HAN YI v. NGAN SHUN WAI AND OTHERS

CACV 168/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 168 OF 2011

(ON APPEAL FROM HCAP NO. 8 OF 2008)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Tang VP:

Introduction

1.  The Deceased had a stroke on 2 February 2008. He lost consciousness shortly thereafter and remained comatose until he died on 4 March 2008.  He was 88.  He was survived by 6 children, who are the 1^st to 6^th Defendants.

2.  The 1^st and 2^nd Defendants (daughters), together with the 3^rd and 4^th Defendants (sons) were the children of the Deceased and his wife Madam Chu Shuk Kin ("the late Madam Chu").  They were born in 1946, 1948, 1949 and 1951 respectively.  The late Madam Chu passed away in 2004.

3.  The Deceased also had two sons by Madam Chu Siu Ling ("Madam SL Chu").  They were born in 1964 and 1967 respectively.  The 6^th Defendant is a doctor.  Madam SL Chu has survived the Deceased[1].

4.  The Plaintiff was born in 1956 and met the Deceased in 1983, and had since 1984, cohabited with the Deceased.

5.  On 10 March 2003, the Deceased made a will at the office of Messrs. W. I. Cheung & Co ("the Will").  In the Will, the Plaintiff was described as the Deceased's "cohabitant". She was made co-executrix with the 1^st Defendant.  Under the Will, the net estate was to be distributed:

(a)  30% to the 1^st Defendant;

(b)  25% to the 2^nd Defendant;

(c)  25% to the Plaintiff;

(d)  20% to the 5^th Defendant.

6.  After the death of the Deceased, the original Will[2] could not be found.  In the Action, the Plaintiff sought to propound the Will for probate.  That was resisted by the 3^rd to 6^th Defendants.  The 3^rd and 4^th Defendants also counterclaimed for a declaration that the Will had been revoked.  The 1^st and 2^nd Defendants took a neutral stance.

7.  After an 8-day trial, Lam J dismissed the Plaintiff's claim and granted the 3^rd and 4^th Defendants' counterclaim.  This is the Plaintiff's appeal.

The Will

8.  The Deceased had been a client of Messrs. W. I. Cheung & Co for a long time.  Ms Connie So, an assistant solicitor, who was with the firm from 2000 to 2003, met with the Deceased on 7 March 2003, and spent about an hour taking instructions from him for the preparation of the Will. She prepared the Will according to the Deceased's instructions and arranged for it to be executed on 10 March 2003.  She and Mr Desmond Cheung, a solicitor and son of the senior partner of the firm, were the attesting witnesses.  Lam J said Ms Connie So had advised the Deceased:

"14.   … to keep safe custody of the Will. She told him to keep it in the brown envelope provided by the firm and not to fold or punch it with holes nor to put clips on it. She told him that such acts might suggest either there was a supplemental document or attempts in tearing the will and might render the Will void. She did not tell him that a will could be revoked by destruction. She said to him that he could make a new will as many times as he wished. …"

The Deceased

9.  The Deceased was a major shareholder in a well-known Chinese restaurant in Hong Kong called Lin Heung Lau（蓮香樓）.  He was intelligent and well educated.  He was a shrewd businessman who had many businesses.  The learned judge agreed with Mr Jason Pow, SC, who appeared for the 5^th and 6^th Defendants at trial and before us, that the evidence showed that "the Deceased was a meticulous person careful with his documents".

10.  The learned judge said:

"100. There is little dispute between the parties as to the character of the Deceased.  He was an intelligent man as well as an authoritative head of the family.  He did not like to talk much and sometimes those around him had to work out for themselves what his terse expression of thoughts meant.  He also did not like to answer questions.  Thus, the 1^st Defendant testified that even if he had raised a matter and did not elaborate further, she could not ask him for more information.  One would just have to wait to see if he was willing to tell you more.  He did not appreciate unsolicited advice.  So testified that he would fight back and even scold the person who contradicted him.  However, he might still reflect on what other said and if he considered it to be sensible, he might change his mind."

11.  The learned judge described the Deceased's last years in these words:

"57.   In 2003, the Deceased was 83 years old whilst the Plaintiff was 47 years old. His health was on the decline. From time to time, he had to have medical treatments for his physical problems and on the evidence (in this respect I prefer the evidence of the defence to that of the plaintiff) the 6^th Defendant was always the first port of call. Since about 2006, he suffered from incontinence and in June 2007 he had a fall at Flat 801, Block 23 Heng Fa Chuen ['Unit 801'] and injured himself. As a result he was hospitalized for 3 days. He had to be attended by maids in his daily routine. Even before the accident at Unit 801, he had to be assisted by maids in his showers. After the accident, he had to walk with the aid of a walking stick and sometimes used a wheelchair. However, his mind was still very sound and he did not reduce his visits to Lin Heung Lau and STFM. Even though these were his businesses, it is fair to say that his visits were more social than commercial in nature."

12.  The Deceased and the Plaintiff had resided at an apartment in Villa Monte Rosa, No. 41A Stubbs Road, Hong Kong ("VMR")[3]^,[4]. He had a bedroom and study at VMR, where there were two safes, one for himself and the other for the Plaintiff.  It is common ground that the key to the Deceased's safe was kept in the Plaintiff's safe, and the Deceased's safe could be opened by the key alone.

Revocation

13.  A will could be revoked by burning, tearing or otherwise destroying of it by the testator with the intention of revoking it. Section 13, Wills Ordinance (Cap 30). 

14.  In Welch v Phillips (1836) 1 Moo PCC 299, Parke B said at page 302:

"Now the rule of the law of evidence on this subject, as established by a course of decisions in the Ecclesiastical Court, is this: that if a will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it. It is a presumption founded on good sense; for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if, on the death of the maker, it is not found in his usual repositories, or else where he resides, it is in a high degree probable, that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others which raise a higher degree of probability to the contrary."

15.  Although at one time, there was a dispute over whether the Deceased had the custody of the original Will:

"11. … However, by the time of closing submissions, all the parties agreed that the Will was handed by the solicitor to the Deceased after it was executed. …"

16.  The learned judge also dealt with other possible explanations for the absence of the original Will and concluded:

"146. … Of the other possibilities, I have already explained why there is no basis for suggesting that the children have either deliberately or accidentally caused the disappearance of the Will after the death of the Deceased. As regards the possibility of the Will being misplaced by the Deceased himself prior to his death, I have rejected the possibility of a secret place of storage. …"

17.  The learned judge had earlier explained:

"119. By the time of the closing submissions, it is common ground that the Will had been kept by the Deceased after its execution.  The evidence of So was firm and clear that the original was given to the Deceased.  She had actually told the Plaintiff so shortly after the death of the Deceased when the former made enquiry with her as to the whereabout of the original.  Thus, the presumption mentioned at the beginning of this judgment is engaged.

120.  Mr Pow submitted that the evidence shows that the Deceased was a meticulous person careful with his documents.  I agree.  He had a safe at home and in addition, as described to me at the trial, he kept some files of documents in his bedroom which he also used as his study.

121.  The Deceased was told by So as to the importance of keeping good custody of the Will.  It is likely that he had kept it in his safe.  Though there is no direct evidence as to where the Deceased kept the Will, the 1^st Defendant testified that on one occasion in 2003 the Deceased was about to show her something from his safe as he mentioned about arrangement as to his assets after his death.  Though the Deceased paid visits to the Restaurant and STFM, he did not keep an office in those places and he did not work there. 

122.  Mr Fung relied on the missing of the Declaration to put forward a proposition that the Deceased could have a secret place for keeping his important documents which are not known to the parties.  The submission is along this line: the Declaration was an important document from the Deceased’s point of view; it is likely that he kept it together with the Will; there was no reason why the Deceased would destroy the Declaration; hence the missing of the Declaration suggested that it was kept together at a secret place unknown to the parties.    

123.  It should be noted that the Plaintiff did not suggest a specified place where the Will could have been kept but she was denied access and she could not conduct any thorough search there.  All along, the case has been run on the basis that the Will cannot be found despite diligent search by the parties. 

124.  If one were to compare the written Opening of the Plaintiff and the Closing submissions filed on her behalf, there is a substantial change in her arguments.  In the Opening, it was said on her behalf that by reason of the search and removal of the documents conducted by the 1^st, 2^nd, 4^th and 5^th Defendants in the bedroom of VMR the Will could have been taken away by them.  In the Closing, Mr Fung suggested that “the original had either been mislaid or destroyed by accident (either before or after the death of the Deceased) or kept in a place by the Deceased which even P and the children do not know about.”

125.  Mr Fung accepted that there is insufficient evidence to suggest that the Defendants had deliberately removed and destroyed the Will after the death of the Deceased.  The concession was made properly.  Having heard the evidence, it is clear to me that such a suggestion is preposterous.  The evidence shows clearly that not only were the Defendants concerned to locate the original of the Will after the death of the Deceased, the Plaintiff was equally (if not more) concerned as well.  She went to see Cheung in February 2008 (before the death of the Deceased) in order to get a copy of the Will.  A copy was given to her.  She had enquired with Cheung if he could act for her and he had indicated he could not.  She therefore had in mind possible litigation well ahead of the Defendants.  She enquired with So as to the whereabout of the Will shortly after the death of the Deceased.  She had access to the safe of the Deceased and his files kept in the bedroom and therefore could have searched for the original there at any time before 7^th March 2008.   According to the 1^st Defendant, the Plaintiff had removed documents from the bedroom before the death of the Deceased.

126.  It is against this background that one should consider the evidence of the events shortly after the death of the Deceased.  On 6^th March, the 1^st Defendant for the first time got a copy of the Will from Cheung.  That started the search for the original on the part of some of the Defendants.  The Plaintiff said in her own evidence that the 1^st, 2^nd and 5^th Defendants enquired with her about the original.  She said the 5^th Defendant told her that they had got the copy from Cheung.  However, the original was needed because without it the Will would not be valid.  The Plaintiff did not respond and they left.

127.  Thus, if she had not done so by then, the Plaintiff had ample opportunity to search for the original in the bedroom after the three Defendants had left on 6^th March.  If she had located the original, no doubt she would testify to such effect at the trial.  But she did not.

128.  Though the Plaintiff was not happy about the search by the 1^st, 2^nd, 4^th and 5^th Defendants on 7^th March, the evidence reveals that she had given them permission to do so after she had consulted Cheung.  She was present throughout the search and the Defendants behaved civilly.  In the present context, it is significant to note that the Defendants were aware she had got a copy of the Will (as she had already got it from Cheung in February) and they did not take it away.

……

131.  In such circumstances, Mr Fung had to reduce his submission on the alleged tampering of the documents to the proposition that the original of the Will was accidentally mislaid in the process of being taken from VMR to the new residence of the 1^st and 2^nd Defendants.  With respect, I can dispose of this submission relatively briefly.  Following from what I have said in the preceding paragraphs, it is unlikely that the original of the Will was amongst the documents taken away.  Further, if it were amongst such documents, the 1^st and 2^nd Defendants would have handled it with care as it was the focus of their search and it is unlikely that they would have mishandled it accidentally.  I therefore have no hesitation in rejecting this submission."

18.  Mr Patrick Fung, SC (for the Plaintiff) repeated before us his submission that the Deceased might have had kept the Will at a place of storage which was so secret that it could not be found.  With respect that is highly improbable.  The Deceased had a safe at home and it is difficult to see why he should not have kept the Will in the safe.  He could also have returned the Will to Messrs. W. I. Cheung & Co for safe custody.  He might have kept it in a bank deposit box, in that case, upon his death the box would be opened.  He might have left it with a friend.  If so, it is inconceivable that the friend would not have come forward on learning of the death of the Deceased.  As the learned judge said,

"135.  The Deceased knew that the Will would only be operative after his death. Thus, he would have to ensure those he entrusted to deal with his estate had information as to where it was kept. …"

19.  With respect, I am in full agreement with the learned judge.

20.  On the basis that it was highly unlikely that the Will had been mislaid or could not be found (the learned judge having rejected the suggestion that the Will might have been removed or taken by the Defendants), and the fact that the Deceased was "a meticulous person careful with his documents"[5] (para 120), the presumption that the Deceased had destroyed the Will is strong.  It had not been rebutted by the Plaintiff.  I have no hesitation in concluding that the Will had been destroyed by the testator with the intention of revoking it[6].  I believe the Plaintiff's claim has been rightly dismissed.

Reasons to revoke the Will

21.  Moreover, at trial, there was much evidence on whether the Deceased had any reason or motive to revoke the Will.

22.  The learned judge described the parties' position:

"61.  The Defendants put forward a case that the relationship between the Deceased and the Plaintiff had become so bad that he changed his testamentary wishes. In broad terms, they relied on the following,

(a)  The deterioration of the relationship as demonstrated in incidents witnessed by them;

(b)  The indications by the Deceased that he would disinherit the Plaintiff in his conversations with them individually;

(c)  The evidence of a maid that the Deceased had told her he had changed his will;

(d)  The plan of the Deceased to move to Unit 801 to live by himself (viz. without the Plaintiff) before the accident in June 2007;

(e)  The proposal of the Deceased to marry the mother of the 5^th and 6^th Defendants.

62.  On the other hand, the Plaintiff said the Deceased had remained as a loving and caring partner till his stroke. She had made a will in 2004 leaving to the Deceased 70% of her estate. She denied she had neglected the Deceased or treated him badly. She said in 2007 and 2008, the Deceased had informed her about the Will and assured her that she would be taken care of. She denied that the Deceased had planned to move to live at Unit 801 alone. She said he only acquired Unit 801 as a daytime rest place in view of the renovation of VMR."

Unit 801

23.  The Deceased had purchased Flat 801, Block 23 Heng Fa Chuen ("Unit 801") in the name of Callahan, a private company effectively owned by the Deceased, on 14 November 2006.

24.  According to the Plaintiff, Unit 801 was purchased by the Deceased

"62.   … as a daytime rest place in view of the renovation of VMR."

25.  But as the learned judge pointed out:

"63.   … The timing of the events does not match her version. …"

26.  He also rejected the Plaintiff's evidence that the Deceased was

"65.   … decorating the unit to facilitate its sale …"

27.  The learned judge explained the decoration included railings at the bathroom and alterations in layout made to suit the personal needs of the Deceased, and

"65.   … The maid also testified that before the accident, they were buying kitchen utensils and preparing to move into Unit 801."

28.  The learned judge also took the view that:

"68.   … the Deceased had not included the Plaintiff in his plan to relocate to Unit 801. The bed was simply too small. …"[7]

29.  Moreover,

"66.   The 1^st, 2^nd 4^th, 5^th and 6^th Defendants gave evidence that the Deceased had told them on different occasions that he intended to move to live at Unit 801. The maid also testified to such effect. The 4^th and 5^th Defendant also testified that the Deceased told him he wanted to live separately from the Plaintiff. Mr Fung criticized their credibility. However, I preferred their evidence to the evidence of the Plaintiff in this respect as they are consistent with the objective account of the events as set out in the preceding paragraphs. 

67.    My finding is that the Deceased did intend to use Unit 801 as his residence. Given that he continued with the preparation of Unit 801 after the completion of renovation of VMR, the intended use could not be attributable to having it as a daytime resting place during such renovation. …

68.    … According to the 4^th Defendant, the Deceased expressly told him that he wanted to live separately from the Plaintiff when they were shopping for gas stove for Unit 801. The 2^nd Defendant and the maid also testified that the Deceased had told them so."

……

78.    The Defendants also testified that on different occasions, the Deceased had told them (sometimes individually and sometimes at family gatherings when the Plaintiff was absent) that he had already given a lot to the Plaintiff and he would not give her more. Instead he wanted to get back something from her. The 5^th and 6^th Defendants alluded to an occasion in June 2006 when the Deceased told them that the Plaintiff would not have a share in his estate. Though she did not say so in her witness statement (except alluding to the Deceased’s hint of changing his testamentary provisions), the 1^st Defendant alluded to an occasion in 2006 when the Deceased told her that he would definitely not give anything to the Plaintiff out of his estate. It was on the same occasion when the Deceased informed her that he learnt from a half-brother of the Plaintiff that she wanted to squeeze everything from him."

30.  The learned judge had dealt with the evidence of the Defendants, and their witnesses, and the evidence of the Plaintiff carefully and in some detail.  He concluded at para 96 of the judgment that:

"96.   … On balance, I prefer their evidence to hers. …

……

98.    On the totality of evidence, I find that between March 2003 and June 2007 the relationship between the Deceased and the Plaintiff deteriorated to the extent that he wanted to move away to live separately from her at unit 801."

31.  It is also important to note that the learned judge accepted the maid's evidence that the Deceased had told her that he had changed his Will.

32.  Mr Fung challenged the credibility of the maid. The learned judge, after careful consideration of Mr Fung's submissions, concluded:

"91.   … On the whole, I find the maid to be an honest and reliable witness and I accept her evidence."

33.  The learned judge also preferred the Defendants' evidence to the Plaintiff's evidence and concluded:

"98.   On the totality of evidence, I find that between March 2003 and June 2007 the relationship between the Deceased and the Plaintiff deteriorated to the extent that he wanted to move away to live separately from her at unit 801."

34.  It was the Plaintiff's case that the Deceased had disinherited some of his children because of his dissatisfaction with them (or in the case of the 6^th Defendant with his wife).  The learned judge said:

"104.  Another aspect of the Deceased’s character that Mr Fung drew my attention to is the high expectation of the Deceased of his children. I am prepared to accept this. I also accept that high expectation may lead to disappointment. But I do not accept that disappointment must inevitably lead to disinheritance. I have examined the evidence and reached my conclusions on the relationship between the Deceased and the 3^rd, 4^th and 6^th Defendants. On the evidence, I do not think the Deceased was a person who would disinherit a child simply because he did not excel in the manner he hoped. I accept the evidence of the 1^st and 2^nd Defendants that towards the end the Deceased had resolved his doubts about making provisions for all the Defendants as he came to the view that after all they were all his children. I do not think one should place too much weight on the terms of the Will in view of the difference in the dynamics of relationship in 2003 as compared with the latter years."

35.  He also rejected the Plaintiff's evidence that that as late as January 2008, the Deceased had spoken to her about the Will.  He accepted the evidence of the Filipina maid that the Deceased had once said to her that he had made a new will and that according to the 4^th Defendant, he had said to the children that each child would have a share in his estate but the Plaintiff would not.

Declaration of Trust

36.  In footnote (4) at page 5 above, I mentioned that there was a declaration of trust in respect of VMR.  It had not been registered against the property.  The original declaration of trust could not be found.

37.  After the death of the Deceased, the Plaintiff demanded that Messrs. W. I. Cheung & Co should keep the existence of the declaration of trust confidential.  Obviously, Messrs. W. I. Cheung & Co could not comply with the demand since the Deceased was a beneficiary under the declaration of trust.  A copy was duly provided.  The Deceased had no reason to destroy the declaration of trust.  Mr Fung does not suggest that the declaration of trust had been destroyed.  He suggested that the declaration of trust, together with the Will, must have been either mislaid or kept so safely that they could not be found.  I have already rejected these theories so far as the Will is concerned.  On the evidence before the court, I am unable to say that insofar as the declaration of trust is concerned either theory has greater validity.  But that is not something which requires to be determined.

Earlier Will

38.  According to the 6^th Defendant, in the early 1980s, when the Deceased was still living with Madam SL Chu, he had seen a copy of a will ("1980s Will") giving his estate to Madam SL Chu, his half sisters and himself.  That copy of "1980s Will" was lost when his mother moved house in the middle of 1980s.  I do not believe this adds anything to the question whether the Deceased had destroyed the Will with the intention to revoke it.

The Deceased's relationship with Madam SL Chu

39.  This is a peripheral issue.  According to the 6^th Defendant the Deceased had wanted to marry Madam SL Chu.  On the other hand, the Plaintiff claimed that the Deceased had wanted to marry her but she had refused because she did not think that it mattered whether they were married or not. 

40.  Be that as it may, it is clear that the Deceased was on good terms with Madam SL Chu.  In September 2007, the Deceased purchased a flat at Belcher's Tower in the name of Callahan and allowed Madam SL Chu to reside there.

41.  For the above reasons, I have dismissed the Plaintiff's appeal with costs.

Hon Cheung JA:

42.  I agree with the judgment of Tang VP.

Hon Yuen JA:

43.  I agree that this appeal should be dismissed.  Essentially this case was decided by the trial judge on the basis of the facts he found and inferences he reasonably made, and I see no ground for this court to interfere with the learned judge's decision.