CHIU TAK KWONG v. TAN YUFANG

HCAP 9/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 9 OF 2006

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J U D G M E N T

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1.  This is an action by the plaintiff to enforce a Chinese Agreement dated 31 January 2004 (“the Agreement”).  The Agreement can be described as a family arrangement for the partial distribution of the properties in the estate of his deceased father Chiu Lin Chow (“Chiu”).  He also applies for the grant of letters of administration of Chiu’s estate.

2.  The defendant, who is the plaintiff’s stepmother, counterclaims for the avoidance of the Agreement on the grounds of duress and undue influence.  She also wants to retract a renunciation of administration executed by her before a solicitor on 4 February 2004 (“Renunciation”) on the same grounds under section 31 of the Probate and Administration Ordinance (“PAO”).  She applies for the grant of letters of administration to Chiu’s estate under rule 21 of the Non-Contentious Probate Rules, Cap. 10A (“NCPR”).

BACKGROUND

3.  Chiu had six children.  Five of them were born of his marriage with one Madam Ng who passed away in 1992.  Chiu married the defendant on 14 August 1995.  The defendant gave birth to the youngest daughter Chiu Nga Yee on 19 May 1996.  The six children are:

(i)    Chiu Yuk Lan (“Yuk Lan”) the eldest daughter;

(ii)  Chiu Tak Sing (“Tak Sing”), the first son;

(iii)    Chiu Tak Ming (“Tak Ming”), the second son;

(iv)    Chiu Tak Kwong (“the plaintiff”), the third son;

(v)  Chiu Yuk Chun (“Yuk Chun”), the second daughter; and;

(vi)    Chiu Nga Yee (“Nga Yee”), the youngest daughter of Chiu and the defendant.

4.  Chiu passed away on 3 June 2003.  He left no will.  He left a flat in Ka Lung Court, Aberdeen (“the Ka Lung Flat”) and a few thousand dollars cash in Hong Kong.  The Ka Lung Flat is within the home ownership scheme and was subject to mortgage.

5.  Chiu also left some properties in the Mainland.  There is a two-storey villa in Shahu District, Dongguan County (“the Shahu Villa”) which is in his name.  The ground floor is used for the running of a shop.  There is also a flat in a multi-storey building in Phoenix City, Dongguan County (“the Phoenix Flat”) which is in the joint names of Chiu and his son Tak Sing.  There are also two ancestral properties (“the ancestral properties”) in which Chiu had an interest.

6.  Since Chiu left no will, the part of his estate in Hong Kong is subject to the scheme of distribution in section 4(3) of the Intestates’ Estates Ordinance, Cap. 73 (“the IEO”).  The part of his estate in Dongguan is subject to the law of the Mainland.  Section 4(3) of the IEO provides:

“(3)  If the intestate leaves a husband or wife and issue, whether or not persons mentioned in subsection (2)(b) also survive, the surviving husband or wife shall take the personal chattels absolutely and, in addition, the residuary estate of the intestate (other than the personal chattels) shall stand charged with the payment of a net sum of $500000, free of death duties (if any) and costs, to the surviving husband or wife with interest on that sum from the date of the death at the rate determined from time to time by the Chief Justice for the purpose of section 49(1)(b) of the High Court Ordinance (Cap 4) until paid or appropriated and, subject to providing for that sum and interest, the residuary estate (other than the personal chattels) shall be held-

(a)    as to one half, in trust for the surviving husband or wife absolutely; and

(b)    as to the other half, on the statutory trusts for the issue of the intestate.”

7.  Under rule 21 of the NCPR, the defendant has the highest priority to the grant to administration.  She had however executed the Renunciation which is dated 4 February 2004 before a solicitor.  She now seeks an order from the court under section 31 of the PAO to retract the Renunciation.  Section 31 of the PAO provides:

“A renunciation of probate or administration may be retracted at any time on the order of the court:

Provided that leave may be given to an executor to retract a renunciation of probate after a grant has been made to some other person entitled in a lower degree only if the court is satisfied that such retraction is for the benefit of the estate or persons interested therein.”

THE PLEADINGS

Statement of claim

8.  The plaintiff in the Statement of Claim claims that the defendant had a meeting with his elder brother Tak Sing and came to an oral agreement.  Tak Sing was representing the five elder siblings but not Nga Yee the youngest sibling (the five elder siblings are hereinafter called “the elder siblings”).  The defendant was representing herself and Nga Yee.  The oral agreement provided that the Ka Lung Flat and the Shahu Villa were the only properties in the estate.  The defendant waived her entitlement to the Ka Lung Flat which would be shared by the elder siblings and Nga Yee.  The elder siblings also waived their interest in the Shahu Villa in favour of the defendant exclusively.  The defendant also waived her right to apply for letters of administration in respect of the deceased’s estate.  The terms of this oral agreement were reduced in writing in the Agreement.  The defendant signed the same on behalf of herself and Nga Yee at the Sheung Shui Branch of Café de Coral.  Tak Sing also signed the same on behalf of the elder siblings.

9.  On 3 February 2004, the defendant also signed the Renunciation in the presence of a solicitor Mr Chan.  By the Renunciation, the defendant renounced all her rights to apply for letters of administration. 

Defence and Counterclaim

10.  The defendant through her solicitors wrote to the plaintiff on 2 July 2004 and alleged that the Renunciation was signed by the defendant under duress or coercion of Tak Sing and thus was of no effect.  The defendant’s solicitors also purported to revoke the Renunciation and asserted the plaintiff’s right to apply for letters of administration of the estate of the deceased.  But the defendant did not apply for letters of administration.  The plaintiff therefore started this action seeking to enforce Agreement and the Renunciation.

11.  The defendant filed a defence and counterclaim.  She pleaded that after the death of her husband, she met Yuk Lan, the eldest daughter, in about September or October 2003 outside the school of Nga Yee and also in the Sheung Shui Branch of the Café de Coral.  They discussed about the administration of Chiu’s estate, but had a dispute.

12.  Before the plaintiffhas become a resident of Hong Kong on 1^st June 2003, she used to live in the Phoenix Flat, but when she returned there in November 2003, she could not enter it because the lock had been changed.  The management staff there told her that the belongings of hers and Nga Yee had been thrown away.  She understood that these were the acts of Tak Sing and/or the elder siblings.

13.  In late December or early January 2004, Yuk Chun, the younger daughter, and Tak Sing met the defendant and Nga Yee in the Sheung Shui Branch of the KFC restaurant.  That was the meeting referred to in the Statement of Claim in which the oral agreement was allegedly made.  During this meeting, Yuk Chun and Tak Sing on behalf of the elder siblings proposed to distribute Chiu’s estate.  They proposed to give her HK$100,000 plus the Phoenix Flat and the Shahu Villa.  The defendant had to sign some document for such purpose.  The defendant then retorted that she had been excluded from the Phoenix Flat by a change of lock and her belongings had been thrown away.  Tak Sing then said words to the effect that they had to do so to force her to appear.  Yuk Chun further said that she had told her siblings not to throw the defendant’s things away but without success.  She further said that if the defendant did not sign the documents, she had no idea as to what they might do to her.  She also said the easy way to locate the defendant was to locate Nga Yee and that if the defendant did not sign the Agreement, the plaintiff would not let her off. 

14.  Both Yuk Chun and Tak Sing knew that the defendant wanted to avoid the plaintiff as the defendant had experienced the unpleasant temper of the plaintiff in 2000 when she was living in the Ka Lung Flat.

15.  Sometime before 31 January 2004, Tak Sing also phoned the defendant and threatened her that the plaintiff would torture her to death if she did not sign the Agreement.

16.  On 31 January 2004 at about noon, Tak Sing took the Agreement to the Sheung Shui Café de Coral and demanded the signature of the defendant.  The terms in the Agreement were not the same as previously proposed.  Tak Sing said that that was the agreement of the elder siblings.  Tak Sing then threatened the defendant that the plaintiff was capable of doing anything and, if she refused to sign the Agreement, he could not tell what might happen to Nga Yee.  He also threatened her that if she did not sign the Agreement, they would cause her trouble wherever she might be working.  He further threatened her that Nga Yee was still of tender age and she could not keep an eye on her at her school.  There was also no one in Hong Kong to help her.  She then signed the Agreement involuntarily.

17.  On 4 February 2004, the defendant attended a solicitors’ firm in the company of Tak Sing.  She signed the Renunciation in the presence of a solicitor, Mr Chan.

18.  The defendant further pleaded that the Agreement and Renunciation were voidable and she had avoided them by her solicitor’s letters dated 2 July 2004 to the elder siblings.  The defendant counterclaims for the Agreement to be avoided and the Renunciation to be retracted.  She also applies for administration of Chiu’s estate.

Reply and Defence to Counterclaim

19.  The plaintiff filed a reply and defence to counterclaim.  He admitted that the defendant had in September 2003 avoided him and the elder siblings.  They tried to locate her by reporting her and Nga Yee as missing persons to the police, but she still did not let them have any means to contact her.

20.  When Yuk Lan met the defendant, the defendant still did not want to discuss anything with Yuk Lan and scolded Yuk Lan.  But in about October 2003, the defendant changed her mind.  She phoned Tak Sing and agreed to meet him in Sheung Shui Café de Coral.

21.  In the meeting, Tak Sing suggested that they should sell the Phoenix Flat for money to redeem the legal charge of the Ka Lung Flat, but the defendant refused.  The plaintiff admitted the change of the lock to the Phoenix Flat for security reasons, but denied of having thrown away the defendant’s belongings.

22.  On about 31 December 2003, the defendant phoned Tak Sing again and said she was prepared to discuss how to deal with the estate.

23.  On 1 January 2004, four of the elder siblings save the plaintiff met the defendant at the Sheung Shui Café de Coral.  They had a discussion on how to deal with the estate.  No conclusion was reached.  The plaintiff pleaded that there was a proposal to give the defendant HK$100,000 and the Shahu Villa to which the defendant agreed.

24.  Before 31 January 2004, Tak Sing phoned the defendant and told her that Nga Yee would be given a share in the Ka Lung Flat in return for the defendant waiving the HK$100,000.  The defendant again agreed to this voluntarily.  The defendant also suggested that the defendant could sign the Agreement at the Sheung Shui Café de Coral on 31 January 2004 which she did.  The plaintiff denies any allegation of duress or undue influence.

THE DEFENDANT’S EVIDENCE

25.  The defendant had the burden of proving her case.  She gave evidence first.  She gave very detailed evidence on her relationship with the plaintiff and his siblings and how they treated her before and after the death of her husband Chiu.

The marriage

26.  She was a resident of Dongguan County, Guangdong province in the Mainland.  She educated up to Form 3.  She could not proceed further for want of good examination results.  She was introduced to Chiu in 1995.  They married about six months later.  At that time, Chiu already had the Phoenix Flat in his name and in the name of his son Tak Sing.  After their marriage, she moved to live in this flat.  Chiu continued working and living in Hong Kong, but would go back to Dongguan to see her every weekend and stay there for one or two days.

The Shahu Villa and the ancestral properties

27.  On 17 May 1996, Chiu purchased a piece of land in Shahu for RMB40,000.  Nga Yee was born two days later on 19 May.  He later built the Shahu Villa on this land.  Shahu was then a quiet area.  There was not even any taxi based there. 

28.  In late 1998, Chiu started building the Shahu Villa.  The construction was carried out bit by bit and it was completed sometime in 1999.  The total costs including land costs were RMB210,000.  The whole block comprises of the ground floor, the 1st floor and the roof.  It was let out for RMB2,000 per month.  Several months later, the rental was reduced to RMB1,500 per month because the locality was quiet.

29.  The defendant also produced a tenancy for this property and dated 14 April 2003.  The monthly rent was still RMB1,500 per month.  She said she collected the rent and accounted the same to the deceased.  She recalled that a neighbour of this property had offered Chiu RMB300,000 odd for the property in 2002, but Chiu declined the offer.

30.  Chiu also owned two ancestral properties in Shahu.

Nga Yee in Hong Kong

31.  In 1999, Nga Yee obtained a one-way permit from the Mainland authorities.  Chiu brought her here and arranged her to live with Tak Sing in Tin Shui Wai.  Nga Yee went to school there.  But Nga Yee did not like it and the arrangement soon stopped.  In 2000, Nga Yee was again sent here to live with Yuk Lan and to study at a school in Aberdeen.  In early 2002, Nga Yee moved to live with the deceased’s elder sister in Wong Chuk Hang as Yuk Lan was not very happy with the task of looking after Nga Yee.

The plaintiff’s assault of the defendant and his eviction

32.  The defendant also came to Hong Kong from time to time on two-way permits.  When she was here, she lived in the Ka Lung Flat with Chiu and Nga Yee.  The plaintiff was also living there.  Her relationship with the plaintiff was not good and she avoided him.  She would not stay in the Ka Lung Flat during the daytime.  She only returned there with Chiu in the evening.  Her relationship with all the elder siblings was also not close.

33.  One day in October 2000, Chiu returned to Shahu to deal with the letting of the Shahu Villa.  The defendant took Nga Yee back home after school.  The plaintiff was there.  He came out to the living room and banged an ashtray hard on the table.  He then gave her a kick.  He scolded her fiercely saying that she had squeezed Chiu of all his money.  She shouted back.  He told her to leave.  She then took her belongings and left with Nga Yee.  She went to the Hunghom Train Station near the City University to wait for Chiu’s return from the Mainland.  But there were too many people and she failed to spot him.

34.  She phoned Chiu at night and he was already at the Ka Lung Flat.  She asked Chiu to bring her the documents of identity.  Chiu came to the City University and asked her to go back, but she refused.  Later a police officer led her and Nga Yee to the Hunghom Police Station and they spent the night there.  The police officer did not allow her to wander in the streets with Nga Yee late at night.  The next morning, the police sent her and Nga Yee to Hunghom Train Station for the Mainland.  Chiu also came to see them off.  She saw that Chiu had a bloodied nose. 

35.  She returned to the Phoenix Flat with Nga Yee.  She thought she had never been so ill-treated.  She recorded the events and her feelings in her notebook in some detail.  She also recorded the things said by her and the plaintiff to each other including the foul language they used.  She also noted down her grievances about Chiu.  This incident was known to the other elder siblings as Chiu had sought help from a daughter of Yuk Lan to find out which police station the defendant was in during that night. 

36.  Later Chiu fetched Nga Yee from Dongguan back to Hong Kong for school.  He also asked the defendant to come back to the Ka Lung Flat as he would ask the plaintiff to leave the flat.  When she later returned to the Ka Lung Flat also on a two-way permit, she did not see the plaintiff there anymore. 

Chiu’s death and the siblings’ treatment of defendant

37.  The Mainland authorities gave her a one-way permit to come to Hong Kong on 1 June 2003.  But unfortunately Chiu had a heart attack on 3 June 2003 and passed away in Queen Mary Hospital on the same day.  Yuk Chun, Yuk Lan and Tak Sing all went to the hospital to see Chiu.  They then returned to the Ka Lung Flat with her.  They then opened the safe and took away the bank passbooks of Chiu and Chiu’s keys to a safe deposit box rented at the Bank of East Asia in the joint names of Chiu and Tak Sing.

38.  There were in the Ka Lung Flat also the title deeds and documents of the Phoenix Flat, the Shahu Villa and the two ancestral properties.  On the next day, Yuk Lan came again with her two daughters and searched the drawers in the bedroom for these deeds and documents, but they were not successful.  They then gave the defendant a scolding in the sitting room.  After they had left, the defendant hid these deeds and documents in the flat.  A few days later, Yuk Lan came again and conducted another search.

39.  On 28 June, Yuk Lan came to offer incense for the decease.  At the same time, she again gave the defendant a scolding.  Tak Sing also scowled at her.

40.  One day, Tak Sing told her that he was in charge of everything.  He would sell the Shahu Villa to pay off the Ka Lung Flat mortgage.

41.  A few days after 28 June, he also asked her if the plaintiff could move back to the Ka Lung Flat.  She knew that she could not object.  She agreed and gave Chiu’s keys to Tak Sing for passing to the plaintiff.  The plaintiff then moved back with his family.  That was before the middle of July as Nga Yee had not started her summer vacation.

42.  Later, Tak Ming also moved back with his wife and son.  Each family occupied a room in the flat.  The plaintiff’s attitude to her was very bad.

The defendant’s financial plight

43.  She had no money to use.  She was not eligible for assistance from the Comprehensive Social Security Assistance Scheme (“CSSAS”) because Chiu’s estate comprised the Ka Lung Flat which was of some value.  She had to seek help from all quarters.  She got a job in the market to collect carton boxes at $200 per day, but she was dismissed after three days because she attended to Nga Yee after her school.

44.  She was advised by a parent of a fellow pupil of Nga Yee to approach Caritas Hong Kong and Caritas gave her $5,000 as emergency assistance.  She had also been to a café in Wah Fu Estate at its closing time to share the unsold bread with some elderly people there.  She dared not tell her mother about her plight.  She thought of committing suicide, but she could not leave Nga Yee behind.  Eventually she phoned her mother and disclosed her problems.  Her younger sister who was residing in Canada immediately remitted $4,000 to her mother for her use. 

45.  Her parents had a very longstanding friend called Brother Hung.  He was living in Sheung Shui.  She called up Brother Hung and went to him for help.  Brother Hung had suffered cerebral haemorrhage and had inconvenience in moving around.  He found her a place to live in Sheung Shui, but she found it unsuitable to her situation and did not take it up.  He and his wife were living in Tai Ping Shan Village in Sheung Shui.  He had a container lying in an agricultural field near his house.  This container had been used as accommodation.  It had all the necessary furniture and air-conditioning.  There was however no cooking and hygiene facilities.  These facilities were in a nearby wooden hut.  Brother Hung offered the container to her as living quarters.  If she should live there, Brother Hung and his wife could look after her and vice versa.  She agreed to consider it.  She also passed the title deeds and documents to the Shahu Villa and the Phoenix Flat to the wife of Brother Hung for safekeeping.

The defendant’s removal to a container

46.  Some days later when she and the elder siblings went to deposit Chiu’s ashes in a shrine, Tak Sing asked her to handover those title deeds and documents.  When she said that they were kept elsewhere, the elder siblings scowled at her.

47.  On 11 August 2003 (which was the 14^th day of the 7^th lunar month or the ghosts festival), Tak Sing asked her on the phone whether she had kept the titled deeds and documents of the Shahu Villa in the Ka Lung Flat.  She confirmed it perfunctorily when in fact she did not have them there.  Tak Sing said he would come for them on 13 August 2003.  She therefore decided to leave the Ka Lung Flat on 12 August.  She moved to live in the container of Brother Hung on that day.  She and Nga Yee lived there for three years despite the presence of cockroaches and rats.  There were also snakes in the locality.  She found a job at a Chinese restaurant.

The elder siblings searched for the defendant

48.  In about mid-September 2003, the social worker of the previous school of Nga Yee at Aberdeen phoned her and told her that the elder siblings were looking for her.  She was told that the elder siblings had reported her and Nga Yee to the police as missing persons and the police would ask the school for her particulars.  The social worker called her up because of knowledge of her family problems.

49.  She then telephoned the responsible police officer one Mr Tang and told him that she and Nga Yee were not missing and she had been forced to leave the elder siblings.  She followed Mr Tang’s advice and went to the Sheung Shui Police Station to cancel the missing person report.

50.  She later added that the police officer, Mr Tang together with one or two policewomen had paid her a visit in September.  Mr Tang wanted to know if she had any problem.  He also took her to the Sheung Shui Social Welfare Office to apply for CSSAS and public housing.  She was received by a female officer Mrs Tang.  She declined CSSAS, but applied for public housing.  Later on, Mrs Tang gave her a phone number for free legal advice.

The elder siblings found the defendant

51.  In late September 2003, the defendant’s mother came here on a 2-way permit to help look after Nga Yee.  The defendant was still working in the restaurant.

52.  One day in October 2003, when the defendant went to the school after 6 p.m. to take Nga Yee home, she found Yuk Lan there.  She was angered and frightened by Yuk Lan’s sudden appearance.  She scolded Yuk Lan who shouted back at her.  They quarrelled very noisily.  Yuk Lan then followed her, her mother and Nga Yee from the school to the Sheung Shui Café de Coral.  Yuk Lan asked her to discuss how to deal with Chiu’s estate.  She retorted that she would not assist as Yuk Lan had told her on the day after Chiu’s death that she had no interest in the Ka Lung Flat.  She also said in cross-examination that Yuk Lan had tried to pass her a mobile phone saying that Tak Sing wanted to talk to her, but she refused to talk to Tak Sing.

53.  From mid-October 2003, she began working at the Sheung Shui Café de Coral as a part-time kitchen worker earning $3,213 per month.  She was also earning about $1,500 from the Chinese restaurant and getting the RMB1,500 per month rental from the Shahu Villa.  Her income was barely enough for the use of her and Nga Yee.

54.  One day in October 2003 when she was having lunch at the Sheung Shui Café de Coral, Tak Sing and his wife, Yuk Lan, Yuk Chun and her son and the plaintiff came in through the side door.  She was surprised.  Tak Sing asked her to sort out Chiu’s estate.  Yuk Chun told her that they were all in one family and should sort out matters together.  She thought that they could talk.  She gave them her mobile phone number.  However, she subsequently did not take their calls and there was no meeting or discussion after this occasion. 

Loss of the belongings in the Phoenix Flat

55.  Sometime in November 2003, the tenant of the Shahu Villa phoned her and told her that the sons of Chiu had been to that property claiming to be the new landlords and demanded rental.  The tenant said he did not know them and would only pay rent to the defendant.  The tenant had also found a local person who was prepared to rent the property from her.  If she should let the property to the new tenant, the elder siblings could not trouble the new tenant.  She then returned to Shahu to deal with the tenancy matter.  After that, she returned to the Phoenix Flat and took some household appliances back to the container in Sheung Shui.  She returned to the Phoenix Flat again later in the same month, but could not open the door because there was a new lock.  She was angry and asked the security guards to break open the door for her.  The guards refused to do so.  They said there were two person surnamed Chiu who had been there to change the lock.  The guards could not break open the door as there was the other owner surnamed Chiu.  They also said that the belongings of hers and Nga Yee had been thrown away.  She therefore went back to Sheung Shui and sobbed her heart out.  Her mother said she could not fight against them.

The siblings’ first offer with threats at Sheung Shui KFC

56.  A few days later, she took a phone call from Tak Sing who proposed that she would be given the Phoenix Fat, the Shahu Villa and HK$100,000.  She thought about it.  Her mother said that to resolve the problem of the estate was a good thing.  She then phoned Tak Sing for an assurance of the terms and Tak Sing confirmed it with a curse on himself in case of violation.  Tak Sing later phoned her and asked her to meet at the Sheung Shui KFC restaurant.  She was told to bring along the document of title of the Shahu Villa and her documents of identity and those of Nga Yee.  The meeting took place between 19 and 20 December because at that time her mother was still in Sheung Shui.  Her mother had offered to keep her company but she declined.  Her mother only returned to Dongguan on 23 December 2003.

57.  She went to the meeting with Nga Yee.  Tak Sing, his wife and Yuk Chun were there.  The atmosphere was neutral and not particularly amicable.  Tak Sing again said that she would be given the Phoenix Flat and the Shahu Villa plus $100,000.  Yuk Chun also said that they were all in a family and should resolve any problem together.  Upon hearing this, she burst into a rage.  She blamed the elder siblings for throwing her things away and changing the lock of the Phoenix Flat.  Tak Sing responded by saying that he had to do so to force her to meet them.  He also told her that there would be some documents to be prepared by a lawyer for her signature.  They would also ask the lawyer to write a letter to her to confirm their waiver of interest in the Shahu Villa and the Phoenix Flat.  He said the letter would be used to change the owner of the properties in the Mainland.

58.  Yuk Chun then said that if she should refuse to sign the documents, the plaintiff would not let her off.  Yuk Chun further threatened her that Yuk Chun could not tell what the plaintiff might do to her.  She replied that they had already changed the lock of Phoenix Flat and threw her things away.  They had also found out the school of Nga Yee and knew where she was working.  Yuk Chun then said that it was not difficult to locate her as once they found Nga Yee, they would be able to locate her.

59.  She admitted in evidence in chief that before these threats were to her, she was prepared to agree to these terms of offer.  However, after these threats, she became undecided.  She then asked them to reconfirm the terms.  After they did so, she gave them the documents they had asked for.

A revised offer with threats

60.  Sometime later, Tak Sing phoned her and said that the $100,000 would be given to Nga Yee instead of to her.  She said she would not sign the agreement, but Tak Sing threatened her that the plaintiff would torture her to death.  She did not quarrel further, but chose to wait until the document was shown to her.

The defendant signed the agreement under duress

61.  Tak Sing phoned her again and arranged to meet her at her mealtime on 31 January 2004 at the Sheung Shui Café de Coral.

62.  On that day, Tak Sing gave her the Agreement to sign at the café.  She saw that the Agreement only mentioned the Ka Lung Flat and the Shahu Villa but not the Phoenix Flat.  It also stated that the Ka Lung Flat was for all the children of Chiu.  Tak Sing said the elder siblings had decided not to give her the Phoenix Flat.  She argued that as the wife of Chiu, she was entitled to the estate.  Tak Sing threatened her that she should consider it carefully and not to quarrel with him there, otherwise she could lose her job.  He also reminded her that she had been dismissed from the job of picking up cartons and could not even get CSSAS.  He further said that if she did not sign the Agreement, he could not tell what the plaintiff would do to her daughter.  He threatened her further that she could not avoid them as they knew where her daughter was studying and where she was working.  He told her to give up other things for the Shahu Villa.  Then it would be fine for all.  She would also save the elder siblings all the troubles.  He also said that wherever she might be working, they would find her out and give her trouble there. 

63.  She was frightened by these threats.  She was shivering.  She was most concerned about her daughter.  She had once wanted to commit suicide, but because of her thoughts of Nga Yee, she contacted the Samaritans for help. 

64.  She then asked Tak Sing if Nga Yee would be given a share of the Ka Lung Flat.  He confirmed it, but refused to discuss with her about the Phoenix Flat.

65.  He then told her to sign the Agreement and then go to the solicitor’s office to sign the Renunciation.  She asked when he would give her their solicitor’s letter confirming their waiver of interest in the Shahu Villa.  He said after she had signed the Renunciation, he would ask the solicitor to write the waiver letter.  But he would keep the letter and go to Dongguan authorities with her to change the owner of the Shahu Villa.  She was afraid of making any scene there as she had to keep her job.  She was concerned about her daughter.  Her daughter was more important to her than money.  She then signed the Agreement.

The defendant signed the Renunciation under duress

66.  On 4 February 2004, the defendant went to a solicitor’s office in the company of Tak Sing.  She told the solicitor, Mr Chan that once she signed the Renunciation, she would lose everything.  Mr Chan explained to her that by the Renunciation, she would only be allowing others to carry out the administration of Chiu’s state, and that would not affect her interest in the estate.  She still did not want to sign the document, but because of the threats made to her by Tak Sing on 31 January, she signed.

The defendant refused to sign another document

67.  A few days later, she phoned Tak Sing and asked for the waiver letter.  Tak Sing told her that the letter would not be given to her yet as there was one more document for her to sign.  He said he would call again. 

68.  Some days later, Tak Sing came to Café de Coral and asked her to go to a solicitor’s office to sign a document to sell the Ka Lung Flat.  She said she had already signed two documents and they still had not given her their waiver letter.  Tak Sing said he would not give her the waiver letter.  She replied that she would not sign any more papers.

69.  She made it clear in cross-examination that she had decided not to sign any more paper for the elder siblings and it was not because of their failure to give her the waiver letter.  She regarded the waiver letter as something she was already entitled.

70.  After saying that she would not sign any more papers, she burst into a noisy temper.  Tak Sing threatened her that if she did not sign, she might have to face death.  She said she was not afraid of death as she had already planned her funeral.  She then returned to the kitchen to work.

71.  A few minutes later, Tak Sing came again.  She went out of the kitchen and saw that Tak Ming was also there.  She scolded them and told them not to give her any trouble and she would not sign any document.  She asked them to let her make a living and raise her daughter.  She told them not to look for her again.  She then went back to the kitchen.  She was then in a bad mood.

72.  A few days later, one of her colleagues accidentally dropped a tray of cups over her.  She could not withstand the situation emotionally and resigned right away.  She put the blame of her resignation on Tak Sing.  She thought it was Tak Sing who made it embarrassing for her to continue working there as she had made a scene with Tak Sing there.

73.  She also said in cross-examination that after her resignation, she did not know what to do.  She phoned the solicitor Mr. Chan and told him what the elder siblings had done to her.  Mr. Chan replied that he would not be involved in this family matter and would not work for the elder siblings anymore.

74.  She later received another phone call from Tak Sing who asked her to sign the document.  He threatened her with her daughter’s safety.  She replied that if she should see the dead body of her daughter, she would commit suicide.  She also said she was living in a container and they could come and burn it down.

75.  Yuk Chun called her many times.  She only took one of the calls in which Yuk Chun blamed her for not signing the document.  She said they had not given her anything.  She had also lost her job.  She quarrelled with Yuk Chun on her belongings at the Phoenix Flat.  She also blamed Yuk Chun for wanting to harm her daughter.  Yuk Chun replied that they would sell all the properties and torture her to death.  After this, she did not take anymore phone call from them.  But they kept on calling her.  These calls annoyed her very much.  But she dared not switch off her mobile phone just in case any call might come from the school of Nga Yee. 

The defendant sought help from others

76.  She was very upset by their calls.  She had no relative in Hong Kong to turn to.  She thought she was in a cul-de-sac.  Then she called up the police officer, Mr Tang and told him everything.  Mr Tang told her to report the matter to the police and seek help from lawyers as it involved succession to estate.

77.  After calling Mr Tang, she used the free legal advice phone number given to her by Mrs Tang of the Social Welfare Department.  She was arranged to see a solicitor.  She told the solicitor everything.  She was advised that the Agreement she signed on 31 January 2004 was of no effect.  She then applied for the letters of administration of Chiu’s estate.  But she later stopped as she had no time, energy or money to do so.

78.  Now she has a steady job at an old people’s home working 8½ hours a day.  She would like to continue with the application for the letters of administration.

Cross-examination of the defendant

79.  In cross-examination, she agreed that she had read the Agreement before signing it.  She was aware of the preamble which stated that under the laws of Hong Kong, she was entitled to HK$500,000 plus half of the residual of the estate in Hong Kong.

80.  She also knew that there was the police in Hong Kong to protect those who are being threatened by others.  However, when she signed the documents out of fear, she had not thought of contacting the police officer Mr Tang.  She did not know what to do when her daughter’s safety was threatened.

81.  Before entering the solicitor’s office on 4 February 2004, she believed that if she signed the Renunciation, she and Nga Yee would lose everything in the estate whether in Hong Kong or elsewhere. That was why she later asked the solicitor whether she would lose everything by signing the Renunciation.  But despite such belief, she was prepared to sign it.

82.  Furthermore, the Agreement she had already signed stated in the preamble that apart from the Ka Lung Flat and the Shahu Villa, the estate had no other property.  She thus thought that she had lost her rights in all other properties of Chiu in the Mainland. 

83.  Later on, she did not fear the elder siblings as she was not afraid of death anymore.

84.  She also explained the difference between her situation on about 4 February 2004 when she signed the Renunciation and her later situation.  She said on about 4 February, she was not familiar with Hong Kong, had no working experience here, had lost her husband, had been dismissed from a job, and was forced to take her daughter to live in a container.  At that time, she dared not defend herself.  However, when she later approached her solicitor to apply for letters of administration, she had a job although no money.  She also knew that she could defend herself.  She also wished to administer her husband’s estate by herself.

85.  She was also cross-examined on her notebook.  There was one passage recording an alleged threat by Yuk Chun forcing her to sign a document.  There was another passage recording the locking of the Phoenix Flat and the throwing away of her belongings and those of Nga Yee.  She agreed that she wrote these two passages in May 2004 at the suggestion of her solicitor.  For the rest of the diary type of notes, they were written a few days after the events.  However, she had not written down the other threats by the elder siblings which caused her to sign the Agreement and the Renunciation.  She explained that when she just settled in Sheung Shui, she had a job in a restaurant, she had to wake up at 2:00 a. m. to go to work.  She did not have enough sleep.  Then she changed to work in Café de Coral.  She had to work from 7:00 a.m. to 10:00 p.m. on some days.  Sometimes she could not even prepare a meal for Nga Yee.  Then she worked in an old people’s home for 12 hours a day.  She could not even look after Nga Yee when Nga Yee was ill.  When Nga Yee was on holiday, she had to take Nga Yee to her place of work.  For all these reasons, she had no time and no mood to write anything in her notebook. 

86.  She had given her copies of the Agreement and the Renunciation to her solicitor and told him the threats made by the elder siblings to her.  Her solicitor then issued a demand letter dated 2 July 2004 for her and addressed it to the elder siblings.  The letter claimed all her rights under her husband’s intestacy.  It also revoked the Renunciation on the ground that she had executed it involuntarily and as a result of threats by Tak Sing to cause extreme inconvenience or hardship to her and Nga Yee.

87.  Tak Sing’s solicitors replied on 29 July 2004 and denied the allegations.  They further said that it was the defendant who had on or about 31 December 2003 phoned Tak Sing inviting him to discuss the administration of Chiu’s estate.  The two then met in KFC in Sheung Shui and agreed that she would get the Shahu Villa whilst she would not apply to be the administratrix and that the Ka Lung Flat would go to the children of Chiu.

88.  Her solicitor then replied on 12 August 2004 and asserted that both the Agreement and the Renunciation were executed as a result of threats made by Yuk Chun in November 2003, the change of lock in the Phoenix Flat, the throwing away of her belongings and the threats by Tak Sing in December 2003.  The letter stated that the actual words used were extremely oppressive.

89.  Regarding the elder siblings’ intention over the Ka Lung Flat, she said they wanted to pay off the mortgage and then sell it.  They thought that the price would he higher without the mortgage.  She later learnt from her solicitors that the mortgagee bank wanted to recover possession of the Ka Lung Flat and she surrendered the key through her solicitors.  Apart from her solicitors, nobody else told her anything about the actions of the mortgagee bank.

90.  When questioned on the difference between what she had been promised in KFC and the terms in the Agreement she signed, she said she could accept using her $100,000 to exchange for a share of the Ka Lung Flat for Nga Yee, but the Phoenix Flat and all the ancestral properties in the Mainland had gone.

91.  She also reiterated that she had no fear of the elder siblings some days after 4 February 2004 as she was not afraid of death anymore.  She said she would also commit suicide if Nga Yee should be harmed.  That was why she then adopted a tough attitude towards the elder siblings.  However, she later admitted that the only reason for her change of attitude was because she did not trust the elder siblings anymore.

92.  Her cross-examination was extensive, but she basically stuck to her case and was not moved.  Her accusations against the elder siblings save and except Tak Ming were firm.  She harboured no ill will against Tak Ming who did not say or do anything untoward to her.  She was forthcoming and straightforward.

Nga Yee’s evidence

93.  Nga Yee was also called to give evidence.  She said after her father had passed away, her elder sister Yuk Lan often scolded her mother.  After her father’s death, the relationship between her mother and the rest of the family was poor.  She also described the conditions of the container where there were cockroaches and rats.  She did not appear to favour that accommodation.  He had never heard of a person called Ngau Shi (as referred to below).  She was a little girl of 13 years old and showed the naivety of her age.  Her evidence was simple, forthright and straightforward.  I find her a truthful witness.

THE PLAINTIFFS’ EVIDENCE

94.  Four of the elder siblings gave evidence.  They were Yuk Lan, Yuk Chun, the plaintiff and Tak Sing.

Chiu Yuk Lan

95.  She said after Chiu had passed away on 3 June 2003, the defendant disappeared with Nga Yee at end of August without leaving a word.  She did not know why the defendant should have so conducted herself.  The elder siblings thought that the defendant was saddened by Chiu’s death and had returned to the Mainland.  They enquired amongst themselves, their relatives and Nga Yee’s school, but got no clue as to their whereabouts.  They then reported the defendant and Nga Yee to the police as missing persons.  The police later advised them that the defendant and Nga Yee had not gone missing, but the defendant did not want to meet them or to let them have the information of her contact.

96.  She denied of having conducted any search of the Ka Lung Flat with her daughters.  She also denied of having scolded the defendant at anytime after Chiu’s death.  She also denied that she had told the defendant that the defendant would get nothing from Chiu’s estate.  She said the defendant had told her in tears about the defendant’s plight.  She comforted the defendant and treated the defendant very nicely.  The defendant used to rely on Chiu for support.  After Chiu died, Yuk Chun, Tak Sing’s wife, the plaintiff’s wife and Tak Ming’s wife had each given the defendant several hundred dollars in that month for her support.  However, when the plaintiff’s wife asked the defendant if she had any money, the defendant did not even make any reply.  For the daily necessities of the defendant and Nga Yee, they were provided by the plaintiff at the Ka Lung Flat.  She said that they were a nice family.  She therefore did not know why the defendant should have left the Ka Lung Flat without leaving a word and later told the police not to give them her information for contact.  She said the defendant was unfair to them.  She also denied that the plaintiff had assaulted the defendant and had been evicted by Chiu from the Ka Lung Flat.  She did not know if the defendant had been employed or had attempted to obtain CSSAS from the Social Welfare Department.

97.  I note that the defendant has in paragraphs 9 to 10 of her witness statement filed on 7 September 2007 said that she had grave financial difficulty after Chiu’s death as she only had RMB1,500 per month rental income from the Shahu Villa.  She was dismissed from her job in the market after 2 to 3 days and was given HK$5,000 by Caritas as cash assistance before moving to live in the container.  She repeated these matters in her oral evidence.  If the elder siblings and their wives had indeed provided financial support to the defendant as alleged by Yuk Lan, I do not know why such was not put to the defendant when she was cross-examined.

98.  Regarding the mortgage on the Ka Lung Flat, Yuk Lan said they had continued to pay the mortgage instalments after Chiu’s death.  They had paid the months for June, July and August.  But they stopped the payment from September onwards because the defendant had disappeared at the end of August.

99.  However, the documents disclosed by the plaintiff showed that she was mistaken on this.  Only the instalment for June 2003 was indeed paid and not those for July and August 2003.  The truth of the picture, as the other witnesses of the plaintiff had admitted to in oral evidence, was that Chiu died intestate and the defendant would under section 4(3) of the IEO be entitled to the bulk of the proceeds of the flat.  They did not want to pay the instalments which would eventually benefit the defendant.  That also explained that after the defendant had signed the Agreement on 31 January 2004 waiving her rights to the flat, Yuk Lan, Yuk Chun, Tak Sing and the plaintiff immediately pooled their funds together and paid on 5 February 2004 some $30,000 odd for discharge of the arrears of instalments from July 2003 to January 2004 (page C-279).  They paid a further instalment on 10 March 2004 but no more.  The reason being that the defendant had by then refused to sign any more document at a solicitor’s office.  The defendant had also told Yuk Chun’s solicitor, Mr Chan, her side of the story and that she did not want to go by the Agreement and Renunciation.  This was then relayed by Mr Chan to Yuk Chun.  There was then no further payment of the mortgage instalments.

100.  Coming back to Yuk Lan’s evidence, after the police had refused to give them the defendant’s contact information, she said that she learnt from a parent of a pupil of Nga Yee’s former school at Aberdeen that Nga Yee had changed to a school in Sheung Shui.  She then went to some primary schools in Sheung Shui during her holidays hoping to bump into Nga Yee there.  She was lucky enough to find Nga Yee at her new school.  The defendant in fact suggested that it was Yuk Chun who found out the new school of Nga Yee through her former colleague(s) in the Educational Department.  But I do not think how Nga Yee was located by Yuk Lan or Yuk Chun is of any significance to the issues in this action.  In any case, Yuk Lan’s evidence showed that the elder siblings were eager to get in touch with the defendant.

101.  After identifying the school, Yuk Lan then went there one evening in October 2003 to wait for the defendant.  The defendant later arrived and asked her why she was there.  She told the defendant that Tak Sing wanted to sort out Chiu’s estate with the defendant.  The defendant replied that the defendant did not want to see them.  The defendant also scolded her for having gone to the school.

102.  The defendant and Nga Yee then left the school, but she followed them all the way to the Sheung Shui Café de Coral despite her was being scolded by the defendant all the way.  She then telephoned Tak Sing and asked the defendant to talk to him.  She thought the defendant might agree to talk to Tak Sing as the relationship between them was good before Chiu’s death.  The defendant then talked to Tak Sing on her mobile phone.  Later on the same day, she found out from Tak Sing that the defendant and Tak Sing had agreed to meet in two days, but the defendant had not left her contact information with Tak Sing.  Tak Sing later told her about the meeting which was also attended to by one Ngau Shi, a friend of the defendant.

103.  She denied that she, Yuk Chun, Tak Sing and the plaintiff had been to the Sheung Shui Café de Coral in October 2003 to look for the defendant.

104.  She then referred to a dinner gathering at Tak Sing’s home in Tin Shui Wai on 31 December 2003.  She said she, her husband, her children, Yuk Chun and Yuk Chun’s children were all present together with Tak Sing’s family of four.  It was a big party.

105.  In the course of the dinner and after 8 p.m., the defendant suddenly phoned Tak Sing.  The defendant told Tak Sing that she was in a good mood and would like to meet Tak Sing to discuss the administration of Chiu’s estate.  The elder siblings then arranged to have a meeting themselves on the next day, i.e. 1 January 2004 at the Sheung Shui Café de Coral to consider the distribution of the estate.

106.  After the dinner, Yuk Lan’s family and Yuk Chun’s family all stayed in Tak Sing’s home for the night.  In the next morning, Yuk Lan, Yuk Lan’s children, Yuk Chun, Yuk Chun’s children and Tak Sing went to the Sheung Shui Café de Coral to meet with Tak Ming and the plaintiff.  However, they discovered that the defendant was working in that place.  The defendant greeted them and exchanged casual remarks with them.  Since they found the defendant there and they themselves did not have much to discuss, so they dispersed.

107.  I note that the plaintiff’s Reply pleaded that Tak Ming was not present in this meeting and they had in fact discussed with the defendant in the meeting about the estate though no conclusion was reached.  Yuk Lan was however adamant on her version of evidence and said that the plaintiff’s pleading was wrong.  She said Tak Ming had come late and only stayed for a short while.

108.  Yuk Chun in her evidence also referred to the alleged dinner gathering on 31 December 2003 at Tak Sing’s home.  She said she and her daughter, Yuk Lan and Yuk Lan’s daughter and Tak Sing’s family were present.  She missed out Yuk Lan’s husband.  She said after dinner, they stayed there for the night.  For the meeting at the Sheung Shui Café de Coral in the next morning, she also said that Tak Ming was not there.  Her evidence thus differed from that of Yuk Lan.

109.  Tak Sing also gave evidence on the gathering on 31 December.  He said he, his wife, his son and daughter, Yuk Lan and Yuk Chun were present.  It was a table of six only.  Yuk Lan’s husband and children and Yuk Chun’s children were not there.  The party he described was the smallest.  He also said that the meeting in the next morning at the Sheung Shui Café de Coral was attended to by six of them, namely Yuk Lan, Yuk Chun, the plaintiff, he himself, his wife and his son.  She also confirmed that Tak Ming did not appear at this meeting at all.  His evidence thus differed from that of Yuk Lan and that of Yuk Chun.

110.  The defendant denied that she had phoned Tak Sing on 31 December 2003 or that there was the alleged encounter at the Sheung Shui Café de Coral on 1 January 2004.  She did say that there was an encounter at the Sheung Shui Café de Coral but that was in the latter half of October 2003 in which she gave the elder siblings her phone number.  

111.  Coming back to Yuk Lan’s evidence, after the alleged meeting on 1 January 2004, she then referred to the meeting at KFC.  There is no dispute about Tak Sing and Yuk Chun meeting the defendant in this fast food shop.  But the defendant said that it took place between 19 and 20 December 2003 in which Yuk Chun uttered some threats to her.  The plaintiff’s case is that it took place sometime in January 2004.  He further alleged that the defendant agreed to their proposal of distribution of estate and waived her right to be the administratrix without demur. 

112.  In order to boast the plaintiff’s case that this meeting indeed took place in January 2003, Yuk Lan, Yuk Chun and Tak Sing all said that Tak Sing had passed to the defendant their Chinese New Year lai see packets for Nga Yee.  However, Yuk Chun said this meeting took place between 3 and 5 January and that seems to be far too early for giving lai see.  The Chinese New Year in that year was on 22 January which was more than two weeks away.  Tak Sing’s evidence was that this meeting took place in mid-January.  That was still about a week before the Chinese New Year for the giving of lai sees.

113.  Yuk Lan also admitted that she and Tak Sing had been given legal advice by an experienced solicitor on the scheme of distribution of estate provided in section 4(3) of the IEO and the defendant’s priority in being the administratrix.  They got such advice before the alleged encounter at the Sheung Shui Café de Coral on 1 January 2004.  Hence, they were aware that insofar as Chiu’s assets in Hong Kong were concerned, the defendant would take the personal chattels, HK$500,000 of the residue and half of the remaining balance.

114.  Apart from the Ka Lung Flat which was subject to mortgage and payment of premium under the home ownership scheme, Chiu did not have other assets of any significant value that was known to the defendant.  For the Ka Lung Flat, the elder siblings valued it at $1,000,000 in their estate affidavit (see schedule of property dated 2 April 2004 at page C-179).  The defendant’s valuation in her estate duty affidavit was the same (see schedule of property dated 31 December 2004 at page C-175).  Their estimates were supported by the value of the subsequent sale.  The flat was sold by the mortgagee bank on 5 September 2005 at HK$1,940,000.  The net sum after payment of premium at 30.55% (as stated in the witness statement of the plaintiff) was HK$1,347,330.  On 31 March 2004, the outstanding principal and interest on mortgage was HK$146,000 odd (page C-280).  The net proceeds after deducting all outstanding principal and interest on 5 September 2005 should be no less than $1,100,000. 

115.  If the net value should be at $1,000,000 and be distributed according to section 4(3) of the IEO, then the defendant would receive $750,000 and the six siblings including Nga Yee would each receive some $41,600 odd.  However, if the net proceeds should be divided amongst the siblings to the exclusion of the defendant, then each of them would receive $200,000 or $166,600 odd depending on whether Nga Yee would be given a share.  The plaintiff’s witnesses admitted that they ceased paying the mortgage instalments since July 2003 because they worried that they would be paying for the defendant’s benefit.  It thus appeared that they were already aware of the provision in section 4(3) of the IEO in or before July 2003 despite their claim to the contrary.

116.  Though they valued the net worth of the Ka Lung Flat at HK$800,000 to HK$900,000, they had no idea about the value of the Shahu Villa or the Phoenix Flat.  There was some suggestion that the Shahu Villa could worth over RMB600,000.  However, the undisputed fact is that it had been let out at only RMB1,500 per month.  There is also no reliable evidence on the value of the Phoenix Flat though the parties seem to agree that its value was well below that of the Shahu Villa and half of it is in the name of Tak Sing.

117.  There is also no evidence on the law of the Mainland regarding the scheme of distribution upon intestacy.  Yuk Lan said that it was all along the elder siblings’ consensus to give the Shahu Villa to the defendant but to keep the Ka Lung Flat to the elder siblings themselves.  In addition, they would also provide HK$100,000 to Nga Yee.  She also said that if the defendant should have asked for the Phoenix Flat, they would have given it to the defendant.  But the defendant never asked for it.  She heard from Tak Sing that the defendant just accepted their consensus on distribution as put to the defendant by Tak Sing at the KFC meeting. 

118.  However, there is no dispute that the defendant had been living in the Phoenix Flat since her marriage to Chiu in 1995 until she obtained the one-way permit to Hong Kong in June 2003.  Nga Yee also lived there since her birth in May 1996 to mid-1999.  It is also Yuk Chun’s evidence referred to below that the defendant had blamed the elder siblings for having thrown away her belongings and the belongings of Nga Yee kept in this flat and changed the lock to bar her entry to it.  Hence, it was surprising that according to Yuk Lan, neither Tak Sing nor the defendant had mentioned about the Phoenix Flat in their discussion of the terms of distribution at KFC.

119.  Yuk Lan said that after the defendant had agreed to their consensus, the elder siblings then raised more than HK$30,000 and applied it to pay the arrears of mortgage instalments.  Tak Sing also engaged a solicitor to assist in the drafting the papers, but was told by the solicitor that Nga Yee should be given a share of the Ka Lung Flat.  So they revised the terms by including Nga Yee as one of the beneficiaries of the Ka Lung Flat, but withdrew the HK$100,000 from the defendant.  Yuk Lan said the defendant agreed to this revision of terms.

120.  On the whole, Yuk Lan’s evidence is that the elder siblings were nice and helpful to the defendant.  Nobody scolded or maltreated her.  She was given money to spend and her necessities provided for.  Nobody had made any treat to her in relation to the distribution of Chiu’s estate.  This is also the picture that the other witnesses of the plaintiff tried to paint.

Chiu Yuk Chun

121.  She also denied that she had searched for Chiu’s documents and assets at the Ka Lung Flat.  She said she only returned there in July 2003 after the funeral.  Everybody including the defendant was there to discuss the distribution of the estate.  She then referred to the alleged dinner gathering on 31 December 2003 at Tak Sing’s home during which the defendant had allegedly telephoned Tak Sing.  She also referred to their meeting at Sheung Chui Café de Coral in the next morning.  I have already referred to her evidence on this.  After this, she met the defendant again at KFC.  She said this meeting took place between 3 to 5 January 2004 whilst the defendant said it was between 19 and 20 December 2003.  Tak Sing said that it was in mid-January 2004.  I have already referred to these and the alleged giving of lai see packets above.

122.  Yuk Chun also said that before she went to this meeting, the elder siblings had decided to propose to the defendant that the Shahu Villa would be given to her whilst the Ka Lung Flat would be shared by the elder siblings.  In addition, the elder siblings would raise HK$100,000 for the defendant.  This proposal was put to the defendant at KFC and the defendant readily agreed to it.  The defendant did not raise any other term or condition either.  Nobody mentioned the Phoenix Flat.  The atmosphere was just like that of a family discussion.  But Yuk Chun agreed that the defendant did complain that Yuk Lan and the plaintiff had scolded her and that everybody in the family had maltreated.  The defendant also repeated these complaints several times at the meeting.  Yuk Chun also agreed that the defendant had angrily charged the elder siblings of having thrown away her belongings and those of Nga Yee in the Phoenix Flat.

123.  Yuk Chun also confirmed that they had, in reply to the defendant’s query, told the defendant that they would engage a solicitor to do the drafting.  She denied of having made any threat to the defendant at this meeting.  She said the relationship between the defendant and her family was just like that of members of a family.

The plaintiff

124.  The plaintiff denied that there was the October 2000 incident in which the defendant alleged that he had scolded her severely and given her a kick.  It is the defendant’s case that as a result of this incident, Chiu evicted the plaintiff from the Ka Lung Flat and the plaintiffonly returned to the flat after Chiu’s death.  It is however the case of the elder siblings that this incident and the alleged eviction of the plaintiff from and his return to the flat were all fabrications by the defendant.  They all denied this incident or that the plaintiff had moved out of the Ka Lung Flat.

125.  The plaintiff referred to the visit by he himself, Tak Sing and Tak Sing’s wife to the Phoenix Flat in November 2003.  He said the purpose of going there was to look for the defendant and to pay the management fees.  When they were at the flat, they discovered the loss of some electrical appliances like television set despite there being no sign of damage to the main door and the gate.  In order to secure the flat against unauthorised entry, he and Tak Sing procured a change of the lock to the main door.  They then left a message with the management office for the defendant to contact them for a new key.  They had no other means to contact the defendant.  He denied of having thrown away the belongings of the defendant and those of Nga Yee.

126.  In November 2003, Nga Yee was attending school in Sheung Shui.  Hence, the defendant should also be in Sheung Shui.  This was known to the elder siblings as Yuk Lan had been to Nga Yee’s school to meet the defendant in October 2003.  Hence, the plaintiff was asked to explain why did he and Tak Sing go to the Phoenix Flat in Dongguan to look for the defendant when they knew that the defendant and Nga Yee were in Hong Kong.  He was unable to give any answer.

Chiu Tak Sing

127.  Tak Sing denied of having scolded, maltreated or threatened the defendant.  He also denied of having conducted any search at the Ka Lung Flat after Chiu’s death.  Regarding the safe deposit box at the Bank of East Asia which was rented in the join names of Chiu and his, there was only one key which was kept by Chiu.  He said after Chiu’s death, the defendant gave him the key and asked him to go and fetch the defendant a bag of gold ornaments from the box.  The defendant did not offer to go with him and he also did not invite the defendant to go with him.  He then opened the box at the bank and got the bag of gold ornaments for the defendant.  This was denied by the defendant who said that he just took the key and Chiu’s bank passbooks away.

128.  Tak Sing also said that after the defendant had disappeared from the Ka Lung Flat at the end of August 2003, he found Chiu’s two bank passbooks lying on a table in Chiu’s room.  The bank’s record however shows that someone had withdrawn some money from Chiu’s bank account after Chiu’s death. 

129.  Tak Sing also denied of having asked the defendant for Chiu’s documents of title to the Mainland properties. 

130.  He confirmed Yuk Lan’s story of her going to Nga Yee’s school in October 2003 to meet the defendant and the defendant talking to him over Yuk Lan’s mobile phone on that occasion. 

131.  He also referred to an alleged meeting with the defendant one or two days afterwards at the Sheung Shui Café de Coral.  He said a male friend of the defendant nicked name ‘Ngau Shi’ was also there.  He had met Ngau Shi once or twice previously when he had tea with Chiu in Sheung Shui.  He did not know Ngau Shi’s surname or given name.  Chiu introduced Ngau Shi to him simply by saying that that was Ngau Shi.  Chiu later told him that Ngau Shi was the defendant’s relative, but did not tell him what sort of relationship Ngau Shi had with the defendant.  In his witness statement, he however referred to Ngau Shi as a fellow villager of the defendant.

132.  He said that the defendant had in the alleged meeting at the Sheung Shui Café de Coral in October 2003 told him repeatedly that she did not want to administer Chiu’s estate.  She also did not want to be bothered about the Ka Lung Flat.  She only refused to sell the Shahu Villa for paying off the mortgage of the Ka Lung Flat.

133.  He also referred to the visit by him and the plaintiff to the Phoenix Flat.  He denied of having thrown away the belongings of defendant and Nga Yee.

134.  He then referred to the alleged gathering at his home on 31 December 2009 during which the defendant phoned him.  He also referred to the meeting of the elder siblings at Sheung Shui Café de Coral in the next morning and their encounter with the defendant there.  I have already referred to his evidence on these matters above.

135.  Then he referred to the meeting at KFC which he said was in about mid-January 2004 rather than between the 3 to 5 January as Yuk Chun put it or between 19 and 20 December 2003 as the defendant had said.  He also said that the defendant had readily agreed to the proposal made by the elder siblings without demur.  The matter was agreed in a minute or two and the atmosphere was good.  In contrast with Yuk Chun’s evidence, he said there was no discussion to engage a solicitor to draft the agreement.  He was firm that no one mentioned the word “solicitor” and the defendant did not know that they would be engaging a solicitor to do the drafting.

136.  He also referred to the variation of the terms of agreement whereby the defendant agreed that Nga Yee would be given a share of the Ka Lung Flat but she would not be given the HK$100,000.

137.  On his evidence, everything was done smoothly.  The defendant voluntarily and readily accepted their proposal and subsequent variation without demur.

138.  After the defendant had signed the Renunciation at the solicitor’s office on 4 February 2004, the defendant telephoned him several times in March and April 2004 referring to his promise to arrange for the Shahu Villa to be given to her.  He replied every time that he had to administer Chiu’s properties in Hong Kong before dealing with the Shahu Villa. 

139.  He denied the defendant’s allegation that he had been to Sheung Shui Café de Coral to look for her in February or March 2004.  He was firm that after the defendant had signed the Renunciation on 4 February, he had not gone there to look for her until July 2004.  It was after the receipt of the letter from the defendant’s solicitor in July 2004 that he and Tak Ming went to Sheung Shui Café de Coral to look for the defendant for clarification on why her solicitors had revoked the Agreement for her.  They wanted to know what had happened to the defendant.  They found the defendant working inside the kitchen there.  He said the defendant blamed him for not dealing with the Shahu Villa.  He gave the defendant the same explanation as before, but she did not care.  She also made a noisy scene there. 

140.  However, his alleged explanations to the defendant on the telephone in March and April 2004 and the alleged incident in July 2004 had not been put to the defendant in her cross-examination.  It was in fact the defendant’s case in her witness statement that she had another employment after 18March.  In contrast to Yuk Chun’s evidence, Tak Sing said that he only knew about the defendant’s revocation of the Agreement after receiving her solicitor’s letter in July 2004 and did not learnt it through the solicitor Mr Chan in March 2004.

141.  In cross-examination, he said he and his wife, the plaintiff’s wife and Tak Ming’s wife had all given money to the defendant for her support and maintenance.  I have pointed out above that this had not been put to the defendant.

142.  He also admitted that before Yuk Lan had met the defendant in October 2003 outside Nga Yee’s school, he already knew the provisions for intestate succession under the IEO.

143.  He repeatedly said that in considering how to distribute Chiu’s estate, the elder siblings were not much concerned about money.  They just wanted to keep the Ka Lung Flat and the defendant wanted to keep the Shahu Villa.  However, he had to admit the difference between the sum that each of the elder siblings would get out of the proceeds of sale of the Ka Lung Flat under the Agreement and the much smaller sum for each of them under intestate succession.  He insisted that the defendant had never mentioned the Phoenix Flat when they discussed about the distribution of estate.

THE LAW OF DURESS

144.  The defendant relies on duress.  She has to establish two elements.  They have been explained in para. 2-002 of Duress, Undue Influence and Unconscionable Dealing by Nelson Enonchong (2006):

“… In Universe Tankships v ITF [1983] 1 AC 366 Lord Scarman explained that there are ‘two elements in the wrong of duress (1) pressure amounting to compulsion of the will of the victim, and (2) the illegitimacy of the pressure exerted.  The first element concerns the coercive effect of the pressure on the complainant.  It inquires whether the complainant’s consent was truly given.  However, the complainant’s defective consent alone is not sufficient to constitute duress.  The second element is necessary.  The pressure which impairs the complainant’s free exercise of judgment must be illegitimate.  This second element is concerned with the quality of the defendant’s conduct in exerting the pressure.  The defendant must have behaved in a way which makes the pressure affecting the complainant’s consent to be regarded as illegitimate.”

145.  The Privy Council has also decided in Barton v Armstrong & Ors [1976] AC 104 at 118H to 119B and 121G-H that if the threats were a reason (not the reason, nor the predominant reason nor the clinching reason) for the complainant to have entered into the transaction complained of, then the complainant is entitled to relief.  This is so even though the complainant might well have entered into the transaction if the threats had not been uttered to induce him to do so.  The Privy Council also held at 120B-C and E-G that the burden is on the respondent to prove that the threats and unlawful pressure did not in fact contribute to the complainant’s decision to enter into the transaction, since the proper inference to be drawn from the facts found was that although the complainant might have entered into the transaction without the threats having been made, the threats and unlawful pressure did in fact contribute to the complainant’s decision to enter into the transaction.

146.  The Privy Council also said in Pao On v Lau Yiu Long [1980] AC 614 at 635C-E that:

“… In determining whether there was a coercion of will such that there was no true consent, it is material to inquire whether the person alleged to have been coerced did or did not protest; whether, at the time he was allegedly coerced into making the contract, he did or did not have an alternative course open to him such as an adequate legal remedy; whether he was independently advised; and whether after entering the contract he took steps to avoid it.  All these matters are, as was recognised in Maskell v. Horner [1915] 3 K.B. 106, relevant in determining whether he acted voluntarily or not.”

These matters are to be considered subjectively from the complainant’s perspective.

THE LAW OF DIRECT UNDUE INFLUENCE

147.  The defendant also relies on direct undue influence.  The burden is on her to prove the undue influence.  She has to establish that she entered into the Agreement and signed the Renunciation as a result of illegitimate pressure exerted by Tak Sing and Yuk Chun on her.  The current trend also appears to be that provided the undue influence was a reason (which did not be the main reason) for the complainant to enter into the transaction, the complainant can obtain the relief.  It does not matter that the complainant would have entered into the transaction in any event.  The burden is on the respondent to show that the undue influence had no impact at all on the complainant’s decision.  (See Bank of Credit and Commerce International SA v Aboody [1989] 1 QB 923 at 971, UBC Corporate Services Ltd v Williams [2002] EWCA Civ 555 at [86], Chitty on Contracts, 30^th edition, para. 7-068 and Duress, Undue Influence and Unconscionable Dealing at paras. 8-004 to 8-006, 8-008, 8-023, 8-028 to 8-034).

AGENCY AND ACTING IN CONCERT

148.  Though the duress and undue influence were allegedly exercised by Tak Sing and Yuk Chun on the defendant, it is the defendant’s case that their alleged illegitimate acts had been authorised by the other elder siblings thereby making them their agents (see article 90(2)(a) of Bawstead and Reynolds on Agency, 18^th edition, para. 8-177).

149.  Furthermore, Tak Sing and Yuk Chun represented all the elder siblings in making the proposal for the defendant for distribution of the estate.  The proposal was a consensus of all the elder siblings.  Tak Sing also entered into the Agreement on behalf of all elder siblings.  The elder siblings were acting in concert in making the proposal.  Though not all the elder siblings are implicated by the threats, if the Agreement is voidable and the Renunciation can be retracted because of these threats, they are voidable and retractable in respect of all the elder siblings.

ANALYSES AND FINDINGS

150.  The plaintiff and his witnesses all said that they had treated the defendant and her daughter nicely.  They said they had provided them with daily necessities at the Ka Lung Flat and paid the defendant money to spend.  If that were the case, then I do not know why the defendant would have chosen to leave the comfort and security of the Ka Lung Flat and moved to a container located in the midst of an agricultural field that was frequented by cockroaches and rats.  There were also snakes.  The cocking and hygiene facilities were located in a detached hut in the field.  It requires little imagination to tell that the accommodation in the container was much inferior to that in the Ka Lung Flat.  The defendant should have known that such accommodation was also not good for her beloved daughter Nga Yee, who was at tender age, and Nga Yee indeed did not find that accommodation favourable.  

151.  If the plaintiff’s witness were telling the truth, then the defendant, in moving to live in the container, had deprived herself and Nga Yee the maintenance of daily needs and financial support and also the comfortable living conditions of the Ka Lung Flat.  I have already pointed out above that the alleged provision of daily needs and financial support by the elder siblings was not put to the defendant despite her financial plight having been disclosed in her witness statement.  The undisputed fact that the defendant did not want the police to disclose her whereabouts to the elder siblings also shows that she did not treasure her relationship with the elder siblings.  One wonders whether that was a warm relationship as portrayed by the plaintiff’s witnesses.  All these also cast doubt on the truthfulness of the story of the elder siblings.

152.  The plaintiff’s witnesses tried to explain the defendant’s conduct by saying that she was saddened by Chiu’s death, but that cannot explain the extent of how she wanted to avoid them and her later conduct including her complaints at the KFC meeting of maltreatment by them.  Yuk Chun admitted that she had indeed made those complaints at the KFC meeting.

153.  Counsel for the plaintiff orally submitted that the alleged demand by Tak Sing for title documents was a fabrication by the defendant.  The defendant then exaggerated the effect of the alleged demand on her and used this exaggeration on the fabrication as her justification for moving to live in the container.  I cannot follow this reasoning.  If the defendant had no cause for moving to the container, she would not have made the move.  I find it difficult to believe that she would have to fabricate a cause to place herself and her daughter in such plight.

154.  There is also no dispute that when Yuk Lan went to the new school of Nga Yee to meet the defendant, the defendant reacted furiously by scolding her loudly right outside the school and in the presence of many parents of the pupils.  The plaintiff disputed that Yuk Lan had scolded the defendant in return.  But counsel for the plaintiff did put to the defendant that there was a heated quarrel which was caused by the defendant.  Nga Yee also said that there was a heated quarrel.  Putting the dispute aside, there is still the question of why was the defendant so angry with Yuk Lan when Yuk Lan had found her out.

155.  Regarding the KFC meeting, despite the dispute on its date, Yuk Chun did admit that the defendant had complained of having been scolded by Yuk Lan and the plaintiff and been maltreated by the elder siblings.  Yuk Chun also admitted that the defendant had charged the elder siblings of having thrown away her belongings and the belongings of Nga Yee at the Phoenix Flat.  The plaintiff’s witnesses all denied of having done such things.  If they were truthful, then these complaints would have been fabrications by the defendant.  But one wonders why the defendant would have fabricated these complaints and uttered them to Tak Sing and Yuk Chun at the KFC meeting.  Counsel for the plaintiff submitted that the defendant might have treated some assertive advice by the elder siblings as scolding, but the elder siblings did not give that explanation.  In any case, this cannot explain the defendant’s complaint about the belongings having been thrown away by the elder siblings.

156.  I also note the discrepancy between Tak Sing and the plaintiff on what they had allegedly found missing from the Phoenix Flat when they went there in November 2003.  The plaintiff said the television set and the hi-fi system in the sitting room had gone missing.  However, Tak Sing said the television set in the sitting room was still there, but the television set and recorder in the bedroom and the table and some chairs in the sitting room had disappeared.  Counsel for the plaintiff said that he would not ask me to make a finding of which television set had gone missing, but I think the discrepancy clearly shows that either or both of them were lying on why they had changed the lock to the door and what they had done in the flat.  Furthermore, their case for changing the lock was for security reason and they allegedly had prepared to give a new key to the defendant.  But despite the defendant’s complaint at KFC that she was barred from the flat, no key was ever offered to her.  This reflects badly on their credibility on the alleged reason for changing the lock.

157.  I also refer to the many inconsistencies between the evidence of the plaintiff’s witnesses and also the plaintiff’s pleading on the alleged gathering at Tak Sing’s home in the evening of 31 December 2003 and the alleged meeting on 1 January 2004 at the Sheung Shui Café de Coral.  The alleged dinner gathering was a very important event as the elder siblings alleged that the defendant suddenly had a change of heart and was for the first time willing to discussion the distribution of the estate.   The alleged meeting on the next day was also important as they accidentally discovered the defendant’s place of work.  If there were indeed such events, I do not expect that there would be so many discrepancies.

158.  The defendant also said both in her witness statement and her oral evidence that she had asked Tak Sing repeatedly for the solicitors’ letter which he had promised her for her to succeed to the Shahu Villa, but Tak Sing repeatedly refused to let her have it.  Tak Sing in his evidence however alleged that he had repeatedly explained to the defendant that he would attend to the Shahu Villa after administering the Hong Kong properties.  But this was not put to the defendant in her cross-examination. 

159.  Tak Sing also said in evidence that after receiving the letter from the defendant’s solicitors in July 2004, he and Tak Ming went to the Sheung Shui Café de Coral to look for the defendant for clarification.  He found the defendant in uniform and working in the kitchen.  He was firm that he had not been to this place to look for the defendant from after 4 February to June 2004.  But the defendant’s evidence is that she had left the employment at this place in March/April 2004 which was a few days after a visit by Tak Sing and Tak Ming.  Her witness statement also said that she had another job after 18 March 2004.  The so-called visit by the plaintiff and Tak Ming to her at Sheung Shui Café de Coral in July 2004 was however not put to her in cross-examination.

160.  As shown by the above analyses, the evidence of the plaintiff’s witnesses gives rise to many problems and cannot be explain the defendant’s conduct.  There are also problems of inconsistencies in the evidence of the plaintiff’s witnesses as referred to above. There are also failures to put to the defendant important disputes of fact. 

161.  On the other hand, the defendant’s evidence is straightforward.  She explained her removal from the Ka Lung Flat and her avoidance of the elder siblings.  She had to do so because she had to escape from the constant harassment and abuse of the elder siblings and Tak Sing’s demand for title documents.  Her reaction to Yuk Lan’s visit to the school can be explained by her frustration as well as fear because she had failed in her attempt to avoid the elder siblings.  Her complaints of maltreatment by the elder siblings as made to Tak Sing and Yuk Chun at the KFC did not sound like fabrications.  There was no reason for her to make these fabrications to them at that meeting.

162.  The defendant’s evidence also accords well with her actions.  This is so despite some minor discrepancies in her evidence.  The minor discrepancies can be well explained by the long lapse of time. 

163.  Regarding the letters by her solicitors to the elder siblings, counsel for the plaintiff submitted that the complaints were made in brief terms and mild tone which did not match the severity of the alleged threats.  Counsel also pointed out that the first letter of 2 July 2004 did not even seek to set aside the Agreement but just to revoke the Renunciation.  I however note that she took more than a day to deliver her evidence in chief.  I wonder whether she had the same opportunity to provide such detailed instructions to her solicitor which would have taken many hours of conference.  Though the letters did not employ terms that are as rude and offensive as allegedly used by Tak Sing and Yuk Chun, the first letter did say that Tak Sing had pressurized the defendant to sign the Renunciation by “threatening to cause extreme inconvenience and hardship” to the defendant and Nga Yee.  The second letter of 12 August 2004 also said that Tak Sing had threatened the defendant to the effect that “things would be extremely difficult” unless she signed the documents and the actual words by Tak Sing and Yuk Chun were “extremely oppressive”.  Though the first letter did not refer to the Agreement, it did say that the defendant claimed “all her rights under the intestacy of the deceased”.  That is a denial of the effect of the Agreement.  I also refer to the defendant’s evidence under cross-examination where she said that initially she was hesitant in disclosing the full details to her solicitor as she thought that these were family disputes and the solicitor was an outsider.  But when she was sued by the plaintiff in July 2006, she gave more details.

164.  Counsel for the plaintiff further submitted that she was not a person of weak character but would fight back when being pressed.  Counsel referred to a number of incidents.  The first incident was her alleged assault by the plaintiff in October 2000.  She said after the plaintiff had kicked her, she threw a stool to the wall.  The second incident was when she was pressed by Tak Sing for the title documents of the Mainland properties in August 2003.  She did not yield, but moved out of the Ka Lung Flat without leaving a word.  The third incident was when she saw Yuk Lan at Nga Yee’s school in October 2003.  She scolded Yuk Lan for half an hour.  The fourth incident was at the KFC meeting when Yuk Chun mentioned that they were all in a family.  She became very emotional and blamed the elder siblings for having changed the lock of the door of the Phoenix Flat.  Finally, after executing the Agreement and the Renunciation, she resolutely refused to sign any more document and did not answer their phone calls.

165.  However, I think none of her actions or conduct as referred to can amount to a fighting back.  Her throwing a stool to the wall was an attempt to stop any further assault by the plaintiff.  When Tak Sing demanded her for the title deeds, she dared not tell him off.  She just moved out of the Ka Lung flat to avoid his demand and the other abuses by the elder siblings.  It was an escape, not a fighting back.  Her quarrel with Yuk Lan at the school was just an expression of anger and frustration.  She did nothing to fight back.  She could not even prevent Yuk Lan from following her to Café de Coral.  Her behaviour at the KFC meeting was again a burst of anger after she had been harassed and abused.  There was no fighting back.  Regarding her refusal to sign any further document, that was also not fighting back.  She just refused to budge any further as they did not abide by their promise despite her previous concession.  No doubt she did not take all the abuses and blows without moaning and groaning.  She did shout back, avoid and escape.  But she did not fight back.

166.  Counsel also submitted that she had actively participated in a true negotiation on the scheme of distribution of the estate.  Counsel referred to her evidence that a few days after the incident when she could not get into the Phoenix Flat, she took a phone call from Tak Sing wherein he made the first proposal for distribution.  She thought about it and discussed it with her mother who opined that it was a good thing to resolve this matter with them.  She then took a more active role.  She phone Tak Sing and sought his assurance of the terms.

167.  However, one must not overlook why she had become more active.  She had been abused and pestered by them on the distribution.  She could not have avoided them.  They had demonstrated a show of force in the Phoenix Flat.  All these generated a tremendous amount of pressure on her.  If the distribution of the estate should be settled, the pressure would be off.  There was also the advice of her mother.  Hence, she became more active.  But she was only active in approaching Tak Sing with a view to have a settlement.  She was not active in seeking better terms for the benefit of her or Nga Yee.  It was Tak Sing who was dictating terms on behalf of the elder siblings to her.

168.  Counsel also referred to the KFC meeting where she had asked Tak Sing and Yuk Chun to reconfirm the terms of the agreement.  Counsel submitted that her concern was purely on the terms of the Agreement and their performance rather than on the safety of herself and Nga Yee.  I do not think this is a fair way to understand her behaviour.  She had already suffered their abuses.  Tak Sing then dictated some terms to her on the phone which she was prepared to accept so as to ease the pressure on her.  But then Yuk Chun uttered some threats to her at the KFC meeting which obviously caused her to be apprehensive if they would really give her what they promised.  These terms were not sought by her, but were accepted by her by way of concession so as to ease the pressure they exerted on her.  Her acceptance of those terms should have put the question of the safety of her and Nga Yee to rest.  If she was apprehensive of whether they would really abide by the terms, it was only natural and reasonable for her to have asked for the confirmation.  I do not agree with counsel’s submission.

169.  Counsel also submitted that no threatening words had been used by the elder siblings.  The defendant alleged that the threats by Yuk Chun were allegedly made at KFC after she had agreed to the terms.  Hence, counsel submitted that there was no conceivable reason or need for Yuk Chun to have uttered those threats.  However, the defendant’s allegation is that Yuk Chun uttered the threats to warn her not to renege from her acceptance when the written agreement was available for her signature.  Counsel’s submission is therefore flawed.

170.  Counsel also submitted that even if the threats had been uttered, they would have produced no effect on the defendant as she had already agreed to the terms.  But if the threats as alleged by the defendant were indeed uttered, then Yuk Chun did intend that they would operate on the defendant to secure her signature on the written agreement when it was ready.  That was how the defendant was affected by the threats.  Furthermore, according to the defendant, the terms of the Agreement had excluded the Phoenix Flat from her.  But she accepted them because of the threats.

171.  Counsel further submitted that since the elder siblings had arranged the defendant to sign the Renunciation before a solicitor, there could not have been any threat against her.  I do not agree.  I think it is just a matter of the severity of the effect on the defendant.  The threats were not merely addressed to the defendant.  More importantly, they were addressed to her daughter.  The elder siblings also had the ability to locate her and her daughter despite her attempt to hide from them their whereabouts.  These threats could therefore have weighted heavily on her.

172.  I also point out that section 29 of the PAO requires the Renunciation to be signed by the defendant before a solicitor or a person before whom an affidavit can be sworn.  Hence, Tak Sing could not have asked the defendant to sign the Renunciation at the Sheung Shui Café de Coral together with the Agreement.

173.  Counsel then referred to the tenor and wording of the letters issued by the defendant’s solicitors.  Counsel submitted that there was no threat of personal safety mentioned and that the first letter did not even refer to the Agreement.  I have ready dealt with these submissions above and do not want to repeat myself.

174.  Counsel then submitted that the alleged attack by the plaintiff was in October 2000 which was a long time before and would not have operated as a threat on the mind of the defendant in the end of 2003 or early 2004.  However, I would also consider that the alleged assault took place at a time when the defendant was still under Chiu’s protection.  That showed how daring the plaintiff was.  The plaintiff had also been allegedly evicted by Chiu from the Ka Lung Flat as a result.  These matters would weight on the defendant’s mind.

175.  On the whole, counsel’s submissions do not convince me that the elder siblings had not used the threatening words as alleged by the defendant or that the assault by the plaintiff on her in October 2000 did not affect her at the end of 2003 or early 2004.

176.  Counsel also submitted that the defendant had voluntarily and actively participated in performing the Agreement.  Counsel pointed out that she was capable of refusing the demands of the elder siblings.  She refused to handover the title documents.  She refused to let them know of her whereabouts.  She refused to discuss with Yuk Lan on the estate outside Nga Yee’s school.  She refused to sign further documents after the Renunciation.  She also refused to take their calls.  Therefore counsel submitted that she could have refused to sign the Agreement and the Renunciation if she had wanted to do so.  This submission confused her avoidance actions with what she allegedly did when subjected to the threats.

177.  Regarding her refusal to sign further documents after the Renunciation, she by then did not trust the elder siblings anymore.  Her concession only made her more deprived and miserable as they failed to let her have the letter for her to succeed to the Shahu Villa.  That property was the only thing they promised her, but they did not even perform that promise.  She appeared to have lost all things in the estate.  In those circumstances, I would not be surprised if her anger should have prevailed over her fear and hence she refused to sign any more document.

178.  Counsel also submitted that the defendant could have reported the threats to the police officer, Mr Tang or to seek assistance from him or Brother Hung or her mother.  She did explain in cross-examination that when she signed the documents out of fear, she had not thought of Mr Tang.  She also said that she did not know what to do when her daughter’s safety was threatened.  Her mother had already suggested that it was a good thing for her to settle the distribution of estate with them.  In these circumstances, I can understand why she had not thought of seeking assistance from these people.

179.  Counsel also submitted that when she signed the Renunciation, her main concern was whether she would end up with nothing and she did not express her concern about the safety of her and her daughter.  I think she at that time might not have been aware of the difference between the administration and the distribution of the estate.  She might have thought that abandoning the right to administration might cause the loss of the right to distribution.  Since she had been promised the Shahu Villa by the elder siblings, if she then had the misunderstanding, it was natural and reasonable for her to have raised that question with the solicitor.  That was after she had allegedly yielded to the threats already.

180.  Counsel also submitted that the defendant did not stay away from the elder siblings after signing the Agreement and the Renunciation, but instead demanded Tak Sing for the letter for changing the owner of the Shahu Villa.  I do not think this submission has merit.  They had obtained what they wanted by their threats.  She had already yielded to the threats.  There was no further ground for them to continue perpetrating the threats.  She could however expect that they would and should let her have her side of the bargain.  I see no reason why she should refrain from asking for her entitlement after her concession.

181.  Counsel also submitted that what triggered the defendant’s withdrawal from the Agreement was the elder sibling’s refusal to give her the letter to change the owner’s name of the Shahu Villa.  Counsel further submitted that her case looked like one of breach of agreement or misrepresentation by the elder siblings than duress or undue influence.  Counsel also submitted that the defendant understood the contents of the Agreement, the Renunciation and her entitlement under the IEO and there was nothing to suggest that she had been forced or tricked or her will had been sapped in entering into the transaction.

182.  The defendant indeed did not allege lack of understanding of the terms of the Agreement, the Renunciation or her entitlement under the IEO or that she had been tricked or misled.  I also think that the defendant had regarded the elder siblings of having breached the Agreement in not giving her the solicitor’s letter for her to succeed to the Shahu Villa.  But the question is still whether she had agreed to the scheme of distribution as a result of the duress and/or undue influence and hence the Agreement is voidable and the Renunciation can be retracted.

183.  Counsel also submitted that the case of the elder siblings is inherently more probable in that they had not gone to the extreme of depriving the defendant and Nga Yee of everything in the estate.  This agreement is obviously unmeritorious.

184.  Counsel further said that the agreed terms were the result of give and take.  But even the evidence of the elder siblings did not say that there was any give and take.  Their case was that they had agreed on the terms amongst themselves first.  Tak Sing then put these terms to the defendant who agreed to them almost instantly.  There was no negotiation or give and take.

185.  Counsel further submitted that for those properties not mentioned in the Agreement, the defendant had not waived her entitlement to them.  But the terms of the Agreement made it clear that the defendant was only to have the Shahu Villa in the Mainland.  There was nothing else in the estate for her.  She also said in evidence that Tak Sing had told her on 31 January 2004 at Café de Coral that the Phoenix Flat would not be given to her and he would not discuss with her on this flat.

186.  Counsel further submitted that there was no reliable valuation of the various properties and hence, it is not a case of the defendant having been put into a manifestly disadvantageous position by the elder siblings.  I do not agree with this submission.  I have already dealt with the value of the Ka Lung Flat which was estimated by both sides to be about HK$1,000,000.  Under the IEO, the defendant would be entitled to HK$750,000 of its sale proceeds.  The Shahu Villa was then generating rental of only RMB1,500 per month.  The difference in value was indeed great.

187.  Counsel finally submitted that Chiu’s estate was a small one and convenience in distribution was the key consideration.  However, I cannot see how it was more convenient to just give the defendant the Shahu Villa and nothing in the Ka Lung Flat.  The defendant was already a resident of Hong Kong since June 2003.

188.  Having analysed the respective evidence of the parties, I am driven to the conclusion that the defendant was indeed telling the truth.  The minor discrepancies can be explained by lapse of time.  I find that the plaintiff’s witnesses were lying insofar as their evidence differed from that of the defendant.

189.  I find that there was an occasion in October 2000 when the plaintiff had scolded and kicked the defendant once at the Ka Lung Flat.  I accept the defendant’s evidence on this as she was also supported by her notes in her notebook.  This assault by the plaintiffgenerated in her a long lasting fear of the plaintiff.  The elder siblings also knew that her daughter meant everything to her.  Yuk Chun and Tak Sing exploited her fear of the plaintiff and her care and concern of her daughter.  They did so in order to make her yield to their demands on the distribution of Chiu’s estate. 

190.  I also find that the elder siblings had repeatedly scolded the defendant shortly after Chiu’s death.  It was because of their desire to scramble for the properties in Chiu’s estate that they had also searched the Ka Lung Flat in the ways as described by the defendant.  They were looking for the title documents of Chiu’s Mainland properties and his other assets. 

191.  I also find that they had opened the safe in the flat and Tak Sing had taken the key and opened the safe deposit box at the Bank of East Asia at his own volition and not at the defendant’s request as he alleged.  I do not think the defendant would have just given him the key and asked him to go to the bank to open the box by himself.  There did not exist the necessary trust of the defendant in him at that time for the defendant to have entrusted such a task to him.  I find that the defendant was in a helpless position at that time and had been repeatedly abused by the elder siblings perhaps with the exception of Tak Ming.  I also find that Tak Sing had taken the bank passbooks of Chiu and money was withdrawn from the account thereafter.

192.  I also find that the abuses and maltreatment by the elder siblings (perhaps with the exception of Tak Ming) and Tak Sing’s demand for title documents drove the defendant away from the Ka Lung Flat to the container and into escape from them.

193.  I also find that she had given her phone number to them in the encounter at Sheung Shui Café de Coral in October 2003, but she later refused to take their calls and they could not discuss with her on the distribution of Chiu’s estate.  Her evidence on this is supported by the plaintiff’s evidence that the elder siblings were trying to look for her in November 2003.  But I do not accept that the plaintiff and Tak Sing had gone to the Phoenix Flat in November 2003 to look for her.  They knew that she was in Sheung Shui with Nga Yee.

194.  I also find that they had thrown away the belongings of the defendant and Nga Yee from the Phoenix Flat.  Otherwise, she would not have so complained in the KFC meeting.  I also find that they did so to threaten and pressurize the defendantto discuss with them on the distribution of Chiu’s estate.  This is in line with their case that they were eager to get in touch and discuss with the defendant on the distribution of the estate.  That was why Yuk Lan had in October 2003 gone to Nga Yee’s school in Sheung Shui to wait for the defendant.  This is also in line with the defendant’s case that she had refused to take Tak Sing’s call since the encounter at the Sheung Shui Café de Coral in October.  That was why they resorted to a show of force in the Phoenix Flat.

195.  I find that the KFC meeting took place shortly before 23 December 2003 when the defendant’s mother returned to the Mainland.  I accept the defendant’s evidence that her mother had offered to accompany her to the KFC meeting.

196.  The elder siblings also fabricated the character of Ngau Shi.  This Ngau Shi could not be Brother Hung as Brother Hung had suffered from cerebral haemorrhage and had inconvenience in moving around.  But this Ngau Shi was allegedly physically normal.  Nga Yee had also never heard of any one called Ngau Shi.  They fabricated this Ngau Shi possibly to create the picture that the defendant was not all alone and helpless, but had the support and help of a fellow villager/relative.  However, Tak Sing did not seem to have made up his mind on whether this Ngau Shi should be a relative of the defendant or her fellow villager.

197.  I find that the plaintiff’s witnesses have fabricated the gathering on 31 December 2003 and the meeting of the elder siblings and their encounter with the defendant on 1 January 2004.  I also find that the defendant had not telephoned Tak Sing on 31 December 2003.  Their case is that the defendant had hitherto chosen to be incommunicado.  If that were the case, there was also nothing in their case that would have caused a change of heart in her so that she would give a call to Tak Sing.  I think the elder siblings made these fabrications possibly to explain away the fact that they had discovered the defendant’s workplace by other means earlier in October 2003.

198.  In order to give credence to this fabricated encounter, they also pushed forward the date of the KFC meeting to sometime in January 2004 (of which date there is also inconsistency between Tak Sing and Yuk Chun).  This alleged date was also too early for the giving of their alleged lai sees to Nga Yee.  Counsel for the plaintiff said that it was not unusual to give lai sees to children ahead of the Chinese New Year.  That may be the case for relatives departing from Hong Kong shortly before the Chinese New Year.  However, the case of the elder siblings is that they and the defendant were in a familial relationship and they were all in Hong Kong.  If they were in such a relationship, it was natural that they would have some sort of gathering at Chinese New Year during which lai see packets would be distributed. 

199.  I also find that Tak Sing was lying when he said that the elder siblings were not much concerned about money when discussing the distribution of Chiu’s estate.  I find that they were keen to obtain the Ka Lung Flat for their own benefit to the exclusion of the defendant.  They were only prepared to give Nga Yee a share upon the advice of their solicitor.

200.  I find thatthe defendant had been repeatedly scolded and pestered by Yuk Lan, Yuk Chun and Tak Sing on the distribution of Chiu’s estate since Chiu’s death.  She tried to avoid them by moving to live in the container.  She tried not to let them know of her whereabouts but failed.  To her dismay, she was found out by Yuk Lan at Nga Yee’s school.  They also found her out at her place of work.  Her belongings and those of Nga Yee at the Phoenix Flat had been thrown away by them.  She was barred from the Phoenix Flat.  I find that their abuses, threats and harassment generated tremendous pressure on her.  Such pressure caused her to agree to an unfavourable scheme of distribution in the telephone conversation with Tak Sing which was before the KFC meeting.

201.  The scheme was to her disadvantage.  It was known to her and the elder siblings that the Ka Lung Flat had substantial net value.  The defendant knew her rights on Chiu’s dying intestate.  It was obviously to her disadvantage for her to be given the Shahu Villa in exchange for all her interest in the Ka Lung Flat.  There is no evidence of her legal entitlement to Chiu’s estate in the Mainland which included the Shahu Villa and the Phoenix Flat.  But it is unlikely that she would have no interest in them as she was the surviving widow of Chiu upon Chiu’s intestacy.  In any case, the Ka Lung Flat was estimated b y both sides to have a net value of about HK$1,000,000, but the Mainland properties did not appear to have substantial value.  At that time the Shahu Villa was only generating a monthly rental of RMB1,500 and the Phoenix Flat had a worth of no more than RMB100,000.  There was also no proper document of title for the Shahu Villa save a receipt of purchase of land issued to Chiu.  But she was under tremendous pressure from the elder siblings to settle the distribution of estate with them.  Her mother also advised her to resolve the matter with them. 

202.  I also find that at the KFC meeting, Tak Sing admitted of having thrown away her belongings and Yuk Chun uttered threats to her as testified by her.  Though she was prepared to agree to the scheme before going to the meeting and before the threats were made to her, she became indecisive after the threats were made.  She then agreed to the scheme after their confirmation of the terms.  This shows that the threats made at the meeting caused her to be apprehensive that she might not get what they promised her in the scheme.

203.  I find that Tak Sing had spoken threatening words to her in a subsequent telephone conversation after the KFC meeting and at the meeting of 31 January 2004 as she testified.  

204.  I also find that when she signed the Agreement on 31 January 2004 and the Renunciation on 3 February 2004, she did so as a result of these threats including those uttered to her at the KFC meeting.  These threats were directed to her as well as to her beloved daughter.  Her signing of the Agreement and the Renunciation were not separate and independent events.  They were a continuation of the oral agreement made before and at the KFC meeting with variation.  The pressure for her to enter into the oral agreement prior to the KFC meeting continued to operate on her together with the further threats made to her on the three occasions above-mentioned.  I find that but for the pressure and the threats including those uttered by Yuk Chun and Tak Sing on the three occasions, she would not have accepted and signed the Agreement or the Renunciation.  She was not even given the Phoenix Flat and the HK$100,000 in the Agreement which they had promised her at the KFC meeting.  She did not mind about their withdrawal of HK$100,000 in exchange for Nga Yee’s share in the Ka Lung Flat, but the taking away of the Phoenix Flat was against her will.  She was forced to accept the taking away of this flat by the threats.

205.  I also refer to the Privy Council’s observation in Pao On v Lau Yiu Long at 635C-E on matters that should be considered on whether the defendant had acted voluntarily.  Though she did not protest when Tak Sing told her on the phone the terms of distribution before the KFC meeting, she had by then already suffered from their abuses and their show of force at the Phoenix Flat.  I find that she agreed to those terms because she was under the pressure of their abuses and was hoping to relieve the pressure by settling the distribution with them.  When she was asked to sign the Agreement on 31 January 2004, she found that she was not given the Phoenix Flat.  She did protest, but Tak Sing then uttered some threats to her safety and the safety of Nga Yee, she therefore signed the Agreement.  She did not protest when she signed the Renunciation, but she did so under the same pressure.

206.  In the light of pressure and threats on her and on Nga Yee, I also find that she did not think that there was an alternative course open to her, but to settle the distribution with them on their terms.

207.  At the material times, the only advice she had was from her mother.  I do not think that was an independent advice.  I do not think her mother had the necessary knowledge to advise her what to do.  Her mother is a resident of the Mainland and only came here in September 2003 on a  2-way permit.  Furthermore, her mother was not in an independent position. 

208.  I also accept her evidence that after the safety of Nga Yee was threatened, she did not know what to do.  Hence, she had not thought of seeking any independent advice from the police officer, Mr Tang.  I also find that in those circumstances, she would not have thought of seeking advice from other independent advisers.

209.  After she had refused to sign any further document, she told the solicitor, Mr Chan sometime in March 2004 that she did not want to abide by the Agreement and the Renunciation.  That resulted in the elder siblings not paying any more mortgage instalment.  She then obtained free legal advice and took steps to avoid the effect of the Agreement and the Renunciation.  Her first caveat was then filed on 7 June 2004.

210.  I find the conduct of Yuk Lan, Tak Sing, the plaintiff and Yuk Chun despicable, outrageous and shameless.  I find that they are a bunch of liars.  I also find that soon after signing the Renunciation, the defendant was no longer susceptible to the threats of these four elder siblings as she found that they did not keep their promise and her concession only made her more deprived and miserable.  Their threats did not work on her anymore when her anger had overcome her fear.

DECISIONS

211.  On the basis of my findings above, I hold that the defendant executed the Agreement on 31 January 2004 and the Renunciation on 3 February 2004 as a result of the duress and undue influence applied to her by Yuk Chun and Tak Sing at the KFC meeting shortly before 23 December 2003, in a subsequent telephone conversation between Tak Sing and her and in their meeting in Sheung Shui Café de Coral on 31 January 2004.  The Agreement is therefore voidable.  I dismiss the plaintiff’s claim. 

212.  I order that the Agreement be set aside and Chiu’s estate be distributed in accordance with section 4(3) of the IEO. 

213.  Regarding the retraction of the Renunciation, it is governed by section 31 of the PAO.  However, the section does not contain any criteria for an order to be made for retraction if no grant has yet been made to any other person.  It merely provides that if a grant has been made to some other person entitled in a lower degree, then leave for retraction will only be granted if it can be shown that the retraction is for the benefit of the estate or those interested in it.

214.  In England, a renunciation does not take effect until it has been filed with the court and may be retracted at any time before then.  After filing, it can only be retracted with the leave of a district judge, but leave will be granted if necessary or expedient (see Tristram and Coote’s Probate Practice, 30^th edition, paras 15.01 and 15.02, The Law and Practice of Intestate Succession, 3rd edition, para. 4-015 and Re Morant (1974) LR 3 P & D 151).

215.  Counsel for the defendant submitted that for the position in Hong Kong, after a renunciation has been filed with the court, the person renouncing could apply to the court to retract the renunciation.  If no other person has obtained the grant, the court should grant leave for the retraction unless it can be shown that the retraction is not beneficial to the estate or those interested in it.  This submission is reasonable and I accept it.

216.  I grant leave for the Renunciation to be retracted by the defendant as there is no evidence showing that the retraction is not beneficial to the estate or those interested in it.  But for the Renunciation, the defendant also enjoys the highest priority to be granted the administration. 

217.  If I were wrong in accepting this submission of counsel, I would still grant leave for the Renunciation to be retracted because it was executed by the defendant under duress and undue influence. 

218.  Since Nga Yee is a minor and section 25(1) of the PAO requires the administration to be granted to a trust corporation or at least two individuals.  The defendant has proposed her close friend Madam Yu Kan Wun as the co-administrator.  The elder siblings have no objection to appointing Madam Yu as the co-administrator. 

219.  Madam Yu is not a beneficiary to Chiu’s estate and is otherwise not entitled to the grant of its administration.  However, I do not think it right to require the defendant to work with any of the elder siblings.  There is also no other relative of Chiu who has shown any interest to be made a co-administrator.  I therefore order that letters of administration of Chiu’s estate be granted to the defendant and Madam Yu subject to the clearance of the Probate Registrar.

COSTS

220.  This action was fought by the parties for their respective interest and benefit.  It is a hostile litigation not related to the interest of the estate.  I hold that the costs of this action should not come out of the estate but should follow the event.

221.  I have taken a very deem view of the conduct of the elder siblings (save Tak Ming who has not taken a role as active as that of the other four elder siblings and has not uttered any threat to the defendant).  I have found the four elder siblings (save Tak Ming) a bunch of liars.  I have also found their conduct despicable, outrageous and shameless.  The four of them have also fought this action with as much vigour as they could muster up.  I think it is appropriate to order costs on an indemnity basis.  I therefore make an order nisi that the plaintiff do pay the defendant the costs of this action and the counterclaim to be taxed on an indemnity basis and the own costs of plaintiff and the defendant be both taxed in accordance with the Legal Aid Regulations.

JOINDER OF PARTIES FOR PURPOSES OF COSTS ONLY

222.  Though this action was brought by the plaintiff alone, he did so for the benefit of all elder siblings.  If he should succeed, all elder siblings would benefit to the same extent.  They have also been acting in concert.  All elder siblings (save Tak Ming) have tried their best to advance the plaintiff’s case.  They have also given evidence at the trial (save Tak Ming).  Counsel on both sides also treated the plaintiff’s case as the case of all elder siblings.  They are right in doing so.

223.  Both the plaintiff and the defendant are on legal aid.  The other elder siblings are not parties to the action.  In the usual course, there would be no costs consequence to the other elder siblings even if the plaintiff should lose the claim.  But that is not right.  I think I should consider making Yuk Lan, Tak Sing and Yuk Chun jointly and severally liable with the plaintiff to pay the defendant’s costs on an indemnity basis.  I refer to section 52A(1) and (2) of the High Court Ordinance which provide:

“52A.  (1) Subject to the provisions of rules of court, the costs of and incidental to all proceedings in the Court of Appeal in its civil jurisdiction and in the Court of First Instance, including the administration of estates and trusts, shall be in the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are to be paid.

(2) Without prejudice to the generality of subsection (1), the Court of Appeal or the Court of First Instance may, in accordance with rules of court, make an order awarding costs against a person who is not a party to the relevant proceedings, if the Court of Appeal or the Court of First Instance, as the case may be, is satisfied that it is in the interests of justice to do so.”

224.  I also refer to O. 62 r. 2(4) of the Rules of the High Court which provides:

“2.  (4) The powers and discretion of the Court as to costs under sections 52A and 52B of the Ordinance and under the enactments relating to the costs of criminal proceedings to which this Order applies shall be exercised subject to and in accordance with this Order.”

Order 62 rule 6A(1) further provides:

“6A.  (1) Where the Court is considering whether to exercise its power under section 52A or 52B of the Ordinance to make a costs order in favour of or against a person who is not a party to the relevant proceedings-

(a)   that person must be joined as a party to the proceedings for the purposes of costs only; and

(b)   that person must be given a reasonable opportunity to attend a hearing at which the Court shall consider the matter further.”

225.  Before considering whether to exercise my power under section 52A above, I should join the three of them as parties herein and give them a reasonable opportunity to attend a hearing for consideration of this matter.  I therefore on my own motion order that Chiu Yuk Lan (趙玉蘭) be joined as the 2nd plaintiff, Chiu Tak Sing (趙德成) be joined as the 3rd plaintiff, and Chiu Yuk Chun (趙玉珍) also known as Chiu Yuk Chun Pansy be joined as the 4th plaintiff.  These three persons are joined in this action for the purposes of costs only.

226.  I direct the solicitors for the defendant to arrange with all four plaintiffs to fix a date for consideration of whether the 2nd, 3rd and 4th plaintiffs should also be ordered to bear the defendant’s costs jointly and severally with the 1st plaintiff.  I further direct that the solicitors for the defendant should serve a notice of that hearing on the plaintiffs no later than one month before the hearing date so that they will have a reasonable opportunity to consider their position and to seek legal advice and/or representation as they may deem necessary.