CHEUK SHU YIN v. LAW YEUK KAN AND ANOTHER

[English Translation – 英譯本]

CACV17/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 17 OF 2013

(ON APPEAL FROM HCAP NO. 3 OF 2011)

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JUDGMENT

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Hon Chu JA (giving the judgment of the Court):

1.  The Plaintiff appeals against the judgment of Deputy High Court Judge B Chu (as she then was) (“the trial judge”) handed down on 9 January 2013. Both the Plaintiff and the 1^st and the 2^nd Defendants applied respectively for leave to adduce fresh evidence in the appeal.    

The background facts

2.  The Plaintiff and Mr. Law Yeuk Wai (transliteration) (“the deceased”) were married in Hong Kong in 1994 and have two daughters of the marriage, who were born in 1995 and 1997 respectively.

3.  The 1^st Defendant is the deceased’s elder sister. The 2^nd Defendant and Madam Yip So Wan (“Madam Yip”) are their parents.

4.  The deceased petitioned for divorce in the Family Court in August 2006 on the ground of two years’ separation (FCMC 9593/2006). In January 2007, the Family Court granted the decree nisi and on 1 February 2007 the custody of the two daughters was granted to the Plaintiff, and the deceased was ordered to pay interim maintenance to them. 

5.  The deceased had suffered from illness since late 2007 or early 2008. In April 2008, he was diagnosed with lung cancer and eventually, on 28 February 2010, he passed away in Shenzhen Nanshan Hospital. As the application for ancillary relief for the two daughters had not concluded by then, the Court had not yet granted the decree absolute. When the deceased passed away, the Family Court ordered that the proceedings of FCMC 9593/2006 be abated on 26 March 2010.

HCA 93/2011

6.  The deceased made three wills during his lifetime. The first will was made on 14 April 2008 by which his cousin Mr. Yip Wai Kei (transliteration) (“Mr. Yip”) was appointed as the executor and the guardian of the two daughters, who were the beneficiaries of the estate (“The 1^st Will”). The second will was made on 28 June 2008 (“The 2^nd Will”), by which the 1^st Will was revoked and the 1^st Defendant and the deceased’s younger sister were appointed executors. The estate would be divided into 6 shares and bequeathed equally to the deceased’s parents, two younger sisters and the two daughters. The third will was made on 19 February 2010 (“The 3^rd Will”), by which all the previous wills made by the deceased were revoked, and the 1^st and the 2^nd Defendants were appointed executors, with the estate bequeathed to the 2^nd Defendant and Madam Yip. Mr. Yip and the 1^st Defendant were the witnesses to the 3^rd Will.

7.  The plaintiff challenged the validity of the 3^rd Will. She first lodged two caveats with the court (HCCA 000730/2010 and HCCA 002856/2010). Then she commenced a probate action, asking the court to pronounce that the 3^rd Will was invalid and that the Plaintiff and the two daughters be made the lawful successors of the estate (HCAP 3/2011).

8.  On 9 January2010, after trial, the trial judge gave judgment in HCAP 3/2011, finding that the 3^rd Will was valid, setting aside the caveats lodged by the Plaintiff, and ordering that the Plaintiff should pay the costs of the two defendants. The Plaintiff appeals against the said judgment.

Judgment of the trial judge

9.  The central issue in the trial between the Plaintiff and the two Defendants was whether the 3^rd Will was valid. The agreed issues were as follows (see paragraph 17 of the Judgment):

“(1) When the deceased made the 3^rd Will on 19 February 2010, did he have a clear idea and understand its purpose and content?

(2) Even if the deceased had a clear idea and understood the purpose and content of the said Will, is the formality by which he executed the Will in the Mainland valid?

(3) In respect of Hong Kong, is the 3^rd Will valid?”

10.  On the first issue, the trial judge considered the following evidence:

(1)The In-Hospital Physician’s Visit Record produced by the 1^st Defendant, that was made by two physicians of Nanshan Hospital (“The Visit Record”). According to the Record, the deceased had a clear mind on two days, 19 and 21 February 2010, but he was not in the best of spirits. During the trial, the Plaintiff challenged the authenticity of the Record. Upon hearing the explanation of the 1^st Defendant on how the Visit Record was obtained, the trial judge admitted the Record as evidence[1].

(2)The testimony of the deceased’s cousin, Mr. Yip, who, when giving evidence, recalled how the deceased arranged and executed the 3^rd Will. According to Mr. Yip, on 18 and 19 February 2010, when he was talking to the deceased over the phone, the deceased “had a clear mind, despite speaking in a weak and soft voice”, and when the 3^rd Will was executed, “the deceased’s condition was alright, even though he spoke in a low voice”[2].

(3)The testimony of the 1^st Defendant. It was alleged by the 1^st Defendant that the deceased did not fall into a coma until the afternoon of 28 February 2010. On 18 February 2010, the deceased was still capable of writing a note with the identity card numbers of his parents. Besides, the 1^st Defendant confirmed that when the 3^rd Will was executed, both she and Mr. Yip were present together at the scene[3].

11.  The trial judge found Mr. Yip a reliable and neutral witness. The trial judge indicated that Mr. Yip was not a beneficiary of the estate and there was no sufficient evidence to show that he was biased towards the 1^st and the 2^nd Defendants. The trial judge accepted the evidence of Mr. Yip on the testamentary capacity of the deceased and found that when he executed the 3^rd Will, the deceased’s mental state, memory as well as cognitive functions were sound[4].

12.  The trial judge also accepted the evidence of Mr. Yip and the 1^st Defendant and found that when he executed the 3^rd Will, the deceased had personally read it, knew and approved the contents of the Will, and intended specifically to gift his property to his parents[5].

13.  The trial judge also considered that the evidence produced by the Plaintiff (including her own witness statement as well as the “Nursing Record” in respect of the deceased kept by the Nanshan Hospital) was insufficient to prove that the deceased, when he executed the 3^rd Will, lacked testamentary capacity or did not know or approve the contents of the Will[6].

14.  In respect of the second issue, the Plaintiff’s contention was that the 3^rd Will was an “Allograph Testament”, the contents of which were drafted for him by another person. The Plaintiff alleged that since the 1^st Defendant would in the future be the beneficiary of the estate of the 2^nd Defendant and Madam Yip, she was the “indirect beneficiary” of the deceased’s estate. The Plaintiff also alleged that Mr. Yip is the deceased’s relative. Therefore, the Plaintiff asserted that in accordance with the Law of Succession of the Mainland, neither the 1^st Defendant nor Mr. Yip were qualified to be competent witnesses to the Will of the deceased.

15.  The trial judge rejected this contention of the Plaintiff. The trial judge pointed out that the People’s Court of Futian District, Shenzhen City had already found that the 3^rd Will was not an “Allograph Testament”. More importantly, the Plaintiff had not produced any expert opinion on Chinese Law as evidence in this case. Hence, the Plaintiff had failed to prove that the formality of the execution of the 3^rd Will would result in the Will becoming invalid on the Mainland[7].

16.  On the third issue, the Plaintiff produced a “Declaration” made by herself, which stated that from what she was told by her elder daughter, on the day the deceased executed the 3^rd Will, the 1^st Defendant once took the elder daughter out of the ward for a period of time and that when the elder daughter was in the ward, the elder daughter did not see the deceased signing any documents. Therefore, the Plaintiff challenged the claim that Mr. Yip and the 1^st Defendant were present at the same time at the scene as witnesses when the deceased signed the Will.

17.  The trial judge pointed out that the “Declaration” was made by the Plaintiff. It was not made or signed by the elder daughter personally. Having considered the circumstances of the ward as well as the signing of the Will that Mr. Yip had described, the trial judge found that the fact that the elder daughter did not see them signing the document could not be proof that the deceased did not sign the 3^rd Will in the presence of the two witnesses who were at the scene at the same time[8].

18.  Having considered the evidence of Mr. Yip and the 1^st Defendant, the trial judge accepted that the deceased signed the 3^rd Will in the presence of both of them at the scene witnessing it. The trial judge also found that the execution of the 3^rd Will was consistent with the provisions of section 5 of the Wills Ordinance (Cap. 30), Laws of Hong Kong[9].

19.  The trial judge also dealt with in the Judgment the issue raised by the Plaintiff as to whether the deceased’s domicile was Hong Kong or the Mainland. Having considered the documents and evidence in the case, the trial judge found that the Plaintiff had failed to adduce sufficient evidence to prove that the deceased’s domicile at the time when he executed the 3^rd Will was not Hong Kong[10].

Application to adduce fresh evidence

20.  The Plaintiff took out a summons on 28 November 2016 to apply to adduce fresh evidence in this appeal. The 1^st and the 2^nd Defendants took out a summons on 29 December 2016 for an order that the said summons of the Plaintiff be held invalid.

21.  Furthermore, the 1^st and the 2^nd Defendants took out a summons on 26 January 2017 to apply to adduce fresh evidence in this appeal.

22.  Both the Plaintiff and the two Defendants filed numerous affidavits/affirmations as well as written submissions, in respect of the above three summonses. Lots of correspondence were exchanged between the parties, who complained about each other for failing to comply with the court’s directions on serving documents, affidavits/affirmations and submissions. Eventually, Mr. Leong, the Registrar of Civil Appeals gave directions on 6 January 2017 that the issue of whether the documents concerned had been filed out of time would be disposed of when the Court of Appeal heard the summonses. We find that generally speaking, neither the Plaintiff nor the two Defendants have departed from the Registrar’s directions of 2 December 2016 for filing or serving documents. The disputes between the parties were partly due to misunderstandings and partly due to mutual mistrust and yet, none of these had any significant effect on the hearing of the summonses of both parties to adduce fresh evidence. We find that neither parties’ complaint succeeded, nor should the parties drag out such unimportant details.

23.  We will now deal one by one with the applications of the parties to adduce fresh evidence. As regards the Plaintiff’s application, according to her summons taken out on 28 November 2016, the fresh evidence which she intends to adduce consists of a total of 25 items, which can be categorized into 10 types as follows:

(1)Reply and certification issued by Shenzhen Nanshan Hospital as well as the reply issued by Shenzhen Health Bureau (Items 1 to 7);

(2)Legal Expert Opinion provided by Mainland lawyer(s) (Items 8 to 10);

(3)Documents submitted by the Plaintiff to the Higher People’s Court of Guangdong Province (Items 11 and 17);

(4)Transcript of the audio recordings of Family Court proceedings (Item 12);

(5)Documents in respect of the deceased’s medical and funeral expenses (Items 14, 15, 22, 23 and 25);

(6)Deposition made by the 2^nd Defendant and Madam Yip on the matrimonial properties of the Plaintiff and the deceased (Items 13 and 18);

(7)Costs list of the 1^st and the 2^nd Defendants in the original trial (Item 19);

(8)Personal particulars of the Plaintiff (Items 20 and 21);

(9)Affidavit/Affirmations of the Plaintiff filed in this appeal (Item 16); and

(10)Judgment and Order made by the Court of Appeal on 19 December 2014 (Item 23).

24.  According to the affidavit filed by the Plaintiff on 28 November 2016, it is her opinion that by adducing fresh evidence, the following issues can be proved:

(1)The 1^st Defendant deliberately misrepresented that the Plaintiff and the deceased were already divorced;

(2)The “Visit Record” of Shenzhen Hospital produced to the court by the 1^st and the 2^nd Defendants was forged;

(3)By virtue of the Law of Succession of the Mainland, the 3^rd Will is invalid;

(4)The 3^rd Will is inconsistent with the order made by the Family Court;

(5)Only the 1^st Will reflects the deceased’s true wishes; and

(6)The 3^rd Will was an arrangement made by the witnesses and the beneficiaries.

25.  In respect of the principles for adducing fresh evidence at the appeal stage, pursuant to Ladd v Marshall [1954] 1 WLR 1489, the applicant must satisfy three conditions:

(1) that the evidence could not have been obtained with reasonable diligence for use at the hearing below;

(2) that the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and

(3) that the evidence must be apparently credible, though it need not to be incontrovertible.

26.  Concerning the 1^st type of fresh evidence, even though they were documents which came into existence after the conclusion of the original trial, the mental condition of the deceased when signing the 3^rd Will was the central issue in the case and the Plaintiff had all along been challenging the “Visit Record” produced by the two Defendants. Therefore, if the Plaintiff intended to adduce evidence to prove that the “Visit Record” produced by the Defendants was false and forged, then she had a duty to gather all the relevant documents and evidence before the trial and produce them in a timely manner, so as to give the Defendants a reasonable time to reply. The Plaintiff alleged that since it was stated in the hospital record that the deceased was already divorced, she previously had been unable to obtain the relevant record of the deceased from the hospital. Nevertheless, the Plaintiff failed to explain clearly in her affidavit why she was subsequently able to obtain such documents, so that it could be shown that the evidence could not have been obtained with reasonable diligence for use at the hearing below.

27.  Besides, supposing such evidence were admitted as fresh evidence, at the highest, what it could prove was merely that the “Visit Record” which the 1^st and the 2^nd Defendants provided had been obtained by informal means but such evidence was insufficient to prove that the Record is false and forged. Furthermore, as the 1^st and the 2^nd Defendants have pointed out in their “skeleton submission on opposing the Plaintiff’s application to adduce fresh evidence”, the trial judge’s finding that the deceased had testamentary capacity when executing the 3^rd Will was based mainly on the fact that the court accepted the testimony of Mr. Yip and the 1^st Defendant (especially the former). In paragraph 37 of her judgment, the trial judge pointed out clearly that, “Even without the physician’s record, this court still accepts the evidence of Mr. Yip regarding the testamentary capacity of the deceased.” Therefore, the 1^st type of fresh evidence will not have an important influence on the result of the case. Since the 1^st type of fresh evidence fails to satisfy the 1^st and the 2^nd conditions for adducing fresh evidence, such evidence will not be admitted.

28.  Regarding the 2^nd type of fresh evidence, the Plaintiff contends that such legal opinion(s) of the Mainland law expert(s) can prove that the 3^rd Will should be regarded as invalid under the Law of Succession of the Mainland. Such argument was already raised in the Plaintiff’s Statement of Claim dated 19 January 2011 but she did not provide any relevant expert opinion of Mainland legal experts for the trial judge to consider, nor did she explain in this application how such legal opinion could not have been obtained with reasonable diligence for use at the original trial. As such, the 2^nd type of fresh evidence fails to satisfy the 1^st condition for adducing fresh evidence and such evidence is therefore not admitted in the appeal.

29.  Regarding the 3^rd type of fresh evidence, what the Plaintiff seems to be putting forward is that in respect of the judgment by the Intermediate People’s Court of Shenzhen, she was making an application to the Higher People’s Court of Guangdong Province for a retrial. According to the Plaintiff, her application was already entertained by the Higher People’s Court of Guangdong. However, the 1^st and the 2^nd Defendants have stated that the judgment of the Intermediate People’s Court of Shenzhen was already enforced and up to now the Higher People’s Court of Guangdong still had not initiated the procedures for a retrial after it had held a hearing, with the result that the period for examination had already expired in accordance with the “Procedure Law” of the Mainland. In our judgment, whatever the current status of the Plaintiff’s retrial application, the crux of the matter is that the Plaintiff has failed to show how the two items of fresh evidence (Items 11 and 17) are in any way relevant to and have an important or a decisive influence on the issue and the result of this case and the appeal. The 3^rd type of fresh evidence therefore fails to satisfy the 2^nd condition for adducing fresh evidence. Such evidence is not admitted in the appeal.

30.  Regarding the 4^th type of fresh evidence, according to the Plaintiff, the purpose of the transcript of the audio recording of the proceedings concerned is to prove that the court has not yet granted the decree absolute, and that the deceased once gave his undertaking to the court that the Shenzhen taxi with registration number 025027 would not be sold, mortgaged or assigned before the conclusion of the divorce proceedings or any further order made by the court. Nevertheless, the said two matters were already entered in the sealed order of the Family Court. The said transcript does not have any important influence on the issue and the result of the case. Therefore, it does not satisfy the 2^nd condition for adducing fresh evidence and will not be admitted in the appeal.

31.  Regarding the 5^th to the 8^th type of fresh evidence, those documents do not have any direct influence on the issue of the appeal or the judgment in the case. They do not satisfy the 2^nd condition for adducing fresh evidence in the appeal and are therefore not admitted.

32.  The 9^th type of fresh evidence is the affidavit/affirmation filed by the Plaintiff in this appeal, which objected to the documents annexed to the opposing affidavit/affirmation. Such documents were produced by the two Defendants in the trial and are now page 520, 521 and 262 of the appeal bundle respectively. The Plaintiff had already expressly stated his opposition at the original trial and the trial judge also made her findings on that in paragraph 31 of her judgment. There is no need for the Plaintiff to file the opposing affidavit/affirmation in the appeal, and the affidavit/affirmation is not fresh evidence.

33.  Finally, the 10^th type of fresh evidence is the judgment and order delivered and made by the Court of Appeal in this appeal. They are not fresh evidence. The Plaintiff may cite them in the appeal without the need to make any application for that.

34.  In summary, the fresh evidence which the Plaintiff asked the Court to admit either fails to satisfy the conditions for accepting fresh evidence as required in law or is in fact not fresh evidence at all. For that reason, the summons [dated 28 November 2016] filed by the Plaintiff on 29 November 2016 shall be dismissed.

35.  Besides, it is not necessary for the 1^st and the 2^nd Defendants to issue a separate summons to oppose the Plaintiff’s application to adduce fresh evidence. Therefore, the summons taken out by the 1^st and the 2^nd Defendants on 29 December 2016 should also be dismissed.

36.  As regards the summons dated 26 January 2017 taken out by the 1^st and the 2^nd Defendants, this is the application to adduce additionally 11 items of evidence, which can be divided into 3 categories:

(1)Medical record issued by Nanshan Hospital (Items 1 to 4 and Items 6 to 8);

(2)Related proceedings conducted on the Mainland (Item 5, 9 and 10); and

(3)Mr. Yip’s declaration made in respect of the letter dated 19 February 2010 submitted by the deceased to the Family Court (Item 11).

37.  The 1^st and the 2^nd Defendants propose to adduce the 1^st type of fresh evidence for the purpose of rebutting the Plaintiff’s intended application to adduce fresh evidence in respect of the “Visit Record” and also the allegation over the forged “Visit Record”. Since we have already refused the Plaintiff’s application to adduce fresh evidence, it is not necessary for the Defendants to adduce such fresh evidence. Further, as aforementioned, the fresh evidence intended to be raised by the Plaintiff in respect of the “Visit Record” does not have a material influence on the issues in this appeal. Furthermore, the authenticity of the “Visit Record” is a finding of fact. The Court of Final Appeal and the Court of Appeal have stated repeatedly that  an appellate court will not entertain an appeal against a finding of facts unless the finding of the lower court is plainly wrong (see Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336; China Gold Coast France Ltd v CIL Holdings Ltd & Others, CACV 11/2015, 27.11.2015; and Leung Mee Kuen & Another v Leung Siu Kuen Bessie, CACV 163/2015, 23.6.2016).

38.  Likewise, the 2^nd type of fresh evidence raised by the Defendants, namely, the proceedings of the Plaintiff against the 2^nd Defendant and Madam Yip conducted on the Mainland has no influence on this appeal. Nor did the 1^st and the 2^nd Defendants explain why this Court should consider those documents.

39.  Finally, the 3^rd type of documents was a declaration made by Mr. Yip on 18 January 2017 to confirm that the letter dated 19 February 2010 which the deceased submitted to the Family Court had been written by the deceased personally. In respect of that letter, the trial judge had already dealt with it in paragraph 31 of her judgment. This declaration by Mr. Yip is neither necessary nor material to the appeal.

40.  Based on the above reasons, the application of the 1^st and the 2^nd Defendants to adduce fresh evidence in the appeal does not meet the legal principles stated in paragraph 25 above. The summons taken out by the two Defendants shall therefore be dismissed.

The Plaintiff’s grounds of appeal

41.  In this appeal, the Plaintiff filed the Notice of Appeal, the Supplemental Notice of Appeal, the (Revised) Notice of Appeal as well as the (Revised) Supplemental Notice of Appeal. The Plaintiff confirmed at the appeal hearing that she would rely on the (Revised) Supplemental Notice of Appeal filed last as her grounds of appeal.

42.  The Plaintiff’s grounds of appeal can generally be summarised into two aspects, one of which concerns points of law whilst the other concerns the trial judge’s findings of fact.

(A) Grounds of appeal on the points of law

43.  On the points of law, the Plaintiff submitted that:

(1)The deceased’s domicile was China and the 3^rd Will turned up in Shenzhen and thus, the applicable law shall be the laws of China.

(2)The 3^rd Will is invalid under the Law of Succession of the Mainland.

(3)The 3^rd Will is regarded as an international will but does not fulfil the requirements of international wills.

(4)The breach of the Family Court’s order by the deceased and the defendants caused the 3^rd Will to become invalid.

44.  In respect of the deceased’s domicile, we must point out that neither the statement of claim nor the witness statement(s) of the Plaintiff alleged that the domicile of the deceased was on the Mainland instead of Hong Kong. In a civil action, pleadings play an important role in defining the scope of issues in the proceedings. Where the statement of claim had not been amended with leave of the court, the deceased’s domicile could not become the issue in this case. Furthermore, it was also expressly stated in the Master’s order (paragraph 2) and decision (paragraph 17) dated 26 January 2012 that the deceased’s domicile was not an issue agreed by both parties.

45.  It was not until 29 November 2012 that the Plaintiff made an application to the trial judge to introduce the deceased’s domicile as an issue in the case. Notwithstanding that such an issue was not supported by pleadings or witness statements, the trial judge still considered and dealt with it in paragraphs 46 to 48 of her judgment. It was pointed out by the trial judge that the deceased was born on the Mainland and educated up to higher secondary school before settling in Hong Kong. In the divorce petition filed in 2006, he indicated that both his and the Plaintiff’s domicile was Hong Kong and in the three wills made in 2008 and 2010, he also declared that his domicile was Hong Kong. His hospital admission record as well as death certificate also state that his native place and household account was Hong Kong. The trial judge opined that even though the deceased travelled to and from the Mainland frequently between 2001 and 2006 and the time he spent on the Mainland had increased thereafter, he still returned to Hong Kong frequently. The trial judge found that the Plaintiff had not produced sufficient evidence to prove that the deceased’s domicile was not Hong Kong.

46.  The Plaintiff pointed out in her grounds of appeal that the 3^rd Will was made in Mainland China, that the deceased passed away and was buried on the Mainland, that the deceased had a fixed place of abode in Chiwei Village, Futian of Shenzhen, and that the deceased had since 2009 until his death in February 2010 stayed in Shenzhen for a long period of time and had spent only 28 days in Hong Kong.

47.  Firstly, this is a probate action and the material consideration is whether the deceased’s domicile was Hong Kong when he made the 3^rd Will. Secondly, the undisputed facts in this case were that although the deceased was born in Mainland China, he later settled in Hong Kong, got married, raised his family and purchased the matrimonial property in Hong Kong. Subsequently, the deceased filed for divorce in Hong Kong and declared in the divorce petition that his domicile was Hong Kong. The Plaintiff did not dispute that in the divorce proceedings. Besides, in the 1^st and the 2^nd Wills, the deceased also declared that his domicile was Hong Kong and that he opted to have the probate matters interpreted and handled in accordance with the laws of Hong Kong. The same declaration was repeated in his 3^rd Will.

48.  In such circumstances, should the Plaintiff allege that the deceased’s domicile had changed from Hong Kong to Mainland China at the time he made the 3^rd Will, she bore the burden of proof.  A change of domicile was a significant matter and the court would not readily draw such an inference. The Plaintiff must adduce cogent evidence to clearly and specifically prove that the deceased had changed his domicile and abandoned Hong Kong as his domicile.

49.  None of the facts of the deceased making the 3^rd Will, passing away and being buried in Mainland China were material considerations. Nor was the fact that the deceased had a fixed place of abode in Shenzhen an important factor. That the deceased spent most of his time in the Mainland 13 months before making the 3^rd Will was not a decisive factor either. The evidence in this case showed that during the period between 2008 after being diagnosed with cancer and February 2010 before his death, the deceased spent a long time on the Mainland for treatment, and yet he often went back and forth between the Mainland and Hong Kong. In fact, as stated by the trial judge, the deceased had all along been travelling across the border and had also spent lots of time on the Mainland.

50.  Having considered all the evidence in this case, we find that the trial judge was right in finding that the Plaintiff had failed to adduce sufficient evidence to prove that the deceased was not domiciled in Hong Kong when he made the 3^rd Will.

51.  At the same time, there was no evidence or legal basis in this case to support the Plaintiff’s allegation that the law applicable to the 3^rd Will was not the law of Hong Kong. As it has been stated above, in his 3^rd Will the deceased opted to have probate matters interpreted and handled in accordance with the laws of Hong Kong. Hence, neither the statutory requirements for making wills stipulated in the Law of Succession of Mainland China nor the regulations on “international wills” are applicable in this case. In any event, no expert evidence was provided by any experts in Chinese law during the trial of this case. The Plaintiff’s ground of appeal that the 3^rd Will was in breach of the Law of Succession of Mainland China as well as other legal provisions fails.

52.  It was also contended by the Plaintiff that the deceased’s estate bequeathed to his parents under the 3^rd Will included also the matrimonial property in Shenzhen and therefore, it was a breach of the deceased’s undertaking given to the Family Court on 4 December 2009. Besides, the 1^st Defendant also attended the hearing on that occasion and knew that the deceased had given an undertaking. Under such circumstances, the 3^rd Will should be invalid.

53.  As recorded in the order dated 4 December 2009 in FCMC 9593/2006, the deceased gave his undertaking to the Family Court that he would not sell, mortgage or deal with a Shenzhen taxi before the conclusion of the proceedings on ancillary relief or any further order of the court. Although paragraph 7 of the above order mentioned the residential unit in Futian District, Shenzhen as well as two other Shenzhen taxis, such assets do not fall within the scope of the deceased’s undertaking.

54.  Admittedly, the deceased gave an undertaking to the Family Court that he would not sell, mortgage or deal with the said Shenzhen taxi at this stage. However, he did not deal with that taxi specifically in his 3^rd Will but just generally stated that he would bequeath his estate to his parents. The Will did not become valid until after the deceased’s death. The assets still owned by the deceased at his death constituted his estate. If the said taxi was his asset at the time of his death, then it became part of his estate. The executor of the Will shall then deal with it in accordance with the provisions in the Will. On the contrary, if the said taxi was not the deceased’s asset at the time of his death, then the executor of the Will shall no longer be required nor was he/she allowed to deal with it in terms of the instructions under the Will.

55.  The above analysis shows that bequeathing the estate to the deceased’s parents under the 3^rd Will does not contravene the undertaking that the deceased gave to the Family Court. This ground of appeal of the Plaintiff fails.

(B) Grounds of appeal against the findings of fact

56.  Against the findings of fact of the trial judge, the Plaintiff’s main grounds of appeal were:

(1)Neither the Defendants nor Mr. Yip were honest and reliable witnesses. Their testimonies were far from true in various respects. That includes their testimonies on the course of as well as the reasons for the deceased making the 3^rd Will, and also their versions that they had paid for the medical and funeral expenses of the deceased. Besides, they provided false evidence, including the “Visit Record” and the letter dated 19 February 2010 alleged to have been submitted by the deceased to the Family Court for the application for the extension of time.

(2)The 3^rd Will was not made in accordance with the deceased’s wishes. When the deceased signed the 3^rd Will, his medical condition had worsened to such an extent that he did not have a clear mind, and was unfit in both cognitive functioning as well as memory capability. It was in a state of incapacity that the deceased signed the 3^rd Will.

57.  As stated in paragraph 37 above, it was well settled that in respect of findings of fact, an appellate court will not readily interfere with the findings of the trial judge on factual issues and the credibility of witnesses and the appellant must prove in his/her grounds of appeal that the findings of the trial judge are plainly wrong. Furthermore, an appeal is not a second trial or a retrial of the case. The appellant’s appeal will not succeed if he merely regurgitates the arguments and versions that have been advanced in the original trial instead of identifying palpable errors made by the trial judge in the findings.

58.  The trial of this case lasted 3 days, during which the Plaintiff, the two Defendants and Mr. Yip all testified in court. The trial judge had the benefit of observing their demeanour when they testified, and also hearing the contents of their testimonies and other evidence in the case. As can be seen from her judgment, the trial judge got a full understanding of the factual disputes between parties as well as the relevant evidence in the case. The trial judge was certainly aware that the 2^nd Defendant was one of the beneficiaries of the 3^rd Will and that the 1^st Defendant, being his daughter, might get a chance to become the successor to her parents’ estate, and that Mr. Yip was a relative of the deceased and the two Defendants. Having considered these factors and the relevant evidence in the case, the trial judge found Mr. Yip an honest and reliable witness and explained her reasons in her judgment. I find no apparent errors in the analysis of the trial judge in respect of the credibility of Mr. Yip as well as the reliability of his testimony.

59.  The grounds of appeal and written submissions of the Plaintiff mostly repeated what was submitted to the trial judge, which had obviously been considered by the trial judge, though not accepted based on the reasons and analysis as mentioned in her judgment. The Plaintiff failed to specify in the appeal where the trial judge had obviously erred in her findings.

60.  One of the matters the Plaintiff raised was that the elder daughter said she was once taken out of the deceased’s ward and so she did not see the deceased sign the 3^rd Will. Because of that, the Plaintiff held a firm opinion that the 1^st Defendant and Mr. Yip did not witness the deceased’s signing of the 3^rd Will at the same time. The trial judge did not accept this submission and explained her reasons for that (see paragraph 43 to 45 of her Judgment). We do not find any error in the trial judge’s findings.

61.  The Plaintiff also challenged Mr. Yip’s testimony that, after the deceased signed the 3^rd Will, he wrote a letter to the Family Court to apply for an extension of time. As can be seen from paragraph 31 of the judgment, during the trial the Plaintiff did not dispute that the letter was handwritten by the deceased (except for the few words “Your Honourable Judge” in the first line). However, in this appeal, the Plaintiff contended that the said letter was not subject to forensic examination and therefore it should not be accepted as a letter personally written by the deceased. She even asked for a handwriting forensic examination to be done on the said letter. We find the Plaintiff’s grounds and submission on this matter do not have a reasonable basis and are unacceptable.

62.  The Plaintiff also challenged the evidence of the two Defendants and Mr. Yip on having paid for the medical and funeral expenses of the deceased. The Plaintiff alleged that the deceased had sufficient money and assets, including severance pay in 2007 in the order of hundreds of thousands of dollars; therefore, there was no need for others to pay the medical and funeral expenses on his behalf. In the course of conducting the appeal, the Plaintiff once made an application for discovery against a third party and the Defendants.

63.  In refusing the Plaintiff’s application (see the Judgment dated 19 December 2014), the Court of Appeal pointed out that the said dispute would not affect the central issue and the judgment in the case and the appeal. Besides, the evidence in this case shows that the deceased became unemployed in 2007 after he was laid off. He had suffered from illness since 2008 and had received long periods of treatment in both Hong Kong and Shenzhen. That continued until his death. He disclosed in his affidavit/affirmation dated 30 March 2009 and filed with the Family Court in respect of the divorce proceedings that he received a severance payment of $189,993 only and also mentioned that the medical fees were expensive and so he needed support from his family. Furthermore, although the trial judge accepted that the 2^nd Defendant did pay lots of medical expenses for the deceased after he became ill, she did not make any findings on the amounts of the payments concerned.

64.  We are of the view that the grounds of appeal and submission the Plaintiff made against the 2^nd Defendant concerning the payment of over $2 million made on behalf of the deceased are actually neither here nor there. What the Plaintiff did was simply repeat her challenge already raised at the trial. She failed to show that the trial judge’s findings in this respect were erroneous.

65.  In summary, we find that the Plaintiff’s grounds of appeal and submission do not adequately show that the trial judge erred in her findings where she accepted the evidence of both Mr. Yip and the two Defendants, not to mention any palpable errors.

66.  As to whether the deceased was competent when he signed the 3^rd Will and whether the 3^rd Will was made according to the deceased’s wishes, the trial judge’s findings were mainly based on the “Visit Record” and the testimonies of Mr. Yip and the 1^st Defendant. Regarding the testimonies of Mr. Yip and the 1^st Defendant, we have pointed out in the discussion above that we find no basis for intervening in the findings of the trial judge accepting the evidence of the said witnesses.

67.  As regards the “Visit Record”, the Plaintiff challenged its authenticity at trial. The trial judge noted that as early as 4 March 2011, the two Defendants already mentioned the “Visit Record” in the Defence and disclose it in the List of Documents, but the Plaintiff did not raise the issue of authenticity in her Reply. Nor did she produce specific evidence to challenge or rebut its authenticity.

68.  On the other hand, at trial the judge also examined the copy of the “Visit Record” produced by the 1^st Defendant which was imprinted with the red seal of the hospital. Having considered it, the trial judge accepted the 1^st Defendant’s evidence as to how the “Visit Record” was obtained from the hospital and her explanation as to why she could only submit to the judge a copy of the said “Visit Record” with the hospital’s red seal.

69.  We find that the trial judge was fully justified in accepting the “Visit Record” as evidence and adopting its contents. As the trial judge had pointed out, should the Plaintiff intend to challenge the authenticity of the “Visit Record”, investigation and collection of evidence should have been conducted prior to the trial. In the circumstances where there was no evidence to challenge the authenticity of the “Visit Record” in the case, it was correct for the trial judge not to accept the Plaintiff’s challenge to the “Visit Record”.

70.  It was not until after the Plaintiff lost in the action that she applied to adduce fresh evidence in the appeal. Yet, it was already too late and did not satisfy the statutory requirements either. This was discussed in paragraphs 26 and 27 herein and we will not repeat it here. Furthermore, even if the fresh evidence intended to be adduced by the Plaintiff in the appeal were accepted, at best it only showed that the “Visit Record” was not obtained through normal procedures or ordinary channels of the hospital. It did not support the Plaintiff’s allegation that the record was false and forged evidence.

71.  In dealing with the issue of whether the deceased was competent, the trial judge also considered the relevant nursing record and record of death of the deceased kept by Nanshan Hospital produced by the Plaintiff. The trial judge pointed out that it could be seen from the said records that when the deceased was admitted to the hospital on 12 February 2010, his mind was clear and he was capable of taking care of himself, and he could express himself “clearly”. It was not until 5 p.m. on the day of his death that he had convulsions and altered consciousness and fell into a “light coma” (paragraphs 39 and 40 of the Judgment). The trial judge’s findings were that the said medical records did not prove the incapacity of the deceased when he signed the 3^rd Will. We find the trial judge’s analysis and findings correct. The Plaintiff submitted that whilst the hospital record indicated that the deceased was conscious, the trial judge misapprehended it as the deceased having a clear mind. After an overall review of the reasons for judgment given by the trial judge, we are of the view that such a difference does not have a material effect on the findings of the case.

72.  In summary, the grounds of appeal raised by the Plaintiff as well as her submissions failed to show that the trial judge erred in finding that the deceased knew and approved the contents of the 3^rd Will and had testamentary capacity when he signed it.

73.  Based on the above analysis, we find that the Plaintiff’s grounds of appeal against the factual findings of the trial judge failed.

Costs order of the trial judge

74.  The Plaintiff also appealed against the costs order made by the trial judge, stating that she should not be ordered to pay costs.

75.  The award of costs is within the discretion of a trial judge. The usual practice is that the losing party shall pay the costs of the opposite party. The trial judge is entitled to order the Plaintiff to pay the costs of the two Defendants. The costs order she made was consistent with legal principles. This ground of appeal of the Plaintiff failed.

76.  Since the Plaintiff’s grounds of appeal failed, her appeal shall be dismissed.

The Respondents’ notices

77.  In this appeal, the two Defendants filed “Notice of the 1^st and the 2^nd Respondents”, “Supplemental/ Amended Notice of the 1^st and the 2^nd Respondents” and “(Revised) Notice of the 1^st and the 2^nd Respondents” in support of the trial judge’s decision.

78.  Given that the Plaintiff’s grounds of appeal failed, there is no need for us to deal with the grounds raised in the Respondents’ Notices.

Costs

79.  According to the usual practice, the Plaintiff, having lost the appeal, shall pay the costs of appeal of the two Defendants. As regards the application to adduce fresh evidence, since the applications of both parties were dismissed, we make no costs order in respect of the applications by summons taken out by both sides.

80.  Since all the parties are unrepresented, we consider that the costs of the appeal shall be dealt with by summary assessment. We direct that the 1^st and the 2^nd Defendants shall lodge in Court and serve on the Plaintiff a Costs List of the Appeal (excluding the summonses dated 29 November 2016, 29 December 2016 and 26 January 2017 and the costs incurred in respect of them) within 14 days from the date of handing down of this judgment. The Plaintiff may lodge and serve Reasons for opposition, if any, within 14 days thereafter. The costs will be assessed on a summary basis on paper.

Conclusion

81.  It is hereby ordered that:

(1)The Plaintiff’s summons dated 29 November 2016 be dismissed;

(2)The summonses dated 29 December 2016 and 26 January 2017 of the 1^st and the 2^nd Defendants be dismissed;

(3)There be no order as to costs of the said three summonses;

(4)The Plaintiff’s appeal be dismissed;

(5)Costs of the 1^st and the 2^nd Defendants in this appeal be paid by the Plaintiff, to be taxed by summary assessment;

(6)The 1^st and the 2^nd Defendant shall lodge in Court and serve on the Plaintiff the list of costs for summary assessment within 14 days from the date of handing down of this judgment.

(7)The Plaintiff may lodge with the Court and serve on the 1^st and the 2^nd Defendants her reasons for opposition, if any, within 14 days thereafter.