Walker were not engaged.

31.  I am not inclined to compartmentalise things into the two stageswhich Mr Ah-weng has contended for.  That approach is too refined for my taste.  The cogency or otherwise of the reasons for a party wanting to rely on another expert is simply one of the factors—‌admittedly a very important one‌—‌to be taken into account in the balancing exercise.  But that is not something which I need to decide because, for the reasons I have already given, the reasons for questioning the basis on which Mr Leung excluded the possibility that the difference between Madam Chan’s known signatures and the signature on the document in question was attributable to different authorship rather than the state of her health are far from fanciful.  And when it comes to the balancing exercise, I have no doubt that the court will beassisted by knowing the extent to which Mr Leung and Mr Radley continue todisagree about whether it is possible to attribute those differences to different authorship—not least because by then the court should be satisfied that Mr Leung has indeed considered the documents which relate to Madam Chan’s medical condition.

Conclusion

32.  For these reasons, I adjourn Mr Ho’s application for leave to rely on Mr Radley’s report at the trial of the action.  In case Mr Leung has not been provided with the documents relating to Madam Chan’s medical condition, I order that he be provided with them within 14 days of this judgment, to the extent that he has not been provided with them before.  I order that Mr Leung and Mr Radley discuss their respective opinions within 28 days thereafter, whether in person or by video link or conference call.  I order that within 21 days thereafter they jointly prepare a report setting out the issues on which they agree and the issues on which they disagree.  I give the parties liberty to restore the summons to which Mr Ho’s application relates following the receipt of that joint report.

33.  My current thinking is that it would be premature to make any order for costs.  Accordingly, the order nisi I make as to costs is that the costs of this application be reserved to the judge on the restoration of the summons, with liberty to either party to apply for an appropriate order for costs in the event of the summons not being restored.