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Chinachem Charitable Foundation Ltd v Chan Chun Chuen And Others

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date15 May 2009
Subject MatterProbate Action
Judgement NumberHCAP8/2007
CourtHigh Court (Hong Kong)
HCAP8E/2007 CHINACHEM CHARITABLE FOUNDATION LTD v. CHAN CHUN CHUEN AND OTHERS

HCAP 8/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 8 OF 2007

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In the estate of KUNG， NINA （龔如心）also known as NINA KUNG and NINA T H WANG, late of Top Floor, Chinachem Golden Plaza, 77 Mody Road, Tsimshatsui East, Kowloon, Hong Kong, Widow, Deceased

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BETWEEN
CHINACHEM CHARITABLE FOUNDATION LIMITED
（華懋慈善基金有限公司）		 Plaintiff
and
CHAN CHUN CHUEN（陳振聰） 1st Defendant
THE SECRETARY FOR JUSTICE 2nd Defendant

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Before: Hon Lam J in Chambers

Date of Hearing: 8 May 2009

Date of Decision: 8 May 2009

Date of Handing Down Reasons for Decision: 15 May 2009

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REASONS FOR DECISION

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1. On 8 May 2009, I granted leave to the 1st Defendant to adduce evidence from a handwriting expert Mr Paul Westwood at the trial. I emphasized at the time when I made the decision that in so doing the court should not be regarded as condoning the practice of expert shopping and leave was granted in the exceptional circumstances of the present case.

2. I now give my full reasons for such decision.

Background to the application

3. A very detail chronology regarding events relevant to the application was prepared by the Plaintiff and included in the hearing bundle placed before me on 30 April 2009. There is also a procedural chronology prepared by Mr Mill attached to his written submission of 26 April 2009. I do not intend to go through all the events set out in these chronologies. Suffice to say I have regard to them when I came to my decision.

4. I will highlight some events to facilitate a better understanding of this judgment.

5. On 6 May 2008, Cheung J gave leave to the parties to file and serve expert reports on or before 17 October 2008. By a consent order the date was extended to 28 November 2008. Later on, by an order of 14 November 2008, it was further extended to 30 January 2009. The court also gave directions for meeting of experts and the filing of joint statements and reply reports.

6. Still, there were difficulties on the part of the Plaintiff in meeting the deadline, partly attributable to funding problems and the change of their legal team. The deadline was finally extended to 3 April 2009.

7. By September 2008, the 1st Defendant decided to retain the service of a forensic document examiner and two experts were approached: Dr Audrey Giles and Mr Paul Westwood. In the end, the 1st Defendant decided to use Dr Giles in view of the fact that she was based in the same country as Dr Radley and the 1st Defendant’s leading counsel.

8. The hiccup caused by the change in the Plaintiff’s legal representation had disrupted the preparation of the expert evidence. Due to funding problem, Dr Radley the forensic expert engaged by the Plaintiff stopped his work on the case and some documents examined by him (referred to as the 4th batch of documents in Mr Mill’s chronology) were not sent to the 1st Defendant’s expert until sometime in March 2009.

9. On 23 March 2009, Dr Radley signed a report setting out his opinion that the purported signatures of Mrs Wang (the testatrix) and Mr Wong (one of the attesting witness) on the 2006 Will were not genuine. This prompted the Plaintiff to make an application for amending the pleadings to advance a positive case of forgery. The summons was taken out on 27 March 2009 and at that stage the report of the Dr Radley had not been filed nor exchanged.

10. The summons was supported by an affirmation of the Plaintiff’s solicitor who had exhibited a copy of Dr Radley’s report in a sealed envelope. The Plaintiff asked the court to read the report without disclosing it to the 1st Defendant.

11. At the hearing of the summons on 30 March 2009, the application was opposed and this court indicated that it had not read the report as I did not regard it as the right course to adopt. I saw no reason why the court should refer to the report without giving the 1st Defendant a chance to consider it. The application was stood down to a date after the intended exchange of expert reports. Mr Mill made an application for sequential filing of reports but that was refused.

12. As it happened, there was no exchange of expert reports. On 2 April 2009, solicitors for the 1st Defendant wrote to solicitors acting for the Plaintiff indicating that the 1st Defendant would not be filing any forensic expert evidence and requested for a copy of Dr Radley’s report as soon as possible. The Plaintiff served a copy of that report on the 1st Defendant’s solicitors accordingly.

13. As it is revealed subsequently, Dr Giles came to certain views unfavourable to the 1st Defendant regarding the signatures of Mrs Wang and Mr Wong on the 2006 Will and set out such views in a draft report. The draft report was sent to solicitors for the 1st Defendant on 29 March 2009. There was a meeting between Dr Giles and the lawyers acting for the 1st Defendant. After the meeting, the 1st Defendant decided not to ask Dr Giles to finalize her report.

14. After that, the 1st Defendant’s solicitors contacted Mr Westwood and asked him to prepare a preliminary report. That was not made known to the Plaintiff or the court until much later. In a skeleton submission filed on 2 April 2009, counsel for the 1st Defendant indicated that the 1st Defendant would not be calling any handwriting expert.

15. By consent, leave was granted on 9 April 2009 to the Plaintiff for amendment of the pleadings to plead forgery.

16. At a hearing on 14 April 2009, Mr Edward Chan SC appearing for the 1st Defendant on that occasion indicated to the court the 1st Defendant would have an expert in court to assist in cross-examining Dr Radley. This court raised the concern of having the opinion of a shadow expert being proffered in the guise of cross-examination without being subject to the discipline of exchange of expert report and expert meeting.

17. After the service of Dr Radley’s report on 2 April 2009, further sample signatures were made available to the experts for examination. Dr Radley made a supplemental report and it was served on 20 April 2009.

18. On 22 April 2009, in the outline submissions filed for the pre-trial review on 23 April 2009, the 1st Defendant indicated the wish to adduce evidence from Mr Westwood at the trial. A summons for that purpose was filed on 24 April 2009. A preliminary report of Mr Westwood was made on 24 April 2009. The opinion in the preliminary report was favourable to the 1st Defendant.

The court’s control over expert evidence

19. Mr Yu SC characterized this application as a blatant attempt in expert shopping. He submitted that the court should not countenance such a practice and the application should be refused.

20. I wholly agree that expert shopping is undesirable and the court should discourage such practice. When the court detects any abuse in this regard, it has the power to prevent it. In this connection, I only need to quote from para.29 of the judgment of Dyson LJ in Vasiliou v Hajigeorgiou [2005] 1 WLR 2195 at p.2205,

“The principle established in Beck v Ministry of Defence (Note) [2005] 1 WLR 2206 is important. It is an example of the way in which the court will control the conduct of litigation in general, and the giving of expert evidence in particular. Expert shopping is undesirable and, whenever possible, the court will use its powers to prevent it. It needs to be emphasized that, if a party needs the permission of the court to rely on expert witness B in place of expert witness A, the court has the power to give permission on condition that A’s report is disclosed to the other party or parties, and that such a condition will usually be imposed. In imposing such a condition, the court is not abrogating or emasculating legal professional privilege; it is merely saying that, if a party seeks the court’s permission to rely on a substitute expert, it will be required to waive privilege in the first expert’s report as a condition of being permitted to do so.”

21. Mr Yu further submitted that though the English authorities referred to the disclosure of the original expert’s report as a condition for granting permission to call a substitute expert, it is only a necessary but not a sufficient condition. I was referred to a decision by Judge Ng in Chung Tin Kau v Fong Shun Tak DCPI 1055 of 2006, 16 March 2009, where Her Honour refused permission to a plaintiff to call another doctor notwithstanding the medical report of the original expert was produced.

22. I agree that the disclosure of the original report per se may not be sufficient. The court may refuse to grant leave if the only reason for having a substitute expert is that his opinion is more favourable to the party calling him.

23. Ultimately, it is a matter of case management and one must have regard to the underlying objectives set out in Order 1A Rule 1, see Order 1A Rule 2(1). Expert shopping, if unchecked, will not be conducive to cost-effectiveness of the proceedings nor the expeditious disposal of a case. It can also lead to potential unfairness between those who can afford to shop around for the opinions of more than one expert and those who cannot. If the practice prevails, it would compromise the impartiality of expert evidence which is of great importance in the fair resolution of dispute by the court.

24. Further, the court must recognize that 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, Order 1A Rule 2(2).

25. Hence, if the court is satisfied that the just resolution of a...

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