TLK v. LASM, LKDJ AND LCKS, THE EXECUTORS OF THE ESTATE OF LWK, DECEASED

FCMP 182/2022

[2025] HKFC 206

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO. 182 OF 2022

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BETWEEN

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JUDGMENT
(Financial Provision for Family and Dependants)

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Table of Contents

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A. INTRODUCTION

1.  This is an application by the Applicant, Madam TLK, (“Madam T”) for reasonable financial provision from the net estate of LWK (the “Deceased”) under sections 3(1)(ix) and 4 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) (the “Ordinance”).

B. BRIEF BACKGROUND

2.  Madam T was a former mistress of the Deceased. She says that she met the Deceased in 1975, and developed an intimate relationship with him, at the beginning of their relationship, the Deceased had provided cash maintenance to her. Madam T and the Deceased had a daughter, LPM (“PL”), born out of wedlock in June 1977.

3.  She broke up with him in 1983 and developed a relationship with another man, Mr. TP (“TP”). However, because of PL, she re-connected with the Deceased in 1993, who had since provided financial support to her and PL.

4.  It is Madam T’s case that since TP passed away in 2006, the Deceased assured her that he would take care of her financially. Between 2006 and 2016, the Deceased provided monthly maintenance in the range of HK$100,000 to HK$120,000 per month by cash or cheques. Since 2016, they started to have regular monthly lunch gatherings at DLS Restaurant (“DLS”), a Chinese restaurant in Tsim Sha Tsui, during which the Deceased would give Madam T cash in the range of HK$130,000 to HK$170,000 per month for maintenance. The last lunch gathering at DLS, and the last cash payment, took place in January 2020, on the brink of the COVID-pandemic sweeping over Hong Kong followed by the subsequent social restrictions.

5.  The Deceased married his lawful wife, Madam L (“Madam L”), in the early 1950s, she passed away just the month before he did, in December 2021. The Deceased and Madam L had five children: AL, EL, JL, FL, and CL (the “Legitimate Children”). Three of the Legitimate Children, namely AL, JL and CL, are joint executors and trustees (the “Executors”) of the Deceased’s estate (the “Estate”) named in his last Will dated 7 January 2019 (the “Will”). They oppose Madam T’s application.

6.  It is the Executors’ case that they do not accept that the Deceased had made payments to Madam T by cheques, nor are those cheque payments relevant to the question of locus. They further denied that the Deceased had made cash payments to Madam T from 2016 to January 2020. They submitted that, even on Madam T’s own case, the last payment took place in January 2020, two years prior to the Deceased’s passing. Madam T was not maintained “immediately before the death of the deceased”, and the last cash payment, even if it had taken place, could only be seen as a “parting gesture”.

7.  It is not disputed that during his marriage, the Deceased had had affairs with at least three to four other women, and from those relationships, there were children born out of wedlock. These other children, including PL, shall be referred to as the “Other Children”.

8.  Since the last meeting at DLS in January 2020, there was no payment by the Deceased to Madam T, the Deceased passed away at age 92 in January 2022 in Hong Kong in the midst of the COVID-pandemic. The Will provides for his estate to be divided among his five Legitimate Children. No provision was made for Madam T.

9.  The Grant of Probate is dated 12 December 2022.

C. RELEVANT LITIGATION HISTORY

10.  On 25 October 2022, Madam T commenced the present proceedings.

11.  On 5 December 2023, Madam T took out a summons for interim maintenance and litigation funding under section 7 of the Ordinance. On 27 September 2024, this Court granted leave to Madam T to amend the summons to seek additional litigation funding for trial.

12.  The hearing took place on 22 November 2024, the Court made no provision for interim maintenance but ordered the Estate to pay a sum of HK$700,000 to Madam T’s solicitors as litigation funding for her costs for the trial.

13.  This trial eventually took place over 6 days commencing 7 February 2025.

D. THE ISSUES

14.  There are 2 issues which the parties agree are in dispute:

a. Whether the Applicant is a person who, immediately before the death of the Deceased, was being maintained, either wholly or substantially, by the Deceased, within the meaning of section 3(1)(ix) and 3(3) of the Ordinance (“Issue 1”)

b. If the answer to the question raised in the paragraph above is in the affirmative, whether the Court should exercise its power to make any order(s) under section 4 of the Ordinance, having regard to the matters set out under section 5 of the Ordinance (“Issue 2”)

15.  Based on parties’ closing submissions, the following sub-issues could be identified under Issue 1:

a. Whether there was a settled basis or arrangement of maintenance (“Issue 1A”)

b. If there was, whether the Deceased decided to cease the financial provision to Madam T, ending such settled basis or arrangement? In other words, had the Deceased abandoned his responsibility or disclaimed the intention to maintain for Madam T? (“Issue 1B”)

c. Whether the disposition of the Deceased’s estate effected by his Will is not such as to make reasonable financial provision for Madam T? (“Issue 1C”)

E. THE WITNESSES

16.  Madam T submitted a total of 9 affirmations in these proceedings. She had also submitted a Form E in April 2023. Her daughter, PL, had submitted a total of 3 affirmations. They gave oral evidence at the trial.

17.  Madam T’s sister, TLC, had submitted an affirmation previously. As she was not called upon to give evidence at the trial, parties have agreed to expunge her affirmation from the trial bundles. I shall not take into account its contents.

18.  The Executors submitted a total of 6 affidavits in these proceedings (one being from their solicitors). They had also submitted a Form E. Two of the Executors, namely JL and CL, gave oral evidence at the trial.

19.  In evaluating the live evidence of each witness, I have regard to the well-established principles in Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513 at [53]. In brief, one needs to consider if the party’s case is inherently plausible or implausible; whether the party’s case is contradicted by evidence, whether a witness has been discredited over one or more matters to which he/she has given evidence, and his/her demeanour at trial.

F. ISSUE 1: LOCUS OF MADAM T

F1. Legal Principles

20.  Section 3(1)(ix) of the Ordinance provides that: -

“3. Application for financial provision from deceased’s estate

(1) Where after the commencement of this Ordinance a person dies—

(a) domiciled in Hong Kong; or

(b) having been ordinarily resident in Hong Kong at any time in the 3 years immediately preceding his death,

and is survived by any of the following persons—

…

(ix) any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased,

that person may apply to the court for an order under section 4 on the ground that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.” (emphasis added)

21.  Ms Chow, together with Mr Cheung, counsels for the Executors, argue that Madam T does not even have locus to bring her claim as she is not a person “who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased” under the Ordinance.

22.  As could be gleaned from the issues, the entitlement of Madam T in this application rests weightily on how the terminology of “immediately before” is to be construed. While there is no statutory definition of the phrase “immediately before” in the Ordinance, it might be helpful to set out the relevant legal principles at this juncture.

23.  In In re Beaumont, Deceased [1980] Ch 444, Sir Robert Megarry VC discussed at length the phrase “immediately before the death of the deceased was being maintained” in section 1(1)(e) of the Inheritance (Provision for Family and Dependants) Act 1975 (“1975 Act”), the English equivalent of section 3(1)(ix) of our Ordinance. The Vice Chancellor was concerned with whether this requires consideration to be given only to the state of affairs existing at the instant before the death of the deceased, or does it allow a wider approach – in particular, what if the state of affairs at that instant differs from the normal state of affairs?

24.  After having contemplated some possible examples, the Vice Chancellor held at 452D-H that:

“The contemplation of possible examples such as these suggests certain consequences. First, it seems to me improbable that the word ‘immediately’ in section 1(1)(e) was intended to confine the gaze of the court to whatever was the state of maintenance existing at that precise moment. I very much doubt whether Parliament can have intended people to shuffle in and out of section 1(1)(e) and (3) with every variation in the state of maintenance between them, so that last week C was partly maintaining D with substantial contributions, this week neither is maintaining the other, and the next week D will be maintaining C with substantial contributions. Given that the moment at which the examination must be made is therefore the moment before the death of the deceased, what has to be examined ought not, I think, to be the de facto state or balance of maintenance at that moment, but something more substantial and enduring.

The question is what that something is. If at the moment before the death of the deceased there is some settled basis or arrangement between the parties as regards maintenance, then I think that section 1 should be applied to this rather than to any de facto variation in the actual maintenance that may happen to exist at that moment. If the general arrangements between the parties is that D is substantially maintaining C, then matters ought to be decided on that basis. This should be so even if, at the moment before D dies, C is in fact making such contributions, whether in personal services such as nursing or in the provision of money or goods, that on balance C is substantially maintaining D. The word ‘immediately’ plainly confines the court to the basis of the arrangement subsisting at the moment before death, and excludes whatever previously subsisted but has ended and the state of affairs under it.”

25.  The Vice Chancellor’s exposition on this point was approved by the English Court of Appeal in Jelley v Iliffe & Ors [1981] Fam 128. Stephenson LJ held at 136D-F that:

““(2) In considering whether a person is being maintained ‘immediately before the death of the deceased’ it is the settled basis or general arrangement between the parties as regards maintenance during the lifetime of the deceased which has to be looked at, not the actual, perhaps fluctuating, variation of it which exists immediately before his or her death. It is, I think, not disputed that a relationship of dependence which has persisted for years will not be defeated by its termination during a few weeks of mortal sickness. …”

26.  Griffiths LJ also agreed with the construction of sections 1(1)(e) and (3) expounded by Sir Robert Megarry VC. His Lordship held at 141B-C that:

“The words ‘immediately before the death of the deceased’ in section 1(1)(e) cannot be construed literally as applying to the de facto situation at death but refer to the general arrangements for maintenance subsisting at the time of death. So that if for example the deceased had been making regular payments to the support of an old friend the claim would not be defeated if those payments ceased during a terminal illness because the deceased was too ill to make them.”

27.  The principles set out above were cited and applied by the Hong Kong Courts: Tang Tim Chui v Tang Ka Hung Robert (unrep, HCMP 2506/2009, 7 June 2012) at [38] – [40] per DHCJ Au-Yeung (as she then was); LPC v CYC (unrep., FCMP 61/2012, 16 September 2014) at [8] – [9] per DDJ Grace Chan (as she then was); LYYC v CHL & CSMS [2023] HKFLR 265 at [58] – [65] per B Chu J. In LYYC, B Chu J held at [63]:

“What is clear from the 2 cases Jelley v Iliffe and In re Beaumont, and also later in Baynes v Hedger [2009] EWCA Civ 374, an assumption of responsibility by the deceased for the maintenance of the claimant is an essential ingredient in the qualification of a person entitled to make a claim under section 1(1)(e) [our section 3(1)(ix)].” (emphasis added)

28.  Ms Chow does not really dispute that the Court has to consider the general basis or arrangement then existing for the maintenance of the applicant by the deceased. However, she invites the Court to consider that the word “immediately” (緊接) cannot bear a meaning it is plainly incapable of bearing. She referred to Chan Ka Lam v Country and Marine Parks Authority (2020) 23 HKCFAR 414, where Ma CJ and Cheung PJ (as they then were) held that “a purposive and contextual interpretation does not mean that one can disregard the actual words in a statute. … One cannot give a provision a meaning which the language of the statute, understood in the light of its context and purpose, cannot bear”. She submits that it is unacceptable to put a gloss on the words of the statute, and to over-relax the meaning of “immediately” would mean that testamentary dispositions could be rewritten lightly. She says this is why locus has never been established if there is an intervening period between the death of the deceased and the last payment to the applicant which is quantified in “years” rather than “months”, citing LYYC (5.5 years), Baynes v Hedger [2008] 2 FLR 1805 (30 years), Layton v Marton [1986] 2 FLR 227 (2 years), and Re Dymott, Spooner v Carroll (unrep., 15 December 1980) (1 year) as supporting authorities.

29.  Mr Kwan, counsel for Madam T, referred to Perfect v Northern Territory of Australia (1993) 107 FLR 428 and Edgars Consolidated Stores Ltd v South African Commercial and Catering and Allied Workers Union (unrep., Case No: J 1089/07, 18 May 2010), and submitted that the courts have shown a reluctance to construe the word “immediately” as importing a strict temporal dimension and emphasised the importance of context. However, since these cases only concern with the phrase “immediately” in cases other than financial provision claims, compared to the well-established authorities expounding on the meaning of the term “immediately before” under the Ordinance or its English equivalent, I find them of marginal relevance in the construction exercise.

30.  Mr Kwan further submits that using a pure temporal approach must be plainly wrong because if the legislature intended a temporal limit, it would have given a hard deadline in the statute. He further drew my attention to the facts of cases cited by the Executors and that they do not support the proposition that an intervening period in terms of “years” will conclusively defeat an applicant’s locus, because in each and every case there was either an express finding of abandonment (LYYC, [189]) or termination of relationship (Layton v Martin, p. 234), or that it only involved one-off outright gift of a house made nearly 30 years earlier which cannot be said to amount to maintenance immediately before death (Baynes v Hedger, [154]), or that the only evidence in the case cannot support the conclusion that sums were paid in acknowledgment of a responsibility to maintain (Re Dymott, p. 3).

31.  In my view, whilst counsels on both sides place different emphasis on different facets of the phrase “immediately before”, there is no fundamental dispute between them on the settled law that the Court has to consider whether there is a settled basis or general arrangement between Madam T and the Deceased for the maintenance of Madam T. What is actually in dispute is (i) whether such basis or arrangement could be discerned from the proven facts of the present case, and (ii) even if there was such basis or arrangement in place at a certain point in time, whether it has ended. In considering question (ii) of whether the basis or arrangement has ended, the Court considers whether there was sufficiently clear evidence showing that the assumption of responsibility for the claimant’s maintenance has ceased (Ross on Inheritance Act Claims (5^th Ed), [2-086]) or whether there was a disclaimer of intention to maintain (LYYC, [62]).

32.  In this regard, Ms Chow has also drawn my attention to DHCJ Au-Yeung’s (as she then was) judgment in Tang Tim Chue v Tang Ka Hung Robert (unreported, HCMP 2506/2009, 7 June 2012) at [38]-[39] that: -

a. The word “immediately” plainly confined the Court to the basis or arrangement subsisting at the moment before death, and excludes whatever previously subsisted but has ended, and the state of affairs under it: Re Beaumont (deceased) [1980] 1 All ER 266, Sir Robert Megarry VC, at 272c; Re Wilkinson (deceased) [1978] 1 All ER 221, Arnold J at 222j.

b. It is the settled basis or general arrangement between the parties as regards maintenance during the lifetime of the deceased which had to be to be looked at, not the “actual, perhaps fluctuating, variation” of it which exists immediately before his or her death: Jelley v Iliffe [1981] 2 All ER 29, 34j-35a; 38e-f.

33.  Ms Chow further submitted that a one-off gift, be it accommodation or cash, cannot be relied on to find locus under section 3(1)(ix), relying on Baynes v Hedger [2008] 2 FLR 1805, LYYC v CHL [2019] HKCA 521, McIntosh v McIntosh [2013] WTLR 1565, and Miles v Shearer [2021] EWHC 1000 (Ch). In taking this point, Ms Chow is responding to Mr Kwan’s opening submission wherein he says that “… [Madam T]’s financial needs have been met from his past maintenance” and “More fundamentally, the correct question isn’t even about whether or not the Deceased paid [Madam T] on this or that date; if [Madam T] was living off the Deceased’s earlier contributions, that would suffice”. Although I do not see this point further taken in the parties’ closing submissions.

34.  In Baynes v Hedger, Lewison J said the following:

“[154] The Act requires the claimant to establish that the deceased ‘was making’ a contribution immediately before death. The contribution may be in money or money’s worth. The phrase is in the imperfect tense which suggests a continuing or uncompleted action. In my judgment, a contribution in money is made when the money is put into the hands of the donee; and a contribution in money’s worth (which will usually be the provision of accommodation or the rendering of services or a gift of property) is made when the accommodation is provided, or the services are rendered or the property is given. In the case of accommodation I accept that there may be a continuous provision, as where someone is allowed to live in the deceased’s house under a licence, or at a concessionary rent. In such a case the asset itself (ie the house) remains an asset of the deceased. But I do not accept the proposition that a one-off outright gift of a house made nearly 30 years earlier can be said to amount to maintenance immediately before death, even if the donee continues to live in the house. That contribution was made when the gift was made. …

[157] The point can be looked at from another angle. One of the matters to which I am required to have regard is the extent to which and the basis on which the deceased assumed responsibility for the claimant’s maintenance. In my judgment, where the deceased sets up a trust for the benefit of the claimant, the extent of the trust fund is a clear indication of the extent of the responsibility that the settlor has assumed. The basis on which the deceased has assumed responsibility is that it is the trust fund, rather than his or her free assets, which is to be used for the maintenance of the claimant. Likewise in the case of the house, the making of a one-off gift does not carry with it any assumption of responsibility for future maintenance or the provision of future accommodation. As I have said, strictly speaking, these factors go to the question whether the will fails to make reasonable financial provision for the claimant, rather than whether the claimant can ask the court to answer that question. …”

35.  Ms Chow drew my attention to the above passage and submitted that a one-off gift made many years ago by a deceased person cannot be relied upon as being maintenance “immediately before death” even if the donee continues to live on it. She also submitted that in LYYC v CHL [2019] HKCA 521 at [25], the Court of Appeal has regarded the contention that living off past gifts made years ago cannot be in the nature of maintenance “immediately before death” as “respectable”.

36.  While acknowledging this is a point raised by the Applicant, this argument does not take the Executors’ case any further.

37.  As has been made clear by Lewison J in the quoted passage, what the Court is required to have regard is the extent to which and the basis upon which the Deceased assumed responsibility for the claimant’s maintenance. Under most circumstances, it will be rather difficult for the applicant to prove, or for the Court to find, an existence of settled basis or arrangement of maintenance when only a one-off cash gift was made without more, because the gift does not carry with it any assumption of responsibility for future maintenance. However, it will be a rather different matter when regular payments were made (as alleged in this case), of which they may carry with them, and the Court is entitled to find, an assumption of responsibility on the part of the deceased person towards ongoing maintenance of the recipient.

38.  In LYYC v CHL, the Court of Appeal also noted at [23] that in considering the locus question of the applicant, the history of the relationship between the applicant and the deceased, and the alleged provisions given to her, are also factors to be considered:

“23. We do not think that the determination of the question whether the Applicant comes within section 3(1)(ix) is a pure question of law that can be resolved in the abstract. In light of the history of the relationship between the Applicant and the deceased and the alleged provisions given to her, it is at least arguable that one should not simply single out the fact that she received nothing more since 2013 to rule her out as a potential candidate under section 3(1)(ix) of the Ordinance. The Judge was correct in holding that this question should be dealt with at trial.”

39.  I am of the view that an argument over whether there is an “one-off” gift is not relevant to the questions before me.

40.  Thus, in determining the locus issue, the Court will not focus too narrowly on the timing of payments or take a strict temporal approach. The question remains whether a settled basis or arrangement could be discerned from the proven facts of the case, and the Court shall take a holistic approach in considering such question.

41.  With the above principles in mind, I turn to the evidence of Madam T and the Executors.

F2. Evaluation of the Applicant’s evidence

F2.1 Madam T

42.  Madam T has made a total of 9 affirmations. She gave oral evidence on 7, 10 and 11 February 2025.

43.  I will first set out Madam T’s evidence as to her relationship with the Deceased during various periods of time. The following is largely adopted from Madam T’s affirmations.

1975 to 1983: Meeting the Deceased and the birth of their daughter out of wedlock

44.  Madam T was born in Hong Kong in January 1957, and was 68 years old at the time of trial. She met the Deceased at the beginning of 1975 when she was 18 years old and was working as a part time waitress. The Deceased was then a businessman. Soon after they met, they quickly formed an intimate relationship notwithstanding it was made known to Madam T that the Deceased was a married man with his family in Canada. Madam T has put into evidence photos taken in 1976 by the Deceased’s younger brother at his studio in Canada when the Deceased took her to Toronto.

45.  According to Madam T, not long after the commencement of their relationship, the Deceased asked her to stop working as a part-time waitress and she since became financially maintained by him. Madam T recalled that there was no fixed pattern of when the Deceased would provide her with financial maintenance, but in general, the Deceased provided her with cash more than once each month, amounting to a total sum of around HK$20,000 to HK$30,000 per month.

46.  Their relationship and the financial arrangement lasted until around mid-1976 when the Deceased had to flee to Canada as his business and affairs in Hong Kong was investigated by the local authorities. The financial support from the Deceased stopped while he was not in Hong Kong. At that time, Madam T was pregnant with their daughter, PL, who was later born in June 1977, but she did not inform the Deceased of her pregnancy then.

47.  In or around 1978, the Deceased returned to Hong Kong. Madam T’s family took care of him. It was only after the Deceased returned to Hong Kong from Canada that Madam T informed him of the birth of their daughter PL. The Deceased accepted that PL is his daughter and his paternal responsibility to her. They therefore arranged to register PL’s birth with the Births and Deaths Registration on XX January 1979. This birth certificate was put into evidence by Madam T in her first Affirmation. During this period, Madam T continued to rely on the savings previously provided by the Deceased to support her living. Madam T has put into evidence photos taken of the Deceased, herself and PL, together with her family members taken during 1979.

48.  In 1979, the Deceased left Hong Kong for Dominica to re-establish his career and gaming business there. Before he left Hong Kong, the Deceased provided Madam T with a sum of money and suggested that she should purchase property in Hong Kong so that she could have a more secured and better living environment. With the Deceased’s money, Madam T paid for the down payments of two properties, one located at MW Building (“MW Building”) purchased under her name at the purchase price of HK$410,000 in 1979, and CL Court (“CL Court”) purchased under her mother’s name at the price of HK$197,700 in 1981 respectively. Madam T’s family moved to MW Building until around 1987, when MW Building was sold and the family moved to CL Court.

49.  When the Deceased was in Dominica, the Deceased continued to provide Madam T with financial maintenance in the sum of around HK$30,000 per month through his friend.

50.  With the Deceased’s continuous financial support, Madam T further purchased a property at F Mansion in Shenzhen under her mother’s sole name at HK$90,000 in or around 1981.

51.  In 1982, the Deceased returned to Hong Kong, and further took on the responsibility to fully repay the mortgages of both MW Building and CL Court. Whenever he visited Madam T’s family, the Deceased provided her family with some pocket money in the sum of around HK$10,000 to HK$20,000.

1983 to 1993: Madam T’s relationship with Mr. TP (“TP”)

52.  In early 1983, Madam T had a quarrel with the Deceased which led to their breakup. Later that year, she met TP, who was then a famous actor and horse racing commentator. She developed a romantic relationship with TP. Out of this relationship, Madam T and TP had a son, BT, born in August 1985.

53.  At the beginning Madam T’s relationship with TP, the latter provided cash in the sum of around HK$10,000 per month to Madam T for her living expenses. Occasionally he would suspend the maintenance if he lost money at horseracing or did not make a good earning in a particular month.

54.  Following the birth of BT in 1985, Madam T decided to move out with PL and BT, and she purchased a property located at GV Court (“GV Court”) at HK$434,560 while the rest of her family moved to CL Court, as mentioned above. The deposit payment of GV Court was funded using Madam T’s own savings which mainly came from the Deceased. Madam T further obtained a mortgage with Hang Seng Bank to finance the property purchase. In 1987, Madam T sold MW Building and fully repaid the mortgage of GV Court with the sale proceeds of MW Building.

55.  In 1988, upon TP’s advice to purchase a bigger property, Madam T sold GV Court for HK$673,000 and purchased a property located at B Court, New Territories (“B Court”) at HK$1,780,000 and carparks at HK$50,000 under her sole name; which is where she now lives. The sale proceeds of GV Court were used for the purchase of B Court, with the remaining purchase price being financed by a mortgage with Dao Heng Bank Limited under Madam T’s name. A further sum of around HK$500,000 was used for renovation.

56.  Madam T moved into B Court with PL and BT. When TP was in Hong Kong, he would stay at B Court. By the time Madam T purchased B Court, TP increased Madam T’s monthly maintenance to around HK$20,000 per month, out of which around HK$10,000 was used to repay the mortgage of B Court while the remaining sum was used for paying their general living expenses.

57.  In the autumn of 1991, Madam T underwent an emergency surgery. When she fully recovered, she realised the importance and need to increase her liquidity. In 1992, she obtained 2 mortgage overdraft facilities against B Court in the total sum of around HK$800,000 to keep some cash in hand, which the Deceased later repaid in 2007.

1993 to 2006: Reunion with the Deceased

58.  In around 1993, PL was not performing well in her public examination, and TP made it clear that he would not offer any help to her. Madam T felt that she had no alternative but to resort to the Deceased for assistance as she was worried about PL’s future.

59.  By that point of time, Madam T had not contacted the Deceased for around 10 years. Before she broke up with the Deceased in 1983, he was living at a property located at Kowloon (the “Deceased’s home”). Madam T went to the Deceased’s home with PL, and reconnected with the Deceased. After a long chat with the Deceased, who was very understanding of Madam T’s situation, the Deceased was more than willing to shoulder the responsibility to take care of PL. He also told Madam T that since TP took care of his daughter, he would take care of BT.

60.  From that day onwards, the Deceased started to provide Madam T with monetary assistance without resuming any kind of romantic relationship. Out of respect to TP with whom she was still in a relationship, Madam T did not maintain regular contact with the Deceased.

61.  The Deceased arranged father-daughter meet-ups with PL once or twice per month in which he would have lunch with her and he would provide maintenance to Madam T indirectly through PL. At their first meeting, the Deceased provided PL with cash of HK$ 1 million and told her to pass the money to Madam T as compensation for being absent in their lives in the past years. In their subsequent meetings, the Deceased provided “pocket money” in cash to PL in the sum of around HK$30,000 to HK$50,000 every time. The Deceased would tell PL to keep around HK$5,000 for herself, and to hand the rest of the money from the Deceased to Madam T each time after their meeting.

62.  In addition, the Deceased financed PL’s school fees for her sixth-form education, her tertiary education in the UK and her Masters degree in Hong Kong. The Deceased also financed BT’s education in the UK as well.

63.  In 1994, the Deceased financed PL’s studies in the UK. PL only stayed in the UK during term time and came back to Hong Kong 4 times each year. Each time before PL left for the UK, the Deceased provided her with a cashier order which was sufficient to cover her school fees and living expenses in the UK. The Deceased also provided her with cash of HK$ 100,000 to HK$ 150,000 which was intended for Madam T’s living expenses in the two to three months in Hong Kong while PL was away.

64.  Since Madam T reunited with the Deceased in 1993, she received maintenance from both TP and the Deceased. By 1998, TP gradually increased the maintenance to around HK$45,000. However, the maintenance provided by TP was not regular, and at times Madam T had to rely on her own savings she accumulated from maintenance given to her by the Deceased to repay the mortgage of B Court and to keep up with expenses.

2006 to 2016: Death of TP and the Deceased’s financial maintenance by cash or cheque

65.  In 2006, TP passed away. Apart from a car plate which used to belong to TP, Madam T and BT did not receive anything from his estate.

66.  When the Deceased learnt of TP’s passing, he voluntarily assured Madam T that he would take care of her financially.

67.  In 2007, the Deceased continued to fund BT’s tuition fees until he graduated from his Masters degree, and fully repaid the mortgage of B Court (including the overdraft facilities) by way of cash in several instalments in 2007.

68.  After TP’s passing, the Deceased and Madam T were more comfortable in resuming contact and they started to meet up regularly for meals, often with the company of PL and BT when they were available and occasionally with Madam T’s mother and sister for festive gatherings. The Deceased also started to provide Madam T with financial maintenance directly, albeit they did not resume any romantic relationship.

69.  In general, the Deceased called PL to arrange for their regular monthly meet up at various restaurants. During their monthly meeting, the Deceased would provide Madam T’s living expenses either by way of cheque or cash. In the beginning, the Deceased provided HK$100,000 per month for her living expenses, and always paid an extra sum of HK$100,000 for the month of Chinese New Year. It was the Deceased who decided the amount he gave to her.

70.  When the Deceased paid the financial maintenance by way of cheques, Madam T had the habit of banking in most of the cheques at her current account maintained with Hang Seng Bank as she usually makes payments with this account. She would also deposit the cheques to her bank accounts with Bank of China and very occasionally with HSBC when there was an ATM machine nearby. After banking in the cheques, she would make several cash withdrawals as she preferred to pay most of her personal and household payments by way of cash and to keep cash in the safe at her home.

71.  When the Deceased paid the financial maintenance by way of cash, Madam T would usually keep the cash in the safe at her home. Those were not reflected in her bank statements.

72.  From 2011 onwards, the Deceased increased the monthly maintenance to HK$120,000.

73.  Madam T has produced bank statements of her bank accounts from 2008 to 2016 and showed some relevant entries of cheque deposits. Counsel on both sides have agreed on an “Agreed List of Deposits from Bank Statements Disclosed by the Applicant” (“Agreed List of Deposits”), which records the following cheque deposits made over the years.

74.  Cheque Deposits / Credit as advised to Madam T from 2008 to 2016:

Month	Date	Deposit Amount (HK$)	Bank Account	Transaction Details
Jan 2008	28.1.2008	200,000	Hang Seng Current Account. (286-167XXX-XXX) (“HSB Current Account”)	Cheque Deposit
Mar 2008	3.3.2008	100,000	HSB Current Account	Cheque Deposit
	31.3.2008	100,000	HSB Current Account	Cheque Deposit
May 2008	2.5.2008	100,000	HSB Current Account	Cheque Deposit
Jun 2008	2.6.2008	100,000	HSB Current Account	Cheque Deposit
Hang Seng Bank statements from 13 July 2008 to 12 August 2008 missing
Sep 2008	1.9.2008	100,000	HSB Current Account	Cheque Deposit
Hang Seng Bank statements from 14 September 2008 to 12 October 2008 missing
Oct 2008	30.10.2008	100,000	HSB Current Account	Cheque Deposit
Dec 2008	1.12.2008	100,000	HSB Current Account	Cheque Deposit
Hang Seng Bank statements from 14 December 2008 to 31 December 2008 missing
Total		900,000
Hang Seng Bank statements from 1 January 2009 to 12 February 2009 missing
Mar 2009	2.3.2009	100,000	HSB Current Account	Cheque Deposit
Apr 2009	1.4.2009	100,000	HSB Current Account	Cheque Deposit
	30.4.2009	100,000	HSB Current Account	Express Cheque Deposit
Jun 2009	1.6.2009	100,000	HSB Current Account	Cheque Deposit
	30.6.2009	100,000	HSB Current Account	Cheque Deposit
Jul 2009	31.7.2009	100,000	HSB Current Account	Cheque Deposit
Aug 2009	27.8.2009	300,000	HSB Current Account	Cheque Deposit
Oct 2009	2.10.2009	100,000	HSB Current Account	Cheque Deposit
Nov 2009	30.11.2009	100,000	HSB Current Account	Cheque Deposit
Dec 2009	30.12.2009	100,000	HSB Current Account	Quick Cheque Deposit
Total		1,200,000
Jan 2010	29.1.2010	200,000	HSB Current Account	Cheque Deposit
Hang Seng Bank statements from 13 February 2010 to 12 March 2010 missing
Mar 2010	31.3.2010	100,000	HSB Current Account	Cheque Deposit
May 2010	3.5.2010	100,000	HSB Current Account	Express Cheque Deposit
Hang Seng Bank statements from 13 June 2010 to 31 December 2010 missing
Total		400,000
Hang Seng Bank statements from 1 January 2011 to 12 April 2011 missing
May 2011	3.5.2011	120,000	HSB Current Account	Express Cheque Deposit
	30.5.2011	120,000	HSB Current Account	Express Cheque Deposit
Dec 2011	28.12.2011	100,000	HSB Current Account	Express Cheque Deposit
Total		340,000
Feb 2012	29.2.2012	120,000	HSB Current Account	Quick Cheque Deposit
Apr 2012	2.4.2012	120,000	Hang Seng Bank Savings Account (249-1-XXXXXX)	Quick Cheque Deposit
	30.4.2012	120,000	HSB Current Account	Express Cheque Deposit
May 2012	29.5.2012	120,000	HSB Current Account	Cheque Deposit
Jul 2012	30.7.2012	120,000	HSB Current Account	Cheque Deposit
Oct 2012	3.10.2012	120,000	HSB Current Account	Express Cheque Deposit
	29.10.2012	120,000	HSB Current Account	Quick Cheque Deposit
Dec 2012	3.12.2012	120,000	HSB Current Account	Express Cheque Deposit
	28.12.2012	120,000	HSB Current Account	Express Cheque Deposit
Total		1,080,000
Jan 2013	31.1.2013	220,000	HSB Current Account	Cheque Deposit
Feb 2013	27.2.2013	120,000	HSB Current Account	Cheque Deposit
Apr 2013	1.4.2013	120,000	Bank of China Savings Account (012-566-X-XXXXXX-X)	Cheque Deposit
	29.4.2013	120,000	HSB Current Account	Cheque Deposit
May 2013	27.5.2013	120,000	HSB Current Account	Cheque Deposit
Hang Seng Bank statements from 14 June 2013 to 12 July 2013 missing
Jul 2013	30.7.2013	120,000	HSB Current Account	Cheque Deposit
Sep 2013	4.9.2013	120,000	HSB Current Account	Express Cheque Deposit
Oct 2013	28.10.2013	120,000	HSB Current Account	Cheque Deposit
Hang Seng Bank statements from 14 November 2013 to 12 December 2013 missing
Dec 2013	27.12.2013	120,000	HSB Current Account	Cheque Deposit
Total		1,180,000
March 2014	3.3.2014	120,000	HSB Current Account	Express Cheque Deposit
Apr 2014	1.4.2014	120,000	HSB Current Account	Cheque Deposit
Hang Seng Bank statements from 14 May 2014 to 12 June 2014 missing
Hang Seng Bank statements from 14 November 2014 to 31 December 2014
Total		240,000
Hang Seng Bank statements from 1 January 2015 to 12 June 2015 missing
Dec 2015	1.12.2015	120,000	HSB Current Account	Cheque Deposit
	30.12.2015	120,000	HSB Current Account	Cheque Deposit
Total		240,000
Jan 2016	29.1.2016	220,000	HSB Current Account	Cheque Deposit
Feb 2016	29.2.2016	120,000	HSB Current Account	Express Cheque Deposit
Apr 2016	5.4.2016	120,000	HSB Current Account	Quick Cheque Deposit
May 2016	20.5.2016	120,000	HSB Current Account	Credit as advised (Transferred from 286-XXXXXX-XXX)
Aug 2016	4.8.2016	120,000	HSBC Savings Account (011-X-XXXXXX)	Cheque Deposit
Total		700,000

75.  There are months in which bank statements were provided but no cheque deposit could be seen; and then there would be some other months where statements are missing hence one cannot discern if cheque payments were given to Madam T. However, it is Madam T’s case that payments from the Deceased prior to the end of 2016 were both in terms of cheque or cash.

2016 to beginning of 2020: Meeting regularly at DLS, Cash payments only and last meet up in January 2020

76.  Since 2016, the Deceased’s health started to deteriorate, and he was not fit to travel to different places for lunch. The Deceased and Madam T started to meet up regularly at DLS for lunch. Lunch was always arranged to be at the first half of each month because the Deceased wanted to ensure that Madam T would be financially in funds for the rest of the month.

77.  In one of their lunch meetings in around the end of 2016, the Deceased told Madam T that he intended to pay the monthly financial support by way of cash from then on as he was physically unfit to sign cheques. Madam T had no issue with the suggestion as she had always had the habit of keeping cash at home and was accustomed to using cash.

78.  Once the Deceased started to pay in cash, the Deceased increased the monthly financial support to the range of HK$130,000 to HK$170,000 per month, and she remembered that the Deceased joked around that he was giving her a pay raise. Together with the double amount the Deceased paid around Chinese New Year, Madam T began to receive a monthly average of around HK$150,000 since end of 2016.

79.  Madam T says that it was their routine that whenever they were seated at the restaurant, the Deceased would give Madam T a stack of HK$1,000 notes being maintenance for the month. Out of prudence, Madam T was conscious not to draw attention of others in the restaurant to the cash she was given, so she always quickly put the money inside her purse. She would sometimes be assisted by one of the long-standing staff at the restaurant, known as MN, who gave her a tablecloth to cover the cash Madam T was given.

80.  Madam T recalled that the Deceased had told her not to worry about her finances and reassured her that he would cover her medical and living expenses, and those reassurances were given not less than 5 times.

81.  At the beginning of January 2020, the Deceased arranged 2 meetings at DLS, and provided Madam T with cash of HK$250,000 on each occasion, adding up to a total of HK$500,000 in that month. At that time, the Deceased did not give any specific explanation for the increased sum, and Madam T was unaware of the extra sum provided by the Deceased when they were at the restaurant as she did not count the amount given by the Deceased. Madam T also did not give much thought about the extra meeting with the Deceased as it was the month of Chinese New Year, so she thought it was normal for the Deceased to organise another lunch gathering.

82.  In hindsight, Madam T believed that the Deceased was aware of his deteriorating health as well as the alarming public health situation, and foresaw that their regular meetings may be affected, so the Deceased provided her with extra maintenance as a buffer. That was the last time the Deceased, Madam T, PL and BT gathered together before the subsequent strict social distancing measures implemented across Hong Kong commencing in February 2020.

83.  The sums provided by the Deceased in January 2020 were, according to Madam T’s case, the last sums provided by him.

2020 – 2022: The Deceased’s deteriorating health and passing away

84.  In around June 2020, the Deceased was admitted to St. Teresa’s Hospital, then in April 2021, he was admitted to the Canossa Hospital.

85.  Owing to her past relationship with the Deceased, Madam T did not find it appropriate to visit him at the hospital as she anticipated that his family and Madam L would be at the hospital. Hence, Madam T did not visit him on either hospitalisation. Instead, PL would visit the Deceased, and Madam T was able to speak to the Deceased by way of video calls via PL.

86.  From April to November 2021, Madam T learnt from PL that the Deceased was generally becoming even weaker and often refused to eat as he did not like the food prepared by his domestic helpers at home. Madam T therefore prepared some home-cooked meals for the Deceased. PL would ask the Deceased’s daughter FL to arrange for the Deceased’s driver to deliver the food to the Deceased’s home.

87.  In around mid-November 2021, the Deceased was admitted to the Baptist Hospital. While PL visited the Deceased everyday, Madam T had not seen the Deceased for almost 2 years at that point. But having heard of his deteriorating state, she felt obliged to visit him at the hospital notwithstanding the potential embarrassment she may encounter at the hospital with his family. She visited the Deceased 4 more times then; before the Deceased passed away on 5 January 2022.

Analysis

88.  In challenging Madam T’s case, Ms Chow submits that she is plainly an unreliable witness on the grounds elaborated below.

89.  First, Ms Chow says Madam T blatantly lied on several occasions and even expressly acknowledged making evidence up in the box when the Executors challenged that she was anything but close with the Deceased in the last 2 years of his life. The Executors cited the following exchange as support:-

“Q. So this is for the third time, Madam T. You say you had video chat with the deceased when [PL] visited him in hospital. The first time that ever happened after your so-called last meeting in January 2020 is when [PL] visited the deceased in Canossa on 3 April 2021 on your case. So I suggest to you that after this so-called last meeting in January 2020, the first time you ever had any form of contact with the deceased again is in April 2021, albeit indirectly via [PL] in a video chat.

A. Yes.

Q. And there have been no contact with him ever during that one year and three months time.

A. When, the one year?

Q. Between January 2020 and April 2021.

A. They have no contact?

Q. You had no contact.

A. Occasionally. Occasionally; so at the beginning I would contact him for some brief conversation like “How are you, Kxxx Gor?”

Q. Now, I suggest to you that this bit about some brief contact is completely made up in the box and not mentioned in your affirmation.

A. Okay, acknowledged.”

90.  In my view, I do not agree that Madam T blatantly lied or purposefully made evidence up. Ms. Chow’s question contains two suggestions: firstly, suggestion that the brief contact was completely made up in the box, and secondly, the suggestion that it was not mentioned in Madam T’s affidavit. It is not possible to tell if Madam T was acknowledging the former or the latter suggestion. Based on this answer, I do not accept that Madam T had acknowledged making up evidence in the box.

91.  Second, Ms Chow also suggests that Madam T tried to shy away from previous answers when she knew it was inconsistent with documentary evidence or was unfavorable to her case. She says, for example, Madam T claimed that the Deceased would pay her “every month before the 5^th”, but when it occurred to her that most of the cheque deposits into her HSB Current Account were not deposited prior to the 5^th, she “immediately retreated” from that position. Ms Chow relies on the following exchange:-

“Q. Okay, so I suggest to you that there is no regular maintenance payment from the deceased to you over the years.

A. If you have to put it this way, it’s up to you. I am saying that Mr L paid me money, maintained me.

Q. So you actually agree it is not regular. Your case is simply that he paid you money and provided for you.

A. On the few days at the beginning of the month because he is afraid that I didn’t have money to spend.

Q. Yes, but this is not regular. It may be quite random.

A. At the beginning of the month, the several days.

Q. And I suggest there’s also no settled basis of this money changing hands.

A. Every month before the 5th. At the end of the year, there would be double payment.

Q. So you mean cash or cheque, whatever, it will be paid to you every single month before the 5th.

A. Yes. Sometimes cheque, I don’t remember. For cash, yes.”

92.  I do not consider Ms Chow’s criticism valid or persuasive. Madam T says “At the beginning of the month” and “every month before 5th”. In reading this exchange, I am not of the view that there is a retreat from a previous position. The Agreed Lists of Deposits (paragraph 73-74 above) shows that most cheques were either deposited on either the beginning of the month or the end of month, which is consistent with her evidence that they were made before the 5^th day of the month. Furthermore, Ms Chow’s cross-examination seems more on the irregularity of the payments than on the timing.

93.  Ms Chow also relies on the fact that in her affirmation and on day 1 of the cross-examination, Madam T accepted that it was the Deceased who would call PL up for lunch gatherings, yet she backtracked on this on day 2 saying that “sometimes it would be [PL] calling [the Deceased], usually that’s the case. In recent years, [the Deceased] did so less frequently” to make the point that Madam T would shy away from previous answers.

94.  In my view, this criticism is a non-starter. Madam T had already stated in her affirmation that “in general, the Deceased called [PL] to arrange for our regular monthly meet up and we were flexible in accommodating his busy business schedule”. PL’s calling the Deceased to arrange for the lunch gatherings would not be inconsistent with Madam T’s evidence; and the Deceased calling less in “recent years” is very plausible in the light of his declining health.

95.  Third, Ms Chow submits that Madam T’s answers were inherently incredible or outlandish for the following reasons.

96.  Ms Chow says on Madam T’s case, she would have received at least HK$37,875,000 (i.e. around HK$37m) from the Deceased from 1993 to 2020 calculated as follows: -

Period	Monthly Payment (HK$)	Total Payments (HK$)
1993 – 1994	30,000 to 50,000 for 2 years × 13 months	1,040,000
1994 – 2000	100,000 to 150,000 for 7 years × 13 months	11,375,000
2006 – 2011	100,000 for 6 years × 13 months	7,800,000
2011 – 2016	120,000 for 6 years × 13 months	9,360,000
2016 – 2019	150,000 for 4 years × 13 months	7,800,000
1.2020	500,000	500,000
Total:		37,875,000

97.  Ms Chow says that since payments totaling HK$6.28m were made by way of cheques (as seen from the Agreed List of Deposits above), payments totaling HK$31m would have been made by way of cash. She further says Madam T “maintains” that from 1993, she had kept HK$31m at home, even though she held several bank accounts with HSBC, Hang Seng Bank, and the Bank of China, and this is therefore inherently incredible or outlandish.

98.  Ms Chow also says Madam T’s answers were inherently incredible or outlandish because Madam T continued to doubt the Will on the basis that the “long-form signature” was not the Deceased’s, even though she was taken to it.

99.  In my view, these criticisms are untenable:-

a. Madam T never made the contention that she had kept HK$31m at home. During Ms Chow’s cross-examination of Madam T, Madam T gave the following answers:

“Q. Now, we calculated on your case that you say you would have received over $37 million from the deceased since 1993. Is that...

A. I didn’t make the calculation.

Q. Okay. Well, that you can leave to the lawyers, I think. We -- if I’m incorrect again, your counsel will correct me. And from your table here of cheques, it only comes up to around $6 million. So you are trying to get the court to believe that over 30 million cash changed hands throughout the years from the deceased to you and they just sat in your home and didn’t really find a way into bank statements or bank accounts.

A. Some has been deposit as cheque.

Q. Yes, 6 million. Okay, if that’s your answer, I’m fine with that. So I suggest to you this is incredible and this is your mere say-so for purposes of these proceedings.

INTERPRETER: Sorry, can you repeat the last part? I’m sorry.

Q. I put to you that this is incredible and this is only your mere say-so for the purposes of these proceedings.

A. What is incredible?

Q. The fact that so much cash has changed hands.

A. It’s true. He is in the casino business. He could earn some money and then he would give some to me, it is normal. That’s what he owed me, that’s what he said. He said he owed me and my daughter.”

b. As seen from the above, Madam T never “maintains” that she had kept HK$31m cash at home. Ms Chow’s suggestion that that Madam T had kept a total sum of HK$31m at home could only be on the assumption that Madam T did not spend any of the money provided to her by the Deceased. Clearly, this could not have been the case. It was never Madam T’s case that after the Deceased provided money to her, she kept all of it at home without spending it. In fact, the challenge during cross-examination was that over HK$30m cash changed hands, not that Madam T had kept HK$31m at home.

c. Having in mind the background, history and context of payments, I do not accept that over HK$30m changing hand is inherently incredible or sound outlandish. It should be borne in mind that this was done over the course of 27 years since 1993, which averaged out to $92,600 per month, and can be aligned with Madam T’s case considering that the gross amount spanned over a number of years.

d. As to Madam T’s challenge to the Will, after the exchange between Ms Chow and Madam T on the short and long forms of signature of the Deceased, Madam T had this to add: -

“Q. Okay, the next page. So the first line you see “Lxx Wxxx-Kxxxx”, the words. Okay, see that?

A. Yes.

Q. And then he revoked all former wills and this is the last will. Okay? And then the first paragraph he appoint daughter [AL], son [JL] and son [CL] as executors of his will. Right? And then at paragraph 3 -- sorry, paragraph 4 is how he settles his estate, flowing from paragraph 3, all his properties. And there you would see at the bottom, one share to [AL], one share to [EL], one share to [JL], over the page, one share to [FL] and lastly one share to [CL]. So it is given to the five children in equal share. Now, you accept you are not named here as a beneficiary.

A. For this document, of course it follows this document. When he wrote this, I was not there.

Q. So the answer to my question is, yes, you accept you are not named here as a beneficiary. In fact, we can all see for ourselves.

A. Yes, I accept that I am not a beneficiary here, but I do not accept that he did not put me in his will.

Q. The long form signature which you mentioned, you can see that on page 818.

A. It’s similar, but not exactly the same. I still got some cheques.

Q. So I am suggesting to you that, in January 2019, it is the clear evidence of [the Deceased] that his estate is to be given to his lawful children. I see you nodding. You need to speak so we have a record.

A. The will was written like that and I believe you act accordingly, but I think that a portion should be left to me for my living. He also didn’t put there that any portion should not be given to me or [PL], it was not written here. If a will was to be written, it should be written clearly.”

e. Viewing Madam T’s evidence as a whole, she did not seriously doubt the validity of the Will in itself or that it was made by the Deceased. Rather, her challenge was that provisions should have been made to her and it was unreasonable for him to have left nothing to her in his Will, hence the present application under the Ordinance.

f. Overall, I do not find Madam T’s evidence to be inherently incredible or outlandish.

100.  Fourth, Ms Chow says Madam T’s evidence was inherently contradictory. On the one hand, Madam T said that the Deceased told her he could not sign cheques from 2016 onwards, which conveniently explains why no further cheques were deposited into her HSB Current Account, but Madam T also claimed that (i) when stack of cash was given after 2016, it was bound by rubber band that came with the Deceased’s signature and a date, and (ii) the Deceased could just have given her a “cheque” if the Deceased wished to make a record and mark his decision to break up with her. Ms Chow submits that plainly, Madam T knew this was “nothing more than a front”, as confirmed by the Will and the “Forms for the New Authorised Persons” in November 2018 (which is a bank document granting power of attorney to some of the Deceased’s Legitimate Children to operate his bank account).

101.  In my view, there is nothing inherently contradictory in Madam T’s evidence:-

a. As rightly submitted by Mr Kwan, the Will (a one-off document) and cheques (which can get bounced if the signatures are “wobbly”) are different things for different purposes. The Deceased may have felt that he did not have the capacity to sign cheques and would rather pay cash to Madam T for her needs, but he may be able to sign other one-off documents like the Will and the “Forms for the New Authorised Persons”.

b. Furthermore, signature on a will does not require verification in the same manner as that required for a cheque.

c. Signing cheques are also different from putting a signature on a piece of paper tied with the stack of cash to be given to Madam T, the latter would not have the consequence of bouncing back in case the signature does not have the likeness as that in a bank record.

d. JL in his affidavit evidence says that the Deceased’s dexterity deteriorated only after 2019, and he was signing cheques up till then. But the Executors, clearly aware of Madam T’s contention as to why the Deceased paid her in cash after 2016, has failed to produce a single cheque signed by the Deceased after 2016.

e. As for Madam T’s contemplation that the Deceased could have signed a cheque to mark his wishes to not see her again, it might be better to quote Madam T’s evidence in full: -

“Q. And the last payment of $500,000, that is a big lai see, isn’t it? He didn’t tell you to spend it all in the next month and there would be some top-up.

A. He never said “大利是”.

Q. Okay, I can delete those words, but the same question will apply. So the last payment of $500,000, he didn’t tell you to spend it all in the next month, right? And he was not going to top-up.

A. If he had to have record, why didn’t he issue me a cheque? Yes, why didn’t he issue me with a cheque and make it clear that he wouldn’t see me again, he’s going to break up with me? Why did he have to make the trouble to give the payment to me on two occasions?

Q. There’s no need to get emotional.

A. I want to die now. If I am allowed to take a break, I would like to take a break. I am not feeling quite well actually.

Q. Now, I can assure you what my plans are. I do not have many more questions for you.

A. I hope that you will spare me and prevent me from getting….

Q. I understand. I am sure everyone in the Courtroom also know it is not my intention to make life difficult for you …”

f. Viewed in proper context, Madam T was saying this during an emotional outburst, and she was saying that the Deceased could prepare a one-off cheque to evidence the payment from him to mark his break up with her. Madam T was not testifying that the Deceased is physically fit to sign cheques. In any event, I find Madam T’s evidence of her contemplation of a counterfactual scenario immaterial to the determination of the issues in the present case.

g. Overall, I do not find Madam T’s evidence inherently contradictory in this respect.

102.  Fifth, Ms Chow relies on one of Madam T’s visits to the Deceased at the Baptist Hospital in December 2021 which Madam T recounted during cross-examination. Ms Chow submits that, during this visit, the Deceased recognised Madam T, Madam T said she was “thirsty” (頸渴) (understood as the Cantonese metaphor for “no money” (無水)), PL emphasized to the Deceased that he had not given money for such a long time, and the Deceased acknowledged that Madam T would be “thirsty” (頸渴).

103.  Ms Chow then says this exchange is significant, she opines that not only was the Deceased acutely aware of his own decision not to make any payments to Madam T for some years prior to his death (as per PL’s acceptance that his mental state was clearer in 2020 than in 2021), the Deceased maintained this decision in a lucid state of mind despite Madam T and PL making requests for money in the last few weeks of his life. Ms Chow submits that the Deceased’s decision to completely end any prior dependency arrangement (which was denied by the Executors) could not be clearer. The Deceased also did not suffer from any major illness (頑疾) till the end of his days, and his health was fine in 2020 and only started to deteriorate in early 2021. Ms Chow says the Deceased had simultaneously referred to the “thirsty” metaphor, thus acknowledging and confirming his decision to cease payments since January 2020.

104.  During cross-examination, Madam T recounted the visit to the Deceased in December 2021 as follows: -

“A. ...with what I was -- on the first night I visited him, he was sitting there, her feeding the medicine to him. The -- sorry, Wxxx Kx-lxxxx, the nurse, was not in uniform. He was in normal clothes and my daughter was there. She went there after work. So I was looking at him having his medicine, I did not disturb him. And then he -- actually, he was not really quite opening his eyes, but when he was opening his eyes, I said, “Kxxx Gor, Kxxx Gor”. And then Ms W, the nurse said, “Oh, 公公, upon seeing your moment, he immediately open his eyes”. So I let him finish his medicine. And with some difficulty, they helped him to his bed. And Ms W went out. She said, “I will give you some time to talk” and then I started to talk with him. When I talked to him, he smiled. And I said, “Kxxx Gor, how are you going?” And then his eye was shut and it was said that he was quite -- I said I was quite thirsty and my daughter also jokingly said “You didn’t give money for such a long time.” By “thirsty”, it is understood that because it has been a long time since I received any payment. Okay, originally, Ms W said the family doctor, Dr C or Dr W, said he was able to go back home after a week. I said, “Okay”, I was comforting him, saying that, “Okay, I will wait for you to get out of hospital”. On three consecutive nights, I went to visit him, but I didn’t cook him any food because Ms W, the nurse, said there are a lot of things that he couldn’t eat. She put something like pork rib congee in a glass jar for him, and after a few night has passed, then she -- when she get more familiar with my daughter, and then she said to my daughter “Can you ask your mum to bring us some small choy sum?” And then on every night we will prepare him something and soup for him to enjoy. I visited him three times.”

105.  Ms Chow then asked some follow-up questions on the exchange: -

“Q. So I was suggesting to you that when you visited him in hospital, in Baptist Hospital, that he was able to recognise you, right?

A. Yes, yes.

Q. So he remained mentally fit until the end.

A. I don’t know. He smiled like that.

INTERPRETER: As demonstrated by the witness.

Q. Yes, so he recognised you and gave you a smile. That shows signs of recognition.

A. At that time his circumstances was like that.

Q. And indeed you just told the court that you and [PL] asked him for financial support, referred to the fact that he has stopped paying you for a long time and yet he did not make any further payments.

A. We were trying to make him happy by talking about that, being thirsty. And I know that when he is in the hospital, he got no money.

Q. Well, but you mentioned the fact that you had no money for a long time from him, “頸喝”, using the Cantonese pun for it.

A. Well, thirsty, you need to drink. So thirsty, we need to drink, that’s what was said. So if you become thirsty, you have to drink.

Q. Yes, I understand, “水” in Cantonese...

A. At that time, I didn’t know that, I thought that he wanted to drink water, but it ended up, “Oh, no. Oh, he’s thirsty”.

Q. So, I suggest to...

COURT: Sorry, can I just clarify again, “頸喝要飲水” 係佢講定妳講”, who said it?

A. We almost said it at the same time. “頸喝飲水” is the thing that he would...

COURT: Is it simultaneously -- almost simultaneously?

INTERPRETER: “Almost at the same time”.

A. As what was said between us during the past decades, well, so when he gave me the money, he would say, “I know that you are thirsty, I’m now giving you some water to drink.”

Q. Now, this is not what you first said to the court in your long discourse. I read out my record of it. You say, “I said, ‘Kxxx Gor, how is it?’ I said I was quite thirsty and my daughter [PL] joked and said, ‘You haven’t given money for such a long time’.” So it is you and/or [PL] who mentioned this thirsty joke.

A. She wouldn’t say to him that there has been a long time since the payment was received from him. We were just saying something to make him happy and we just entered the room for just a while.

Q. So I suggest to you again that this episode shows the deceased is mentally fit till the end of his days and despite your or [PL]’s request for any payment, he made it patently clear he is not interested in giving you any further money after that last meeting in January 2020.

A. No, no, disagree, disagree. I -- we -- it was not me and [PL] asking him for money. We didn’t request him for money.”

106.  It appears to be Ms Chow’s submission that as the Deceased was lucid, recognized Madam T, and yet made no payment to her as “patently clear that he is not interested” in giving her money since January 2020. Having regard to the totality of the evidence above and the exchange between Madam T and Ms Chow, I am of the view that it is stretching the evidence too far to say that the Deceased had acknowledged and confirmed his decision to cease payments since January 2020 from this incident:-

a. As stated by Madam T in her evidence, neither Madam T nor PL was asking or requesting for money in the exchange. In any event, they must both know that the Deceased would not have money with him at the hospital. The exchange and the mentioning of being “thirsty”, although in part related to the fact that the Deceased had made provisions to Madam T and PL, sounds to me nothing more than banters or a long-standing jest between them.

b. Instead of “acknowledging” or “confirming” a decision to cease payment, the responses given by the Deceased was at best equivocal. When Madam T talked to him, he smiled, and when Madam T and PL were bantering about thirsty and have to drink water, the Deceased went along and almost said it at the same time. Had the Deceased wished to “confirm” any decision to cease payments, he could have replied with something more affirmative and direct. From the exchange, I am unable to conclude that there was any acknowledgment or confirmation of a decision to cease payments.

c. Further, if the Deceased was not maintaining Madam T, this joke or bantering would simply not exist, this exchange therefore shed some light on Madam T’s claim that she had been maintained by the Deceased.

107.  In summary, I am of the view that Ms Chow has failed to challenge Madam T’s evidence and as a witness. I accept Madam T’s case having regard to her overall evidence and her demeanour in the witness stand.

Calling of Witnesses

108.  Ms Chow also argues in her closing submissions that adverse inference should be drawn against Madam T for failing to call the following suite of potential witnesses, even though there is no suggestion that any of them are unavailable or unable to testify in Court:

a. MN, the waitress at DLS, or other employees of DLS, as they purportedly witnessed the Deceased giving cash payments to Madam T.

b. BT, son of Madam T and TP, as he allegedly witnessed the Deceased giving cash payments to Madam T, and that he was incapable of supporting Madam T financially.

c. The day and night nurses taking care of the Deceased when the Deceased was hospitalized, namely Cx and one Madam W, who purportedly witnessed Madam T prepared or purchased food for the Deceased at the Baptist Hospital.

d. SC, the driver of the Deceased (“SC Driver”), who allegedly drove the Deceased to the monthly lunch gatherings with Madam T.

e. FL, with whom, according to PL, had formed a “tight sisterhood”, to establish the strong ties between PL and the Deceased.

109.  The legal principles for when it is permissible to draw adverse inference against a party for failing to call a particular witness is well-settled. In Wisniewski v Central Manchester Health Authority [1998] PIQR 324, 340, Lord Brooke LJ derived the following principles:

“(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reason for the witness’s absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”

110.  In Tjang Siu Thu v Profield Construction Engineering Ltd [2015] 5 HKC 22, the Court of Appeal held at [33] that:

“33. The following propositions can be derived from the case law:

(i) the Wisniewski principles do not constitute a presumption; consequently, the mere failure of a party to call a witness does not automatically confer an evidential benefit on the opposing party;

(ii) the Wisniewski principles concern the drawing of inferences and whether any inference is drawn will depend upon the quality of the primary facts on which the inference is based; this is necessarily a fact sensitive matter and will vary from case to case;

(iii) the primary facts must allow of the inference to be drawn in the sense that the inference logically flows from those facts;

(iv) in the circumstances of the case the judge must be persuaded that it is appropriate to draw the inference; and

(v) one circumstance where it will not be appropriate to draw the inference is where there is an explanation for the party’s failure to call the witness.” (emphasis added)

111.  In YWS v SJ [2025] HKFC 10 at [38], HHJ Elaine Liu reviewed the above line of authorities and summarised as follows:

“38. As discerned from the above authorities, there are at least two matters to be satisfied by the court before an adverse inference is drawn by reason of a party’s failure to call a witness, viz.: (1) there is some evidence that establishes a primary fact on which the witness is expected to give evidence, and the primary fact can logically give rise to the inference; and (2) there is no explanation for the party’s failure to call the witness. With respect to the latter, the party against whom the adverse inference is to be drawn should be given an opportunity to explain why that witness was not called to testify. If there is some credible reason for not calling that witness, the court should refrain from drawing the adverse inference.” (emphasis added)

112.  In Phipson on Evidence (20^th Ed), the learned editors noted at [45-35] the following:

“The court may be entitled to draw adverse inferences from the absence of a witness who was available to and might have been called by a party. However, the court does not usually do so, not least because there may be all sorts of reasons why a particular witness is not called and one usually cannot be confident to infer what the witness would actually have said. Further, in general it is for a party to choose which witness he wishes to call and there is no property in a witness, and in the case of a witness in the jurisdiction the opposing party can seek to compel a witness’s attendance by means of a witness summons.

It is in a comparatively small number of cases that it would be appropriate to draw an adverse inference, but where it is sought to do so, the party inviting the court to exercise such a discretion must:

(1) Set out clearly (a) the point on which the inference is sought and identifying the inference sought; (b) the reason why it is said that the missing witness would have material evidence to give on that issue; (c) why it is said that the party seeking to have the inference drawn has himself adduced relevant evidence on that issue; and (d) why the party seeking the inference could not himself be expected to call or witness summons the witness.

(2) Explain why such inference is justified on the basis of other evidence that is before the court.”

113.  Having regard to the above principles, I am unable to agree with Ms Chow to draw adverse inference against Madam T for the following reasons:

a. In respect of SC Driver and FL, Madam T had not been asked why they did not give evidence for her at the trial, so she was not given the opportunity to explain why she did not call them to testify.

b. Mr Kwan also says that the Executors had not asked why Madam T did not ask BT to testify for her. However, upon checking the Court’s records, the Executors did put forward to Madam T their case that the fact that BT was not called as witness was because if BT did, it would not support her stance in these proceedings Madam T was afforded the opportunity to explain, and she did; I am of the view that Mr Kwan’s submission does not apply in the case of BT.

c. As for MN, the waitress at DLS, she did provide a signed statement which is attached to Madam T’s first affidavit, citing what she saw of the Deceased and Madam T and PL at lunch and handing over of cash from the Deceased to Madam T. This was not a witness statement nor was she called as a witness for the hearing; so I am limited in how much weight I place on this statement. Ms Chow did cross-examine Madam T as to why MN was not called, Madam T gave her reasons; and I also accept her reasons.

d. The Executors, being the party inviting the Court to exercise such a discretion, did not explain or even seek to explain why they themselves did not call the witnesses. This is especially so in the case of SC Driver (who, according to JL, was still working with the Executors’ family at the time of the trial) and their own sister FL (but who, according to JL, would say things that the Executors would disagree so they would not put so much weight on what she said) and in the case of the nurses (who were employed by the Executors’ family).

e. I do see some force in Mr Kwan’s submissions that the Executors’ approach would require litigants to ballon a trial to disproportionate lengths. If the Executors’ complaint was valid, the same complaint could be made of them for not calling AL (who is one of the Executors herself), EL, or FL to corroborate with the Executors’ case. CL also stated in his affidavit that their domestic helpers and the Deceased’s private nurses were all aware of the Deceased’s concerns for his finances, which formed a pillar of the Executors’ case, and that it therefore follows that the Deceased wanted to cut off ties with extramarital relations. The Executors do not appear to feel the need to call those private nurses or domestic helpers to testify.

f. The fact that a party may be able to call a number of witnesses to testify on a certain factual issue does not necessarily oblige him to call each and every one of them under the sanction that adverse inference will be drawn against him for his failure to do so: Wong Pou Yin Kennie v Maxim’s Caterers Limited (unrep., HCPI 753/2009, 11 May 2012) at [20].

114.  In the circumstances, I am not persuaded that it is appropriate to draw any adverse inference against Madam T on this argument.

Additional Evidence at trial from the Applicant’s case

115.  In the middle of the trial, Mr Kwan handed up certain screenshots of what appears to be the nurses ignoring messages from PL in around 2023. Mr Kwan relied on Lam Kong So v Air Conditioning Limited [2024] HKDC 1510, and submitted that those were made for voluntary disclosures, but not as evidence of the trial. He emphasised that the purpose of producing screenshots were so not to have the Court be misled. Ms Chow submitted that Mr Kwan was relying on this particular piece of document in response to points the Executors will make, and in that respect it was not a voluntary disclosure, and leave must be obtained from the Court for use of the document.

116.  Having heard counsel’s submissions, I agree with Ms Chow and held that the screenshots were not admissible. I have not taken them into account in the analysis above.

F2.2 PL

117.  PL has made a total of 3 affirmations. She gave oral evidence on 11 and 12 February 2025.

118.  PL was born out of wedlock in June 1977 and was brought up by Madam T solely after she parted ways with the Deceased in 1983. There are photos in evidence of the Deceased taken with PL when she was little. She reconnected with the Deceased in around 1993 when Madam T brought her to meet with him when she was around 16 years old. The Deceased had since played a consensual parental role in her life. Photos were produced by Madam T and PL taken over the years, and more specifically in 1994, 2007, 2011, and 2018-2019. Although her parents rarely maintained any direct contact from 1993 to 2006 owing to Madam T’s ongoing relationship with TP, they resumed regular contact after TP passed away in 2006, and started having meals together regularly.

119.  According to PL, the Deceased had been providing Madam T with continuous financial support since they reunited in 1993. During their first father-daughter date back in 1993, the Deceased brought PL to J Kitchen in Central, and provided her with a stack of cash in the total sum of HK$1 million which the Deceased told her to pass to Madam T. The Deceased always provided PL with cash of HK$30,000 to HK$50,000, and reminded her to only keep HK$5,000 for herself and to give the remaining balance to Madam T. Since Madam T resumed regular contact with the Deceased, he paid her directly every time they had lunch together up until their last meet up in January 2020, which was shortly before the outbreak of COVID-pandemic in Hong Kong. That was the last occasion when the Deceased, Madam T and PL had lunch together as a family.

120.  She further confirmed that she was present at the lunch gathering with her parents in around end of 2016 when the Deceased told Madam T that he would start paying Madam T financial maintenance in the form of cash as he was physically unfit to sign cheques, and she also witnessed the Deceased paying cash to Madam T in all subsequent lunch gatherings.

121.  PL stated that CL informed her of the Deceased’s admissions to hospital in June 2020 and April 2021, and further provided details to facilitate her visits to the Deceased in April 2021. She had forged a tight sisterhood with FL from the beginning of 2021 up until the present claim. They supported each other during the toughest times when the Deceased’s health deteriorated. She had frequent contacts with CL, FL, and the Deceased’s nighttime and daytime caregivers with respect to the Deceased’s conditions when the Deceased was hospitalised, as evidenced by a vast number of WhatsApp messages put into evidence.

122.  After the Deceased passed away, PL attended his funeral and participated in the closed ceremony of laying ashes to rest (上位儀式) (termed “embossment” in her evidence) in April 2022.

123.  PL stated that the Deceased had never expressed to her and Madam T about any financial difficulties he was facing in their regular lunch gatherings when he provided Madam T with maintenance, and it never occurred to her that the Deceased had any financial concerns. In 2019, the Deceased still assured Madam T that he would have her medical and living expenses covered and told Madam T not to be worried about her finances. Neither CL nor FL mentioned that the Deceased had any concerns over finances in their conversations with PL as well.

124.  PL also confirmed that save for their visits to the Deceased when he was hospitalised, neither she nor Madam T had requested to meet up with the Deceased since their lunch gatherings were suspended in January 2020 because of safety concerns and the strict social distancing measures implemented across Hong Kong as a result of COVID-pandemic. It also never occurred to PL and Madam T that they should visit the Deceased at his residence as they thought it would be inappropriate to do so with Madam L residing at the property. She says that Madam T did not request for financial support from the Deceased since the suspension of their lunch gatherings, and completely understood that the Deceased may not feel comfortable asking the Legitimate Children to pay maintenance to his former mistresses on his behalf, as such Madam T and she never requested the Deceased to do so.

125.  PL set up “PT” (“PT Shop”), a small scale retail business in 2014 with a small shop in Sheung Wan. PT Shop operates under the company (“FSMGL”) of which PL was the sole director and sole shareholder. At the beginning, the business did not generate enough profit and she stayed at a full-time job in a jewellery company until around 2018 before she worked full time at PT Shop. Her business was struggling for a long period of time; first hit by the social unrest in 2019, and then the COVID-pandemic. She was forced to close down the shop in Sheung Wan as she was unable to afford rent due to low business turnover, however, she did open two retail shops at the Landmark and at Elements amidst the COVID-pandemic as she was offered attractive concessionary tenancy rates there.

126.  According to FSMGL’s report and financial statements for the year ended 31 March 2022 signed by PL and its computation of liability to profits tax for year of assessment 2021/2022, FSMGL made a profit of HK$230,507 for the year ended March 2022 but recorded an accumulated loss in equity of HK$5,951,960. PL explained that the profit of HK$230,507 was attributed to various government measures during the COVID-pandemic and write-off in equity loss.

127.  FSMGL’s report and financial statements for the year ended March 2022 also recorded an amount due to PL in the sum of HK$5,403,940, which PL explained was money injected into PT Shop, and more than HK$4 million was gifted by the Deceased as a gesture of support when PL founded PT Shop. During cross-examination, she elaborated that the Deceased gave her HK$1.5 million by the end of 2013, and another HK$1.5 million by the end of the first quarter of 2014. The Deceased also covered PT Shop’s rent in sums totalling HK$800,000, and sums of HK$100,000 in around late 2014 or early 2015 as gifts from the Deceased to support her. She confirmed under cross examination that the Deceased had funded her business. The amounts were given to her in form of cheques from the Deceased leaving the payee blank for her to fill in. PL stressed that these gifts to support her business were distinct from the maintenance given to Madam T.

128.  In FSMGL’s unsigned report and financial statements for the year ended 31 March 2023, FSMGL made a profit of HK$32,536 for the year ended March 2023 and recorded an accumulated loss in equity of HK$5,919,424. PL explained that the profit had taken into account of government’s subsidy in the sum of HK$72,000.

129.  BT was one of the founders of and worked at PT Shop. He used to be paid a monthly salary of HK$22,000. He stopped working at PT Shop since October 2023.

Analysis

130.  In their closing submissions, the Executors criticised PL as “unreliable, opportunistic, self-serving”, who “refused to answer straightforward questions put to her and gave baseless answers”: -

a. However, the Executors are unable to pinpoint which part of or illustrate how PL’s evidence were “unreliable, opportunistic, self-serving”. No examples were cited to support these comments on her evidence. In any event, that is not the impression of the Court when evaluating PL’s evidence.

b. As to PL’s refusal to answer straightforward questions put to her, the Executors gave the example of her disagreeing that SC Driver could have delivered cash to B Court even when told the Applicant agreed “without a clear reason why”.

c. The exchange between counsel and PL went like this in this respect:-

“Q. And your mother also accepted if the late [the Deceased] wanted to give her anything, he could have dropped it off with [SC Driver], the driver, to give to her.

A. For that, I do not know whether or not she accepted it. I was not here listening to it. I do not know what she answered.

Q. My question is not whether you know of this. I am asking you whether you would agree with this proposition.

A. The proposition being the...

Q. Being what your mother accepted that if the late [the Deceased] wanted to give her anything, he could have dropped it off with [SC Driver], his driver, to give it her.

A. I disagree.

Q. So you disagree that the late [the Deceased] can ask his long-term driver to run errands and drop off items with your mother?

A. I disagree. It was not that easy to arrange.

Q. Well, the long-term relationship is supposed to be between the late [the Deceased] and your mother. So I suggest to you that there is no basis for you to disagree with what –– your mother’s assessment of how items can be passed around between that couple, her and the late [the Deceased].

A. Why are you asking me that then, okay, if I don’t have a basis to answer that?

Q. I don’t need to explain why. I think it is in fairness to you.

A. But without that, I don’t know how to answer. Then you ask me and then you are saying that I don’t have a basis to answer.

Q. You can just agree or disagree, all right? You can just agree or disagree.

A. Disagree.”

d. From the above, it is clear that PL did give an explanation that “it was not that easy to arrange”. After this answer, it was immediately followed by Ms Chow’s comment that PL does not have a basis to answer the question or agree/disagree with what Ms Chow says of Madam T’s evidence. In this regard, I accept Mr Kwan’s closing submissions that using proxies to send money is “unreal” as the Deceased’s extramarital affairs are taboo subjects in the household, and that since SC Driver serves other family members too, it is not feasible or practicable to ask him to do the errand.

e. In the premises, I am not prepared to accept the Executors’ criticism of PL’s evidence in this respect.

131.  During cross-examination and in the Executors’ closing submissions, the Executors made a half-baked challenge of whether PL was actually of the Deceased’s blood, given that she was born in June 1977 and should have been conceived around September to October 1976, but the Deceased left Hong Kong for Canada in mid-1976. The Executors did not elaborate how this point could take their case any further. In any event, PL’s birth certificate dated XX January 1979 stated unequivocally that the Deceased was registered to be PL’s father, and it is clear from the evidence that the Deceased treated PL as his own; I do not see how their blood relationship would have any bearing on the outcome of Madam T’s application.

132.  The Executors also submit that in answer to the suggestion that “given [the Deceased’s] good health and spirit, in the entirety of 2020, the fact that he did not continue payment to your mother, demonstrates a very conscious decision to cease financial support”, PL answered a resounding “Yes”. The Executors relied heavily on this answer in their closing submissions to make the point that the fact that the Deceased had not paid Madam T for the entirety of 2 years is unequivocal conduct that ended any prior relationship of dependency.

133.  It is my view that the Executors have failed to look at PL’s evidence in the round in making this submission. According to the Court’s record, when Ms Chow first made such suggestion to PL, she disagreed:

“Q. So I suggest to you the fact that there was no further payment after the so-called last meeting in January 2020, it’s mister – it’s the late Mr L’s clear intention to stop all payments to your mother, agree or disagree?

A. Disagree.”

134.  When Ms Chow put forward the same suggestion again later in the course of her cross-examination, although PL did say she agree with the suggestion, it came with the following explanation that there was COVID-pandemic restrictions at that time:

“Q. Okay. So I suggest to you that in his good health and spirit in the entirety of 2020. The fact that he did not continue with any payment to your mother demonstrates a very conscious and clear decision to cease this financial provision relationship, if any, agree or disagree?

A. Agree, but unfortunately, the social distance was restricted, and for elder people, everybody had to carry on carefully. So this is another limitation and restriction that we are not able to see each other. This is the government rules we’re talking about.”

135.  Mr Kwan then interrupted and raised his concern that because the questions and answers were jumping in between English and translation, he was not sure if PL actually grasped the import and that represented the true evidence. He voiced his concern against any argument that “technically, she said agree” would form the basis of submissions. This Court then asked Mr Kwan to conduct re-examination if appropriate, and reminded the witness to wait for the translation of the question to be completed before answering the question to avoid any confusion.

136.  Later, when the Executors put forward the same suggestion for a third time, PL disagreed:

“Q. Now, focusing back on these WhatsApps. So it looks like there were two times in April 2021 that food was arranged to be given to the late [the Deceased]. And he was also made aware that it came from you and your mother. It is obvious that notwithstanding his knowledge, he did not ask to resume contact or make further payment to your mother, correct?

A. It’s hard for me to say. I couldn’t answer because I don’t know. You can say so.

Q. And so it is also obvious his decision to cease contact and payment after the so-called last meeting in January 2020?

A. Disagree.”

137.  From the above, considering PL’s evidence in its entirety, it is clear and unequivocal that her evidence was that she disagreed that the Deceased had made any intentional “decision” to cease contact with or payment to Madam T and/or PL. Ms Chow pointed out that the Court’s suggestion that the point be taken up in re-examination was not followed through. In my view, having regard to PL’s subsequent answers, it was not necessary for Mr Kwan, and he was right that he did not feel he needed to re-examine the witness on this aspect given the unequivocal stance and evidence of the witness.

138.  I find PL to be a credible witness and accept her evidence and in her corroboration of Madam T’s case; I also disagree with Ms Chow’s criticism of her evidence.

F3. Evaluation of the Respondent’s evidence

139.  The Executors’ case rests heavily on inviting me to accept that the Deceased had made a “conscious decision to cut ties” with Madam T. The following is my evaluation of their evidence.

F3.1 JL

140.  JL has made a total of 4 affidavits. He gave oral evidence on 12, 13 and 14 February 2025.

141.  JL’s evidence as contained in his affidavits, insofar as they are relevant or material to the issues in these proceedings, are summarised as follows. The following are largely adopted from his affidavits.

142.  In the early 1950s, the Deceased married Madam L. As stated above, they had five children out of their marriage, including the Executors. Madam L passed away in December 2021, and the Deceased in January 2022.

143.  All the Legitimate Children were close to the Deceased, they lived in close proximity to the Deceased’s home, saw the parents daily, maintained close relationships and regularly share meals.

144.  Madam L and the Legitimate Children all along knew about the fact that the Deceased had a number of mistresses or girlfriends over the years, as well as the children he had out of wedlock with his mistresses. Some of the Legitimate Children were on friendly and cordial terms with them, and had also met one or more of the Deceased’s girlfriends over the years.

145.  The Deceased remained mentally lucid and alert up until his death, but since around 2019, the Deceased’s dexterity deteriorated, and it became more difficult for him to sign cheques or documents. Therefore, since 2019, the Deceased handed over most of his finances and accounts to be handled by JL or his siblings, although he maintained certain control over his financial matters. JL in particular, would help the Deceased handle the payments on his instructions and according to his wishes; and as his eldest son, he had been more involved in the Deceased’s business dealings, financial and personal matters as his right-hand man, and therefore to a larger extent than the rest of his siblings.

146.  Madam L was well aware of and tolerated the Deceased’s mistresses or girlfriends. Over the years, as was known to all of JL and his siblings, the Deceased went out for meals and shopping with his mistresses and girlfriends and his Other Children from time to time.

147.  Generally, the Deceased’s long-term driver, SC Driver, would drive him to meet with his mistresses or Other Children (including the lunch meetings with Madam T and PL).

148.  Nonetheless, the Deceased was much closer to his married family than any of his Other Children or mistresses. The Deceased was kind to his Other Children and did not favour any one of them in particular.

149.  By around late 2018 to early 2019, the Deceased was almost 90 years old, and had become weaker physically, requiring higher levels of medical and healthcare expenses. However, the Deceased remained mentally alert and lucid, and was generally active. He would exercise, read, practise calligraphy at home, and have lunch appointments with his friends, staff, mistresses or girlfriends.

150.  Given that the existence of the Deceased’s Other Children and mistresses was known to the family, JL says that the Deceased also wanted to settle his succession planning clearly, so as to avoid any disputes amongst the family or with his other mistresses or Other Children.

151.  After discussion with Madam L and JL’s siblings, the Deceased decided to make his last Will in January 2019, setting out his wishes unequivocally as to the disposition of his assets. The Deceased appointed three of his children as Executors, with the Legitimate Children being the five beneficiaries of his estate in equal shares. According to JL, the Deceased also made a “conscious decision” (as elaborated below) to cease any spending on extra-marital associations before he passed away.

The Deceased’s handing over finances and affairs to JL and his siblings

152.  In November 2018, the Deceased signed forms for new authorized person with Hang Seng Bank (“Forms for New Authorized Person”), authorising AL, CL and JL to operate the Deceased’s main bank account at Hang Seng Bank (Account No.: 286-233XXX-XXX) (“the Deceased’s Main Bank Account”).

153.  JL says it was only by around the end of 2019, when the Deceased’s hands were unstable, it became difficult for him to sign formal documents or cheques.

154.  The Deceased also gave JL the key to his safe at home (where the Deceased kept his cash and valuables), so that JL could handle his financial affairs going forward.

155.  In February 2021, the Deceased further asked AL, CL and JL to open joint accounts in the name of the three of them with Hang Seng Bank, into which the Deceased would transfer funds from the his Main Bank Account as gifts or maintenance for their families and for their family’s household expenses to ensure that they would be provided for.

The Deceased’s increasing expenditure and decreasing income

156.  JL says that even before the COVID-pandemic, the Deceased would tell him from time to time that he was worried that there would be insufficient funds to look after the family.

157.  Since around 2019 up until the Deceased’s passing in January 2022, his need for medical nursing care spending increased substantially, as well as the expenditure required for Madam L’s medical and healthcare.

158.  The Deceased was also responsible for management fees for the Deceased’s home and where the Legitimate Children reside, as well as other household expenses and salaries for staff. According to JL, the annual household expenditure incurred by the Deceased increased from around HK$4.52 million in 2019 to HK$9.78 million in 2021.

159.  The substantial rise in the Deceased’s medical and household expenditure coincided with the COVID-pandemic, which seriously affected and caused huge losses to the Deceased’s casino business in Macau, and as a result he had to close down in March 2021 after months of losses.

The Deceased’s “conscious decision to cut ties”

160.  During cross-examination, Mr Kwan questioned JL extensively on the Deceased’s “conscious decision” to cut ties. The following are some relevant paragraphs taken from his affidavits.

161.  In his 1^st Affidavit, JL deposed that:

“8.4 Father’s financial position worsened since 2019, which was exacerbated after January 2020 given the impact of Covid on the gaming industry. He had made a conscious decision to reduce spending significantly in the last few years of his life, including on any associations/ children out of wedlock. The Will beneficiaries and our mother were the only ones who Father supported until his death. Each Will beneficiary has varying degrees of financial needs …

…

36. After discussion with Mother and my siblings, Father decided to make his last Will in January 2019, setting out his wishes as to the disposition of his assets unequivocally. Father appointed [AL], [CL] and me as his executors, with the five children of our family being the five beneficiaries of his estate in equal shares.

37. It is plain and obvious that Father intended his assets to be reserved for and inherited by his legitimate Children. As elaborated below, Father has also preserved and prioritized his dwindling resources in the last few years of his life for his married family only. Father made a conscious decision to cease any spending on extra-marital associations (including the Applicant) and the Other Children years before he passed away. …”

162.  In his 2^nd Affidavit, he deposed that:

“17… Put to the highest, the Applicant is but one of many former mistresses of Father whom he made a conscious decision to cut ties with around the time when he made the Will, and whom he had not seen nor contacted for at least 2 years prior to his death”

163.  Under cross examination, when he was asked when such “conscious decision” was made, JL related the timing of visits made by two of his Other Children:

“Q. Okay, father made a conscious decision, do you understand the word “conscious decision”?

A. Yes, he know what was happening.

Q. Okay, so he made the conscious decision, do you know when the conscious decision was made?

A. So since [the two Other Children] proposed to visit him, and he refused, because every time when they come over, so from my elder sister I learned that, every time when they came over, $1 million had to be paid to them, for them to come over, so he hasn’t got any money, so that’s what I thought that he did.”

164.  When asked a second time, he added that the timing also related to visits made by one ChL:

“Q. Now, So let’s just be more precise, right, when you say father made a conscious decision to cease any spending on his extramarital associations. Okay, two questions, okay? Question one first. When, exactly when did father make this conscious decision?

A. In the last one or two years, he passed away in 2022, he was like that in 2019 already? There is a [ChL], a goddaughter. Every time when she came to visit, $300,000 would be paid to her. But in the last few months, before his passing, we didn’t see [ChL]. Maybe he didn’t want to pay her anymore.”

165.  When he was asked to clarify if the Deceased had made the “conscious decision” at a particular moment, or if the Deceased had made an express communication to him on the “conscious decision”, JL kept stressing that the Deceased had felt that he was running out of money based on his own observations:

“Q. So okay. I saw your answer just now. But let me try again, okay? Father’s conscious decision, was that a moment in time when he announced the decision? Or as you said, it is a kind of like, over the past two years, it comes and goes, and it is a fluid state. What is it? Is it a decision that is made in one point in time or not?

A. According to my observation, he always felt that he was running out of money. Why would he give any money to anyone?

Q. Yes. That makes sense. So I will explore that later, but can you bear with me first? So can I settle this? There has not been an announcement, or any sort of express communication to you, that father says, ‘I am going to cease financial assistance, or financial maintenance to anybody else.’

A. He didn’t have to say that. Over that one year, he always said that we were running out of money, asking us not to spend on this, not to spend on that, to save some more money. He was very generous when he was saying something like that, you knew.”

166.  He said that when he stated in his affidavit that the Deceased made a “conscious decision to cut ties”, he meant breaking off of relationship:

“Q. Okay, now, but let’s examine this a bit in more detail. Can you explain your understanding of the English words, “cut ties with”. What is meant by those three words?

A. Separate to cut off the relationship.

Q. What does that entail? What does that involve, for example, right? Say, stop talking, stop associating, stop meeting up, 絕交, right? Totally stop.

A. Dad like what Madam T has described, was a loyal man. There being so many women, my mum also reminded him to be clear, to cut ties, so do not associate with them, do not leave the trouble to children to deal with.

Q. I know, I see what you mean. I’m asking you, when you say father made a conscious decision to cut ties with the applicant, okay, what do you mean by cutting ties? Does it mean not to talk to the applicant? Does...

A. To break off the relationship.”

167.  JL agreed that if he were to cut ties with people, he would ignore, not to contact, or try best not to see or meet up with people who he had cut ties with.

168.  When asked a third time about the timing of the “conscious decision”, JL referred again to the financial stress of the Deceased:

“Q. Okay, now your evidence is father had cut ties with his extramarital associations, including the applicants, okay?

A. That’s what I believe.

Q. Okay, when was that conscious decision made?

A. It was when he kept asking, kept telling us that we were running out of money, and when he was asking whether or not we were selling his flat.”

169.  Further, it is also JL’s evidence that prior to these proceedings, he did not know about the existence of Madam T:

“Q. Okay. So when did you first learn about Madam T?

A. When they sue us, I only found out when we were sued.”

170.  It is also his evidence that he did not even know PL was Madam T’s daughter prior to these proceedings:

“Q. Okay, so in this particular decision to cut ties, father did not mention Madam T by name, right?

A. All along, until I didn’t even know that [PL] was the daughter to Madam T, I only know that it was Madam T who was suing us.”

171.  When questioned by Mr Kwan that how the Deceased would cut ties with Madam T, JL responded in English, “My dad has no money and dying soon. You think he cares?” and said that the Deceased would just ignore her.

172.  A few questions and answers later, Mr Kwan asked if JL knew when or how the Deceased and Madam T broke up, or if anyone told him how Madam T and PL reacted when there was such a break-up, to which JL responded “no”:

“Q. Okay, now, since we’re on the topic of break-up, I’ll just ask whether you know all this, right? You said he made a conscious decision to break up. 斷絕關係, okay? Now, do you know when or how they broke up?

A. No.

Q. Did anyone tell you how Madam T reacted when there was a break-up?

A. No.

Q. Did anyone tell you or do you know how [PL] reacted to this break-up?

A. No.”

173.  JL said there was no need for him to know about the Deceased’s relationship with Madam T, because Madam T was not his mother and the most important thing was his mother:

“Q. You also don’t have a single clue as to your father’s relationship with Madam T.

A. There is no need for me to know.

Q. Exactly. You don’t even care.

A. Yes. Because she’s not my mother, the most important thing is my mother.”

174.  During the cross-examination of JL, Mr Kwan also played some voice messages sent by PL to FL on WhatsApp when the Deceased was hospitalized, asking FL to pass along to the Deceased. In one of the voice messages recorded on 22 March 2021, PL expressed hope that the Deceased would get better so that they could have meals again at DLS:

“Hello 老竇，你乖乖地要食多啲嘢同埋瞓好啲呀，你快啲遲啲精神啲，你仲要同我去[DLS]度食飯㗎。你好耐冇同過我食飯啦。我知道阿 [CL]、三家姐有睇住你嘅，但係你自己乖啲，知唔知道呀吓？我好掛住你呀，你快啲精神啲呢、好啲你要再同我食飯㗎，我哋去[DLS]嗰度呀，好冇呀。”

175.  FL agreed to pass on the message. Mr Kwan asked if this message would make sense if the Deceased had already cut ties, JL suggested that the Deceased might be still considering whether to cut ties or not. When Mr Kwan suggested to him that all of these was JL’s guesswork, JL responded that “everyone is making a guess”:

“Q. And also let’s play with the idea, if there was a cutting of ties, okay, like you said between father and Madam T and [PL], okay? Do you think this message from [PL] would still make any sense?

A. Well, I think it makes sense on her part, but I don’t know whether my father’s condition was maybe he was thinking about cutting ties or considering how to do it. Of course [PL] wanted to see my father, but maybe that was the period that he was still debating how to do it or whether or not to do it. Maybe that was his intention, that was what I thought, that was what he wanted to do.

Q. So maybe you would agree with me, yesterday I was right to say that when you say father had a conscious decision, really that was your guesswork, so I was right on that.

A. I think everyone is making a guess, whether or not he wanted to cut it or not cut it or when to cut it, or whether or not he would cut it.”

Analysis

176.  Based on his affidavits and his answers during cross-examination, it appears that the Executors’ theory that the Deceased made a “conscious decision” to cut ties with Madam T rested on two limbs:

a. First, the Deceased was not doing well financially in his final years and wished to stop spending money on extramarital families.

b. Second, according to JL, there was an alleged conversation between his mother Madam L and the Deceased in 2018 or 2019, when Madam L told the Deceased off for not having finished cutting off all extramarital women and children, and warned the Deceased not to leave any troubles for his children (“Alleged Conversation”).

177.  As regards the first limb, I am not satisfied that the evidence of JL supports such case theory:

a. First, there is no evidence to support the contention that there is a connection between lack of financial resources and cutting of ties here. Even if the Deceased was not doing well financially during his last years and had to preserve his dwindling resources, it did not necessarily lead to a “conscious decision” of cutting off ties with extramarital relations including Madam T.

b. Second, it was JL’s own evidence that he did not know Madam T prior to these proceedings. It follows that he would not have known whether the Deceased had made a conscious decision to cut ties with Madam T in particular.

c. Third, as also frankly admitted by JL under cross examination, most of what he said are purely guesswork, as “everyone is making a guess”. The contention that the Deceased had made a “conscious decision” to cut ties with Madam T was nothing but a surmise that rested on no solid foundation; and JL’s evidence is not able to support this contention.

178.  As regards the second limb, the Alleged Conversation first came about in the course of Mr Kwan’s cross-examination of JL:

“Q. Okay. So can I suggest -- can I see if I understand it right? So you are saying, right, what your understanding is, is that father made a conscious decision, right, to stop payments to all the people around him, which can include women that he knew.

A. Should be. My interpretation is probably like this. He was trying to stop all of them. So, so I think he was trying to -- he was trying to cut off all of them instead of only one of them, because he was feeling weak. So that’s what I thought. In 2019, when they moved to Paxton, my mum actually mentioned to my dad, that ‘Have you -- are you finished cutting off all the payments for all those women, and all those children? Please don’t leave any troubles for your children.’ I heard that.”

179.  Immediately after JL gave his answer, I enquired if it was in the affidavits. Ms Chow drew my attention to paragraph 36 of JL’s 1^st Affidavit, where he stated that “[a]fter discussion with Mother and my siblings, Father decided to make his last Will in January 2019”, and she says that the Alleged Conversation was JL’s giving elaboration on the “discussion” in his oral evidence. However, the fact remains that the details and particulars of the Alleged Conversation only arose in the course of JL’s cross examination. Ms Chow also accepted that details of the Alleged Conversation about moving to Paxton etc were not in the affidavits.

180.  Referencing CL’s Affidavit, it was mentioned that the Deceased moved to Paxton in May 2018. At the end of Ms Chow’s re-examination, I asked JL to clarify when did the Alleged Conversation take place, whether he was present or did Madam L told him afterwards. JL first said he was there, and added a detail that the Alleged Conversation came about because someone claiming to be the Deceased’s daughter-in-law came to visit the Deceased:

“COURT. So you can’t go yet. Do you recall when you were giving evidence yesterday afternoon, you mentioned something along the lines of -- I don’t have exact wordings, but he said something along the lines of in 2019, when they moved to Paxton, “my mum actually mentioned to my dad that ‘whether you had finished cutting off ties to all these women and children and not to leave troubles for your children’”. Now, I was trying to place when this conversation took place because according to CL’s affidavit, your father moved to Paxton in 2018 May. But you mentioned it was 2019. So are you able to recall when this conversation took place? Were you there? Did your mother tell you?

A. I was there but I was not sure about the date. As I have mentioned, I’m not good with date. I was there. I heard mum saying that because there was one time that a woman looked -- found – visit (visited?) my dad, pretending to be his daughter-in-law, and hence, it was found out that, actually, some other person was finding -- was visiting my dad. And that’s why the conversation came about that mum was asking her -- asking him that whether the person he had to be responsible for or the woman or some other people, did he settle the relationship with them. But I’m really not sure about the date. I’m sorry, your Honour. I remember approximately it was during that period, but I can’t say it was about 2018, 2019.”

181.  When I clarified with JL again if Madam L, the Deceased and himself were present when the Alleged Conversation took place, he then said he could not remember clearly, and added a further detail that the Alleged Conversation triggered the making of the Will.

“COURT. And so you are saying that you were present when your mum spoke to your father. So all three of you were present.

A. (Witness answers in English) No. (Answer not interpreted) 我唔清楚，但係我只係記得我係有聽過咁講，因為一聽完之後，我哋都冇呢個--有時我會喺度，有時三個，唔係未必係食飯嘅時候，有時我哋晏晝上去，咁我媽咪同daddy會坐喺度，同埋啲工人，咁佢哋食--飲下午茶，咁我記得係--係佢同佢講過，但係exactly係dinner或者係晏晝嗰陣時，我只係記得聽過佢咁講過，因為先知會trigger到去要做個will ，我哋要做個will。”

182.  It was only when I asked JL for a third time if he was present when the Alleged Conversation, he gave an affirmative answer:

“COURT. Right. [JL], I still don’t have a very clear picture of what exactly happened. You spoke as if you were present when your mother said this to your father. Or in the alternative, was that something that your mother said to you, that’s what she said to your father? So which one is it? Were you there, looking at your mother speaking to your father? That’s what I’m asking.

A. Yes, yes, I saw...

COURT. Yes, you were. So the three of you were present together? Right, so it was a few questions ago.

A. A helper was there.

COURT. My question was: were you three together?

A. Yes, yes, I was there.

COURT. How did your father react?

A. My father said it was all settled.

COURT. 2018, 2019?

A. Yes.”

183.  I am not satisfied that the Alleged Conversation is able to support the Executors’ theory that the Deceased had made a “conscious decision to cut ties” with Madam T:

a. The Alleged Conversation was not mentioned or alluded to in any of the 4 affidavits made by JL, neither was it mentioned in the affidavit made by CL on behalf of the Executors. By its context, it should have been an important conversation upon which the Executors rest their case, but the existence of such Alleged Conversation only emerged for the first time during cross-examination. This is the case despite the express query made by PL in paragraph 22 of her 1^st affirmation that “J has neither provided any details of the said discussion with the family. There is very little information on my Father’s intention to make his Will and the reason behind the distribution of assets set out in his Will.”

b. JL’s recollection with respect to the Alleged Conversation was unclear and unreliable. He gave conflicting accounts to the simple question of whether he was present when the Alleged Conversation took place, and based on JL’s evidence, the Court is unable to even grasp a clear picture as to this simple fact.

c. According to JL, the Alleged Conversation took place in around 2018 or 2019, during which in answer to Madam L’s question if all extramarital affairs and payments were cut off, the Deceased replied that it had been settled. However, the monthly luncheons of the Deceased and Madam T continued until January 2020 prior to the outbreak of COVID-pandemic. This casts doubt as to whether the Deceased’s answer and the Alleged Conversation truly reflect that the Deceased wanted to or intended to or had already cut off ties with his extramarital relations.

184.  In the circumstances, I am not satisfied that the second limb has been made out.

F3.2 CL

185.  CL has made one affidavit. He gave oral evidence in English on 14 February 2025. As one of the Executors, CL was inside the Courtroom observing and listening into JL’s oral testimony when the latter was giving evidence.

186.  CL’s evidence contained in his affidavit, insofar as they are material and relevant to the issues in these proceedings, may be summarised as follows. The following is largely adopted from his affidavit.

187.  CL confirmed that JL was the Deceased’s right-hand man and had a good understanding of the Deceased’s daily life and financial affairs. JL and his wife EY were frequently asked by the Deceased to accompany or represent him to attend business events, meetings and dinner functions.

188.  The Deceased would call CL up to his room and discuss his concerns about his finances on a semi-regular basis. The Deceased was always worried that he did not have enough money left after he had closed down his casino business, and his main concern always revolved around supporting the finances of the core family. He had never mentioned any financial concerns outside the core family. The Deceased was particularly worried about CL because he still had 3 children to take care of who are still at school.

189.  CL recalled that PL was never introduced by the Deceased to their family, despite the Deceased had introduced his Other Children in the early 2000s. He recalled that PL had called his office in early 2000s, trying to speak to him. CL was not in office at that time. When he asked the Deceased about her, he says that the Deceased seemed very dismissive of her in his curt response. It was over 20 years before PL contacted him again. He viewed their exchanges only as between two persons who were concerned for the Deceased. He would discuss the Deceased’s conditions with PL like with a friend or even a distant relative.

190.  Under cross-examination, CL admitted that he did not access the contents of the USB exhibited in PL’s 2^nd Affirmation containing the WhatsApp messages between, amongst others, PL and himself, and those between PL and FL. He gave the explanation that given the incredible amount of evidence introduced, he felt that the rest of the evidence was more important than the WhatsApp messages put into evidence.

191.  As to the issue of the Deceased’s “conscious decision to cut ties”, CL confirmed that he agreed with JL’s statements in his affidavits that the Deceased had made a conscious decision to cut ties with Madam T. However, he introduced a distinction between cutting off ties with Madam T only but not with PL: -

“Q. You have not heard and you have not seen. Why, why did you -- why do you still maintain the position if the evidence is available and we have been using that as examples of how Madam T and [PL] continued to maintain ties with father?

A. May I ask what evidence you are referring to, sir?

Q. Yes. I was referring to, for example, the audiotapes I played yesterday...

A. M’m.

Q. … showing…

A. Yes.

Q. … the relationship, the continuing relationship between [FL] -- sorry, between [PL], Madam T on the one hand and father on the other.

A. Because all of the communications were from [PL] and there was no involvement of Ms T, Madam T, in any of the WhatsApp messages that were presented to us, so it is, in my opinion, that it was between [PL] and my sister that maintained a relationship of sorts, but I do not see how Ms T is involved.

Q. Did you know that -- did you have any recollection of homemade food or soup being sent to father by Ms T?

A. Yes, I do.

Q. And did it make you think twice about whether or not there was really a cutting of ties?

A. I did not place much relevance or importance to the bringing of food or the preparation of food because as my brother JL, said previously, there were numerous people who made food for my father, who brought food and fruits and other things to my father. So I did not think that it was anything special or out of the ordinary that even friends would do.

Q. So, Mr L, you are saying that you would draw a distinction between the relationship between father and [PL] and father and Ms T. You are really making this point, are you?

A. Yes, I am.

Q. You are serious about that, that Mr L, the late Mr L...

A. Yes.

Q. ...decided to cut ties with the applicant but not with [PL].

A. Yes.” (emphasis added)

192.  Further, CL also made a distinction between cutting off ties “financially” and “emotionally”:

“Q. It’s that you don’t believe that father actually cut ties with [PL]. He only cut ties with Madam T. How does that actually make any sense?

A. I think we have to redefine, well, we have to define what are the exact explanation of what cutting off ties means. You can cut off ties physically, financially or emotionally. I believe that my father was cutting ties financially, but that does not necessarily mean that he would cut his relationship ties with [PL].

Q. So your position is that ties were cut financially but not emotionally with [PL].

A. Up to a certain point because I don’t see my father really proactively searching to contact [PL] by himself or through any of his proxies, including his nurses or his helpers or his driver. And I surmise from what I’ve read that mostly it was [PL] who initiated contact with my father, and many times he would not reply or respond to her.”

“Q. Okay. Now, I put it to you that [PL] as well as Madam T and father, there was never a cutting of ties between them.

A. Again, I would disagree with your statement to a certain degree, meaning that there might be a cessation of financial ties. But there might be a continuation of a parent and a daughter’s relationship because you cannot just cut. Well, some people can, but sometimes you still want to speak to your children.”

“Q. So JL said here, okay, that the applicant is but one of the many former mistresses whom father made a conscious decision to cut ties with. Can I understand from your “cut ties”, that description really is about cutting of all ties and not just financial ties with the description...

A. Mm...

Q. ...with the applicant? So are you maintaining that position or are you saying, “Yes, but it’s just financial ties that’s cut, maybe not all ties”?

A. I do maintain the position that there are ties cut, but we have to make a distinction because not everything is -- has to be interconnected. You can still have a relationship with somebody while cutting off financial ties.”

193.  CL also testified that he’s sceptical of PL’s intention of approaching and contacting himself: -

“Q. All right? This is not somebody, not somebody who would be ringing your doorbell at the critical two years to say, “Hey, where’s my monthly maintenance?” She really is not that kind of a person.

A. Well, at first I had my hesitation because in my affirmation, I had already given my testimony of like how I was approached by [PL] over 25 years ago because she said that my father had not contacted them for a long time. She called my office. And then I told my father that this person named [PL] contacted my office and asked if -- and then about him. And then he just said, you know, “Yes, don’t worry about it. 唔使理,” and then he didn’t say any more. So then that was my first contact with [PL] which she instigated in -- over, over 20-some-odd years ago. And then in 2018, she initiated contact again, which I thought was peculiar because if you have such a long break without contacting me, then why are you contacting me now? But then I took it in good faith, and then I re-established the relationship with her. And then, so again I cannot attest to [PL]’s thinking or her intentions. I cannot because I’m not her.”

“Q. At least from that point, we see that there’s an expectation that when times return to normal...

A. Mm.

Q. ...it would be as per -- it would be business as usual.

A. I don’t believe so because my father’s age was getting on and his health was deteriorating. So I believe that [PL] realised that. But, of course, that’s my assumption and I cannot attest again to what [PL] was actually thinking and her intentions, whether -- but I would think someone who is 9 -- in their 90s, like, you know, their mobility would be hindered...”

“Q. I’ll put it to you -- sorry, before that, so when you say you’re sceptical of [PL]’s intention, what exactly do you see [PL]’s real intention to be?

A. Well, I believe that with close to 20 years of no contact from [PL] to me since the initial contact, I find it odd that suddenly she would reach out to contact me again after such a long period of time, sir. And hence, I would think, well, what would her intention be? Would her intention be - and this is my own extrapolation - would her intention be to -- because father is not answering her or in contact with her, so she is reaching out through my sister or myself?”

Analysis

194.  Based on the following observations of his evidence, I do not find CL to be a truthful nor reliable witness.

195.  His distinction of the Deceased cutting off ties with Madam T only but not with PL, as well as his distinction of cutting off ties “financially” but not “emotionally”, appeared nowhere in his own affidavit, nor anywhere in the evidence filed on behalf of the Executors. These distinctions only appeared for the first time in CL’s oral evidence under cross-examination after having observed and listened to the main theme of the cross-examination of JL, whereby the Deceased “conscious decision” to cutting off ties with Madam T surfaced as a crucial issue in these proceedings.

196.  In any event, CL’s evidence also did not sit well with and was even contradicted by JL’s evidence. While CL maintained a distinction of the Deceased cutting off ties with Madam T but not with PL, it was JL’s evidence in his 1^st Affidavit that the Deceased’s “conscious decision” to cease any spending on extra-martial associations include the children born out of the wedlock as well, i.e. including PL. During the cross-examination of JL, he also took the view that the cutting of ties extended to PL:-

“Q. Morning, [JL]. We’ve discussed the break up yesterday, the breaking of ties. Can you explain whether or not the break up of ties also extends to [PL] in your opinion?

A. I felt that he also cut ties with her because he ran out of money. Of course he cherished his daughter, but it was his decision that he was running out of money. I think he didn’t want it.”

197.  As to CL’s distinction of “financial” and “emotional” ties, JL made it clear during his cross-examination that when he said the Deceased made a conscious decision to cut ties he meant “to break off the relationship” (see paragraph 166 above). His own understanding of cutting ties with people include ignoring or not contacting the other person whom he had cut ties with, or trying his best not to see or meet up with the people who he had cut ties with. Clearly, there’s no distinction of “financial” and “emotional” ties when JL was giving evidence on behalf of the Executors.

198.  Furthermore, CL’s answers also fly in the face of the contemporaneous WhatsApp records – and, indeed, his own exchanges with PL.

199.  For example, on 1 February 2020, around the time of Chinese New Year, PL sent a WhatsApp audio message to CL asking about the Deceased’s conditions:-

“老竇佢幾好嗎？冇乜- OK 嗎？因為我想打電話畀佢拜年呀，我見佢電話- 即係我初一開始啦，到而家啦，咁我見佢電話有開，但係就冇聽電話。佢係咪有時瞓覺休息，所以就冇聽電話呢？我想睇下佢、誒、即係、佢點樣咋嘛。咁如果佢 OK，咁呀 – 係啦，咁我就 – 係那，想睇下佢點呀。唔該 Bxxx Gor。”

200.  When the audio clip was played in Court to CL, he suggested that the Deceased was not answering PL’s call. Mr Kwan then played a second WhatsApp audio message sent by CL to PL on 12 February 2020 when CL proffered an explanation as to why the Deceased was not answering her calls:-

“阿爸都冇咩特別嘢。佢呢又係曳，唔肯食藥。因為而家 – 即係早幾日凍呢，咁佢就有少少燒，咁我哋畀啲 Panadol佢，即係醫生叫，咁然之後呢佢又肯食啲 Antibiotics，咁所以呢就有少少曳啦，咁但係即係佢而家都冇乜特別嘢啦。同埋我亦都同佢講過，話你搵過佢，咁 – 不過你知佢㗎啦，我都無話可說啦。即係 – 佢都、佢都唔 – 佢都當我唔喺度，所以都唔知，即係就係咁囉。”

201.  CL suggested that when the Deceased did not want to answer anybody’s phone call from the caller recognition, he had a habit of just not answering his phone and letting it ring:-

“Q. I’m just guessing. You’re trying to say, “Yes, [PL] tried to find him. He just refused to answer.” That’s really your point? As if it’s a unilateral thing for [PL] to reach out.

A. Well, my father had a habit, since I guess I’ve always known him to have this habit, when he did not want to answer anybody’s phone call from the caller recognition, that he just would not answer the phone calls. And this is not indicative of only [PL] but also people that he wanted to borrow money from him at times or just people he did not want to speak to. Then he had a habit of just not answering his phone and letting it ring.”

202.  When Mr Kwan suggested to CL that the reading from his own WhatsApp audio message sent on 12 February 2020 showed that the Deceased was just being very taciturn, and that he would like to be left alone and was a grumpy old man, CL disagreed: -

“Q. ...really, my reading from this contemporaneous message is: father was just being very taciturn. That means he is just very -- he just wants to be alone and be left alone. He is just a grumpy old man.

A. That would not be my interpretation because with my knowledge of father and his behaviour and his 脾性, his regular -- I don’t know how to -- well, what the equivalent of that would be in English. If Mr Kwan could enlighten me, 脾性, how we could refer to that.

Q. Temperament.

A. His temperament. He was -- because I -- when I told him that [PL] had reached out, then he ignored me because I think perhaps he did not want to speak to her at this time. And then, because I brought this information to him, then he was upset at me also for -- that’s how I interpret that situation. So he was upset at me for being perhaps a liaison or bringing information to him that he was not happy or what he wanted to hear.”

203.  The above answers clearly did not sit well with the contemporaneous records.

a. Nowhere in the WhatsApp audio message sent by CL on 12 February 2020 (or, for that matter, in any other contemporaneous WhatsApp messages between CL and PL) did he indicate or convey to PL that the Deceased did not wish to speak with her, or that the Deceased was upset by the news of PL contacting him. If these were indeed the case, why would CL not have conveyed to PL then.

b. On 21 April 2021, PL sent two WhatsApp audio messages to Cx, one of the caregivers taking care of the Deceased, telling the latter about the Deceased’s diet, general care and concern, and asked Cx to try to get the Deceased to eat: -

“其實個份量唔係太多嘅，咁但係如果佢食唔晒呢，其實擺到聽日都得㗎。咁係啦，你 – 麻煩你睇下、𧨾下老竇食啦，話畀佢聽[PL]整畀 – [PL]整畀佢㗎，咁希望佢開胃啲、食多啲嘢啦。唔該晒你呀 Cx。Thank you。”

c. On replied to PL that the Deceased had heard her (“他聽到了”). Mr. Kwan suggested to CL that there was a pattern of mutual, bilateral communication via an intermediary, in this case Cx. CL said that it indicated it was PL contacting Cx, not the other way round.

d. On 24 May 2021, PL also sent the following WhatsApp audio message to Cx: -

“竇，咁早起身嘅，你食咗早餐未呀。我而家同 [BT] 出去返工啦、出去開舖啦。你乖乖地食多啲嘢呀。”

e. In response to this message, Cx replied the Deceased had heard her and smiled (“他已聽到，笑了一笑，問他開心嗎”).

f. Despite the above messages at sub-paragraphs (b) to (e), CL said that he would stand by the position that the Deceased actually intended or consciously decided to cut off ties with both Madam T and PL.

g. Further on the cross examination, Mr Kwan showed CL that he and PL had the following exchanges on WhatsApp on 17 April 2020: -

“PL: Good morning Bxxx Gor

PL: Dad called me and said he got fever (but already now 退燒)

PL: Just wonder he is really ok now? Thx Bxxx Gor

CL: Yes. He had fever the night before of 38.2. It was a low grade fever but with the elderly, a low fever could also be serious so we called the doctor right away and he checked that Dad’s lungs were all clear so nothing like pneumonia. But the doctor still wanted dad to take some antibiotics just in case. He is on Augmentin. Last night, his temperature was stable around 37.1. We went to see him and his face colour was good but he was worried he had Covid-19 which we reassured him he didn’t. He was feeling fine and eating well at dinner. Don’t worry.”

h. When Mra Kwan asked CL how did the fact that the Deceased made a call to PL square with his understanding that the Deceased was trying to avoid people who may be getting money from him, CL replied that he did not think it would be unusual for a father to occasionally think about their children and wish to inform them of some things, but it was not a frequent behaviour of the Deceased to call PL.

i. Based on the above exchanges, CL first depicted PL as someone who was always trying to get money from the Deceased, and who the Deceased was actively avoiding or would be upset about. He maintained that the Deceased had cut off ties with her and suggested that it was PL who initiated contact first. It was only when evidence of the Deceased’s initiating calls with PL surfaced before him, CL “softened” his stance by saying that it would not be unusual for the Deceased to contact PL.

204.  Reviewing CL’s oral testimony, I have a strong sense that CL was making up some of his testimony as he goes along and adjusting his answers along his new course; I am left with the impression that he conjured the above distinctions when it was his turn to give evidence after JL’s evidence in this respect underwent the Applicant’s serious challenge during cross-examination.

F4. Findings on Issue 1

205.  Based on my assessment of the evidence of each of the witnesses above, I now turn to the analyses of each of the sub-issues under Issue 1.

F4.1. Issue 1A: Whether there was a settled basis or arrangement of maintenance

206.  Madam T has set out her case of maintenance by the Deceased over a big part of her life, which was only suspended during the COVID-pandemic; and there was no evidence that the Deceased had ever intended for the maintenance to cease.

207.  Ms Chow submits that there was no settled basis or arrangement of maintenance. Her submissions could be briefly summarised on the following six grounds: -

a. First, the Deceased decided when to meet and thus when to give money. Hence the lunch gatherings and consequent payments were highly irregular. Payments to Madam T fluctuated according to the “vicissitudes” in the Deceased’s life. This is reinforced by the Agreed List of Deposits where the number of cheque deposits in each year varied. At best, the Agreed List already represents all the payments from the Deceased to Madam T from 2008 onwards.

b. Second, the Deceased alone decided what to pay and it was not susceptible to challenge from Madam T.

c. Third, Madam T confirmed under cross-examination that the Deceased made clear that she was to spend the whole sum he gave her within the month:-

i. It shows that the Deceased did not intend to take care of her needs in the long-term or to establish a rainy-day fund so as to maintain her beyond the next month.

ii. Further and in any event, it is legally impermissible to rely on past payments to establish locus under section 3(1)(ix) of the Ordinance. Madam T cannot rely on the fact that, immediately preceding the Deceased’s death, her financial needs have been met from the Deceased’s maintenance in the two years between the last lunch gathering in January 2020 and the Deceased death in January 2022.

d. Fourth, it is doubtful if the cheques were truly intended for Madam T in whole or in part as it was PL’s evidence that she received cheques from the Deceased for her business during the lunch gatherings.

e. Fifth, given that Madam T did not maintain any romantic relationship with the Deceased since 1983 and her subsequent relationship with TP, it is a complete exaggeration for Madam T to claim that the Deceased was a “lifelong partner” or that they were somehow akin to husband and wife.

f. Lastly, the absence of any settled basis of regular maintenance evincing a dependency relationship could also be inferred from Madam T’s recovery from her mixed anxiety-depressive disorder from December 2020, when she stopped attending clinical follow-up after December 2020 “because of Covid-19 outbreak and she subjectively felt better”.

208.  Having considered the evidence of the witnesses and the parties’ submissions, I reject Ms Chow’s submissions, my reasons are as follows.

a. I have taken into regard the history and nature of Madam T’s relationship with the Deceased, considered the plausibility of Madam T’s case which was corroborated by PL, the evidence before me, and having the opportunity to see both of them gave evidence in Court, I accept the evidence of Madam T and PL.

b. Based on the Agreed List of Deposits, the cheque deposit advices produced by Madam T (originals of some of which the Court had the opportunity to examine during trial), and copies of cheque which bear the Deceased’s name, it could be seen that the payments from the Agreed Lists of Deposits align with Madam T’s case. On the other hand, it is the Executor’s case that it does not accept that the Deceased made cheque deposits to Madam T as the cheque deposit slips do not even identify the payer of the cheques, and the slips are illegible; but there were cheques and credit advices which show the Deceased’s name and bank account number at least in 2015-2016, these evidence fly in the face of the Executors’ blanket denial, and nothing was proffered by the Executors to explain, at the very least, these payments to Madam T. Although the records are not complete and there were no cheque deposits in certain months, or there were missing statements, the Court is able to discern a general basis or arrangement then existing for the maintenance of Madam T by the Deceased. I find that at least from 2006 (after the passing of TP) to 2016, there were maintenance from HK$100,000 to HK$120,000 per month (with double pay around or near Chinese New Year months) paid from the Deceased to Madam T on a semi-regular basis.

c. On the same basis, I further accept their evidence that from 2016 to January 2020, the settled basis of maintenance continued by way of the Deceased’s provisions to Madam T in cash during their monthly lunch gatherings at DLS. In particular, I accept Madam T’s case that the Deceased paid in cash when he felt he could not sign cheques after 2016; despite JL saying that the Deceased stopped signing cheques only after 2019, the Executors were not able to produce a single cheque signed by the Deceased after 2016 to challenge this aspect of Madam T’s case.

d. The law does not require the maintenance to be provided on a strict, fixed schedule. It also does not require the dependant to have a say on when to be paid or how he or she would get paid, or that the sums paid could not fluctuate. All that the law requires is an assumption of responsibility by the deceased for the maintenance of the applicant: LYYC, [63]. Even if Madam T had no say in when to meet and when Deceased was to give her money, it does not mean that there was no assumption of responsibility on the part of the Deceased. Ms Chow’s first and second argument fail in this regard.

e. The third argument is irrelevant. Insofar as I understand the Applicant’s case from her closing submissions, Madam T is not relying on past payments or that a rainy-day fund has been established by the Deceased for her. The fact that the Deceased intended Madam T to spend the entire sum given to her within the month does not necessarily mean or show that he did not intend to take care of her needs in the long-term, or that there was no settled basis. On the contrary, it can also be interpreted that Madam T was told to spend all the money the Deceased gave her for the month, as he would keep on providing.

f. As to the fourth argument, although PL has also received financial support from the Deceased, it does not mean that the cheques paid to and deposited into Madam T’s account must conflate with the financial support to PL. PL’s evidence is that she was receiving maintenance between 1993 to 2006 from the Deceased and passing onto Madam T, and payment to Madam T was directly from the Deceased when TP died in 2006. PL’s evidence further states that she had received specific amounts in terms of cheques given to her from the Deceased to help her in the business between 2013 – 2015 (see paragraph 127 above); the latter provision were quite distinct and purpose driven. I am not of the view that this evidence has been successfully challenged.

g. As to the fifth argument, I agree that it might be an exaggeration to say the relationship of the Deceased to Madam T is akin to husband-and-wife. It is also common ground that Madam T did not maintain any romantic relationship with the Deceased since 1983. However, the law does not require an applicant under section 3(1)(ix) to have any romantic relationship with the deceased. The statute expressly permits “any person” to make an application. The only threshold being that the person was being maintained either wholly or substantially by the deceased immediately before the latter’s death. How Madam T looks at her relationship with the Deceased is not an issue relevant to this analysis, I do not see how this would impact my consideration.

h. The argument on Madam T’s recovery from mood disorder is misplaced. Ms Chow is essentially saying that if there was a settled basis, Madam T should continue to have mood disorder in light of the lack of payment or the absence of meetings with the Deceased. I do not find this a convincing argument, there is no rule dictating how one should react to events, or whether one should develop mood disorder in light of certain happenings. I see no evidence of any causal link between Madam T’s mental condition and the Deceased’s financial support to her.

209.  In the circumstances, I find that there was a settled basis or arrangement between the Deceased and Madam T in which the Deceased had assumed the responsibility of providing maintenance to her.

E4.2. Issue 1B: If there was, whether the Deceased decided to cease the financial provision to Madam T, ending such settled basis or arrangement? In other words, had the Deceased abandoned his responsibility or disclaimed the intention to maintain for Madam T?

210.  As I find that there was a settled basis or arrangement of maintenance between the Deceased and Madam T, the next issue was whether the Deceased abandoned his responsibility or disclaimed the intention to maintain for Madam T.

211.  Ms Chow submits that (i) the existence of good reasons to cease provision, coupled with (ii) the Deceased’s refusal to pay despite multiple options, suggests that there was an upend to the settled basis.

212.  As to the good reasons to cease provision, Ms Chow submits that:-

a. There was the closing down and shrinking of the Deceased’s casino businesses. The Executors’ evidence was that the Deceased’s business in Macau completely closed down by March 2021 as the business was making a huge annual loss. This is consistent with Madam T’s evidence that the Deceased began to close down his business in Macau from 2015, and PL’s evidence that the Deceased closed down his business with the anti-corruption campaign in Macau in 2018 and then after the social unrest in Hong Kong.

b. The Deceased was experiencing increasing financial pressure and anxiety about his finances. This was evidenced by his limiting of his own spending, his discussion of financial matters with his children, the increasing household expenses, his decision to reduce spending on extra-marital families, including his refusal to meet with some of his Other Children in March 2019 and his refusal to attend BT’s wedding in October 2020 to avoid giving out gift monies.

c. The Alleged Conversation in or around 2018 to 2019 (see paragraphs 176-184 above) which motivated the Deceased to conduct succession planning and cease provisions to extra-marital families.

213.  As to the Deceased’s refusal to pay despite multiple options, Ms Chow contends that the Deceased had plenty of options to pass money to Madam T had he wished to despite the absence of lunch gatherings during the COVID-pandemic:-

a. First, the Deceased may arrange for his banker to transfer money. Madam T has given evidence that she had seen him calling his banker and asking the banker to transfer money to her in the past. There is in evidence one such record of a telegraphic transfer of HK$120,000 to Madam T in May 2016.

b. Second, the Deceased had cash stored in his personal safe. He could instruct different categories of persons to pass cash to Madam T, including SC Driver or other staff, CL, FL, and Cn the nurse.

c. Third, the Deceased could also have asked PL or Madam T to collect cash or meet him near his residence.

d. Although the Deceased suffered from certain health conditions, Ms Chow argues that he was mentally lucid and not terminally ill to the extent of preventing him from making a phone call or passing cash to his proxies. He was in satisfactory health throughout 2020 until April 2021 when his health took a turn for the worse. He could obviously have paid at any time preceding that point but chose not to.

214.  For the following reasons, I am not convinced that the Deceased had abandoned his responsibility or disclaimed the intention to maintain for Madam T.

215.  I agree with Mr Kwan’s submissions that reasons for the Deceased’s financial conservatism were not the same as proving the Deceased’s abandonment of his responsibility or disclaiming the intention to maintain for Madam T. Given that I have found there was a settled basis of maintenance and cash payments were made up until January 2020; the decline of the Deceased’s casino business from 2015, his limiting of his own expenses from 2018, and the increase of the Deceased’s household and medical expenses starting from 2019 would not necessarily mean that the Deceased had decided to abandon responsibility towards Madam T.

216.  I also find it a bit of a stretch to interpret the Deceased’s refusal to meet two of his Other Children in March 2019 or his non-attendance at BT’s wedding at the height of the COVID-pandemic as an indication that the Deceased had decided to stop making provision to Madam T:-

a. As to these two children, the following come from JL’s cross-examination on 12 February 2025: -

“Q. Okay, so he made the conscious decision, do you know when the conscious decision was made?

A. So since [the two children] proposed to visit him, and he refused, because every time when they come over, so from my elder sister I learned that, every time when they came over, $1 million had to be paid to them, for them to come over, so he hasn’t got any money, so that’s what I thought that he did.

Q. “我覺得係咁囉”, what do you mean by that?

A. I felt that he felt that there was not much money left, and that he was worried about so many things, he didn’t know how long his condition would last, and he would want the money to last longer, and then we only got this sum of money, and looking at the families of his children, and then would that be enough with such an expenses, he know how much we were spending, he was very clear in his head, even before his death, he was still making calculations.

Q. So [the two children], they are very big spenders, is that right?

A. I don’t know.

Q. But you said [the two children] came in March 2019, and father decided to cease spending, and that is how you got to know that father made a decision, is that right?

A. I feel -- I think daddy also felt that he hadn’t got enough money, and felt that HK$1 million is already a very big amount, but when he got money, he was very generous, that’s what he thought. So I can’t tell you anything.”

And during his cross-examination on 13 February 2025:-

“Q. Do you know when the decision was made? Father’s conscious decision to cease spending on extramarital associations, when was this issue raise?

A. So for -- to my understanding, what I think was, it happened when [the two children] intended to meet with him in March, but he decided to not meet them, so we discussed among our siblings, was that maybe because he chose not to meet them because of the money thing, because he would be giving the money for them to come over, so when he did not meet with [the two Other Children], I think that was the time that was made.”

It is apparent that JL continues to be guessing what was in the Deceased’s mind, which I do not find to be an adequate basis to support this proposition.

b. As to BT’s wedding, it’s an even greater degree of speculation, for there were more reasons to avoid participating in a wedding at the height of the COVIC-pandemic.

c. In any event, I do not find these one-off payments (as the Executors also accepted) to be comparable with maintenance provided to Madam T.

217.  As mentioned above, in my evaluation of the Executors’ evidence and witnesses above, I have already explained why I do not find the Executors’ case of the Deceased making a “conscious decision to cut ties” with Madam T and the Alleged Conversation to be credible.

218.  Further, as to the submissions that abandonment had been evidenced by the Deceased’s refusal to pay despite multiple options, they must be viewed against the background of (i) the impact of the COVID- pandemic, coupled with (ii) the Deceased’s deteriorating health condition.

The COVID-pandemic

219.  As aptly described by Mr Kwan in his closing submissions, the COVID-pandemic was the worst pandemic in living memory. Madam T’s evidence in her 6^th Affirmation shows a timeline of events of the Covid-pandemic saga from January 2020 to December 2020, which is not disputed or undisputable, and were highlighted to JL during cross-examination.

220.  In brief, the evidence speaks to what happened with the outbreak of the first local case, border closures, quarantine measures, outbreaks in residential areas, and the introduction of public health restrictions such as mask mandates and dining bans. It also highlights the fear and uncertainty before vaccines were available especially among vulnerable groups like the elderly.

221.  During cross-examination, JL also agreed and confirmed the wide spread public anxiety, and the reduced social contact.

222.  The Deceased was reluctant to get vaccinated due to concerns about its side effects, and therefore the Deceased was severely restricted in his ability to go anywhere even if he had wanted to. The Deceased’s family also had safety concerns and the Legitimate Children asked the parents not to go out.

223.  The Deceased was also experiencing declining health throughout the pandemic. He suffered from multiple chronic conditions – chronic bronchitis, aortic aneurysm, and chronic renal failure, arthritis and haematuria set in during the latter half of 2020. The Deceased required mobility aids, oxygen support even in early 2020, as recorded in Madam T’s evidence of their last meeting. The Deceased was hospitalized two more times in June 2020 and April 2021, and finally went into hospital for the last time in December 2021 and passed away in January 2022.

Other Proxies

224.  Turning back to Ms Chow’s submission that the Deceased had decided to put an end to the settled basis by his refusal to pay despite the multiple options, the first-order question is whether these “multiple options” were viable, feasible or reasonable against the backdrop of the COVID-pandemic, the Deceased’s deteriorating health, or the background of the family dynamics.

225.  As mentioned above, it needs to be borne in mind that while the Deceased’s family was aware of his extra-marital affairs, it was not a subject that was generally broached at home, nor overtly shared with non-family members. JL confirmed that visits by other mistresses or girlfriends or his Other Children never happened (except for one occasion from ChL), because the Deceased would not talk about these other women at home, and JL thought that the Deceased was trying to keep the harmony at home to prevent argument. I also remind myself also of Madam T’s evidence in that she was very sensitive to her own status, and would not have approached the Deceased at his home had it not been for PL’s performance at school and needed help back in 1993. Furthermore, she had refrained for a long time to visit the Deceased at the hospital for fear of embarrassment when coming across the Deceased’s wife and family members, until when the Deceased was terminally ill.

226.  Ms Chow queried whether the Deceased could have arrange for bank transfer after January 2020. It is JL’s evidence that he and some of his siblings have taken over management of the Deceased accounts and finances; a bank transfer which leaves a paper trail and the name of the recipient would no doubt reveal the Deceased’s arrangement with Madam T.

227.  Ms Chow’s suggestion that the Deceased could have invited PL or Madam T to collect cash or meet him near his residence was also a non-starter. This suggestion plainly ignores the family dynamics and the Deceased’s unspoken and nuanced extra-marital relationships.

228.  The suggestion that Deceased could have asked his driver or staff or his other children (CL or FL), and even the nurse to pass money onto Madam T also makes no sense. The Deceased did not appear to a person who would share this task with his Children, as his wife might find out; and it is even more nonsensical to suggest that he would ask members of his staff to do it for him as maintaining a relationship with his former mistress is clearly a matter that is personal to the Deceased.

229.  Ms Chow’s argument that the Deceased was mentally lucid and not terminally ill also does not take her argument any further. I have found that with the Covid-pandemic outbreak in Hong Kong, the Deceased was clearly conscious of his own vulnerability in his ill health, particularly his conditions at the relevant time appeared to be affecting his respiratory system (bronchitis and need for oxygen tool).

230.  I find that the Deceased could not have left home even if he had wanted to, I also find that the suggestion that proxies could be used is not at all practicable, it does not sit with the modus operandi of the Deceased.

231.  In considering Ms Chow’s submission, I am unable to find any persuasive evidence of an abandonment of responsibility or a disclaimer of intention to maintain Madam T on the part of the Deceased. I find that the COVID-pandemic coupled with the Deceased’s deteriorating health constituted an inadvertent interruption before the Deceased’s ill-timed death; and balancing all the evidence before me, it is my finding that the settled basis or general arrangement was not intended to have ended.

F4.3. Issue 1C: Whether the disposition of the Deceased’s estate effected by his Will is not such as to make reasonable financial provision for Madam T

232.  Aside from making the point here that it is inconceivable for the Deceased to put Madam T as a beneficiary of his Will; the Will clearly made no reference to Madam T.

E4.4. “Wholly and Substantially”

233.  At this juncture, it is appropriate to discuss the “either wholly or substantially” requirement under section 3(1)(ix).

234.  There was hardly any submission on this point from either counsel, but clearly a point that needs to be canvassed here.

235.  Consideration must also be given to section 3(3) of the Ordinance, which provides that:-

“(3) For the purposes of subsection (1)(ii), (iv), (v), (vi), (vii), (viii) and (ix), a person shall be treated as being maintained by the deceased, either wholly or substantially, as the case may be, if the deceased, otherwise than for full valuable consideration, was making a substantial contribution in money or money’s worth towards the reasonable needs of that person.”

236.  In determining whether or not the deceased was making a substantial contribution, one must look at the problem in the round; apply a common sense approach, avoiding fine balancing computations involving the value of normal exchanges of support in the domestic sense: Bishop v Plumley [1991] 1 WLR 582 at 587F. Whether the deceased made a substantial contribution to another’s reasonable needs depends on the circumstances of the parties and their relationship. All the contributions made, whether in kind or otherwise, are taken into account: A Practitioner’s Guide to Inheritance Act Claims (4^th Ed), [4.9.2].

237.  In the present case, it is clear from Madam T’s case that she had not worked for most part of her life, and that her expenses had been supported by the Deceased’s payment to her over the years. Not only had there been cheque and cash payments over the years, her case is that the real properties that she or her family had owned or own came from payments from the Deceased, and he had also paid off her mortgages and overdraft facilities on various properties in the past.

238.  I have also taken into consideration the financial positions of PL and BT, this having considered the evidence of PL’s PT Shop accounts, the information provided by Madam T as to BT’s employment, and their respective contributions to the household expenses.

239.  I have no evidence that indicates Madam T has any financial support other than from the Deceased, and I am not of the view that the Estate had challenged this aspect of Madam T’s case in any way. I therefore find that that the Madam T had been wholly or substantially maintained by the Deceased for the purpose of this application.

F4.5 Conclusion on Issue 1

240.  For the foregoing reasons, I find that Madam T is a person who, immediately before the death of the Deceased, was being maintained, either wholly or substantially, by the Deceased. She has locus under section 3(1)(ix) and 3(3) of the Ordinance to make the present application.

G. ISSUE 2: THE DISCRETION ISSUE

G1 Applying of Section 5 factors

241.  I now turn to consider the matters set out in section 5(1) of the Ordinance. As the present application is made by virtue of section 3(1)(ix) of the Ordinance, I shall also consider the matters set out in sections 5(5) and 5(6) as well.

Section 5(1)(a): the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future

Madam T’s financial resources

242.  Madam T is the only applicant in the present application. She has not been engaged in any form of employment since 1975.

243.  According to Madam T’s Form E filed on 17 April 2023, the total value of her interest in all bank accounts was HK$237,246.09. In her 5^th Affirmation filed on 4 March 2024, she exhibited her bank statements and deposed that her savings had depleted, and she only had HK$18,799.98 left in her bank accounts as of February 2024. Her current living and medical expenses are supported by PL.

244.  Madam T owns an unencumbered property at B Court (where she resides with PL, BT, and his wife) with car parking spaces, and has inherited a 1/5 interest in a property at CL Court from her mother. On 15 September 2023, parties informed the Court that they had agreed on the valuations of B Court and CL Court to be HK$22,180,000 and HK$3,970,000 (i.e. Madam T’s 1/5 interest to be valued at HK$794,000) respectively.

245.  Ms Chow submits that Madam T has numerous resources such that her financial needs are more than catered for: -

a. Her interest in B Court and her 1/5 interest in CL Court can be monetised.

b. She had and has the support of her two adult children. According to the Applicant’s Answers to the Respondent’s Questionnaire filed on 12 June 2023, BT and PL contributed 25% and 20% to the family’s expenses respectively.

c. PL has been in gainful employment since June 2001. PT Shop is a successful business, and according to its financial statements for the year 2022/2023, its sales and gross profit had increased. The alleged amount due to the sole director in the sum of HK$5.4 million (forming part of the accumulated loss in equity) need not to be repaid. PL has great earning potential as evidenced by her CV, and she has testified that she would support her mother.

d. Since quitting employment with PT in October 2023, BT has been employed by a Government Department, earning around HK$20,000 per month. He had also “loaned” Madam T a total sum of HK$10,000 in August and September 2022 to support her expenses.

e. Further, Madam T was able to pay HK$998,049 for legal costs despite allegedly using up her savings from mid-2022 onwards.

246.  I agree that Madam T’s interest in B Court and her 1/5 interest in CL Court should be taken into account. Madam T says that CL Court is now inhabited by her brother. But at the very least, Madam T’s accommodation is fully taken care of. I also take into account the fact that both PL and BT are adults with earning capacity which could support Madam T’s living to a certain extent.

247.  Ms Chow further submits that Madam T also has unexplained sources of income:-

a. According to Madam T, “cash payments” from the Deceased were not deposited in her HSB Current Account from 2008 to 2019 as she “preferred to keep cash at home and make most of [her] payments by way of cash”. But sums totalling HK$483,000, HK$437,000, and HK$339,000 were deposited from 2017 to 2019.

b. From 2020 to 2022, Madam T had significant deposits. To this end, counsel on both sides had agreed on a list of deposits as reflected from Madam T’s bank statements under Part B of the Agreed List of Deposits. Ms Chow says Madam T now claims that these deposits were derived from the Deceased’s cash payments, even though, curiously, she did not deposit such cash prior to 2020.

248.  As to the deposits from 2017 to 2019: -

a. Ms Chow’s calculation of the sums of HK$483,000, HK$437,000 and HK$339,000 conflate cash deposits and other transfers, such as ATM transfers. Based on my calculation from the bank statements, from 2017 to 2019, the cash deposits (only) were in the amount of HK$276,000 (i.e. HK$23,000 per month on average), HK$310,000 (i.e. HK$25,833.33 per month on average), and HK$264,000 (i.e. HK$22,000 per month on average).

b. First of all, I find that Madam T’s preference to keep cash at home is not inconsistent with depositing cash every now and then in her bank account.

c. Furthermore, from my perusal of the bank statements from 2017 to 2019, there is a general pattern of cash deposits going in almost every month, and the usual deductions from that account which include regular payments for autotoll, four repeating amounts for two different insurance companies, and payments for what appears to be credit cards. Therefore, money is placed into the account (according to Madam T from the cash she had at hand) so that liabilities could be discharged. This seems to be Madam T’s pattern of managing some of her finances, and does not contradict her evidence in any way, nor does this show she has other unexplained source of income.

249.  As to the deposits from 2020 to 2022, upon a closer examination of the significant deposits under Part B of the Agreed List of Deposits, most of them consisted of “notification deposits” which were transfers from Madam T’s other bank accounts to her HSB Current Account, showing her name as the transferor. In particular, the electronic cheque deposits and most of the “notification” deposits into her HSB Current Account during this period were interbank transfers from her BOCHK savings account or current account, as reflected in her BOCHK consolidated monthly statements.

250.  As to other deposits in her HSB Current Account from 2020 to 2022, they are either from family members, which I accept are of one-off nature, or cash deposits, which I accept Madam T’s explanation that they are left-over monies from the Deceased’s previous financial support provided to her in cash.

251.  None of the above supports Ms Chow’s contention that Madam T had other financial resources.

Madam T’s financial needs

252.  In Mr Kwan’s opening submissions, he contended that Madam T’s financial needs were estimated to be around HK$144,274 per month. Thus, Mr Kwan initially claimed for a lumpsum of HK$48,476,064 (HK$144,247 × 12 months × 28 years), plus another sum of HK$3,000,000 to cope with potential medical expenses and inflation.

253.  I agree with Ms Chow’s submissions that the purported financial needs of HK$144,274 per month are, on any metric, greatly exaggerated and extraordinary. Some of the items, like chauffeurs (which Madam T had never had before) or expenses for home entertainment and bonsai, extend to “payments to support an extravagant life”. Mr Kwan did concede that the Court has a discretion to cut the quantum down.

254.  In my view, the appropriate starting point for assessing Madam T’s financial needs would be her monthly expenses as reflected in her Form E filed on 17 April 2023. In her Form E and in her 3^rd Affirmation filed on 4 December 2023, she deposed that due to lack of maintenance from the Deceased, she had been living under a tight budget, and her monthly expenses have decreased to around HK$54,400.

255.  The table below shows both sets of expenses numbers:

Items	Monthly Expenses (HK$) Opening Submission	Monthly Expenses (HK$) Form E /3rd Affirmation
Maintenance of Residential Home
Rates and government rent	2,934	2,933
Management Fee	4,840	4,840
Utilities and Miscellaneous	6,500	2,700
Home Insurance	2,000	-
Other Maintenance	5,000	-
Helpers and transportation
Domestic helpers	16,000	5,000
Chauffeur	18,000	4,800
Petroleum and car maintenance	12,000
Other transportation	5,000	800
Food and household expenses
Food	15,000	10,000
Miscellaneous household expenses	3,000	3,000
Home entertainment and bonsai	5,000	4,050
Cats’ food and vet consultation fees	5,000
Out-of-home meal expenses	10,000	2,000
Insurance and health supplements
Personal medical insurance	5,000	2,451
Insurance for Children	-	2,776
Medical examinations and bodychecks	5,000	6,500
Dental	1,000
Supplements and nutritious foods	5,000	-
Personal items and entertainment
Clothing and shoes	5,000	-
Grooming	5,000	-
Holiday spending	5,000	-
Other entertainment	3,000	-
HKJC Membership	-	2,550
Total:	144,274	54,400

256.  A number of observations could be made on the monthly expenses above:-

a. Madam T resides in B Court together with PL, BT, and BT’s wife, who are all adults with working capacity. As such, the general expenses, such as government rent and rates, utility, management fees, household expenses, domestic helper helping in the household, home repair expenses, and entertainment expenses cannot be wholly attributed as Madam T’s own financial needs.

b. While the Executors took issue that PL was the stated employer of the domestic helper, and that the Disney Plus account was subscribed under BT’s name, I regard that their use was shared by the household including Madam T herself, albeit it cannot be wholly attributed as Madam T’s own financial needs.

c. Some of the amounts are on the excessive side, and will be assessed below.

d. Payment of HK$2,776 per month for the insurance for children is clearly not Madam T’s own financial needs.

257.  In exercising my discretion, I shall have regard to the above observations accordingly.

Section 5(1)(b): the financial resources and financial needs of any other applicant

258.  Apart from Madam T, there is no other applicant.

Section 5(1)(c): the financial resources and financial needs which any beneficiary of the estate has or is likely to have in the foreseeable future

259.  In JL’s 1^st Affidavit, he stated that the Deceased had always generously provided financial support to his Legitimate Children, i.e. the named beneficiaries of his Will, and paid for their living, household and other expenses. JL’s siblings and himself have always been dependent on the Deceased’s provision throughout the years and up until his passing to meet the financial needs of themselves and their respective families.

260.  AL, EL, and FL have all retired with no income, while JL and CL are still working. It is not clear what is JL’s occupation, the evidence is that he was the Deceased’s right hand man, and CL is an painter / artist. Further, JL and CL have children who are still pursuing studies at various stages of education and requiring continuous financial support.

Section 5(1)(d): any obligations and responsibilities which the deceased had towards any applicant for an order under section 4 or towards any beneficiary of the estate of the deceased

261.  Mr. Kwan submits that there had been multiple assurances by the Deceased, during both the earlier and the later years of his relationship with Madam T, that he would assume responsibility for maintaining her and assisting her with PL and BT’s education.

262.  Ms Chow submits that the testamentary intentions of the Deceased was clear, that his estate would be divided equally among the Legitimate Children and excluded extra-marital associations. The Will is the “point of departure” and should not be rewritten or deviated from significantly, citing Williams on Wills (11^th Ed), [101.15], Ross on Inheritance Act Claims (4^th Ed), [6-005], and Lettice v Lettice [2022] EWHC 3013 (Ch), [67] – [69], [116]. Any promises made by the Deceased to the effect that he would “care for Madam T” in around 2019 must be viewed against the Will and Madam T’s admission that the Deceased would admonish her to spend any sum within a month. Ms. Chow says, evidently, the Deceased’s promises, if any, were limited to making payment for the short-term as he pleased. On the other hand, the obligations expressed in the Will to the beneficiaries (i.e. the Legitimate Children) are worthy of particular consideration, citing Francis on Inheritance Act Claims: Law Practice and Procedure (March 2024), [7[12](4)].

263.  Although much emphasis was placed on the Deceased’s wishes as expressed in the Will, this is only one of the many factors the Court takes into account in exercising its discretion. In Ilott v Mitson (No 2) [2018] AC 545 (which was referred to in both Williams, [101.15] and Ross, [6-005]), Lord Hughes JSC of the UK Supreme Court noted that it is not the case that once there is a qualified claimant and a demonstrated need for maintenance, the testator’s wishes cease to be of any weight. They may of course be overridden, but they are part of the circumstances of the case and fall to be assessed in the round together with all other relevant factors.

264.  I agree that this is the correct approach. The Deceased’s wishes to provide for his Legitimate Children under the Will should certainly not be disregarded. On the other hand, the responsibilities of maintenance assumed by the Deceased towards Madam T are also factors to be considered. In Francis, [7[12](4)], it has also been noted that obligations in the case of persons being maintained by the deceased, in addition to the expressions of obligations in the deceased’s will, is also “worthy of particular consideration”.

265.  In exercising my discretion, I shall have regard to the obligations and responsibilities the Deceased had towards Madam T, as well as those he had towards the Legitimate Children.

Section 5(1)(e): the size and nature of the net estate of the deceased

266.  The net estate of the Deceased includes “all property of which the deceased had power to dispose by his will (otherwise than by virtue of a special power of appointment) less the amount of his funeral, testamentary and administration expenses, debts and liabilities, including estate duty (if any)” under section 2 of the Ordinance.

267.  According to the Respondent’s Form E filed on 13 April 2023 and parties’ agreed valuation contained in the letter from Madam T’s solicitors dated 15 September 2023, the net estate of the Deceased comprises of the following:-

Assets	Value (HK$)
Landed properties
Properties at Y Mansion, Hong Kong	11,000,000.00 (agreed valuation)
Properties at R Building, Hong Kong	28,547,638.00 (agreed valuation)
Sub-total:	39,547,638.00
Cash at bank
Cash at a bank account maintained at Hang Seng Bank Limited	2,372,941.73
Cash at a bank account maintained at ICBC (Macau)	6,752,838.00
Sub-total:	9,125,779.73
Shareholdings
Shares in a BVI Company	39,636,000.00 (agreed valuation)
Sub-total:	39,636,000.00
Debts owed to the Deceased’s estate
Personal loan to JL’s wife	2,000,000.00
Sub-total:	2,000,000.00
Valuable personal items
Various items of gold and silver, watch, ring and cuff-links	1,000,000.00
Sub-total:	1,000,000.00
Total:	91,309,417.73

268.  Near the end of the 6-day trial, Ms Chow confirmed with me that (i) the Executors of the Deceased’s estate are also the executors of Madam L’s estate, (ii) the last will and testament of Madam L left her estate to the Deceased, thus Madam L’s estate would form part of the Deceased’s estate, and (iii) Madam L’s estate is still pending distribution.

269.  According to the Respondent’s Form E filed on 13 April 2023 and parties’ agreed valuation contained in the letter from Madam T’s solicitors dated 15 September 2023, Madam L’s estate consists of the following, pending distribution:-

Type of asset	Value (HK$)
Cash at Bank (Hang Seng Bank Limited)	1,822,749
Jewelleries	2,374,870
Watches	467,500
Landed Property, being the matrimonial home of the Deceased and Madam L	37,620,000 (agreed valuation)
Landed Property in Ontario, Canada	13,027,500 (agreed valuation)
Total	55,312,619

270.  Thus, a sum of HK$55,312,619 should be added to the Deceased’s estate pending distribution. The total size of the Deceased’s net estate is therefore around HK$146.6 million (HK$91,309,417.73 + HK$55,312,619).

271.  Ms Chow urges the Court to have regard to the realisability of the net estate, and submits that only around HK$4,200,000 in cash is readily available, namely the sums of HK$2,372,941.73 and HK$1,822,749 at the Deceased’s and Madam L’s respective bank accounts while other assets concern landed properties, shareholdings in private companies, and cash in a bank account maintained in Macau where probate has yet to be granted.

272.  Mr Kwan complains that the Deceased’s estate in Macau remains unaccounted for even after Madam T’s multiple requests for disclosure, and that during trial, CL simply shrugged off the question. Further, as to the valuation of the BVI company, although there was the agreed valuation of HK$39,636,000.00, there were doubts as to its real value since to PL’s knowledge it was the Deceased’s secret vault of assets, but Madam T lacked the financial resources to seek specific discovery. However, despite these complaints, Mr Kwan by and large adopts the figures in the Respondent’s Form E in calculating the size of the net estate.

273.  In assessing the size of the net estate of the Deceased, I shall adopt the figure of HK$146.6 million from above.

Section 5(1)(f): any physical or mental disability of any applicant for an order under section 4 or any beneficiary of the estate of the deceased

274.  The mere fact of old age, which may or may not bring with it varying degrees of “ill health”, is not of itself a factor under section 5(1)(f): Francis, Inheritance Act Claims: Law, Practice and Procedure, §7[14].

275.  Madam T claimed that she had suffered from depressive and anxiety symptoms. She had also been diagnosed with rheumatic heart disease, hypertension, hyperlipidaemia, high uric acids, glucose intolerance, mixed anxiety-depressive disorder and left humeral head sclerotic cervical spondylosis with left radiculopathy. She had adduced referral letters and medical certificates in support.

276.  Ms. Chow made the point that conditions such as hypertension, rheumatic heart disease or mixed anxiety-depressive disorders are common in old-age. However, solely on the basis of the evidence before me, the Court is unable to rule if these are symptoms common in or related to old-age for Madam T.

277.  JL claims that he was suffering from ongoing asthmatic condition, FL was suffering from brain aneurysm, thyroid, liver and psychiatric conditions, CL was suffering from mental stress arising from the present litigation, thus requiring medical expenses or affecting their income. As for EL, she used to work until 1994, when she was unfortunately diagnosed with fibromyalgia whereupon she had to stop working, and throughout the years had relied on the Deceased’s provision.

278.  Hospital bills of JL in August 2022 and December 2023 only were exhibited. Other than that, no other medical bills or records of the beneficiaries were included. During cross-examination, when Mr. Kwan put this to CL, he simply stated that they had not realised that they had to submit all their medical bills for evidence.

Section 5(1)(g) — any other matters, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant

279.  The Executors did not make submissions on this particular factor either during opening or closing. Madam T asks the Court to consider the factors under section 5(5) and section 5(6) of the Ordinance. I do not consider that there is any other matter which requires consideration under this heading.

Section 5(5) — The extent to which and the basis upon which the deceased assumed responsibility for the maintenance of the applicant, and to the length of time for which the deceased discharged that responsibility

280.  Mr Kwan submits that the Deceased had provided enduring maintenance to Madam T, as demonstrated by the Deceased’s assumption of responsibility to maintain Madam T. He submits that the Deceased and Madam T were life partners, and the length of their relationship spanned almost 50 years since they first met in 1975.

281.  Ms Chow relies on her submissions on the locus issue and submits that Madam T falls short of demonstrating that there was a settled basis of maintenance spanning a 30-year period of regular maintenance from 1993 to 2020, and in any event, any past assumption of responsibility ceased 2 years prior to death.

282.  Based on my findings above, I find that there was a settled basis of maintenance since 1993. Although the nature of their relationship was a non-romantic one, but their background and history formed the basis upon which the Deceased assumed responsibility towards Madam T.

Section 5(6) — The closeness of the relationship between the applicant and the deceased immediately before the death of the deceased

283.  Mr Kwan submits that there is no sign of estrangement. He relies on the fact that during the COVID-pandemic years, Madam T had connected with the Deceased via video while PL was visiting the Deceased, and prepared food for him which was delivered to his home, and she had visited the Deceased 4 times in his final days.

284.  Ms Chow submits that Madam T and the Deceased were not close immediately before his death. Ms Chow supports this by highlighting the lack of contact between them for over a year, minimal efforts by Madam T to reach out, and her limited number of visits only towards the end of the Deceased’s life. Ms Chow further submits that the closeness of the relationship between PL and the Deceased is irrelevant to the assessment of the closeness of the relationship between Madam T and the Deceased.

285.  I agree that the closeness between Madam T and the Deceased is the sole factor that falls under consideration pursuant to section 5(6). Although the relationship between the Deceased and PL per se does not affect the analysis, given that she is the Deceased’s and Madam T’s daughter and her participation in the Deceased’s and Madam T’s relationship and gatherings, the evidence regarding her relationship with the Deceased does shed some light on the closeness between Madam T and the Deceased.

286.  Based on my findings above, I find that the lack of direct physical contact between Madam T and the Deceased was largely caused by the COVID-pandemic and the Deceased’s ill health. It was further complicated by the family dynamics and Madam T’s status as a former mistress which made it inconvenient for Madam T to visit or contact the Deceased in the presence of Madam L or their family.

287.  Hence, I do not find the absence of contact between Madam T and the Deceased immediately before the death of the Deceased would necessarily mean that they were not close, albeit they saw lesser of each other than before when they were able to have regular lunch gatherings prior to the COVID-pandemic.

G2 The Maintenance Award

288.  In Madam T’s Opening Submissions, she originally claimed a lump sum of HK$48,476,064 and another sum of HK$3,000,000 to cope with potential medical expenses and inflation, i.e. a total sum of HK$51,476,064. The Executors criticise that this amounts to 54% of the Estate’s net value, which is more than the 50-50 spousal dependency claim under sections 3(1)(i) and 5(2) of the Ordinance. This is plainly unreasonable and deeply unfair to the beneficiaries under the Will. I have to agree.

289.  During his oral opening submissions and as mentioned above, Mr Kwan has sensibly conceded that the Court has a discretion to cut the quantum down from Madam T’s ask of more than 50% of the Estate’s net value.

290.  Section 3(2)(b) of the Ordinance provides that reasonable financial provision, in the case of an application made by virtue of inter alia section 3(1)(ix), means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.

291.  In the case of LKYI v GJS [2024] HKFC 145, [2024] 5 HKC 758, at [30] and [37], HHJ Elaine Liu discussed the English and Hong Kong authorities and derived the following principles and guidance on what is or what is not “maintenance”:

“30. The following principles and guidance on what is or what is not “maintenance” have been elucidated and applied in many English and Hong Kong authorities, notably In re Coventry, deceased, In re Dennis, deceased, Re Duranceau, LZX v WYL (Provision: family and dependents), Tam Mei Kam v HSBC International Trustee Ltd:

30.1. The precise meaning of “maintenance” must depend on all the facts and circumstances of the particular case.

30.2. “Maintenance” includes payment which enable the applicant to pay for the costs of his living directly or indirectly in the future at the standard of living appropriate to him.

30.3. It is not limited to a subsistence level, nor extend to a payment to support an extravagant life or a standard desirable for the general well-being.

30.4. It is to provide income for maintenance of the applicant. It is not to confer capital nor does it mean to provide legacies for the applicant.

30.5. The limitation to provision for maintenance represents a deliberate legislative choice and demonstrates the significance attached by the law to testamentary freedom. The legislation is not designed to introduce a general power to re-write the testator’s will or the deceased’s choice to be governed by the law of intestacy.

30.6. While the statutory power is not to confer capital or legacies, the maintenance that can be awarded is not limited to periodical payment.

30.7. In some cases, it is more appropriate and more convenient for other beneficiaries and for executors if income is provided by way of a lump sum from which both income and capital can be drawn over the years: Ilott v Mitson (No 2) §15, per Lord Hughes.

30.8. Payment to meet an applicant’s housing needs can be part of the maintenance.

30.9. This is not a moral claim. The applicant is in a necessitous circumstances per se is not a sufficient ground for an award: Cameron v Treasury Solicitor; Ilott v Mitson (No 2) §§20-22.

30.10. There shall be a single assessment of what reasonable provision should be made in all the circumstances of the case. The judge is not required to fix some hypothetical standard of reasonable provision and then either add to it, or discount from it, by percentage points or otherwise, for variable factors: Ilott v Mitson (No 2) §34.

…

37. In my view, the nature and quality of life that an applicant had accustomed to live with the deceased prior to his demise is part of the facts and circumstances that the court shall have regard to when considering a claim under IPFDO. It is acknowledged that some people enjoyed more comfortable life than the other. Care should be given when the court has regard to the previous lifestyle of the applicant. This is not to be construed subjectively. The decision of Mr Price QC in In re Christie, deceased that maintenance refers to the applicant’s way of life and well-being is still regarded as an anomaly and has not been followed. The court had disallowed “unmerited extravagance” although it may be the applicant’s way of life when living with the deceased. In Tam Mei Kam v HSBC International Trustee Ltd, the Court of Appeal reminded that the court’s statutory power to make reasonable financial provision “is an evaluative judgment based on objective considerations, not the subjective view of the applicant”. This applies to the consideration of the nature and quality of life previously enjoyed by the applicant, which is to be viewed objectively when assessing maintenance.”

292.  I would further make reference to the case of ACLS v HSBTL HCMP 1937/2011, quoting from paragraph 26 of the Judgement as to guidance on the meaning of “maintenance”:

“26. It is not necessary to express a view on the arguments of law except to say that it is just not plain and obvious that maintenance and financial provision for the purpose of section 3(1)(ix) would not cover education expenses that had been incurred or are to be incurred. The cases cited by the interveners’ counsel are not direct authorities in support as those cases are concerned with different fact situations. It is also instructive to note the following dicta:

“What is proper maintenance must … depend upon all the facts and circumstances of the particular case being considered at the time, but I think it is clear on the one hand that one must not put too limited a meaning on it; it does not mean just enough to enable a person to get by; on the other hand, it does not mean anything which may be regarded as reasonably desirable for his general benefit or welfare.” (Re Coventry, deceased [1980] Ch 461 at 485C, per Goff LJ)

“The court has, up until now, declined to define the exact meaning of the word ‘maintenance’ and I am certainly not going to depart from that approach. But in my judgment the word ‘maintenance’ connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. …” (Re Dennis (deceased), supra. at 145h to 146a, per Browne-Wilkinson J)"

293.  With these principles in mind, I shall proceed to assess Madam T’s needs. Hereunder is my assessment of her monthly needs:

General
Government rent and rates	3,000
Utility (electricity, gas, rates, telephone, water)	3,000
Management fees	5,000
Food	12,000
Household expenses	2,500
Car expenses	4,000
Domestic helper	5,500
Others: Home Insurance and Maintenance, Home entertainment and Pet	2,000
Sub-Total monthly household expenses	37,000
Madam T’s share: 55%	20,350
Personal
Meals out of home	3,000
Other Transport	1,000
Medical / Dental	5,000
Clothing and Shoes	2,000
Grooming	2,000
Medical insurance	3,000
Holidays	3,000
Entertainment	1,000
Others: Supplements and nutritious food	3,000
Others: Hong Kong Jockey Club Membership (HKJC Facility Charges & Monthly Subscription)	2,550
Sub-Total monthly personal expenses	25,550
Total	45,900

294.  In the consideration of General Expense, I am conscious that this is a household of 4 persons made up of Madam T, PL, BT and his wife. Having accepted that the Deceased had made provision for Madam T who has then been predominantly supporting the household payments; I have adopted Madam T’s (unchallenged) Answer in that PL and BT together contribute to 45% of the household expenses, thus her contribution is 55%.

295.  For her personal expenses, I have applied a broad-brush approach. To the extent that her expenses are in excess of my assessment, I take the view that she should and could be supported by her own children.

296.  Having given thoughts to her ask of $3 million for medical, my approach on this is to ask myself, giving my findings above, and if she were to become ill, would the Deceased have given her monetary assistance. My answer to that question is Yes. However, given that she has medical insurance, and having taken into regard the allowance I give above for medical / dental expenses, I will only award $500,000 under this heading.

H. CONCLUSION AND DISPOSITION

297.  On the above calculation, her monthly expenses should be $45,900. I have also decided to give Madam T a lump sum award; I am adopting the approach put forward by Mr Kwan in his opening submission. using the Hong Kong Life Tables 2014 – 2069 which states that a woman age 67 in 2024 were expected to live a further 24 years. I will adopt a adopt a straight-line approach.

298.  My calculation of the multiple is to backdate the maintenance award to the date of her application, October 2022 to the month she attains the age of 91 in January 2048, which comes to a total of 304 months.

299.  The lump sum is therefore :

HK$45,900 × 304 = HK$13,953,600

300.  Adding this amount to my assessment of HK$500,000 for medical expenses, the total lump sum I intend to award to Madam T for her claim shall be HK$14,453,600. This will leave the Estate with approximately HK$132.15 million to be distributed between the beneficiaries under the Will.

301.  I also have due regard to the nature and liquidity of these assets, and I am mindful that a substantial majority of the assets are landed properties or shareholdings in a private company. I will make an Order allowing time for the Estate to arrange for the lump sum payment.

Costs

302.  There is no reason why Costs should not follow the event. I will therefore award Costs to Madam T.

303.  The Order shall be as follows:

a. A lump sum of HK$14,453,600 shall be paid to the Applicant from the net Estate within three months from the date of this Order.

b. All Costs of and arising from this application, including all Costs reserved, be to the Applicant, to be borne by the Estate and taxed if not agreed, with certificate for counsel. This is a Costs Order nisi which shall be made absolute 21 days hereof.

304.  Last but not least, I would like to thank the able assistance of all counsels in this matter.