CHAN SAU WAI SHIRLEY v. JEN KIT JOSEPHINE, the administratrix of the estate of the Deceased AND ANOTHER

HCAP 25/2019

[2024] HKCFI 1811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 25 OF 2019

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JUDGMENT

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Table of Contents

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A.  INTRODUCTION

1.  In this action, P, the alleged second wife and widow of Deceased, seeks to revoke the grant of letters of administration to D1, the Deceased’s daughter from his first marriage, and/or to remove D1 as the administratrix of the estate of the Deceased and to replace her with an independent professional administrator. At the heart of their disputes is the validity of the purported marriage between the Deceased and P, which is challenged by Ds.

B.  BRIEF OVERVIEW

2.  The Deceased Frank Jen Chia-Hsiang (任家祥) was born in Mainland China on 1 September 1918[1]. He was educated at the St John’s University in Shanghai where he graduated in 1941 with a Bachelor of Science in Civil Engineering. He was able to speak fluent English, Chinese and Japanese and had worked in Chungking and Shanghai after graduation. Deceased married Madam Grace Chou Hsin-ya (周信亞) (“Madam Chou”) on 19 December 1947. Madam Chou was born in Mainland China on 29 October 1925 and was 7 years younger than Deceased. They moved from Shanghai to Hong Kong in 1949 and became permanent residents here[2].

3.  Deceased and Madam Chou had two children. Their son D2 was born on 30 January 1949, now 75 years old, and their daughter D1 was born on 10 November 1950, now 73 years old (collectively “Ds”).

4.  Deceased was a highly successful businessman and had established or had an interest in a number of companies during his lifetime.

5.  The Deceased founded Ziang Kong Company Limited (“ZKCL”) which was incorporated on 3 July 1952 in Hong Kong[3]. ZKCL started the wool and acrylic yarn business for gloves and later for sweaters and imported large quantities of yarns from Japan and obtained the sole sale agency of Pacific Worsted Mill Limited in Hong Kong. As at 15 December 1953, Deceased held 50 shares out of 60 issued shares of HKD 1,000 each, with Madam Chou holding 6 shares, and a Fred Chow and a Cheng Mu-Kuang each holding 2 shares[4].

6.  In 1956/1957, Deceased joined as 1/3 equal partner of Pacific Worsted Mill Limited in charge of marketing. Thereafter, in 1959, Deceased set up Imex Knitting Factory for making sweaters and Ziang Kong Garment Factory for making ski jackets.

7.  Later, in 1960, Pacific Worsted Mill Limited was amalgamated with Oriental Corporation Limited into Oriental Pacific Mills Limited and Deceased became one of the 6 permanent managing directors thereof.

8.  On 14 April 1964, Kwai Chung Enterprises Limited was incorporated (“KCEL”)[5], and on 21 February 1966, Ziang Kong Knitting Factory Limited (“ZKKF”) was incorporated for making sweaters[6]. According to Ds, after the anti-British riots in Hong Kong in 1966/1967, all the Chinese directors of Oriental Pacific Mills Limited sold their shares in that company.

9.  The company Cartegena Industrial Company Limited (“Cartegena”) was incorporated on 28 January 1975[7] and was first acquired on 6 March 1975 by Mr Chow Yei Ching (Madam Chou’s brother) (“Mr YC Chow”) and Mr Chan Kau Yu, respectively the then managing director and manager of Chevalier (HK) Limited, as shareholders each holding 1 issued share. They were the only two directors at that time. Subsequently on 1 March 1979, Deceased and Madam Chou and two others became directors of Cartegena, replacing Mr YC Chow and Mr Chan Kau Yu.

10.  By 1975, the issued share capital of ZKCL had been increased to 1000 issued shares of HKD 1,000 each. As at 31 December 1975, Deceased held 700 out of 1000 issued shares, Madam Chou held 100, Fred Chow held 160 and Cheng Mu-Kuang held 20 and the remaining 20 shares were held by Ruby Hsueh Hsing-I[8]. As at that date, there were 5 directors, namely Deceased, Madam Chou, Fred Chow, a Grorge Kiac-Dzun Yang, and D2 who had become a director[9].

11.  According to P, it was in about 1979[10] that she met Deceased when working for him in his Hong Kong business, and they soon became lovers but they did not live together at that time. P was about 69 years old at the time of the trial, which would mean she was born in about 1954 and was about 25 years old when she met Deceased, who would be about 61 years old at that time. P has a younger brother called Chan Tak Hing.

12.  P’s written evidence was that her relationship with the Deceased was soon found out by Madam Chou and Ds, and that was why Ds had disliked her all along. In late 1980s, according to P, as she and Deceased could no long stand the pressure from his family, they agreed to separate, and with Deceased’s assistance, she went to the United States to further her studies.

13.  It appeared that on 24 November 1984, P became the registered owner of a property in a building called Concord Building, No 90, Soy Street, Kowloon (“Soy Street Property”) at a consideration of HKD 297,300[11]. P went to the United States in 1987[12].

14.  Whilst P was in the United States, she underwent a marriage with a man called Peter Tseng (“Mr Tseng”) on 26 November 1987. That marriage did not last long. On about 13 July 1988, Mr Tseng filed for divorce against P as respondent, and after terminating the marriage in June 1989, she returned to Hong Kong. According to P, shortly thereafter, she and Deceased renewed their relationship and they started to jointly develop the garment business of which they were partners until Deceased retired in 1997.

15.  It was not disputed that Deceased and Madam Chou were never legally separated or divorced.

16.  On 13 December 1990, Deceased, Madam Chou and D2’s wife Wendy Chan acquired a property in joint names at Mount Parker Lodge at a consideration of HKD 1,230,000 (“Mount Parker Property”)[13]. Later on 16 November 1992, Wendy Chan ceased to be a joint tenant of the Mount Parker Property.

17.  On 23 June 1992, Cartegena Industrial (International) Co Ltd was incorporated under the laws of British Virgin Islands with an authorized capital of USD 50,000[14] (“Cartegena International”).

18.  On 11 February 1993, Deceased and P jointly acquired a property at Parc Oasis as joint tenants at a consideration of HKD 4,319,600 (“Parc Oasis Property”)[15].

19.  In about 1995, Madam Chou became seriously ill. On 8 October 1995, Madam Chou signed a “Letter of Authorisation” authorising D1 to act as her attorney to manage the Mount Parker Property[16]. On 23 December 1995, Madam Chou suffered from a stroke and was hospitalized.

20.  In early 1996, Deceased started to live alone with a helper at a property at Lei King Wan (“Lei King Wan Property”)[17], which was a property purchased in the name of Lily Chow, a daughter of Mr YC Chow, on 28 February 1994[18].

21.  On 24 March 1996, Madam Chou was in a “complete vegetative state”. In late 1996, Deceased moved back to reside in the Mount Parker Property.

22.  On 28 December 1996, Deceased signed a “Letter of Authorisation”, authorising D1 to handle and sign all matters and documents concerning the renting or selling of the Mount Parker Property[19] (“Power of Attorney”)[20]. However, about a month later, this was later revoked by a deed executed by Deceased on 25 January 1997 (“Deed of Revocation”)[21].

23.  According to P, in February 1997, Deceased moved out from the Mount Parker Property and lived with her at the Parc Oasis Property and/or in Shanghai.

24.  On 29 July 1997, Deceased resigned as a director of KCEL[22].

25.  On 22 August 1997, Deceased executed an assignment for the entire Parc Oasis Property to be transferred into the sole name of P at a consideration of HKD 4,500,000.

26.  On 30 December 1997, at a board meeting of Cartegena said to be attended by Deceased and Madam Chou, it was resolved that P was authorised to sign cheques of Cartegena’s accounts with Nanyang Commercial Bank jointly with the chop of Deceased, and Deceased signed as Chairman[23].

27.  Madam Chou passed away at the age of 72 at the Hong Kong Adventist Hospital on 21 May 1998.

28.  P was appointed as a director of KCEL on 4 June 1998 by Deceased notwithstanding Deceased had earlier resigned as a director of KCEL.

29.  On 9 June 1998, at a board meeting of a company Shenzhen Sunshine Paper Company Limited (a company partly owned by Cartegena) (“Shenzhen Sunshine”), Deceased resigned as deputy chief director and general manger and P took over his roles.

30.  On 26 October 1998, by a board resolution, P was appointed as a director of ZKCL[24].

31.  On 1 February 1999, the Mount Parker Property was sold by Chan Tak Hing (P’s brother) as Deceased’s attorney.

32.  On 22 February 1999, the Deceased and P went to Vancouver, Canada, and on 10 May 1999, a property at 1463, West 56^th Avenue, Vancouver was purchased in P’s sole name (“Vancouver Property”). On 2 September 1999, Deceased and P underwent a marriage ceremony in Vancouver, Canada[25].

33.  On 8 October 2000, Deceased and P travelled to Mainland China and in January 2001, Deceased was hospitalized in Shanghai. Thereafter, he remained living in Shanghai until his death 9 years later.

34.  On 12 January 2005, P purchased two units at Angler’s Bay in Tsuen Wan in her sole name.

35.  On 18 March 2006, upon P’s application as a director, KCEL was deregistered. Its then shareholders were Deceased (holding 54 shares), P (holding 45 shares) and Madam Chou (holding 1 share).

36.  Deceased passed away on 25 January 2010 at the age of around 91 in Shanghai. He died intestate.

37.  On 28 September 2012, D1 was granted letters of administration (“LA”) of the Deceased’s estate (“Estate”) under HCAG 9914/2012[26].

38.  As set out below, there had been a number of litigations between the parties in Shanghai and Hong Kong.

39.  On 30 June 2014, administration of Deceased’s estate in Vancouver was granted to D2 in Vancouver, Canada. This was followed by proceedings in British Columbia, the details of which will be set out below.

40.  On 7 and 8 December 2015, D1 applied for change of address/change of director/secretary of Cartegena, ZKCL, KCEL (collectively “3 Companies”). On 13 September 2016, D1 applied for registration as a shareholder of the 3 Companies with supporting documents.

41.  On 25 October 2016, D1 issued an originating summons to compel the 3 Companies to register D1 as a member and obtained such order on 6 December 2016. Thereafter various company actions were issued and the details were set out below.

42.  On 17 January 2017, P commenced HCMP 106/2017 to revoke the LA and to remove D1 as administratrix of the Estate which eventually was converted to the present action on 28 May 2019.

C.  THE LITIGATIONS

C.1  Shanghai Proceedings

43.  All the proceedings in Mainland whether by the parties or others are collectively referred to herein as “Mainland Proceedings”. Chronologically, these Mainland Proceedings were:

C.1.1.  1^st Yong Jia Property Proceedings

(1)  In 2007, Deceased’s adopted younger sister, 任翠英/Margaret Neen (“Madam Neen”) issued proceedings in Shanghai No 1 Intermediate People’s Court (“SH 15/2007”) as plaintiff against the Deceased as defendant (with P as his agent), claiming entitlement in the property known as No 400, Yong Jia Road in Shanghai (“Yong Jia Property”)[27]. The adopted mother of Deceased and Madam Neen was 胡玲娣 (“Madam Hu”).

(2)  There was a transcript of the brief proceedings at the Shanghai No 1 Intermediate People’s Court between the trial judge and Madam Neen’s legal representative on 5 June 2007 then known as (“SH 59/2007”)[28]. It appeared from a copy of the written submissions made by Deceased’s legal representative[29], Deceased applied for return of the Yong Jia Property in 1978 from the Shanghai Government pursuant to its private property policy and eventually the Shanghai Government returned the Yong Jia Property to Deceased’s family in April 1985. It was Deceased’s case that the property was recovered mainly through his efforts and that the Yong Jia Property was renovated with monies paid by the Deceased. Apparently, according to the submissions of the Deceased’s legal representative, there was an earlier set of proceedings (“SH 934/87”) in which the respective shares of Madam Hu, Deceased and Madam Neen, had already been decided by the Shanghai Court, namely Madam Hu held 1/3 share plus 1/5 of inherited share, totalling 211.67 sqm, Deceased inherited 1/5 share and purchased 2.08 sqm, totalling 37.36 sqm, Madam Neen held 1/5 of the share, ie 35.28 sqm. Deceased’s legal representative also informed the Shanghai No 1 Intermediate People’s Court that Madam Hu had made a will leaving all her assets to Deceased[30]. Judgment was subsequently granted in favour of Deceased on 11 February 2008 (“SH 15/2007 Judgment”). On appeal by Madam Neen, on 14 December 2010, the Yong Jia Property was decided in favour of Deceased, D1 and D2 as joint tenants (“SH 58/2008’) (“These proceedings are collectively referred to as the “1^st Yong Jia Property Proceedings”).

C.1.2.  Shanghai Jurisdiction Proceedings

(1)  Less than 3 months after Deceased’s death, on 8 April 2010, Ds issued proceedings against P in Shanghai People’s Court claiming that they were legally entitled to inherit all their parents’ assets including all movable, and immovable properties and company assets[31]. P objected to Ds’ claim on the ground that the Shanghai People’s Court lacked jurisdiction as Deceased was a permanent resident of Hong Kong and that his assets were mainly located in Hong Kong. On 25 June 2010, the Shanghai Xuhui District People’s Court ruled that the Shanghai People’s Court did have jurisdiction (“SH 2171/2010 Judgment”)[32]. P’s subsequent appeal was allowed on 2 September 2010 by the Shanghai No 1 Intermediate People’s Court which decided that there was no jurisdiction for the Shanghai People’s Court to deal with Ds’ claim (“SH 2052/2010 Judgment”), and the decision in SH 2171/2010 Judgment was set aside and Ds’ claim was dismissed[33].

C.1.3.  2^nd Yong Jia Property Proceedings

(1)  Thereafter, Ds issued proceedings against P again under SH 3852/2011, seeking a distribution of the title and usage rights between the parties in relation to the Yong Jia Property. A judgment was subsequently handed down by the Shanghai People’s Court on 5 September 2012 (“SH 3852/2011 Judgment”), partly in favour of P and partly in favour of Ds[34].

C.1.4.  Inheritance Proceedings

(1)  As set out earlier, D1 obtained the LA of the Estate on 28 September 2012. On 18 March 2013, Ds issued proceedings against P again in Shanghai (“SH 3542/2012”), claiming Ds’ share of assets of the Deceased, namely art and paintings and sale proceeds of two properties in Shanghai[35]. On 26 or 27 March 2013, a judgment was handed down in favour of P and that the Deceased had no assets to be distributed at the time of his death (“SH 3542/2012 Judgment”)[36]. Ds claimed that the SH 3542/2012 Judgment was sent to their lawyer’s old address and did not reach them until after the appeal deadline had expired, and therefore Ds’ appeal filed on 8 May 2013 was rejected due to it being time barred.

C.2  Hong Kong Proceedings

C.2.1.  Citation Proceedings

(1)  On 22 February 2011, D1 filed a caveat in the Probate Registry in Hong Kong under HCCA656/2011, followed by a citation[37]. D1’s solicitors attempted to serve the citation personally on P at the Parc Oasis Address but to no avail. It tuned out that D1 did not follow the correct procedure for those proceedings and later D1 had to re- file a sealed citation on 1 February 2012 (“Citation”)[38]. As D1 was not able to effect personal service of the Citation on P, D1 applied for substituted service by way of publication in the Oriental Daily News which was granted on 17 February 2012. Eventually, D1 obtained an order on 6 June 2012 for the grant of letters of administration, and as said, D1 obtained the LA on 28 September 2012.

C.2.2.  Misappropriation Proceedings

(1)  On 28 February 2014, D1 commenced an action on behalf of the Estate against P under HCA 346/2014 alleging that the Deceased was mentally incapacitated during the material period of time from 1995 to the date of his death and that P had misappropriated significant assets of the Deceased, claiming amongst other things a declaration for all assets of the Deceased to be held on constructive and/or resulting trust for the Estate as beneficiary and a declaration that the Deceased did not have the mental capacity to marry P and their marriage should be void from the beginning (“HCA 346/2014”)[39]. On the same day, D1 obtained a Mareva injunction and a disclosure order against P on ex parte basis. This was eventually discharged by Chow J, as he then was, on 11 November 2014 due to material non-disclosure (“1^st Injunction Decision”)[40]. On 25 November 2014, D1 issued an inter partes summons seeking amongst other things a fresh Mareva injunction against P to the extent of HKD 50m. This was dismissed on 16 January 2015 pursuant to a further decision handed down by Chow J, as he then was (“2^nd Injunction Decision”)[41].

C.2.3.  The Companies Proceedings

(1)  On 18 August 2015, D1 issued an originating summons under HCMP 1984/2015 against the Registrar of Companies, KCEL, and P, to restore KCEL under section 765(2) of the Companies Ordinance Cap 622[42] (“HCMP 1984/2015”). At the hearing before DHCJ Le Pichon, P abandoned her opposition and D1 was granted the order on 28 January 2016[43], with reasons for decision handed down on 2 February 2016[44] (“Restoration Decision”).

(2)  On 25 October 2016, D1 issued an originating summons under HCMP 2858/2016 against the 3 Companies and P to compel the 3 Companies to register D1 as a member[45] (“HCMP 2858/2016”). On 6 December 2016, Anthony Chan J granted the order[46] (“Registration Order”).

(3)  On 30 July 2018, D1 issued an originating summons under HCMP 1151/2018 to, amongst other things, compel KCEL to call a EGM[47] (“HCMP 1151/2018 EGM Application”). Eventually, there was a consent order made on 3 April 2019.

C.2.4.  Revocation Proceedings

(1)  On 17 January 2017, P issued an originating summons under HCMP 106/2017 to revoke the LA and to remove D1 as administratrix of the Estate[48] (“HCMP 106/2017”).

(2)  On 28 February 2018, DHCJ N Francis ordered amongst other things that the HCMP 106/2017 be continued as if begun by writ, and that the HCA 346/2014 and the HCMP 106/2017 be consolidated to be heard together as a single action[49] (“Consolidation Order”).

(3)  On 4 April 2019, DHCJ P Fung SC delivered reasons for his decision[50] setting out his doubts as to whether it was appropriate for the Consolidation Order to be made.

(4)  On 28 May 2019, DHCJ P Fung SC ordered HCA 346/2014 and HCMP 106/2017 to be deconsolidated and HCMP 106/2017 to be converted to a probate action, namely the present action HCAP 25/2019.

C.2.5.  Probate Action

(1)  P filed the statement of claim on 13 June 2019[51] seeking, amongst other things, an order that (i) the LA granted to D1 be revoked; (ii) a fresh grant of letters of administration of the Estate to two solicitors Mr Tak Shing Wong or Mr Herbert Hak Kong Tsoi; (iii) alternatively, an order that D1 be removed as the administratrix and Mr Tak Shing Wong or Herbert Hak Kong Tsoi be appointed instead .

(2)  In the re-amended defence & counterclaim, Ds counterclaimed for, amongst other things, (i) a declaration that the marriage between Deceased and P was not a valid marriage; (ii) a declaration that Deceased did not have the required or sufficient mental capacity to enter into the marriage; and (iii) in the event that D1 is removed as an administratrix, an order that D2 be appointed as the administrator of the Estate.

C.3  Proceedings in British Columbia, Canada

44.  After the Misappropriation Proceedings were issued in Hong Kong, D2 applied for letters of administration of the Deceased’s estate in British Columbia in Canada and thereafter, issued proceedings against P as follows:

(1)  On 4 March 2014, D1 appointed D2 as her attorney for application for the letters of administration of the Deceased’s estate in British Columbia, Canada, and on 7 July 2014, the letters of administration in British Columbia were granted to D2 in respect of Deceased’s estate in British Columbia (“BC Estate”)[52].

(2)  D2, on behalf of the BC Estate, issued a claim in Vancouver under P141010 in the Supreme Court of British Columbia and applied, without notice, for an order restraining P from dealing with the Vancouver Property, which was granted on 7 July 2014.

(3)  On 18 December 2014, D2 on behalf of the BC Estate, issued a civil claim against P in Vancouver under S-149880 in the Supreme Court of British Columbia claiming, amongst other things, that P was holding various assets in trust for the BC Estate[53] (“BC Trust Proceedings”). In the claim, at paragraph 20, it was pleaded by D2 that the validity of the marriage was the subject of proceedings in the High Court of Hong Kong, and D2 reserved the right to seek a determination of the validity of the marriage in British Columbia, should the High Court of Hong Kong declined jurisdiction[54].

D.  LIST OF DISPUTED FACTUAL ISSUES AND EXPERT ISSUES

45.  Notwithstanding directions given by this Court during the Pre-Trial Review, a final Scott Schedule (“Scott Schedule”) was only agreed and submitted to the Court in the morning of the 4^th day of the trial.

46.  In the Scott Schedule, under P’s list of issues, there are 9 factual and 6 expert issues, totalling 15. This was followed by Ds’ list which consists of 4 main issues under the headings (1) Deceased’s Mental capacity; (2) Duress/Undue Influence; (3) Revocation of grant; and (4) Removal of D1 as administratrix.

47.  I will follow Ds’ headings and consider the various actual and expert issues raised by the parties thereunder.

E.  THE WITNESSES

48.  Although the parties, namely P, D1 and D2 have respectively filed numerous affirmations/affidavits in other actions, each had only filed one witness statement after the conversion of the present action into a probate action. They all attended trial for cross-examination.

49.  Pursuant to an order made by Master Dick Ho on 3 September 2020[55] (“Expert Evidence Order”), Ds instructed Dr Wong Chung Kwong (“Dr Wong”) who submitted a solo report on 17 November 2020[56] and P instructed Dr Yu Yuk Ling (“Dr Yu”) who submitted his solo report on 9 January 2021[57]. The two experts submitted a joint statement on 12 April 2021[58] (“Joint Statement”). Dr Wong sent a further rectification letter on 26 September 2022[59] (“Rectification Letter”). They both attended the trial for cross examination.

F.  DECEASED’S MENTAL CAPACITY

F.1  The Legal Principles

50.  Under section 3 of the Intestates Estates Ordinance, Cap 73 (“IEO”), the meaning of a “valid marriage” includes in section 3(d), for the purposes of IEO, a marriage celebrated or contracted outside Hong Kong in accordance with the law in force at the time and in the place where the marriage was performed.

51.  It is not disputed that the courts in Hong Kong will recognise a foreign marriage subject to the 3 matters stated by DHCJ A Cheung (as our Chief Justice then was) in Wong Zhong Lan-Xiang v Frank Wong HCAP 900002/1995 as follows[60]:

“48. This Court will recognise a foreign marriage, i.e. a marriage contracted out of this jurisdiction according to its own rules of conflict of laws. Essentially, there are three matters to be considered. First, (with several exceptions which do not concern us) the marriage must have been celebrated in conformity with the formal requirements of the law of the place where the marriage was celebrated (lex loci celebrationis), e.g. the requirement of registration, the holding of a ceremony etc. This is generally known as the formal validity of a marriage. Second (and again subject to some immaterial exceptions), both parties must have possessed the capacity to marry in accordance with the law of each party's antenuptial domicile, e.g. law relating to minimum age of marriage, union between the same sex, bigamous union, or prohibited degrees of consanguinity or affinity. This is generally known as the essential validity of a marriage, or the capacity of a person to marry (according to his or her personal law). Third, a foreign marriage will not be recognized by this Court if it is repugnant to the conscience of this Court, even if it is valid according to the lex loci celebrationis as well as the law of the antenuptial domicile of the parties, e.g. a blatantly incestuous union. See Cheni v Cheni [1965] P 85, 98 to 99. See generally Dicey & Morris, The Conflict of Laws (13^th ed.), Vol. 2, paras. 17R-001 to 17-112; Bromley's Family Law (9^th ed.) 28 to 52.”

52.  In the present case, there was no real dispute as to the formal validity of the marriage, namely that the registration of the marriage complied with the relevant regulations in Vancouver, British Columbia. There was also no dispute that the Deceased’s antenuptial domicile was Hong Kong. In relation to the essential validity, the main issue was whether the Deceased had the mental capacity or soundness of mind to give his consent to marry P, or alternatively whether he was under duress.

53.  As noted by Coleman J in the first instance judgment of Lui Ming Lok v Ng Im Fong Loretta [2021] 1 HKC, HCAP 28 of 2019, there is a distinction drawn between (a) incapability of understanding the nature of the marriage contract itself, and (b) incapability of taking care of one’s own person and property, and that for the purposes of the Lui case, it can be accepted that there may be different standards – or a ‘hierarchy’ of levels - of capacity applied to different situations[61]. He then went on to refer to the case In the Estate of Park Decd, Park v Park [1954] P 112, [1953] 3 WLR 1012, 97 Sol Jo 830 where the contract of marriage was described as the essence of simplicity, not requiring a high degree of intelligence to comprehend.

54.  The Park case was an appeal in the Probate Division from a lower court judge’s decision that the 2^nd marriage contracted by the deceased was valid. Deceased was married to his 1^st wife for some 50 years and after death of his 1^st wife in January 1948, he made his 1^st will on 1 March 1948. On 25 May 1948 , he had a stroke which affected him seriously and he was not able to attend to important matters of business thereafter. He recovered to some extent but he suffered a further attack in March 1949. He married his 2^nd wife on 30 May 1949, and a few hours later, he signed a new 2^nd will, which was described as an elaborate will. He died on 17 June 1949.

55.  There had been an earlier a probate action by the executors of the 2^nd will In re Park; Culross v Park (The Times, December 2 1950) in which the executors of the 2^nd will sought to have the validity of the 2^nd will established but it was found by the jury that the deceased when making the 2^nd will was not of sound mind, memory and understanding and that he did not know and approve of the contents of that will.

56.  This led to the 2^nd action in which it was alleged that if the deceased was not of sound mind, memory and understanding on 30 May 1949, he was not fit to be married that the marriage was not valid. The lower court judge held that the marriage was valid and that the marriage had revoked the 1^st will, and that the deceased died intestate.

57.  On appeal, Singleton LJ (sitting with Birkett LJ and Hodson LJ) had cited a number of authorities and concluded that “in order to ascertain the nature of the contract of marriage a man must be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage. Without that degree of mentality, it cannot be said that he understands the nature of the contract…” Singleton LJ had said this was the test he would apply, and that the question of fitness to marry might have been raised in the first action. He ultimately found that the deceased could and did understand the nature of the contract he was entering into and that the marriage was a valid and binding one[62]. The appeal was dismissed.

58.  In Sheffield City Council v E [2005] 2 WLR 953, a 21 year old girl believed to function at the level of a 13 year old planned to marry a man with a substantial history of sexually violent crimes. The local authority commenced proceedings to prevent them marrying or associating on the ground that such an order would be in the girl’s best interest. On the determination of a preliminary issue as to what questions were to be put to the psychiatrist, it was held:

“that the question whether there was capacity to marry was not to be considered by reference to a person’s ability to understand or evaluate the characteristics of some particular spouse or intended spouse; that rather it was about the ability to understand the nature of the marriage contract and the duties and responsibilities that attached to the marriage, namely that marriage was a contractual agreement between a man and a woman to live together, to love one another to the exclusion of all others in a relationship of mutual and reciprocal obligations, involving the sharing of a common home and a common domestic life, and the right to enjoy each other’s society, comfort and assistance; that the contract of marriage was essentially a simple one which did not require a high degree of intelligence to understand; and it had no jurisdiction to consider whether a particular marriage was in a person’s best interest….”[63]

59.  This Court was also referred to Westminster City Council v C [2009] 2 WLR 185, in which the local authority sought a declaration under the inherent jurisdiction of the High Court as to C’s capacity to marry. Subsequently, the local authority was informed by C’s parents that C had taken part in a Muslim marriage ceremony to K by telephone when he was in England and K was in Bangladesh. In that case, the parties proceeded on the basis that C did not have the intellectual capacity to marry, the marriage had taken place in Bangladesh and was valid under Bangladeshi law and that C was domiciled in England. The judge applied the dual domicile rule, by which a marriage was valid as regards capacity when each of the parties to it had, according to the law of his or her antenuptial domicile, the capacity to marry and held that since C did not have capacity to marry it would be repugnant to public policy for English law to recognise the marriage and granted a declaration that the marriage was invalid, amongst other things, in English law.

60.  C’s parents sought leave to appeal and it was held by the English Court of Appeal amongst other things that[64] (1) granting permission to appeal on the first ground and allowing the appeal in part, that absent a petition for nullity, the court had no jurisdiction to grant a declaration that a marriage had been void at its inception; that in any event, where either party to a marriage did not validly consent to it in consequence of unsoundness of mind, the marriage was by section 12(c) of the 1973 Act[65], voidable, rather than void and remained valid unless and until it was annulled, and that, accordingly, the judge had erred in declaring the marriage invalid in English Law; but (2) the validity of such a marriage or English domestic law was not inconsistent with the High Court’s capacity to refuse its recognition, that the dual domicile rule was not limited to those cases in which the marriage which had been entered into was prohibited in the jurisdiction of the domicile of one of the parties but was of general application; that, although as a matter of public policy the court would where appropriate uphold the concept of marriage and find alternative ways of recognising particular marriages in cases where non-recognition under the dual domicile rule conflict with that policy, in order to qualify for recognition in England a marriage which was valid according to the law of a foreign state had to conform to English concepts of marriage; that the absence of intellectual capacity to enter into a marriage was wholly inconsistent with those notions; that, in the circumstances, the dual domicile rule produced no injustice and C’s incapacity rendered the marriage sufficiently offensive to the conscience of the English court that it should, on public policy grounds, refuse to recognise it; and that accordingly there would be a declaration that the marriage between C and K, valid in accordance with the law of Bangladesh, was not recognised as a valid marriage in England; (3) … That the inherent jurisdiction of the High Court to protect the welfare of incapable adults had survived the passing of and was reinforced by the provisions of the Mental Capacity Act 2005 ….[66]

61.  What is clear from the above decision is that the Court of Appeal granted a declaration that the marriage between C and K was not recognised as a valid marriage in England on public policy grounds. Further, the mental incapacity of a party to a marriage to the extent that the party is not able to consent to a marriage only renders the marriage voidable and not void.

62.  In fact, the appeal to the Court of Appeal of Lui Ming Lok v Ng Im Fong Loretta, the executrix of the estate of Lui Kwan Cheung [2023] 4 HKLRD 37, [2023] HKCA 865, CACV 418/2020, our Court of Appeal has confirmed that the mental incapacity of a party to a marriage only renders the marriage voidable and not void. I understand that there has been a further appeal to the Court of Final Appeal.

63.  It was Ds’ submission that the legal burden was on P to provide that she was the lawful wife of Deceased, and Ds cited Leung Kat v Lee Chin Tooy Yook (unrep CACV 24/1986, 22 May 1986). However, the facts of that case were different, and the plaintiff was a brother of the deceased who died intestate and the plaintiff instituted proceedings claiming a grant to him of the letters of administration of the estate. The defendant had entered a caveat and counter-claimed that her father entered into a union of concubinage with the deceased and that according to the definition of “husband” and “a child or issue of any person” under section 2 of the Intestates Estates Ordinance, Cap 73, the defendant was a lawful child of the deceased. It was accepted in the court below and before the Court of Appeal that the burden of proof lay on the defendant to provide amongst others that there was a valid marriage to which her natural parents were parties.

64.  I do not find the above case would assist Ds. P has cited a passage from Phipson on Evidence 20^th Ed at 6-22, as follows:

“It is often said that the law presumes every man sane until the contrary is provided. Certainly, a party need not prove sanity. Proof of insanity and the claimant’s knowledge thereof, where that is any essential part of the plea, are also on the defendant when he alleges it. Thus, a party impeaching a marriage on the ground of insanity must prove it.”

65.  The above can also be seen in Rayden and Jackson at [5/286]. In fact, this can also be seen in Re Park, in which Singleton LJ had cited a passage of Sir James Hannen P in Boughton v Knight[67] in which Lord Chief Justice Tindal was quoted to have said in the M’Naghten’s case, with Sir James Hannen P accepting the question was treated somewhat differently in a criminal suit to the will case in Boughton v Knight:

“In all cases every man is to be presumed to be sane until the contrary is proved, and it must be clearly proved, that at the time of committing or executing the act, the party was labouring under such defect of reason from disease of the mind as not to know the nature and quality of the act he was doing;…”

66.  Singleton LJ also cited a passage of Justice Caruthers in Jemima Cole v William Cole, Volume 5 or Sneed’s Tennessee Reports at page 56, which was decided in the year 1857, in which Justice Caruthers[68]:

“Marriage, by our law, is a civil contract, and may be avoided, like any other contract, for want of sufficient mental capacity in the parties. If the mind is unsound at the time, it is incapable of consent, and that is an essential element in all contracts…. It is, however, only a contract, and must stand of by the usual tests applicable to contracts. It is not every unsoundness that will avoid a contract. The degree necessary to produce this effect is fixed by the law, and must be made out by proof. All persons of lawful age are presumed to be capable of contracting, until the contrary is made to appear. So, sanity is presumed and if the contrary is alleged, it must be proved by the party imputing it…”

67.  Ds are challenging the validity of the marriage between Deceased and P, and counterclaiming in this action for a declaration that the Deceased did not have the required or sufficient mental capacity to enter into the marriage with P. In my view, the burden is on them to prove this.

68.  Further, Ds had sought a declaration that the marriage was not a valid marriage. As seen above, even if Ds were to succeed in proving that the Deceased did not have the required or sufficient mental capacity to marry P, the marriage was only voidable, and as it had not been avoided during the Deceased’s lifetime, the marriage had remained valid at the time of his death. This would have put an end to Ds’ case on this issue, although Ds argued that the marriage being a foreign marriage should not be recognised. Anyway, as considerable time had been spent on the issue of mental capacity of the Deceased at the time of the marriage, I will consider this issue first.

F.2  The issues

69.  Briefly, Ds raised 3 sub-issues in relation to Deceased’s mental capacity:

(1)  Whether Deceased had the requisite mental capacity to enter into the alleged marriage with P on 2 September 1999 in Canada which should not be recognised under Hong Kong law;

(2)  Was Deceased mentally incapacitated at the time of the alleged marriage

(3)  If so, whether the marriage should be recognized as a valid marriage under IEO

F.3  The Expert Evidence Order

70.  Pursuant to the Expert Evidence Order, parties were only granted leave to adduce expert medical evidence on the mental capacity of Deceased during the period from 1955 to 1999[69]. Further, in paragraph 6 of that order, it is stipulated that:

“(a) if different parameters have been used, the parameters upon which each expert’s opinion is based and the reasons for adopting different parameters;

(b) the issues on which the experts have reached a common opinion and in respect of each such issue what that common opinion is; and

(c) the issues on which the experts have failed to reach a common opinion and their competing views on each issue with reasons for disagreement.”

71.  However, the Joint Statement did not really comply with the above directions, in that:

(1)  The experts simply stated that they did not adopt the same approach in their assessment of the Deceased’s mental capacity in the period from 1995 to 1999 and respectively set out their own approach under section (II) of the Joint Statement.

(2)  The “Areas of Agreement” set out in Section (I) of the Joint Statement were merely stated to be (i) the experts discovered a discrepancy in the Medicate Assessment Form, and (ii) the experts “noted” that Parkinson’s Disease (“PD”) was the diagnosis up to 30 March 2004 (certification by 俞亞瓊醫生/Dr Yu YaQiong[70] (“Dr Yu YaQiong”) and the diagnosis of Parkinson Plus syndrome 柏金森氏綜合症 (“PD PLUS”) first appeared in the certification dated 2 February 2007 by 徐榮英醫生/Dr Xu RongYing(“Dr Xu”)[71].

(3)  As for “Areas of Disagreement” under Section (III) of the Joint Statement, the experts simply maintained their respective opinions in their solo reports and set them out again, and also their responses to what was stated in the other’s solo report.

72.  P’s expert Dr Yu is a Specialist in Neurology and in Internal Medicine[72]. Ds’ expert Dr Wong is an experienced psychiatrist.

73.  Neither expert had the chance of personally examining the Deceased, and that their respective expert evidence was only based on what they could gather from the various historical medical records/information and the information they were provided by their respective clients. The two experts were provided with 114 items of documents of which items 8 to 42 were medical documents[73].

74.  In the retrospective analysis of Deceased’s capacity to marry P, Dr Yu relied on the documented medical facts and not the non-medical facts as he opined they were often subject to dispute and this would be for the Court to decide. On the other hand, in arriving at his opinions, Dr Wong had taken into account non-medical evidence.

75.  I will first set out briefly the documented medical information of the Deceased during the period 1995 until his death, namely respectively in 1995, 1996, 1997, 1998, 1999, and after 1999.

F.4  The documented medical information in 1995

76.  Even though it was not stated in the “Areas of Agreement”, it was not really disputed by the two experts that the Deceased had been suffering from Diabetes Mellitus since about 1977. It was also not disputed by the experts that Deceased was first diagnosed with PD on 28 December 1995 in Hong Kong by Dr Tse Sing Sang, Bell (“Dr Tse”), a neurologist in private practice[74], and Deceased was referred to see Dr Tse by Dr John Ma, an endocrinologist in private practice[75].

77.  Prior to Dr Tse’s diagnosis, Deceased had consulted the Specialist Out Patient Department of the Ruijin Hospital (瑞金醫院) (“Ruijin Hospital”), attached to the Shanghai No 2 Medical University, on 29 May 1995[76]. Apart from what appeared to be the English characters “DM”, “CT”, “Imovane”, “ABE”, the rest of the Chinese handwritings on the attendance records were not really discernible. D1 had in her witness statement said that there were cardio issues[77], and that she mentioned two Chinese characters “很差” (very poor). The said two Chinese characters appeared twice, respectively under two chopped dates, and they were not clearly legible as to whether they were “很差” (very poor) or “眼差” (poor eyesight).

78.  Deceased had also undergone a medical check up at the Shanghai No 2 Medical University Science and Technology Centre Laboratory in October 1995 which appeared to be in relation to his diabetes[78]. Insofar as his test results for diabetes nerve functions were concerned, on 27 October 1995, 3 out of 5 tests of certain nerve functions were of slow tendency (偏慢), one was normal (正常)and one was borderline (臨界值).

79.  On Dr Tse’s attendance record on 28 December 1995, he had noted “likely early Parkinson’s Disease/senile”[79]. Dr Tse had written a letter dated 5 January 1996 to thank Dr John Ma for the referral. In this letter, although noting that for over one year, Deceased’s gait slowed, his left leg was not as strong as his right, and his speech slowed down and signature deteriorated, Dr Tse noted that there was no tremor, and reported to Dr John Ma that:

“Examination showed full ocular movements. Glabella tap was negative. He walked slowly with small steps. Left arm swing was decreased and he had left cogwheel on synkinesis. Speech was flat and there was mild neck stiff ness. Blood pressure was 130/70 mmHg”

80.  Dr Tse further reported to Dr John Ma that Deceased had “subtle signs of early Parkinson’s Disease, mainly affected the left side”, and Dr Tse prescribed Sinemet (100/25) # ½ bd as initial treatment[80].

F.5  The documented medical information in 1996

81.  Dr Tse’s attendance notes thereafter showed that Deceased stayed mostly in Shanghai in 1996 and that after the first consultation, Dr Tse saw Deceased on 11 January 1996, 25 January 1996, 29 February 1996, 18 April 1996, and 3 September 1996.

82.  On 11 January 1996, Dr Tse’s s attendance notes recorded, amongst other things[81]:

“walk ok , speech better, more agile, facial expression, walking more firm”

83.  From the receipts issued by Dr Tse, it would appear that he had seen Deceased on 25 January 1996 and also 29 February 1996 although there were no attendance notes produced. However, it would appear from Deceased’s own handwritten Record of Treatment (defined later), the dosage of Sinemet was increased from ½ tablet in morning and another ½ tablet 12 hours later in the evening to one tablet in the morning and another one tablet 12 hours later in the evening[82].

84.  Dr Tse’s attendance notes on 18 April 1996 recorded, amongst other things:

“125/70 … walking OK … no tremor, cogwheel minimal, Gait-step …, neck rigidity (?) advised to walk stair (?)….”

85.  Dr Tse last saw Deceased on 3 September 1996. His attendance notes recorded, amongst other things:

“152 lb 130/70 … Been in [Shanghai]…. Walking not much, legs some vague … cogwheel +ve … facial expression ↓ , walking [approximately] same, neck stiffness +ve (mild)”

86.  According to Dr Tse, on this last attendance, Deceased’s condition remained stable and he was on “Sinemet 25/100#1/2 tds”[83].

87.  It later transpired that upon Ds’ receipt of Dr Tse’s report on 20 March 2013, about 18 days later on 8 April 2013, Ds’ solicitors had written to Dr Tse to seek further information on Deceased’s cognitive function, and Dr Tse had in his reply letter of 8 April 2013[84] (“Dr Tse’s Letter”) set out his following comments:

“The patient was treated with Sinemet, which was for treatment of Parkinson’s Disease.

The patient should have the physical ability to take care of his daily activities. In relation to his mental ability, there was no complaint in this aspect and mental examination had not been done”.

88.  After his visit to the Specialist Out Patient Department of the Ruijin Hospital in May 1995 mentioned earlier, Deceased appeared to have attended follow ups at the Ruijin Hospital. There were two attendance records produced, one with year and month illegible, and one with a chopped date of 26 November 1996[85].

89.  In the one with illegible year and month[86], it was recorded amongst other things that:

“糖尿病20年＋，XXX慢 进食可，便秘3天

检：神精，眼底A硬化II，舌居中，四肢肌 张力可, 无震颤，

100-1.11＝差慢，步态可，左指鼻移X

［不清楚］：脑动脉硬化

［不清楚］：脑动脉硬化

［不清楚］：颅脑MR

EEG 平衡化”

90.  There were 4 medications prescribed, but no Sinemet was prescribed. There was no diagnosis of PD.

91.  As for the one dated 26 November 1996[87], it was stated amongst other things that:

“颅脑MC：双侧［不清楚］小缺血灶

检：步态缓慢，二下肢肌张力 ↑

擬：脑A硬化 PD”

92.  As seen in the handwritten attendance record, on the above visit, Deceased was prescribed “Sinemet #1/2 3/ xxxx”, but somehow this prescription was missing in the typed version[88].

F.6  The documented medical information in 1997

93.  Deceased was admitted to the Caritas Hospital in July 1997 for gastro-enteritis. There was a report dated 11 June 1998 from Dr Chow Chi Kai (“Dr Chow”), a medical officer of the Department of Medicine & Geriatrics of the Caritas Medical Centre[89]. It was stated therein that Deceased was first presented to the Department of Medicine & Geriatrics on 6 July 1997 through casualty for diarrhoea and fever and was diagnosed to have gastro-enteritis. Deceased was admitted on that day, ie 6 July 1997, and during that admission, Deceased developed one episode of paroxysmal atrial fibrillation which subsided with treatment, and echocardiogram and thyroid functions test were normal, and blood sugar was under good control with oral hypoglycemic agent. Deceased was discharged on 11 July 1997.

94.  On 8 August 1997, Deceased underwent a physical examination for overseas compatriot from Hong Kong Macao and Taiwan at the Shanghai Health & Quarantine Bureau in Shanghai[90]. The answers on the record indicated that Deceased had no mental confusion (精神錯亂), and no psychosis illness (精神病) and for “other abnormal findings”, only PD was written. There was no abnormal finding of heart, lungs and diaphragm even though there were some handwritten words against “ECG”. Against “Suggestions”, it was written there was history of diabetes.

95.  In his report Dr Chow stated that after his discharge on 11 July 1997, Deceased subsequently followed up at the Outpatients Department and was last seen on 23 April 1998. According to Dr Chow, Deceased could walk with stick and assistance and concerning the mental functions, Dr Chow reported that Deceased was “oriented in time, place and person, coherent and responsive” and he was “mentally fit to make statement”.

F.7  The documented medical information in 1998

96.  As seen above, Dr Chow in fact last saw Deceased on 23 April 1998. There was no other medical information on Deceased during 1998.

F.8  The documented medical information in 1999

97.  The documents showed that Deceased had made an application for social security disability allowance (“SSDA”) in 1999 in Hong Kong. There was a Medical Assessment Form (“MA Form”) issued on 11 June 1999 in relation to Deceased’s application signed by Dr Kong Che Wan of Sai Wan Ho (“Dr Kong”), of G.O.P.C, Department of Health. There were 2 versions of the MA Form as set out below:

(1)  Version 1[91]–

(i)  Under Section (II) “Recommendation”, the box “The patient qualifies for Higher Disability Allowance (“HDA”) …” was ticked and deleted, and the box “The patient qualifies for Normal Disability Allowance (“NDA”) …” was ticked, and next to the deletion, there was a signature/initial which appeared to be that Dr Kong, together with his name chop “DR KONG CHE WAN”;

(ii)  Under Section (IV) “Fitness for making a statement”, the tick against the box that “The patient is mentally unfit for making a statement” was deleted out and there was a tick against the box “The patient is mentally fit for making a statement”, and next to the deletion, there was a signature/initial which appeared to be that of Dr Kong.

(2)  Version 2[92]–

(i)  Under Section (II) “Recommendation”, the box “The patient qualifies for HDA …” was ticked, and the box “The patient qualifies for NDA …” was not ticked;

(ii)  Under Section (IV) “Fitness for making a statement”, same as in Version 1.

F.9  The documented medical information after 1999

98.  The next medical information/records available to the experts were those from the Shanghai No 6 People’s Hospital[93]. These records showed that Deceased was admitted into that hospital on 5 January 2001 and he had a fever and a cough. He was diagnosed with pneumonia of left lung. Deceased was discharged on 10 February 2001. It was recorded that he had been bedridden for a long period and was not able of self care, but it was also recorded , amongst other things that:

“患者神清，呼之能應、較散����，對答尚切題 自抌位，抬入病房,…”

99.  As mentioned earlier, since January 2001, Deceased continued to live in Shanghai. According to a certificate issued on 3 September 2003 (“Yong Jia Certificate”) by Dr Yu YaQiong of Yong Jia Hospital in Xu Hui District in Shanghai (“Yong Jia Hospital”), Deceased suffered PD and diabetes and was bedridden and not ambulatory, and the doctors of the Yong Jia Hospital had established regular home visits with nurses providing nursing care to Deceased[94] (“Home Bed Care”). There was in fact no medical report or information as to the exact date as to when the Home Bed Care was first set up although it would appear that Home Bed Care arrangement had been set up by 3 September 2003. The Home Bed Care attendance records of Yong Jia Hospital showed that the Home Bed Care was set up for Deceased (建床) on 13 February 2004, and Deceased was discharged from Home Bed Care (撒床) on 6 April 2005[95]. There was another medial certificate issued by Dr Yu YaQiong on 30 March 2004 with the contents more or less the same as the Yong Jia Certificate but stating Deceased “神志尚清楚”[96].

100.  Thereafter, on 5 June 2006, Home Bed Care was set up for Deceased by the Community Health Services Centre in Tian Ping Street in Xu Hui District (徐匯區天平街道社區衞生服務中心) (“Tian Ping Health Centre”) under the Tian Ping Hospital (“Tian Ping Hospital”). The Home Bed Care medical records of Dr Xu showed that Deceased was discharged from Home Bed Care on 28 May 2007, and that he received Home Bed Care for a total of 356 days, and that there were 51 visits from the hospital[97]. Subsequently, on 24 August 2009, the Home Bed Care arrangement was set up again for Deceased[98] by Tian Ping Health Centre. I will consider the medical information from Tian Ping Hospital/Tian Ping Health Centre further later in this judgment.

101.  On 15 January 2010, Deceased was admitted to No 6 People’s Hospital for serious pneumonia[99]. He later passed away 10 days later, on 25 January 2010.

F.10  The experts’ respective opinion

F.10.1.  Dr Yu’s opinion

102.  Dr Yu opined that after being diagnosed by Dr Tse to be suffering from PD, Deceased had PD in the period 1995 to 2004.

103.  Dr Yu opined that Deceased did not have PD Plus during the period from 1995 to 1999. Dr Yu had explained the substantial difference between PD and PD Plus in paragraph 9 of his solo report.

104.  Dr Yu pointed out that PD Plus was first mentioned in the record of Tian Ping Hospital dated 5 June 2006 when the Home Bed Care was set up for Deceased, and then this also featured in the certification dated 2 February 2007 by Dr Xu. However, Dr Yu pointed out that although Dr Xu had referred to a diagnosis of PD Plus by 華山醫院 (“Hua Shan Hospital”), there was no information or medical records or reports from Hua Shan Hospital or any other medical institutions to support this diagnosis.

105.  Dr Yu also pointed out that the medical records and reports from Dr Tse did not mention cognitive dysfunction, and that Dr Tse’s Letter was only belatedly sent to P’s solicitors and Dr Yu on 7 April 2021, namely some 8 years later. Dr Yu referred to Dr Chow’s report in relation to Deceased’s mental functions and also the MA Form in which it was stated Deceased was mentally fit to make a statement, and that in light of this, it was impossible that Deceased would become mentally unfit to consent to marry P in less than 3 months, on 2 September 1999.

106.  Dr Yu had also pointed out that medical documentation of cognitive impairment first appeared in 2007 in Dr Xu’s medical attendance notes when Dr Xu certified that since 2000, Deceased had unclear consciousness and cognitive impairment, but this conclusion contradicted the contemporaneous medical records in the period from 1995 to 2004.

F.10.2.  Dr Wong’s opinion

107.  Ds in fact instructed Dr Wong in 2013 through their solicitors to seek his opinion in respect of Deceased’s psychiatric issues and Dr Wong had provided Ds with a preliminary report dated 19 September 2013 for the purpose of Ds’ 1^st Injunction application in HCA 346/2014[100] (“Preliminary Report”). At the time, Dr Wong was provided with:

(1)  Medical reports issued by Shanghai No 6 People’s Hospital dated 5.1.2001;

(2)  Medical check up test results/records issued by Shanghai No 2 Medical Hospital Science and Technology Centre Laboratory of 19.10.1995 and 27.10.1995[101].

(3)  Dr Tse’s medical report of 20.03.13, his medical records and the letter dated 5.1.1996 from Dr Tse to Dr John Ma;

(4)  Two reports of Dr Xu’s two reports dated 2.2.2007 and 29.5.2007[102];

108.  As seen in the Preliminary Report, in Section (I), after summarising the case based on information provided by Ds, Dr Wong referred to Dr Tse’s letter to Dr Ma of 5 January 1996 and then to Dr Xu’s two reports, and then opined that it was obvious that Deceased suffered from PD from 1995, and that Deceased reached a late stage of PD by 2000 and that he was probably in a vegetative state by 2001[103].

109.  It appeared in paragraphs 20 and 34(iv) of the Preliminary Report[104], Dr Wong was instructed on Ds’ concerns on whether Deceased possessed mental capacity regarding 3 matters, namely (1) making decision in relation to his re-marriage; (2) managing and administering his properties and affairs; and (iii) testamentary capacity[105](“3 Matters”). In Section (II) on “Mental Capacity”, Dr Wong explained that the assessment of mental capacity did not only involve the assessment of cognitive capacity and that in addition to cognitive capacity, emotional and moral capacity were also crucial.

110.  In Section (III), as explained by Dr Wong, PD is a neuro-degenerative disorder, and that PD is often associated with psychiatric complications particularly dementia, known as Parkinson’s Disease Dementia (“PDD”), which is a condition that can impair mental capacity, and is also often associated with depression and other emotional changes[106]. He then concluded that PDD was so prevalent that one could not assume PD patients as without PDD unless one had specifically looked for PDD and had ruled it out, and he opined that the burden of proof in the present case was on whoever claimed that Deceased had no PDD[107].

111.  Dr Wong then made certain observations and conclusions, mainly that (i) Deceased was diagnosed to suffer from PD in 1995 at age of 77 years old and that the age of 77 was an “old age factor pointing at the direction of a more severe disorder; (ii) as Deceased was diagnosed to be in late stage of PD in 2000 at age of 81 and within 4 to 5 years, Deceased had reached a vegetative state, it could have been a rapid deterioration of PD and/or Deceased could have suffered from other disorders that could have compounded the PD; (iii) within those 4 to 5 years, Deceased had made “drastic decisions” and taken “drastic actions”; and (iv) there was reason to conclude that Deceased probably lacked mental capacity to conduct the 3 Matters.

112.  Dr Wong was asked by Ds in their solicitors’ instruction letter to opine on Deceased’s mental capacity according to 4 periods of time, and his opinion was as follows[108]:

(1)  A period from 1995/1996 until Deceased isolated himself in February 1977: Possible to probable

(2)  A period from February 1977 until Deceased re-married in October 1999: Probable

(3)  A period from October 1999 until Deceased became vegetative in early 2001: Highly probable

(4)  A period from early 2001 until Deceased died in 2010: Beyond any reasonable doubt

113.  In the final Section (IV) “Psychiatric Recommendation”, Dr Wong stated that the available facts indicated that at some stage during the period of 1995 to 2001, Deceased became an incapacitated person, and that it was probable that Deceased lost his mental capacity in the early part of that 4 to 5 years and that it was possible to probable that Deceased was a mentally incapacitated person throughout that period[109]. The only way to find out “when” was to study all available facts, particularly medical reports and reports. Finally, he recommended that additional assistance of an expert neurologist was to be sought in the present case.

114.  In Part A of his solo report, Dr Wong maintained what was set out by him in his Preliminary Report on his discussion on mental capacity and on how the Deceased’s mental capacity could be assessed. He further elaborated on the 3 scientific bases he would apply in formulating his opinions, namely (i) making retrospective psychiatric diagnosis; (ii) the psychiatric disorders of relevance in this case; and (iii) the use of base-rates of the prevalence of psychiatric disorders.

115.  In Part B of his solo report, Dr Wong opined that from the medical/clinical information alone, there was no doubt that Deceased had suffered from PD and his opinion was that (i) he had begun to suffer from Mild Parkinson Neurocognitive Disorder (“PNCD”) when he was first diagnosed by Dr Tse on 28 December 1995; (ii) it was probable that, due to his old age and high prevalence of Alzheimer Neurocognitive Disorder (“ANCD”) among the elderly (ie base-rate consideration), and his additional high risk factors of diabetes mellitus, atrial fibrillation, depression, being widowed, and mental and physical inactivity, he had also suffered from concurrent ANCD during the 1995-1999 period; (iii) it was possible to probable that he had also suffered from Vascular Neurocognitive Disorder (“VNCD”) but the available medical information was insufficient for him to reach a definitive diagnosis; (iv) that Deceased had suffered from PNCD and ANCD fully justified the diagnosis of Multiple Neurocognitive Disorder (“MNCD”). Dr Wong opined that Deceased was in a state of Mild MNCD in 1995, which deteriorated continuously since its onset in 1995, and reached the state of Major MNCD in middle or earlier part of the 1995 to 1999 period[110].

116.  In Section C of his solo report, Dr Wong went on to take into consideration the non-medical information, and in Section D, he integrated the medical and non-medical information. Dr Wong’s opinion was[111]:

(1)  For the period from 1995 to February 1997, it was probable that Deceased had already been suffering from PNCD when he was first diagnosed to have PD by Dr Tse, and probably also suffered from ANCD, ie he suffered from MNCD and that it was mild degree of Mild MNCD in the beginning of this period and during this early period, Deceased retained mental capacity, which as the disease progressed, the mild degree of Mild MNCD became more severe but had not yet reached the degree of Major MNCD;

(2)  Deceased was in a state of Mild MNCD, but retained mental capacity (ie cognitive, emotional and moral capacity) on 28 December 1996 when he signed and personally delivered the Power of Attorney to D1;

(3)  Deceased did not have the mental capacity when he made the 3 actions in January and February 1997, namely opening two safe deposit boxes with P as his deputy and revoking the power of attorney and moving out of Mount Parker Property;

(4)  For the period from February 1997 to late 1999, Dr Wong updated his opinion in his Preliminary Report and that it was probable to highly probable that Deceased lacked mental capacity during this period.

(5)  On 2 September 1999, Deceased was already in a state of Major MNCD and did not possess mental capacity to, amongst other things independently make the decision to enter into the marriage with P. Deceased was readily or vulnerable susceptible to P when he engaged and/or decided to, amongst other things, enter into the marriage with P

117.  In the Joint Statement, Dr Wong set out his further opinions in (i) difference in approach; (ii) his responses to Dr Yu’s solo report; and his responses to Dr Yu’s opinions in the Joint Statement.

F.10.3.  The experts’ respective approach

118.  First, the starting point should be the Expert Evidence Order. The leave granted to the parties was to adduce medical expert evidence on the mental capacity of the Deceased during the period from 1995 to 1999. Thus, the “retrospective assessment” the experts were instructed to carry out should be on the Deceased’s mental capacity during the period from 1995 to 1999.

119.  Dr Wong is an experienced psychiatrist but not a neurologist. In fact, as mentioned earlier, in paragraph 43 of the Preliminary Report, Dr Wong had already made a recommendation that additional assistance of an expert neurologist was to be sought. It was not clear why Ds did not follow Dr Wong’s recommendation and did not seek assistance from an expert neurologist.

120.  What Dr Wong carried out was a retrospective psychiatric assessment, and as mentioned earlier, in formulating his opinion in the present case, Dr Wong relied on the 3 scientific bases set out in Part A of his solo report for making retrospective psychiatric assessment. Dr Yu had in the Joint Statement pointed out that Dr Wong’s approach was of limited value, as most patients with cognitive dysfunction and dementia are diagnosed and treated by neurologists and physicians since the causes of those disorders are neurological and systemic, not psychiatric in nature.

121.  In response, Dr Wong acknowledged that in providing his opinion in the present case, he was discharging his duties as an expert psychiatrist. He disagreed that cognitive dysfunction and dementia are concerns mainly of neurology and not of psychiatry, and Dr Wong opined that medical specialties often cross-over. He cited examples such as psychogeriatric psychiatry or old age psychiatric services/treatment being set up at Prince of Wales Hospital and Castle Peak Hospital, in order to support his opinion that patients with cognitive dysfunction and/or dementia (current psychiatric term is neurocognitive disorders) are commonly treated by psychiatrists[112].

122.  The fact that whether there are services/treatment by psychiatrists provided to such patients at hospitals or not, there is no sufficient evidence to contradict what Dr Yu said, as the causes of cognitive dysfunction and dementia (or NCD) are neurological and systemic, not psychiatric, in nature, such patients are diagnosed by neurologists and physicians. The fact in the present case was that Deceased was referred by Dr John Ma to a neurologist Dr Tse for diagnosis and treatment, and not to a psychiatrist.

123.  I therefore agree with Dr Yu that Dr Wong’s approach set out in Part A of his solo report in applying the 3 scientific bases for retrospective psychiatric assessment of Deceased’s condition may be of limited value. Having said this, P would have known about Ds’ choice of expert, and directions could have been sought earlier from the court if there is any disagreement.

124.  Second, some of the assumptions upon which Dr Wong based his opinion were not supported by any evidence, e.g. in the 2^nd of his 3 scientific bases, Dr Wong stated in the present case, the one was concerned with psychiatric disorders that might have affected Deceased’s mental capacity and this group of psychiatric disorders is now known as Neurocognitive Disorders (“NCD”) and Dr Wong then referred to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition by American Psychiatric Association (2013) (“DSM-5”). Later on, Dr Wong had discussed NCD due to Alzheimer’s Disease (“namely ANCD”), and that prevalence of ANCD was further increased by additional risk factors. Dr Wong then cited diabetes mellitus, atrial fibrillation, depression, being widowed, and mental and physical inactivity.

125.  I do not understand where the evidence of depression came from. As pointed out by Dr Yu, there was no contemporaneous medical documentation from 1995 to 1999 suggesting that Deceased had depression or depressive symptoms. Further, there was only one episode of atrial fibrillation during Deceased’s hospitalization for gastroenteritis at Caritas Medical Centre from 6 to 11 July 1997. As pointed out by Dr Yu, no underlying cause and the episode subsided with treatment. It was a one off event, with no other history that Deceased had atrial fibrillation.

126.  Dr Wong’s assumptions about Deceased’s widowhood and living alone and suffering from depression and living alone were not supported by any evidence, nor by any mental and physical inactivity, as even on Ds’ case, after their mother’s funeral, their father was travelling on trips.

127.  Third, it was clear that Dr Wong had relied heavily on the use of base-rates of the prevalence of psychiatric disorders in his assessment, which he regarded as very important[113]. I agree with Dr Yu that as a basis or first step, one should consider the hard data in contemporaneous medical documentation in the present case rather than use of probability of Deceased contracting PNCD and ANCD. I also agree that the hard data in contemporaneous medical documentation must be of greater weight than any estimation based on risk factor statistics.

128.  Fourth, in his retrospective psychiatric assessment, Dr Wong had also made reference to the “salient non-medical information” disclosed by both parties in the present case[114]. Dr Wong had explained in his solo report that there were two main kinds of information and two sources of information to formulate retrospective psychiatric diagnosis. The two main kinds of information were clinical abnormalities and impairment in functioning and the two sources of information were medical and non-medical, and that the non-medical sources of information provided by family members and other people who had observed and reported changes in the person’s behaviour and way of life that may indicate such abnormalities[115].

129.  However, if the non-medical information is disputed, such information would not be helpful. To start with, in the Preliminary Report, Dr Wong was provided with one sided subjective information from Ds, such as Deceased making “drastic decisions” and taking “drastic actions”. In his solo report, Dr Wong stated he was aware that fact finding was a matter for the court, yet he proceeded on the basis that the “facts” he referred to would be found by the court, and if the court were to find otherwise, Dr Wong said he would re-consider his opinions and if necessary, make changes. He then proceeded to analyse the documents from two main perspectives (A) relationship perspective; and (B) clinical abnormalities and impairment in functioning. Suffice to say, however, the “facts’ in these two perspectives and other events and actions referred to by Dr Wong were mostly subject to dispute and therefore the analysis provided by Dr Wong was not helpful.

F.10.4.  Analysis of the contemporaneous documented medical information

130.  As mentioned earlier, there was no dispute that Deceased was referred to see Dr Tse by Dr John Ma, an endocrinologist. On that 1^st consultation, Dr Tse noted in his attendance notes “… likely only Parkinson’s Disease/senile”, ie either PD or senility and later as seen in Dr Tse’s letter to Dr Ma on 5 January 1996, Deceased only had “subtle signs of early PD” at that time and the prescription of Sinemet (100/25) #1/2 bd was only an initial treatment. There was no other diagnosis of senility. In particular, there was no tremor found by Dr Tse. In fact, as set out earlier, on the 2^nd attendance on 11 January 1996, Dr Tse noted that Deceased was more agile and his speech was better. Although Dr Tse later increased the dosage on 25 January 1996, his notes did not appear to show any deterioration in Deceased’s condition. Dr Tse’s handwritten notes on 18 April 1996 showed Deceased had no tremor, Dr Tse stated in his report that examination of the cardiovascular system, chest and abdomen revealed no abnormality. In fact, Dr Tse noted improvement on reassessment and had stated that Deceased’s condition remained stable when last seen on 3 September 1996.

131.  I find Dr Wong’s opinion in paragraph 31 of his solo report[116] that Deceased had clearly worsened in his PD symptoms on 3 September 1996 was not supported by Dr Tse’s contemporaneous attendance notes and/or Dr Tse’s reports.

132.  Although Dr Tse did not conduct any mental examination on the various dates he saw Deceased, it was clearly written in Dr Tse’s Letter that there was no complaint in respect of Deceased’s mental ability. Dr Tse was not called to give evidence to explain his report, or his attendance notes or Dr Tse’s Letter.

133.  It was not clear whether on the 1^st attendance, or indeed on his follow up attendances, Deceased went by himself to see Dr Tse, or he was accompanied by someone. It was not really disputed that at that time, Deceased was still living at the Mount Parker Property with Madam Chou, although as set out earlier, Madam Chou had suffered a stroke on 23 December 1995 and was hospitalised. It did not appear that Madam Chow would have accompanied Deceased to see Dr Tse. P also said during trial that she did not accompany Deceased to see Dr Tse and there was no sufficient evidence to contradict what P said. On Dr Tse’s 1^st attendance note of 28 December 1995, both the English and Chinese name of D1 were clearly written and a mobile telephone number below the Deceased’s home telephone number was written. There was no confirmation from D1 as to whether it was she who accompanied Deceased to see Dr Tse. Deceased was at that time 77 years old, but apart from a history of diabetes mellitus for over 10 years, and benign prostatic hypertrophy and the diagnosis of subtle signs of early PD, there did not seem to be any other major health issues stated in Dr Tse’s report. Whether Deceased had gone to consult Dr Tse on his own, or he was accompanied by someone, without any complaint from Deceased or his accompanying person, I see no reason why Dr Tse should conduct any mental examination of Deceased unless there was anything which had alerted or alarmed him, of which there appeared to be none.

134.  There was no dispute that Deceased himself had written down the dosage of Sinemet on 11 January 1996 and on 25 January 1996 on a piece of paper titled “Record of treatment of F.J.” kept by him (“Record of Treatment”)[117]. Dr Wong and D1 appeared to consider that this showed his memory was somewhat impaired[118]. However, in my view, the Record of Treatment was also indicative that Deceased was conscious of the fact that, like most elderly persons, his memory was no longer good and he had the presence and clarity of mind to record the dosage and medications he had to take as his aide memoire. Anyway, Deceased’s condition was said to be stable by Dr Tse on 3 September 1996, I find there was nothing to show that Deceased showed signs of any Mild PNCD or any other neurocognitive disorder in September 1996.

135.  As set out earlier, Deceased was mainly in Shanghai in 1996 and “PD” appeared only the 1^st time on the attendance record at the Specialist Out Patient Department of the Ruijin Hospital on 26 November 1996 when Deceased was prescribed Sinemet.

136.  In his solo report, Dr Wong opined that it was probable that Deceased had begun to suffer from Major PNCD since the middle or earlier part of the 1995 to 1999 period. During cross examination, he had revised this to Deceased had begun to suffer from Major PNCD since early 1997. I have found earlier that there were no signs of Mild PNCD or any other neurocognitive disorder in September 1996. There was also no evidence in the above attendance record of Ruijin Hospital that Deceased showed signs of any Mild PNCD, not to say Major PNCD. Further, on the physical examination record for overseas compatriot of the Shanghai Health & Quarantine Bureau, the answers indicated that Deceased had no mental confusion and no psychosis illness. Although there was no evidence to show whether Deceased had attended the medical examination on his own or with an accompanying person, nor was there evidence to show whether the answers were provided by Deceased or by his accompanying person, if any, all physical features were found to be “normal”, and in particular “nervous system” was found to be “normal”, so was his spine and his “extremities” or 4 limbs, notwithstanding PD was recorded as the “abnormal finding”. There was no abnormal finding of heart, lungs and diaphragm. I do not find sufficient evidence to support Dr Wong’s opinion that Deceased suffered from Major PNCD since early 1997.

137.  Further, as set out earlier, after Deceased was discharged by the Caritas Hospital in July 1997, he had attended follow up treatment and when last seen by Dr Chow on 23 April 1998, he was found to be oriented in time, place and person, coherent and responsive and was mentally fit to make statement.

138.  Dr Wong had described Dr Chow’s report as “self-serving” but Dr Wong seemed to have retracted this during trial. Dr Wong opined that from what was written by Dr Chow, one could only say Deceased was conscious and that he was able to communicate and that without proof that Dr Chow had conducted a proper mental state examination on Deceased including a detailed assessment of the various domains of Deceased’s neurocognitive functions, it could not be concluded that Deceased retained mental capacity[119].

139.  There was no evidence that Dr Chow had been asked on what basis or what tests he had conducted to assess Deceased’s mental functions. Dr Chow was not called to give evidence or to explain his opinion. It was not clear what “proof” Dr Wong was seeking. Dr Chow was a medical officer at the Department of Medicine & Geriatrics of the Caritas Medical Centre and his report was sent to Dr H Tinsley, HCE of the Caritas Medical Centre. There was simply no evidence that Dr Chow would have come to his assessment of Deceased’s mental functions without having conducted any appropriate tests to satisfy himself of the same. I find Dr Wong’s comments/ criticism of Dr Chow’s report unjustified.

140.  In Dr Wong’s solo report, he noted that Deceased was recommended for NDA when he applied for SSDA in June 1999 and that in the MA Form signed by Dr Kong, the box that Deceased was unfit for making a statement was first ticked and then deleted and then the box that Deceased was fit for making a statement was ticked instead. Dr Wong opined that the diagnostic broad term “organic brain syndrome” covered both PNCD and ANCD, and like his comments/criticisms of Dr Chow’s report, Dr Wong did not put any weight on Dr Kong’s opinion as to whether Deceased was fit or unfit to make a statement because no information was available about what, if any, mental state examination was conducted by Dr Kong.

141.  Similar to what I have said earlier, I find Dr Wong’s comments/criticisms of Dr Kong’s opinion not justified. In fact, as Dr Kong was carrying out an assessment for the Social Welfare Department in relation to an application for public funds, one would expect Dr Kong to have carried out appropriate tests to satisfy himself as to whether the applicant was qualified for NDA or HDA.

142.  As for the 2 versions of the MA Form, in the Joint Statement, the experts agreed that Dr Wong only had Version 1 (D-10) when he prepared his solo report, whereas Dr Yu was provided both versions when he prepared his solo report. The main difference between the 2 versions was in relation to whether Deceased had qualified for NDA or HDA. As seen later in this judgment, P’s evidence during the trial was that she did not know why there were the 2 versions and she gave her solicitors the 2 versions as she found them. However, whether Version 1 or Version 2, on both versions, the box ticked after amendment was that Deceased was fit to make a statement. I find no sufficient evidence to contradict what Dr Kong had ticked.

143.  Deceased’s application for SSDA and the MA Form was about 3 months prior to his marriage to P in September 1999.

144.  Thereafter, there were no medical records until January 2001 when Deceased was admitted into the Shanghai No 6 Hospital for pneumonia in left lung. The medical records produced were (i) a 3 page “admission record” on 5 January 2001; (ii) a one page “discharge record” of of 9 February 2001; (iii) a “medical record” dated 19 February 2001[120]. On the 1^st page of the “admission record”[121], it was stated that the persons who provided the history “供史者” were “本人及家屬”, namely the patient (ie Deceased) and family members. The diagnosis stated was “left lung pneumonia, diabetes II, PD, bed sores”. It was recorded amongst other things and Deceased was bedridden for long periods and was not able to care for himself and on the 2^nd page “患者神清，呼之能應、較散����，對答尚切題 自抌位，抬入病房,…”. The medical record dated 19 February 2001 indicated that pneumonia had disappeared and Deceased could cough out.

145.  In paragraphs 7, 14 and 15 of the Preliminary Report, Dr Wong referred to Dr Tse’s diagnosis of PD on 28 December 1995 and he then referred to the medical records of Dr Xu of Tian Ping Hospital of 2 February 2007 and 29 May 2007, even though the medical records of No 6 Hospital dated 5 January 2001 had also been provided to Dr Wong. In paragraph 35 of his solo report, Dr Wong referred again to paragraphs 5 to 18 of his Preliminary Report, in particular paragraph 14 and his conclusion in paragraph 18. There was no reference to the medical records of the No 6 Hospital in January and February 2001. Also, in Section (VII) “salient clinical information after 1999 from contemporaneous clinical records”[122], Dr Wong made no reference to the medical reports from No 6 Hospital in January and February 2001, although he mentioned the medical report of No 6 Hospital dated 15 January 2010 in paragraphs 79 and 80[123]. Instead, Dr Wong had relied mainly on Dr Yu YaQiong’s records from the Yong Jia Hospital and Dr Xu’s records from the Tian Ping Health Centre.

146.  In paragraph 5.1 of his solo report and also paragraph 8.4 of the Joint Statement, Dr Yu had referred to the medical records of No 6 Hospital in early 2001, namely Deceased’s consciousness was normal , he responded to verbal stimuli, through relatively vaguely and his answers to questions were relevant. Dr Wong eventually responded to what was stated by Dr Yu in the Joint Statement, ie in Section E of his responses to Dr Yu’s solo report[124].

147.  Dr Wong opined that the medical records of No 6 Hospital in early 2001 showed that Deceased was in a “debilitated physical state”[125]. He then revisited paragraphs 69-70 of his solo report. In those paragraphs, Dr Wong was discussing Dr Yu YaQiong’s records in 2004, and that Dr Wong opined in paragraph 69 of his solo report that “神志清楚” merely meant Deceased was conscious and that he did not suffer from any disturbance in consciousness[126]. Dr Wong further explained in paragraph 10.46 of the Joint Statement that a “disturbance in consciousness” pointed to the diagnosis of delirium. Dr Wong then went on to explain “delirium”, and pointed out that there were no verbatim examples to who what questions Deceased was asked when described in the medical records to be “對答尚切題”, namely his answers to questions were relevant[127]. Dr Wong concluded that those medical records indicated that Deceased had been in a physically and mentally debilitated state for a substantial period of time.

148.  However, whether Deceased’s responses to questions were simply a “yes” or “no”, there was no sufficient evidence that he was in any mental confusion and/or dementing state and/or he did not even understand the question. Further, had his answers been only “yes” or “no”, it would not seem probable that they would be described as “relevant” answers, or “切題”.

149.  Having considered the above, I find that there was no sufficient evidence in the documented medical information/records which indicated that Deceased was suffering from any form of NCD by early 2001. There was also no medical evidence that by then Deceased was not mentally fit to make any decisions.

150.  Dr Yu had pointed out that there was no reference to PD Plus in any medical records/documents up to 2004. As seen in the medical certificate issued by Yong Jia Hospital on 3 September 2003, only PD and diabetes were mentioned, not PD Plus[128].

151.  As mentioned earlier, Home Bed Care was set up for Deceased on 13 February 2004. In the medical record of Dr Yu YaQiong at Yong Jia Hospital of 13 February 2004, at the time when Home Bed Care was set up, under “general condition”(一般情況), it was stated amongst,

“一般情況: 神志清楚, 發育正常, 營養良好, 平卧位, 體檢需人協助, 對答不切題”[129]

152.  As mentioned earlier, on 30 March 2004, Dr Yu YaQiong had issued a certificate which indicated Deceased was “神志尚清楚”[130].

153.  It would appear that Yong Jia Hospital was renamed Tian Ping Hospital as they were at same address at No 110, Tai Yuan Road[131]. Dr Yu YaQiong was the doctor who signed the record of discharge of Home Bed Care at Tian Ping Hospital on 6 April 2005[132]. Deceased received Home Bed Care for 408 days. It was stated on the discharge record that the Deceased/s general condition was stable and family member/s requested for discharge, and on discharge, the examination showed:

“神尚清 失語…”

154.  Anyway, up until the above discharge record signed by Dr Yu YaQiong on 6 April 2005, there was no PD Plus mentioned, although it would appear that by 13 February 2004, Deceased was not able to provide relevant answers to questions.

155.  Thereafter, Deceased was admitted into Home Bed Care by Dr Xu of Tian Ping Hospital on 5 June 2006, Dr Xu appeared to have replaced Dr Yu YaQiong as Deceased’s attending doctor. On the Home Bed Care illness history, it was recorded that Deceased’s major illnesses were PD Plus and diabetes II. On the record dated 6 June 2006 signed by Dr Xu, it was stated amongst other things (i) cognitive impairment almost 10 years; and (ii) from 1996, patient had tremor of upper limbs and was diagnosed by Hua Shan Hospital to be suffering from PD Plus[133]. It was further stated on a medical certificate signed and chopped by Dr Xu that beginning from 1996, patient had tremor in upper limbs and was diagnosed by Hua Shan Hospital to be suffering from PD Plus, and that since 2000, the condition became more serious and gradually developed to late stage of PD Plus, had unclear consciousness and cognitive impairment[134]. It was again stated in the discharge summary of the Home Bed Care on 28 May 2007, that Deceased had cognitive impairment for almost 10 years and was diagnosed in 1996 to be suffering from PD Plus[135]. There was further another medical certificate dated 29 May 2007 by Dr Xu that Deceased suffered from PD Plus and diabetes II, and due to being bedridden for long periods, and tremor in his muscles, he lost mental capacity and since January 2001, Home Care arrangement was set up for Deceased, with regular home check ups by doctors and care by nurses[136].

156.  The information provided to Dr Wong was that Dr Yu YaQiong was the Deceased’s attending doctor from 2000 to June 2006, and she resigned in June 2006, and thereafter Dr Xu took over the care of Deceased. Dr Xu’s employment then came to an end in March 2013 due to her age.

157.  There were never any medical records of Hua Shan Hospital produced. There had been no information that Deceased had ever attended Hua Shan Hospital. Dr Yu had pointed out that although the medical notes from 2006 were repeatedly quoted to “bolster the claim that PD Plus syndrome started in 1996”, such claim contradicted the information in the contemporaneous records from 1995 to 1999[137].

158.  First of all, on the medical certificate dated 29 May 2007, Dr Xu stated that Home Bed Care was set up by Tian Ping Hospital for Deceased from January 2001 (Home Bed Number 282). However, as seen earlier, Deceased was admitted into the No 6 Hospital on 5 January 2001 until 9 February 2001 and there was no mention of any diagnosis or treatment by Hua Shan Hospital, even though it was recorded that Deceased was diagnosed with PD for several years, and there was no mention of Deceased suffering from PD Plus.

159.  Second, as mentioned earlier, there was in fact no medical report or no medical information as to when exactly Home Bed Care was set up for Deceased, but from the Yong Jia Certificate, it would appear to be 3 September 2003, or sometime after Deceased’s discharge from No 6 Hospital on 9 February 2001. In any event, that the Deceased had needed Home Bed Care arrangement would not mean Deceased was by then suffering from NCD.

160.  Third, the medical records only showed that Home Bed Care was set up for the Deceased by Yong Jia Hospital during a period of 408 days between 13 February 2004 to 6 April 2005, and the Home Bed number was “內81” , or “Interior 81”. There was nothing in those records of Dr Yu YaQiong at Yong Jia Hospital to indicate that Deceased was diagnosed or suffering from PD Plus, or that he was so diagnosed and/or had ever received treatment at Hua Shan Hospital. This was notwithstanding that it was recorded that Deceased had been always thirsty (煩渴) for nearly 10 years and that on 11 June 1994 and on 18 May 2002, there had been tests carried out at Ruijin Hospital for blood sugar level, and that the initial diagnosis was diabetes II, PD, and enlarged prostate. The treatment plan was amongst other things, for Home Bed Care, diabetic diet, and control of intake of food and sugar and to increase diabetic medication[138].

161.  Fourth, what was stated by Dr Xu in the medical certificate dated 2 February 2007 that since beginning of 1996, Deceased had tremor in his two upper limbs[139]was inconsistent with Dr Tse’s attendance notes, in which Dr Tse recorded there was no tremor on 28 December 1995 and that when last seen on 3 September 1996, Deceased’s condition remained stable, and that no tremor was mentioned in the medical record dated 26 November 1996 from Ruijin Hospital. There was no contemporaneous medical information to support what Dr Xu stated, or that Deceased’s condition increased in severity since 2000. It was not in fact clear as to when Dr Xu opined that the PD Plus developed to a late stage, with cognitive impairment.

162.  Fifth, Deceased’s Home Bed Number “內282”/”Interior 282” was first written on the Home Bed Care history card when Home Bed Care was set up on 5 June 2006 by the Tian Ping Health Centre. What Dr Xu stated in the medical certificate on 29 May 2007 that since January 2001 Home Bed Care was set up by [Tian Ping Hospital] with Home Bed Number “Interior 282” was not consistent with those records mentioned earlier from Yong Jia Hospital, unless not only there had been a change in the name of the hospital but also the bed numbering system.

163.  As said, although Dr Xu mentioned that PD Plus was diagnosed by Hua Shan Hospital, there was no information or medical records from Hua Shan Hospital produced by anyone.

164.  Having considered all the above, I find the medical certificates/records of Dr Xu were not inconsistent with earlier medical information. Even if Deceased had suffered “認知障礙近十年”, there was no sufficient evidence that by September 1999, he was suffering from any Major NCD. In any event, it was on 13 February 2004 that Deceased was found not able to provide relevant answers to questions and up to the 6 April 2005 discharge record of Dr Yu YaQiong, no PD Plus was mentioned. Having considered all the documented medical information/records, I do not find there was any prima facie evidence on those medical documentation/records that Deceased was mentally incapacitated or lacked the requisite mental capacity to consent to marry P on 3 September 1999.

F.11  Analysis of the factual evidence

F.11.1.  The relationship between P and Deceased

165.  In addition to her witness statement filed on 23 July 2020, P had also filed at least 5 affirmations in the HCMP 106/2017 and also some 8 affirmations in the HCA 346/2014. She had produced, amongst various documentary evidence, various photographs of her and Deceased in the 1980s and 1990s including their wedding photographs taken in September 1999[140]. Some of these photographs bore dates, eg 5 November 1986 (prior to P going to the United States), 20 September 1989 (after P’s return from United States), 1 June 1991, 2 June 1991, 28 September 1991, 28 September 1993, 2 and 20 October 1993, 25 December 1993 (P and Deceased wearing slippers by a Christmas tree), 9 April 1995, 23 August 1995, 11 August 1996, 10 December 1996, 3 September 1999 (Deceased signing papers at marriage ceremony) 8 November 1999 (Deceased and P having a meal with friends). The photographs showed Deceased together with P during various trips. The photographs also showed the relationship between P and Deceased dated from late 1980s onwards.

166.  Ds had also produced various family photographs from 1987 to about 1994, which often showed Deceased and/or Madam Chou with their children and grandchildren [141]. There were also photographs of Deceased and Madam Chou attending the 89^th birthday celebration of Deceased’s mother in Shanghai[142], and two of the photographs, apparently of the birthday banquet, with one bearing the date 13 April 1987[143]. There were also photographs of Deceased’s working trip to Hohhot, Inner Mongolia with Madam Chou and Ds on 24 August 1991.

167.  Although the photographs showed Deceased enjoying the company of his family particularly his grandchildren, there were no photographs of Deceased and Madam Chou on their own, or of Deceased alone either or with both Ds.

168.  It was Ds’ case that their parents had a close and intimate relationship throughout their marriage and that there was a deep-rooted bonding between them. However, although there was never any legal separation and divorce between Deceased and Madam Chou, and notwithstanding Ds’ case of their parents’ relationship, they had produced a “love letter” from one Arlene Yu Ting to the Deceased dated 27 January 1961, recording an incident around 11 July 1960 when she and Deceased were working late in the office and that they then went out to have dinner at the suggestion of the Deceased[144]. There was mention of their drinking and dancing together and their intimacy, and it appeared that they had an affair, even though they were respectively married to others at the time.

169.  The above “love letter” showed that Deceased had not always been faithful to Madam Chou during their marriage.

170.  According to Ds, in April 1990, Deceased and Madam Chou had made an application for permanent residence in Canada through the assistance of D2 who was living in Toronto at the time. There was a letter dated 5 March 1992 sent by the Canadian lawyer to D2 pressing for a response from his parents and D2 had replied on 17 September 1992 to say he had conveyed the message to his father who was away in Mainland on a business trip, but eventually on 18 November 1992, D2 sent the lawyer a fax to say that his parents no longer wanted to proceed[145]. These letters showed that Deceased was frequently in Mainland China in 1992 and not often immediately contactable by D2.

171.  Ds had produced copies of divorce papers in the United States between P and Mr Tseng in which P had on 13 July 1988 filed a declaration in support of her application for financial assistance from Mr Tseng (“Financial Declaration”)[146] and also a declaration of her “Income and Expense Declaration[147].

172.  According to P’s Financial Declaration, she went to the United States in 1987 to study English and to seek training in business. She met Mr Tseng, a United States citizen in July 1987 and they were married on 26 November 1987 in Las Vegas in Nevada. It appeared that Mr Tseng had helped P to apply for permanent resident status. However, as mentioned earlier, the marriage did not last long, as in July 1988, Mr Tseng applied for divorce. In her Financial Declaration, P had said that during their marriage Mr Tseng told her things were very difficult for him financially, and that P then borrowed money from her “uncle” Mr Frank Jen, ie the Deceased, who lived in Hong Kong but occasionally travelled to the United States on business matters[148]. In P’s Financial Declaration, she mentioned that she had borrowed money from the Deceased to pay for the household expenses of her and Mr Tseng.

173.  When P was cross examined as to why she referred to the Deceased as her “uncle” and not her “friend”, she explained that for outsiders, they did not know their relationship and it was more appropriate to refer to the Deceased as “uncle” and that to her “uncle” meant some one more senior. In any event, the Financial Declaration would indicate that Deceased had continued to provide support to P while she was in United States.

174.  According to P, she returned to Hong Kong in June 1989 and that shortly thereafter, she and Deceased renewed their relationship. Apart from photographs, Ds had produced various faxed handwritten letters said to be between Deceased and P, among which there was a faxed handwritten letter dated 3 August 1990 from “FJ” to “ST” on the letterhead of Cartegena[149]. There was no dispute that “FJ” referred to the Deceased and “ST” referred to P. There were 7 numbered items in this letter and the 1^st one was in English with Deceased informing P the date and time he and Madam Chou would be arriving in Shanghai and asking P to “tidy up rooms”[150]. The rest of the 6 numbered items were all in Chinese and concerned work matters.

175.  Apart from the above faxed letter in 1990, the rest of the faxed handwritten letters produced by Ds were mostly from December 1994 onwards and thereafter.

176.  There was a faxed handwritten letter on Cartegena’s letterhead from “F Jen” to “S.W. Chan” on 16 December 1994[151]. There was no dispute that “S.W. Chan” referred to P. This letter was faxed on Cartegena’s letter head, with the words of “Shanghai Liaison” printed at the bottom with the address at No 400 Yongjia Road, namely the address of the Shanghai Property in the 3^rd item, it was written that Madam Chou had lost consciousness at the middle of night 3 times and that it was shocking, and had discussed with the helper to reduce her leave, and expressed that the board meeting of “新欣”[152] could hopefully be held after 15 January. There was a reply of same date, namely on 16 December 1994 from “Ms Shirley”, or P, to “Mr Frank”, the Deceased[153]. Apart from giving instructions to P regarding business matters, Deceased was also informing P of Madam Chou’s condition and that he was not able to leave Hong Kong.

177.  It was seen from a faxed handwritten letter from Deceased to the manager of a paper manufacturing company on 26 December 1994[154] that the Deceased was requesting the board meeting of “新欣” be further postponed to after middle of February 1995 due to Madam Chou’s illness. This was followed by a faxed handwritten letter from “F.J.” to “S.C. and SWC”[155] in which the Deceased stated among other things that he was not able to leave Hong Kong as Madam Chou was ill and that her special nurse could only resume work after middle of February 1995[156].

178.  Ds had also produced copies of faxed handwritten letters on 28 December 1994 from “ST” to the Deceased and Deceased’s reply, both regarding work and also a faxed handwritten letter from Deceased to P on 5 January 1995[157]. However in the letter of 5 January 1995, apart from work related matters, Deceased informed P amongst other things that he had spoken to a Dr Choi and that the calcium level in the blood was too low which would cause weakness in limbs and that the dosage in the calcium medication could be increased.

179.  There were then 3 faxed hand written letters from P to Deceased of 4, 6 and 25 November 1995 in relation to Deceased’s medical condition[158]. In the letter of 4 November 1995, P referred to 2 medical reports of Deceased which P had faxed to him the day before, and P informed Deceased that she had contacted a Mr Zhang (張維邦), and that she intended to attend the Out Patients Clinic of the Ruijin Hospital on 7 November 1995 with the reports and to seek an opinion from a Dr Wan Chun Mui (萬春梅醫生). P had asked Deceased to send her his blood test results in his medical history file. P had also asked Deceased when he would be returning to Shanghai. In the letter of 6 November 1995, P informed Deceased that she went that morning to ask Dr Wan about his blood test result and P reported back to Deceased Dr Wan’s opinion that he had to control his sugar level and that the nerve function in his calves was on slow side and he needed to take a daily injection of B12. In the letter of 25 November 1995, P informed Deceased that she went to visit Dr Wan again that morning and reported to the Deceased Dr Wan’s advice.

180.  It was put to P during the trial that Deceased was giving instructions to her in the faxed letter of 3 August 1990 and was treating her as his “employee”. P replied that she did not agree and that the Deceased and his wife had visited Shanghai many times and there were things that she should do and that she agreed that Deceased had treated Madam Chou very well and P said she respected him even more for this. P disagreed that Deceased had not treated her “as his equal”. It was further put to P that Deceased had no intention to marry her whether in 1999 or any other time, and that Deceased was only P’s “契爺” and P had again disagreed.

181.  The letter of 3 August 1990 appeared to be a notice from the Deceased to alert P that he was arriving with his wife. The fact that P would be able to arrange for the “tidying up of rooms” would seem to this Court that P had had access to the “rooms” referred to by Deceased, which appeared to be referring to rooms in the Yong Jia Property. As seen later, in the Inheritance Proceedings SH 3542/2012 in Shanghai, Ds and/or their legal representatives had informed the Shanghai Court that Deceased started to live with P at the Yong Jia Property in early 1980 and Yong Jia Property appeared to be also used as the Shanghai liaison office of Cartegena.

182.  It would further appear from the line of cross examination of P that Ds accepted that there was a close relationship between Deceased and P, as it was put to P that Deceased was her “契爺”. Whether it was “uncle” or “契爺”, what is clear was that during P’s years in the United States, and even during her marriage to Mr Tseng, Deceased had kept up his contact with P and had financially supported P.

183.  Further, those letters regarding P visiting and speaking to the doctors regarding Deceased’s medication and his medical condition would also indicate that P had the authority from Deceased to do so and/or Deceased had authorised the Ruijin Hospital to release his medical information to P. That P was authorised to obtain such information on behalf of Deceased and to consult doctors over Deceased’s medical condition also indicated certain intimacy and closeness between them.

184.  It was also P’s evidence during the trial that although she and Deceased had resumed their intimate relationship in 1989, they did not live together, and it was only in about late 1996 or early 1997 after Madam Chou was hospitalised that they started to live together.

185.  Having considered all the evidence and those faxes, I find there was really no sufficient evidence to contradict P’s evidence, and I accept that she and Deceased had an intimate relationship since early 1980s prior to her going to the United States and that they had resumed their intimate relationship after she returned in 1989. Before she left for United States, Deceased had helped P in buying the Soy Street Property and as said he had provided financial assistance to her even though she was married to another man. Further in February 1993, Deceased had purchased the Parc Oasis Property in joint names with P, which was later transferred to P’s sole name. There was no sufficient evidence to contradict P’s evidence that they started living together in about 1996 and they were living together until Deceased’s death, save during the periods when Deceased was in hospital.

186.  As seen in the Scott Schedule, it was Ds’ case that they knew of P only in 2000[159]. According to D1, it was only upon her receipt of a letter dated 20 September 2000 from her cousin Irene (“Irene’s Letter”)[160] that she found out about the relationship between her father and P.

187.  During the trial, under cross examination, D1 reiterated that before October 2000, she did not even know of P’s existence. When asked by this Court whether she knew that P was an employee of Deceased, she said she had no knowledge of the same.

188.  It was also D1’s written evidence that when Madam Chou passed away in May 1998, P started isolating Deceased from Ds, and that neither their mother, nor Ds had ever known about the alleged intimate relationship Deceased had with P[161]. D1’s evidence during the trial was that Deceased basically disappeared after Madam Chou’s funeral, and that she had no knowledge that he was with P. D2’s evidence was essentially the same as that of D1’s. D2 admitted under cross examination that he had not seen his father after his mother’s funeral.

189.  However, at the 1^st hearing on 18 March 2013 during the Inheritance Proceedings SH 3542/2012 in Shanghai at which P was absent, from the transcript thereof, both Ds and their legal representatives were physically present. The Shanghai Court was informed by D2 namely “原1”[162] that although P and Deceased were married on 2 September 1999, P had already started to live with Deceased in early 1980[163]. Ds’ legal representatives also informed the Shanghai Court that there had been earlier proceedings in Shanghai in 1989 and that 2/3 of the calligraphy/paintings were recovered and Madam Hu had left a will and that Deceased held 2/3 share of the same, and that they were kept in the Yong Jia Property, and Deceased and P were living together in the Yong Jia Property[164]. Ds’ legal representatives had also produced supporting evidence that after P started to live together with Deceased in 1980, P had purchased properties in her personal name in Shanghai , using Deceased’s assets[165]. The transcript was signed by Ds and their 3 legal representatives.

190.  Further, under “Background Facts” in 1^st Injunction Decision, in paragraph 9, Chow J (as he then was) stated that according to D1 (who is plaintiff in HCA 346/2014), the relationship of Deceased and P in 1979 was a short one.

191.  Leaving aside whether it was short or not, D1 clearly did know of P’s existence and P’s relationship with Deceased in 1979[166]. When it was put to D1 during the trial that she already knew of P’s relationship with Deceased in 1980, she disagreed. When it was further put to D1 that after 1998, ie after her mother’s funeral, she knew her father was with P, D1 again disagreed and maintained that she was told by Deceased’s office that he was away on trips. D2’s evidence at the trial was the same.

192.  I have to say I do not find Ds’ evidence credible on this issue. Ds’ legal representatives could not have told the Shanghai Court that P was already living with Deceased at the Yong Jia Property since early 1980 without such information from Ds. Further, even in Ds’ own instructions to their expert Dr Wong in about September in 2013, Dr Wong was told that Deceased moved out from his home in Hong Kong in February 1997 and he refused to tell Ds where he had moved to but he told them that he was staying in Shanghai most of the time. Dr Wong was told by Ds that they believed their father had started to live with P[167]. Thus, Ds believed Deceased was living with P even before Madam Chou’s death.

193.  Having considered all the evidence, I accept P’s evidence that she formed a romantic and intimate relationship with Deceased since early 1980s which had continued after her divorce and her return from the United States, and that Ds knew about the relationship before 1999. Further, in light of the long intimate and close relationship P had with Deceased, I find no sufficient evidence to support Ds’ case that Deceased did not, or would not have any intention to marry P.

F.11.2.  Relationship between Deceased and Ds

194.  Ds were Deceased’s only children with Madam Chou.

195.  It was D2’s written evidence that he had always had a close and loving relationship with both his parents during their lives. He was appointed a director of ZKCL in 1975 and has remained so since. According to D2, when Cartegena went into serious financial difficulties in 1987 to 1991, he was appointed as a director of Cartegena to revive its failing business with his father. Further, in around February 1991, he helped his father to purchase a property at Sun Hing Building for use as Cartegena’s office (“Sun Hing Office”).

196.  D2 has two sons and they both seem to have done well academically and in their career. According to D2, his father loved and adored his grandchildren, and had a special close bond with his elder grandson.

197.  As for D1, her written evidence was she resided in Hong Kong at all material times, and that since about early 1990s, she began to take care of her parents in respect of their medical and domestic affairs, and according to her, she had a close and loving relationship with both her parents at all times.

198.  As said earlier, Ds had produced many family photographs, mostly during 1987-1989. There were 4 photographs in 1991 when Deceased was in Hohhot with Ds and Madam Chou described as a “work tour”[168]. Thereafter, there appeared to be only one in 1993 with Deceased and D1 attending a ceremony when Mr YC Chow received an honorary appointment by Belgium and one in 1994, with Deceased and Madam Chou at a family banquet[169].

199.  As said earlier, there were no photographs of Deceased being alone with Madam Chou or with either or both his children except on the Hohhot business trip. Further the family photographs were mostly prior to 1990.

200.  During the trial, D2 confirmed that he left Hong Kong and studied in United Kingdom when he was about 15 years old in 1965, where he remained for about 3 years before going to the United States to attend university there until 1975. He remained abroad and obtained his Canadian citizenship in 1985 through an investment programme, and was then sent back by the company to Hong Kong for 3 years. D2 had produced a certificate of registration certifying his registration as an investment adviser in Hong Kong under the then Securities Ordinance, Cap 333, as from 11 October 1987[170].

201.  After that, in about 1989, D2 emigrated to the United States and since then he has lived in United States with his wife and children although he said since about 1990s, he had returned to Hong Kong 3 to 4 times a year, sometimes staying 1 or 2 months or longer, until Covid. He told the Court that the first time he returned to Hong Kong after Covid was to attend the trial, ie in November 2023. Anyway, although D2 had said he helped Deceased to purchase the Sun Hing Office, the property was in fact purchased by Deceased in P’s name on 11 February 1991[171].

202.  It was Ds’ evidence[172] that their father was notified of their mother being in a critical condition via his staff at the Sun Hing Office but by the time their father arrived, their mother had already passed away. Their father subsequently attended their mother’s wake and funeral escorted by two assistants from the Sun Hing Office and stayed at the event for around 2 hours before his assistants came back to pick him up.

203.  It was P’s case that after Madam Chou’s funeral and/or wake, Ds had said something to Deceased which made him very angry, and that he left without telling Ds. This was denied by Ds. It was also P’s case that Ds were upset at P as they believed that it was P who was the cause of their mother’s death. Again, this was denied by Ds.

204.  According to D1, her mother Madam Chou was in a vegetative state and was required to be hospitalized from around early March 1996 onwards, and that that this was a seriously adverse change of circumstances in Deceased’s life, and that he started to live alone with a helper and became so depressed that he neglected his business activities for several months.

205.  The faxed letter sent by Deceased to P on 16 December 1994 indicated that Madam Chou’s health condition had deteriorated by then. According to Ds, their mother fell seriously ill in 1995, and she had a stroke on 23 December 1995 and was hospitalised. In early 1996, Deceased started living alone with a helper in the Lei King Wan Property but moved back to the Mount Parker Property in late 1996. On 24 March 1996, Madam Chou was in a complete vegetative state. Having considered all the evidence, there was no sufficient evidence that Deceased moving out of Mount Parker Property was because he was depressed over Madam Chou’s illness. In any event, he later moved back.

206.  Although there was a business letter of 20 August 1996[173] which Deceased had delayed sending out, this would not mean Deceased was depressed and/or neglecting his business activities. I have mentioned earlier that there was no medical evidence to support that Deceased had ever suffered from depression or was in a depressed state. In any event, from those faxes handwritten letters Deceased was sending out to P at around end of 1994 and in 1995 referred to earlier, there was no sufficient evidence that Deceased was in any depression.

207.  Further, if, according to Ds, they had a loving and close relationship with their father, and D1 had detected any depression or ill health on the part of Deceased, one would expect her, as a loving and close daughter to have arranged and/or accompanied her father to see a doctor and to mention such illness to the doctor. There was no sufficient evidence that D1 had done so from the time after Madam Chou had become seriously ill in 1995.

208.  It was Ds’ evidence that after their mother passed away on 21 May 1998, P started to isolate their father from them, and as said earlier, it was Ds’ case that neither they nor their mother had ever known about the alleged intimate relationship their father had with P. However, this appeared to be somewhat contradictory, if they did not know of the relationship or of P’s existence in 1998, why would they say it was P who isolated their father from them. In any event, as found earlier, I do not find this part of their evidence credible, that they did not know about P’s intimate relationship with their father until 2000, and I have found that they had known about it before 1999.

209.  According to D1, at her mother’s funeral, she observed that her father barely spoke during the ceremony, with visual-spatial difficulties and required walking assistance and that her father left the ceremony without notifying Ds.

210.  Ds’ respective evidence during the trial was that after the funeral, when they called their father’s office, they were told their father was out of Hong Kong on trips and they could not find him. D1 had said she thought her father was unhappy over mother’s death and therefore went travelling on trips (旅行散心).

211.  During the trial and under cross examination, D2 had said that he and D1 were used to his father’s extended absences and separation from them and their communications with him would be through their mother. D1 had also said when she was young, her father was always travelling and as she was abroad for many years, she would not see her father for long periods of time, and that it was nothing unusual for her not to see her father for long periods of time.

212.  However, between their mother’s death and their father’s death, there was a period of over 11 years.

213.  The undisputed fact was that after his mother’s funeral, D2 never saw his father again during his father’s lifetime.

214.  As for D1, after her mother’s funeral, she did not see her father again until 29 January 2007. According to her, she had tried to visit her father in Shanghai in 2001, and that P refused to allow her to see him, saying that Deceased was not able to recognise anyone. P denied this. Anyway, it was not disputed that D1 only saw her father on 29 January 2007 when she attended the Yong Jia Property with 5 government officials. She took 3 photographs of her father lying on a bed with tubes inserted in his nose and seemingly in “a vegetative state”[174].

215.  D1 had produced copies of two faxed letters sent by her father to her on 23 March 1995 and on 21 June 1996, the earlier one with a cheque for household expenses relating to Mount Parker Property and the latter one giving her instructions regarding his medications[175]. In neither of those letters was there any indication of closeness and in fact both were sent to D1 through a third person.

216.  P had produced a series of letters between Deceased’s solicitors Robert WH Wang & Co and D1 in June 1998[176], commencing with a letter dated 11 June 1998 from those solicitors to D1 informing her that Deceased had revoked the Power of Attorney given to her in respect of the Mount Parker Property by the Deed of Revocation, to which D1 had replied on 17 June 1998 that she was surprised to learn about the revocation and sought reimbursement of expenses incurred by her in respect of the property prior to her being notified of the revocation. She chased the solicitors on 29 June 1998 for a reply. Deceased’s solicitors replied on 30 June 1998 that Deceased was prepared to reimburse D1. They wrote again on 17 July 1998 informing D1 that a cheque was ready for her collection in their office, being reimbursement from Deceased to D1 for various payments D1 had made pursuant to the Power of Attorney. There was no allegation by D1 in her letters to Deceased’s solicitors that her father had no mental capacity to revoke the Power of Attorney.

217.  There was also no indication in the above letters that D1 had asked the solicitors as to the whereabouts of the Deceased and/or means to contact him direct. The exchanges were formal. In fact, as seen in the letter of 30 September 1998 from Deceased’s solicitors to Deceased asking him whether he intended to apply for grant of letters of administration of Madam Chou’s estate[177], Deceased was in Hong Kong and he had met with his solicitor on 15 September 1998, and that Deceased’s address was that of the Parc Oasis Property. There was nothing in those letters from Deceased’s then solicitors Robert W H Wong & Co to show that Deceased was suffering from any mental incapacity. The fact that Deceased was in Hong Kong and yet did not contact D1 would also indicate the state of their relationship at the time.

218.  In any event, Ds would have received their cousin Irene’s Letter[178] with the photograph of Deceased with P and Irene and her mother and another at about end of September 2000. The photograph bore a date of 10 September 2000. As seen in the letter, Irene and her mother, whom D1 called “Auntie Zao” travelled from USA to Vancouver to attend a funeral and, through a mutual friend, Irene obtained Deceased’s home address in Canada, and that Irene and her mother had visited Deceased one afternoon for about 2 hours. Irene told D1 that Deceased was not too well and much thinner than she last saw him in Shanghai 8 years ago. Irene said Deceased had PD and could not walk too well and unable to speak clearly and that his wife P was taking care of him and although he did not say anything, his hearing was OK. There was no mention of Deceased having any NCD. Irene had asked D1 to pay him a visit if she had a chance. What was clear was that both the Deceased’s address and telephone number in Vancouver were clearly stated in Irene’s Letter. According to D1, D2 had spoken to Irene sometime after she returned to Los Angles.

219.  During the trial, D1’s evidence was that she was shocked when she saw her father in the photograph as he had lost a lot of weight and looked like a skeleton. Yet, she took no steps to fly to Vancouver immediately to see her father or even just to try to telephone him. Her explanation was that she had telephoned D2 after she received Irene’s Letter and that D2 had telephoned the number written therein but that no one answered the telephone, and D2 said the number had been disconnected. This was also D2’s evidence.

220.  D1’s evidence was also that according to the Deceased’s home return permit immigration stamps, Deceased had travelled from Vancouver or Hong Kong to Shanghai on 8 October 2000. Anyway, I find no evidence that Ds had tried to telephone or visit their father immediately after receipt of Irene’s Letter at end of September 2000. Even if shortly thereafter Deceased had indeed left Vancouver, D1 could have visited him in Shanghai.

221.  Yong Jia Property was Deceased’s family home and it was also used as the Liaison Office of Cartegena. Ds were clearly aware of this address and even though D1 claimed she had tried to visit her father in 2001, there was no sufficient evidence that she did so. It was not clear why she could not have done what she later did in 2007, namely to try and visit with the help of government officials, or to take some legal action to see her father, if indeed, as she alleged, P had refused to allow her to visit her father.

222.  As for the 5 “Shanghai government officials”, who accompanied D1 to visit Deceased at Yong Jia Property in January 2007, D1 said during the trial that one of them was from the “Overseas Chinese Affairs Bureau” and the other 4 were members of the housing committee. D1 also admitted that she had entered the Yong Jia Property in a peaceful manner in January 2007. There was no evidence that there was any obstruction on the part of P. Further, even after D1’s visit, there was no attempt by D2 to visit his father.

223.  Having considered all the evidence, I find Ds were probably much closer to their mother than to their father, and that they gradually became more distanced from their father since about mid 1990s onwards and their communications with their father were, as they themselves admitted, through their mother, and/or through their father’s office and after their mother’s funeral, they had had no direct communications with their father at all. Further, they did not even want their names to appear on their father’s tombstone[179].

224.  On their own admission, Ds had known about their father’s marriage to P in 2000 after receipt of Irene’s Letter, and yet they took no immediate steps to try and find out whether their father had the mental capacity to marry P or to raise this issue. In D1’s Citation filed on 1 February 2012, her Affirmation by Citor of the same date, and various documents including D1’s affirmation for application for the LA of the Estate filed on 15 August 2012[180], D1 had stated P was the lawful widow and relict of Deceased. There was no indication that she would challenge the mental capacity of Deceased in marrying P.

225.  Until the date D1 issued the HCA 346/2014 action on 28 February 2014, no action had been taken by Ds to challenge Deceased’s mental capacity to marry P. The Canadian proceedings were after the issue of HCA 346/2014. Anyway the challenge of the validity of the marriage seemed to be only in 2014, even though by about end of September 2000, Ds had learnt of the marriage.

F.11.3.  Deceased’s signatures

226.  Among the numerous documents produced by the parties, there were the following bank documents bearing signatures /name chop of Deceased:

(1)  Two HSBC cheques drawn by Cartegena with Deceased’s English signature, one dated 25 March 1994 for HKD 75,000 in favour of D1[181], and one dated 12 October 1994 for cash of HKD 12,000[182];

(2)  One HSBC cheque dated 17 May 1994 for HKD 20,000, drawn by Deceased in favour of D1 with Deceased’s English signature[183];

(3)  Three Nanyang Commercial Bank cheques, one dated 3 March 1994 for HKD 30,000 , one dated 27 August 1994 for HK20,000, and one dated 24 March 1995, all drawn in favour of D1, with Deceased’s English[184];

(4)  A HSBC cheque dated 1 February 1996 drawn in favour of D1 for HKD 100,000, with D1’s name and the amount written in Chinese and Deceased’s English signature[185];

(5)  A HSBC cheque dated 10 March 1996 drawn in favour of D1 for HKD 86,668, with D1’s name and amount written in English and Deceased’s English signature[186];

(6)  A printout from the HSBC of “Account Enquiry” dated 30 September 1996 of an integrated account held in name of “Jen Frank CH”, stating the net position of Deceased’s funds, with Deceased’s English signature confirming instructions to transfer two sums of funds, one of HKD 356,000 to D1’s savings account, and one to Deceased’s current account to cover OD[187];

(7)  A Hang Seng Bank time deposit withdrawal form dated 30 September 1996 with instructions to transfer funds of HKD 2,605,000 on maturity on 28 October 1996 to D1, with Deceased’s English signature[188];

(8)  A cheque dated 27 June 1998 drawn in favour of D1, from a HSBC current account of “Frank CH Jen” with the amount written in Chinese and with Deceased signing his Chinese name twice[189];

(9)  A letter of instructions dated 18 September 1998 given by Deceased to HSBC Asset Management (Bahamas) Ltd changing his monthly standing withdrawal instructions of HKD 60,000 from a previous current account number to a different current account number, with Deceased signing with his name chop, in the presence of two witnesses and a copy of Deceased’s HKID card attached with his name chop[190];

(10)  A letter dated 6 January 2000 from Deceased to Michael Ma of HSBC Asset Management (Hong Kong) with instructions to close the existing account in single name and to open a new account in joint names and transfer all existing holdings in single name to a new account in joint names[191], with Deceased applying his name chop, and his signature verified, lien record checked and payment approved by the bank on 13 January;

(11)  A letter dated 9 August 2001 which appeared to be faxed by Michael Ma of HSBC Asset Management (Bahamas) Limited to Deceased and the joint account holder ie P[192] to confirm instructions to sell existing holdings and to close all existing investment account and to transfer all funds to a joint account 6318xx in joint names of Deceased and P, with Deceased applying his name chop and the signature of the joint holder confirming their instructions, and signatures verified by Michael Ma[193], and a letter dated 30 October 2001 from Michael Ma of HSBC Asset Management (Bahamas) Limited to Deceased and P informing them of the final payment and confirming payment instructions to an account number 8319xxx. The instructions were confirmed by Deceased’s name chop and P’s signature and verified[194].

(12)  A HSBC form for closing account dated 13 August 2003, with instructions to close a joint account 1820xx in the names of Deceased and P and transferred to their joint account 8319xxx, with signatures stated to be per “L/06/8/03”, namely the letter dated 6 August 2003 attached to the form sent by P to HSBC, which indicated only P’s signature[195].

227.  The other salient documents bearing Deceased’s English signature, apart from companies’ documents, were as follows:

(1)  A faxed handwritten letter dated 21 June 1996 from Deceased to D1 with Deceased’s Chinese handwritten name[196];

(2)  A faxed hand written letter dated 20 August 1996 from Deceased to Stan Tendler, with Deceased’s English signature;

(3)  A letter of authorization dated 28 December 1996 authorising D1 to handle and sign all matters and documents concerning renting or selling to the Mount Parker Property, with Deceased’s English signature[197];

(4)  The Deed of Revocation with Deceased signing with his English signature on 25 January 1997 in the presence of a solicitor[198].

228.  P had produced copies of extract of pages from a book, with one of the pages bearing a handwritten date “18/12/97” showing Deceased practising his English and his Chinese signatures[199].

229.  Although Deceased’s handwriting appeared to have deteriorated by June 1998 and he had started to use his name chop for signing banking documents in September 1998, those signatures by applying his name chop were in presence of witnesses and/or said to be verified by bank staff. There was no sufficient evidence that by then Deceased was suffering from any NCD.

230.  On 1 February 1999, the Mount Parker Property was sold by P’s brother, Chan Tak Hing, using a power of attorney granted to him by Deceased[200]. There was again no sufficient evidence that the power of attorney was not validly executed by Deceased.

F.11.4.  The MA Forms

231.  During the trial, P confirmed that she went with Deceased to the Sai Wan Ho Outpatients Clinic for his medical assessment for the SSDA. Although P’s written evidence was that she encouraged Deceased to apply, during the trial, she denied this and said she could not recall that she had “encouraged” Deceased and that it was Deceased’s his right to apply as he had difficulty in walking. P said the ticks on the MA Forms and deletions/s were done by the doctor. In fact, her answers to a lot of the questions asked of her were that she could not recall. She had said her solicitors had asked her to search for documents/medical reports of Deceased, and she gave her solicitors both versions of the MA Form. When she was asked why the two versions were produced at different times, P’s answer was she could not recall and maybe she found one at a later time. P said she could not recall whether the application in June 1999 was the first time Deceased applied for SSDA but later she had also said when Deceased applied the first time, it was not approved, and that he had applied a number of times but she could not recall the number of times, and that initially he was granted a NDA and later a HDA.

232.  P said she had flown with Deceased to Vancouver in February 1999, and as Deceased could not be out of Hong Kong for over 3 months if he wanted to apply for the SSDA, they flew back to Hong Kong in May/June 1999 to deal with the application. It was put to her that Deceased was a wealthy man and did not need the SSDA, she maintained that it was his right to apply and she claimed that Madam Chou had also applied. She maintained that all the ticks and deletions were done by the doctor.

233.  As said earlier, Version 1 of the MA Form was the one which was sent to Dr Wong by Ds when instructing him to prepare his solo report. Dr Wong had referred to the MA Form in paragraph 62. Although Dr Wong had referred to Deceased being recommended to receive NDA, Dr Wong’s comments were mainly on the ticking of the box that Deceased was mentally fit to make a statement and the term “organic brain syndrome. Dr Yu was provided with both versions. It was not Ds’ case nor was it ever suggested that either version of the MA Forms was not authentic or genuine, or that the deletions and initialling/signing of both Version 1 and Version 2 were done by anyone other than Dr Kong himself. Even though P’s answers during the trial were often she could not recall the fact was the trial was some 24 years after Deceased’s application for SSDA in 1999. Both versions of the form were produced by P. Ds’ solicitors had inspected both versions, Version 1 on 25 August 2017 and Version 2 on 19 August 2021. Even though P’s evidence in respect of why there were two versions was often she could not recall, what was clear was that on both versions, the tick in the box that Deceased was unfit to make a statement was deleted, and the tick in the box which remained was that Deceased was fit to make a statement. There was no sufficient evidence to contradict that.

F.11.5.  The marriage

234.  According to P’s witness statement, there were two witnesses to the marriage, one was Mr 朱積慧 (Chu Chik Wai), now deceased and his wife 陳女士 (Juliet Chan) and there was another friend 夏先生 (Han Xia) present. According to P, Mr Chu was Deceased’s classmate, and that Deceased had introduced Mr Chu and his wife to P, and Mr Xia was a friend of Mr Chu whom Deceased also knew.

235.  During the trial, when P was asked who were present at the marriage ceremony, P had said that in addition to the above, her younger brother Chan Tak Hing was also present.

236.  P had produced (1) the Marriage Licence with “Frank Chia Hsiang”[201] stated as “Groom” and “Sau Wai Shirley Chan” stated as “Bride” and signatures of two witnesses, one of which appeared to be “Hun San Shiah” and the other one, simply one character “Chan”, and also the signature of the Marriage Commissioner who officiated the marriage whose signature was “S McCleod” and (ii) the Marriage Commissioner’s Statement of Marriage and (iii) a receipt indicating that the payment was from “S Chan”[202].

237.  There was also a printed registration form titled “Marriage Licence and Registration of Marriage” (“Registration Form”)[203]. It was stated on the opening part of the Registration Form that an application having been duly made by the parties (ie the intended bridegroom and intended bride), a person duly appointed under the Marriage Act to solemnize the marriage was authorised to solemnize the said marriage, with effective date between 25 August 1999 and 25 November 1999[204]. The lower part of the Registration Form was to be completed by the officiant, and the names of the two persons who signed as witnesses were written clearly to be “Hun San Shiah” and “Chan Tak Hing”, and then respective signatures append against their names. Deceased had signed his name in English. The marriage took place at the Vancouver Property in the presence of the officiating person Sandra McLeod.

238.  Under cross examination, P had said “Hun San Shiah” was the same person as Mr Xia mentioned by her, and although she initially said the signature of “Chan” was that of Madam Chan, when shown the Registration Form, she explained that she had thought the signature of “Chan” was that of Madam Chan, but she was not able to recall whether it was Madam Chan, or her younger brother Chan Tak Hing who was also present. It was pointed out to P that she never disclosed the presence of her brother in her witness statement.

239.  Even though P did not disclose the presence of her brother in her witness statement. P had disclosed during the trial that her younger brother was also present at the marriage ceremony prior to her being shown the marriage documents and the Registration Form and the names of the witnesses thereon. She had said her English was not good and she could not recall as it was such a long time ago, and that on the marriage certificate, she could only see one of the two signatures being the character “Chan”, and she had thought it was Madam Chan’s signature. It was also her explanation that when preparing her witness statement, she thought she was to name the witnesses who signed on the Registration Form and that as she thought they were Mr Xia and Mr Chu’s wife Julie Chan she therefore did not mention her brother.

240.  It was P herself who had produced the marriage licence and the Registration Form. P’s witness statement was given in Chinese, and the names of the witnesses were in Chinese, with English spelling according to the Cantonese dialect. It was not improbable that in fact the English name of the person 夏先生P was referring to was spelt “Hun San Shiah” rather than “Han Xia”. Further, as the signature of the other witness was simply “Chan”, it was not improbable that P had thought it was Madam Chan’s signature.

241.  When D2 started the BC Trust Proceedings in December 2014, and the validity of the marriage was raised, it was some 15 years after the marriage, and when P gave her witness statement in the present action in October 2020, it was 21 years after the marriage. By the time of the trial, P was 69 years old. That P could not recall certain matters would not mean she was not a credible witness. It did not seem probable that P would deliberately provide false information on the two witnesses who signed on the marriage licence and Registration Form and at the same time producing all those documents herself. Having considered all the evidence, I accept her explanations as to why the names of the witnesses stated by her in her witness statement were different from those on the marriage licence and the Registration Form.

242.  P had disagreed during the trial that Deceased was not able to speak at the marriage ceremony. It was her evidence during the trial that Deceased had had conversations in English with the Marriage Commissioner Sandra McLeod. She agreed that no medical certificate was produced to the Marriage Commissioner prior to the marriage but said Deceased was in a clear state of mind and could express himself clearly and that he only had difficulty in walking. She had disagreed that it was she who decided to get married or that she chose to get married in Canada, to be far away from his friends and relatives. She also disagreed that it was she who did not wish to have Deceased’s family and relatives to be present.

243.  It was P’s evidence during the trial that it was Deceased who initiated the idea of marriage with her as Deceased said they were at an advanced age and they had known each other for 20 years. In February 1999, she had to land in Canada for immigration purpose and when they arrived in Canada, as Madam Chou only passed away in May 1988 which was less than a year ago, they decided not to get married then, and they later decided only to marry it in September 1999, which would be 1½ years after Madam Chou had passed away. P also said they wanted to keep a low profile and that in 1999, Deceased was not on speaking terms with Ds, and that was why they were not informed.

244.  The fact that Ds’ cousin Irene and Irene’s mother were able to contact and visit Deceased and P at the Vancouver Property, and with their photograph taken together with Deceased and P would show that P was not keeping Deceased away from his friends/relatives.

245.  Further, Ds’ lawyers in Vancouver had contacted the Marriage Commissioner Sandra McLeod in January 2015 and had sent her a letter dated 12 January 2015 asking her for a “responsive statement” with responses to questions asked of her by Ds’ lawyers[205]. Sandra McLeod replied by an email with her responses on 21 January 2015[206]. Although her responses to the questions were mostly she could not recall, she had stated in the final paragraph of her email as follows:

“My only comment concerning Mr Jen Sr’s level of alertness, ability to hear or see, to understand and speak English, and to be able to give consent by his own free will, is that, if I had had a concern that either party was unable to understand the marriage vows or appeared to be under duress during the Ceremony, I would not have performed the Ceremony,”

246.  Thus, clearly, there had been nothing to cause the Marriage Commissioner any concern. There was in any event no challenge to the formal validity of the marriage.

F.12  The Transcript of the Shanghai No 1 Intermediate Court on 5 June 2007

247.  As mentioned earlier, Deceased’s adopted sister, Madam Neen issued proceedings in Shanghai against Deceased in 2007. There was a letter of instructions dated 17 May 2007 authorising P to represent Deceased to deal with the legal proceedings instituted by Madam Neen with Deceased’s name chop applied thereon[207]. P had also written letters to the judge in Shanghai indicating that Deceased “無民事行為能力”[208]. Further, it can be seen in the transcript of the brief proceedings on 5 June 2007, the Court in Shanghai had attended Deceased’s home to investigate and confirmed Deceased was in a vegetative condition[209].

F.13  Conclusion on Mental Capacity

248.  Having considered all the medical and factual evidence including those set out above, I have come to the conclusion that there was no sufficient prima facie evidence that Deceased did not have the mental capacity to give his consent to enter into marriage with P on 2 September 1999. There was no sufficient evidence that Deceased was not mentally capable at the time of marriage with P of appreciating the responsibilities normally attaching to the marriage, or the role of husband and wife or the duties of either. Deceased had a long intimate and close relationship with P and they were already living together and sharing a common home since late 1996/early 1997. In any event, Ds have not been able to discharge their burden of proof to rebut the prima facie presumption of mental capacity on the part of Deceased in giving his consent to marry P.

G.  ANY DURESS/UNDUE INFLUENCE

G.1  The Legal Principles

249.  Ds had referred the Court to Heywood & Massey: Court of Protection Practice at 4-049 in which it is provided that:

“The validity of a marriage contract must be tested and determined in precisely the same manner as any other contract. But if any contract more that another is capable of being invalidated on the grounds of the mental incapacity of either of the contracting parties, it should be the contract of marriage; and wherever from weakness of intellect, or from fear, either party is actually in a state of mental incompetence to resist pressure improperly brought to bear, there is no consent.” (emphasis added)

250.  It was submitted on behalf of Ds that it was not necessary for the vitiation of consent/capacity to enter into marriage, for there to be actual pressure or threats, citing NS v MI [2006] EWHC 1646 at 33-34 and in Mahmud v Mahmud 1994 SLT 599 at 601.

251.  In NS v MI [2006] EWHC 1646 at §§33-34 per Munby J, referring to and drawing analogy with probate cases, he explained the nature of undue influence as follows:

“pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of some one else’s.” (emphasis added)

252.  In Mahmud v Mahmud 1994 SLT 599 at 601, as explained by Lord Prosser, the focus is on whether the consent was freely given; and there is no restriction on what type of “force” is sufficient to vitiate free consent:

“The question is thus not merely whether the party consented to marriage (which in some sense will normally have occurred) but whether that consent was a “free” consent, showing an “agreeing mind”. This free consent, showing an agreeing mind, will not be present if the consent has been “compelled” by “force”. The crucial matter appears to be the state of mind produced in the person giving the “forced” consent, and (despite certain dicta suggesting what the force must be like) I can see no basis in principle for holding that only particular types of “force” will suffice.” (emphasis added)

253.  Ds also relied on X v A [2021] EWFC 118 for their submissions that controlling behaviour alone is sufficient to find subordination of the will of a party to a marriage. In X v A, A (an elderly woman) was in earlier proceedings found not to have the capacity by reason of dementia to conduct litigation in May 2020, and Yvonne Gibson J appointed her nephew as her litigation friend. In the subsequent nullity proceedings before Gibson J, the issues were amongst others, (a) whether A validly consented to the marriage to X (a much younger man who had acted as A’s nurse) in April 2019 in consequence of “unsoundness of mind” or duress; or (b) though capable of giving a valid consent, was suffering (whether continuously or intermittently) at the time of the marriage from a mental disorder within the meaning of the Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage such that the marriage was voidable. It was found by Gibson J, after hearing and having considered all the evidence, that the control exerted by X over A was “insidious, pervasive and powerful” and that A’s consent was vitiated by the overbearing of her will and the ongoing control of X exerted over her[210]. Gibson J had said that the issue of capacity was central to all the issues[211].

G.2  Ds’ Pleaded Case

254.  In the re-amended defence & counterclaim (“RAD&C”), Ds’ pleaded case is that Deceased entered into the 1999 marriage with P under undue influence/duress of P. The particulars relied on Ds were:-

(1)  Since Deceased moved to live with P in 1997, he was isolated from his children and grandchildren despite his previous close relationship with them and his fondness with his grandchildren:

(a)  Deceased was isolated from Ds without any reason;

(b)  Deceased stopped seeing his regular doctors and physicians in Hong Kong and P took charge of Deceased’s medical affairs to the exclusion of Ds;

(c)  The marriage was secretly held in Canada and Deceased’s close friends, relatives, children, grandchildren and daughter-in-law were not notified nor invited to the wedding;

(d)  Deceased entered into a series of transactions that were detrimental to himself and benefitted only P.

(2)  In December 1998, P manipulated Deceased to authorize her brother Chan Tak Hing to sell the Mount Parker Property at a below market price and to deposit the sale proceeds into a joint account of herself and P and then in around February 1999, withdrew and pocketed for her own use all the sale proceeds;

(3)  From February 1999 to January 2000, P had manipulated Deceased to transfer to her most, if any not of his bank deposits and assets as held by him and/or his companies.

(4)  In 2004, P caused Deceased to sell a landed property at East Sun Industrial Building that was owned by KCEL (“East Sun Property”) with a falsified KCEL minutes.

G.3  Discussion and Conclusion

255.  There was however no clear pleading of what undue influence or duress was exerted by P on Deceased at the time of marriage. There was no sufficient evidence that Deceased did not carry out those acts of his own free will. In fact, the basis of all Ds’ complaints was the mental incapacity of Deceased. There was no sufficient evidence of any duress or under influence exerted by P over Deceased to make him consent to marry her. As mentioned earlier, the email from the Marriage Commissioner Sandra McLord on 21 January 2015 indicated that she did not have a concern that Deceased was under duress during the ceremony. In any event, even if there was any duress or undue influence, such would only render the marriage voidable.

H.  WHETHER THE MARRIAGE SHOULD BE RECOGNISED AS A VALID MARRIAGE UNDER THE IEO

256.  As said, there was no challenge to formal validity of the marriage. I find the marriage was celebrated in accordance with the law in force at that time in Vancouver. In light of all said above and there being no other public policy grounds, the marriage should be recognised as a valid marriage under section 3(d) of IEO.

I.  WHETHER THE LETTER OF ADMINISTRATION GRANTED TO D1 SHOULD BE REVOKED

257.  The reasons for revocation pleaded by P in her statement of claim were as follows:

(1)  D1 made a misleading and/or false statement to the Probate Registry by covering up her intent to dispute the marriage between Deceased and P;

(2)  D1 failed in her duty of full and frank disclosure/false statement in obtaining the order of substituted service on P for the Citation that led to the grant of the LA to D1.

258.  As for (1) above, D1 had explained that when she filed her affirmation to apply for letters of administration, in stating that P was the lawful widow, D1 was only stating a matter of fact, as the marriage did take place. I am of the view that even though there was no indication that D1 had intended to challenge the validity of the marriage at that time, this would not mean she had made a misleading or false statement to the Probate Registry.

259.  In relation to (2), as for the substituted service, it was D1’s pleaded case that she did issue and attempt to serve upon P the Citation which was duly served at P’s updated residential address as recorded in the 2011 and 2022 annual returns filed by ZKCL, namely the address of the Park Oasis Property, and those updated annual returns were signed and filed by P herself. D1 had also pointed out that in P’s 1^st affirmation dated 5 January 2017 in the HCMP 106/2017 action[212], P had stated that the address of the Parc Oasis Property was in 2011 and 2012 a valid address for service of documents on her. In the RAD&C, D1 had also set out the details of attempts of service. On the other hand, P had produced tenancy agreements to show that Parc Oasis Property was rented out, but D1 pointed out it was not in February 2012 when D1 was attempted to serve the Citation on P at that address. It was D’s case that P was evading service.

260.  As set out earlier, less than 3 months after Deceased’s death, Ds were already suing P in Shanghai. Ds had stated in those proceedings P’s address was that of the Yong Jia Property and also the address of the Sun Hing Office. Although it was not unreasonable for D1 to try to effect service of the Citation on P at the Parc Oasis Address, when the attempts failed, in my view D1 should have made attempts of other means of serving or notifying P of the Citation, including at the Yong Jia Property and/or the Sun Hing office, by email to 陳蘊泉, through whom D1 had passed a message to P on 6 March 2010, and also at the Vancouver Property. Having considered the evidence, I accept P’s submission that D1 had not made full and frank disclosure at the time of applying for the substituted service order of the Citation in that she did not disclose that she had had other means of contacting P. In the circumstances, the substituted service order should be set aside and I am of the view that the LA ought not to have been granted to D1 under S33(1) of the Probate and Administration Ordinance, Cap 10 (“PAO”). The LA should be called in and revoked.

J.  WHETHER REMOVAL OF D1

261.  In my view, D1 had also failed to provide a proper account and inventory of the Estate to the beneficiaries until 6 October 2020 and even in that account[213], D1 did not disclose Deceased’s shares and interest in Madam Chou’s estate.

262.  If Madam Chou had left assets, the administrator of the Estate should make an attempt to try to investigate and to recover, Deceased’s/Estate’s share and entitlement.

263.  D1 claimed that there had been no grant to Madam Chou’s estate at that time. However, whether there was grant or not, it did not seem probable that D1 would not know what assets Madam Chou held.

264.  Having considered the above, I am of the view that there is conflict of interest on part of D1 and/or D2 to act an administrator of the Estate. I have thus come to the conclusion that D1 should in any event under section 33(3) of PAO be removed as administratrix of the Estate.

265.  I am of the view there should be an independent professional administrator appointed. I will allow Ds a further 28 days to make proposal for an independent administrator to be appointed and payment of his/her charges. A further hearing for directions shall be fixed (estimated length of hearing: 1 hour) in relation to this matter.

K.  CONCLUSION

266.  In light of all said above, I grant the following orders/directions:

(1)  The letters of administration granted to D1 on 28 September 2012 under HCAG 9914/2012 be called in and revoked with immediate effect.

(2)  Ds’ respective counterclaim be dismissed.

(3)  As P is clearly the successful party in this action, Ds shall pay P’s costs jointly and/or severely personally, to be taxed on party and party basis if not agreed. This is an order nisi which shall be final after 28 days.