Background
This decision arises out of a high-profile probate dispute which centers on competing claims to the estate of the late Madam Yang Foo-Oi (“Mother”), the former wife of Nan Fung founder. The plaintiff (“Angela”) seeks to admit into probate an alleged 2008 will naming her as the sole beneficiary and executrix. The defendant (“Vivien”) propounds an earlier 2004 will of Mother. In Angela Chen v Wai Wai Chen [2025] HKCFI 1615, Vivien successfully secured an adjournment of a 30-day trial originally scheduled to commence in September 2025.
Distinguishing Daimler AG v Leiduck (No 3) [2013] 5 HKC 242
In granting Vivien’s application for adjournment, Winnie Tsui J distinguished the present case from Daimler, where it was emphasised that interlocutory appeals to the Court of Appeal during ongoing trials are highly undesirable and strongly discouraged. While the Court of Appeal retains discretion to hear interlocutory appeals during an ongoing trial or hearing, this discretion is only exercised in exceptional circumstances.
Winnie Tsui J found that the circumstances of the present probate case are sufficiently distinguishable for the following reasons:
- Timing and Reasonable Diligence in Pursuit of Appeals
Unlike Daimler, which concerned situations where the leave to appeal application was made shortly before or during trial, Vivien initiated her interlocutory appeals and leave to appeal applications more than a year ahead of the scheduled trial. She repeatedly impressed upon the Court of Appeal’s Registrar regarding the impending trial dates and consistently sought to expedite the appeal proceedings, demonstrating a level of reasonable diligence that materially distinguishes the present case from Daimler.
- Material Impact on the Trial’s Scope
Vivien’s appeals raise substantive issues that could materially reshape the pleaded issues and evidence at trial. These include, inter alia, the solicitor’s role in taking instructions for the disputed 2008 will, the circumstances surrounding the preparation and drafting of the will, and the reasons provided by Mother for making the will. In contrast, Daimler concerned an interlocutory leave to appeal application, the relevance of which might eventually prove academic depending on the trial’s final outcome. The gravity and immediacy of the issues raised in the present case clearly distinguish it from Daimler.
- Genuine Purpose and Good Faith
In this case, Vivien’s lack of knowledge of Mother’s various testamentary documents (allegedly made after the 2004 will) is not in dispute: she only became aware of the disputed 2008 will in 2016, the 2005 codicils in August 2021, and the 2007 codicil in as late as October 2023. The Court accepted that Vivien’s interlocutory appeals, for third-party discovery and amendment of pleadings, were driven by a genuine need to advance her case, rather than by any improper attempt to delay the trial as alleged by Angela.
- Impossibility of Expedited Appeal Hearings
Whilst the Court of Appeal retains discretion to hear appeals on an expedited basis, the weight and complexity of Vivien’s appeals render it unlikely that they can be resolved before the original trial dates.
Conclusion
Based on the factors set out above, Winnie Tsui J distinguished Daimler and granted Vivien’s adjournment application.
The present case is a rare instance after the civil justice reform where an application to adjourn a trial (which is considered a milestone date) was granted. Angela Chen v Wai Wai Chen provides practitioners with a helpful illustration of how, despite the high threshold generally required to adjourn a trial, judicial discretion can be exercised in a principled manner where bona fide interlocutory appeals (the outcome of which would have a material or considerable impact on the trial) are genuinely pursued with reasonable diligence. It is respectfully suggested that such measured flexibility safeguards fairness without compromising on procedural integrity.
The full judgment can be viewed here: https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=168382&currpage=T
Paul Shieh SC (Temple Chambers), Johnny Ma SC, Alexander Tang, and James Man (Temple Chambers), instructed by Anthony Siu & Co, acted for Vivien.
