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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