WU WAI SUN v. WU SIU LING LINDA, in her personal capacity and as the sole executrix of the estate of WOO CHUN SZE, deceased AND OTHERS

HCMP 196/2018

[2024] HKCFI 2382

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 196 OF 2018

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BETWEEN

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JUDGMENT

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Table of Contents

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A. INTRODUCTION

1.  The present proceedings were issued by the plaintiff over the interpretation of the Deceased’s last will and the administration of the estate of the Deceased (“Father’s Estate”), including removing the 1^st defendant as the executrix of the will.

2.  The plaintiff (“P”) and the defendants (respectively “D1”, “D2”, “D3” and “D4”) are siblings (collectively “5 Siblings”). At present, there are two actions between P on one side and the defendants, namely the defending 4 siblings, on the other. The two actions were both commenced on the same day 12 February 2018. HCMP 193/2018 (“HCMP 193”) was commenced by the defendants against P over the administration of their mother’s estate (“Mother’s Estate”) including removing P as the administrator of Mother’s Estate. The present action HCMP 196/2018 (“HCMP 196”) was commenced by P against the defendants concerning Father’s Estate. HCMP 193 was stayed on 12 September 2018 pending determination of the present action. As D2 and D4 had failed to turn up during this trial and/or to participate in the trial, D1 and D3 are the only remaining defendants in this action and they will be referred to collectively in this judgment as “Ds”.

3.  The Deceased was the father of the 5 Siblings and their mother was Madam Wong Mei Kam (“Madam Wong”). As said by P’s counsel Mr Ronald Pang, this case is unfortunate and results from mistrust between family members.

4.  Prior to the trial, it was not disputed that the Deceased had executed 2 wills, namely one in English dated 25 February 2009 in a solicitors’ office in the presence of a solicitor and his clerk (“2009 Will”)[1] and one in Chinese dated 10 October 2014 in another solicitors’ office in the presence of a solicitor and his clerk (“2014 Will”)[2]. During the trial, D1 suddenly disclosed that there was another testamentary document in Chinese (平安囑書) executed by Deceased on 31 July 2013 in the presence of a Justice of the Peace and another witness, and signed by D1 as the appointed executrix therein (“2013 Will”)[3].

5.  In the amended originating summons and the re-amended statement of claim (“RASOC”)[4], P seeks amongst other things:

(1) A determination on the question of whether a property in Kam Shan Building, Tai Wai Road in Shatin (“Shatin Property”) forms part of Father’s Estate;

(2) A determination on the questions of whether P and/or Ds were in breach of Clause (3)(ii), Clause (4) of the 2014 Will in regard to the burial and funeral arrangements of the Deceased;

(3) A determination on the question of whether P and/or Ds were in breach of the Clause (3)(iii) of the 2014 Will by commencing and conducting this action and HCMP 193;

(4) A determination of the question of whether the sum incurred by P of HKD370,140 was properly incurred as Deceased’s funeral expense pursuant to Clause (4) of the 2014 Will[5];

(5) If the above questions are determined in the negative, a determination of Deceased’s true testamentary intentions of those clauses referred to above and an order for rectification of the 2014 Will as the Court deems fit;

(6) An order that D1 shall provide an account of her purported administration of Father’s Estate up to date of RASOC including the rentals of Shop E (as defined later)[6];

(7) If the Court deems it necessary, D1 be removed from being the sole executrix of Father’s Estate and be replaced by a person whom the court deems fit;

(8) A declaration that, on a true construction of Clause (3)(iii) of the 2014 Will, this probate administration action does not constitute a legal action challenging the Deceased’s arrangements (whether prior to his passing away or thereafter) on the part of P.

6.  In the re-amended defence of Ds and re-amended counterclaim of D1 (collectively “RADRAC”)[7], D1 in her capacity as the sole executrix of the Father’s Estate counterclaims against P for amongst other things:

(1) A declaration that P has failed to act in accordance with the Deceased’s wishes in Clause (3)(ii) of the 2014 Will and he shall not be entitled to any asset of Father’s Estate under the 2014 Will;

(2) Further or in the alternative, a declaration that P is not entitled to any interest in Father’s Estate or be regarded as a beneficiary of Father’s Estate;

(3) A declaration that P’s commencement of this action falls within he scope of Clause 3(iii) of the 2014 Will.

7.  On 12 September 2018, DHCJ Leung ordered that the originating summons proceedings be converted and continued as if begun by writ, and gave directions for filing of pleadings.

8.  Counsel Mr Ronald Pang and Ms Aria TC Cheung appeared for P at the trial, and counsel Mr Ernest Koo and Mr Stony Chan appeared for Ds. D2 was initially legally represented by Ds’ solicitors who ceased to act for D2 on 6 October 2022. D2 did not turn up at the trial. D4 had acted in person throughout and had lodged written opening submissions in Chinese on 26 February 2024 (wrongly typed as 2014), but eventually she did not turn up during the trial. In the circumstances, this Court directed that the pleadings filed by D2 and D4 in the present action be struck out and that any evidence filed by them, and any witnesses who did not attend trial, was not admitted.

B. BRIEF OVERVIEW

9.  The Deceased was born in 1922. Madam Wong was born in 1923[8]. They were both of Chiu Chow origin. He and Madam Wong were married in 1949 in Hong Kong. Madam Wong predeceased the Deceased on 13 October 2008. As said, the Deceased died on 24 December 2016 about two years after making the 2014 Will.

10.  The 5 Siblings were the only lawful and natural children of Deceased and Madam Wong, and they are, in the order of their ages:

(1) P, the eldest son born in 1951

(2) D2, a son born in 1954

(3) D3, a son, born in 1957

(4) D4, a daughter, born in 1959

(5) D1, a daughter, born in 1960, and the appointed executrix under the 2014 Will

11.  In about 1984, the Deceased and Madam Wong also “adopted” a son called Wu Wai Kit (胡偉杰) in accordance with the customary rites of their village in the Chao Nan district of Shantou in Guangdong Province (“Adopted Son”). There was no legal document in support thereof[9]. The Adopted Son was born in August 1958 and was/is residing in Shantou.

12.  It was not disputed that Deceased had operated a store and also a noodle stall during his lifetime. During their marriage, Deceased and/or Madam Wong had acquired the following properties:

(1) On 15 July 1970, Deceased and Madam Wong acquired in their joint names a shop on the ground floor in Lee Hing Building on Fa Yuen Street/Fife Street in Kowloon (“Shop E”)[10] at a consideration of HKD 120,000 (pt) with a mortgage to secure an overdraft loan. The mortgage was later paid off on 12 October 1972 but Shop E was re-mortgaged again on 4 June 1980 to secure general banking facilities, which was later paid off and the property was reassigned on 2 September 1983 to Deceased and Madam Wong as joint tenants[11];

(2) On 20 January 1976, the Shatin Property was acquired in Madam Wong’s sole name at a consideration of HKD 102,400 with a mortgage loan of HKD 70,000, which was paid off on 2 February 1981 and the Shatin Property reassigned to Madam Wong’s sole name[12];

(3) On 21 April 1992, a flat on 7^th floor of Lee Hing Building, above Shop E was acquired in joint names of the Deceased and D4 (“Flat 7E”) at a consideration of HKD 500,000[13]. According to the record at the Land Registry, as at 21 November 2018, there was a charging order nisi registered on 18 March 2005 in DCMP 852/2005 by the Incorporated Owners of Lee Hing Building as plaintiff against Deceased and D4 as judgment debtors[14]. On 9 October 2012, there was a memorandum of severance of joint tenancy registered at the Land Registry.

13.  In July 2007, P had made an application for a guardianship order over Madam Wong (“Guardianship Application”) which was later dismissed in January 2008 .

14.  On 13 October 2008, Madam Wong died intestate. Her funeral took place on 9 November 2008.

15.  On 25 February 2009, the Deceased, then about 87 years old, executed the 2009 Will at the offices of Messrs WS Lo & Yeung (“WSL&Y”) in the presence of a solicitor Mr Yeung Che Keung Dickens (“Mr Yeung”) and a clerk[15]. On the same day, the Deceased signed a “Renunciation of Administration” (“Renunciation”) in relation to Mother’s Estate[16].

16.  P then proceeded to apply for letters of administration of Mother’s Estate in Hong Kong. According to Ds, P’s application was made covertly.

17.  P was subsequently granted the letters of administration of Mother’s Estate in Hong Kong on 22 June 2009[17]. The Shatin Property was vested in P as administrator of Mother’s Estate on 24 July 2009.

18.  It was P’s allegation that in about August 2009, there was an agreement formed orally among the Deceased and the 5 Siblings (“Oral Agreement”), as a result of which, Mr Yeung had drafted a statement for the 5 Siblings to sign (“Draft Statement”) but ultimately, the statement was signed on 2 September 2009 by the 3 brothers only, namely P, D2, and D3 (“02.09.09 Statement”)[18]. It was stated therein that, amongst other things, the 3 of them agreed to (i) the sum of approximately HKD173,737 in Madam Wong’s HSBC account in Hong Kong at the date of her death to be given to their father, ie Deceased, as his living expenses, in accordance with the provisions of the Intestates’ Estates Ordinance, Cap 73 (“IEO”); (ii) to give the rental income from the Shatin Property to their father as living expenses, and not to sell the Shatin Property until after father’s death, and that the Shatin Property was to be distributed according to their father’ wishes; and (iii) for P to represent them to deal with Mother’s Estate in Mainland China including cash of about 700,000 odd held in a HSBC account in Mainland China and other landed properties, and to distribute such estate according to Mainland inheritance laws[19].

19.  The 02.09.09 Statement was prepared by Mr Yeung and was signed at the offices of WSL&Y.

20.  However, about 5 days later, on 7 September 2009, the Deceased sent a letter to Mr Yeung requesting (i) for copies of all documents handled by WSL&Y for him and for such copies to be provided to D4, and (ii) WSL&Y to inform him in writing whether there were other applications by him apart from the application dealing with Mother’s Estate (“Deceased’s 07.09.09 Letter”)[20]. On the same day, D4 also sent a letter to Mr Yeung requesting for information concerning the progress of the application for letters of administration Mother’s Estate alleging she and D1 had been unable to contact P[21] (“D4’s 07.09.09 Letter”).

21.  Thereafter, on 30 July 2010, Deceased executed a declaration in relation to the inheritance of Mother’s Estate in Mainland China in the presence of a China Attesting Officer at the offices of Messrs Fung, Wong, Ng & Lam (“Deceased’s Declaration”)[22]. It was not disputed that on the same day, ie 30 July 2010, P and Ds also attended the offices of Fung, Wong, Ng & Lam to execute a declaration in relation to the inheritance of Mother’s Estate in Mainland China in the presence of the China Attesting Officer (“Inheritance Declaration”)[23].

22.  On 24 November 2010, D4 sent a letter in Chinese to Deceased pointing out that if the Shatin Property were sold then Deceased could receive a sum of HKD 1m and if he decided not to sell, he should change the ownership according to the law, but the rent could continue to be received by him (“D4’s 24.11.10 Letter”)[24]. This was followed by a letter sent by D4 to P on 26 November 2010 which was in response to P’s letter notifying D4 to attend the Shenzhen Notarial Office to follow up on matters relating to Mother’s Estate in Mainland China. D4 declined to attend and further urged P to deal with the Shatin Property according to the law[25].

23.  On 9 October 2012, a memorandum of severance of joint tenancy between Deceased and D4 was registered in the Land Registry against the property Flat 7E[26].

24.  On 10 October 2014, the Deceased executed the 2014 Will in the presence of a solicitor Mr Yip Hin Fung, Delanlo (“Mr Yip”) and a clerk (“Ivan”) of Messrs Oliver CM Chan & Co (“OCMC”). There was a medical certificate issued by a Dr Chan Hung Tak of Elitecare Medical Centre, certifying that the Deceased, who was then 92 years old was conscious, alert and orientated and was mentally fit for decision making[27]. This was arranged by D1.

25.  As said, Deceased passed away on 24 December 2016.

26.  Suffice to say at this stage, thereafter, P contacted the director of a funeral home business in Hunghom (“3448 ”), namely Mr Li Ka Wa (“Mr Li”), to handle the Deceased’s funeral and to acquire a piece of grave land for the Deceased at a cemetery at Chaonan Qishan (“Qishan Cemetery”). On 3 January 2017, D1 had visited the Qishan Cemetery together with P and according to D1, Mr Li was formally engaged on 4 January 2017. However, on 6 January 2017, one day after P was informed by D1 of the existence of the 2014 Will, according to D1, Mr Li suddenly telephoned her and threatened to cancel all funeral arrangements and he telephoned D1 again on 7 January 2017, informing her that all funeral arrangements made with her including the acquisition of the piece of grave land had been cancelled. It was alleged by D1 that P secretly took over the Deceased’s funeral arrangements made by D1 and secretly altered some of the funeral arrangements without D1’s knowledge or consent. Further, it was alleged that P attempted to stop Ds from attending the funeral. It was also Ds’ allegation that P had failed to act in accordance with the Deceased’s wishes in the 2014 Will in relation to his funeral, and that P should not be entitled to any of the Father’s Estate under the provisions of the 2014 Will.

27.  Eventually, the disputes led to the commencement of HCMP 193 by Ds, D2 and D4 against P, and the commencement of the present action by P against them on 12 February 2018.

28.  It was also Ds’ case that by wrongfully maintaining his stance and commencing the present action, P should not be regarded as a beneficiary of Father’s Estate under the provisions of the 2014 Will.

C. THE 2009 WILL, THE 2013 WILL, AND THE 2014 WILL

29.  There was no challenge in relation to the validity of the 2014 Will although during the trial, Mr Yip had produced various communications between his clerk Ivan and D1 and no less than 11 drafts of the 2014 Will with various handwritten amendments/comments made by D1 including a document hand written by D1, with various amendments, and purporting to be that of Deceased’s wishes[28]. It was Mr Yip’s evidence that it was mostly Ivan who took instructions through communicating with D1, and that he also had no contact with Dr Chan Hung Tak of Elitecare Medical Centre. It was D1 who contacted Elitecare Medical Centre direct and produced to Mr Yip Dr Chan’s medical certificate certifying the Deceased, then 92 years old, was conscious, alert and orientated and was mentally fit for decision making[29].

30.  The 2009 Will was made in English[30] and briefly, the provisions were:

(1) P was appointed the sole executor and trustee;

(2) Shop E and the Flat E on the Mezzanine Floor were bequeathed by the Deceased to P absolutely;

(3) The property Flat 7E was bequeathed by the Deceased to his daughters D1 and D4 as joint tenants absolutely;

(4) The Shatin Property was bequeathed by the Deceased to D2 and D3 as joint tenants absolutely;

(5) The Deceased’s residuary estate was to be divided into 6 equal shares, with one equal share to each of the 5 Siblings and one share to the Adopted Son.

31.  The 2013 Will provided essentially that:

(1) D1 be appointed as the sole executrix;

(2) Deceased expressed his strong wish not to be sent to an old aged home, or to be under any guardianship order, and that his body could not be cremated, and if any of his children was unfilial or not complying with his wishes, he/she would not be entitled any share of his estate;

(3) After his death, his body was to be escorted back to his hometown for burial, and to adopt the hometown customary ritual for worshipping, similar to that of Madam Wong, and if any of his children was unfilial and failed to complete this customary ritual, he/she would not be entitled any share of his estate;

(4) The Shatin Property be bequeathed to P;

(5) His 50% interest in Flat 7E be bequeathed to D1;

(6) His interest in Shop E be bequeathed to his 5 children jointly and from the income of this property, a monthly sum of HKD 2,000 be set aside for the Adopted Son to use for worshipping ancestors;

(7) His cash in his bank account/s was not to be distributed and was to be used to pay for the expenses of his funeral ceremony , and any balance was to be kept for maintenance expenses of Shop E;

(8) As for all legal documents executed by him after 31 July 2013 such must be witnessed by D1 in order to be valid.

32.  The 2014 Will was made in Chinese and the provisions were essentially:

(1) Under Clause (1) – the will is to be interpreted and administered under the laws of Hong Kong;

(2) Under Clause (2), D1 was appointed as the sole executrix and trustee of the Father’s Estate;

(3) Under Clause (3)(i), Deceased expressed his strong wish not to be placed in an old aged home, or to be placed under a guardianship order, and his body could not be cremated and only buried and if any of his children failed to comply with his wish, he/she would not be entitled any share of his estate, save that such arrangement would depend on D1’s final decision;

(4) Under Clause (3)(ii), Deceased expressed that his body must be escorted to his hometown for burial by his named eldest son and 4 children, to adopt the hometown worship ritual, same as the funeral ritual held for his late wife Madam Wong when she passed away, and if any of his children failed to comply with his wishes in completing such traditional ritual, then he/she was not to be entitled to any of his estate;

(5) Under Clause (3)(iii), Deceased expressed that if any of his beneficiaries in his will, namely his named 5 children, was to commence any litigation over any arrangements made by him during his lifetime or after his death, and eventually failed in the litigation, he or she was not to be entitled to any of his estate;

(6) Under Clause(3)(iv), from the date of the will, all legal documents executed by him must be witnessed by D1 before such could take effect;

(7) Under Clause (4), a sum of HKD 450,000 deposited by the Deceased with D1 be handed over to P and D1 for them to jointly manage and used for funeral expenses including transporting Deceased’s body to his hometown for burial and worship and all funeral expenses in Hong Kong. As for the balance of any cash at bank, after paying for his liabilities and living and medical expenses, HKD 500,000 of the balance or its equivalent was be bequeathed to each of his 5 children equally, namely HKD 100,000 each, and if the balance was short of HKD 500,000, then the balance be divided equally among the 5 children, but any excess over and above HKD 500,000, such excess be paid to D1 for her to keep and to use for any expenses in relation to his ancestral worship (5 worships in 2 years) and also for a banquet for relatives after worship and any expenses for ancestral worship. As for his immovable properties:

(a) The Shatin Property was to be bequeathed to P;

(b) Flat 7E was to be bequeathed to D1;

(c) Shop E was to be divided equally among the 5 children jointly

D. THE WITNESSES

33.  P had lodged a total of 3 witness statements, 2 of which were supplemental. Apart from himself, P had called his daughter Shanna Wu Yin Shan (“Shanna”) to attend trial for cross examination of the witness statement she submitted. The solicitor Mr Yeung of WSL&Y who drafted the Renunciation, the 2009 Will, the Draft Statement, and the 02.09.09 Statement had submitted two witness statements and attended trial for cross examination. Mr Li of 3448 had submitted 2 witness statements and attended trial on behalf of P to be cross examined. At the pre-trial review, this Court gave leave for P to serve a subpoena on the solicitor who had drafted the 2014 Will, namely Mr Yip, who attended trial to give evidence and had produced to the court various versions of the draft will as exhibit P1 (a) to (d).

34.  In addition to the above witness statements, P’s, Mr Yeung’s, Shanna’s, and Mr Li’s respective affirmations filed earlier in 2018 under HCMP 196 were included in the trial bundles.

35.  On Ds’ side, D1 had submitted no less than 4 witness statements, and D3 had submitted 2 witness statements. D3 had also called his son Wu Chi Ho (“Chi Ho”) to be his witness, and he had submitted a witness statement. D3 and Wu Chi Ho attended trial for cross examination. Ds’ respective affirmations filed in HCMP 196 were also included in the trial bundles.

E. LIST OF AGREED DISPUTED ISSUES

36.  At the trial, the parties have agreed to a list of 6 disputed issues[31], which are:

(1) Whether the Shatin Property forms part of Father’s Estate;

(2) Whether P and/or Ds are in breach of Clause (3)(ii), Clause (4) of the 2014 Will in regards to the burial and funeral arrangements of the Deceased;

(3) Whether P and Ds are in breach of Clause (3)(iii) of the 2014 Will by commencing and conducting this action and HCMP 193;

(4) Whether on a true construction of Clause (3)(ii) of the 2014 Will, this probate administration action constitutes a legal action challenging the Deceased’s arrangements (whether prior to his passing away or thereafter) on the part of P;

(5) Whether the clauses referred to above are ambiguous and reflect the Deceased’s true testamentary intentions of the 2014 Will and whether rectification of the 2014 Will is appropriate in the event that paragraphs 1 to 4 hereinabove are determined in the negative;

(6) Whether D1 should be removed from being the sole executrix of the Father’s Estate and be replaced by a person that the Court deems fit.

F. ISSUE (1) – WHETHER THE SHATIN PROPERTY FORMS PART OF FATHER’S ESTATE

F.1 Whether the Shatin Property was purchased solely by Deceased

37.  Although the legal title of the Shatin Property was registered in the sole name of Madam Wong, it was P’s case that Deceased was the 100% beneficial owner in the Shatin Property, in that Deceased was the one who paid for its purchase price.

38.  In the original originating summons and the statement of claim, P had sought a declaration that the Shatin Property was solely and beneficially owned by the Deceased at the time of his death and formed part of Father’s Estate. In the amended originating summons and the RASOC, P now seeks a determination by this Court on the question of whether the Shatin Property formed part of Father’s Estate[32].

39.  P relied on, amongst other things, the following:

(1) The 2009 Will which was dated 25 February 2009 pursuant to which the Shatin Property was bequeathed to D2 and D3 jointly;

(2) Deceased’s oral declaration to Mr Yeung sometime in about late 2008 and in about August 2009;

(3) The Oral Agreement between Deceased and the 5 Siblings in about August 2009;

(4) The Draft Statement;

(5) The 02.09.09 Statement

40.  In his 1^st witness statement, P had said that although his mother did assist his father in running the noodle stall, she was essentially a housewife having to take care of the 5 children of the family, and that P was told by his father that the money for acquiring Shop E came from him and that he used his noodle stall income to repay the mortgage loan and that his father purchased the Shatin Property for investment purpose by letting it out and that he had used his mother’s name to hold it for him as he wanted “to avoid the bank to go after him in case he could not pay the mortgage loan repayment instalments over the Shatin Property”[33]. His father also told him that he had used the rent from the Shatin Property and the revenue from his noodle stall to pay for the mortgage over the Shatin Property.

41.  P’s written evidence was also that according to his and his siblings’ understanding, their father should be entitled to half of the Shatin Property, and that D4 had proposed that the Shatin Property be sold with the sale proceeds distributed to their father and the 5 Siblings according to the “law on inheritance” but this was strongly opposed by their father as their father said unequivocally that the Shatin Property should be his solely as it was purchased with his money, and that their father had requested that the Shatin Property be kept by him so that he could collect the rent for his living expenses during his lifetime[34]. It was also P’s written evidence that the 5 Siblings had agreed to this and that they came to the Oral Agreement in August 2009, namely that (i) the Shatin Property was not to be sold; (ii) the rental income derived therefrom should be paid to their father for his use during his lifetime; and (iii) it was up to their father to decide how to deal with the Shatin Property upon his demise, which meant that the 5 Siblings agreed to give up their share and interest in the Shatin Property which they would be entitled to under the “inheritance law” from Mother’s Estate[35]. As a result of the Oral Agreement, Deceased and P made an appointment with Mr Yeung of WSL&Y to prepare an agreement. P’s case was that although all 5 Siblings agreed, and the 02.09.09 Statement was then duly prepared, but in the end only the 3 sons, namely P, D2, and D3 signed it. D1 and D4 did not turn up to sign[36].

42.  On the other hand according to D3, their mother had worked as a street hawker and that the Shatin Property was purchased by their mother using her own money and she had always rented it out. D3 said he had never heard that their father had paid for the purchase price. Further, it was Ds’ case that there was no Oral Agreement as alleged by P, or any oral agreement among the 5 Siblings regarding their giving up of their interest in the Shatin Property after their mother’s death.

43.  The Agreement for Sale and Purchase of the Shatin Property was signed on 5 September 1975 and the Assignment was signed on 20 January 1976 in the name of Madam Wong as sole purchaser. The consideration was HKD 102,400 and there was a mortgage loan of HKD 70,000 from the Chase Manhattan Bank, which appeared to have been paid off and the Shatin Property reassigned to Madam Wong on 2 February 1981[37]. Thus, the down payment was HKD 32,400.

44.  During the trial, P admitted that after his parents bought Shop E, his father operated a store during daytime and in the evenings he and his mother operated the noodle stall. P also admitted his father sold noodles as a hawker at Tung Choi Street and that his mother helped in preparing the ingredients for the noodles, and that his mother had helped his father both at the store and also the hawker stall selling noodles. P also admitted that in 1976, he obtained a hawker’s licence in the 2^nd section when Tung Choi Street was changed to licensed hawker area by the Government and that his mother also obtained a hawker licence in the 4^th section in 1979, but he had added during re-examination that this was some years after 1975 when the Government first started to issue hawker’s licences for Tung Choi Street.

45.  Irrespective of when P and/or Madam Wong obtained their respective hawker licences, the evidence showed that P, D2 and also D3 had all helped their parents in their store/noodle stall.

46.  Even though Madam Wong would need to care of 5 children, as Deceased was operating the noodle stall in the evenings, P admitted during the trial that Madam Wong had helped Deceased in operating the noodle stall including preparing ingredients for the noodles. The Shatin Property was acquired some 6 years after Deceased and Madam Wong acquired Shop E in their joint names. As from about 1979, after Madam Wong obtained her hawker’s licence, she was also running her own hawker stall from 1979. The down payment of the Shatin Property was HKD 32,400 plus purchase costs. The mortgage loan on the Shatin Property was not paid off until 1981. Even though the rent from the Shatin Property had been applied towards the loan repayment and/or property related expenses, it was not clear whether there was a shortfall every month. The tenancy agreement dated 9 April 2007 to 14 April 2009 was signed by Madam Wong personally with the tenant[38], and it was D1’s evidence that prior to Madam Wong’s death in October 2008, Madam Wong was the one handling the tenancy matters. On the front page of the 2007 tenancy agreement, both Madam Wong’s bank account number and Deceased’s bank account number were written, which seemed to indicate that the tenant could pay the rent into either bank account. In any event, there was simply no sufficient evidence that it was Deceased who had paid for 100% of the down payment and any shortfall in the monthly mortgage repayments. Even if the down payment and shortfall had come solely from the income of the noodle stall, I find the noodle stall was operated by the joint efforts of Deceased and Madam Wong, and whatever income therefrom would in my view be their joint income. Further, the fact that both Deceased’s bank account and Madam Wong’s bank account were written there for the tenant would seem to indicate that it did not matter to Deceased and Madam Wong which of the account the rent was paid into. Thus, it would appear that to them, there was no distinction as to what was his or what was hers.

47.  During the trial, D3 had also disclosed that not long after his mother bought the Shatin Property, she had taken him to see the property and told D3 she bought the property. According to D3, his mother had also earlier bought a 14 seater minibus and after she sold that, she used the sale proceeds to buy the Shatin Property. When it was pointed out to D3 that he never mentioned this in his witness statement, D3 then said he could not recall exactly but maintained that it was his mother who bought the Shatin Property because that was what his mother had told him.

48.  Anyway, what P said Deceased had told him, and what D3 said Madam Wong had told him were all hearsay evidence.

49.  Whether Deceased was himself of the view that he was the one who had paid solely for the purchase price or not, and even though, as seen later, he had told Mr Yeung that the Shatin Property was paid by him solely, the fact was Deceased had never asked Madam Wong to transfer the legal title of the property to him. Deceased did not make any claim during Madam Wong’s lifetime or his own lifetime for any declaration of beneficial interest against Madam Wong and/or her estate. In fact after the mortgage loan was discharged in 1981, the property had remained in Madam Wong’s sole name until her death and Deceased only raised this issue after Madam Wong’s death. Upon her death, Deceased was in any event entitled to 50% of Madam Wong’s residuary estate under the IEO.

50.  The reason given by P as to why the Shatin Property was in Madam Wong’s sole name, namely that Deceased was concerned that the bank would go after him if he could not keep up the mortgage repayments, did not seem probable. At that time, Deceased and Madam Wong held Shop E jointly, and later his name also appeared on Flat 7E, and if Deceased was not concerned over his name appearing as an owner on Shop E or Flat 7E, I see no reason why Deceased should be concerned over his name appearing as owner, or a joint owner with Madam Wong of the Shatin Property.

51.  Having considered all the evidence, I find no sufficient evidence that Deceased had paid for the purchase price of the Shatin Property solely and/or that Madam Wong had held the Shatin Property in trust for Deceased solely/Deceased was the sole beneficial owner of the Shatin Property.

F.2 The Oral Agreement and the 02.09.09 Statement

52.  Mr Yeung had provided a witness statement and a supplemental statement for P and had attended the trial for cross examination. During the trial, Mr Yeung explained that Deceased was operating a noodle stall on Tung Choi Street and that Mr Yeung’s father moved to that area during the 1967 riots and that was how he met Deceased. Mr Yeung said he often saw P the oldest son, and that D2 the 2^nd oldest son helping Deceased at the noodle stall, and he had also seen D3 there. He had also said in his witness statement that P had sometimes asked him for legal advice for his friends or his Church mates from time to time. According to Mr Yeung’s memory and limited records due to lapse of time, (i) Deceased appointed WSL & Y to handle a tenancy matter in 1992; (ii), Deceased and Madam Wong instructed WSL&Y to handle a tenancy matter in 1994; (iii) WSL&Y acted for D2 in a personal injury claim in about 1994; (iv) Deceased appointed WSL&Y to handle the application for the letters of administration of Mother’s Estate in 2008; and (v) P appointed WSL&Y to deal with property transactions in 1991 and 2005.

53.  Mr Yeung had said in his written statement that it was in late 2008 that Deceased directly approached him to deal with the application for the letters of administration of Mother’s Estate. Later Deceased decided to renounce his right to administration by executing the Renunciation, and informed Mr Yeung that he would like P to be the administrator[39]. Mr Yeung said he then took instructions from P and obtained the grant for P of Mother’s Estate on 22 June 2009.

54.  During the trial, Mr Yeung said under cross examination that in relation to the application for the letters administration of Mother’s Estate, Deceased was the one who went to see him the first time, either by himself or with his helper. It was pointed out to Mr Yeung that in his written evidence he had said he could not recall who exactly approached him for those matters listed out by him (which included the application for letters of administration of Mother’s Estate in 2008). Mr Yeung explained that Deceased certainly did go to see him on his own or with his helper and that Deceased had handed to him relevant documents such as the death certificate and bank passbooks for his intended application. It was Mr Yeung’s evidence that as he had told Deceased that there were many documents to sign and the application could necessitate several visits to his office, Deceased then decided to let one of his children to apply, and as P was his eldest son, and P being a native of Chiu Chow, he would only trust his sons, and that Deceased also believed that P was the most capable/suitable person to manage Mother’s Estate. Although Mr Yeung’s answers were often that he could not recall to many questions asked of him, he maintained that he probably saw Deceased two to three times in relation to the application, the 1^st time maybe to explain the procedure, and 2^nd time maybe to check identity documents and death certificates or birth certificates and that P could have accompanied Deceased at the handing over of various requisite documents.

55.  It was also Mr Yeung’s written evidence that Deceased had told him that the Shatin Property was purchased with his own money and he took the position that the Shatin Property was his, and that Deceased wanted to keep the Shatin Property after Madam Wong’s death. According to Mr Yeung, in about August 2009, he recalled Deceased and P attended his office informing him of their family agreement relating to the Shatin Property and they confirmed that all of them in the family, namely Deceased and the 5 Siblings had come to an agreement, ie the Oral Agreement that (i) Madam Wong’s savings with the bank in Hong Kong would be paid to Deceased for his living expenses; (ii) the Shatin Property was not to be sold; (iii) the rental income from the Shatin Property would be paid to the Deceased for his living expenses; (iv) the Shatin Property would be left for the Deceased’s disposal upon his death; and (v) P was authorised to handle the savings in Madam Wong’s Shenzhen HSBC account.

56.  According to Mr Yeung, he then advised Deceased to draw up a deed of family arrangement but Deceased asked him to keep things simple and said a simple document would suffice. Mr Yeung said he then prepared the Draft Statement which was to be signed by all 5 Siblings and which he sent to P for P to discuss with the Deceased and all the defendants. It was Mr Yeung’s evidence that a meeting was later arranged on 2 September 2009 for all 5 Siblings to attend his office to sign, but on that day only the 3 brothers turned up and D1 and D4 did not. Mr Yeung said he was instructed by the 3 sons that they would agree to proceed to sign the statement after he had read and explained to them the contents, and that they did sign, ie the 02.09.09 Statement and that also took a photograph that day of him and the 3 brothers after the signing[40].

57.  According to Mr Yeung, the 3 brothers were in good and harmonious relationship at the time. Mr Yeung had said in his witness statement that he no long had a copy of the Draft Statement in his file.

58.  Mr Yeung was also the solicitor who prepared the 2009 Will, and it was Mr Yeung’s evidence that Deceased had gone to see him alone in relation to the signing of the will, and that P was not present. Mr Yeung also took a photograph of Deceased signing the 2009 Will and of him and Deceased after Deceased had signed the 2009 Will[41]. According to Mr Yeung, P was not present. In the 2009 Will, Deceased had referred to the Shatin Property as “my property” and had bequeathed it to D2 and D3 equally. When it was put to him by Ds’ counsel Mr Koo during the trial that he failed to conduct any title search in the Land Registry, Mr Yeung said Deceased had told him that he bought the Shatin Property with his money but he put the Shatin Property under his wife’s name. When asked why in the 2009 Will he drafted “my property” when referring to the Shatin Property, Mr Yeung admitted it was his negligence, and “my property” was a wrong description and that at the time, he was trying to follow Deceased’s instructions in the drafting of the will.

59.  In fact, in the 2009 Will, the Deceased also referred to Flat 7E as “my property” and had bequeathed that property to D1 and D4 as joint tenants. However, at that time there had not been any severance of joint tenancy, and Flat 7E was held by Deceased and D4 as joint tenants which meant upon Deceased’s death, the property should go to D4 as the surviving joint tenant. It was again put to Mr Yeung during the trial that he did not conduct any title search at the time of preparing the 2009 Will, but Mr Yeung insisted that he did, and that it was drafted the way it was pursuant to Deceased’s instructions.

60.  As for the Deceased’s 07.09.09 Letter to Mr Yeung and D4’s 07.09.09 Letter, Mr Yeung admitted that he had received these letters. It was Mr Yeung’s written evidence that the two letters were handed to the receptionist of his firm, and that he did not see or meet with D4 that day, and that he did not act on receipt of the two letters. According to D1, she and Deceased went to the office the following day, ie 8 September 2009 and saw P, and she spoke to Mr Yeung. However, according to Mr Yeung’s written evidence, there was no record of D1, Deceased and/or P attending the office of WSL&Y on 8 September 2009[42].

61.  During the trial, when he was asked why he did not act on receipt of the two letters, Mr Yeung said he probably did ask his secretary to call P to ask him to ask Deceased to go to Mr Yeung’s office to collect the documents. It was Mr Yeung’s evidence during the trial that, apart from Deceased’s signature, the other words in Deceased’s 07.09.09 Letter were not written by Deceased and that he would not act simply based on that letter, and that Deceased had to attend WSL&Y’s office personally before he would release to him the documents he asked for. Mr Yeung maintained that Deceased did not attend his office on 8 September 2009 as he would not be so rude as to refuse to see Deceased.

62.  D1’s evidence during the trial was that Mr Yeung was P’s school mate but this did not appear to have been put to Mr Yeung. Anyway, it was D1’s evidence that she and the other defendants thought that P was only assisting their father in applying for the letters of administration of Mother’s Estate, and that they did not realise that P ended up being the sole applicant, and that they had never consented to P being the sole applicant or the administrator. According to D1, they were only told by P of this when P obtained the letters of administration. Further, in about September 2009, D4 conducted a search in the Land Registry and found that P had registered himself in the capacity of the administrator of Mother’s Estate against the Shatin Property, and when they informed Deceased, Deceased became concerned and that was why on 7 September 2009, Deceased sent the Deceased’s 07.09.09 Letter to WSL&Y.

63.  D1’s written evidence was that upon notification by D4, she then accompanied Deceased to attend the office of WSL&Y at around noon time on 8 September 2009 to collect all the copies of documents signed by him. Upon their arrival, they saw P was already there and that P told them he was informed by Mr Yeung to be there. According to D1, when they saw Mr Yeung, Mr Yeung did not hand over copies of documents signed by Deceased, alleging that all documents were submitted to the government authorities and that all copies were handed over to P (being the administrator) for safe keeping.

64.  However, P’s evidence was also that he did not attend the office of WSL&Y on 8 September 2009, and he maintained his evidence during cross examination, and he also denied, when put to him, that he had told Deceased not to stir up so many matters at the office of WSL&Y in the presence of D1, or he would not administer Mother’s Estate. In any event, I do not find that there was sufficient evidence that it was on 8 September 2009 that D1 visited the office of WSL&Y if there was indeed such a visit.

65.  It was D1’s written evidence that she had never agreed to giving up any of her share or interest in the Shatin Property, and that all along, P only requested she and the other defendants to attend the solicitors’ office to sign document/s to authorise him to return to Mainland China to deal with their mother’s assets there and to recover their mother’s property in Hunan held in their adopted uncle’s name. It was only on 11 May 2017 when she received a letter dated 11 May 2017 from P’s then solicitors Fairbairn, Catley, Low & Kong, that she learnt that her 3 brothers had signed the 02.09.09 Statement[43].

66.  D3’s written evidence was also that he had never received any phone call from P regarding the Shatin Property or received the Draft Statement or any draft statement to give up his entitlement to the Shatin Property, and P had never asked him or the other defendants to give up their entitlement to the Shatin Property, or to sign any document to this effect[44]. According to D3, similar to D1’s evidence, he only first learnt of a document having been signed by him and D2 regarding giving up their entitlement in the Shatin Property when he received the letter dated 11 May 2017 from P’s then solicitors[45], and that he only noticed the 02.09.09 Statement when it was received by him sometime after 25 May 2017 from P’s then solicitors. D3’s evidence was that he only recalled that he and D2 attended a solicitors’ office to sign a document authorising P to go to Mainland China to deal with his mother’s estate in Mainland China on their behalf. He said no solicitor or anyone had explained the contents of the document to them.

67.  It was Ds’ pleaded case that D2 and D3 had received limited education and did not read the contents of the 02.09.09 Statement[46]. During the trial, D3 claimed that he could only read some of the Chinese words on the 02.09.09 Statement. He had also said he could not recall who was present at Mr Yeung’s office at the time of signing. He was shown a photograph taken on 2 September 2009 with Mr Yeung and the 3 brothers, and D3 claimed he had no recollection, and maintained that he was only asked by P to go to sign a document authorising P to deal with their mother’s Mainland assets.

68.  Even though D3’s evidence was that he could only read some of the words on the 02.09.09 Statement, when he was shown the Inheritance Declaration signed by him in the presence of a China Attesting Officer on 30 July 2010 and duly notarised, D3 was able to read clauses 6 and 7 thereof without any problem. When it to was pointed out to D3 that the address of the Shatin Property was clearly typed in the 02.09.09 Statement, D3 again claimed he had no recollection. When asked why he said he did not read the 02.09.09 Statement, he then admitted that he did read but as he had only limited education, and there was no one who had explained to him the contents of the 02.09.09 Statement. He then further said, he saw some English words thereon[47] which stopped him from reading on, and that in any event, he only agreed to Deceased collecting the rental income, he had never agreed to give up his share and interest in the Shatin Property.

69.  I have to say I do not find D3’s evidence credible. I do not believe that he did not read the 02.09.09 Statement which was in Chinese, or that he did not understand the contents. In any event, although Mr Yeung’s evidence may be confusing at times, I accept Mr Yeung’s evidence that he did explain the contents of the 02.09.09 Statement to the 3 brothers before they signed. As for D1, I do not find it probable that she was not aware of what her brothers had signed until she received a copy from P’s solicitors. However, having said this, it did not mean there was the existence of the Oral Agreement, or that D2 and D3 had given up their share and interest in the Shatin Property.

F.3 Analysis and conclusion of Issue (1)

70.  First, the beneficial ownership of a landed property normally follows the legal ownership or the legal title unless proven otherwise. As mentioned earlier, if Deceased indeed took the view that he had paid for 100% of the purchase price and that he was 100% owner of the beneficial interest of the Shatin Property, he should have issued proceedings against Madam Wong during her lifetime, or against her estate after her death, to seek such a declaration, which was not done.

71.  Second, according to the Schedule of Assets and Liabilities attached to the Letters of Administration of Mother’s Estate[48], at the date of Madam Wong’s death, her assets were (i) total cash of HKD 173,809.11 in her two HSBC (HK) savings accounts; and (ii) the Shatin Property. The Schedule of Assets and Liabilities was submitted by P when he applied for the Letters of Administration of Mother’s Estate, which was presumably prepared by Mr Yeung. There was no mention of Madam Wong being only a trustee of the Shatin Property and that Deceased held 100% beneficial interest in the Shatin Property, and indeed if that was the case, then the Shatin Property should not have been included as part of Madam Wong’s assets.

72.  Third, as Madam Wong died intestate, under section 4(3) of the IEO, Deceased, as surviving husband, would be entitled to (i) the personal chattels of Madam Wong absolutely; and in addition, (ii) a net sum of HKD 500,000 free of death duties (if any) and costs, with interest on that sum from the date of death of Madam Wong at the rate determined from time to time by the Chief Justice for the purpose of section 49(1)(b) of the High Court Ordinance, Cap 4, charged against the residuary estate (other than personal chattels) until paid or appropriated, and (iii) subject to providing for (ii), one half of the residuary estate absolutely, with the remaining half for their 5 children in equal shares. Thus, what Deceased was entitled to under the IEO was more than simply half of the Shatin Property.

73.  Fourth, as Mr Yeung had said, if there was to be any agreement that the distribution of Mother’s Estate was to be other than in accordance with the provisions in the IEO, a deed of family arrangement should have been executed by all the beneficiaries of Madam Wong’s estate. There was none so executed.

74.  Fifth, there had been no contemporaneous attendance notes produced by Mr Yeung in relation to any instructions which Deceased and/or P were said to have given to him in relation to the Oral Agreement and the preparation of the Draft Statement, of which no copy had been produced.

75.  Sixth, according to P, the total balance in Madam Wong’s 2 HSBC bank accounts totalling $191,825.17 was transferred to Deceased’s savings account at HSBC 193-8-021-XXX (“HSBC Savings Account”) on 26 June 2009[49]. If the contents of the Draft Statement were indeed, according to Mr Yeung’s recollection, similar to those of the 02.09.09 Statement[50], what was stated in the Draft Statement and also the 02.09.09 Statement was in my view ambiguous. It was not clear whether the balance in Madam Wong’s HSBC account[51] referred to in the 2^nd paragraph of the 02.02.09 Statement formed part of the HKD 500,000 which Deceased was entitled to as a surviving spouse or not, and if it was, the sum should be given to the Deceased anyway, as it was Deceased’s entitlement under the IEO, and not for the defendants to agree or disagree.

76.  Seventh, insofar as the 3^rd paragraph was concerned, it appeared that the 3 sons only agreed that the Shatin Property was not to be sold temporarily pending Deceased’s wishes after his death (暫時不要出售，等侍父親胡鎮四先生百年歸老後，由父親胡鎮四分配). There was no express and clear provision that the 3 sons had given up and/or waived their entitlement in Madam Wong’s residuary estate or that they had agreed that their share and interest in their mother’s residuary estate was to be given to Deceased. In any event, as the 02.02.09 Statement was not a deed, there was no consideration for the 3 sons in giving up or waiving of their entitlement.

77.  Having considered all the evidence including the above, I find no sufficient evidence that there was the existence of Oral Agreement as alleged, and/or that the defendants had agreed to give up their share and interest in the Shatin Property. As for the 02.09.09 Statement, as it was not a deed and not executed by all the beneficiaries of Mother’s Estate and for all the other reasons set out earlier, I find the 02.09.09 Statement was not sufficient to deprive the 3 sons of their respective entitlement of Mother’s Estate under the IEO. Having said this, whether the 5 Siblings had agreed to gift their share of the net rental income for their father’s living expenses during their father’s lifetime is another matter. This was not a matter or an agreed issue which this Court was asked to determine in this trial.

78.  In any event, as said earlier, Deceased’s entitlement as a surviving spouse and beneficiary of Madam Wong’s residuary estate was more than simply half of the Shatin Property. In my view, the proper answer to Issue (1) is that any unpaid portion of the net sum of HKD 500,000 plus interest to Deceased by Mother’s Estate, together with half of Madam Wong’s residuary estate, would form part of Father’s Estate.

G. ISSUE (2) – WHETHER P AND/OR DS WERE IN BREACH OF CLAUSE (3)(II), CLAUSE (4) OF THE 2014 WILL IN RELATION TO THE BURIAL AND FUNERAL ARRANGEMENTS OF THE DECEASED

G.1 The legal principles under common law on interpretation of wills

79.  The principles applicable to construction of a will have been set out in Tan Cheng Gay v Tan Choo Suan (2015) 18 HKCFAR 430. As stated in paragraph 36 thereof, per Ribeiro PJ, under common law, the approach to construction of wills is that , subject to statute.

“…. The court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document; (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense; but (b) ignoring the subjective evidence of any party’s intention”[52]

80.  Ribeiro PJ went on to say at paragraph 37 that, this approach is consistent with the well-known “arm-chair” principle, save that it must be kept in mind that that principle looks to context as at the time the will is made whereas the will speaks from the time of death regarding any general description of property.

G.2 The statutory provisions in the Wills Ordinance, Cap 30

81.  Section 23B of the Wills Ordinance provides that:

“23B. Interpretation of wills—general provisions as to evidence

(1) This section applies to a will—

(a) in so far as any part of it is meaningless;

(b) in so far as the language used in any part of it is ambiguous on the face of it;

(c) in so far as evidence, other than evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.

(2) Insofar as this section applies to a will extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in its interpretation”

82.  Thus, under the above statutory provision, extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in its interpretation in the event of ambiguity.

G.3 Clause (3) (ii) and Clause (4) of the 2014 Will

83.  Clause (3)(ii) concerned the Deceased’s funeral and burial arrangements. Clause (4), in part, concerned the payment of expenses for Deceased’s funeral and burial arrangements, and any worshipping rituals thereafter. Notwithstanding the way the issue was framed, most of the parties’ respective submissions were in relation to Clause (3)(ii).

G.4 The relevant events during the period after Deceased’s death until the announcement of the 2014 Will at 6pm on 11 January 2017

84.  P’s written evidence was that his father only told him in 2009 that he had made a will at the office of WSL&Y[53]. During the trial, P said his father only mentioned to him having made a will at WSL&Y but did not inform him of the contents of the will, and that his father never mentioned to him that he had made any subsequent wills. P’s evidence during the trial was that he was not aware that he was appointed the executor in the 2009 Will, and that after his father’s death, through his former solicitors, he obtained the original 2009 Will from WSL&Y. P said he took up the task of arranging his father’s funeral and burial ceremony as his siblings failed to take any initiative and/or action to do so, and in particular, D1 had done nothing although D1 had told P that their father had left money behind for his funeral and burial arrangement.

85.  It was P’s written evidence that his father had indicated before his death that he wanted to be buried at his native hometown[54]. P said he had liaised with the Adopted Son and Deceased’s relatives and friends in the Mainland but was never told by any one that Deceased had through the Adopted Son acquired a piece of grave land at Deceased’s native place for Deceased’s own use. P denied that he had any quarrel with the Adopted Son on the funeral and burial arrangement as alleged by Ds, and that it was with the assistance of the Adopted Son and the help of Deceased’s relatives and friends that he was able to locate a grave site for the Deceased at the Qishan Cemetery in Deceased’s native hometown[55].

86.  According to P, on around 26 December 2016, he visited the office of 3448, the agent in Hong Kong for Qishan Cemetery and met Mr Li. About two days later, P visited 3448 again to make further enquiries and asked Mr Li whether he could visit the cemetery, and Mr Li agreed. P then told D1 and she said she also wanted to inspect the place as she should take charge of the matter. P had no objection and that he and D1 and Mr Li paid a day trip to Qishan Cemetery on 3 January 2017 which both he and D1 found to be an ideal location to bury their father. The following day, 4 January 2017, P and D1 visited 3448 again to discuss the arrangement, and according to P, he and D1 agreed to engage the 3448 for the following services from 3448 (“Services”)[56]:

(1) To acquire a piece of grave land at Qishan Cemetery;

(2) To book a hearse to transport Deceased’s body from Hong Kong to Qishan Cemetery;

(3) To settle the administrative expenses incurred in arranging for the burial ceremony in the Mainland; and

(4) To book and arrange for the funeral ceremony of Deceased at the Diamond Hill Funeral Parlour (“Funeral Parlour”) in Hong Kong.

87.  D1 had produced an invoice from 3448 dated 4 January 2017 (“D1’s Invoice”)[57] which was in her possession. According to P, on that day, ie 4 January 2017, Mr Li prepared 2 copies of an itemised invoice (“Original Invoice”), one of which was given to P and D1 to read while Mr Li was going through the itemised list with them, and the other copy was used by Mr Li (“Li’s Invoice”)[58]. Suffice to say at this stage, according to P’s written evidence[59], there should be 3 items on Li’s Invoice which were deleted, namely “喃嘸上山英雄”, “全套紙札”, and “喃嘸開路運財” (collectively “3 Deleted Items”), and the total amount was reduced from HKD 48,800 to HKD 44,000[60]. At the end of the meeting, Mr Li requested P and D1 to pay a deposit.

88.  According to P, as D1 told him that she held Deceased’s monies for his funeral and burial arrangement, D1 wanted to pay for all the funeral and burial expenses using those monies, to which P agreed[61]. According to P’s written evidence, D1 then drew a cheque in the sum of HKD 25,500, being HKD 17,000 for the hearse to transport the body to the Qishan Cemetery and RMB 7,650 (ie HKD 8,500) for the remaining administrative fees for the burial ceremony in Mainland. When writing the 2^nd and 3^rd cheques in settlement of HKD 300,640, D1 made a mistake on both cheques. D1 then proposed and promised to transfer the remaining balance to Mr Li using her RMB account on the following day, ie 5 January 2017, as there would be a discount in purchasing the grave land if payment was paid in RMB, upon which Mr Li then provided details of his RMB bank account with Nanyang Commercial Bank[62].

89.  After their visit to 3448, P said he assumed all sums would be settled by D1 by 5 January 2017, but on 6 January 2017, Mr Li called P to tell him that he still had not received the remaining balance from D1and that Mr Li had called D1 to remind her but she informed Mr Li that she had decided to cancel the agreed funeral and burial arrangements and requested for a refund of the deposit of HKD 25,500 to her. P said he was exasperated and was anxious that the funeral and burial of the Deceased should not be delayed. As a result, he then took over the arrangements[63]. P had produced receipts and invoices evidencing the total expenses paid by him to be HKD 370,140, which he paid on 9 January 2017[64]. This was prior to the 2014 Will being announced on 11 January 2017, and that even though D1 had known about the contents of the 2014 Will, and that she told him she held monies from Deceased regarding the funeral and burial arrangements, D1 did not disclose the contents of the 2014 Will and/or Deceased’s wishes to him. According to P, she had deliberately set a trap for him.

90.  P said he had to make the funeral arrangements afresh immediately in the afternoon of 6 January 2017 due to the forthcoming Chinese New Year holidays, but unfortunately the previous date and venue of the funeral ceremony which was agreed and scheduled with 3448 was no longer available, and P said he had no alternative but to fix another date with 3448 for the funeral ceremony. According to P, he promptly orally informed D3 of the new date of the funeral ceremony at the Funeral Parlour and he had asked D3 to inform the rest of his siblings[65].

91.  On the other hand, D1’s written evidence was that after their father’s death, P being the eldest son contacted and liaised with Deceased’s relatives and friends in his hometown to make arrangement for their father’s burial there, but that he then had a dispute with them and on or about 30 December 2016, she was told by P that he would find another grave site for their father at Qishan Cemetery, and P found an agent, namely Mr Li, to handle the matter. On about 3 January 2017, pursuant to the arrangement of Mr Li and following P’s instruction, D1 together with P and Mr Li visited Qishan Cemetery, and during the visit, P and she made a formal application in respect of the grave site for Deceased. The next day, pursuant to P’s instruction, she and P attended the office of 3448 at Hunghom, where they met Mr Li to discuss about the funeral arrangement and the purchase of the grave site for Deceased. As Mr Li requested for a deposit, which according to D1, was HKD 17,000, she then issued a cheque for this payment.

92.  Next day, on 5 January 2017, upon having made an arrangement with OCMC, she telephoned all the other siblings including P and requested them to attend the office of OCMC at 9am on 9 January 2017 for the announcement of the 2014 Will. According to D1, when she told P, he became outrageous and yelled at her that she must have appropriated all the assets of the Deceased and that he demanded her to tell him the contents of the 2014 Will.

93.  D1’s evidence was that on the same day, she had some concerns about the risk of making payment to Mr Li’s personal bank account, and she called Mr Li and asked for particulars of the company’s account of 3448. According to D1, she had prepared two cheques but she did not deposit the cheques forthwith as the deadline for making payments should be 8 January 2017 according to the terms set out in the document for payment. On 6 January 2017, Mr Li called D1 and threatened her that if no full payment was received on 7 January 2017, everything would be cancelled. According to D1, she did go to the bank with an intent to make further payments on 7 January 2017 but just as she arrived at the bank, she received another call from Mr Li to say that there was no need for her to make any further payment as Qishan Cemetery had cancelled their reservation and Mr Li claimed that he had told P about it. D1 said she protested as the deadline had not yet expired but Mr Li did not listen to her at all[66].

94.  D1 said she then telephoned P, and was surprised that P kept on blaming her for failing to make payments to Mr Li and did not listen to her explanation. In the meantime, due to D3’s failure to take leave on 9 January 2017, the announcement of the 2014 Will was subsequently postponed to 11 January 2017, at 6 pm. According to D1, P turned up with his two daughters at the office of OCMC on 11 January 2017 and upon the announcement of the 2014 Will, P reacted in an outrageous and rude manner and yelled that due to the late announcement of the 2014 Will, Deceased’s body had been cremated, and he left the office of OCMC with great hostility against all other siblings.

95.  D3’s written evidence was that after their father’s death, P, being the eldest son, and D2 and he having to work, the funeral arrangements were left to P and D1 to organise. On about 5 January 2017, D1 informed him that their father’s “設靈” (“Setting Up the Memorial Hall”) and “守夜” “Wake”) and “出殯” (“Farewell Ceremony”) were fixed on 18 and 19 January 2017, and that on 9 January 2017, their father’s will would be announced at the solicitors’ office, and that all 5 Siblings were requested to attend[67]. D3 explained that he and his 2^nd elder brother , ie D2 were at that time working at the same noodle section of a roast meat restaurant but he worked during the morning shift and D2 worked during the evening shift, and as he was not able to take leave on 9 January 2017, the announcement of the will was then postponed to 6 pm on 11 January 2017, after he had finished work. However, D2 later decided not to attend and asked D3 to represent him[68]. According to D3, after the 2014 Will was read out, P was very angry and left the solicitors’ office[69].

96.  P had called Mr Li of 3448 to give evidence on his behalf. According to Mr Li’s written evidence, on about 26 December 2016, P came to the Hunghom office of 3448 and was met by Mr Li. That was the first time they met.

97.  According to Mr Li , P had not made any prior appointment and that P saw an advertisement about the Qishan Cemetery on the 3448 office door and he walked in to make enquiries. P was given some details and left on that occasion. About two days later, on about 28 December 2016, P went to the 3448 and made some further enquiries including going to Qishan Cemetery to inspect the site, which was agreed by Mr Li. On 3 January 2017, he and P, together with D1, who had also turned up and went to Qishan Cemetery and that P and D1 were pleased with the environment of the site.

98.  In the afternoon of 4 January 2017, P and D1 visited the office of 3448 again and that after further discussion, they decided to appoint 3448 for the Services. Mr Li said he then filled in /ticked the various items required for the Services listed on the Original Invoice, and made a photocopy for P and D1 to read while Mr Li was going through the list with them. He explained why the 3 Deleted Items were deleted, and had assumed that P and D1 would also be making the similar deletions on their copy while they were going through the itemised list. In light of the 3 Deleted Items, the total amount was reduced to HKD 44,000 from HKD 48,800 and that for the funeral ceremony, he wrote “維新” which meant no religious ceremony and he had explained this to P and D1. Thereafter, he had asked for a deposit, and D1 gave him 3 cheques, the 1^st cheque for HKD 17,000 for the cross border hearse[70], plus cash of RMB 7,650 (ie HKD 8,500) for the administration fees of Qishan Cemetery, totalling HKD 25,500[71], and the 2^nd cheque for the purchase of the grave site, and P had made a mistake when writing the Chinese figures, the 3^rd cheque was for the coffin and the expenses of the funeral home, which again D1 wrote wrongly. D1 said as she only brought with her 3 cheques, she would transfer directly the amounts into his bank account the next day.

99.  However, on 6 January 2017, ie 2 days after D1 wrote the 2 wrong cheques, when Mr Li checked his bank account, he found out that D1 had not deposited any further payments. He then telephoned to remind D1 to pay, and it was only then that D1 then told him that she decided to cancel the purchase of the grave site, and all those items agreed by her and P on 4 January 2017, and requested him to refund to her the HKD 25,500.

100.  Mr Li said he decided to inform P in the afternoon of the 6 January 2017 and that P immediately went to his office to make the arrangements afresh. Mr Li said he then took out Li’s Invoice, and P noted that the item “喃嘸開路運財” had not been cancelled as agreed on 4 January 2017, and that P himself then wrote “取消”/“cancel” and put a “*”/a “star symbol” against this item[72]. Thereafter, according to Mr Li, as the original reserved date was no longer available, he then checked the available date for the funeral and found out there was an available date on 13 January 2017 and he then amended the Li’s Invoice and added the words “3房”/“Hall No 3”, ie the number of the memorial hall “靈堂” (“Memorial Hall”) at the Funeral Parlour and the amount was amended from HKD 48,800 to HKD 44,000, and he gave P the amended invoice (“P’s Invoice”). On 9 January 2017, P called him again to confirm the date and the Funeral Parlour and that out of filial duty, P then decided to add back the two items “喃嘸開路運財” and “全套紙札”. Mr Li said he decided not to charge for these two items and he then changed the ceremony to “神”, which according to Mr Li meant according to Chinese traditional customs “拜神”. P also hired a bus from 3448 for his friends and relatives who might accompany Deceased’s body to Qishan Cemetery. Due to the various amendments, in the end, P requested Mr Li to rewrite an invoice for him, which Mr Li said he did issue a fresh one to P (“Rewritten Invoice”)[73].

101.  During the trial, Mr Li confirmed he is a shareholder and director of 3448 and is able to make decisions for 3448. Mr Li also confirmed that the company 3448 was the sole agent for Qishan Cemetery in Hong Kong. When asked why the 3 cheques were issued in favour of him personally, his explanation that this would be the usual practice and that each cheque was for a different purpose and that he would account to 3448, and if necessary, he could issue a receipt in the name of 3448 but D1did not request for a receipt at the time. It was put to Mr Li that D1 never cancelled the arrangement and it was because P had contacted him and immediately gave him 3 cheques, Mr Li then changed to accept P’s instructions, and that on 6 January 2017, after receiving the 3 cheques from P, he changed to contacting P regarding all the funeral arrangements. Mr Li denied this, and maintained that it was D1 who told him that she decided to cancel all the arrangements as she did not trust Mr Li and that she suspected that the Qishan Cemetery was unlawful.

102.  There was no dispute that it was D1 herself who wrote 2 of the 3 cheques wrongly on 4 January 2017 and that according to her, she only brought along 3 cheques that day. According to P and Mr Li, D1 had promised to credit the remaining sums the next day. D1’s written evidence was also that on 5 January 2017, she had prepared 2 HSBC cheques for the remaining respectively for HKD 48,800 and HKD 300,640 to 3448 but she decided to wait until 9 January 2017 after the announcement of the will and upon discussion and agreement among the 5 Siblings before she would pay 3448[74]. D1 then went on to say that in the afternoon of 6 January 2017, Mr Li suddenly called her and gave her a deadline of 11 am on 7 January 2017 to pay the remaining sums or he would cancel all the agreed arrangements. D1 said she was surprised and immediately pointed out to him that on the Original Invoice, it stated that the reservation of the grave site was 5 working days and why he imposed a deadline of 7 January 2017, and further she wanted to pay into 3448’s company account, upon which Mr Li immediately provided the details of the Nanyang Commercial Bank account details of 3448. D1 then said as Mr Li had threatened to cancel the funeral and burial arrangements, she decided to rush over to the bank on 7 January 2017, at about 9:30 am to credit her two HSBC cheques, but just as she was arriving at the Nanyang Commercial Bank, she received another call from Mr Li informing her all agreed arrangements had been cancelled and that he had informed P[75].

103.  However during the trial, under cross examination, D1 had initially said it was on 5 January 2017 and not 6 January 2017 that Mr Li called and asked why she had not yet paid the balance and threatened to cancel all the arrangements and that it was on 5 January 2017 that Mr Li gave her the bank details of the company account of 3448. Later, when reminded of her written evidence, she then changed and said she would maintain her written version of events.

104.  Although Mr Li’s evidence at the trial in relation the invoices and the deletions/amendments thereon was very confusing, this was not surprising as by the time he gave evidence at the trial, it was 7 years after his first meeting with P and D1 and as he had said, he handled many funeral and burial arrangements. P’s evidence in relation to the invoices was equally confusing. However, there was no sufficient evidence that P and Mr Li had any close relation and/or Mr Li was acting in collusion with P as alleged by Ds. As P and Mr Li had both said, the first time they met was when P saw the advertisement on the door of the 3448 office and P went in to make enquiries. D1 was the one who wanted to pay and she was the one who wrote out the cheques. There was no sufficient evidence as to why Mr Li would want to change and cancel arrangements made on 4 January 2017 had he been paid as promised by D1 on 5 January 2017. As Mr Li had said, D1 was aware that when they visited the office of 3448 on 4 January 2017, they would need to deal with all the procedures upon the confirmation of appointing 3448 for the Services[76].

105.  D1’s evidence also did not really make sense. If she really had a concern over whether the Qishan Cemetery was a lawful site , there was no reason why she could not have made enquiries on her own or asked Mr Li to provide her with licences and/or other proof when she visited the site on 3 January 2017 and/or when she attended the 3448 office on 4 January 2017. Also, when Mr Li wrote out his personal bank account on the Original Invoice, if D1 had any concerns, she should have asked him for the details of the company account of 3448, in particular when her own evidence showed that when she requested for this on the telephone, Mr Li did not hesitate in providing her with the same. When she was writing out the 3 cheques, she could also have insisted that they were made in favour of 3448 instead of to Mr Li personally and requested for a receipt from 3448 the company. During the trial, Mr Li had said that had D1 requested it, he would have provided her with a receipt from the company 3448. There was no sufficient evidence to contradict what Mr Li had said.

106.  As her father’s funeral and burial must be an important matter for her, it was not clear why D1 would only bring along 3 cheques and also why after she had written the 2 cheques wrongly, she could not make amendments and then sign against the amendments. As said, it was Mr Li’s written evidence in his affirmation that upon writing 2 cheques wrongly, D1 promised Mr Li that she would transfer the outstanding balance to Mr Li’s bank account the following day[77], and this was also P’s evidence. They were not really challenged on this part of their said evidence and in any event, I accept what they said. In fact, D1’s own evidence was she had written the 2 HSBC cheques on 5 January 2017[78], and there was no reason why she herself could not have telephoned Mr Li if she indeed had all those concerns she claimed to have. If she thought she had 5 days to pay, and she was going to wait until after the announcement of the 2014 Will and discussion and agreement among the 5 Siblings, there was no reason why she should write out the cheques as early as 5 January 2017. Further, she had not produced copies of any cheques made in favour of 3448 even though she said she was going to credit the cheques on 7 January 2017. I do not find D1’s evidence credible.

107.  Mr Li was a businessman in the funeral services business, and there was no reason why he would want to cancel the arrangements made on 4 January 2017, had he been paid that day, or next day on 5 January 2017 as promised or agreed by D1.

108.  In any event, on the plain words in Clause 3(ii), there was no mention that P was the one who was to be solely responsible for making all the funeral and burial arrangements in Hong Kong and in Mainland China. As the 2014 Will was made under the Hong Kong law, there was no reason why D1, knowing full well she was appointed the sole executrix, could not have made proper funeral and burial arrangements for her father. D1’s explanation was that as Deceased was a Chiuchow native, only a son could make those arrangements in his hometown. Deceased must be aware of this and yet Deceased decided to appoint D1 as sole executrix in the 2014 Will. In any event, there was no reasonable explanation from D1 as to why she could not at least take on the responsibility to make all the funeral arrangements for Hong Kong. D1 could also have sought help from her two brothers D2 and D3, and also the Adopted Son to make the arrangements in Deceased’s hometown.

109.  There was also no reason why D1 needed to arrange a formal announcement/reading out of the 2014 Will at the solicitors’ office, but even if she had believed this was the proper procedure, there was no reason why this could not have been arranged immediately or the day after the Deceased’s death, so that it would have been immediately clear to all 5 Siblings, in particular P, as to who was the executor/executrix of the 2014 Will. There was no reason why D1, with full knowledge that she was the executrix under the 2014 Will, failed to even apply for the death certificate for her father and failed to make funeral arrangements for her father immediately after his death and left it for P to make all arrangements.

110.  There was no sufficient evidence that P had stopped Ds from attending the funeral ceremony at the Funeral Parlour. Whether it was through D3, or through online search as claimed by D1, all of the defendants did turn up at the Funeral Parlour. They were clearly aware of the date of the funeral was on 12 January 2017 and the Farewell Ceremony was on 13 January 2017. In any event, even on D1’s own evidence, she was aware that the Farewell Ceremony was at 9 am on 13 January 2017 at the Funeral Parlour[79]. This also appeared to be Chi Ho’s evidence that he was told on 12 January 2017 about the Farewell Ceremony being on the next day.

111.  According to D1, after P had stormed off after the announcement of the 2014 Will, she and the other siblings waited to hear from P as to the funeral arrangements. She claimed as the death certificate was applied for by P, she was not able to apply for release of her father’s body from the Kwong Wah Hospital to arrange for funeral arrangements[80]. However, what she said did not seem to make sense, since normally one would have to make the funeral arrangements first, which would include engaging and authorising a funeral parlour to directly liaise with the hospital for release of the body from the hospital to the funeral parlour. There was no sufficient evidence anyway, that only the person who applied for the death certificate could make funeral arrangements. In any event, as said earlier as D1 knew full aware she was the executrix, there was no reason why she could not have applied for the death certificate in the first place.

G.5 The funeral ceremony in Hong Kong

112.  I find it odd that D1’s evidence was that even though she found out their father’s funeral ceremony would take place on 12 January 2017, she claimed she had to work and could not take leave. D1 was an employee at the Hong Kong Airport Service at the airport and her evidence was that it was her direct boss who introduced her to Mr Yip in relation to the making of Deceased’s 2014 Will, and it seemed odd that she would not be able to obtain leave or at least half day’s leave for an important matter such as attending her father’s funeral. Anyway, she claimed she was only able to arrive at the Funeral Parlour at about 7 pm -7:30 pm when she allegedly saw P and his family leaving hastily.

113.  D1 claimed that when she went to view the Deceased’s body, she saw that he was covered by a “flag” with a Christian cross, and that she had asked the staff in charge (堂倌) to remove it, but according to D1, the staff said he was following instructions from the person who was “hosting” the funeral service , ie the person who arranged and paid for the service (“主人家”) to place the “flag” on the body, but would remove it prior to closing the coffin[81]. I have to say, this again did not make sense as the staff had said, he was following instructions of the person who arranged and paid for the service, there was no reason why he would simply accept the words from someone else claiming to be a family member and then did something contrary to his instructions.

114.  As for D3, he said he arrived at the Funeral Parlour between 4pm – 4:30 pm and that when P saw him, he came out of the Memorial Hall and spoke to him alone outside the room telling him to tell the others not to create trouble and further told him about the Farewell Ceremony and the arrangements of the hearse the next day, and then afterwards D3 then entered the Memorial Hall and paid his respects to his late father by lighting incense sticks and bowing. He then waited outside the Memorial Hall for his family members and D1 to arrive. According to D3, he saw P’s friends, about 10 of them inside the Memorial Hall and that they sang hymns/gospel songs, and there was no monks praying and no Buddhist ceremony, and that P and his family were not wearing traditional Chinese mourning clothes. After his sisters, D1 and D4, and their families arrived, they then stayed in the Memorial Hall, burning paper money, until about 11 pm when the Funeral Parlour was to close. He claimed there was no Yellow Notice (as defined below) referred to by Mr Li.

115.  According to P, on 9 January 2017, when he attended the office of 3448 to settle the payment of the funeral expenses, he had asked Mr Li whether he should add back the deleted items of “全套紙札” and “喃嘸開路運財” and that Mr Li said he would add back those items on complimentary basis, and that Mr Li then amended the funeral ceremony to be conducted in accordance with Chinese customary worship rituals, ie “神” meaning “拜神”. P maintained that the funeral ceremony in Hong Kong was according to Chinese traditional custom and he had produced a photograph taken of the layout of the Memorial Hall for the funeral ceremony in Hong Kong. P made all the payments on 9 January 2017 prior to the announcement of the 2014 Will on 11 January 2017.

116.  P’s evidence was largely corroborated by Mr Li’s evidence in relation to the funeral ceremony and burial arrangements. Mr Li confirmed that the funeral ceremony in Hong Kong took place according to Chinese traditional custom at the Funeral Parlour and that the ceremony had included “全套紙札” and “喃嘸開路運財” which normally would go together, and the whole ceremony finished at 7 pm.

117.  As the burial ceremony was to in Mainland, Mr Li said he had posted a “黃榜”/notice with the details of the burial (“Yellow Notice”)[82] on the main entrance door of the Memorial Hall, until the next day after the Farewell Ceremony. There were about 30 people at the Hong Kong funeral ceremony on 12 January 2017. Mr Li said he was present to supervise and that he left at about 7:30 pm. He did not see D1 and as he had not met the other siblings, he would not know whether they were present, but according to Mr Li, P, his wife and children were wearing traditional mourning clothes.

118.  Mr Li further confirmed at the trial that the funeral ceremony, whether in Hong Kong or in Mainland, was a Chinese traditional ceremony throughout and not a Christian ceremony, and that at the Hong Kong ceremony, there was no cloth or “flag” with a “cross” sign covering the body, and no one sang any hymns/gospel songs as alleged by Ds. Mr Li said he himself placed a red and white prayer blanket over the body “紅白經被” (which was one of the items on both P’s Invoice and D1’s Invoice) in accordance with the Chinese traditional ceremony.

119.  P had called his youngest daughter Shanna to give evidence. She was born in 1980 and was about 44 years old at the time of the trial. Shanna’s evidence was that when she was young, she and her siblings would often sleep over at their grandparents’ home, ie Flat 7E, and that she and her parents were very close to their grandparents and due to her constant contact with her grandparents, she would learn about matters concerning their family members including the defendants. However, during the trial, she admitted that it was during her primary school days that she would sleep over at her grandparents’ home and later when she grew up, she would only go to their home occasionally and during festivals. Shanna’s evidence about the relationship between her grandfather, ie Deceased and the 5 Siblings was also mainly hearsay and not really relevant to those agreed issues for trial. Further, as to whether her father had told D3 (what she said in her witness statement) or D2 and D3 (what she said earlier in her affirmation) about the re-arranged date of the funeral ceremony in Hong Kong was again hearsay evidence from her father. Shanna’s version of what happened at the funeral ceremony in Hong Kong was essentially the same of that of her father’s and did not add anything further to it.

120.  D3 had called his son Chi Ho to give evidence. Chi Ho was about 35 years old at the time of the trial. He said he arrived at the Funeral Parlous at about 6:45 pm on 12 January 2017 prior to his younger sister, and he saw Deceased’s photograph inside the room and that there were people whom he had never met singing hymns/gospel songs which looked like a Christian ceremony, and that after 5 to 10 minutes, the singing stopped. According to Chi Ho, by the time he and his sister and their parents entered the Memorial Hall, there was no one else there save the staff at the Funeral Parlour. He and his family light incense sticks and bowed to the Deceased, and thereafter, their mother asked him and his sister to leave first. Chi Ho said he did not see the Yellow Notice or any notice on the door regarding the Farewell Ceremony the next day and maintained his evidence during the trial. However, he did admit that there was an incense pot there inside the Memorial Hall although he said he did not recall whether there were incense sticks there. When asked whether there was any flag or cloth with Christian cross there, he also claimed he could not recall. He then said that according to his understanding, there were many gods in Chinese religious beliefs and they could all co-exist.

121.  The fact was on the D1’s Invoice, produced by D1, it was clearly stated that the Farewell Ceremony was “維新”, there was also a “tick” against a “經被紅白被”, namely the red and white prayer blanket as described by Mr Li, and the item of “喃嘸上山英雄” was already deleted. In fact, there was no tick against the item “麻衣孝服”. It was not D1’s case that she had not agreed to those ticked items on D1’s Invoice. D1 was the only one who knew the contents of the 2014 Will at that time, and she had voiced no objection on those items on D1’s Invoice, and had in fact paid Mr Li HKD 25,500 that day. Save for the dispute over whether the other two of the 3 Deleted Items were added back, insofar I can see, the other items whether on P’s Invoice or D1’s Invoice were the same, apart from the description of the ceremony.

122.  On my reading of Clause 3(ii), what was stipulated by Deceased was the burial or worship ceremony in his hometown was to be in accordance with his hometown custom same as Madam Wong’s. There was no mention about any funeral ceremony in Hong Kong being in accordance with his hometown customary ritual. There was no requirement or wishes expressed by the Deceased under the 2014 Will in respect of his funeral ceremony in Hong Kong. Anyway, even if there was a “flag” with a Christian cross as described by D1, it would not mean that the funeral ceremony was held in accordance with Christian rites and I accept Mr Li’s evidence that he had placed the red and white prayer blanket over Deceased’s body, which was one of the ticked items on both P’s Invoice and on D1’s Invoice. Even if there had been friends of P’s who did sing some hymns/gospel songs, it would not mean that the funeral ceremony was held in accordance with Christian rituals. In fact, even if there had been a flag with the Christian cross and hymns/gospel singing, and that the deleted items “喃嘸開路運財” and “全套紙札” were not added back, in my view there was no breach of Clause 3(ii) on the part of P in respect of the funeral ceremony held at the Funeral Parlour in Hong Kong.

G.6 The Farewell Ceremony on 13 January 2017

123.  It was P’s evidence that even though the defendants knew full well the date, time and place of the escort of their father’s body, and the burial ceremony in Mainland, none of them were present when the hearse departed from the Funeral Parlour at about 8 am on 13 January 2017. Only P, his wife, Mr Li and a staff of 3448 boarded the hearse for Qishan Cemetery. In fact, according to P, the hearse had sufficient seats to accommodate all the defendants. He said he did not see any minivan following the hearse and when they arrived at around 11 am, none of the defendants were there. It was thus P’s case that the defendants were the ones who failed to comply with Clause 3 (ii) by not “escorting “Deceased’s body to Qishan Cemetery. According to P, it was only around 1 pm when the burial ceremony was almost completed then D3 appeared. According to P, D3 only went to ensure Deceased’s body was buried and that D3 told P that D1 had given him some money to hire a private car from Shenzhen to Qishan Cemetery. D1 and the other siblings never appeared.

124.  Ds had produced their respective immigration travel records to show they left Hong Kong at about 9am on 13 January 2017 and returned midnight on 14 January 2017. Ds had also produced receipts from “從德善社” regarding the worshipping ceremony in Hong Kong which they arranged for the Deceased after the burial[83]. P said he was only notified of the worship ceremony arranged by D1 and/or other defendants for their father (從德善社拜懺) after it took place on 20 January 2017.

125.  Mr Li’s evidence was on 13 January 2017, he arrived at the Funeral Parlour at 7:00 am and he only saw P and his wife and his children and he did not see anyone else. He did not see D1. His evidence was as there were no other friends or relatives present, P decided to cancel his booking of the cross border bus. According to Mr Li, he accompanied P and his wife in escorting the body all the way from the Funeral Parlour to Qishan Cemetery and they arrived there at about 11 am, and according to Mr Li, he did not see any minivan following them. Towards the end of the burial, he then saw a man arriving in a private car, and the man spoke to P, and he then realised that was P’s brother, namely D3.

126.  As for the burial at Qishan Cemetery, according to Mr Li, P had arranged for a ceremony with a monk to say prayers, but this ceremony would be upon the completion of the burial, and on 13 January 2017, the burial had not been completed, and therefore the praying ceremony could not take place, and that it was only on 15 January 2017 that the burial ceremony was completed and that he had immediately informed P.

127.  According to Mr Li, on 26 January 2017, D1 went to his office at 3448 and sought the refund of HKD 25,500, which Mr Li repaid her[84].

128.  D1’s written evidence was that on 13 January 2017, D2, D3 and his wife, their son Chi Ho, and D4 , a total of 6 persons had waited outside the Funeral Parlour and they followed the hearse in their minibus and that they arrived at the Qishan Cemetery at about 14:50 pm and they waited near the “土地廟” at the entrance of the cemetery[85]. Only D3 got off first and went up to the grave site to check. D3’s evidence was similar to that of D1, and that when he went up to the grave site and saw P, he said P was surprised and asked him how he got there, and D3 said he went in a car by himself.

129.  Chi Ho’s evidence was that at about 7:15 am on 13 January 2017, he arrived outside the Funeral Parlour with his parents and D1, D4 ,and D2 and they boarded the 7 seater minivan booked by D1 and followed the hearse when it left at about 8:15 am. They arrived at the border at about 9am and after passing through customs, they boarded another minivan to Qishan Cemetery. His written evidence was that when they arrived at “土地廟” at the Qishan Cemetery, his father got off the minivan first and walked up the hill to inspect the site, and later his father telephoned D1 to tell her there were no candles or any worshipping items there, they then went off in the minivan to a shop nearby to buy the worshipping items, and they eventually arrived at the site at about 3:45 pm. By then, P and his wife had already left. They then placed all the candles and worshipping items and the also burned funeral money and clothes for the Deceased and they left at about 5 pm.

130.  Chi Ho said it was his father, ie D3, who told him to arrive the next day at 7 am, and that it was the previous evening, ie 12 July 2017 that he was told that the Farewell Ceremony was going to be at about 7 am on 13 July 2017. He said it was his other family members who recognised his grandfather’s hearse when it was leaving the Funeral Parlour, and that it was the only hearse at the carpark at that time.

131.  Ds had produced some photographs in relation to them being in the minivan said to be taken on 13 January 2017 when their minivan was following the hearse and of them at the grave site on that day[86], and also a video, which was shown to the Court during the trial.

132.  In the parties’ agreed English translation for Clause (3)(ii)[87] for the two Chinese words “護送” the English translation is “escort”. There was no stipulation in Clause (3)(ii) that the “escort” had to be one car immediately after another car and/or immediately after the hearse. Also, although “funeral procession” appeared in the agreed English translation, it was not clear which were the Chinese words referred to.

133.  In any event, according to this Court’s interpretation, on the natural and ordinary meaning of the Chinese words in Clause (3)(ii), I find no stipulation by the Deceased in Clause (3)(ii) requirement that the “escort” meant that one car followed immediately after another and/or after the hearse. In any event, I find there was no sufficient evidence that Ds did not follow the hearse at some distance away, or that they did not arrive after P and his wife and Mr Li had left.

134.  Having considered all the evidence of Ds and Chi Ho, there was no sufficient evidence to contradict Ds’ evidence that they did “escort” Deceased’s body to the Qishan Cemetery by following at a distance from the hearse. I find no sufficient evidence that Ds were in breach of Clause 3(ii) and Clause (4).

G.7 Deceased’s hometown customary burial rituals

135.  There was no expert evidence as to what exactly were the Deceased’s hometown customary rituals, whether in relation to the burial or for the worshipping. In D1’s witness statement, she said that the setting up of the memorial hall (設靈) and wake (守夜) of Madam Wong’s funeral was at the Universal Funeral Home on 9 November 2008 and the farewell ceremony (出殯) was on 10 November 2008. Ds had produced photographs in relation to Madam Wong’s funeral ceremony[88] which according to D1 was in accordance with mother’s hometown traditional rituals and Buddhist rituals. It was pointed out that in those photographs taken on 13 January 2017 in relation to Deceased’s burial and the video taken on 13 January 2017, there were no candles or any offerings seen at the grave sik. When P was asked, he pointed out that he only learnt of the contents of the 2014 Will at 6 pm on 11 January 2017 by which time it was too late to make any changes to the burial arrangements, but in any event, knowing what his father had told him about his wish for a Chinese customary burial, he did arrange with Mr Li for monks to say prayers at the grave site in accordance with Chinese traditional customary rites, and he had complained to Mr Li when there were no monks there at the time of the burial when they arrived, but Mr Li had explained to him that this would be performed after the completion of the grave site.

136.  When shown those photographs of Madam Wong’s funeral, P explained that all those worshipping ceremony rituals were after the burial of the body, and that Madam Wong’s body was transported back to her village first and upon arrival, the body had remained at the entrance of the village overnight, and then it was taken to the burial site the next day for burial. After the burial, everyone returned to the village and the worshipping was at her ancestral home in the village, and that the part that Deceased wanted in his 2014 Will was the worshipping ceremony after the burial, which was shown in the photograph marked “3” of those photographs produced by Ds.

137.  During re-examination, P had further explained that the reason why Deceased’s body had not been taken first to his hometown village for overnight was because there had been a change of policy in Mainland China, and that the hearse carrying a dead body could no longer make any stops before arriving at the grave site as there had been concerns regarding secret burials and that there were CCTV cameras everywhere to prevent the hearse stopping, and that a dead body could only be taken direct to a funeral parlour in Mainland China or to a lawful grave site for burial. In other words, it was no longer possible for the hearse with Deceased’s body to stop at his hometown village overnight. According to P, he did try to notify Deceased’s friends and family of the burial but, as the Qishan Cemetery was some distance from the hometown village, the Deceased’s friends and relatives in his hometown were not able to attend the actual burial ceremony and therefore they did not turn up. Further, as they believed that the customary worshipping ritual would take place in the village after the burial, they would attend the worshipping ritual instead. P also pointed out that D1 being the executrix was the one who bore the responsibility for arranging for worshipping rituals after Deceased’s burial, similar to those of Madam Wong after her burial.

138.  Anyway, according to Mr Li, P had indeed paid for monks praying at the grave site, but this would be after the completion of the burial site, which at first Mr Li had said would be half a month later, but later apparently this took place on 15 January 2017. P himself did not attend, as he said he had entrusted Mr Li to carry out all the necessary rituals as agreed.

139.  Although Mr Li’s evidence was confusing as to when the burial site was completed and when or whether there were monks attending the grave site to say prayers after completion , on my reading of Clause (3)(ii), there was no requirement that P himself had to be present all the time throughout all the customary rituals. There was no sufficient evidence to contradict P’s evidence that there had been a change in government policies, and that the hearse carrying the body was not allowed to make any stops prior to arriving at the grave site as there had been concerns regarding secret burials, or that the Mainland authorities no longer permit dead bodies to be left at the entrance of a village .

140.  In fact, as said earlier, there was no stipulation in Clause (3)(ii) that P was the one who had the sole responsibility to arrange for escorting of the Deceased’s body back to his hometown and/or to arrange for any customary worshipping rituals at Deceased’s hometown after the burial. Insofar as Clause (4) was concerned, in my view and according to the natural and ordinary meaning of the words, although the Deceased stated that the sum of HKD 450,000 held by D1 was to be jointly managed by P and the executrix namely D1 for the purpose of arranging for Deceased’s body back to his hometown in Chaozhou for burial and worshipping and all the funeral expenses etc in Hong Kong, this did not mean that the funeral/burial/worshipping arrangement had to be carried out by P solely. What was clear was that D1 did arrange for a worshipping ceremony on 20 January 2017, after the burial albeit in Hong Kong.

141.  Even though P was not aware of the contents of the 2014 Will until 6pm on 11 January 2017, he did not dispute that his father had told him that he wanted Chinese traditional burial in his hometown and P said being the eldest son, he took up the funeral arrangement when no one else did. Deceased in fact provided in Clause (3)(i) of the 2014 Will that D1 was to make final decision, even over whether his body was to cremated or not. In my view, on the natural and ordinary plain meaning of the words of Clause (3)(i), and Clause (3)(ii) the responsibility of the arrangement of the funeral/burial/worshipping in accordance with the Deceased’s hometown customary rites was that of D1 being executrix of the 2014 Will, and/or all the 5 Siblings and not on P solely. In any event, I accept P’s evidence and find no sufficient evidence that he was in breach of Clause (3)(ii) or Clause (4).

G.8 Conclusion of Issue (2)

142.  In light of my above findings, the answer to issue (2) is that there is no sufficient evidence that P and/or Ds were in breach of Clause (3)(ii) and/or Clause (4) of the 2014 Will. I do not need to deal with the conditional gift arguments in the parties’ respective submissions.

H. ISSUES (3) AND (4)

143.  Issue (3) is whether on a true construction of Clause (3)(iii) of the 2014 Will P and D are in breach of Clause (3)(iii) of the 2014 Will by commencing and conducting this action and HCMP 193.

144.  Even though in Clause (3)(iii), the words used were “法律訴訟”, in my view, an administration action, in particular the way the agreed disputed issues were finally framed in the present action, it would mean P and Ds are only seeking a determination from the Court of each of those agreed questions/issues for administration of Father’s Estate. In my view P was not in breach of Clause (3)(iii) by commencing HCMP 196. P should not be deprived of his entitlement of Father’s Estate by reason of his issuing the present action. As for HCMP 193, this was not a matter for trial before this Court.

145.  Issue (4) is whether on a true construction of Clause (3)(ii) of the 2014 Will, this probate administration action constitutes a legal action challenging the Deceased’s arrangements (whether prior to his passing away or thereafter) on the part of P.

146.  It appears to be argued by Ds that by seeking that D1 be removed, P is challenging the arrangements made by Deceased and under Clause (3)(iii), if P is unsuccessful, then he should not be entitled to any part of the Father’s Estate. As seen later in this judgment, P is successful, and therefore P should not be disentitled under Clause (3)(iii) of the 2014 Will.

I. ISSUE (5)

147.  Under this issue, the question is whether Clauses (3) (ii), (iii) and (4) of the 2014 Will are ambiguous and reflect the Deceased’s true testamentary intentions of the 2014 Will and whether rectification of the 2014 Will is appropriate in the event that the questions posed in those Issues (1) to (4) are determined in the negative.

148.  In light of my earlier findings on the natural and ordinary meaning of the words, none of the 5 Siblings will be disentitled from sharing in the Father’s Estate. I am of the view no rectification is required for Clauses (3)(ii) and (iii). Under Clause (4), insofar as the cash part is concerned, the sum of $450,000 ie Funeral Money, on my reading, should be jointly managed by P and D1. There should be reimbursement of funeral expenses by Father’s Estate to P and/or D1 for the sums paid by P and D1 for such purpose upon proper receipts being produced. Any surplus should fall into the residuary estate and any deficit be borne by the residuary estate.

149.  In relation to the balance of Deceased’s cash at the time of his death, there should be a proper account as to what the amount should be. The issue is whether what was transferred out of Deceased’s account/s to D1’s account/s prior to Deceased’s death in addition to the Funeral Money was part of Father’s Estate.

150.  As for the landed properties, it is clear Deceased’s intention under Clause (4)(i) was to bequeath to P all his interest in the Shatin Property. In my view, this would be the interest Deceased had inherited from Madam Wong, subject to any unpaid portion of the spousal charge and interest. Any remaining interest/share of Shatin Property would fall in the residuary estate of Mother’s Estate.

151.  As for Clause (4)(ii), Deceased only had 50% of the interest in Flat 7E at date of death, and this would go to D1 under Clause (4)(ii). Under Clause (4)(iii), the 5 Siblings will be entitled to Shop E in equal shares.

152.  As pointed out by this Court during the trial, there was no provision as to the residuary estate in the 2014 Will. The residuary estate of Father’s Estate should thus be distributed in accordance with the provisions in the IEO.

153.  Any rectification should be in accordance with this Court’s above interpretation of the 2014 Will.

J. ISSUE (6)

154.  Under this issue, the question is whether D1 should be removed from being the sole executrix of the Father’s Estate and be replaced by a person that the Court deems fit.

155.  P’s reasons for D1’s removal were essentially:

(1) Lack of proper account and inventory of the Father’s Estate

(2) Intermingling of Deceased’s assets with D1’s own assets

(3) Conflict of interest on the part of D1

(4) Hostilities against P

J.1 Lack of proper account and inventory and intermingling

156.  According to D1, she had maintained proper accounts and/or records for the Father’s Estate, and she had produced various documents[89]. Insofar as the cash balance of the Father’s Estate is concerned, what is clear is that D1 had not opened a separate bank account for Father’s Estate upon the grant of probate to her on 10 July 2017 and the funds belonging to Father’s Estate had been deposited into various accounts held in D1’s own name.

157.  As disclosed by D1, there were 3 sources of funds belonging to Father/Father’s Estate deposited into D1’s bank accounts, namely (i) cash held by Deceased at date of his death; (ii) funds transferred from Deceased’s bank accounts to D1 prior to his death and about a month prior to his executing the 2014 Will said to be for his funeral and burial expenses (“Funeral Money”); (iii) rental income collected by D1 from Shop E from Deceased’s date of death todate (collectively “3 Sources”).

J.1.1. Cash held by Deceased at date of his death

158.  According to the Schedule of Assets and Liabilities attached to the Grant of Probate of the Father’s Estate of 10 July 2017 (“Schedule”), there was a credit balance of HKD 1,518,807.31 in the HSBC Savings Account and a “Premier” integrated account with “0” balance at HSBC at the date of his death on 24 December 2016[90] (“Starting Balance”). It later transpired that the Deceased had also held a RMB Personal Savings Account at HSBC prior to his death which was closed on 15 October 2014[91], but the balance as at date of closing and whereabouts were unknown (“HSBC RMB Savings Account”).

159.  There was no disclosure in the Schedule that Deceased held a RMB savings account at Bank of China (Hong Kong), the balance in which as at Deceased’s date of death was RMB 6.16 (“BOC RMB Account”)[92].

160.  The integrated bank statement produced by D1 of Deceased’s HSBC “Premier” account as at 7 January 2017 showed the balance of the HSBC Savings Account as at that date to be HKD 1,520,472,30[93]. According to a list prepared by D1 of monthly balances (“List of Monthly Balances”), a sum of HKD 1,520,489.61 was transferred on 28 July 2017 from Deceased’s HSBC Savings Account into D1’s personal HSBC Advance Account (815-228XXX-833) held in her sole name and said to be opened by her on 28 July 2017 (“D1’s 815 HSBC Advance Account”)[94]. D1 then produced the 1^st page (total 2 pages) of the monthly statement of the D1’s 815 HSBC Advance Account as at 27 August 2019, which showed a balance of HKD 1,521,910.80[95]. Apart from July and August 2017, the List of Monthly Balances showed the monthly balance purportedly as at the 24^th day of each calendar month until 24 August 2019. As no monthly bank statements during the period of some 2 years had been produced at that time, there was no information disclosed by D1 in the List of Monthly Balances in relation to the detailed transactions, if any, of the Starting Balance, during that period.

J.1.2. Funds transferred from Deceased’s bank accounts to D1 prior to his death

161.  Deceased had held 4 bank accounts at the Bank of Communications prior to his death, two of which were closed respectively on 30 June 2004 and 29 December 2006. The remaining two, namely a securities account 5395025650 and a savings account 02753993077336 were closed on 6 September 2014, just about a month before Deceased executed the 2014 Will on 10 October 2014[96]. Prior to the trial, there was no disclosure by D1 as to what the balances were at the date of closing of those two bank accounts, and the whereabouts.

162.  D1 had produced a bank withdrawal form (partly redacted) produced by D1 to show a sum of RMB 347,700 was on 9 October 2014 transferred from the HSBC RMB Savings Account held by Deceased to another account 472-888XXX-833[97], held by “Wu**L/Woo C S”, a joint account of D1 and Deceased (“HSBC Joint Account”)[98]. There was then a transfer of HKD 16,000 into RMB 12,549.02 at the rate of 127.500 on 13 October 2014 in the HSBC Joint Account[99].

163.  On the same day, 13 October 2014 a total sum of RMB 360,249.02 (ie RMB 347,700 + RMB 12,549.02) was then transferred from the HSBC Joint Account into a HSBC account 168-405XXX-833 held in the sole name of D1 (“D1’s 168 HSBC Advance Account)[100]. According to D1, the amount of RMB 360,249.02, @1.2593 was equivalent HKD 453,856 as at 13 October 2014. This sum was according to D1 the sum of HKD450,000 mentioned in Clause (4) of the 2014 Will for the Funeral Money for Deceased’s funeral and burial expenses. D1 then produced a list of RMB fixed deposits principal and interest prepared by her in relation to this Funeral Money during the period between 13 October 2014 to 24 August 2019 (“List of Fixed Deposits”)[101]. According to D1, due to the fluctuating rate of RMB, she decided to convert the RMB to HKD 450,000 on 24 October 2018. D1 had further produced a redacted bank statement of the D1’s 168 HSBC Advance Account as at 24 August 2019 to show that the balance of the Funeral Money as at that date was HKD 450,460.42[102].

164.  It was thus D1’s case that the Funeral Money was part of the assets of the Estate. Yet, these was no disclosure of the same in the Schedule. When asked during the trial, D1 then said the Funeral Money was “given” to her which seemed inconsistent with her own case. In any event, there was no disclosure in the Schedule of the balances in Deceased’s two bank accounts at the Bank of Communications at the date of their closing on 6 September 2014 and the whereabouts of those balances. D1 was the last witness to give evidence at the trial and on the last day of her evidence, when asked about the balances in Deceased’s Bank of Communication accounts, D1 produced various bank statements, namely Exhibit D3(1) to (5). It then transpired that 2 cashier cheques for HKD353,600.19 dated 6 September 2014 and HKD334,000 dated 8 September 2014 were deposited into D1’s Bank of East Asia bank account (“D1’s BEA Account”), totalling HKD687,600.19. According to D1 these sums were given to her by Deceased for (i) emergency use; (ii) worshipping ritual in Mainland; and (iii) payment to the Adopted Son. D1’s evidence was confusing as to the whereabouts of those sums, part of which was also for worshipping rituals same as the purpose of the Funeral Money. There was no disclosure of the HSBC Joint Account and/or the balance as at date of Deceased’s death. According to Clause (4) of the 2014 Will, the Funeral Money was to be jointly managed by D1 and P. There was no evidence from D1 as to how she had carried out this part of her duties as executrix and/or why the Funeral Money was not held by D1 and P jointly. There was also no explanation as to why there had been no reimbursement out of the Funeral Money for Deceased’s funeral and burial expenses paid by P by 24 August 2019[103]. When asked, D1’s answer was P did not ask her.

J.1.3. Rental income from Shop E

165.  According to the list prepared by D1 (“List of Rental Income and Expenses”)[104], the rental income from Shop E had been collected by her during the period from 31 December 2016 until 31 August 2019 (save for the month of January 2017 collected by P) and deposited by D1 into her personal bank account at Bank of China (“D1’s BOC Account”) which was opened by D1 on 30 August 2007, ie it was not a new account opened for Father’s Estate.

166.  As D1 had opened D1’s 815 HSBC Advance Account in July 2017 for deposit of cash from Father’s Estate, there was no reason why D1 did not deposit the rental income of Shop E into that account, or another new account opened for Father’s Estate, and instead deposited all the rental income collected by her into D1’s BOC Account. During the trial, D1 claimed that she did not place her own monies into D1’s BOC Account. D1 also claimed she had paid Deceased’s expenses including funeral/burial/ worshipping expenses incurred by D1 out of the rental income. According to the List of Rental Income and Expenses, as at 31 August 2019, she had collected a net total of HKD 1,416,875.78[105], and she had produced only one out of three pages of her bank statement as at that date[106]. Even though the bank statement she produced was an integrated account statement, there was no reason why D1 could not produce complete copies of bank statements for the entire period from Deceased’s date of death with only her own bank transactions redacted. Eventually in Ds’ 3^rd Supplemental List of Documents filed on 8 December 2020, D1 produced the bank statements of D1’s BOC Account from 31 December 2016 to 30 June 2020 but as at that date, the funds had been transferred out[107].

167.  The List of Rental Income and Expenses as at 31 August 2019 was later updated by D1 to 3 January 2020 to HKD 1,631,200.44 (“Updated List”)[108], and D1 had produced an account balance inquiry from BOC confirming this balance[109].

J.1.4. Updated cash position as at 31 December 2019

168.  D1 had produced an updated summary of the cash position of Father’s Estate for the period from 25 December 2016 until 31 December 2019[110] (“31.12.19 Cash Summary”). This disclosed that a sum of HKD 1,522,422, the source of which was from the Starting Balance had by then been transferred into D1’s Standard Chartered Bank 561-3-776XXX-4 said by D1 to be opened by her on 13 December 2019[111]. It appeared that there were a total of 4 accounts opened at the Standard Chartered Bank in December 2019 by D1 (“D1’s SCB Accounts”)[112].

169.  The 31.12.19 Cash Summary showed the cash position of Father’s Estate as at 31 December 2019 from the 3 Sources stated above was, according to D1, as follows:

(1) Deceased’s Starting Balance, first transferred to D1’s 815 HSBC Advance Account and later into D1’s SCB Accounts: HKD 1,522,422

(2) The Funeral Money:- transferred to D1’s 168 HSBC Advance Account: HKD 450,611.94

(3) Rental income from Shop E: deposited into the D1’s BOC Account: HKD 1,631,200.44

J.1.5. The updated cash position as at June 2020

170.  It was only in the Ds’ 3^rd Supplemental List of Documents which was filed on 8 December 2020 that D1 disclosed an updated “Estate Account” in relation to the above cash balances from the 3 Sources, which showed that in June 2020, all the funds were transferred to new accounts opened by D1 at Citibank (“D1’s Citibank Accounts”)[113], and as at 18 August 2020, the total balance at the D1 Citibank Accounts was HKD 3,511,020,21[114]. D1’s explanation was that she, with the consent of the other defendants, decided to transfer all the funds held for Father’s Estate by D1 previously in her BOC, HSBC and the SCB accounts to new integrated bank accounts opened at Citibank, and also, to avoid depreciation of the HKD, all the defendants agreed to the rental income collected from Shop E by D1 and held in the D1’s BOC Account up to 31 May 2020 to be transferred into USD and held in the USD account at Citibank, and that from June 2020 onwards, the monthly rental was to be deposited into the HKD account at Citibank. Also, the funds in D1’s SCB Accounts were also transferred into USD and deposited into the USD account at Citibank. As for the Funeral Money, this amount was also transferred into the integrated HKD accounts at Citibank. D1 then provided a USB which was said to contain statements/transaction records of the D1’s 168 HSBC Advance Account (from October 2014 to January 2020), D1’s 815 HSBC Advance Account (from August 2017 to June 2020), and the D1’s SCB Accounts (from December 2019 to June 2020)[115].

171.  There was no consent from P as to D1’s actions of transferring the past rental income into USD. As D2 and D4 had not appeared, there was no opportunity for P to cross examine them as to whether they had consented or not to all those transfers made by D1. However, in the letter dated 3 March 2024 sent by D4 to the Court requesting for leave of absence at the trial, she indicated that she consented to P’s suggestion to remove D1 as executrix, as since D1 became the executrix, all along she had not provided a detailed account to the beneficiaries as to the cash and rental income in Father’s Estate, and that D1’s replacement would be the best solution to resolve all the disputes among the 5 Siblings.

J.1.6. Conclusion on J.1

172.  The present action was commenced by P on 12 February 2018 seeking the removal of D1 as executrix, complaining that D1 had not provided an account of Father’s Estate and the funds from the 3 Sources had also been respectively moved around. It was not until December 2020 that P received a USB said to contain bank statements of D1’s bank accounts in which the funds of Father’s Estate from the 3 Sources had been held.

173.  There was no reasonable explanation as to why D1, upon being granted probate of the Father’s Estate, did not open a separate bank account or accounts for Father’s Estate and instead deposited all the sums into her personal bank accounts. Even though her case was that she had kept the funds from 3 Sources separate from her personal monies, at this stage, it was not clear, whether those funds had been used by her and/or whether she had received any benefit therefrom.

174.  D1 has been legally represented throughout and she must realise that she should keep monies belonging to Father’s Estate separate in an estate account. It is not sufficient simply to disclose the balances, since the beneficiaries were entitled to know whether their funds had been used, and if so, in what way. D1 had provided information and documents on a piece meal basis and when she eventually provided the bank statements for the accounts containing funds from the 3 Sources, she then decided to open new bank accounts and to transfer what she said were all the funds of Father’s Estate into the new Citibank accounts. Her actions brought suspicion on herself.

175.  In any event, D1 admitted that there was a credit balance of her own funds of HKD25,261.56 on 31 December 2016 in D1’s BOC Account before she started to deposit the rental income therein and thereafter there had been cash sums withdrawn by her from that account allegedly for meeting Deceased’s expenses and funeral expenses.[116]. However, it was not clear why she did not use the Funeral Money for funeral expenses. In my view, P was justified in commencing the present action and complaining that D1 had failed to render proper accounts and inventory of Father’s Estate and intermingling funds of the Father’s Estate with her own funds in her own bank accounts at the time.

J.2 Conflict of interest and hostilities

176.  As said, apart from Deceased’s HSBC Savings Account disclosed in the Schedule, there were other bank accounts held by Deceased shortly prior to his executing the 2014 Will, and about two years prior to his death. At this moment, it was not clear the whereabouts of the balances, save for the Funeral Money. Even for that sum, as set out earlier, it was first transferred into the HSBC Joint Account, and it was not clear what happened to the funds in the HSBC Joint Account, and whether the funds therein belonged to Deceased or D1.

177.  As said, during the last day of her evidence at the trial D1 disclosed what was transferred into her bank accounts from Deceased’s Bank of Communication Accounts was a sum of HKD687,600 and D1’s account of that sum was far from clear. Further, as mentioned earlier, there was also the issue as to whether the 5 Siblings had agreed to gift their share of the rental income of the Shatin Property to Deceased for his living expenses and if not, the 5 Siblings including D1 herself, would be entitled to seek an account of their share of rental income from Father’s Estate. Father’s Estate may also be entitled to seek an account from D1 as to the funds transferred from Deceased’s accounts to D1’s personal accounts during Deceased’s lifetime.

178.  Having considered all the evidence, I am of the view that there is also clearly a conflict of interest on the part of D1 to continue to act as executrix of Father’s Estate.

J.3 Conclusion of Issue (6)

179.  Having regard to all above said, I am satisfied that under section 33 of the Probate and Administration Ordinance, Cap 10, due and proper administration of Father’s Estate and the interests of all the beneficiaries require that D1 be removed as executrix of Father’s Estate and be replaced by a suitable administrator.

180.  I hereby direct the parties to fix a hearing before a judge in chambers (estimated length of hearing of one hour) for directions including the appointment of a suitable person to be the independent administrator for Father’s Estate.

K. CONCLUSION AND ORDER

181.  The parties shall submit an agreed draft order to reflect the Court’s above determinations on the respective issues for this Court’s approval.

182.  As for costs, as said, this is an administration action, I am of the view all parties’ costs including reserved costs be paid out of Father’s Estate and to be taxed if not agreed on common fund basis. This is an order nisi which shall be final after 14 days.