KWONG DEANNA v. The Personal Representative of the estate of YUAN, MEI CHING Deceased

DCMP 5746/2024

[2026] HKDC 1335

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 5746 OF 2025

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REASONS FOR DECISION

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1.  By the Amended Originating Summons dated 27 February 2025, the Plaintiff seeks a declaration that various personal properties of Madam Yuan Mei Ching (阮梅青)[1], deceased (“Yuan”) have been gifted to the Plaintiff by way of donatio mortis causa and a consequential vesting order under section 52 of the Trustee Ordinance (Cap 29).

2.  At the hearing on 23 April 2026, I granted the declaration and reserved my reasons for decision which I now give.

Family Background

3.  Yuan was born on 29 October 1932.

4.  The Plaintiff was born on 22 October 1949.  She is the daughter of Lui Hiu Fu (呂曉夫)[2] (“Lui”).  The Plaintiff’s parents divorced in early 1950’s.

5.  In 1965, Yuan and Lui got married according to Chinese customary rites and ceremonies.  At that time, the Plaintiff was around 15 years old.  Since then, Yuan, Lui and the Plaintiff lived together as a family. A few years later, the family moved to live at a property acquired by Lui in Tai Hang.

6.  Lui passed away in 1988.  Since then, it was the Plaintiff and her family who took care of Yuan.

7.  Yuan died intestate on 29 September 2017 at the age of 84.  The only relative of Yuan known to the Plaintiff is her elder sister (阮志香) whom she had met once when Yuan and Lui got married.  She was told by Yuan that her sister was about 10 years older than her and would have been in her mid-90s when Yuan passed away.

8.  The assets of Yuan which are the subject matter of this action are the following:

(1)  All cash in one bank account with the Bank of China (Hong Kong) Limited[3] and three bank accounts with the Hong Kong and Shanghai Banking Corporation Limited (“HSBC”)[4];

(2)  All items contained in the safe deposit box number 063-0071813 with HSBC (“Safe Deposit Box”); and

(3)  Shares in 3 public companies, namely 5,500 shares in Power Assets Holdings Ltd (stock code 0006) (“Power Assets Shares”); 2,000 shares in Hysan Development Company Ltd (stock code 0014) (“Hysan Shares”) and 6,375 shares in HK Electric Investments Ltd (stock code 2638) (“HK Electric Shares”)

Procedural Background

9.  After the death of Yuan and in 2018, the Plaintiff erroneously purported to apply for the grant of letters of administration in the capacity as Yuan’s lawful daughter.  Her application made in the capacity of a step-daughter was not entertained by the Probate Registry as she has not been lawfully adopted.  The Plaintiff did not pursue the matter until she obtained legal advice in late 2023.

10.  In July 2024, the Plaintiff placed an advertisement with a local newspaper with a view to locate the next of kin of Yuan but in vain.  Yuan’s elder sister would be around 100 years old had she been alive.

11.  On 9 October 2024, an Originating Summons was taken out by the Plaintiff with the Secretary for Justice (“SJ”) as the Defendant.  The SJ has an interest in this matter because if the Plaintiff’s claim should fail, Yuan’s residuary estate would become Government properties under the doctrine of bona vacantia. 

12.  The SJ made various requisitions with the Plaintiff’s solicitors as to the existence of any surviving persons who might be entitled to take an absolute interest of the residuary estate of Yuan.  The SJ eventually confirmed that the Government did not intend to claim bona vacantia and took a neutral stance to the Plaintiff’s claim, but reserved his right to claim in case the Plaintiff’s claim is unsuccessful.

13.  On 10 February 2025, the Personal Representative of the estate of Yuan was substituted as the Defendant in place of the SJ and the Originating Summons amended and re-issued on 27 February 2025 (“AOS”).

14.  In July 2025, the Plaintiff placed advertisements with three local newspapers for the purposes of tracing the next of kin or other relatives of Yuan and ascertaining their willingness to as the Defendant in the present proceedings but in vain.

15.  The Plaintiff further inquired with the Official Solicitor if they would agree to be appointed to represent the Defendant for the limited purpose of accepting service of the AOS which the Official Receiver agreed. 

16.  Requisitions were then raised by the court as to the appropriateness of appointing the Official Solicitor to represent the Defendant.  The Plaintiff then filed her 3^rd and 4^th Affidavits in answer to the same.  Eventually on 10 November 2024, the appointment order was granted.  After accepting service of the AOS, the Official Receiver became functus officio.  By an order dated 17 December 2025, the present action was ordered to be carried on by the Plaintiff in the absence of any person representing the estate of Yuan.

Legal Principles

17.  The legal principles of donatio mortis causa are well established.  In Re Estate of Lung Nga Lai Eilly[5],the Court of Appeal cited the judgment of DHCJ Lisa Wong (as she then was) below[6] with approval at §7:

“Legal Principles about donation mortis causa

7. In [26]-[29] of her judgment, the Trial Judge has correctly set out the legal principles of donatio mortis causa as follows:

[26] The law will not perfect an imperfect gift. This principle is well-established; see Milroy v Lord (1862) 45 ER 1185, 1189. This authority was cited by A. Cheung J in Official Administrator v Luk Hoi Tong Company Limited [2005] 3 HKC 615, para 102.

[27] However, donatio mortis causa is one of the exceptions to this principle. The reason is that a donatio mortis causa is a singular form of gift, being a gift which is neither inter vivos nor testamentary. It is an act inter vivos by which the donee is to have the absolute title to the gift not at once but if the donor dies. If the donor dies the title becomes absolute not under but as against the personal representative of the donor. In order to make the gift valid it must be made so as to take complete effect on the donor’s death; see Re Beaumont [1902] 1 Ch 889, 892.

[28] In addition, donatio mortis causa was held to be a trust raised by operation of law. Upon the death of the donor, his personal representative will hold, as trustee, the legal title to the gift for the donee; see Duffield v Elwes (1827) 1 Bli (NS) 497, 543.

[29] There are 3 requirements of a donatio mortis causa:

(1) The donor must have made the gift in contemplation though not necessarily in expectation of death;

(2) The donor must have delivered to the donee the subject-matter (in the case of a chose in possession) or the indicia of title (in the case of a chose in action) of the gift, or transferred to him the means of getting at that subject-matteror indicia of title, e.g. delivering a key, like car keys, or a key to a box containing the indicia of title, intending to part with dominion over the gift;

(3) The gift must be such as to be absolute and complete only on the donor’s death so that it is revocable before then. A condition to this effect need not be expressed and will normally be implied from the fact that the gift was made when the donor was seriously ill.

(See para. 105 of Luk Hoi Tong, where A. Cheung J cited the legal principles elucidated on p. 276 of Hayton and Marshall, Commentary and Cases on the Law of Trust and Equitable Remedies (11^th Ed.))”

18.  As to the 1^st requirement, DHCJ Queeny Au-Yeung (as she then was) held in Chan Gordon v Lee Wai Hing[7], at §§75-76:

“Made in contemplation of death

75. “In contemplation of death” does not mean the possibility of death at some time or other, but death within the near future, which may be called death for some reason believed to be impending: Re Craven’s Estate [1937] 1 Ch 423, at 426, per Farwell J.

76.  If death was certain, so that the possibility of the donor’s recovery was removed, there was no scope for a donatio mortis causa; the purported gift must be treated as an attempted lifetime gift or fail as a testamentary disposition: Cai Guo Xiang v. Mok Hang Won Elsa [2001] HKCU 260, following Lord Advocate v. M’Court [1952] All ER 184.”

19.  On the 2^nd requirement, DHCJ Lisa Wong SC (as she then was) explained in Re Estate of Lung Nga Lai Eilly[8], at §31:

“31. Considerations about the second requirement:

(1)  The subject-matter or indicia of title of the gift can be delivered through an agent.  In other words, a donee can take delivery of a joint gift for himself and as agent for another donee or a number of donees; see Birch v Treasury Solicitor [1950] 1 Ch 298, 303.

(2)  A passbook is the indicia of title of the deposit in the relevant bank account. By delivering a passbook, a donor can validly gift the deposit by way of donatio mortis causa to a donee; see Birch v Treasury Solicitor.

(3)  After delivery of the subject-matter of the gift or its indicia of title, the donor must part with dominion over the gift.  The reason is that the gift must be some definite property and, to ensure that it can validly pass under donatio mortis causa, the donor must put it out of his power to deal with the gift between the date of the donation and the date of the death; see Re Craven’s Estate [1937] 1 Ch 423, 427.”

20.  The burden of proving all three requirements have been met rests with the plaintiff:Re Estate of Lung Nga Lai Eilly (CFI), at §16[9]. In Re Estate of Chen Soo King, DHCJ Bebe Chu (as she then was) quoted Lord Chelmsford’s judgment in Cosnahan v Grice[10] on burden of proof at §28[11]:

“Cases of this kind demand the strictest scrutiny. So many opportunities, and such strong temptations, present themselves to unscrupulous persons to pretend these deathbed donations, that there is always danger of having an entirely fabricated case set up. And, without any imputation of fraudulent contrivance, it is so easy to mistake the meaning of persons languishing in a mortal illness, and by a slight change of words, to convert their expressions of intended benefit into an actual gift of property, that no case of this description ought to prevail, unless it is supported by evidence of the clearest and most unequivocal character.”

21.  The Court may summarily dispose of an originating summons if the defendant’s liability is established and there are no triable issues. The Court may grant declaratory relief without a trial where the plaintiff has a genuine need for declaratory relief which the court can properly grant on the merits of the case: Kwok Wing Fat v The Personal Representative of the Estate of Kwok Chun Kan, Deceased, at §12[12].

Evidence

(1)  Relationship between the Plaintiff and Yuan

22.  The Plaintiff has enjoyed a close mother/step-daughter relationship all their lives.  The close bond with Yuan stayed intact even after the Plaintiff got married and moved out in 1976.  When Lui passed away, the Plaintiff inherited the Property where Yuan continued to live in.  The Plaintiff and her husband and their two sons became Yuan’s only family and the Plaintiff continued to take care of her all these years.

23.  In 2005, the Plaintiff and her husband moved to their retirement home in Cheung Chau.  In order to take care of Yuan who was then aged 76, the Plaintiff rented a property near to her home in Cheung Chau for Yuan to stay so that she and her family could take care of and spend time with her.

24.  In about 2011, Yuan was admitted to Tung Ming Convalescent Home in Cheung Chau (“Convalescent Home”) which provided professional nursing and care for elderlies the expenses of which were paid for by the Plaintiff and her husband. 

25.  Like many elderlies in their 80s, Yuan has been suffering from different kinds of medical problems and had since end of 2016 spent most of her time in and out of hospitals.  The Plaintiff visited her every day to take care of her, something not every natural daughter could/would do.

26.  Upon Yuan’s passing, the Plaintiff arranged her funeral in the name of her “daughter”. 

(2)  Making of the Gift to the Plaintiff

27.  On 31 July 2017, Yuan was admitted to Tung Wah Hospital for congestive heart failure precipitated by anemia.  One day in late August 2017, Yuan had a conversation with the Plaintiff.  She first thanked the Plaintiff, as her daughter, for taking care of her.  She then told the Plaintiff that when she passed away, all her cash at bank, stocks and items in the Safe Deposit Box would be given to her.[13] She then said that her belongings were all kept at the Convalescent Home and handed the key to her locked drawer[14].  The Plaintiff became very emotional and tried to comfort Yuan by saying that she would be discharged soon.  Yuan then said she felt she did not have much time left[15] and repeated that she would leave everything to the Plaintiff[16].

Analysis

28.  Given that Yuan treated the Plaintiff as her daughter who was her only family member, I have no reason to disbelieve that Yuan intended to leave all her assets to the Plaintiff upon her death. 

29.  Since 2016, Yuan had been in and out of hospital.  When this conversation took place, she had been admitted to hospital for nearly a month.  

30.  In his skeleton submissions, Mr Tam, counsel for the Plaintiff, has helpfully set out Yuan’s conditions at the material time with reference to the medical evidence adduced by the Plaintiff. In short, Yuan was suffering from various serious illnesses.  She was given oxygen and was both bowel and bladder incontinent and on urinary and intravenous catheters.

31.  Having regard to the words used by Yuan[17], her advanced age, the closeness of time between the statement made and her death, which was about a month, I am satisfied that Yuan was contemplating death when she made the gift to the Plaintiff and she had made it explicit that the gift was conditional on her death.  The first and third requirements are therefore satisfied.

32.  I also find that the second requirement is satisfied.  By giving the Plaintiff the key to the locked drawer which contained the passbooks, the key to the Safe Deposit Box and the HK Electric Shares, Yuan had delivered and parted her dominion with:

(1)  the cash in the bank accounts as the passbooks are indicia of title to the deposits therein[18];

(2)  the HK Electric Shares as the original share certificates are indicia of title; and

(3)  the items kept inside the Safe Deposit Box including the Power Assets Shares and the Hysan Shares of which the original share certificates are kept therein.

Conclusion

33.  For the reasons set out above, I made a declaration in terms of §1 of the AOS save that the safe deposit box number be corrected to 063-00718B.

34.  As to the consequential vesting order sought in the AOS, Mr Tam submitted that in the circumstances of the present case, the Plaintiff is happy to have the general provision granting liberty to apply which I so ordered. 

35.  Lastly, it remains for me to thank Mr Tam for his assistance.