A A

CACV 62/2010 AND CACV 101/2010

B B

IN THE HIGH COURT OF THE

C C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D COURT OF APPEAL D

CIVIL APPEAL NOS. 62 AND 101 OF 2010

E E
(ON APPEAL FROM HCAP NO. 8 OF 2007)
F F

G IN THE ESTATE OF KUNG, G

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

K BETWEEN K
CHINACHEM CHARITABLE Plaintiff
L FOUNDATION LIMITED L
（華懋慈善基金有限公司）
M and M

CHAN CHUN CHUEN（陳振聰） 1st Defendant

N N
THE SECRETARY FOR JUSTICE 2nd Defendant
O O

P Before: Hon Rogers VP, Le Pichon and Kwan JJA in Court P

Dates of Hearing: 10-13 January 2011

Q Q
Date of Handing Down Judgment: 14 February 2011
R R
JUDGMENT
S S

T T

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B B
Hon Rogers VP, Le Pichon and Kwan JJA:

C C
1. This is a joint judgment. Each member of the court has been
D responsible for initially drafting a part of this judgment. Nevertheless, the D

judgment is the considered judgment of all of us. This was an appeal from the
E E
judgment of Lam J given on 2 February 2010. The action before the judge was
F a probate action in which the plaintiff sought orders that the court should F

pronounce in solemn form the will of the late Nina Wang dated 28 July 2002
G G
(“the 2002 will”) in which the plaintiff is named the beneficiary and against the
H validity of an alleged will dated 16 October 2006 (“the 2006 will”) in which the H

I
first defendant is named the beneficiary. The first defendant asked for orders I
to the opposite effects. The judge found in favour of the plaintiff and against
J J
the first defendant, holding that the 2006 will was a forgery. He made orders

K
that the plaintiff should have their costs on an indemnity basis save that the K
plaintiff’s costs in relation to 2 experts who had been called in respect of
L L
testamentary capacity were ordered to be paid out of the estate. He made an

M order that the plaintiff should have 80% of its costs against the first defendant in M
respect of the hearing on 17 March 2010. There were other ancillary orders as
N N
to costs.
O O
Background
P P

2. The deceased, the late Nina Wang, had the title of the chairwoman
Q Q
of the Chinachem Group (“the group”). All the companies that were treated as
R part of the group are private companies and are, therefore, not listed on the R

stock exchange. Various estimates of the value of those companies and their
S S
interests have been given and figures in the region of $100 billion have been
T mentioned. The business of the group had been built up through the efforts of T

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
B B
death and subsequent convictions of persons for murdering Teddy Wang,
C Nina Wang maintained for a long time that he was still alive. C

D D
3. The full background to this case can be gleaned not only from the
E judgment in the court below but also from the proceedings between Nina Wang E

and her father-in-law, Wang Din Shin. Those proceedings concluded in 2005
F F
with the judgment in the Court of Final Appeal (2005) 8 HKCFAR 387. In
G that judgment it was held that Teddy Wang’s will, which Nina Wang relied G

upon, was valid. In the lower courts it had been found to have been forged.
H H

I
4. What is not evident from the earlier proceedings, but was highly I
relevant in these proceedings, was Nina Wang’s involvement with the first
J J
defendant. The first defendant ran a fung shui school, Chun Yip Hing Lung

K
Tong, and Nina Wang had been introduced to him in March 1992 as a fung shui K
master. There is no doubt that considerable sums of money passed from
L L
Nina Wang to the first defendant and further sums of money were paid as

M subscription monies for shares in a company started by the first defendant. M

N 5. In 2002 Nina Wang executed the 2002 will. There is no dispute N

in this case that that was a valid will. That will provided, in the first place, that
O O
the whole of Nina Wang’s estate was bequeathed to the plaintiff, a charitable
P foundation jointly established by Teddy Wang and Nina Wang in 1988. In P

paragraph 2 of the will it is said that the supervision of the plaintiff would be
Q Q
entrusted to a managing body formed by the Secretary General of the United
R Nations, the premier of the People’s Republic of China and the Chief Executive R

of Hong Kong jointly. It was provided that the plaintiff should continue all
S S
projects that it had undertaken. The wish was expressed in the will that there
T T
should be (a) Chinese prize(s) of worldwide significance, similar to that of the

U
Nobel Prize(s). Reference is made in paragraph 4 of the 2002 will to the U

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requirement that the plaintiff should provide for the members of the late
B B
Teddy Wang’s family. The staff of the group and their families were also to
C be provided for. Perhaps significantly, Nina Wang told Mr Ng Shung Mo to C

keep the 2002 will carefully. Mr Ng was the head of the Sales and Letting
D D
Department of the group. He was a long term employee of the group, having
E been employed since 1970. Nina Wang never told him that the 2002 will was E

no longer her last will or that it was no longer relevant or that it had been
F F
superseded, still less by the 2006 will.
G G

6. In 2004 Nina Wang was diagnosed with stage IV terminal cancer;

H H
she eventually succumbed to that disease and died on 3 April 2007.
I Immediately after her death, the first defendant caused to be produced what he I

said was her last will, namely the 2006 will. It was the first defendant’s case
J J
that he and Nina Wang had been lovers for a very long time and that she had
K treated him as her husband. It was the first defendant’s case that Nina Wang K

had wanted to leave him all her estate and had wanted to make him a board
L L
member of companies in the group in her lifetime. It was said that Nina Wang
M had given the first defendant the 2006 will together with an unsigned version M

(which had a slight difference in wording), in an envelope, in the evening of the

N N
day it had been signed and told the first defendant to keep it secret. The first
O defendant said that he had shown it to his wife 2 days later and, thereafter, kept O

the document and not shown it to anybody until it was revealed in what appears
P P
to have been little less than a deliberate blaze of publicity immediately
Q following Nina Wang’s death. Q

R R
7. It was said on behalf of the first defendant that the 2002 will was
S simply a charade, made at a time when Nina Wang was under considerable S

pressure because of the litigation and threat of prosecution over Teddy Wang’s
T T
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

B B
litigation.
C C

The findings in the court below

D D

8. The judge considered the evidence and the arguments in the case in
E E
meticulous detail. It has to be observed that on a number of occasions in the
F judgment the judge repeated that he was forced to the conclusion that the first F

defendant was untrustworthy and a liar, tailoring his evidence to suit his case as
G G
he went along. One aspect that also clearly impinged on the judge’s mind in
H that regard, as he mentioned it more than once, was a Georgetown University H

I
document which referred to the first defendant as having received a university I
education in Canada in biological engineering. That was false and the judge
J J
held that the first defendant had connived in the false pretence.

K K
9. As part of the background, the judge held that Nina Wang’s
L charitable works and her desire to help those in need started well before the L

litigation involving Teddy Wang’s will. Furthermore, it had continued

M M
afterwards. There had already been worldwide recognition of Nina Wang as a
N philanthropist well before the 2002 will was executed and became widely N

known. After the litigation in respect of Teddy Wang’s will had finished she
O O
remained enthusiastic about the work of the plaintiff. There was nothing to
P show that the plaintiff had become irrelevant in her eyes. Quite the reverse. P

Just a few days before she died, 3 of her relatives had been appointed governors
Q Q
of the plaintiff. The judge rejected the suggestion that the 2002 will was a
R “public image enhancement exercise with a view to procure support in her R

probate litigation”.
S S

T 10. Although the first defendant gave evidence to the effect that he was T

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,

B B
the judge found that the first defendant was known to be a fung shui master and
C that he had been introduced to Nina Wang as such. The first defendant himself C

admitted that Nina Wang had expressed an interest in securing his fung shui
D D
services in order to locate Teddy Wang. Apparently fung shui rituals were
E performed by him for Nina Wang soon after they knew each other. Moreover E

the first defendant continued to perform the function of a fung shui master and
F F
provide services to other clients even after he had come to know Nina Wang.
G G

11. The judge found that the first defendant impressed Nina Wang that
H H
his fung shui methods might succeed in locating Teddy Wang. Around May or
I June 1992, holes were dug for the first time. The judge held that the I

hole-digging exercises were part of the first defendant’s fung shui services.
J J
Hole-digging had, on the judge’s finding, started before the development of any
K intimate relationship and the fung shui purpose of the activity was “real rather K

than ostensible” as there was no other apparent purpose for digging the holes
L L
supervised, as those operations were, by a fung shui master. One of the
M matters clearly linking the digging of holes with an attempt to locate M

Teddy Wang was that they were dug in Ap Lei Chau where his car had been
N N
found after his disappearance. As will be noted below, the hole-digging
O recommenced some years later, not for the purpose of locating Teddy Wang but, O

seemingly, to attempt to assist Nina Wang in overcoming cancer.

P P

Q 12. The first defendant also located a temple, purportedly with good Q

fung shui, so that Nina Wang could pray for the return of Teddy Wang there.
R R
The judge said that was the reason for the boat trips, namely to locate a suitable
S temple. S

T T
13. Despite the first defendant’s assertions that his relationship with

U
Nina Wang was an intimate one, based on affection, with the first defendant U

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providing “massage” services and not fung shui advice, the judge held that any
B B
intimate relationship did not start until September 1992. In doing so he
C rejected the first defendant’s evidence as to how the relationship had rapidly C

developed after their first meeting.

D D

E 14. It is noteworthy that right up until Nina Wang’s death, her E

relationship with the first defendant was kept secret. The word clandestine has
F F
been used and the judge referred to the relationship as being surreptitious and
G lacking in permanency. These observations appear to be amply justified on the G

evidence. The first defendant was married and he and his wife had three
H H
children. Albeit it would appear that the first defendant was unfaithful to his
I wife, probably from the beginning of the marriage, the children were born I

between 1993 and 1998. Despite the attraction to Nina Wang and his
J J
involvement with her, he spent his birthdays, summer and Christmas with his
K family. His evidence was that Nina Wang understood that they would not K

marry and she understood his need to be with his family. The judge concluded:
L L
“This was a man having a family in which she would not be a member.”
M M
15. Up until 1999, the first defendant had received substantial gifts of
N N
money from Nina Wang. It is said that the sums involved were upwards of
O $720 million between 1993 and 1997. Despite that there was never any O

suggestion that Nina Wang did not continue to further the interests of the
P P
plaintiff, still less did she change her 2002 will.
Q Q
16. During the course of the probate litigation Nina Wang stopped
R seeing the first defendant. She was arrested in 2002 on suspicion of forgery R

and she told the first defendant to destroy all the photos and videos of them.
S S
This was done to avoid any attention being drawn to their relationship. The
T T
first defendant said that they maintained telephone contact.

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17. After the conclusion of the probate action in respect of

B B
Teddy Wang’s will, meetings between Nina Wang and the first defendant
C resumed. That was, of course, after Nina Wang had been diagnosed with C

cancer. Not only did they meet but there was a considerable amount of fung
D D
shui related activity in which the first defendant was intimately involved and,
E certainly, it was conducted under his supervision. E

F F
18. The judge gave careful consideration to and accepted Wong
G Leung Woon’s evidence that in September 2005, Nina Wang had told him that G

the first defendant would give him instructions in respect of hole-digging again
H H
at Chinachem sites. In November 2005 the first defendant gave him
I instructions about hole-digging at Chinachem’s Repulse Bay site. He was told I

to dig as deep as possible. That happened just before the first defendant flew
J J
to Boston to meet Nina Wang. After that, the first defendant supervised the
K digging of more holes at other Chinachem sites. In June 2006, holes were dug K

at Fanling Town Centre, the Chinachem Golden Plaza and at the L’Hotel in
L L
August. The judge had no doubt on the evidence that these were done for fung
M shui purposes. Thus it was quite clear that after Nina Wang and the first M

defendant started seeing each other again in 2005, the first defendant again
N N
acted as a fung shui master. In so doing the first defendant also gave
O Nina Wang advice on such matters as her travel arrangements. O

P P
19. Mention must also be made of the 3 payments of HK$688 million
Q each that were transferred on Nina Wang’s instructions to Offshore Group Q

Holdings Limited. Effectively these were transfers to the first defendant. It

R R
is unnecessary to dwell long on these. In the table entitled “ESCALATION
S OF FUNG SHUI ACTIVITIES FROM NOVEMBER 2005 TO S

OCTOBER 2006” appended to the amended supplemental respondent’s notice

T T
there are set out details of Nina Wang’s deteriorating health which are
U co-related to activities, in particular the digging of holes, and the payments of U

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HK$688 million made on Nina Wang’s instructions to Offshore Group

B B
Holdings Limited. The table demonstrates in a far more understandable way
C than a narrative can, the correlation between those various matters. As C

Nina Wang’s health deteriorated so the fung shui activities increased and at
D D
each step a further payment was made. Joseph Leung, who was a senior staff
E member of Chinachem and had been a governor of the plaintiff from 1990, was E

so upset at the first of these enormous payments, seemingly made without

F F
explanation, that he tendered his resignation.
G G

20. Other payments were made that benefitted the first defendant. In
H H
November 2005 Nina Wang had invested some £5 million in RCG Holdings
I Limited, a company which the first defendant had set up. There was a further I

investment of £15 million in May 2006 and, then, a yet further investment of
J J
£30 million in March 2007 just prior to Nina Wang’s death.
K K
21. On the face of the 2006 will it was signed by Nina Wang and
L L
witnessed by a solicitor, Mr Winfield Wong and by Mr Ng Shung Mo.

M Mr Wong clearly knew Nina Wang. His office was in the same building as M
Nina Wang’s office in the Chinachem offices. Mr Wong and Mr Ng agreed
N N
that they had witnessed a will of Nina Wang on 16 October 200, but, for reasons
O which will be dealt with below, said that the document they witnessed was very O

different from the 2006 will. Mr Wong was clear that the document he had
P P
witnessed had been a partial will, giving a Mr Chan a bequest of some
Q $10 million. The judge examined their evidence very carefully. He came to Q

conclusion that the document attested to by them on 16 October 2006 was not
R R
the 2006 will. Inevitably the 2006 will was thus a forgery. That was not a
S conclusion reached lightly. The judge was fully conscious of the seriousness S

of the matter and the implication of his findings. He only reached that
T T
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
B B
what were referred to as the 6 inherent improbabilities.
C C

22. The judge also considered the question as to how the 2006 will
D D
came to be prepared. He examined, very closely, the evidence relating to
E Nina Wang’s health specifically in the period from 11 to 18 October 2006. E

His conclusion was that she had been physically too weak to move up and down
F F
the staircase leading to the lower level where she could have had access to the
G lift. The evidence had been that between 14 and 16 October she had spent G

most of the time sleeping or lying on her bed. He rejected the first defendant’s
H H
evidence that she had been energetic at that stage. As a result, he came to the
I conclusion that it would be absurd to consider that Nina Wang had prepared the I

2006 will herself. Given the fact that nobody in Chinachem had prepared that
J J
will, which was typed on a typewriter as opposed to having been produced on a
K word processor, and given the fact that there was not even a copy of that will K

found at the Chinachem premises when a concerted effort was made

L L
immediately after her death to look for the document that had been signed on
M 16 October 2006, the only possible conclusion was that the first defendant must M

have been responsible for preparing whatever document was signed on

N N
16 October 2006 and the 2006 will.
O O

23. Quite apart from that, the judge found that Nina Wang had never
P P
deviated from her intention to leave her estate and the considerable wealth of
Q the group to the plaintiff. Q

R This appeal R

S S
24. On this appeal Mr Mill QC, who appeared on behalf of the first
T defendant took two major points. Relying on the statements made in the T

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
B B
the judge had not evaluated the evidence by reference to the inherent
C probabilities and improbabilities before making any factual findings. His C

second major point was that the evidence given at the trial did not justify the
D D
factual conclusion that the 2006 will was a forgery.
E E

25. The short answer to the first point is that the judge clearly did take
F F
into account the inherent improbabilities which had been stressed on behalf of
G the first defendant. Not only did he say so at various parts of his judgment G

(see, for example, paragraphs 91, 212, 223-228, 275, 300, 371 and 876) but the
H H
fact that he had given, what in our view was, more than ample coverage and
I reference to them in paragraphs 841 to 876 of his judgment is clear. The fact I

that the detailed analysis of the 6 so termed inherent improbabilities came

J J
towards the end of the judgment was merely a matter of presentation. It is
K clear from the way that the judge dealt with all the issues that he was very K

conscious of the submissions that had been made and the seriousness of the
L L
findings to which he came.
M M
26. Once it is established that the judge did take the 6 inherent
N N
improbabilities into account, there is no error which this court is in a position to,
O or can, correct. The 6 inherent improbabilities are factors which have to be O

weighed. What weight the judge gives to each factor is a matter essentially for
P P
the judge to decide in making his findings of fact. So long as he did take them
Q into account it is not for this court to interfere and say that he should have given Q

more weight or less weight to any specific point.

R R

27. The primary submission underlying many of the points made on

S S
behalf of the first defendant was that the judge had not recognised in his
T T
findings that Nina Wang loved the first defendant deeply. It was said that the

U
judgment was tainted because the judge was morally offended by the fact of the U

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relationship between Nina Wang and the first defendant. It was said that given
B B
Nina Wang’s other payments to the first defendant the suggestion by Mr Wong
C that the document which he had signed related to a gift of some $10 million was C

absurd. It was said that such a sum would have been derisory. It neither
D D
reflected the affection which Nina Wang held for the first defendant nor was it
E understandable in terms of the further payment of $688 million which was paid E

a few days after 16 October 2006. These are matters which the judge clearly
F F
did take into account but, as already noted, whatever relationship with and
G feelings that Nina Wang had for the first defendant, they existed in the light of G

the fact that the first defendant was, and always would be, only a lover who was
H H
married to another woman. As to the disapproval that it is said that the judge
I I
had for the relationship between Nina Wang and the first defendant which the

J
first defendant had been so keen to emphasise in his evidence, it would be J
surprising if the judge did consider it morally acceptable. However, there is no
K K
ground for saying that coloured his judgment.

L L
28. The difficulty of forging a will, the risks taken by the first
M defendant in so doing and the likelihood of being discovered are all matters M

which the judge had in mind and took into consideration.

N N

O 29. The most important finding of fact in our view related to the O

evidence of the attesting witnesses. At the risk of repetition it can be

P P
mentioned that it is the first defendant’s case that after the 2006 will had been
Q signed and witnessed it had been given to the first defendant and he had kept it Q

secret apart from showing it to his wife 2 days later.

R R

30. It appears from a letter, which is referred to on day 4 p. 19 of the

S S
transcript, that shortly after Nina Wang died, Mr Midgley, the solicitor who
T T
previously acted for the first defendant, contacted counsel, Mr Sujanani, to

U
request a meeting. One of the express purposes of that meeting proved to be U

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for Mr Midgley to pass to Mr Sujanani a copy of the 2006 will for onward
B B
transmission to the plaintiff and Nina Wang’s relatives. The letter states that
C the meeting took place on 6 April 2007, although from the evidence of C

Nina Wang’s youngest sister, Mrs Tong and from Mr Sujanani’s fee note it
D D
appears that it took place on 5 April 2007.
E E

31. From the evidence given at trial it is clear that there was a meeting
F F
on 7 April 2007 which commenced at about 2.30 p.m. at L’Hotel in Causeway
G Bay. That is a property which is owned within the group. There appear to G

have been a large number of people at that meeting including relatives of

H H
Nina Wang, other personnel connected with the group, Mr Sujanani and
I Mr Winfield Wong. I

J J
32. Mr Wong gave a short account of that meeting which was,

K
evidently, held in a suite in that hotel because, as Mr Wong explained, K
Mr Sujanani frequently went into the other room to make telephone calls. At
L L
some stage Mr Sujanani asked Mr Wong whether he would be prepared to make

M a statement, to which Mr Wong agreed. The party then went back to the M
Chinachem premises where Mr Wong spoke to Mr Sujanani in one of the rooms.
N N
Mr Sujanani wrote out a statement in long hand which was then given to
O somebody else to type. It is clear that the meeting had been lengthy; Mr Wong O

said that because it was getting late some food had been brought in. Mr Wong
P P
read the typed statement and made a few typographical corrections to it. He
Q explained throughout his evidence that although there were minor discrepancies Q

and matters which he would have liked to have been able to consider in more
R R
detail, the crucial parts of the statement were correct. Those included the fact
S that, at the time when he had read the will that he witnessed, he had observed to S

Nina Wang that it was only a partial will. He had seen that it contained a
T T
specific bequest of money and it did not deal with the residue or remainder of
U the estate. U

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33. There does not appear to be any dispute to the fact that Mr Wong
B B
had said at the time that it was only a partial will. It was Mr Wong’s evidence
C that, when he did observe that, Nina Wang said that she was aware of it. C

Mr Ng said that he remembered Mr Wong saying at the time that it was a partial
D D
will. He said that a few days later he had specifically asked Mr Wong about
E that and then on a Saturday, after Nina Wang had come back from hospital, he E

asked her why she had made a partial will in addition to the 2002 will. Nina
F F
Wang told him, “Don’t bother so much. I am fine. Just concentrate on your
G work and do it properly.” G

H H
34. Mr Wong was clear that before he signed the statement on 7 April
I he had confirmed with Mr Sujanani that it would be in order to make minor I

corrections. He considered that he was simply giving a statement and what

J J
would be important would be his evidence in court, if any. It was for that
K reason that he was not concerned with whether, for example, the statement said K

that he had been asked to go upstairs to see Nina Wang to sign a document or it
L L
should, more correctly, have stated that he had been asked to go to see
M Nina Wang and when he got there he became aware that the reason for the M

request was for him to sign a document. It also has to be observed that
N N
Mr Wong was understandably anxious not to stay at the meeting longer than
O was necessary. It was getting late on Easter Saturday which, as Mr Wong O

recalled, was also a public holiday.

P P

Q 35. The judge observed that Mr Wong had been extensively and Q

skilfully cross-examined. Two matters emerge very clearly from the transcript
R R
of his evidence. In the first place Mr Wong was very careful in his evidence to
S try to be precise as to what he actually remembered and what he did not S

remember. In respect of those occasions when he was uncertain as to the

T T
timing of events, specifically as to meetings with the plaintiff’s lawyers,
U Mr Wong said that he might be confused. When it was suggested to him that U

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some things could or might have happened, he was careful to say that he was
B B
giving evidence as to what he remembered and he specifically avoided, in our
C view correctly, addressing hypothetical questions. C

D D
36. Although Mr Wong readily conceded that the signature on the
E 2006 will looked like his signature, given the fact that he had only witnessed E

one will of Nina Wang, if the 2006 will clearly differed so much from the will
F F
which Mr Wong had witnessed, the conclusion had to be that the 2006 will had
G a forged signature of Mr Wong. Whatever the circumstance, the suggestion G

that a will had been forged would clearly be a serious matter. It would be an
H H
allegation which any lawyer would be extremely wary of making. We have no
I doubt that any lawyer would test the reliability of the suggestion that a will was I

forged very carefully before making it his case and would look for other
J J
possible explanations before basing a case on forgery.
K K
37. It appears that Mr Sujanani had a conference with Mr Wong on
L L
12 April 2007 at which Ms Fanny Cheng, a solicitor from Deacons, was also

M present. Ms Cheng’s note of the meeting became available during the course M
of the trial and there is no note taken by Mr Sujanani. Ms Cheng’s note at
N N
paragraph 2 is that Mr Wong could not recall whether he had been told initially
O why Nina Wang wanted to see him and whether the request was to witness a O

document. At the meeting on 12 April, there clearly must have been some
P P
discussion as to whether Mr Ng was in the room when Mr Wong arrived to
Q witness Nina Wang’s signature and as to where he had been standing. Q

Importantly, the note continues that Mr Wong said he had a quick glance at the
R R
document that he had been asked to witness and that he had told Nina Wang
S that it was a partial will and that she had said that she knew that. It was then S

said that Mr Wong had said that it would be better for her to instruct a solicitor
T T
to prepare a complete will and she said that she would deal with that later.
U Mr Wong is recorded as saying that he printed his name on the document and U

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put the stamp on it, although he did not have his personal stamp. He is
B B
recorded as saying that he could have stamped it upside down. He was certain
C that he had only signed one document for Nina Wang that day. C

D D
38. On the day following the conference, namely 13 April 2007,
E Mr Sujanani sent a draft statutory declaration to Mr Wong by e-mail. In E

paragraph 2 it is stated that Mr Wong said that he believed that he had brought
F F
his firm’s chop as it was his usual practice when requested to attend to the
G execution of documents outside the office. In paragraph 8 it is stated that G

Mr Wong noticed that it was only a partial will or codicil as it only dealt with
H H
the residue or remainder of Mrs Wang’s estate and not the entirety of her estate.
I Paragraph 9 states: I

J “I then confirmed with Mrs. Wang as to whether this was her J

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
K or remainder of her estate. I clearly recall using the words “partial K
will” in English.”
L L
39. Paragraph 18 of the draft statutory declaration goes further and
M states: M

N “Having read Document A (i.e. the 2006 will), I have the following N
comments to make:
O O
(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
P Shung Mo, although I note that there is no provision made in P
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
Q the document which I had witnessed in late 2006 at the request, Q
and in the presence, of Mrs Wang and Mr Ng Shung Mo.
R R
(2) Document A deals with the residue or remainder of
Mrs Wang’s estate. This is consistent with the document I
S had witnessed in late 2006 where, having read the document I S
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
T T
estate and did not deal with the entirety of her estate and her
agreement to, and knowledge of this.”
U U

V V
A
- 17 - A

40. Later on there is also a statement that Mr Wong recalled having

B B
once used his firm’s chop upside down on the execution of the document.
C C

41. On 17 April 2007 Mr Wong sent an e-mail to Mr Sujanani which

D D
was terse. It simply stated that having considered the matter he considered that
E the statement made on 7 April was sufficient. At the trial Mr Wong was clear E

that it was not his usual practice to take only one chop when he left the office.
F F
If he knew that he would be required to sign a document he would take both the
G firm chop and his own. He therefore doubted that he had taken the chop. His G

evidence was very clear that he had never indicated that the document which he
H H
had witnessed dealt with the residue or remainder of Nina Wang’s estate.
I Indeed, his evidence was that he had all along made a clear distinction between I

a partial will and a codicil.

J J

K
42. In the closing submissions on behalf of the first defendant, the K
major points, which were repeated on this appeal, were that Mr Wong’s
L L
evidence was unreliable even to the extent that he had tailored it in order to

M benefit and support the plaintiff’s case. Much of the criticism was based upon M
a comparison of what Mr Wong had said in his statement of 7 April and what
N N
was contained in the drafts produced by Mr Sujanani, in particular that attached
O to his e-mail of 13 April. In this respect it has to be observed that Mr Wong O

appears to have been steadfast and there is nothing either in what he said orally
P P
or in his conduct from 7 April onwards which would indicate that he accepted
Q the revisions to his statement which Mr Sujanani had inserted into the drafts for Q

a statutory declaration. He explained that many alternatives had been

R R
suggested to him but that he had not accepted them; the fact that they had found
S their way into the drafts for a statutory declaration was not of his making. His S

way of dealing with it was simply to say that he adhered to his statement of
T T
7 April because he did not want to prolong any further discussions but simply to
U adhere to what he knew to be the truth. Mr Mill repeated the submissions U

V V
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which had been made in the court below that Mr Sujanani had correctly
B B
recorded what Mr Wong had said, in particular with regard to the residue and
C remainder. The judge clearly considered those arguments and rejected them. C

It is to be observed that the judge had himself raised the possibility of

D D
Mr Sujanani being called as a witness. Mr Sujanani was not called as a
E witness and the judge took that into account in assessing Mr Wong’s evidence. E

F F
43. In a passage in his judgment which took some 44 pages the judge
G meticulously examined Mr Wong’s evidence. In our view he did so extremely G

fairly and thoroughly. He took into account the criticisms which had been
H H
made and the suggestions which had been made and he certainly appreciated the
I improbabilities on which the first defendant so heavily relied. I

Notwithstanding that, the judge came to the clear conclusion that he accepted
J J
Mr Wong’s evidence. We have no doubt that he was right to do so.
K K
44. As noted above, the other attesting witness to the document signed
L L
on 16 October 2006 was Mr Ng Shung Mo. Although there were some

M discrepancies between his evidence and Mr Wong’s evidence these were, for the M
most part, in relation to trivial matters such as who was standing where and
N N
whether Mr Ng was in the room when Mr Wong arrived.
O O
45. The only major difference between the two witnesses who attested
P the document on 16 October 2006 was as to whether Nina Wang had signed the P

document in Mr Wong’s presence and hence, also, in Mr Ng’s presence. The

Q Q
judge came to the conclusion, again, in our view correctly, that Nina Wang had
R signed the document when she was in the room together with the two witnesses. R

S S
46. It is clear from the scientific evidence, which is not disputed, that
T the signature purporting to be that of Nina Wang on the 2006 will was signed T

over a crease in the paper. Mr Ng said in his evidence that Nina Wang had
U U

V V
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come into the room holding the document folded without it being creased, in
B B
other words with the top and bottom looped together. It is significant in this
C respect that Fanny Cheng’s note of the discussion with Mr Ng on 10 April 2007 C

records precisely that. There is a small diagram in her notes showing that.
D D
Two matters may be observed in respect of this. First that Miss Cheng’s note
E was not available when Mr Ng initially gave evidence and secondly that it was E

not known in April 2007 when Mr Ng had the meeting with Ms Cheng that
F F
there was any significance in the fact that the paper was folded but not creased.
G The fact that the signature had been written over a crease was not discernible by G

the naked eye but was only revealed very much later when scientific tests were
H H
carried out on the document.
I I

47. The judge came to the clear conclusion that Mr Wong’s and
J J
Mr Ng’s evidence proved that the document attested to by them on 16 October
K 2006 was not the 2006 will. In our view that was a finding that the judge made K

after the most careful and painstaking examination of the evidence and in full
L L
consciousness of what were submitted on behalf of first defendant to be the
M inherent improbabilities. He was not merely fully justified in making such a M

finding, but that finding is in our view unassailable. That finding alone would
N N
debar the first defendant succeeding in this case and, furthermore, it was made
O in the full appreciation of the fact that it carries with it the inevitable conclusion O

that the first defendant has put before the court a forged document in his quest
P P
to secure Nina Wang’s enormous fortune.
Q Q

48. One further matter which should be mentioned is that the first
R R
defendant produced, with the 2006 will, a copy, which was also typed, but the
S wording differed from the 2006 will in that it had the word “my” before the first S

defendant’s name. The point to note in respect of that document is that the
T T
scientific examination showed that it had the impression of the 3 signatures, i.e.
U Nina Wang’s, Mr Wong’s and Mr Ng’s, in exact register with those in the 2006 U

V V
A
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will. Again, that was a matter that was only revealed when scientific tests
B B
were carried out on the document. The judge accepted Mr Ng’s and
C Mr Wong’s evidence that there had been only one piece of paper when they C

witnessed the will on 16 October 2006. Despite suggestion that there were 2
D D
documents and the unsigned document was underneath the 2006 will, that was
E only a hypothesis put forward that had no support in the evidence. It would E

have been highly unlikely that 2 pieces of paper could have been kept in exact
F F
register when being passed around for signature by 3 different people. Clearly
G it is far more understandable that when the 2006 will was prepared there was a G

discarded draft underneath. That document may well have been discarded
H H
because it had the word “my” which was omitted from the 2006 will.
I I

49. The conclusion that the 2006 will was a forgery is one that follows
J J
from the judge’s findings in relation to the attesting witnesses.
K K
The handwriting evidence
L L

50. In considering the genuineness or otherwise of the signatures of

M M
Nina Wang and the attesting witnesses Ng Shung Mo and Winfield Wong on
N the 2006 will, the judge heard expert evidence. He concluded that the N

Nina Wang signature was a highly skilled simulation and that the
O O
Winfield Wong signature was not genuine. While Mr Mill challenged those
P conclusions, he considered the expert handwriting evidence to be a matter of P

“subordinate importance” on the first defendant’s appeal.

Q Q

R 51. The plaintiff’s expert was Mr Radley. Initially the first R

defendant’s expert was Dr Giles but after her draft written report dated
S S
29 March 2009 became available, the first defendant applied for and obtained
T leave (for the Reasons handed down on 15 May 2009) to adduce at trial the T

expert handwriting evidence of Mr Westwood. Nevertheless, the draft report

U U

V V
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of Dr Giles and the notes recording the communications between Dr Giles and
B B
the lawyers acting for the first defendant formed part of the evidence. As a
C piece of admissible evidence the weight to be attributed to it and its relevance C

(given the absence of cross-examination) are essentially matters for the judge.
D D

E 52. Mr Mill’s main criticisms were directed at the judge’s adoption of E

Mr Radley’s approach. It was said that Mr Radley had made fundamental

F F
errors of principle, rendering his conclusions ‘irrational and unscientific’ and,
G further, that his approach was contrary to the applicable principles of G

examination and comparison as stated by the Court of Final Appeal in Nina

H H
Kung v Wang Din Shin (2005) 8 HKCFAR 387, paragraphs 22 - 27.
I I
53. Mr Mill criticized Mr Radley for (1) equating “rarities” with
J J
“differences”; (2) excluding known samples extracted from some of

K
Nina Wang’s hospital records; and (3) his “no-lose” argument. There were K
other criticisms as will become apparent. In addressing Mr Mill’s criticisms,
L L
some of the terminology used in handwriting identification and their relevance

M require elaboration. M

N 54. Paragraphs 67 - 68 of Mr Radley’s Finalised Report provide a N

convenient starting point:

O O

“67. The basis of any handwriting comparison is to take a number of

P handwritings of known authenticity and firstly, intercompare each of P
these, within themselves, and establish how that individual varies
Q his/her handwriting from occasion to occasion with respect to each and Q
every minute feature. Having established the ranges of variation for all
of these features for each letter form etc, the corresponding
R characteristics in the questioned handwritings are then compared with R
these ranges of variation to see if each of the corresponding features of
the questioned handwriting falls within the range of variation of the
S S
known writings (‘a similarity’) or are outside that range (‘a
difference’).
T T
68. The presence of fundamental (i.e. basic) differences between
known and questioned entries in the way the pen is made to move in
U the construction of particular letters or numeral forms may be U

V V
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indicative of different authorship. An accumulation of such differences

B makes different authorship more likely. An accumulation of significant B
similarities (whilst there is an absence of differences of significance)
will be indicative of the counter argument i.e. documentation of
C C
common authorship …”

D D
That explanation of accepted definitions of “similarities” and “differences” is

E
not controversial. E

F 55. Other terminology used include “rarities” and accidentals”. A F

“rarity” is a feature that occurs not through accident but during the normal
G G
writing process that is rarely or seldom to be found in the specimen signatures
H of known authenticity. An “accidental” is a very unusual occurrence of a H

feature. It may be the result of an external influence. The cause may or may
I I
not be known. On most occasions one would not know simply by looking at
J the writing what is an accidental and what is a rarity. While a rarity may not J

be as rare as an accidental, Mr Radley considered that “accidentals” and

K K
“rarities” tend to merge and that one cannot necessarily differentiate between
L them. As the judge noted in paragraph 596, the upshot of Mr Radley’s L

evidence on that issue which the judge implicitly accepted was that accidentals
M M
form a subset of rarities. (See transcript, day 21, pp. 75 – 78)
N N

56. As explained in paragraph 68, similarities that are not significant

O O
have no relevance for identification purposes. The assessment of
P ‘significance’ necessarily involves a value judgment and to a degree is P

subjective. But the presence of similarities per se is not sufficient to lead to a

Q Q
conclusion of identity where there are significant differences that remain
R unexplained. That is a proposition as to which the experts do not differ: see R

paragraphs 504, 535 (a) and 710 of the judgment and the following extract from
S S
the transcript of Mr Westwood’s cross-examination:
T T
“ Q. This is on the topic of similarities which are noted between the
known and questioned signatures.
U U

V V
A
- 23 - A

Do you accept that the presence of similarities are, of course,

B matters to be taken into account, the nature and the number of B
similarities noted become part of the exercise of assessment, but
that you may have many similarities, yet because of the
C C
presence of significant differences, you will not be able to
arrive at a conclusion of identity. Do you accept that?
D D
A. Yes, in general terms.

E Q. You also accept that the presence of unexplained significant E

divergences, or differences, can be highly indicative of forgery?
F F
A. Could be.

G Q. You must have in your experience, in the actual cases that you G
have handled, reached conclusions supporting forgery -- that is
evidence of forgery -- notwithstanding the presence of large
H numbers of similarities. H

A. Yes.”
I I
(transcript, day 23, p. 97 l. 22 – p. 98 l. 16)

J J
57. Contrary to Mr Mill’s submission, it is also entirely consistent with
K Chan PJ’s statement in paragraph 26 of Nina Kung that: K

L “…the absence of fundamental differences (as opposed to trivial L

differences) together with the presence of a combination of a sufficient
number of similarities with individual qualities and characteristics can
M form the basis of a conclusion that the signature is genuine.” M

N Osborn, Questioned Documents, (Second Edition, 1929) 245 is to the same N

effect.
O O

P 58. But the experts disagreed on what could constitute a fundamental P

or significant difference. Mr Westwood considered that a feature that occurs
Q Q
within the range of variation is a “similarity” and thus cannot be considered a
R fundamental difference. Further, the fact that such a feature falls outside the R

range of variation does not necessarily make it a fundamental difference. (See

S S
Westwood’s Preliminary Report paragraph 36) On Mr Westwood’s analysis, a
T rarity can never be a fundamental or significant difference. That issue is dealt T

with in paragraphs 72-76 below.

U U

V V
A
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Comparison signatures
B B

C 59. The rarity value of a particular feature can actually be worked out C

by reference to the number of specimen signatures. In this connection,

D D
mention should be made of the size of comparison signatures. It is stated in
E Osborn, at p. 27 that “[i]t is not often helpful to use more than twenty-five to E

seventy-five signatures except in unusual cases”. Different authorities support

F F
different numbers of comparison signatures ranging from a dozen to 40
G comparisons. Mr Radley’s evidence (day 21, p. 90) was that his ‘standard G

request’ is for 15 to 20 which fall within the range of a dozen to 40 and that
H H
normally a document examiner would work off 20, 30 signatures. 50 would be
I “very unusual”. I

J J
60. For the Nina Wang signature, altogether 135 specimens were

K
presented to the experts. Mr Radley agreed that 81 of those were acceptable as K
comparison signatures while Mr Westwood used all 135. The difference of 54
L L
specimens includes 42 ‘hospital signatures’ extracted from hospital records and

M which Mr Radley considered to be inappropriate specimens. Mr Mill’s second M

criticism is directed at Mr Radley’s exclusion of these 42 hospital signatures.
N N
For convenience, we will address this criticism first.
O O
61. It is to be noted that these 42 hospital signatures were not the only
P hospital signatures. Of the 135 specimens, altogether 45 were hospital P

signatures. Mr Radley accepted 3 of the hospital signatures as appropriate for

Q Q
comparison purposes “by reason of their execution with good control”. They
R were 3 out of a total 5 hospital signatures made on 18 October 2006, two days R

after the date of the 2006 will. The 42 hospital signatures rejected included the
S S
other two hospital signatures executed on 18 October 2006 which Mr Radley
T T
considered showed poor pen control. In the circumstances of the present case,

U
the litmus test for Mr Radley was good pen control, it being common ground U

V V
A
- 25 - A

that the questioned signature was “well-controlled”. Indeed, Dr Giles opined

B B
that it was “clearly firmly written”. Further, comparing like with like is a
C cardinal principle in handwriting examination. C

D D
62. The judge dealt with this issue in paragraphs 539 to 569. In
E preferring and accepting Mr Radley’s opinion, the judge did not disregard E

Mr Westwood’s evidence relating to the purpose of using non-agreed hospital

F F
signatures for comparison. Contrary to Mr Mill’s submission, the judge did
G not fail to appreciate that Mr Westwood’s use of the non-agreed hospital G

signatures was to demonstrate the range of variation. In Mr Westwood’s view,

H H
they could show “relationships, ratios, comparative heights and sizes”
I notwithstanding the obvious loss of pen control in their execution. I

J J
63. Faced with the competing views, the judge tested the

K
appropriateness of the specimens identified by Mr Westwood by reference to K
many of the features of the Nina signature. Putting it mildly, the judge was not
L L
impressed by Mr Westwood as a witness nor by his evidence. That is clear

M from the judge’s observations at paragraphs 546, 552 and 565. In M

paragraph 569 the judge remarked:
N N
“By including deteriorated signatures inappropriately in constructing
O his range of variations, Mr Westwood has distorted the overall O
picture …In so far as he drew support from these inappropriate
specimens (the inappropriateness of which I found to be so obvious
P that could not have escaped him) Mr. Westwood in effect created an P
impression that he had a stronger base to build his positive opinion
Q
than he, as an impartial expert, should put forward.” Q

64. The judge rejected Mr Westwood’s evidence. He was not

R R
persuaded that the use of deteriorated signatures for comparison purposes was
S appropriate. Dr Giles had observed that Nina Wang’s signatures written from S

T
September 2006 onwards demonstrate considerable variation. She noted that T
signatures apparently made on the same date (namely, 18 October 2006) can
U U
have very different appearances. At pages 24 to 25 of her draft report,

V V
A
- 26 - A

Dr Giles remarked on the fact that two of the signatures made on 18 October
B B
(being those Mr Radley had rejected) show “inferior fluency compared with the
C other signatures made on the same day” and that there was a “general pattern” C

of signatures written on hospital documents being inferior in fluency to

D D
signatures on other documents made elsewhere but at a similar time. Dr Giles
E was of the opinion that Nina Wang’s “medical treatment had a distinct E

affect (sic) on her handwriting”, that the hospital signatures were “atypical” and
F F
that “the effect of her medical treatment appeared to be in the loss of pen
G control and the increased lightness and lack of definition of the components of G

her signature”.
H H

I 65. Dr Giles’ observations reinforced the judge’s conclusion derived I

from his meticulous evaluation exercise. It was clearly open to the judge to
J J
decide that Mr Radley was correct in excluding 42 of the hospital signatures.
K Mr Mill has not demonstrated in what respect(s) the judge had erred. We find K

no merit in Mr Mill’s second criticism.

L L

M 66. In relation to the Winfield Wong signature, Mr Mill asserted that M

the range of Winfield Wong signatures available to the judge comprised only 9
N N
and not 34 specimens. The judge was criticised for using all 34 specimens
O presented in ascertaining the rarity value of each of the features of that signature, O

thus rendering invalid his conclusions on rarity values. The 34 specimens

P P
included 20 that had been written on a single occasion for use by the experts, 4
Q reproduction signatures or copies, one (specimen P-5) executed during the trial Q

by way of demonstration and 9 executed during the course of business covering

R R
the period from 2002 to 2006. According to Mr Mill, 25 of the specimens
S (comprising the 20 ‘made to order’ specimens, the 4 reproductions and P-5) S

have no value for comparison purposes and should be disregarded altogether.

T T

U U

V V
A
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67. While the weight to be given to the 25 specimens (including the 20

B B
‘made to order’ specimens) is one matter, to dismiss all of them as having no
C relevance is quite another. In his Second Supplemental Report of 12 June C

2009 (paragraph 22) Mr Radley considered the availability of the signatures

D D
made during the course of business (i.e. the 9 signatures Mr Mill accepted)
E “highly significant” in that they reinforced observations Mr Radley had made in E

his Finalised Report of 23 March 2009 (based on the specimens presented,

F F
limited to the 20 ‘made to order’ specimens and the 4 reproductions) and
G confirmed that certain writing habits were ingrained. Clearly the specimens G

Mr Radley had been presented with when he wrote his Finalised Report in
H H
March 2009 were not irrelevant. It was open to the judge to accept
I I
Mr Radley’s evidence. Mr Mill has not begun to show any error on the part of

J
the judge in using 34 specimens in ascertaining rarity values. In short, we J
reject Mr Mill’s submission that the number of Winfield Wong specimens
K K
available for comparison purposes was 9.

L L
The “no-lose” argument
M M
68. Mr Radley’s no-lose argument (being Mr Mill’s third criticism)
N N
arises when the inter-comparison exercise shows that there are wide ranges of
O variation in the signatures known to be authentic, particularly when there is a O

very large number of specimen signatures. The following passage from the
P P
judgment encapsulates the essence of the no-lose argument:
Q Q
“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
R significant for the simple reason that a match is inevitable and as such R
neutral for the purpose of checking whether the signature (s) or writing
(s) are genuine.”
S S

As Mr Radley explained in paragraph 31 of his Finalised Report, the larger the

T T
extended range of variation (i.e. the target) for each particular feature of the
U signature, the more likely errors in the copying process may be masked and fit U

V V
A
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within the large range of variation, albeit on the extremes of the range. Hence,
B B
Mr Radley considered that no-lose features have no identification value. The
C logic of Mr Radley’s proposition would appear to be self-evident. It also C

accords with common sense.

D D

E 69. Mr Westwood provided no substantive response to Mr Radley’s E

argument. He merely reiterated that a match within the range of variation is a

F F
similarity and, by definition, a ‘similarity’ is not a ‘difference’, much less a
G fundamental or significant difference. But repeating the accepted definitions G

does not demonstrate the correctness of Mr Westwood’s answer. Its

H H
correctness has to be shown by demonstrating the appropriateness of the use of
I deteriorated signatures for signature comparison purposes. I

J J
70. As already noted, the judge meticulously examined and tested the

K
appropriateness of the deteriorated hospital signatures as comparison signatures. K
The exercise (at paragraphs 545 to 568 of the judgment) confirmed the validity
L L
of Mr Radley’s no-lose argument and provided no support for Mr Westwood’s

M approach. Mr Mill has not been able to show why the judge erred in reaching M
the conclusion that he did.
N N

Equating “rarities” with “differences”

O O

P 71. Mr Mill criticized Mr Radley for equating “rarities” with P

“differences”. The judge first referred to this criticism in paragraph 502 and
Q Q
remarked on Mr Radley’s possibly infelicitous choice of wording. He
R addressed the criticism at paragraph 596 et seq. When Mr Radley used the R

word “differences” in relation to the features in the relevant signatures he had

S S
identified, as explained in paragraph 39 of his Finalised Report, those
T differences were T

U U

V V
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“characteristics detailed being differently constructed in the questioned

B signature relative to the known signatures, or at least the vast majority B
of known signatures.”
C C
In other words, the word “differences” as used by Mr Radley carried a special
D meaning; it was used in the sense that the feature was different to the vast D

majority of the large sample of genuine signatures rather than the accepted
E E
definition of that term.
F F

72. The rationale for according the word “differences” a special

G G
meaning or, differently expressed, treating “rarities” as “differences”, appears in
H paragraphs 31 - 38 of Mr Radley’s Second Supplemental Report. It was H

considered in paragraphs 618 - 622 of the judgment. In circumstances where

I I
the no-lose argument arises, Mr Radley’s view is that rarities, meaning
J matching features found in a very small percentage of a large size of samples, J

should not be regarded as similarities that have no significance. Rather, they

K K
are “unusual characteristics not seen as the general writing habit of the writer”.
L They become differences relative to the natural and normal writing L

characteristics of the writer. Accordingly, such differences have a

M M
considerable rarity value, particularly when an accumulation of such differences
N is found within a single signature. N

O O
73. Provided the meaning is clear, it is difficult to see why the use of a
P modified meaning instead of the accepted definition is objectionable per se. P

The real question is the validity of what the judge (adopting the nomenclature of
Q Q
Mr Mill) referred to as the Radley-Osborn statistical point (“the statistical
R point”). R

S 74. That point arose from Mr Radley’s opinion recorded in S

paragraph 44 of the Joint Report:

T T

“44. …Mr. Radley wishes to emphasise that his signature

U U
examination has resulted in weighing up the evidence of both

V V
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similarities and differences. The similarities noted …are not

B considered by Mr. Radley to be significant due to their natures or the B
fact that most of these features fall within a large range of variation
that often encompasses virtually any combination or permutation of
C C
element for any one particular characteristic. Whilst most of the
features referred to as “differences” do show very limited numbers of
D corresponding characteristics within the extremely large number of D
samples presented, he considers they can not be assessed in isolation.
The significance lies in the overall consideration of the signature in
E question in the light of the combination of these rare features. One E
does not expect to find a large number of rarities and accidentals, all
F produced in one questioned signature. Such a coincidental F
occurrence of such a large number of features he regards as highly
improbable.”
G G

75. Mr Radley elaborated on this when he gave evidence at trial. As

H H
earlier noted, an accidental/rarity is a very unusual occurrence. Mr Radley
I explained the effect when there is an accumulation of accidentals: I

J “ A. … If you see one or two accidentals in a signature, you do not J

jump in and say it is a result of forgery.
K If you see three or four; five, you start getting a bit worried, K
perhaps -- and that is a generalisation. You go on up the
L
ladder, 10, 11, 12. L
15, then that is a point at which the accumulation--”
M (transcript, day 21, p. 74 l. 21 – p. 75 l. 3) M

N Before he could complete that answer, Mr Radley was asked another question N

but as noted by the judge (at paragraph 596) it is evident from his position as
O O
stated in the Joint Report and his oral evidence that a point would be reached
P when the accumulation would become significant. P

Q Q
76. While Mr Westwood considered the point valid on an individual
R basis, he disagreed with Mr Radley on the effect of an accumulation of rarities. R

As recorded by the judge in paragraph 522, Mr Westwood analogized

S S
accumulation to the weaving of a tapestry, having “to bring together this string
T of features …and weave it altogether in a very subtle pattern”. The judge T

rejected Mr Westwood’s reasoning because it was relying on an accumulation

U U

V V
A
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of neutral features to come to a positive view. In our view, the judge was
B B
correct in rejecting that explanation.
C C

77. In paragraph 38 of his Preliminary Report, Mr Westwood dealt

D D
with the likelihood of a forger managing to incorporate several rare features into
E one signature. He considered the likelihood minimal. It is important to note E

the premise of his conclusion: namely, that the forger had correctly copied the
F F
rare features from a model signature. That was the judge’s understanding.
G (See paragraph 604) Mr Westwood further opined that a combination of G

relatively rare features cannot of itself provide support for a proposition that the
H H
questioned signature is the product of simulation. Insofar as it is suggested in
I paragraph 32 (2) of Mr Mill’s written submission that Mr Westwood “correctly I

assumed” that the forger had produced numerous mistaken features but which
J J
all happened to correspond with a few samples he had never seen, all of which
K appear occasionally in genuine signatures, that has no evidential basis because K

Mr Westwood never gave evidence to that effect. It was a thinly-veiled

L L
attempt on Mr Mill’s part to resurrect his reformulation of Mr Westwood’s
M premise stated above which reformulation the judge had rejected. (Judgment, M

paragraphs 603 - 605)

N N

O 78. We agree with Mr Chang SC that by definition a signature O

containing many rare features is highly unusual and extremely unlikely to occur.
P P
That is plain common sense. It is also supported by academic writings.
Q Osborn (pp. 230-232) provides support for this approach. Of particular Q

relevance is the following extract (from pp. 231-232):

R R

“… Errors of commission consist in putting in what is not usual and

S habitual and, as has been pointed out, even though it may be possible S
to find in a sufficient amount of standard writing separate approximate
examples of every unusual characteristic appearing in a questioned
T signature, those individual characteristics may be so rare that the T
combination of all of them in one signature is so improbable as to
U amount to very strong evidence of forgery.” U

V V
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79. As noted in Huber & Headrick, Handwriting Identification: Facts

B B
and Fundamentals, pp. 64-66, Osborn also suggested a statistical basis to
C handwriting examination by the application of the Newcomb rule of probability. C

However he had overlooked the need to qualify the events as independent

D D
events which is essential for the validity of the Newcomb rule. Huber &
E Headrick are otherwise supportive of Osborn’s approach and consider that E

statistical inference has a vital role to play in handwriting identification. They

F F
espouse the ‘likelihood ratio’ which is a statistical means of testing a calculated
G value derived from a statistical sample. The calculation is explained at p. 66. G

H H
80. Accordingly, we reject Mr Mill’s submission that an accumulation
I of rare features in a questioned signature in fact made it more likely to be I

genuine. We are of the view that the judge was correct in accepting the
J J
validity of the statistical point.
K K
81. It was also suggested that the statistical point is invalid because it
L L
runs contrary to the guidance given by the Court of Final Appeal in Nina Kung.

M The judge dealt with that submission in paragraph 602. Mr Mill has not shown M
any error in the judge’s reasoning. We find no merit in the point advanced.
N N

82. Finally, we turn to a point which did not appear in Mr Mill’s

O O
written submissions nor in the first defendant’s Amended Notice of Appeal but
P which was taken below and made orally on appeal. Mr Radley was asked a P

number of questions based on specimen 66. They related to the existence of

Q Q
other rarities in the specimen signatures. Mr Radley was castigated for
R ignoring them. This line of cross-examination was an attack on the validity of R

the statistical point.

S S

T 83. The judge dealt with this matter in paragraphs 703-708 of his T

judgment. He found that Mr Mill’s attempt to show other rarities by reference

U U

V V
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to specimen 66 was not a matter covered in any of Mr Westwood’s reports; it

B B
was neither mentioned at the joint meeting between the experts or in the Joint
C Report. The judge rightly dismissed the point, observing (at paragraph 705) C

that:
D D

“… No warning was given to Mr. Radley and those acting for the
E Plaintiff (not to mention the court) that this was coming. I must say E
this is wholly against the spirit and the terms of the expert directions. It
F is an ambush which has no place in modern litigation. Mr. Chang was F
entitled to object and he did object. Nobody can criticise Mr. Radley
for declining to participate in such an exercise.”
G G

84. In conclusion, we do not consider that any of the criticisms made

H H
of the judge’s adoption of Mr Radley’s approach has any merit.
I I
85. We now turn to consider Mr Mill’s challenge to the judge’s
J findings and conclusions relating to the specific features of the Nina Wang J

signature and the Winfield Wong signature.

K K

L The Nina Wang signature L

M M
86. Mr Radley initially identified 17 features in the questioned

N
signature that he regarded as significant, some of which had no matches and N
some he considered as features that rarely occurred in the specimen signatures.
O O
For ease of reference, the questioned signature with the numbered features is

P reproduced below: P

Q Q

R R

S S

T T

U U

V V
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87. Also for ease of reference, the judge’s findings in relation to the
B B
features other than those conceded by Mr Radley as no longer significant are
C summarised in the table below: C

D D
Feature number Description of feature Judge’s findings
E (i) & (ii) The left-hand downward The 2 features are E
stroke of the “N” and its dependent and should be
F slightly angular turn to treated as one F

traverse horizontally
G 3 matches found out of 81 G
specimens
H H
This is a “more
significant” feature
I I
(iii) The rounded pen 3 matches found out of 81
J movement before the right specimens J
hand upward stroke of the This is a “more
K “N” K
significant” feature

L (v) The relative proportion of 5 matches found out of 81 L

the “i” in “Nina” and the specimens
M subsequent looping M
This is a “more
up/down pen movements significant” feature
N N
forming “na”
(vi) The “i” dot in “Nina” 2 matches found out of 81
O O
specimens
P P
This is a “more
significant” feature
Q Q
(vii) & (viii) The “T”-bar in “T.H” The 2 features are in

R substance one feature and R

should be considered
S together S

No match found
T T
This feature falls outside
U U

V V
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the range of variations,

B B
though “less significant”

C
than the other features C
mentioned
D (ix) The downstroke of the “T” This feature is relatively D

and the mimicking full prone to variations, not

E E
stop next to it helpful for the purpose of
identification or
F F
non-identification
G (x) The “H” in “T.H.” Not appropriate to split G
this into 3 sub-features, as
H the 3 elements are H

combined to form the

I I
whole character of “H”

J No match found. J

This feature is out of range

K K
This is a “more
L significant” feature L

(xi) The slope of the initial 5 matches found out of 82

M M
downstroke of the “W” specimens

N
(xiv) The rhythm of “an” in No match found N
“Wang”, instead of the This feature is out of range
O mimicking pen strokes in O
This is a “more
“an” and the stroke leading
P significant” feature P
to the top loop of “g” of
“Wang, the “an” was
Q Q
written in a significantly
R different manner with a R
diversity of slopes
S (xv) The top loop or eyelet of The top loop of the “g” S

the “g” in “Wang” manifested itself in a great

T T
variety of forms in the
specimens, not a very
U U

V V
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distinct feature and does

B B
not add much to what

C
feature (xiv) already C
demonstrates
D (xvii) The stepped alignments of The specimen signatures D

the four components of the show a great variety in

E E
signature pattern for this feature, not
a distinctive feature for the
F F
purpose of identification or
G non-identification G

H 88. In reaching the above findings on the individual features, the judge H

went through a most painstaking exercise in considering the expert reports

I I
before him, the oral evidence given by Mr Radley and Mr Westwood over
J 5 days, and the lengthy written submissions of the parties. His detailed J

analysis of the separate features runs from paragraphs 622 to 702 of the
K K
judgment.
L L

89. Even without undertaking the arithmetic calculation put forward by

M M
the plaintiff using the formula in Huber & Headrick, pp. 64 to 66, the rarity
N ratios for the features found to have matches (which ranged from 2 to 5 out of N

81or 82) alone justify the common sense conclusion that it is unlikely that all
O O
these rarities would occur at the same time in one single event.
P P
90. The judge made a consolidated evaluation of all the evidence in
Q Q
rejecting Mr Westwood’s conclusion that the Nina Wang signature was genuine.

R He had considered the significant differences; the rarities, the respective rarity R
ratio of each, the accumulation of rarities in the questioned signature; and the
S S
additional features put forward as similarities by Mr Westwood. He gave due
T weight to the rarities and the additional features of Mr Westwood, and in the T

U U

V V
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end accepted Mr Radley’s opinion, which was shared by Dr Giles, that the
B B
Nina Wang signature is a highly skilled simulation.
C C

91. In attacking the judge’s findings on Mr Radley’s significant

D D
features, the specific complaints made by the first defendant on this appeal are
E only in respect of those features for which the judge had found no matches, E

namely, features (vii) and (viii) as one feature, (x) and (xiv).
F F

92. For features (vii) and (viii), it was submitted that the finding was
G G
against the evidence of Mr Radley and Mr Westwood; that the judge rejected
H the suggestion of Dr Giles that this feature may be explained by the fact that the H

I
dash was written in the crease of the unfolded paper and reference should be I
made to specimens 4 and 80; and that the judge failed to consider specimens 23
J J
and 43b.

K K
93. None of the above complaints is made out. The judge was
L entitled to prefer the evidence of Dr Giles that features (vii) and (viii) should be L

considered as one (it being common ground that the evidence in her report and
M M
her comments on Mr Radley’s report was admissible) and equally he was
N entitled not to accept her suggested explanation as to writing in the crease, N

which he regarded as tentative and not pursued by either side with the experts
O O
called. The judge had considered specimens 4, 80, 23 and 43b, and rejected
P the suggestion that they or any of them could be regarded as a match for P

features (vii) and (viii) considered as one, for the reasons given in
Q Q
paragraphs 642, 558 and 557 of the judgment. Specimen 23 was one of the
R deteriorated hospital signatures the judge regarded as an inappropriate R

comparable in respect of feature (viii). There is no sufficient basis to interfere

S S
with his finding.
T T

U U

V V
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94. For feature (x), the complaint was that the judge adopted the
B B
evidence of Dr Giles that this feature was outside the range of variations in the
C specimens, contrary to the evidence of Mr Radley and Mr Westwood, who had C

found some matches in the specimens as stated in their reports. The judge
D D
rejected the matches put forward by Mr Radley and Mr Westwood because they
E had wrongly split this into 3 features in their consideration. He agreed with E

Dr Giles the specimens put forward did not have the long right-hand vertical.
F F
There is no substance for this complaint.
G G

95. The complaint in respect of feature (xiv) was again that the judge
H H
had adopted the evidence of Dr Giles (who agreed with Mr Radley on this
I feature), and that he had failed to deal with the first defendant’s arguments in I

the closing submissions, including the criticism at paragraph 236 of the

J J
submissions that Mr Radley’s insistence the “an” in “Wang” was arrhythmic in
K the questioned signature but rhythmic in the specimen signatures was K

incomprehensible when tested by comparing the 10 signatures by Nina Wang in

L L
her corrective affidavit of 14 September 2006 (specimens 97a to j).
M M
96. Dr Giles considered feature (xiv) as highly indicative of simulation.
N N
The judge subjected this feature to a careful analysis in paragraphs 656 to 689
O of the judgment and was critical of the evidence of Mr Westwood in avoiding O

the real point in issue. The suggestion of Mr Westwood that Mr Radley was
P P
shifting the goalposts from mimicking pen strokes to rhythm (apparently relied
Q on by the first defendant in closing submissions) was roundly rejected by the Q

judge.
R R

97. It is correct that the judge did not deal specifically with the point
S S
made in paragraph 236 of the submissions, although he had considered some of
T T
the signatures in specimen 97, which were among the 8 examples put forward

U
by Mr Westwood for the first time in re-examination as showing the lack of U

V V
A
- 39 - A

rhythm and necessitated in Mr Radley being recalled. In such a lengthy

B B
judgment, the judge could not be expected to deal with each and every point
C raised by counsel. In any event, it was Mr Radley’s evidence that the C

signatures in specimen 97 were all rhythmically executed. This was in answer

D D
to Mr Mill’s contrary suggestion put to him in cross-examination.
E Mr Westwood saw fit to include only 3 of the 10 signatures in specimen 97 (97a, E

g and j) among his 8 examples showing the lack of mimicking and rhythm, and
F F
the judge agreed with Mr Radley that none of them showed this feature. It is
G hardly a valid ground for complaint that this specific argument was not G

addressed by the judge.

H H

I The Winfield Wong signature I

J J
98. For the Winfield Wong signature in question, Mr Radley did a

K
similar exercise of identifying the features he regarded as significant. The K
questioned signature with the numbered features is reproduced below:
L L

M M

N N

O O

P P

Q Q

R R

S S

T 99. The judge’s findings in relation to these features are summarised in T

the following table:

U U

V V
A
- 40 - A

B B
Feature number Description of feature Judge’s findings
C (ii) The downstroke following 3 matches found out of 34 C
the initial “Y” (or “W”) specimens
D and the curve (or U-shape) D
This feature is an
leading upward again “independent rarity”
E E
(iii), (iv) & (v) The “en” (or “in”) All these features are
F structure immediately after about the relative size, F

the initial “W”; feature shape and positioning of

G G
(iii) is the short initial the left side of the “n” and
downstroke of the “n”, (iv) should be considered as
H H
is the lack of eyelet or loop one feature
I in the “n”, and (v) is the No match found I
wide gap between the “e”
J
This feature is a J
shape and the “i” shape
“significant difference”
K and an “independent K

feature”
L L
(vi) & (vii) The introductory stroke of No match found
the “g” (or “f”) and the This feature is a
M M
slope of the upward pen “significant difference”,
N movement forming the “fundamental difference” N
initial part of the loop and an “independent
O O
feature”

P
(viii), (ix) & (x) The downstroke of the “g” Given the nature of the P
(or “f”) feature and the wide range
Q of variation in the Q

specimens, this feature is

R R
not of much assistance
(xi) & (xii) The “ee”-like structure The 2 features should be
S S
considered together
T because (xi) refers to the T
structure being laboured
U U

V V
A
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and not fluent and (xii)

B B
(referring to the relative

C
elevation of the 2 “e”s) is C
relevant to the overall
D structure D

1 match out of 34
E E
specimens

F This feature is an F

“independent rarity”
G G
(xiii) The angular terminal 1 match out of 34
stroke of the “ee”-like specimens
H H
structure This feature is an
I I
“independent rarity”
(xv) The terminal stroke of the 1 match out of 34
J J
“W”, the small hook specimens
K pointing towards 3 o’clock This feature is an K

“independent rarity”
L L
(xxiii)(a) The lack of an No match found
introductory stroke at the
M This feature is a M
left hand end of the “significant difference”,
N horizontal bar across the “fundamental difference” N

“W” and an “independent

O O
feature”
P P
100. The detailed reasoning regarding the above features is found in
Q Q
paragraphs 739 to 796 of the judgment. As before, the judge did a

R
consolidated evaluation of all the evidence, particularly bearing in mind the size R
of the specimens. He found sufficiently persuasive evidence to reject
S S
Mr Westwood’s opinion that the questioned signature of Winfield Wong was

T genuine, and that there was sufficient evidence to support the opinion of T
Mr Radley and Dr Giles that this signature is a highly skilled simulation.
U U

V V
A
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101. As in the Nina Wang signature, on this appeal the first defendant’s
B B
challenge of the findings of the individual features is only in respect of those
C features for which the judge found no matches, namely, features (iii), (iv) and (v) C

as one feature, (vi) and (vii) as one feature, and (xxiii)(a).

D D

E 102. The complaint in respect of features (iii), (iv) and (v) was that the E

judge failed to deal with the first defendant’s arguments in the closing
F F
submissions as to why that combined feature was not a significant difference, in
G particular the comparison with the signature that Winfield Wong made in court G

(specimen P-5).
H H

I
103. The judge noted that features (iii), (iv) and (v) were considered I
together by Mr Mill in his closing submissions. Viewed properly as one
J J
feature, he did not think there was any match for it as the matches for the split

K
elements are more apparent than real when the initial part of the “n” is K
considered as a whole. He specifically mentioned specimen P-5 which was
L L
relied on in Mr Mill’s closing submissions and noted that this specimen was not

M cited by Mr Westwood in his table. He was of the view that the initial part of M
the “n” in P-5 and the whole “en” structure in this specimen is deformed and no
N N
useful comparison could be made. In any event, features (iii), (iv) and (v)
O should be considered as one and he did not attach too much significance to O

feature (v) by itself. There is no substance in this complaint.

P P

104. For features (vi) and (vii) combined, the first defendant’s argument
Q Q
was that the judge was wrong to reject his contention in the closing submissions
R why this combined feature should not be regarded as a significant difference. R

S S
105. It is unnecessary to repeat the salient points made in the closing
T submissions which were set out in paragraph 753 of the judgment. Suffice it T

to say the judge gave entirely convincing reasons in paragraphs 754 to 763 for
U U

V V
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rejecting Mr Mill’s contention that features (vi) and (vii) combined was not a
B B
fundamental difference in the pen movement. On appeal, Mr Mill did not
C advance any argument to persuade this court in what respect the judge had erred C

in rejecting his contention, save to repeat and rely on his closing submissions
D D
before the judge.
E E

106. For feature (xxiii)(a), the first defendant advanced a similar

F F
argument, that the judge was wrong in rejecting his contention in the closing
G submissions why this feature was not a significant difference, and complained G

that the judge did not address any of the examples relied on by counsel. The
H H
salient paragraph in the closing submissions containing the theory advanced by
I Mr Mill was quoted in paragraph 791 of the judgment. The judge gave I

reasons in paragraphs 792 and 793 in rejecting that theory. Mr Mill did not
J J
deal with the judge’s reasons to demonstrate to this court in what way the judge
K was wrong. K

L L
107. There is plainly no sufficient basis for us to interfere with the

M judge’s findings on the above features. M

N 108. In any event, the argument advanced by the first defendant N

regarding the judge’s findings of no matches for 3 of the features in each of the
O O
Nina Wang signature and Winfield Wong signature does not advance his case.
P Even if the judge had erred in finding no matches for all 6 features, these P

features are still rarities in that they rarely occurred in the specimens. As
Q Q
submitted by the plaintiff, assuming all these features were treated as rarities
R instead, the inverse of the likelihood ratio would give odds in the region 1 in R

tens of trillions (13-digit to 14-digit figures) for the Nina Wang signature and
S S
odds in the region 1 in the billions to tens of billions (10-digit to 11-digit figures)
T T
in the case of the Winfield Wong signature, using the formula in Huber &

U
Headrick. U

V V
A
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109. We, therefore, conclude that the judge was correct in his
B B
assessment that the signatures purporting to be those of Nina Wang and
C Mr Wong in the 2006 will were forgeries. C

D D
The respondent’s notice
E E
110. Given the conclusions to which we have arrived, the points raised
F in the respondent’s notice are for the most part irrelevant. We would simply F

say that on the evidence as to Nina Wang’s consistent use of fung shui, there
G G
must be some possibility that whatever document Mr Wong and Mr Ng
H witnessed on 16 October 2006, it may well have been a fung shui will. H

I
Without seeing the document, it would be impossible for any witness, still less I
the court, to make any definite finding on the matter.
J J

The appeal as to costs

K K

L
111. There were 4 matters which were raised by the first defendant in L
respect of costs. The first was that the judge should have made an issue based
M M
costs order or a proportional costs order. The second was that the judge should

N not have ordered that the plaintiff was entitled to its costs on an indemnity basis. N

The third was that the judge should not have ordered that the costs of the
O O
administrators pendente lite be paid by the first defendant. Finally it was said
P that the second defendant’s costs should not have been ordered to be paid by the P

estate and indemnified by the first defendant.

Q Q

112. None of these matters had any merit. We approach this matter on
R R
the basis, first of all that the order in respect of costs is very much a matter of
S discretion of the judge. This court does not interfere with orders for costs S

T
except in circumstances which would require this court to do so on the settled T
principles relating to the exercise of discretion. By far the most important
U U
point in relation to the costs in this case is that it would be scarcely imaginable

V V
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that a court could do otherwise than order costs on an indemnity basis given the
B B
findings of the judge. It was proved that the first defendant knowingly put
C forward a forged will in the hope of securing for himself an immense fortune. C

In doing so he told lies. That must on any footing be an egregious abuse of the
D D
process of and an affront to the court. Any other order than costs on an
E indemnity basis would be inconceivable. E

F F
113. The judge did make an adjustment as to the costs by depriving the
G plaintiff of costs in respect of 2 witnesses relating to testamentary capacity. G

Given the circumstances, that appears to be a fair way of dealing with the matter
H H
where the first defendant has brought the matter on himself and on the face of
I the matter was responsible for the plaintiff taking every point that was open to it. I

Although this court was asked to somehow apportion the costs, no sound basis
J J
on which this court should do so was proffered.
K K
114. Citing Williams, Mortimer & Sunnucks, Executors, Administrators
L L
& Probate (2008) paragraph 24-59 and referring to paragraphs 60 to 63 of the

M Court of Final Appeal decision in Nina Kung v Wang Din Shin (No 2) (2006) 9 M
HKCFAR 800, the judge held that it is well settled that the liability for costs of
N N
a probate action in general covers the charges of an administrator pending
O determination of the action and the costs of the application for his appointment. O

As the judge rightly stated, the fact an appeal was pending was nothing to the
P P
point.
Q Q
115. The judge held that it was reasonable and proper for the plaintiff to
R join the Secretary for Justice as a party to this action. He did so for sound R

reasons. The costs of the Secretary for Justice were kept to a minimum and in
S S
the circumstances these were costs occasioned because of the first defendant’s
T T
stance in relation to the 2006 will. In our view it was right that the judge

U U

V V
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should order that the costs of the Secretary for Justice should be borne by the
B B
estate and the first defendant should indemnify the estate in that respect.
C C

The application to adduce further evidence

D D

116. The first defendant applied to adduce further evidence which

E E
consisted of the fee notes presented by Mr Sujanani for the period from 5 April
F 2007 onwards. It transpired that the only matter sought to be relied upon was F

the first page of the bundle which showed amongst other things the fees charged
G G
in respect of the conference on 12 April 2007. The fact that 5 hours was
H charged in respect of the conference does not necessarily reflect that Mr Wong H

I
was with Mr Sujanani for the whole of that period, particularly as Mr Sujanani I
clearly did drafting work after the conference, which was reflected in the entry
J J
for the following day. Nevertheless, since this court was appraised of the

K
matter and since the entry in respect of the conference with Mr Midgley has also K
been referred to, the admission of the first page of the fee note will be acceded
L L
to.

M M
Conclusion
N N

117. In view of the foregoing, this court has no hesitation in dismissing

O O
this appeal. The first defendant has persisted in pursuing a thoroughly
P dishonest case. In doing so, he has abused the process of the court. The P

court will hear the parties as to costs but will nevertheless give an indication
Q Q
that in the absence of any argument as to costs the court would make an order
R that the costs should be on an indemnity basis with a certificate for 3 counsel. R

S S

T T

(Anthony Rogers) (Doreen Le Pichon) (Susan Kwan)

U U
Vice-President Justice of Appeal Justice of Appeal

V V
A
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B B

Mr Denis Chang SC, Mr Johnny Ma, Mr Jeremy Chan & Mr Willard Li,
C instructed by Messrs Wilkinson & Grist, for the Plaintiff/Respondent C

D Mr Ian Mill QC, Mr Godfrey Lam SC & Ms Frances Lok, instructed by Messrs D
Reed Smith Richards Butler, for the 1st Defendant/Appellant
E E
Mr Richard Fawls, of Department of Justice, for the 2nd Defendant/Respondent
on 13/1/2011
F F

G G

H H

I I

J J

K K

L L

M M

N N

O O

P P

Q Q

R R

S S

T T

U U

V V