chinachem charitable foundation v the secretary for justice
DESCRIPTION
The curious court case of a hole-digging feng shui master and his claim on a USD 13 billion fortune...TRANSCRIPT
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CACV 62/2010 AND CACV 101/2010
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NOS. 62 AND 101 OF 2010
(ON APPEAL FROM HCAP NO. 8 OF 2007)
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
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
Before: Hon Rogers VP, Le Pichon and Kwan JJA in Court
Dates of Hearing: 10-13 January 2011
Date of Handing Down Judgment: 14 February 2011
J U D G M E N T
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Hon Rogers VP, Le Pichon and Kwan JJA:
1. This is a joint judgment. Each member of the court has been
responsible for initially drafting a part of this judgment. Nevertheless, the
judgment is the considered judgment of all of us. This was an appeal from the
judgment of Lam J given on 2 February 2010. The action before the judge was
a probate action in which the plaintiff sought orders that the court should
pronounce in solemn form the will of the late Nina Wang dated 28 July 2002
(“the 2002 will”) in which the plaintiff is named the beneficiary and against the
validity of an alleged will dated 16 October 2006 (“the 2006 will”) in which the
first defendant is named the beneficiary. The first defendant asked for orders
to the opposite effects. The judge found in favour of the plaintiff and against
the first defendant, holding that the 2006 will was a forgery. He made orders
that the plaintiff should have their costs on an indemnity basis save that the
plaintiff’s costs in relation to 2 experts who had been called in respect of
testamentary capacity were ordered to be paid out of the estate. He made an
order that the plaintiff should have 80% of its costs against the first defendant in
respect of the hearing on 17 March 2010. There were other ancillary orders as
to costs.
Background
2. The deceased, the late Nina Wang, had the title of the chairwoman
of the Chinachem Group (“the group”). All the companies that were treated as
part of the group are private companies and are, therefore, not listed on the
stock exchange. Various estimates of the value of those companies and their
interests have been given and figures in the region of $100 billion have been
mentioned. The business of the group had been built up through the efforts of
Nina Wang and her late husband, Teddy Wang. Teddy Wang was kidnapped
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for the second time in 1990 and it would appear that despite indications of his
death and subsequent convictions of persons for murdering Teddy Wang,
Nina Wang maintained for a long time that he was still alive.
3. The full background to this case can be gleaned not only from the
judgment in the court below but also from the proceedings between Nina Wang
and her father-in-law, Wang Din Shin. Those proceedings concluded in 2005
with the judgment in the Court of Final Appeal (2005) 8 HKCFAR 387. In
that judgment it was held that Teddy Wang’s will, which Nina Wang relied
upon, was valid. In the lower courts it had been found to have been forged.
4. What is not evident from the earlier proceedings, but was highly
relevant in these proceedings, was Nina Wang’s involvement with the first
defendant. The first defendant ran a fung shui school, Chun Yip Hing Lung
Tong, and Nina Wang had been introduced to him in March 1992 as a fung shui
master. There is no doubt that considerable sums of money passed from
Nina Wang to the first defendant and further sums of money were paid as
subscription monies for shares in a company started by the first defendant.
5. In 2002 Nina Wang executed the 2002 will. There is no dispute
in this case that that was a valid will. That will provided, in the first place, that
the whole of Nina Wang’s estate was bequeathed to the plaintiff, a charitable
foundation jointly established by Teddy Wang and Nina Wang in 1988. In
paragraph 2 of the will it is said that the supervision of the plaintiff would be
entrusted to a managing body formed by the Secretary General of the United
Nations, the premier of the People’s Republic of China and the Chief Executive
of Hong Kong jointly. It was provided that the plaintiff should continue all
projects that it had undertaken. The wish was expressed in the will that there
should be (a) Chinese prize(s) of worldwide significance, similar to that of the
Nobel Prize(s). Reference is made in paragraph 4 of the 2002 will to the
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requirement that the plaintiff should provide for the members of the late
Teddy Wang’s family. The staff of the group and their families were also to
be provided for. Perhaps significantly, Nina Wang told Mr Ng Shung Mo to
keep the 2002 will carefully. Mr Ng was the head of the Sales and Letting
Department of the group. He was a long term employee of the group, having
been employed since 1970. Nina Wang never told him that the 2002 will was
no longer her last will or that it was no longer relevant or that it had been
superseded, still less by the 2006 will.
6. In 2004 Nina Wang was diagnosed with stage IV terminal cancer;
she eventually succumbed to that disease and died on 3 April 2007.
Immediately after her death, the first defendant caused to be produced what he
said was her last will, namely the 2006 will. It was the first defendant’s case
that he and Nina Wang had been lovers for a very long time and that she had
treated him as her husband. It was the first defendant’s case that Nina Wang
had wanted to leave him all her estate and had wanted to make him a board
member of companies in the group in her lifetime. It was said that Nina Wang
had given the first defendant the 2006 will together with an unsigned version
(which had a slight difference in wording), in an envelope, in the evening of the
day it had been signed and told the first defendant to keep it secret. The first
defendant said that he had shown it to his wife 2 days later and, thereafter, kept
the document and not shown it to anybody until it was revealed in what appears
to have been little less than a deliberate blaze of publicity immediately
following Nina Wang’s death.
7. It was said on behalf of the first defendant that the 2002 will was
simply a charade, made at a time when Nina Wang was under considerable
pressure because of the litigation and threat of prosecution over Teddy Wang’s
will. It was alleged that the purpose of the 2002 will and of making donations
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to various Chinese entities was to seek assistance in the outcome of that
litigation.
The findings in the court below
8. The judge considered the evidence and the arguments in the case in
meticulous detail. It has to be observed that on a number of occasions in the
judgment the judge repeated that he was forced to the conclusion that the first
defendant was untrustworthy and a liar, tailoring his evidence to suit his case as
he went along. One aspect that also clearly impinged on the judge’s mind in
that regard, as he mentioned it more than once, was a Georgetown University
document which referred to the first defendant as having received a university
education in Canada in biological engineering. That was false and the judge
held that the first defendant had connived in the false pretence.
9. As part of the background, the judge held that Nina Wang’s
charitable works and her desire to help those in need started well before the
litigation involving Teddy Wang’s will. Furthermore, it had continued
afterwards. There had already been worldwide recognition of Nina Wang as a
philanthropist well before the 2002 will was executed and became widely
known. After the litigation in respect of Teddy Wang’s will had finished she
remained enthusiastic about the work of the plaintiff. There was nothing to
show that the plaintiff had become irrelevant in her eyes. Quite the reverse.
Just a few days before she died, 3 of her relatives had been appointed governors
of the plaintiff. The judge rejected the suggestion that the 2002 will was a
“public image enhancement exercise with a view to procure support in her
probate litigation”.
10. Although the first defendant gave evidence to the effect that he was
not a fung shui master and had little knowledge about the subject, the judge had
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no doubts when rejecting those assertions as disingenuous. On the evidence,
the judge found that the first defendant was known to be a fung shui master and
that he had been introduced to Nina Wang as such. The first defendant himself
admitted that Nina Wang had expressed an interest in securing his fung shui
services in order to locate Teddy Wang. Apparently fung shui rituals were
performed by him for Nina Wang soon after they knew each other. Moreover
the first defendant continued to perform the function of a fung shui master and
provide services to other clients even after he had come to know Nina Wang.
11. The judge found that the first defendant impressed Nina Wang that
his fung shui methods might succeed in locating Teddy Wang. Around May or
June 1992, holes were dug for the first time. The judge held that the
hole-digging exercises were part of the first defendant’s fung shui services.
Hole-digging had, on the judge’s finding, started before the development of any
intimate relationship and the fung shui purpose of the activity was “real rather
than ostensible” as there was no other apparent purpose for digging the holes
supervised, as those operations were, by a fung shui master. One of the
matters clearly linking the digging of holes with an attempt to locate
Teddy Wang was that they were dug in Ap Lei Chau where his car had been
found after his disappearance. As will be noted below, the hole-digging
recommenced some years later, not for the purpose of locating Teddy Wang but,
seemingly, to attempt to assist Nina Wang in overcoming cancer.
12. The first defendant also located a temple, purportedly with good
fung shui, so that Nina Wang could pray for the return of Teddy Wang there.
The judge said that was the reason for the boat trips, namely to locate a suitable
temple.
13. Despite the first defendant’s assertions that his relationship with
Nina Wang was an intimate one, based on affection, with the first defendant
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providing “massage” services and not fung shui advice, the judge held that any
intimate relationship did not start until September 1992. In doing so he
rejected the first defendant’s evidence as to how the relationship had rapidly
developed after their first meeting.
14. It is noteworthy that right up until Nina Wang’s death, her
relationship with the first defendant was kept secret. The word clandestine has
been used and the judge referred to the relationship as being surreptitious and
lacking in permanency. These observations appear to be amply justified on the
evidence. The first defendant was married and he and his wife had three
children. Albeit it would appear that the first defendant was unfaithful to his
wife, probably from the beginning of the marriage, the children were born
between 1993 and 1998. Despite the attraction to Nina Wang and his
involvement with her, he spent his birthdays, summer and Christmas with his
family. His evidence was that Nina Wang understood that they would not
marry and she understood his need to be with his family. The judge concluded:
“This was a man having a family in which she would not be a member.”
15. Up until 1999, the first defendant had received substantial gifts of
money from Nina Wang. It is said that the sums involved were upwards of
$720 million between 1993 and 1997. Despite that there was never any
suggestion that Nina Wang did not continue to further the interests of the
plaintiff, still less did she change her 2002 will.
16. During the course of the probate litigation Nina Wang stopped
seeing the first defendant. She was arrested in 2002 on suspicion of forgery
and she told the first defendant to destroy all the photos and videos of them.
This was done to avoid any attention being drawn to their relationship. The
first defendant said that they maintained telephone contact.
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17. After the conclusion of the probate action in respect of
Teddy Wang’s will, meetings between Nina Wang and the first defendant
resumed. That was, of course, after Nina Wang had been diagnosed with
cancer. Not only did they meet but there was a considerable amount of fung
shui related activity in which the first defendant was intimately involved and,
certainly, it was conducted under his supervision.
18. The judge gave careful consideration to and accepted Wong
Leung Woon’s evidence that in September 2005, Nina Wang had told him that
the first defendant would give him instructions in respect of hole-digging again
at Chinachem sites. In November 2005 the first defendant gave him
instructions about hole-digging at Chinachem’s Repulse Bay site. He was told
to dig as deep as possible. That happened just before the first defendant flew
to Boston to meet Nina Wang. After that, the first defendant supervised the
digging of more holes at other Chinachem sites. In June 2006, holes were dug
at Fanling Town Centre, the Chinachem Golden Plaza and at the L’Hotel in
August. The judge had no doubt on the evidence that these were done for fung
shui purposes. Thus it was quite clear that after Nina Wang and the first
defendant started seeing each other again in 2005, the first defendant again
acted as a fung shui master. In so doing the first defendant also gave
Nina Wang advice on such matters as her travel arrangements.
19. Mention must also be made of the 3 payments of HK$688 million
each that were transferred on Nina Wang’s instructions to Offshore Group
Holdings Limited. Effectively these were transfers to the first defendant. It
is unnecessary to dwell long on these. In the table entitled “ESCALATION
OF FUNG SHUI ACTIVITIES FROM NOVEMBER 2005 TO
OCTOBER 2006” appended to the amended supplemental respondent’s notice
there are set out details of Nina Wang’s deteriorating health which are
co-related to activities, in particular the digging of holes, and the payments of
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HK$688 million made on Nina Wang’s instructions to Offshore Group
Holdings Limited. The table demonstrates in a far more understandable way
than a narrative can, the correlation between those various matters. As
Nina Wang’s health deteriorated so the fung shui activities increased and at
each step a further payment was made. Joseph Leung, who was a senior staff
member of Chinachem and had been a governor of the plaintiff from 1990, was
so upset at the first of these enormous payments, seemingly made without
explanation, that he tendered his resignation.
20. Other payments were made that benefitted the first defendant. In
November 2005 Nina Wang had invested some £5 million in RCG Holdings
Limited, a company which the first defendant had set up. There was a further
investment of £15 million in May 2006 and, then, a yet further investment of
£30 million in March 2007 just prior to Nina Wang’s death.
21. On the face of the 2006 will it was signed by Nina Wang and
witnessed by a solicitor, Mr Winfield Wong and by Mr Ng Shung Mo.
Mr Wong clearly knew Nina Wang. His office was in the same building as
Nina Wang’s office in the Chinachem offices. Mr Wong and Mr Ng agreed
that they had witnessed a will of Nina Wang on 16 October 200, but, for reasons
which will be dealt with below, said that the document they witnessed was very
different from the 2006 will. Mr Wong was clear that the document he had
witnessed had been a partial will, giving a Mr Chan a bequest of some
$10 million. The judge examined their evidence very carefully. He came to
conclusion that the document attested to by them on 16 October 2006 was not
the 2006 will. Inevitably the 2006 will was thus a forgery. That was not a
conclusion reached lightly. The judge was fully conscious of the seriousness
of the matter and the implication of his findings. He only reached that
conclusion after he had taken into account not only the evidence but,
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importantly, all the submissions which had been made, specifically including
what were referred to as the 6 inherent improbabilities.
22. The judge also considered the question as to how the 2006 will
came to be prepared. He examined, very closely, the evidence relating to
Nina Wang’s health specifically in the period from 11 to 18 October 2006.
His conclusion was that she had been physically too weak to move up and down
the staircase leading to the lower level where she could have had access to the
lift. The evidence had been that between 14 and 16 October she had spent
most of the time sleeping or lying on her bed. He rejected the first defendant’s
evidence that she had been energetic at that stage. As a result, he came to the
conclusion that it would be absurd to consider that Nina Wang had prepared the
2006 will herself. Given the fact that nobody in Chinachem had prepared that
will, which was typed on a typewriter as opposed to having been produced on a
word processor, and given the fact that there was not even a copy of that will
found at the Chinachem premises when a concerted effort was made
immediately after her death to look for the document that had been signed on
16 October 2006, the only possible conclusion was that the first defendant must
have been responsible for preparing whatever document was signed on
16 October 2006 and the 2006 will.
23. Quite apart from that, the judge found that Nina Wang had never
deviated from her intention to leave her estate and the considerable wealth of
the group to the plaintiff.
This appeal
24. On this appeal Mr Mill QC, who appeared on behalf of the first
defendant took two major points. Relying on the statements made in the
judgments of the Court of Final Appeal in HKSAR v Egan FACC 3-5/09,
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28 June 2010 and in Nina Kung v Wang Din Shin, his first submission was that
the judge had not evaluated the evidence by reference to the inherent
probabilities and improbabilities before making any factual findings. His
second major point was that the evidence given at the trial did not justify the
factual conclusion that the 2006 will was a forgery.
25. The short answer to the first point is that the judge clearly did take
into account the inherent improbabilities which had been stressed on behalf of
the first defendant. Not only did he say so at various parts of his judgment
(see, for example, paragraphs 91, 212, 223-228, 275, 300, 371 and 876) but the
fact that he had given, what in our view was, more than ample coverage and
reference to them in paragraphs 841 to 876 of his judgment is clear. The fact
that the detailed analysis of the 6 so termed inherent improbabilities came
towards the end of the judgment was merely a matter of presentation. It is
clear from the way that the judge dealt with all the issues that he was very
conscious of the submissions that had been made and the seriousness of the
findings to which he came.
26. Once it is established that the judge did take the 6 inherent
improbabilities into account, there is no error which this court is in a position to,
or can, correct. The 6 inherent improbabilities are factors which have to be
weighed. What weight the judge gives to each factor is a matter essentially for
the judge to decide in making his findings of fact. So long as he did take them
into account it is not for this court to interfere and say that he should have given
more weight or less weight to any specific point.
27. The primary submission underlying many of the points made on
behalf of the first defendant was that the judge had not recognised in his
findings that Nina Wang loved the first defendant deeply. It was said that the
judgment was tainted because the judge was morally offended by the fact of the
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relationship between Nina Wang and the first defendant. It was said that given
Nina Wang’s other payments to the first defendant the suggestion by Mr Wong
that the document which he had signed related to a gift of some $10 million was
absurd. It was said that such a sum would have been derisory. It neither
reflected the affection which Nina Wang held for the first defendant nor was it
understandable in terms of the further payment of $688 million which was paid
a few days after 16 October 2006. These are matters which the judge clearly
did take into account but, as already noted, whatever relationship with and
feelings that Nina Wang had for the first defendant, they existed in the light of
the fact that the first defendant was, and always would be, only a lover who was
married to another woman. As to the disapproval that it is said that the judge
had for the relationship between Nina Wang and the first defendant which the
first defendant had been so keen to emphasise in his evidence, it would be
surprising if the judge did consider it morally acceptable. However, there is no
ground for saying that coloured his judgment.
28. The difficulty of forging a will, the risks taken by the first
defendant in so doing and the likelihood of being discovered are all matters
which the judge had in mind and took into consideration.
29. The most important finding of fact in our view related to the
evidence of the attesting witnesses. At the risk of repetition it can be
mentioned that it is the first defendant’s case that after the 2006 will had been
signed and witnessed it had been given to the first defendant and he had kept it
secret apart from showing it to his wife 2 days later.
30. It appears from a letter, which is referred to on day 4 p. 19 of the
transcript, that shortly after Nina Wang died, Mr Midgley, the solicitor who
previously acted for the first defendant, contacted counsel, Mr Sujanani, to
request a meeting. One of the express purposes of that meeting proved to be
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for Mr Midgley to pass to Mr Sujanani a copy of the 2006 will for onward
transmission to the plaintiff and Nina Wang’s relatives. The letter states that
the meeting took place on 6 April 2007, although from the evidence of
Nina Wang’s youngest sister, Mrs Tong and from Mr Sujanani’s fee note it
appears that it took place on 5 April 2007.
31. From the evidence given at trial it is clear that there was a meeting
on 7 April 2007 which commenced at about 2.30 p.m. at L’Hotel in Causeway
Bay. That is a property which is owned within the group. There appear to
have been a large number of people at that meeting including relatives of
Nina Wang, other personnel connected with the group, Mr Sujanani and
Mr Winfield Wong.
32. Mr Wong gave a short account of that meeting which was,
evidently, held in a suite in that hotel because, as Mr Wong explained,
Mr Sujanani frequently went into the other room to make telephone calls. At
some stage Mr Sujanani asked Mr Wong whether he would be prepared to make
a statement, to which Mr Wong agreed. The party then went back to the
Chinachem premises where Mr Wong spoke to Mr Sujanani in one of the rooms.
Mr Sujanani wrote out a statement in long hand which was then given to
somebody else to type. It is clear that the meeting had been lengthy; Mr Wong
said that because it was getting late some food had been brought in. Mr Wong
read the typed statement and made a few typographical corrections to it. He
explained throughout his evidence that although there were minor discrepancies
and matters which he would have liked to have been able to consider in more
detail, the crucial parts of the statement were correct. Those included the fact
that, at the time when he had read the will that he witnessed, he had observed to
Nina Wang that it was only a partial will. He had seen that it contained a
specific bequest of money and it did not deal with the residue or remainder of
the estate.
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33. There does not appear to be any dispute to the fact that Mr Wong
had said at the time that it was only a partial will. It was Mr Wong’s evidence
that, when he did observe that, Nina Wang said that she was aware of it.
Mr Ng said that he remembered Mr Wong saying at the time that it was a partial
will. He said that a few days later he had specifically asked Mr Wong about
that and then on a Saturday, after Nina Wang had come back from hospital, he
asked her why she had made a partial will in addition to the 2002 will. Nina
Wang told him, “Don’t bother so much. I am fine. Just concentrate on your
work and do it properly.”
34. Mr Wong was clear that before he signed the statement on 7 April
he had confirmed with Mr Sujanani that it would be in order to make minor
corrections. He considered that he was simply giving a statement and what
would be important would be his evidence in court, if any. It was for that
reason that he was not concerned with whether, for example, the statement said
that he had been asked to go upstairs to see Nina Wang to sign a document or it
should, more correctly, have stated that he had been asked to go to see
Nina Wang and when he got there he became aware that the reason for the
request was for him to sign a document. It also has to be observed that
Mr Wong was understandably anxious not to stay at the meeting longer than
was necessary. It was getting late on Easter Saturday which, as Mr Wong
recalled, was also a public holiday.
35. The judge observed that Mr Wong had been extensively and
skilfully cross-examined. Two matters emerge very clearly from the transcript
of his evidence. In the first place Mr Wong was very careful in his evidence to
try to be precise as to what he actually remembered and what he did not
remember. In respect of those occasions when he was uncertain as to the
timing of events, specifically as to meetings with the plaintiff’s lawyers,
Mr Wong said that he might be confused. When it was suggested to him that
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some things could or might have happened, he was careful to say that he was
giving evidence as to what he remembered and he specifically avoided, in our
view correctly, addressing hypothetical questions.
36. Although Mr Wong readily conceded that the signature on the
2006 will looked like his signature, given the fact that he had only witnessed
one will of Nina Wang, if the 2006 will clearly differed so much from the will
which Mr Wong had witnessed, the conclusion had to be that the 2006 will had
a forged signature of Mr Wong. Whatever the circumstance, the suggestion
that a will had been forged would clearly be a serious matter. It would be an
allegation which any lawyer would be extremely wary of making. We have no
doubt that any lawyer would test the reliability of the suggestion that a will was
forged very carefully before making it his case and would look for other
possible explanations before basing a case on forgery.
37. It appears that Mr Sujanani had a conference with Mr Wong on
12 April 2007 at which Ms Fanny Cheng, a solicitor from Deacons, was also
present. Ms Cheng’s note of the meeting became available during the course
of the trial and there is no note taken by Mr Sujanani. Ms Cheng’s note at
paragraph 2 is that Mr Wong could not recall whether he had been told initially
why Nina Wang wanted to see him and whether the request was to witness a
document. At the meeting on 12 April, there clearly must have been some
discussion as to whether Mr Ng was in the room when Mr Wong arrived to
witness Nina Wang’s signature and as to where he had been standing.
Importantly, the note continues that Mr Wong said he had a quick glance at the
document that he had been asked to witness and that he had told Nina Wang
that it was a partial will and that she had said that she knew that. It was then
said that Mr Wong had said that it would be better for her to instruct a solicitor
to prepare a complete will and she said that she would deal with that later.
Mr Wong is recorded as saying that he printed his name on the document and
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put the stamp on it, although he did not have his personal stamp. He is
recorded as saying that he could have stamped it upside down. He was certain
that he had only signed one document for Nina Wang that day.
38. On the day following the conference, namely 13 April 2007,
Mr Sujanani sent a draft statutory declaration to Mr Wong by e-mail. In
paragraph 2 it is stated that Mr Wong said that he believed that he had brought
his firm’s chop as it was his usual practice when requested to attend to the
execution of documents outside the office. In paragraph 8 it is stated that
Mr Wong noticed that it was only a partial will or codicil as it only dealt with
the residue or remainder of Mrs Wang’s estate and not the entirety of her estate.
Paragraph 9 states:
“I then confirmed with Mrs. Wang as to whether this was her document. She replied in the affirmative. I then brought to her attention that it was only a partial Will as it only dealt with the residue or remainder of her estate. I clearly recall using the words “partial will” in English.”
39. Paragraph 18 of the draft statutory declaration goes further and
states:
“Having read Document A (i.e. the 2006 will), I have the following comments to make:
(1) I believe that this was probably the document that I had witnessed in late 2006 in the presence of Mrs Wang and Mr Ng Shung Mo, although I note that there is no provision made in Document A in relation to a gift of a sum of around HK$10 million to a Mr Chan. This is a matter I recall from the document which I had witnessed in late 2006 at the request, and in the presence, of Mrs Wang and Mr Ng Shung Mo.
(2) Document A deals with the residue or remainder of Mrs Wang’s estate. This is consistent with the document I had witnessed in late 2006 where, having read the document I specifically raised with Mrs Wang my concerns that it was only a partial Will, as it dealt only with the residue or balance of her estate and did not deal with the entirety of her estate and her agreement to, and knowledge of this.”
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40. Later on there is also a statement that Mr Wong recalled having
once used his firm’s chop upside down on the execution of the document.
41. On 17 April 2007 Mr Wong sent an e-mail to Mr Sujanani which
was terse. It simply stated that having considered the matter he considered that
the statement made on 7 April was sufficient. At the trial Mr Wong was clear
that it was not his usual practice to take only one chop when he left the office.
If he knew that he would be required to sign a document he would take both the
firm chop and his own. He therefore doubted that he had taken the chop. His
evidence was very clear that he had never indicated that the document which he
had witnessed dealt with the residue or remainder of Nina Wang’s estate.
Indeed, his evidence was that he had all along made a clear distinction between
a partial will and a codicil.
42. In the closing submissions on behalf of the first defendant, the
major points, which were repeated on this appeal, were that Mr Wong’s
evidence was unreliable even to the extent that he had tailored it in order to
benefit and support the plaintiff’s case. Much of the criticism was based upon
a comparison of what Mr Wong had said in his statement of 7 April and what
was contained in the drafts produced by Mr Sujanani, in particular that attached
to his e-mail of 13 April. In this respect it has to be observed that Mr Wong
appears to have been steadfast and there is nothing either in what he said orally
or in his conduct from 7 April onwards which would indicate that he accepted
the revisions to his statement which Mr Sujanani had inserted into the drafts for
a statutory declaration. He explained that many alternatives had been
suggested to him but that he had not accepted them; the fact that they had found
their way into the drafts for a statutory declaration was not of his making. His
way of dealing with it was simply to say that he adhered to his statement of
7 April because he did not want to prolong any further discussions but simply to
adhere to what he knew to be the truth. Mr Mill repeated the submissions
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which had been made in the court below that Mr Sujanani had correctly
recorded what Mr Wong had said, in particular with regard to the residue and
remainder. The judge clearly considered those arguments and rejected them.
It is to be observed that the judge had himself raised the possibility of
Mr Sujanani being called as a witness. Mr Sujanani was not called as a
witness and the judge took that into account in assessing Mr Wong’s evidence.
43. In a passage in his judgment which took some 44 pages the judge
meticulously examined Mr Wong’s evidence. In our view he did so extremely
fairly and thoroughly. He took into account the criticisms which had been
made and the suggestions which had been made and he certainly appreciated the
improbabilities on which the first defendant so heavily relied.
Notwithstanding that, the judge came to the clear conclusion that he accepted
Mr Wong’s evidence. We have no doubt that he was right to do so.
44. As noted above, the other attesting witness to the document signed
on 16 October 2006 was Mr Ng Shung Mo. Although there were some
discrepancies between his evidence and Mr Wong’s evidence these were, for the
most part, in relation to trivial matters such as who was standing where and
whether Mr Ng was in the room when Mr Wong arrived.
45. The only major difference between the two witnesses who attested
the document on 16 October 2006 was as to whether Nina Wang had signed the
document in Mr Wong’s presence and hence, also, in Mr Ng’s presence. The
judge came to the conclusion, again, in our view correctly, that Nina Wang had
signed the document when she was in the room together with the two witnesses.
46. It is clear from the scientific evidence, which is not disputed, that
the signature purporting to be that of Nina Wang on the 2006 will was signed
over a crease in the paper. Mr Ng said in his evidence that Nina Wang had
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come into the room holding the document folded without it being creased, in
other words with the top and bottom looped together. It is significant in this
respect that Fanny Cheng’s note of the discussion with Mr Ng on 10 April 2007
records precisely that. There is a small diagram in her notes showing that.
Two matters may be observed in respect of this. First that Miss Cheng’s note
was not available when Mr Ng initially gave evidence and secondly that it was
not known in April 2007 when Mr Ng had the meeting with Ms Cheng that
there was any significance in the fact that the paper was folded but not creased.
The fact that the signature had been written over a crease was not discernible by
the naked eye but was only revealed very much later when scientific tests were
carried out on the document.
47. The judge came to the clear conclusion that Mr Wong’s and
Mr Ng’s evidence proved that the document attested to by them on 16 October
2006 was not the 2006 will. In our view that was a finding that the judge made
after the most careful and painstaking examination of the evidence and in full
consciousness of what were submitted on behalf of first defendant to be the
inherent improbabilities. He was not merely fully justified in making such a
finding, but that finding is in our view unassailable. That finding alone would
debar the first defendant succeeding in this case and, furthermore, it was made
in the full appreciation of the fact that it carries with it the inevitable conclusion
that the first defendant has put before the court a forged document in his quest
to secure Nina Wang’s enormous fortune.
48. One further matter which should be mentioned is that the first
defendant produced, with the 2006 will, a copy, which was also typed, but the
wording differed from the 2006 will in that it had the word “my” before the first
defendant’s name. The point to note in respect of that document is that the
scientific examination showed that it had the impression of the 3 signatures, i.e.
Nina Wang’s, Mr Wong’s and Mr Ng’s, in exact register with those in the 2006
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will. Again, that was a matter that was only revealed when scientific tests
were carried out on the document. The judge accepted Mr Ng’s and
Mr Wong’s evidence that there had been only one piece of paper when they
witnessed the will on 16 October 2006. Despite suggestion that there were 2
documents and the unsigned document was underneath the 2006 will, that was
only a hypothesis put forward that had no support in the evidence. It would
have been highly unlikely that 2 pieces of paper could have been kept in exact
register when being passed around for signature by 3 different people. Clearly
it is far more understandable that when the 2006 will was prepared there was a
discarded draft underneath. That document may well have been discarded
because it had the word “my” which was omitted from the 2006 will.
49. The conclusion that the 2006 will was a forgery is one that follows
from the judge’s findings in relation to the attesting witnesses.
The handwriting evidence
50. In considering the genuineness or otherwise of the signatures of
Nina Wang and the attesting witnesses Ng Shung Mo and Winfield Wong on
the 2006 will, the judge heard expert evidence. He concluded that the
Nina Wang signature was a highly skilled simulation and that the
Winfield Wong signature was not genuine. While Mr Mill challenged those
conclusions, he considered the expert handwriting evidence to be a matter of
“subordinate importance” on the first defendant’s appeal.
51. The plaintiff’s expert was Mr Radley. Initially the first
defendant’s expert was Dr Giles but after her draft written report dated
29 March 2009 became available, the first defendant applied for and obtained
leave (for the Reasons handed down on 15 May 2009) to adduce at trial the
expert handwriting evidence of Mr Westwood. Nevertheless, the draft report
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of Dr Giles and the notes recording the communications between Dr Giles and
the lawyers acting for the first defendant formed part of the evidence. As a
piece of admissible evidence the weight to be attributed to it and its relevance
(given the absence of cross-examination) are essentially matters for the judge.
52. Mr Mill’s main criticisms were directed at the judge’s adoption of
Mr Radley’s approach. It was said that Mr Radley had made fundamental
errors of principle, rendering his conclusions ‘irrational and unscientific’ and,
further, that his approach was contrary to the applicable principles of
examination and comparison as stated by the Court of Final Appeal in Nina
Kung v Wang Din Shin (2005) 8 HKCFAR 387, paragraphs 22 - 27.
53. Mr Mill criticized Mr Radley for (1) equating “rarities” with
“differences”; (2) excluding known samples extracted from some of
Nina Wang’s hospital records; and (3) his “no-lose” argument. There were
other criticisms as will become apparent. In addressing Mr Mill’s criticisms,
some of the terminology used in handwriting identification and their relevance
require elaboration.
54. Paragraphs 67 - 68 of Mr Radley’s Finalised Report provide a
convenient starting point:
“67. The basis of any handwriting comparison is to take a number of handwritings of known authenticity and firstly, intercompare each of these, within themselves, and establish how that individual varies his/her handwriting from occasion to occasion with respect to each and every minute feature. Having established the ranges of variation for all of these features for each letter form etc, the corresponding characteristics in the questioned handwritings are then compared with these ranges of variation to see if each of the corresponding features of the questioned handwriting falls within the range of variation of the known writings (‘a similarity’) or are outside that range (‘a difference’).
68. The presence of fundamental (i.e. basic) differences between known and questioned entries in the way the pen is made to move in the construction of particular letters or numeral forms may be
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indicative of different authorship. An accumulation of such differences makes different authorship more likely. An accumulation of significant similarities (whilst there is an absence of differences of significance) will be indicative of the counter argument i.e. documentation of common authorship …”
That explanation of accepted definitions of “similarities” and “differences” is
not controversial.
55. Other terminology used include “rarities” and accidentals”. A
“rarity” is a feature that occurs not through accident but during the normal
writing process that is rarely or seldom to be found in the specimen signatures
of known authenticity. An “accidental” is a very unusual occurrence of a
feature. It may be the result of an external influence. The cause may or may
not be known. On most occasions one would not know simply by looking at
the writing what is an accidental and what is a rarity. While a rarity may not
be as rare as an accidental, Mr Radley considered that “accidentals” and
“rarities” tend to merge and that one cannot necessarily differentiate between
them. As the judge noted in paragraph 596, the upshot of Mr Radley’s
evidence on that issue which the judge implicitly accepted was that accidentals
form a subset of rarities. (See transcript, day 21, pp. 75 – 78)
56. As explained in paragraph 68, similarities that are not significant
have no relevance for identification purposes. The assessment of
‘significance’ necessarily involves a value judgment and to a degree is
subjective. But the presence of similarities per se is not sufficient to lead to a
conclusion of identity where there are significant differences that remain
unexplained. That is a proposition as to which the experts do not differ: see
paragraphs 504, 535 (a) and 710 of the judgment and the following extract from
the transcript of Mr Westwood’s cross-examination:
“ Q. This is on the topic of similarities which are noted between the known and questioned signatures.
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Do you accept that the presence of similarities are, of course, matters to be taken into account, the nature and the number of similarities noted become part of the exercise of assessment, but that you may have many similarities, yet because of the presence of significant differences, you will not be able to arrive at a conclusion of identity. Do you accept that?
A. Yes, in general terms.
Q. You also accept that the presence of unexplained significant divergences, or differences, can be highly indicative of forgery?
A. Could be.
Q. You must have in your experience, in the actual cases that you have handled, reached conclusions supporting forgery -- that is evidence of forgery -- notwithstanding the presence of large numbers of similarities.
A. Yes.”
(transcript, day 23, p. 97 l. 22 – p. 98 l. 16)
57. Contrary to Mr Mill’s submission, it is also entirely consistent with
Chan PJ’s statement in paragraph 26 of Nina Kung that:
“…the absence of fundamental differences (as opposed to trivial differences) together with the presence of a combination of a sufficient number of similarities with individual qualities and characteristics can form the basis of a conclusion that the signature is genuine.”
Osborn, Questioned Documents, (Second Edition, 1929) 245 is to the same
effect.
58. But the experts disagreed on what could constitute a fundamental
or significant difference. Mr Westwood considered that a feature that occurs
within the range of variation is a “similarity” and thus cannot be considered a
fundamental difference. Further, the fact that such a feature falls outside the
range of variation does not necessarily make it a fundamental difference. (See
Westwood’s Preliminary Report paragraph 36) On Mr Westwood’s analysis, a
rarity can never be a fundamental or significant difference. That issue is dealt
with in paragraphs 72-76 below.
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Comparison signatures
59. The rarity value of a particular feature can actually be worked out
by reference to the number of specimen signatures. In this connection,
mention should be made of the size of comparison signatures. It is stated in
Osborn, at p. 27 that “[i]t is not often helpful to use more than twenty-five to
seventy-five signatures except in unusual cases”. Different authorities support
different numbers of comparison signatures ranging from a dozen to 40
comparisons. Mr Radley’s evidence (day 21, p. 90) was that his ‘standard
request’ is for 15 to 20 which fall within the range of a dozen to 40 and that
normally a document examiner would work off 20, 30 signatures. 50 would be
“very unusual”.
60. For the Nina Wang signature, altogether 135 specimens were
presented to the experts. Mr Radley agreed that 81 of those were acceptable as
comparison signatures while Mr Westwood used all 135. The difference of 54
specimens includes 42 ‘hospital signatures’ extracted from hospital records and
which Mr Radley considered to be inappropriate specimens. Mr Mill’s second
criticism is directed at Mr Radley’s exclusion of these 42 hospital signatures.
For convenience, we will address this criticism first.
61. It is to be noted that these 42 hospital signatures were not the only
hospital signatures. Of the 135 specimens, altogether 45 were hospital
signatures. Mr Radley accepted 3 of the hospital signatures as appropriate for
comparison purposes “by reason of their execution with good control”. They
were 3 out of a total 5 hospital signatures made on 18 October 2006, two days
after the date of the 2006 will. The 42 hospital signatures rejected included the
other two hospital signatures executed on 18 October 2006 which Mr Radley
considered showed poor pen control. In the circumstances of the present case,
the litmus test for Mr Radley was good pen control, it being common ground
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that the questioned signature was “well-controlled”. Indeed, Dr Giles opined
that it was “clearly firmly written”. Further, comparing like with like is a
cardinal principle in handwriting examination.
62. The judge dealt with this issue in paragraphs 539 to 569. In
preferring and accepting Mr Radley’s opinion, the judge did not disregard
Mr Westwood’s evidence relating to the purpose of using non-agreed hospital
signatures for comparison. Contrary to Mr Mill’s submission, the judge did
not fail to appreciate that Mr Westwood’s use of the non-agreed hospital
signatures was to demonstrate the range of variation. In Mr Westwood’s view,
they could show “relationships, ratios, comparative heights and sizes”
notwithstanding the obvious loss of pen control in their execution.
63. Faced with the competing views, the judge tested the
appropriateness of the specimens identified by Mr Westwood by reference to
many of the features of the Nina signature. Putting it mildly, the judge was not
impressed by Mr Westwood as a witness nor by his evidence. That is clear
from the judge’s observations at paragraphs 546, 552 and 565. In
paragraph 569 the judge remarked:
“By including deteriorated signatures inappropriately in constructing his range of variations, Mr Westwood has distorted the overall picture …In so far as he drew support from these inappropriate specimens (the inappropriateness of which I found to be so obvious that could not have escaped him) Mr. Westwood in effect created an impression that he had a stronger base to build his positive opinion than he, as an impartial expert, should put forward.”
64. The judge rejected Mr Westwood’s evidence. He was not
persuaded that the use of deteriorated signatures for comparison purposes was
appropriate. Dr Giles had observed that Nina Wang’s signatures written from
September 2006 onwards demonstrate considerable variation. She noted that
signatures apparently made on the same date (namely, 18 October 2006) can
have very different appearances. At pages 24 to 25 of her draft report,
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Dr Giles remarked on the fact that two of the signatures made on 18 October
(being those Mr Radley had rejected) show “inferior fluency compared with the
other signatures made on the same day” and that there was a “general pattern”
of signatures written on hospital documents being inferior in fluency to
signatures on other documents made elsewhere but at a similar time. Dr Giles
was of the opinion that Nina Wang’s “medical treatment had a distinct
affect (sic) on her handwriting”, that the hospital signatures were “atypical” and
that “the effect of her medical treatment appeared to be in the loss of pen
control and the increased lightness and lack of definition of the components of
her signature”.
65. Dr Giles’ observations reinforced the judge’s conclusion derived
from his meticulous evaluation exercise. It was clearly open to the judge to
decide that Mr Radley was correct in excluding 42 of the hospital signatures.
Mr Mill has not demonstrated in what respect(s) the judge had erred. We find
no merit in Mr Mill’s second criticism.
66. In relation to the Winfield Wong signature, Mr Mill asserted that
the range of Winfield Wong signatures available to the judge comprised only 9
and not 34 specimens. The judge was criticised for using all 34 specimens
presented in ascertaining the rarity value of each of the features of that signature,
thus rendering invalid his conclusions on rarity values. The 34 specimens
included 20 that had been written on a single occasion for use by the experts, 4
reproduction signatures or copies, one (specimen P-5) executed during the trial
by way of demonstration and 9 executed during the course of business covering
the period from 2002 to 2006. According to Mr Mill, 25 of the specimens
(comprising the 20 ‘made to order’ specimens, the 4 reproductions and P-5)
have no value for comparison purposes and should be disregarded altogether.
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67. While the weight to be given to the 25 specimens (including the 20
‘made to order’ specimens) is one matter, to dismiss all of them as having no
relevance is quite another. In his Second Supplemental Report of 12 June
2009 (paragraph 22) Mr Radley considered the availability of the signatures
made during the course of business (i.e. the 9 signatures Mr Mill accepted)
“highly significant” in that they reinforced observations Mr Radley had made in
his Finalised Report of 23 March 2009 (based on the specimens presented,
limited to the 20 ‘made to order’ specimens and the 4 reproductions) and
confirmed that certain writing habits were ingrained. Clearly the specimens
Mr Radley had been presented with when he wrote his Finalised Report in
March 2009 were not irrelevant. It was open to the judge to accept
Mr Radley’s evidence. Mr Mill has not begun to show any error on the part of
the judge in using 34 specimens in ascertaining rarity values. In short, we
reject Mr Mill’s submission that the number of Winfield Wong specimens
available for comparison purposes was 9.
The “no-lose” argument
68. Mr Radley’s no-lose argument (being Mr Mill’s third criticism)
arises when the inter-comparison exercise shows that there are wide ranges of
variation in the signatures known to be authentic, particularly when there is a
very large number of specimen signatures. The following passage from the
judgment encapsulates the essence of the no-lose argument:
“534. …If the range of variations is so great that it is difficult to envisage a variation falling out of the range, the match is not significant for the simple reason that a match is inevitable and as such neutral for the purpose of checking whether the signature (s) or writing (s) are genuine.”
As Mr Radley explained in paragraph 31 of his Finalised Report, the larger the
extended range of variation (i.e. the target) for each particular feature of the
signature, the more likely errors in the copying process may be masked and fit
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within the large range of variation, albeit on the extremes of the range. Hence,
Mr Radley considered that no-lose features have no identification value. The
logic of Mr Radley’s proposition would appear to be self-evident. It also
accords with common sense.
69. Mr Westwood provided no substantive response to Mr Radley’s
argument. He merely reiterated that a match within the range of variation is a
similarity and, by definition, a ‘similarity’ is not a ‘difference’, much less a
fundamental or significant difference. But repeating the accepted definitions
does not demonstrate the correctness of Mr Westwood’s answer. Its
correctness has to be shown by demonstrating the appropriateness of the use of
deteriorated signatures for signature comparison purposes.
70. As already noted, the judge meticulously examined and tested the
appropriateness of the deteriorated hospital signatures as comparison signatures.
The exercise (at paragraphs 545 to 568 of the judgment) confirmed the validity
of Mr Radley’s no-lose argument and provided no support for Mr Westwood’s
approach. Mr Mill has not been able to show why the judge erred in reaching
the conclusion that he did.
Equating “rarities” with “differences”
71. Mr Mill criticized Mr Radley for equating “rarities” with
“differences”. The judge first referred to this criticism in paragraph 502 and
remarked on Mr Radley’s possibly infelicitous choice of wording. He
addressed the criticism at paragraph 596 et seq. When Mr Radley used the
word “differences” in relation to the features in the relevant signatures he had
identified, as explained in paragraph 39 of his Finalised Report, those
differences were
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“characteristics detailed being differently constructed in the questioned signature relative to the known signatures, or at least the vast majority of known signatures.”
In other words, the word “differences” as used by Mr Radley carried a special
meaning; it was used in the sense that the feature was different to the vast
majority of the large sample of genuine signatures rather than the accepted
definition of that term.
72. The rationale for according the word “differences” a special
meaning or, differently expressed, treating “rarities” as “differences”, appears in
paragraphs 31 - 38 of Mr Radley’s Second Supplemental Report. It was
considered in paragraphs 618 - 622 of the judgment. In circumstances where
the no-lose argument arises, Mr Radley’s view is that rarities, meaning
matching features found in a very small percentage of a large size of samples,
should not be regarded as similarities that have no significance. Rather, they
are “unusual characteristics not seen as the general writing habit of the writer”.
They become differences relative to the natural and normal writing
characteristics of the writer. Accordingly, such differences have a
considerable rarity value, particularly when an accumulation of such differences
is found within a single signature.
73. Provided the meaning is clear, it is difficult to see why the use of a
modified meaning instead of the accepted definition is objectionable per se.
The real question is the validity of what the judge (adopting the nomenclature of
Mr Mill) referred to as the Radley-Osborn statistical point (“the statistical
point”).
74. That point arose from Mr Radley’s opinion recorded in
paragraph 44 of the Joint Report:
“44. …Mr. Radley wishes to emphasise that his signature examination has resulted in weighing up the evidence of both
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similarities and differences. The similarities noted …are not considered by Mr. Radley to be significant due to their natures or the fact that most of these features fall within a large range of variation that often encompasses virtually any combination or permutation of element for any one particular characteristic. Whilst most of the features referred to as “differences” do show very limited numbers of corresponding characteristics within the extremely large number of samples presented, he considers they can not be assessed in isolation. The significance lies in the overall consideration of the signature in question in the light of the combination of these rare features. One does not expect to find a large number of rarities and accidentals, all produced in one questioned signature. Such a coincidental occurrence of such a large number of features he regards as highly improbable.”
75. Mr Radley elaborated on this when he gave evidence at trial. As
earlier noted, an accidental/rarity is a very unusual occurrence. Mr Radley
explained the effect when there is an accumulation of accidentals:
“ A. … If you see one or two accidentals in a signature, you do not jump in and say it is a result of forgery.
If you see three or four; five, you start getting a bit worried, perhaps -- and that is a generalisation. You go on up the ladder, 10, 11, 12.
15, then that is a point at which the accumulation--”
(transcript, day 21, p. 74 l. 21 – p. 75 l. 3)
Before he could complete that answer, Mr Radley was asked another question
but as noted by the judge (at paragraph 596) it is evident from his position as
stated in the Joint Report and his oral evidence that a point would be reached
when the accumulation would become significant.
76. While Mr Westwood considered the point valid on an individual
basis, he disagreed with Mr Radley on the effect of an accumulation of rarities.
As recorded by the judge in paragraph 522, Mr Westwood analogized
accumulation to the weaving of a tapestry, having “to bring together this string
of features …and weave it altogether in a very subtle pattern”. The judge
rejected Mr Westwood’s reasoning because it was relying on an accumulation
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of neutral features to come to a positive view. In our view, the judge was
correct in rejecting that explanation.
77. In paragraph 38 of his Preliminary Report, Mr Westwood dealt
with the likelihood of a forger managing to incorporate several rare features into
one signature. He considered the likelihood minimal. It is important to note
the premise of his conclusion: namely, that the forger had correctly copied the
rare features from a model signature. That was the judge’s understanding.
(See paragraph 604) Mr Westwood further opined that a combination of
relatively rare features cannot of itself provide support for a proposition that the
questioned signature is the product of simulation. Insofar as it is suggested in
paragraph 32 (2) of Mr Mill’s written submission that Mr Westwood “correctly
assumed” that the forger had produced numerous mistaken features but which
all happened to correspond with a few samples he had never seen, all of which
appear occasionally in genuine signatures, that has no evidential basis because
Mr Westwood never gave evidence to that effect. It was a thinly-veiled
attempt on Mr Mill’s part to resurrect his reformulation of Mr Westwood’s
premise stated above which reformulation the judge had rejected. (Judgment,
paragraphs 603 - 605)
78. We agree with Mr Chang SC that by definition a signature
containing many rare features is highly unusual and extremely unlikely to occur.
That is plain common sense. It is also supported by academic writings.
Osborn (pp. 230-232) provides support for this approach. Of particular
relevance is the following extract (from pp. 231-232):
“… Errors of commission consist in putting in what is not usual and habitual and, as has been pointed out, even though it may be possible to find in a sufficient amount of standard writing separate approximate examples of every unusual characteristic appearing in a questioned signature, those individual characteristics may be so rare that the combination of all of them in one signature is so improbable as to amount to very strong evidence of forgery.”
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79. As noted in Huber & Headrick, Handwriting Identification: Facts
and Fundamentals, pp. 64-66, Osborn also suggested a statistical basis to
handwriting examination by the application of the Newcomb rule of probability.
However he had overlooked the need to qualify the events as independent
events which is essential for the validity of the Newcomb rule. Huber &
Headrick are otherwise supportive of Osborn’s approach and consider that
statistical inference has a vital role to play in handwriting identification. They
espouse the ‘likelihood ratio’ which is a statistical means of testing a calculated
value derived from a statistical sample. The calculation is explained at p. 66.
80. Accordingly, we reject Mr Mill’s submission that an accumulation
of rare features in a questioned signature in fact made it more likely to be
genuine. We are of the view that the judge was correct in accepting the
validity of the statistical point.
81. It was also suggested that the statistical point is invalid because it
runs contrary to the guidance given by the Court of Final Appeal in Nina Kung.
The judge dealt with that submission in paragraph 602. Mr Mill has not shown
any error in the judge’s reasoning. We find no merit in the point advanced.
82. Finally, we turn to a point which did not appear in Mr Mill’s
written submissions nor in the first defendant’s Amended Notice of Appeal but
which was taken below and made orally on appeal. Mr Radley was asked a
number of questions based on specimen 66. They related to the existence of
other rarities in the specimen signatures. Mr Radley was castigated for
ignoring them. This line of cross-examination was an attack on the validity of
the statistical point.
83. The judge dealt with this matter in paragraphs 703-708 of his
judgment. He found that Mr Mill’s attempt to show other rarities by reference
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to specimen 66 was not a matter covered in any of Mr Westwood’s reports; it
was neither mentioned at the joint meeting between the experts or in the Joint
Report. The judge rightly dismissed the point, observing (at paragraph 705)
that:
“… No warning was given to Mr. Radley and those acting for the Plaintiff (not to mention the court) that this was coming. I must say this is wholly against the spirit and the terms of the expert directions. It is an ambush which has no place in modern litigation. Mr. Chang was entitled to object and he did object. Nobody can criticise Mr. Radley for declining to participate in such an exercise.”
84. In conclusion, we do not consider that any of the criticisms made
of the judge’s adoption of Mr Radley’s approach has any merit.
85. We now turn to consider Mr Mill’s challenge to the judge’s
findings and conclusions relating to the specific features of the Nina Wang
signature and the Winfield Wong signature.
The Nina Wang signature
86. Mr Radley initially identified 17 features in the questioned
signature that he regarded as significant, some of which had no matches and
some he considered as features that rarely occurred in the specimen signatures.
For ease of reference, the questioned signature with the numbered features is
reproduced below:
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87. Also for ease of reference, the judge’s findings in relation to the
features other than those conceded by Mr Radley as no longer significant are
summarised in the table below:
Feature number Description of feature Judge’s findings
(i) & (ii) The left-hand downward
stroke of the “N” and its
slightly angular turn to
traverse horizontally
The 2 features are
dependent and should be
treated as one
3 matches found out of 81
specimens
This is a “more
significant” feature
(iii) The rounded pen
movement before the right
hand upward stroke of the
“N”
3 matches found out of 81
specimens
This is a “more
significant” feature
(v) The relative proportion of
the “i” in “Nina” and the
subsequent looping
up/down pen movements
forming “na”
5 matches found out of 81
specimens
This is a “more
significant” feature
(vi) The “i” dot in “Nina” 2 matches found out of 81
specimens
This is a “more
significant” feature
(vii) & (viii) The “T”-bar in “T.H” The 2 features are in
substance one feature and
should be considered
together
No match found
This feature falls outside
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the range of variations,
though “less significant”
than the other features
mentioned
(ix) The downstroke of the “T”
and the mimicking full
stop next to it
This feature is relatively
prone to variations, not
helpful for the purpose of
identification or
non-identification
(x) The “H” in “T.H.” Not appropriate to split
this into 3 sub-features, as
the 3 elements are
combined to form the
whole character of “H”
No match found.
This feature is out of range
This is a “more
significant” feature
(xi) The slope of the initial
downstroke of the “W”
5 matches found out of 82
specimens
(xiv) The rhythm of “an” in
“Wang”, instead of the
mimicking pen strokes in
“an” and the stroke leading
to the top loop of “g” of
“Wang, the “an” was
written in a significantly
different manner with a
diversity of slopes
No match found
This feature is out of range
This is a “more
significant” feature
(xv) The top loop or eyelet of
the “g” in “Wang”
The top loop of the “g”
manifested itself in a great
variety of forms in the
specimens, not a very
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distinct feature and does
not add much to what
feature (xiv) already
demonstrates
(xvii) The stepped alignments of
the four components of the
signature
The specimen signatures
show a great variety in
pattern for this feature, not
a distinctive feature for the
purpose of identification or
non-identification
88. In reaching the above findings on the individual features, the judge
went through a most painstaking exercise in considering the expert reports
before him, the oral evidence given by Mr Radley and Mr Westwood over
5 days, and the lengthy written submissions of the parties. His detailed
analysis of the separate features runs from paragraphs 622 to 702 of the
judgment.
89. Even without undertaking the arithmetic calculation put forward by
the plaintiff using the formula in Huber & Headrick, pp. 64 to 66, the rarity
ratios for the features found to have matches (which ranged from 2 to 5 out of
81or 82) alone justify the common sense conclusion that it is unlikely that all
these rarities would occur at the same time in one single event.
90. The judge made a consolidated evaluation of all the evidence in
rejecting Mr Westwood’s conclusion that the Nina Wang signature was genuine.
He had considered the significant differences; the rarities, the respective rarity
ratio of each, the accumulation of rarities in the questioned signature; and the
additional features put forward as similarities by Mr Westwood. He gave due
weight to the rarities and the additional features of Mr Westwood, and in the
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end accepted Mr Radley’s opinion, which was shared by Dr Giles, that the
Nina Wang signature is a highly skilled simulation.
91. In attacking the judge’s findings on Mr Radley’s significant
features, the specific complaints made by the first defendant on this appeal are
only in respect of those features for which the judge had found no matches,
namely, features (vii) and (viii) as one feature, (x) and (xiv).
92. For features (vii) and (viii), it was submitted that the finding was
against the evidence of Mr Radley and Mr Westwood; that the judge rejected
the suggestion of Dr Giles that this feature may be explained by the fact that the
dash was written in the crease of the unfolded paper and reference should be
made to specimens 4 and 80; and that the judge failed to consider specimens 23
and 43b.
93. None of the above complaints is made out. The judge was
entitled to prefer the evidence of Dr Giles that features (vii) and (viii) should be
considered as one (it being common ground that the evidence in her report and
her comments on Mr Radley’s report was admissible) and equally he was
entitled not to accept her suggested explanation as to writing in the crease,
which he regarded as tentative and not pursued by either side with the experts
called. The judge had considered specimens 4, 80, 23 and 43b, and rejected
the suggestion that they or any of them could be regarded as a match for
features (vii) and (viii) considered as one, for the reasons given in
paragraphs 642, 558 and 557 of the judgment. Specimen 23 was one of the
deteriorated hospital signatures the judge regarded as an inappropriate
comparable in respect of feature (viii). There is no sufficient basis to interfere
with his finding.
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94. For feature (x), the complaint was that the judge adopted the
evidence of Dr Giles that this feature was outside the range of variations in the
specimens, contrary to the evidence of Mr Radley and Mr Westwood, who had
found some matches in the specimens as stated in their reports. The judge
rejected the matches put forward by Mr Radley and Mr Westwood because they
had wrongly split this into 3 features in their consideration. He agreed with
Dr Giles the specimens put forward did not have the long right-hand vertical.
There is no substance for this complaint.
95. The complaint in respect of feature (xiv) was again that the judge
had adopted the evidence of Dr Giles (who agreed with Mr Radley on this
feature), and that he had failed to deal with the first defendant’s arguments in
the closing submissions, including the criticism at paragraph 236 of the
submissions that Mr Radley’s insistence the “an” in “Wang” was arrhythmic in
the questioned signature but rhythmic in the specimen signatures was
incomprehensible when tested by comparing the 10 signatures by Nina Wang in
her corrective affidavit of 14 September 2006 (specimens 97a to j).
96. Dr Giles considered feature (xiv) as highly indicative of simulation.
The judge subjected this feature to a careful analysis in paragraphs 656 to 689
of the judgment and was critical of the evidence of Mr Westwood in avoiding
the real point in issue. The suggestion of Mr Westwood that Mr Radley was
shifting the goalposts from mimicking pen strokes to rhythm (apparently relied
on by the first defendant in closing submissions) was roundly rejected by the
judge.
97. It is correct that the judge did not deal specifically with the point
made in paragraph 236 of the submissions, although he had considered some of
the signatures in specimen 97, which were among the 8 examples put forward
by Mr Westwood for the first time in re-examination as showing the lack of
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rhythm and necessitated in Mr Radley being recalled. In such a lengthy
judgment, the judge could not be expected to deal with each and every point
raised by counsel. In any event, it was Mr Radley’s evidence that the
signatures in specimen 97 were all rhythmically executed. This was in answer
to Mr Mill’s contrary suggestion put to him in cross-examination.
Mr Westwood saw fit to include only 3 of the 10 signatures in specimen 97 (97a,
g and j) among his 8 examples showing the lack of mimicking and rhythm, and
the judge agreed with Mr Radley that none of them showed this feature. It is
hardly a valid ground for complaint that this specific argument was not
addressed by the judge.
The Winfield Wong signature
98. For the Winfield Wong signature in question, Mr Radley did a
similar exercise of identifying the features he regarded as significant. The
questioned signature with the numbered features is reproduced below:
99. The judge’s findings in relation to these features are summarised in
the following table:
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Feature number Description of feature Judge’s findings
(ii) The downstroke following
the initial “Y” (or “W”)
and the curve (or U-shape)
leading upward again
3 matches found out of 34
specimens
This feature is an
“independent rarity”
(iii), (iv) & (v) The “en” (or “in”)
structure immediately after
the initial “W”; feature
(iii) is the short initial
downstroke of the “n”, (iv)
is the lack of eyelet or loop
in the “n”, and (v) is the
wide gap between the “e”
shape and the “i” shape
All these features are
about the relative size,
shape and positioning of
the left side of the “n” and
should be considered as
one feature
No match found
This feature is a
“significant difference”
and an “independent
feature”
(vi) & (vii) The introductory stroke of
the “g” (or “f”) and the
slope of the upward pen
movement forming the
initial part of the loop
No match found
This feature is a
“significant difference”,
“fundamental difference”
and an “independent
feature”
(viii), (ix) & (x) The downstroke of the “g”
(or “f”)
Given the nature of the
feature and the wide range
of variation in the
specimens, this feature is
not of much assistance
(xi) & (xii) The “ee”-like structure The 2 features should be
considered together
because (xi) refers to the
structure being laboured
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and not fluent and (xii)
(referring to the relative
elevation of the 2 “e”s) is
relevant to the overall
structure
1 match out of 34
specimens
This feature is an
“independent rarity”
(xiii) The angular terminal
stroke of the “ee”-like
structure
1 match out of 34
specimens
This feature is an
“independent rarity”
(xv) The terminal stroke of the
“W”, the small hook
pointing towards 3 o’clock
1 match out of 34
specimens
This feature is an
“independent rarity”
(xxiii)(a) The lack of an
introductory stroke at the
left hand end of the
horizontal bar across the
“W”
No match found
This feature is a
“significant difference”,
“fundamental difference”
and an “independent
feature”
100. The detailed reasoning regarding the above features is found in
paragraphs 739 to 796 of the judgment. As before, the judge did a
consolidated evaluation of all the evidence, particularly bearing in mind the size
of the specimens. He found sufficiently persuasive evidence to reject
Mr Westwood’s opinion that the questioned signature of Winfield Wong was
genuine, and that there was sufficient evidence to support the opinion of
Mr Radley and Dr Giles that this signature is a highly skilled simulation.
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101. As in the Nina Wang signature, on this appeal the first defendant’s
challenge of the findings of the individual features is only in respect of those
features for which the judge found no matches, namely, features (iii), (iv) and (v)
as one feature, (vi) and (vii) as one feature, and (xxiii)(a).
102. The complaint in respect of features (iii), (iv) and (v) was that the
judge failed to deal with the first defendant’s arguments in the closing
submissions as to why that combined feature was not a significant difference, in
particular the comparison with the signature that Winfield Wong made in court
(specimen P-5).
103. The judge noted that features (iii), (iv) and (v) were considered
together by Mr Mill in his closing submissions. Viewed properly as one
feature, he did not think there was any match for it as the matches for the split
elements are more apparent than real when the initial part of the “n” is
considered as a whole. He specifically mentioned specimen P-5 which was
relied on in Mr Mill’s closing submissions and noted that this specimen was not
cited by Mr Westwood in his table. He was of the view that the initial part of
the “n” in P-5 and the whole “en” structure in this specimen is deformed and no
useful comparison could be made. In any event, features (iii), (iv) and (v)
should be considered as one and he did not attach too much significance to
feature (v) by itself. There is no substance in this complaint.
104. For features (vi) and (vii) combined, the first defendant’s argument
was that the judge was wrong to reject his contention in the closing submissions
why this combined feature should not be regarded as a significant difference.
105. It is unnecessary to repeat the salient points made in the closing
submissions which were set out in paragraph 753 of the judgment. Suffice it
to say the judge gave entirely convincing reasons in paragraphs 754 to 763 for
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rejecting Mr Mill’s contention that features (vi) and (vii) combined was not a
fundamental difference in the pen movement. On appeal, Mr Mill did not
advance any argument to persuade this court in what respect the judge had erred
in rejecting his contention, save to repeat and rely on his closing submissions
before the judge.
106. For feature (xxiii)(a), the first defendant advanced a similar
argument, that the judge was wrong in rejecting his contention in the closing
submissions why this feature was not a significant difference, and complained
that the judge did not address any of the examples relied on by counsel. The
salient paragraph in the closing submissions containing the theory advanced by
Mr Mill was quoted in paragraph 791 of the judgment. The judge gave
reasons in paragraphs 792 and 793 in rejecting that theory. Mr Mill did not
deal with the judge’s reasons to demonstrate to this court in what way the judge
was wrong.
107. There is plainly no sufficient basis for us to interfere with the
judge’s findings on the above features.
108. In any event, the argument advanced by the first defendant
regarding the judge’s findings of no matches for 3 of the features in each of the
Nina Wang signature and Winfield Wong signature does not advance his case.
Even if the judge had erred in finding no matches for all 6 features, these
features are still rarities in that they rarely occurred in the specimens. As
submitted by the plaintiff, assuming all these features were treated as rarities
instead, the inverse of the likelihood ratio would give odds in the region 1 in
tens of trillions (13-digit to 14-digit figures) for the Nina Wang signature and
odds in the region 1 in the billions to tens of billions (10-digit to 11-digit figures)
in the case of the Winfield Wong signature, using the formula in Huber &
Headrick.
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109. We, therefore, conclude that the judge was correct in his
assessment that the signatures purporting to be those of Nina Wang and
Mr Wong in the 2006 will were forgeries.
The respondent’s notice
110. Given the conclusions to which we have arrived, the points raised
in the respondent’s notice are for the most part irrelevant. We would simply
say that on the evidence as to Nina Wang’s consistent use of fung shui, there
must be some possibility that whatever document Mr Wong and Mr Ng
witnessed on 16 October 2006, it may well have been a fung shui will.
Without seeing the document, it would be impossible for any witness, still less
the court, to make any definite finding on the matter.
The appeal as to costs
111. There were 4 matters which were raised by the first defendant in
respect of costs. The first was that the judge should have made an issue based
costs order or a proportional costs order. The second was that the judge should
not have ordered that the plaintiff was entitled to its costs on an indemnity basis.
The third was that the judge should not have ordered that the costs of the
administrators pendente lite be paid by the first defendant. Finally it was said
that the second defendant’s costs should not have been ordered to be paid by the
estate and indemnified by the first defendant.
112. None of these matters had any merit. We approach this matter on
the basis, first of all that the order in respect of costs is very much a matter of
discretion of the judge. This court does not interfere with orders for costs
except in circumstances which would require this court to do so on the settled
principles relating to the exercise of discretion. By far the most important
point in relation to the costs in this case is that it would be scarcely imaginable
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that a court could do otherwise than order costs on an indemnity basis given the
findings of the judge. It was proved that the first defendant knowingly put
forward a forged will in the hope of securing for himself an immense fortune.
In doing so he told lies. That must on any footing be an egregious abuse of the
process of and an affront to the court. Any other order than costs on an
indemnity basis would be inconceivable.
113. The judge did make an adjustment as to the costs by depriving the
plaintiff of costs in respect of 2 witnesses relating to testamentary capacity.
Given the circumstances, that appears to be a fair way of dealing with the matter
where the first defendant has brought the matter on himself and on the face of
the matter was responsible for the plaintiff taking every point that was open to it.
Although this court was asked to somehow apportion the costs, no sound basis
on which this court should do so was proffered.
114. Citing Williams, Mortimer & Sunnucks, Executors, Administrators
& Probate (2008) paragraph 24-59 and referring to paragraphs 60 to 63 of the
Court of Final Appeal decision in Nina Kung v Wang Din Shin (No 2) (2006) 9
HKCFAR 800, the judge held that it is well settled that the liability for costs of
a probate action in general covers the charges of an administrator pending
determination of the action and the costs of the application for his appointment.
As the judge rightly stated, the fact an appeal was pending was nothing to the
point.
115. The judge held that it was reasonable and proper for the plaintiff to
join the Secretary for Justice as a party to this action. He did so for sound
reasons. The costs of the Secretary for Justice were kept to a minimum and in
the circumstances these were costs occasioned because of the first defendant’s
stance in relation to the 2006 will. In our view it was right that the judge
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should order that the costs of the Secretary for Justice should be borne by the
estate and the first defendant should indemnify the estate in that respect.
The application to adduce further evidence
116. The first defendant applied to adduce further evidence which
consisted of the fee notes presented by Mr Sujanani for the period from 5 April
2007 onwards. It transpired that the only matter sought to be relied upon was
the first page of the bundle which showed amongst other things the fees charged
in respect of the conference on 12 April 2007. The fact that 5 hours was
charged in respect of the conference does not necessarily reflect that Mr Wong
was with Mr Sujanani for the whole of that period, particularly as Mr Sujanani
clearly did drafting work after the conference, which was reflected in the entry
for the following day. Nevertheless, since this court was appraised of the
matter and since the entry in respect of the conference with Mr Midgley has also
been referred to, the admission of the first page of the fee note will be acceded
to.
Conclusion
117. In view of the foregoing, this court has no hesitation in dismissing
this appeal. The first defendant has persisted in pursuing a thoroughly
dishonest case. In doing so, he has abused the process of the court. The
court will hear the parties as to costs but will nevertheless give an indication
that in the absence of any argument as to costs the court would make an order
that the costs should be on an indemnity basis with a certificate for 3 counsel.
(Anthony Rogers) Vice-President
(Doreen Le Pichon) Justice of Appeal
(Susan Kwan) Justice of Appeal
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Mr Denis Chang SC, Mr Johnny Ma, Mr Jeremy Chan & Mr Willard Li, instructed by Messrs Wilkinson & Grist, for the Plaintiff/Respondent Mr Ian Mill QC, Mr Godfrey Lam SC & Ms Frances Lok, instructed by Messrs Reed Smith Richards Butler, for the 1st Defendant/Appellant Mr Richard Fawls, of Department of Justice, for the 2nd Defendant/Respondent on 13/1/2011