CAI GUO XIANG v. MOK HANG WON ELSA

HCAP13/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO.13 OF 1997

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J U D G M E N T

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THE PARTIES' CASES

1. I shall call her Elsa (Mok Han Won, Elsa - 莫杏婉). Elsa came to Hong Kong from the Philippines in or about 1970 as a fashion designer. She had worked in a dressmaking school as an instructor or teacher. Thereafter she had worked in various stockbrokers firms as a clerical staff. By 1976, she got interested in the share market in Hong Kong and came across Carmen Cheng Bik Yin (鄭碧賢) at a stockbrokers office. Carmen became one of her best friends.

2. In 1978, both Elsa and Carmen met Choy Ching Ming (蔡晶明) also at a stockbrokers company. Carmen did not like Choy but Elsa got on with him quite well. According to Elsa, they developed a relationship and started to cohabit together since 1986 at Elsa's flat in Ko Shing Street ("the Ko Shing flat"). Elsa got an elder sister called Rosa Yam Chan (莫杏幼), also known as Mok Sim Ying (莫蟬霙). Rosa used to live in the Philippines but came to Hong Kong from time to time and visited Elsa.

3. On or about 24 May 1996, Rosa came to Hong Kong and in the evening, the four of them, i.e. Choy, Elsa, Rosa and Carmen, had dinner together in a restaurant near Elsa's home in Sheung Wan. After dinner, they intended to have a walk first, but Choy felt some soreness in his leg, so all of them went back to Elsa's home. Elsa massaged Choy's leg and Choy expressed that he was useless as he was getting old. Thereupon, Elsa said : "If you know that, you should write something down to protect my interest in case something happens". Choy then told Elsa to write something down for him to sign and Elsa enquired whether he would give her everything he had. Choy said "Yes". Elsa then took one of the blank bank pay-in slips on the table and cut off the four sides of it with scissors and paper-cutter and wrote in Chinese as follows :

「1996年5月24日，我蔡晶明將來去世後，願意將所有財產與股票，交給我同居妻子莫杏婉承受一切，恐口講無憑，立此為据，以表我心。」

Then she showed it to Choy who read it and took out his own fountain pen and signed on it. Thereafter, Elsa showed it to Rosa who also signed on it as a witness to this document and, in particular, to the signature of Choy.

4. Elsa had also asked Carmen to sign on it. But Carmen refused and said that she was crazy as "Bald Head" (a nickname used by Carmen for Choy) had not asked her to sign. Elsa then folded the document twice, put it in a plastic bag used for silk stockings and gave it to Rosa to keep. Rosa then put it into her handbag. Shortly afterwards, Rosa and Carmen left the flat leaving behind Choy and Elsa.

5. On 12 July 1996, Choy and Elsa were at a stockbrokers' firm called Jospa Investment. Choy suddenly felt unwell and, according to him, that was as a result of being frightened by a vehicle when he crossed the street earlier. Mr Ng Bing Chu (伍秉柱) was the proprietor of this company and he knew both of them quite well, Choy being an investor with Jospa and Elsa being a clerical staff of Jospa before. Thus Mr Ng, Elsa and a female staff helped Choy to go to Hong Kong Sanatorium & Hospital by an ambulance. Choy went into coma for 10 days as a result of a stroke but recovered his consciousness thereafter.

6. On or about 2 August 1996, Carmen visited Choy and met Elsa at the hospital. Elsa had all along been accompanying Choy on 24 hours basis, i.e. she spent the nights beside Choy whilst he was in the hospital and took care of him. Choy asked Elsa to take out his bunch of keys from the drawer and held a key to his safe deposit box with Po Seng Bank. He said to Elsa to the effect that that was the key to the safe deposit box and gave it to Elsa together with his other keys in the same bunch. At the same time, he told Elsa that in the future she would be a "God of Fortune" (財神爺). Before Carmen left, Elsa wanted to put the blanket properly over Choy as she wanted to accompany Carmen downstairs. There and then Choy said to Elsa, which was heard by Carmen, that "If anything fatal happened to me, everything in the safe deposit box would be yours" (將來我有乜嘢冬瓜豆腐，嗰個保險箱裡面D嘢，就係你嘞).

7. Choy was on the road to recovery but his condition suddenly deteriorated and died on 28 August 1996. Elsa was with him at that time and she handled the funeral matters. She published an obituary in the newspapers and contended that she was the widow of Choy.

8. Mr Ng was not happy with Elsa's contention and he published advertisements both in New York and Shanghai because he was told by Choy much earlier that he got a wife and a daughter in New York and a younger brother in Shanghai. In or about September/October 1996, a Jennifer Wong ("Jennifer") phoned Mr Ng from New York and said she was the daughter of Choy (Jennifer Wong was previously known as Jennifer Choy). She said that her mother was Wong Siu Mui and she has changed her surname from Choy to Wong since their immigration to the USA in 1974. The two Wongs came to Hong Kong and informed Mr Ng about the address and whereabout of Choy's brother in Shanghai, who is the plaintiff herein Cai Guo Xiang (蔡國祥). The Wongs were represented by Messrs David Y.Y. Fung for sometime until they had settled by an agreement with Mr Cai. Thus the question of whether Wong Siu Mui was the kit-fat wife of Choy is not an issue before this court, though the court was informed that she would share the estate with Mr Cai by way of a settlement agreement.

9. On 24 September 1996 Elsa opened the safe deposit box in Po Seng Bank in the presence of Cai's solicitors and officers from the Estate Duty Office. They discovered that Choy in fact had nearly $100 million time deposits with various banks and shares of about $80 million, whilst Choy had been receiving Social Welfare Assistance since 1989. Elsa undertook to the court through her counsel that she would repay all sums received under the Assistance with interests should she succeed in the action herein.

10. In the probate action herein, Mr Cai claimed that he is the brother of Mr Choy and therefore entitled to Choy's estate under his intestacy. Elsa of course counterclaimed that she is entitled to the estate of Choy under the aforesaid will of 24 May 1996, signed by Choy and witnessed by Rosa. Further or alternatively, Elsa also claimed she is entitled to everything in the safe deposit box by way of donatia mortis causa. I shall now deal with the legal position of the will first.

THE LAW

11. The Wills Ordinance provides in section 5(1) that two witnesses are formally required in order to validate a will. It is clear that there was only one witness (Rosa) signed on the will.

12. In the past, a Chinese will executed by a Chinese would not require any witness. However, this section has already been repealed in 1995 and was replaced by a new section 5(2) which is unique for Hong Kong. Section 5(2) provided that :-

"5. Signing and witnessing of a will

...

(2) A document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed in accordance with the requirements under subsection (1), be deemed to be duly executed if, upon application, the court is satisfied that there can be no reasonable doubt that the document embodies the testamentary intentions of the deceased person."

The material words in section 5(2) are "the court is satisfied that there can be no reasonable doubt".

13. Mr Hylas Chung, counsel for Elsa, submitted that all that is required is that the court should be satisfied on a balance of probabilities that there can be no reasonable doubt or, at the most, on a high degree of probabilities. To my mind, I cannot accept the notion of "probably there can be no reasonable doubt". The notion of "probably there can be no reasonable doubt" is, to my mind, equivalent to "no reasonable doubt". Further, "no reasonable doubt" is equivalent to "beyond reasonable doubt" since when the court has no reasonable doubt, the court is satisfied that the matter is beyond reasonable doubt.

14. Since this section is unique in Hong Kong and there is no authority decided thereon, I would construe the section, as stipulated by the legislature, requiring the highest standard of proof of beyond reasonable doubt that the will of the testator was executed by him with testamentary intention. I consider that the legislature requires the highest standard of proof in cases where any formal requirement is not satisfied. Otherwise it will make a mockery of the formal requirements. This, in effect, would mean that the court is required to apply the highest standard of proof of beyond reasonable doubt when considering whether the document embodies the testamentary intentions of the deceased person.

15. Accordingly, those authorities in respect of a higher standard of proof in civil matters, i.e. on a high degree of probabilities, have no application to cases falling within section 5(2).

16. Before I venture to deal with the facts of the case and apply the law thereon, I shall first of all deal with the general credibility of the main witnesses in the case.

CREDIBILITY OF THE MAIN WITNESSES

Elsa

17. Elsa is a carefree style woman. That is why I was not surprised she has been giving inaccurate accounts of those events of important occasions. The most serious failure was when she said (when she was being recalled), the will had already been found before she met Carmen on the occasion when Carmen reminded her of Choy's testamentary script. This does not make sense at all. This was totally in stark contrast of all previous oral evidence given by other witnesses on her side, and even her own testimony given earlier.

18. Her demeanor before me could be well understood and explained by her personalities. She was a fashion designer before and therefore was particularly trained in trimming and cutting. With respect, she gave me a clear impression that she is not clear-headed and therefore she bores a poor memory and illogical thinking. She is sometimes confused. However, she is not a dishonest witness since her evidence is too inconsistent, in a sense that she gave inaccurate evidence. Therefore, she could not be regarded as a reliable witness.

Rosa

19. In contrast to Elsa, Rosa is well educated and was a headmaster before. After her retirement as a headmaster, she has been heavily committed in communities services in recent years. She has received a lot of commendations and certificates of award. Comparing with her younger sister Elsa, Rosa is more clear headed and exact, though she has also made mistakes when she was recollecting the bits and pieces in relation to timing and sequence of some incidences, e.g. the events of retrieving the testamentary script.

20. Judging on her performance in the witness box, I considered her as an honest, frank and direct witness. She is reliable in most aspects of the events.

Carmen

21. Among the three women having given evidence before me for the defendant's side, Carmen is the most exacting bordering on being fastidious. She admitted she has an exacting schedule of life and it is usually the Mok sisters who have to follow her way. She answered confidently and meticulously when she was cross-examined by the plaintiff's counsel. She got quite a good memory and she could well remember some of the very details of several incidences. This character of her, having a good memory, is at one with the defendant's alleged fact that she was indeed the one who reminded the sisters of the existence of the slip of paper signed by Choy on 24 May 1996, i.e. the will.

22. She did not appear to be giving concocted evidence since she quite insisted on her own recollection rather than managing to give an agreed version with Elsa and Rosa. She said Elsa wrote on the back of the pay-in slip. That was probably influenced by what Elsa was murmuring to herself. This was not a concocted version with Elsa. She could have said the front of the slip after the expert's evidence. She just insisted on her own recollection. She even admitted frankly before me that she did not like that Bald Head (the nickname of Choy) at all. That shows vividly her non-obliging character.

Mr Lam

23. He is a teacher and he met Choy and Elsa by chance at a restaurant in August 1995. Since then he got along with Choy very well. By and large, he is an honest witness. The main recollection from Mr Lam was the timing at the night in question when the will was prepared, i.e. 24 May 1996.

24. According to his oral evidence, he insisted that it must be around 8:30 p.m. that night that Choy gave him the telephone call asking him to have tea with him the next day. He said he could be wrong by plus or minus 15 minutes but that cannot be 9:00 p.m. The reason given as to why he was so sure was because it has been all along his habit that he goes to bed before 9:00 p.m. However, he actually could not recall clearly the timing of this call and he just relied on his usual habit. His insistence and eagerness in giving me that particularly exact time and that "presumed-to-be-right" information could not convince me that it is reliable. I found that Choy probably phoned him after Rosa and Carmen had left. Apart from this point which I found Mr Lam was just a bit inaccurate, I found him an honest witness. I believe him when he said after Choy's death, Mr Ng had asked him for a photo of Choy and Elsa in order to expose Elsa's wrongdoing in a TV show.

Mr Ng

25. It has been emphasized by the plaintiff's counsel that Mr Ng's evidence should be strongly accepted as reliable since there is simply no reason for him to lie as he has no interest in this case. However, having observed and listened to his evidence, I would regard him as an unreliable and inaccurate witness.

26. He was evasive when he was giving evidence regarding the intimate and close relationship between Elsa and Choy. He was unwilling to admit their relationship even he well understood Elsa had taken care of Choy for a long period of time. This conclusion could be supported by the undisputed fact that on 12 July 1996, he had requested Elsa to look after Choy, who was admitted into hospital. If he did not know their close relationship, why did he choose Elsa, who was not and has never been a qualified medical nurse to take care of Choy which demanded very personal services?

27. He simply did not want to admit the iron fact that Elsa had long been a very close company of Choy. It is not exaggerating to say that Mr Ng did and does have bias against Elsa. He has been looking down on her to such an extent that he thought she only deserved to be a servant but not his girlfriend. He simply could not give me a satisfactory explanation on why he had refused to reimburse Elsa's contribution on Choy's funeral expenses. The only reason was that he did not like her and is therefore unable to accept Elsa's privileged status in Choy's eyes. He said there was a commotion among his staff when they read the obituary of Choy. In fact, the only commotion was Elsa describing herself as a widow of Choy formally. I believe he and his staff should know their intimate relationship.

28. Further, Mr Lam said Mr Ng had asked for a photo of Choy and Elsa and said he wanted to reveal Elsa on the ATV show of "Private Eyes". Mr Ng denied all this. I believed Mr Lam was telling the truth and Mr Ng was just trying to side-step his prejudice against Elsa.

Jennifer Wong

29. Jennifer said that her mother knew by 1993 that Choy had purchased the Jubilee flat in 1993 and the key (or keys) to this flat had been given to her (see T691K-Q). However, her mother did twice complain in her letters (dated 20 August 1994 written by Jennifer herself and the previous one dated 1 April 1994) that she was waiting for Choy outside Hang Seng Bank for an hour after she could not find him at the fur company and the stockbrokers office. That was January 1994. If she had already got the key, why did she not go to the flat straight or in the evening instead of waiting elsewhere? The only answer is she did not have the key by that time. Jennifer eventually admitted that after these letters were produced from her previous solicitors, Messrs David Y.Y. Fung when she was recalled.

30. Further the copy of the letter of Choy sent to her mother (undated) referred to a change of correspondence address to the Jubilee flat and Choy referred this as a godown or storeroom only and it was unsuitable for residence! He even asked them not to write too often, at most once every 2 months! He also stated that by 10 August 1994 the old address had already been cancelled. Jennifer at one stage insisted that they had already known the purchase of the Jubilee flat in 1993 when her mother came back and even thought her mother had lived in that flat with her father (see T688K-M). But eventually she admitted that they just learned about the Jubilee flat from Choy's letter in or about August 1994 (see T711H-L and T711T-722C).

31. However Jennifer at one stage still said her mother got the key in 1994 (see T712Q-R), which she also has to admit that was wrong (see T713T). The next occasion her mother was in Hong Kong was 1996 but she then said she was not sure, she could not recall. I shall deal with the issue regarding the position of the keys to Jubilee flat hereinbelow.

THE KEYS TO THE JUBILEE FLAT

32. The property was purchased by Choy in the name of his friend, Cheung Kwai Woon in April 1991. His daughter is the senior partner of Messrs David Y.Y. Fung & Co., Ms Emily Cheung. The following is the plaintiff's submissions on the keys :

1995	Choy gave keys to Jennifer
Nov 1996	Jennifer gave a set of keys to Emily Cheung (P32)
May 1997	Jennifer gave keys to Nanyang Commercial Bank (NY Keys)
Sept 1998	Lock to the flat was changed

33. The present situation (as at 5 Jan 2001) is as follows :

Cheung (P32)	One short key can now open the iron gate, but not long one to the wooden door
Jennifer (P29)	One long key can now open the wooden door, but not the short one to the iron gate
The NY Keys	Can now open both the iron gate and the wooden door

34. The shorter key (P32A) was identical to the smaller key (for the iron gate) produced by Nanyang.

35. Two keys from the bunch of keys produced by Elsa (D1) which were given to her by Choy matched with two keys in the Po Sang Bank deposit box (PS keys) and they resemble the two NY keys but are not identical to them, i.e. they could not open the two doors.

36. The plaintiff submitted that the keys now produced by the defendant as being the keys in the bunch of keys given to her by Choy in hospital were not in fact so given to her by him.

37. The defendant submitted that the plaintiff's solicitor's bare assertion that only the wooden door and not the iron gate had been changed should not be believed. Jennifer Wong must have unlawfully obtained entry to the Jubilee Flat. Someone from the plaintiff's side must have unlawfully entered the Jubilee Flat prior to Jennifer Wong's first entry.

38. It is now clear that two keys out of those six keys produced by Jennifer Wong were in fact keys to the Ko Shing Street flat, i.e. Elsa's home. First of all, I agree that there is no reason why Choy would give the Ko Shing Flat keys to Jennifer or her mother at all. It is highly probable that Jennifer obtained the keys inside the Jubilee Flat. Jennifer's version of the events is not credible.

39. A comparison of the keys produced shows that the lock/key to the iron gate of the Jubilee Flat must have also been changed.

40. The plaintiff contended that it is the lock of the wooden door which was changed, not the iron gate. But if the lock of the iron gate was not changed, there is no reason why the iron gate key from P29 (JW) does not match with that of the NY keys (which can open the iron gate). The only inference to be drawn is that the lock/key of the iron gate has also been changed. This is also supported by the fact that the iron gate key of the NY keys matches with that of P32 (which can open the iron gate) while the PS keys (which cannot open the iron gate) do not match with P32. If the lock of the iron gate had not been changed, then all the iron gate keys from P32, P29, the NY keys and the PS keys should match with each other.

41. Thus, it is my finding that the lock of the iron gate was also changed and Jennifer Wong's version in this respect is untruthful.

42. However, a full picture of the events cannot be inferred from the comparison of the keys.

43. It is known that P29 can now open only the wooden door, but not the iron gate, of the Jubilee Flat. On the contrary, P32 can now open only the iron gate, but not the wooden door, of the Jubilee Flat. There is no reasonable explanation for this present situation without further pieces of evidence.

44. P32 (which cannot open the iron gate) was alleged to be given to Emily Cheung in November 1996. The NY keys can now open the iron gate while P29 (JW) cannot. Thus, it is highly probable that P32 was given to Emily Cheung later after the lock of the iron gate was changed and P29 was not so given to Jennifer Wong by Choy as alleged.

45. On a balance of probabilities, I accept the defendant's submission that Jennifer Wong must have obtained the keys inside the Jubilee Flat after breaking-in, rather than from Choy. This is in line with Emily Cheung's evidence that her impression was the Wongs did not have the keys when they asked whether it would be alright to enter the Jubilee Flat.

THE RELATIONSHIP BETWEEN CHOY AND WONG SIU MUI AND CHOY'S BROTHER, THE PLAINTIFF

46. Jennifer Wong originally tried to give this court the impression that all along her mother and herself had maintained a close relationship with her stepfather Choy even after their immigration to the USA. Her contention that Choy had given them the keys to the Jubilee Flat properly in 1994 was proved to be false. She has to admit that after those letters of her mother were produced in the midst of the trial by Messrs David Y.Y. Fung, the solicitors. In fact, other documents in the solicitors' file are more telling.

47. Madam Wong Siu Mui left Choy in 1974 with Jennifer to the USA. That was the lowest depression of Choy in his life. He apparently was indebted to the Bank to the extent of more than $2 million after the crash of the shares market in 1973. Shortly afterwards, Jennifer Choy even changed her name to Jennifer Wong.

48. From a document probably hand-written by Choy in the aforesaid solicitors' file (at page E-7 or page 926 in the bundle), Choy described his relationship with Madam Wong. It has not been proved that what he had written is true. In fact, some of his contents in his letters to his brother are not true, e.g. he told his younger brother in Shanghai that Madam Wong and her daughter Jennifer had already died in the San Francisco earthquake. However, the document is at least clear evidence that he had very strong negative feelings against Madam Wong. From his letters to his brother, it is also clear that he could not accept the fact that Madam Wong deserted him in the midst of his misfortune.

49. On the other hand, Choy maintained a close relationship with his brother as evident from all Choy's letters to him. In a letter dated 20 April 1996 from his brother to Choy, he thanked Choy for giving him an enormous amount of money which he had not yet spent ("承贈巨款，弟尚未動用"). He said the amount would be sufficient for the two of them for the rest of their lives when Choy retired and came back to Shanghai. The plaintiff has not disclosed what is that amount of money. But it is clear that Choy had adequately provided his younger brother with an enormous amount of money.

50. In contrast to Choy's bitter feelings towards Madam Wong, Choy had a very close relationship with Elsa as analysed hereinbelow. It is therefore not improbable that Choy intended to give everything in his safe deposit box to Elsa whilst he was in his sick bed. This will be considered in more detail hereinafter.

THE RELATIONSHIP BETWEEN ELSA AND CHOY

51. Elsa said Choy started to cohabit with her since 1986. From the pieces of evidence adduced by various witnesses, I found that Choy became more and more intimate with Elsa over a period of time gradually. In April 1991 he purchased the Jubilee flat in the name of his friend, Cheung Kwai Woon. Thereafter, Choy sometimes went back to the Jubilee flat after dinner with Elsa to work on his accounts in stocks trading. The following witnesses supported the contention of Elsa.

52. Chan Tze Kau, the day-shift caretaker of Ko Shing Building, said that Elsa introduced a man to him as her husband and that was in or about 1986. He saw Elsa going out with that male every morning at around 8 to 9 a.m. and occasionally he could see them coming back together before 6 p.m.

53. Although he said at around Chinese New Year in 1996, he asked Elsa why he did not see Choy recently and Elsa replied that he was in hospital, that probably was a mistake due to faulty memory. That was because he also added that subsequently he learnt from Elsa that Choy passed away. The period of time must be in mid-1996 instead of earlier on.

54. The day-shift caretaker was supported by the night-shift caretaker, Ng Kei Tak. He only started to work in that post since January 1994 but he could say that Elsa and Choy usually came back together at around 7 to 9 odd p.m. and occasionally at 10 p.m. He also said that Elsa had told him that Choy was her husband. Sometimes when he was patrolling the building, he would see Choy sitting inside Elsa's home when she took out the garbage.

55. Elsa's version was also supported by vendor or shopkeeper in the vicinity. Lau Chung Choi, the sole proprietor of a bakery shop nearby, also knew Elsa since 1984. He said that Elsa usually came to his shop with Choy, and that was about eight or ten years ago but he could not be sure about the time. They usually shopped at his shop once or twice a week and sometimes they would pass by his shop.

56. The vendor of a fruit and vegetable stall nearby, Wong Wai Fong, also said that Choy and Elsa were her usual customers since seven or eight years ago. That would be about 1992. She called Elsa "Mrs Choy" because she heard Choy addressing Elsa as his wife and they usually shopped at her stall together.

57. Counsel for the plaintiff submitted that it is quite inconsistent that Elsa and Choy never introduced themselves to their social circle as husband and wife. This social circle comprised basically of those old friends they had met in the stocks trading. I do not find anything inconsistent. On the contrary, I think it is totally consistent with the behaviour of Elsa and Choy. They have decided not to get married formally. They have addressed each other as sze-hing ("師兄") and sze-mui ("師妹") since they met in 1978. They would not change these names for each other unless they had formally announced their marriage. Since everyone in this commercial circle knew that they were treating each other as brother and sister, it would be quite odd and embarrassing that they suddenly introduced themselves as husband and wife without a formal marriage. Thus they just kept the status quo, although some of their friends knew they have started an intimate relationship.

58. For example, Elsa's friend, Yip Yuk Lan, knew Elsa for 20 odd years and she knew Choy with Elsa at a broker firm called Hong Fu Company for some 10 odd years. She once phoned Elsa to inform her that Mr Leung wanted to invite her to attend his child's wedding banquet and his birthday banquet. On both occasions, Elsa said she would come with her senior, meaning her sze-hing Choy. When she phoned, she also heard a male voice but she could not be sure that was Choy. There was a time when Elsa started to go to the banquets together with Choy but she could not recall when they started to do so.

59. Wong Wai Lan also knew Elsa for 20 odd years and she also knew Choy at the Hong Fu broker firm. She said Choy and Elsa had attended Mr Leung's birthday banquets every year together and they were very close since they were always holding hands. There was an occasion about 10 years ago when Choy was drunk. Elsa said she would go home with him, i.e. to Elsa's home.

60. Elsa's cousin, Mok Chee, was also introduced to Choy by Elsa about 10 odd years ago at a Chinese restaurant. Then he was told that Elsa and Choy were living together. He remembered in or about 1987, he went to visit Elsa at Ko Shing Street and he saw Choy there wearing pyjamas and his clothings were hanging there also. He advised Elsa to register their marriage but they never did so.

61. Rosa also said that Mr Ng at one time complained to her that Elsa and Choy were very intimate and she should do something about it. Perhaps he meant they should formalize their relationship or they should not just continue on like that. Rosa took up the subject with Elsa but Elsa apparently could not convince Choy to get a formal marriage.

62. On the other hand, it would be embarrassing for Choy and Elsa to introduce themselves as sze-hing and sze-mui to the caretakers and shopkeepers in the vicinity of their home. They used to meet them in the morning. It would be just natural for them to introduce themselves as husband and wife. I found all these pieces of evidence entirely credible and consistent.

63. In short, the totality of all these pieces of evidence supported Elsa's contention that they started to cohabit together in or about 1986. I found that Choy spent more and more evenings gradually in this period of time with Elsa at the Ko Shing flat, although from time to time, Choy retreated into his flat at Ko Shing Street which was entirely used by him himself. He did not install a telephone at the Ko Shing flat partly under the excuse that it would be cheaper to use the caretaker's telephone downstairs. In fact, I consider that Choy did not like anyone to find him including Elsa and Madam Wong in the USA whenever he was alone in his own flat. He could reach anyone if he liked to do so by using the caretaker's telephone.

64. Accordingly, the intimate relationship between Choy and Elsa as husband and wife supported the belief that probably Choy would like to give his estate to Elsa upon his death.

DISCOVERY AND PROPOUNDING OF THE WILL

65. Having heard all the oral evidence given before me, I believe that it was probably in early January 1997 that Elsa was placed under pressure as by that time, her then solicitor had already asked her whether she got any testamentary script or proof as to her marital status with Choy. This is just usual and natural when her solicitor had already stated that she was the lawful kit-fat wife of Choy on her instructions. Subsequently probably in or around mid January, Rosa and Elsa met Carmen who then reminded them of the will made in May last year in 1996. After Rosa had flied back to the Philippines, within about one week, latest by or about 23 January 1997, she found the will but she was heavily engaged in her own voluntary works.

66. Elsa did not deny that, on 17 February 1997, there was a conversation between her and the son of Choy's brother in Shanghai. The absence of mentioning the existence of the will during that telephone conversation is understandable and acceptable since Elsa had not got back that script yet and both sisters had not been properly advised of its effect by lawyer.

67. According to Rosa's evidence, I believe that after Rosa had found the will, she simply could not get in touch with Elsa for some time as she was moving between different places including hiding in Chai Tong for some silent moments in order to forget this frustrating event and dispute, while Rosa was too busy involved in her community work and could not leave her place. After Elsa and Rosa's contact on or about 17 February 1997, within the following week or so, Elsa then sought Carmen's help and later a solicitor (in Landmark, surname Ho, according to Carmen) was introduced to Elsa advising her to go to the Philippines immediately to take the will back to Hong Kong before any advice could be given. That was a day before 27 February 1997 when Elsa went to the Philippines. On a balance of probabilities, I do not find anything seriously conflicting in their versions.

68. Based on the above facts I have found, probably the will was propounded in such a way described by the defendant's witnesses, Elsa, Rosa and Carmen. However, what I could at most find is, on a balance of probabilities, but not beyond reasonable doubt that the will was discovered in the way as described by them.

THE WILL

69. Regarding the execution of the will, the evidence given by the credible witnesses for the defendant, as I find them, was consistent with each other without significant discrepancies. However, there was still one hurdle that the defendant has to overcome before she could satisfy the standard of beyond reasonable doubt. That is to remove the suspicions in relation to the foldings before the writing on the paper, as supported by evidence given by the expert witnesses from both sides. (In this respect, I prefer the evidence of Mr Cheng, the Government Forensic Expert that only the middle folding was surely made before the writing but it is not certain when the two side-folds were made.)

70. In Tyrrell v. Painton [1894] p.151, the court affirmed the rule of evidence that wherever a will is prepared and executed under circumstances which raise the suspicion of the court, it ought not to be propounded for unless the party propounding it adduces evidence which removes such suspicion, and satisfies the court that the testator knew and approved of the contents of the instrument. There, the testator suddenly changed her mind and made a will in favour of the defendant. The will was drafted by the defendant's son, and was executed by the testator in the presence of the defendant's son and another friend only. The execution of the will was not known to anyone else until after the death of the testator. The only evidence was the evidence surrounding the execution of the will by the attesting witnesses saying, inter alia, that the testator read over the will and appeared to understand it and signed it. The Court of Appeal reversing the finding of fact by the judge held that the defendant had not discharged the burden.

71. Lindley LJ at p.156 took into account the suspicious circumstances of the fact that the will was in the possession of the son of the sole beneficiary who was the draftsman of the will and one of the two persons present when the will was made. He also set out two rules at page 157 :

"These rules are two: The first, that the onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased ..."

Also Davey LJ said (at page 159) :

"There rests upon that will a suspicion which must be removed before you come to the plea of fraud. It must not be supposed that the principle in Barry v Butlin is confined to cases where the person who prepares the will is the person who takes the benefit under it - that is one state of things which raises a suspicion; but the principle is, that wherever a will is prepared under circumstances which raise a well grounded suspicion that it does not express the mind of the testator, the court ought not to pronounce in favour of it unless that suspicion is removed."

72. Therefore, the combining effect of the legislation as well as the common law applicable in this case is that until the suspicion is removed satisfying that there is no reasonable doubt left in relation to the testamentary intention, the court would not pronounce the will.

73. Obviously, as I have analysed above, on a balance of probabilities, the will was propounded in the way described by the defendant's witnesses. However, there are still doubts left behind that could not be satisfactorily removed, for example, what was the exact day, and the occasion that the will was found and why Elsa did not tell the plaintiff immediately after the discovery. I have considered the arguments from Mr Chung for the defendant that the circumstances in which the will was propounded ought not be muddled up with the issue of suspicious circumstances in relation to the preparation and execution of the will. In Re R (1950) 2 All ER 117, Willmer J said at page 121 that :

"The conclusion which I draw from these authorities is that in dealing with a question of a will the circumstances which are held to excite the suspicions of the court must be attending or at least relevant to, the preparation and execution of the will itself."

74. I agree that the suspicion should be attached to the circumstances where the will is executed and prepared. However, the doubts on how the will was propounded would cast doubt on the credibility of the witnesses and therefore the evidence given by them.

75. The most important hurdle here is that expert witnesses from both sides said the middle folding had been made before the writing on the will. I accept their evidence. Elsa said the folding was made afterwards. Rosa and Carmen could not assist in this respect since they did not recall when Elsa made the foldings. It casts doubt on how the will was prepared and executed.

76. There has been no evidence given before me by the defendant's witnesses on why the middle folding was made before the writing and Rosa's signature on the will except eventually, when Elsa was recalled and requested to show again to the court how the will was prepared, she suddenly recollected that the pile of bank's pay-slip on the table might be folded lightly by one side lying on the other side. Little weight would be given on this evidence, since in the first place, new evidence given at such a late stage should be treated with great caution. Secondly, the way Elsa gave this information was also very shifty and unclear, she also appeared to be defident. Her latest demonstration in the box could not give rise to a hard folding. She was just trying to salvage a difficult problem. I can only accept possibly she had made a folding in the middle unconsciously or in any event could not remember it now. But she did not say so. That is still a long way of explaining why a folding had already been made before the writing.

77. In the premises, due to the quality of evidence given before me, I am of the view that there are real doubts on both the circumstances of propounding and execution of the will. The requirement of a very high standard of proof of no reasonable doubt could not be satisfied. Accordingly, I cannot be satisfied that there is no reasonable doubt the "will" contained the testamentary intention of the deceased Choy.

DONATIO MORTIS CAUSA ("DMC")

78. Elsa and Carmen gave evidence that on or about 2 August, the deceased gave Elsa the key to the safe deposit box ("SDB") together with the bunch of keys which also allegedly contained of the two keys to the Jubilee flat. Choy said words to the effect that Elsa would be a Goddess of Wealth and that in case anything should fatally happen to him, all the properties in the SDB would be hers. Carmen was the eye witness for the whole incidence.

79. The defendant contended that the said act done by Choy plus the words said amounted to a DMC consisting of :

1) all contents contained in the Box, namely, saving account passbooks, certificates of deposit, cheques and public listed company share certificates.

2) The Jubilee Flat.

80. The requirements for establishing a valid donatio mortis causa were set out by Lord Russell of Killowen CJ in Cain v. Moon [1869] 2 QB 283 at p.286 where he stated that three things must combine :

(1) the gift must have been made in contemplation, although not necessary in expectation of death;

(2) there must have been delivery to the donee of the subject matter of the gift; and

(3) the gift was intended to be conditional on the donor's death and intended to revert if donor recovered.

81. The burden and standard of proof is for Elsa to prove on a balance of probabilities there existed such a gift.

1. Was the gift made in contemplation of death?

82. In late July or early August 1996, the Deceased had recovered from a serious illness of stroke and coma. He was advised to have a long and good rest to enable a full recovery. The sudden attack of stroke and coma for over 10 days gave the Deceased a strong feeling that death might not too far or unlikely a matter. The answer to this question is affirmative.

2. Whether the gift was intended to be conditional on the donor's death and intended to revert if donor recovered?

83. In Lord Advocate v. M'Court [1952] All ER 184, it was said that if death was certain, so that the possibility of the donor's recovery was removed, there was no scope for a donatio mortis causa; the purported gift must either be treated as an attempted lifetime gift or fail as a testamentary disposition.

84. In the present case, the Deceased contemplated death as not unlikely but no doubt he had seen the possibility if recovery. In fact he was on his road of recovery at that time. He said "if anything fatal should happen to him." Such a conditional gift upon his death is quite clear.

3. Have there been delivery to the donee of the subject matter of the gift?

85. The very fact regarding DMC was that the Deceased gave the bunch of keys including one to the SDB to Elsa on or about 2 August 1996, and told her in case anything should fatally happen to him, the properties in the SDB were hers. This evidence was further supported by Rosa's evidence stating that she then visited the Deceased again the following day. He told Rosa that in case anything should happen to him, Rosa should come to help Elsa for he knew that Elsa would not be able to protect herself. The crux of this issue concerning DMC is what the delivery of the bunch of keys together with the words allegedly uttered by the Deceased meant.

86. In Birch v. Treasury Solicitor, Lord Hardwicke himself noted where the thing given is of bulky nature, the handling to the donee the key to the box or place where the thing is kept would be sufficient and is not to be regarded as merely symbolic.

87. If, on that very occasion, there had been just the action of passing the bunch of keys to Elsa, the gift would have failed since the subject matter is too ambiguous. However, the fact was that this passing of bunch of keys was accompanied by expressed words saying the contents inside the box would be all Elsa's if the Deceased died. That was very clear as the Deceased had picked up particularly the key to the box. It is not disputed that everything inside the box can be subject matter of such a gift except the Jubilee Flat property.

4. If the answer of the above is affirmative, whether the delivery of the bunch of keys could infer the delivery of the Jubilee Flat?

88. Choy just said when he was passing the key to Elsa that everything contained in the SBD would be hers but he did not explicitly express that he intended to give the Jubilee Flat to her as well. Therefore, I cannot infer from this action that Choy was intending to give Elsa the Jubilee Flat as well just because the bunch of the keys probably also contained the keys to the Jubilee Flat. The subject matter is ambiguous. There were no specific words to the effect that he intended to give her the Jubilee Flat.

89. Further, apparently the Jubilee Flat keys were also found in the safe deposit box. However, I cannot infer the intention of Choy to give her the Jubilee Flat simply because the keys to the flat were found inside the safe deposit box.

90. In respect of donatio mortis causa of landed property, two cases were cited, namely Duffield v. Elwes (1827) 1 Bli NS 497 and Sen v. Headley [1991] 2 All ER 636. The House of Lords in Duffield v. Elwes considered obiter that land could not form the subject matter of a donatio even though a mortgage deed in that case was held capable of being so delivered. This view remained unchallenged until Sen v. Headley, when the Court of Appeal resolved that the title deeds to unregistered freehold property could form the subject matter of a donatio. In that case, the key was to a locked box containing the title deeds to the house. But the situation in the present case is different and there is no directly relevant authority. I do however find the circumstances could not support a clear intention of Choy giving Elsa the Jubilee Flat property. It is therefore unnecessary and undesirable to consider whether landed property can be a subject matter of a donatio mortis causa.

91. In the end, I found that the defendant has proved on a balance of probabilities that Choy had effected a valid gift of donatio mortis causa of everything in his safe deposit box to her but not the Jubilee Flat property.

LETTERS OF ADMINISTRATION

92. The defendant failed to establish the will. Even when she succeeded in proving that she was the donee of the donatio mortis causa, she is merely a donee, not a beneficiary of the estate. Thus, apparently the letters of administration should not be granted to the defendant.

93. Under section 36 of the Probate and Administration Ordinance, Cap.10, the court has power to appoint some person to be the administrator of the estate of the deceased person if it appears to the court to be necessary and convenient. There is no prayer in the counter-claim to ask for letters of administration under section 36 in the event that the will fails. The letters of administration should not be granted to the defendant.

94. The plaintiff has applied to be the administrator. However, he is not within the jurisdiction. Even when an executor is outside the jurisdiction, it can be a ground of appointing some other person to be the administrator under the aforesaid section 36. This point has not been fully argued between the parties. Due to the enormous amount of the estate, maybe it is an appropriate case to appoint a professional administrator to handle the administration. I will, however, adjourn this matter to a date to be fixed for argument and affidavit to be filed in light of my judgment.

COSTS

95. At first, I intended to make an Order Nisi for costs. However, I think it should be fully considered by the parties in light of my judgment and this matter is also adjourned for argument on a date to be fixed.

CONCLUSION

1. I have concluded that the defendant, Elsa, has failed to prove beyond reasonable doubt that the "will" put forward by her contained the testamentary intentions of the deceased Choy.

2. However, the defendant has proved on a balance of probabilities that the Deceased had effected a valid gift of donatia mortis causa of everything inside his safe deposit box at Po Sang Bank to her but not the Jubilee Flat property.

3. The question of appointment of an administrator to the estate of the deceased Choy and the question of costs are adjourned for argument on a date to be fixed in consultation with counsel's diaries.