HUI YIN YEE v. SECRETARY FOR JUSTICE

HCMP 3495/2016

[2018] HKCFI 1979

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3495 OF 2016

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J U D G M E N T

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Introduction

1.  The applicant Madam Hui is seeking a declaration that the title/interest of a property registered in the name of WONG PAT MUI had been given to her in March 1991 by way of donatio mortis causa.

2.  The property in question was Flat A10, 1^st floor of Matauwei Apartments on Ma Tau Wai Road/Bailey Street in Kowloon (“Property”).

3.  It is Madam Hui’s case that WONG PAT MUI or WONG PAT MUI (王八妹) was the same person as WONG BAR MAY (王八妹) who died on 25 July 1992 (“Deceased”).

4.  Since the Deceased’s death in 1992, and up until the trial, no one had taken out any letters of administration in respect of her estate, and no one had taken an absolute interest under the Intestates Estates Ordinance, Cap 73. 

5.  The Secretary of Justice (“SoJ”) accepts that under section 4(9) of the Intestates Estates Ordinance, the Deceased’s residuary estate may belong to the Government as bona vacantia subject to the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481, if Madam Hui’s claim herein is unsuccessful.  Thus, there is sufficient interest for the Secretary of Justice to be joined as respondent in the current proceedings.  SoJ reserves the Government’s right to claim the Property as bona vacantia and/or the sale proceeds thereof, if Madam Hui’s claim of the Property is unsuccessful.

6.  Counsel Mr James Kong appeared for Madam Hui at the hearing and Counsel Ms Abigail Wong appeared for SoJ.

Background

7.  Madam Hui had filed an affirmation in support of her application on 29 November 2016 and she had set out her relationship with the Deceased and the background leading to her present application, which is set out hereunder.

8.  Madam Hui married Mr Chan Yiu Kai/陳耀佳 (“Mr Chan”) on 29 March 1971 in Hong Kong.  Mr Chan was the son of Madam KO WAI CHING (or HUNG WAI CHUNG) (“Madam Ko”) and according to Madam Hui, Madam Ko was the adopted daughter of the Deceased, having been adopted by the Deceased in the 1920s.

9.  The Deceased was born in 1904 according to her Hong Kong Identity Card issued on 30 August 1991.  Her name stated thereon was WONG BAR MAY (王八妹).

10.  On 6 December 1962, a WONG PAT MUI became the registered owner of the Property, although the actual date of the Assignment was dated 7 December 1962 (“Assignment”).  It is Madam Hui’s case that Wong Pat Mui and Wong Bar Mui referred to the same person, namely the Deceased, and that the difference in the English names was due to the imperfect transliteration of the Deceased’s Chinese name into English.  The Chinese name 王八妹 which appeared both on the Assignment and on the Deceased’s identity card was the same.

11.  Madam Ko predeceased the Deceased, and died at the age of 41 on 13 February 1964.  The letters of administration of the estate of Madam Ko (“Letters of Administration”) was granted on 29 June 1965 to one Wong Yat Chuen (王逸泉) (“Mr Wong”) and one Wong Pat (or Bar) Mui (or May) (王八妹), as lawful attorneys of Madam Ko’s husband Chan Wah Jik (陳華澤) alias Chan Wah Chik (陳華植) alias Chan Wa Tsik (陳華直) (“Mr Chan Senior”) for his use and benefit.

12.  Madam Hui said in her affirmation that after her marriage, she, her husband Mr Chan and later their three daughters resided with the Deceased in a flat at 5^th floor No 32, Gillies Avenue South in Hung Hom (“Gillies Avenue Apartment”) which belonged to Madam Ko.  Mr Chan died of cancer on 16 March 1979, aged 33.  After his death, Madam Hui, her daughters and the Deceased continued to reside in the Gillies Avenue Apartment. Since then, according to Madam Hui’s affirmation, she had been collecting the rent of the Property as the Deceased had told her to use the rent for household and maintenance expenses for her and her 3 daughters as her husband had died young.

13.  It was Madam Hui’s case that one day in or about March 1991 the Deceased had gifted to her the Property by way of donatio mortis causa by passing the title deeds of the Property to her.

14.  The Deceased died at the age of about 88 in July 1992 and she died before arrival at the Queen Elizabeth Hospital.  According to Madam Hui, the Deceased left no will and no issue. 

15.  Further, according to Madam Hui, as she had no legal knowledge and thought since she had in her possession the title deeds, she did not do anything about the Deceased’s estate or the Property until about 2011. According to Madam Hui, in about 2011, as one of her daughters was working as a policewoman and had some legal knowledge, the daughter asked about the Property, which then led to Madam Hui seeking legal advice.  

16.  Madam Hui instructed her solicitors to write to the Probate Registry on 4 July 2014 to request the Official Administrator to take up administration of the Deceased’s estate but the Official Administrator replied on 17 July 2014 declining to do so and indicating that this was not a fit and proper case for the Official Administrator to take up administration.

17.  Madam Hui had produced copies of advertisements published in one Chinese newspaper on 14 March 2015 and one English newspaper on 6 March 2015 requesting the Deceased’s relatives or issues to contact Madam Hui’s solicitors within one month of publication and there had been no response thereto.

18.  Madam Hui issued the originating summons herein on 29 November 2016, seeking a declaration the Property had been gifted to her[1].

The Legal Principles

19.  The Court of Appeal has in the case of Re Estate of Lung Nga Lai Eilly [2014] 4 HKLRD 829, CACV No 135/2012, endorsed the legal principles of donatio mortis causa, as set out in the lower court’s judgment of DHCJ Lisa Wong SC, as she then was :-

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

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

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

29. There are 3 requirements of a donatio mortis causa:

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

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

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

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

20.  As for the burden of proof, this Court has in Re Estate of Chen Soo King [2013] 2 HKLRD 406 cited the following passage of Lord Chelmsford in Cosnahan v Grice (1862) 15 Moo PC 215[2] :

“28. Lord Chelmsford has said in the case of Cosnahan v Grice,

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

21.  There was no dispute on the above general principles.

Preliminary issues

22.  There were two issues raised by SoJ:

(i)  Whether WONG BAR MAY (王八妹) and WONG PAT MUI (王八妹) referred to the same person, ie the Deceased (The “name” issue);

(ii)  What effect did the order for compulsory sale have on the present claim by Madam Hui (The “order for sale” issue)

The “name” issue

23.  According to the enquiries made by SoJ from the Commissioner of Registration and the Registration of Persons Record, WONG BAR MAY (王八妹) was the registered name of the HKID card held by the Deceased and there was no other name or alias registered under the same HKID card.

24.  On the Assignment for the Property, the name of the purchaser was stated to be Wong Pat Mui (王八妹), whose address was stated to be No 4, Saigon Street, first floor, Kowloon (“Saigon Street Address”). The address of the “Wong Pat (or Bar) Mui (or May) (王八妹)” stated on the Letters of Administration was also the Saigon Street Address.  On the Assignment, the purchaser “Wong Pat Mui (王八妹)” was described as a “widow”.  On the Letters of Administration, “Wong Pat (or Bar) Mui (or May) (王八妹)” was also described as a “widow”.  The Assignment was in December 1962 and the Letters of Administration was issued in June 1965, and both were thus documents some 50 years ago, long before the present application was issued.  

25.  This Court had called for the file of the documents filed in the Probate Registry in connection with the application for the grant of the Letters of Administration (under Probate Jurisdiction 436 of 1965).  There was in the file a power of attorney executed by Mr Chan Senior before a Notary Public in British Columbia on 11 August 1964 appointing “Wong Pat (or Bar) Mui (or May) (王八妹)” of the Saigon Street Address as one of his lawful attorneys (“Power of Attorney”).  There was also a petition for the grant of the Letters of Administration and the joint affirmation of the applicants for the Letters of Administration, which were signed by “Wong Pat (or Bar) Mui (or May) (王八妹)” being one of the applicants.

26.  On the face of it, the signature of 王八妹 on all the documents signed by “Wong Pat (or Bar) Mui (or May) (王八妹)” for the application of the Letters of Administration bore strong similarity to the signature of 王八妹 on the Assignment, in particular the character “妹”.

27.  The Power of Attorney stated therein that Madam Ko died leaving her surviving her husband, ie Mr Chan Senior, her son Mr Chan and two daughters Chan Kam Hing and Chan Kam Hung.  

28.  Having considered all the evidence, notwithstanding that the Deceased’s HKID card did not bear the English name Wong Pat Mui, I accept Madam Hui’s case in this respect and find that more probable than not, Wong Pat Mui or Wong Pat Mui (王八妹) and Wong Bar Mui (王八妹)/Wong Pat (or Bar) Mui (or May) (王八妹) all referred to the same person, namely the Deceased, and that the Deceased was the registered owner of the Property.

The “order for sale” issue

29.  In the originating summons, Madam Hui initially sought a declaration that the Property had been gifted to her.  She did not mention in her affirmation that there were proceedings issued in the Lands Tribunal under LDCS 1000 of 2014 for compulsory sale of the Matauwei Apartments although she did produce a copy of the Land Registry record as at 22 November 2016 containing such information. 

30.  It was not until 17 April 2018 that a summons was issued on behalf of Madam Hui to amend the originating summons to seek a declaration that the title/interest of the Property had been given to Madam Hui by the Deceased.

31.  It can be seen in the Land Registry record produced by Madam Hui in her affirmation that an application for an order for an order for sale under Land (Compulsory Sale for Redevelopment) Ordinance, Cap 545 (“LCSRO”) was made on 24 January 2014 and there was an amended notice of application dated 26 May 2015 and registered on 3 June 2015.  SoJ had produced a copy of the updated search record and a copy of the judgment of the Lands Tribunal.  An order for compulsory sale was made by the Lands Tribunal on 26 September 2016 in respect of the entire building of Matauwei Apartments.  A public auction was held on 7 November 2016 and an assignment dated 7 December 2016 was registered on 5 January 2017.  

32.  Thus, by the time of the trial, the Matauwei Apartments/the Property had already been sold, and that the net sale proceeds of the Property should be held by the “Trustees” appointed by the Lands Tribunal.

33.  Section 8(1)(a) of LCSRO states as follows:

“(1) Where the lot the subject of an order for sale is sold—

(a) Immediately upon the purchaser of the lot becoming the owner of that lot all the rights of any prior owner (including the prior owner’s assigns or personal representatives) in or over the lot or any part thereof shall absolutely cease except to the extent, if any, specified in the order;

(b) …

(emphasis added)

34.  In the “Particulars and Conditions of Sale”, the Deceased was listed as one of the “Minority Owners”. It was not really disputed that the Deceased was a “minority owner”.  In accordance with s2(1) of the LCSRO, such definition would also extend to the Deceased’s successor-in-title before the sale.

35.  Thus, in the present case, the issue whether Madam Hui had at any point been entitled to the Property by way of donatio mortis causa may affect her intended claim for the proceeds of sale of the Property.  And if her claim for the Property by way of donatio mortis causa should fail, the Property would have vested in the Official Administrator pending administration of the Deceased’s estate, and may have become bona vacantia, in which case the Government may be entitled to those sale proceeds.  Ms Wong accepted that as such, a disputed right that could still affect the interests of both parties is at stake.

36.  Ms Wong submitted that the more liberal view adopted by the courts nowadays is that it is open to the courts to make a declaration in respect of disputed legal rights, which outcome affects both parties.

37.  Mr Kong has made no reply submissions and I accept Ms Wong’s submissions.

Generally

38.  Although in the opening submissions, Ms Wong had stated that SoJ did not have a positive case to advance and that SoJ would take a neutral stance in relation to Madam Hui’s application, in her written closing submissions, she had made a number of comments and observations on Madam Hui’s evidence and submitted that Madam Hui’s evidence did not withstand scrutiny.

39.  Notwithstanding Ms Wong’s submissions, Mr Kong did not lodge any written closing submissions at all.

40.  As seen earlier from the quoted passage of Lord Chelmsford, cases of this kind demand the strictest scrutiny.  The burden of proof clearly rests on Madam Hui that all three requirements of a donatio mortis causa have been satisfied.  Before I come to her evidence on the three requirements, I will first consider Madam Hui’s evidence generally in relation to her relationship with the Deceased, the Deceased’s financial affairs, the collection of the rent from the Property, the renovation expenses of the Property, and the impetus for these proceedings.

Madam Hui’s relationship with the Deceased

41.  According to Madam Hui, she first met the Deceased at about end of 1965 when Mr Chan started to court her.  Madam Ko had already passed away and that the Deceased was already living at the Gillies Avenue Apartment with Mr Chan.  Madam Hui did not mention in her affirmation that Mr Chan’s two sisters were also living at the Gillies Avenue Apartment at the time, but during the trial, her evidence was that after her marriage in March 1971, she moved into the Gillies Avenue Apartment and that after she gave birth to the eldest daughter, Mr Chan’s two sisters moved out.  She also explained that the Gillies Avenue Apartment was about 600 sq ft and there were 3 bedrooms, and that after marriage, she and Mr Chan had one bedroom, their 3 daughters shared one of the bedrooms, and the Deceased had her own bedroom.  This arrangement continued even after Mr Chan died.

42.  Madam Hui had also said during the trial that she was told by Mr Chan that the Deceased had lived at Saigon Street in Yaumatei but she had no clear knowledge about that property or who owned it.

43.  When asked why the Deceased was described as a widow in the Assignment, Madam Hui replied that she did not know.  She also said she did not know who Mr Wong, the other co-administrator of Madam Ko’s estate, was or his relationship with the Deceased.  At the time of the Power of Attorney, namely August 1964, Mr Chan Senior was already living in Canada, and he did not seem to have returned for his son’s wedding, nor was there any evidence as to whether he had ever returned to Hong Kong thereafter to visit Mr Chan and/or the family.  Mr Chan Senior died in Canada on 28 April 1990.

44.  Madam Hui had produced 5 photographs in her affirmation, two photographs of her wedding banquet with Mr Chan in 1971, two photographs, each of Madam Hui’s 4^th and 5^th sister’s weddings (the 4^th sister’s being taken in about 1973-1974 and the 5^th sister’s being taken in 1975-1976) and one photograph of a dinner which showed the presence of the Deceased which Madam Hui said was taken in 1970 before she and Mr Chan got married.  Madam Hui had said the Deceased was their “主婚人” at their wedding.  There was in particular a photograph of the wedding of Mr Chan and Madam Hui, taken with an elderly woman sitting in the middle whom Madam Hui identified to be the Deceased.  The newlywed couple and two women whom Madam Hui identified as Mr Chan’s two younger sisters, stood behind the elderly woman.

45.  Madam Hui’s evidence was also that the Deceased was regarded by her daughters to be their great grandmother and they had called the Deceased “太婆”, and Madam Hui herself had called the Deceased as “阿太”.  

46.  According to Madam Hui, on the day of the Deceased’s death, Madam Hui went home from work early that day, around 3pm or 4pm and had bought some food for the Deceased.  Madam Hui said she then asked the Deceased to get up from bed to eat, but found there was no reaction from the Deceased.  Madam Hui said she called the ambulance, but the Deceased died before arriving at the hospital.  The Deceased’s cause of death on her death certificate was “purulent bronchopneumonia”.  However, Madam Hui had said that although the Deceased had a heart problem, she had no particular prior symptoms of illness before her death and that the Deceased was able to eat.  Madam Hui’s evidence was that she did not notice that the Deceased had bronchopneumonia.

47.  Madam Hui had produced copies of the death certificate, cremation order, receipt of ashes, list of cremation and/or burial expenses for the Deceased.  The date of death of the Deceased was 25 July 1992, the cremation order was issued on 27 July 1992 and the ashes were stated to be given to “the bearer” on 5 August 1982 and the permit to place commemorative tablet in the columbarium was issued on 14 September 1992.

48.  None of those documents bore the name of Madam Hui or any of her daughters.  Notwithstanding this, since there was no evidence that anyone else could have made the arrangements for the cremation of the Deceased, I am prepared to accept Madam Hui’s evidence that the cremation arrangements of the Deceased were made by her and that all related expenses were paid by her and/or her daughters. 

49.  Madam Hui had also produced photographs of the commemorative tablet on the niche containing the Deceased’s ashes at the columbarium.  The tablet was a simple one with only a photograph of the Deceased, the province she was from, her birth date and death date.  The Deceased was called “太婆” on the tablet.  However, the name of Madam Hui and the names of her daughters did not appear on the tablet at all.

50.  What I find odd is that the date of death of the Deceased stated on the tablet, namely 25 June 1992, was a wrong date.  Nor was it clear as to where the birth date of the Deceased stated thereon, namely 26 November 1904, had come from, since the Deceased’s own HKID card did not state her exact date of birth and merely stated 1904 to be the year she was born. The copy of the Deceased’s HKID card produced by Madam Hui was issued on 30 August 1991 but the information thereon would presumably have been based on information provided by the Deceased to the Registration of Persons Office at the time when she first applied for a HKID card.

51.  Although Madam Hui was not asked to explain about the dates on the tablet during the trial, and the death date could be an inadvertent mistake made by someone, one would have thought if there was a mistake over the date of death of a close family member on a commemorative tablet, one would have rectified it.  There was however no evidence that any one had taken any step to do so.

52.  To support her relationship with the Deceased, Madam Hui had produced copy of a passbook of a savings account at HSBC which was held in the joint names of Madam Hui and the Deceased (“Joint Account”) and which appeared to have been opened in January 1987, as the first deposits by cash were of two sums of HK$100 and HK$25,000 respectively on 6 and 7 January 1987.  According to Madam Hui, it was the Deceased who suggested that this account be opened for the purposes of meeting the needs of the household if necessary and that it was the Deceased who paid in the sum of HK$25,000, but Madam Hui said she had no clue about the source of this money of the Deceased and that the Deceased did not tell her.  There were then two cash deposits of HK$300 each respectively on 14 November 1988 and 7 September 1990, a cheque deposit of HK$23,283.16 on 3 April 1991, and another cash deposit of HK$500 on 18 March 1992.  Madam Hui said the cheque of HK$23,283.16 was not from the Deceased but then she said she could not recall the source.  There was also one further cheque deposit of HKL$2,076 on 20 April 1993 after the Deceased’s death.

53.  When asked why there was still a deposit after the Deceased’s death, Madam Hui at first said she did not use the account, but when pointed to the cheque deposit on 20 April 1993, she then said maybe it was her who credited the cheque.  Anyway, Madam Hui’s evidence about the transactions in this account was rather vague, and thus it was really not clear as to for what purpose the Joint Account was opened.

54.  It can also be seen in the passbook there was a safe deposit box at HSBC which according to Madam Hui was held in joint names with the Deceased.  When asked about it, she said she cancelled the box after a few years as it was too expensive to maintain it, and that it was cancelled before the Deceased passed away.  She said she had placed her dowry/jewellery inside the box, and that a small part of the jewellery was given to her by the Deceased.  There was no supporting evidence as to what she said.  Further, Madam Hui’s evidence indicated that the safe deposit box contained only her own items, and if this was the case, I do not understand why she or the Deceased needed to open a safe deposit box in their joint names.  

55.  The Gillies Avenue Apartment was one of the landed properties in the Schedule of Property attached to the Letters of Administration.  As said earlier, the Letters of Administration was granted to the Deceased and Mr Wong, as lawful attorneys for Mr Chan Senior, and in fact the grant was made against an administration bond given by the Deceased and Mr Wong plus two other two persons.  It was not clear what steps had been taken by the Deceased and Mr Wong to administer Madam Ko’s estate, although it would appear that the Letters of Administration was registered in the Land Registry against the Gillies Avenue Apartment, since there was a letter from a solicitors firm dated 23 November 2015 addressed to the Deceased and Mr Wong, in relation to an intended application for compulsory sale of the building in which the Gillies Avenue Apartment was situated[3]. 

56.  It transpired that in about 2013, Madam Hui had applied for letters of administration de bonis non of the unadministered portion of Madam Ko’s estate and was granted the same on 11 May 2016 under Grant No HCAG 3358/2013.  It appeared from that file that the younger of Mr Chan’s sisters had died on 13 June 2004, but the other sister was still alive in 2013 and had signed a renunciation of her right and title to apply for the letters of administration de bonis non.  

57.  Anyway, Mr Chan’s two sisters were Madam Hui’s sister-in-laws and aunts of Madam Hui’s daughters.  It would appear that at least in 2013 Madam Hui was in contact with the surviving sister.  There was no information as to the present situation of the surviving sister or why she could not have been called to give some evidence on the relationship between the family and the Deceased and/or to support Madam Hui’s case. 

58.  Madam Hui did not call any one as her witness, nor did she call any of her daughters, nor any of Madam Hui’s own sisters or family members. 

59.  Madam Hui had said she had cooked and looked after the Deceased.  She did not give details of how she cared for the Deceased apart from cooking for her and according to Madam Hui’s evidence, the Deceased appeared to be capable of taking care of herself.  In fact, Madam Hui had said she was busy working long hours with two jobs.  She had said the Deceased needed to take one pill every day for blood pressure and that, although the Deceased had suffered from joint pains and had some heart problems, prior to her death, there were no symptoms of any bronchial problems.  

60.  Notwithstanding there was no sufficient evidence to show there had been a formal adoption of Madam Ko by the Deceased, having considered the evidence, I am prepared to accept, on a balance of probabilities, that the Deceased was regarded by Mr Chan and Madam Hui as part of Mr Chan’s family and that they were all living together under the same roof in the Gillies Avenue Apartment after Madam Hui’s marriage to Mr Chan, until the Deceased’s death.

61.  However, apart from those photographs from about 1970-1976, there were no other photographs showing Madam Hui and/or her daughters with the Deceased during those 16-20 odd years between the early 1970s and the Deceased’s death in June 1992.  Apart from the Joint Account and the joint safe deposit box, there was little evidence showing how close the relationship between Madam Hui and the Deceased was. 

62.  In fact, Madam Hui seemed to know very little about the Deceased’s personal life, such as what the Deceased used to do for a living, whether she was born in Hong Kong, who her husband was and when or where they were married and whether they had any children or relatives or friends, and when she became a widow.  Also, Madam Hui seemed to know very little about the Deceased’s finances, such as whether the Deceased had any other properties or bank accounts apart from the Property and the Joint Account, whether she owned the Saigon Street Apartment or she was only renting it, who was her co-administrator Mr Wong and her relationship with Mr Wong, whether she had any further contact with Mr Chan Senior after obtaining the Letters of Administration. 

63.  There seemed to be little communication between Madam Hui and the Deceased.  As I have said, the daughters were not called and it was not clear whether they had a close relationship with their “great grandmother” or not.

64.  According to Madam Hui, before his death, Mr Chan was the one who helped the Deceased to take care of her financial and rental matters, the latter being concerned with the Property, which was always rented out for income.  It was Madam Hui’s understanding that the rental income from the Property was the Deceased’s only source of income to sustain a living.  Madam Hui was unaware whether the Deceased had bank accounts at the time, explaining that Mr Chan was the one who took care of the Deceased’s financial matters and that Mr Chan was only running errands for the Deceased who would give him cash for the purposes of paying Government rent and rates.

65.  Further, according to Madam Hui, before Mr Chan died in 1979, he was the sole breadwinner of the household including the Deceased who never paid for anything relating to the household or a share of the household expenses, although she had never asked for money from Mr Chan. After Mr Chan died, Madam Hui said she did not pay any pocket money to the Deceased but she did buy things for the Deceased, since by then the Deceased would rarely go out, being already 75 years old then. 

66.  To summarise, the Deceased had paid HK$38,500 for the purchase of the Property in December 1962, and thereafter, she had been collecting rent from the Property.  According to Madam Hui’s evidence, by about end of 1965, the Deceased was already living with Mr Chan and his sisters in the Gillies Avenue Apartment, and prior to Mr Chan’s death in March 1979, the Deceased was in receipt of the rental income and yet did not have to pay for any rent or household expenses for living with Mr Chan at the Gillies Avenue Apartment.  Thus, by the time of Mr Chan’s death in March 1979, the Deceased should have quite a lot of savings.  Apart from HK$25,000 paid into the Joint Account in 1987, it was not clear where the Deceased’s kept her savings.

The collection of rent

67.  The evidence showed that the tenant of the Property was all along a Mr Hung Ork Ming (transliteration) (ie 洪岳明) (“Mr Hung”) who always paid the monthly rent in cash (initially about $1000, and increased by $200 every 2 years).  

68.  According to Madam Hui, initially, Mr Hung would attend the Gillies Avenue Apartment to pay rent to the Deceased.  This later changed to Madam Hui visiting Mr Hung at the Property to collect rent as he complained having to walk up the stairs.  The receipt would be given to Mr Hung in exchange for rent, and the rent stubs would be kept.  According to Madam Hui, Mr Hung had no issue with paying rent to her because he knew she was the Deceased’s granddaughter-in-law (ie “孫心抱”).

69.  In Madam Hui’s affirmation, her evidence was when Mr Chan died, the Deceased had told her due to Mr Chan’s early death and leaving three daughters, from then on Madam Hui should take the rental from the Property and use the income to pay the household expenses, that is “家嫂，佳仔這麼後生便死了，還剩下三個女，以後庇利街層樓的租金便由你收了來作家用”. But Madam Hui said the rental income was not sufficient to maintain the household and her daughter and she then started to work and took on two jobs, one at the factory, and the other at a “Dai Pai Dong” (大排檔), or a food stall.

70.  When Madam Hui was asked by Ms Wong during the trial as to when the Deceased had told her to take charge of rental matters concerning the Property, Madam Hui’s evidence became confusing and somewhat inconsistent.

71.  Although in her affirmation, Madam Hui had said that it was after Mr Chan’s death in 1979, during the trial, when first asked, Madam Hui initially said that she did not start to collect rent until 3 years after her husband’s death, ie around 1982.

72.  Madam Hui had produced a bundle of rental receipts stubs in her affirmation which from May 1984 to March 1987[4] and explained during the trial that those receipt stubs were written out by her eldest daughter, which meant that the rent was collected by the Deceased when Mr Hung came to the Gillies Avenue Apartment to pay rent, after which the Deceased would then give Madam Hui the money.

73.  However, later she then clarified that 3 of the receipt stubs in the bundle were written out by her[5] and admitted that she was largely not responsible for collecting the rent involving the receipt stubs in the bundle of receipts produced in her affirmation.  She said what she had said earlier in her affirmation was wrong and her recollection of the year was inaccurate, and said that she only began collecting the rent from Mr Hung since around 1990.

74.  Those receipt stubs produced by her did not go up to the year 1990.  Madam Hui disclosed during the trial that there were more in her possession.  She then produced at the trial a new bundle of receipt stubs spanning the period from 9 June 1987 to 9 November 2003[6] as well as a bank passbook of her youngest daughter, covering the period between 21 April 2007 to 13 April 2011[7].

75.  Madam Hui had explained that the youngest daughter’s account at Hang Seng Bank was opened in April 2007 for the purpose of collecting rent since Mr Hung said he had an account at Hang Seng Bank, it would be more convenient for him to transfer the rent into another account at Hang Seng Bank.  There could be seen from the passbook various deposits into the account of about HK$3,800 each which according to Madam Hui, this was the monthly rent paid by Mr Hung in relation to the Property.  Later, the amount increased to HK$3,900, and the last credit of HK$3,900 was on 16 March 2010, although there were two further deposits of HK$3,000 and HK$3,795.60 respectively in October 2010 and January 2011.

76.  Anyway, the documentary evidence concerning rents received for the Property spanned 3 periods: (a) from May 1984 to March 1987 (ie receipts in the bundle) (“1^st Batch”), (b) from 9 June 1987 to 9 November 2003 (“2^nd Batch”) and (c) from between 13 July 2007 to about January 2011 (“3^rd Batch”).

77.  The first few receipt stubs in the 2^nd Batch however bore handwritten words “王八妹手存”.  Madam Hui then explained that the rent collected on those receipt stubs, even if written out by her, were collected by the Deceased when Mr Hung came to pay rent, and that the rent was only given to her afterwards by the Deceased.  Madam Hui had said that if the Deceased was at home, the stubs would say “王八妹手存”

78.  It appeared that the receipt stub dated 9 July 1992, which would be the last stub before the Deceased’s death also bore those handwritten words.  When asked, Madam Hui appeared to be very confused.  She said she did not know why and she had forgotten, but she disagreed that the rent stated in those receipt stubs were collected by the Deceased and said maybe she wrote those words because the Deceased was still alive at the time, and that she could not say that she herself was the one collecting the rent. 

79.  She then said that it was only since September 1988 that she went to the Property collect rent from Mr Hung.  But she had also said she was not quite clear and apologized for being confused.  She had said she did not understand the meaning of “自此本人便處理該物業的收租事宜” because she received little education, although she could understand Chinese.

80.  Anyway, Madam Hui appeared to have given 4 versions as to when she went to the Property to collect rent from Mr Hung, namely (i) in 1979 after Mr Chan’s death; (ii) around 1982; (iii) around May or September 1988; (iv) around 1990.

81.  Madam Hui was about 71 at the time of the trial.  It could be that her memory was failing.  However, due to the confused state of her evidence, one cannot really say when it was that she started to go to the Property to collect rent from Mr Hung.  If she did, this would seem more likely to be only in about 1988-1990, which would be some 9 to 11 years after Mr Chan’s death.  In any event, there was no sufficient evidence that it was in 1979 after Mr Chan’s death that the Deceased had given Madam Hui the rental from the Property for household expenses.  However, even if the Deceased did, this would only mean that the Deceased was contributing towards the household expenses, and would not mean that the Deceased was going to gift the Property to Madam Hui.

Renovations concerning the Property

82.  Madam Hui had produced bank credit advices respectively dated 27 October 1987 for cash credit of HK$6,280, 30 December 1998 for cash credit of HK$8,400, 5 February 1999 for cash credit of HK$6,300, 19 March 1999 for cash credit of HK$6,379, and 29 June 2009 for cash credit of HK$10,000, which she said were payments made by her for the renovation of the Property.  The documents/receipts produced by Madam Hui showed that the renovations were in connection with the exterior or common areas of the entire building.  None of the credit advices bore the name of the payer, save for a receipt dated 29 June 2009 for the payment of HK$10,000 which bore the handwritten words “許女士61330013”.  However, the receipt dated 29 June 2009 was after the death of the Deceased.  Thus, there was no sufficient evidence that it was Madam Hui or her daughters who had paid for those renovations prior to the Deceased’s death.

Impetus for these proceedings 

83.  According to Madam Hui’s affirmation, and as mentioned earlier, she did not do anything about the Deceased’s estate or the Property after the Deceased’s death because she held the title deeds, and also because she was busy working.  Then in around 2011, one of her daughters (who was a policewoman and had some knowledge of the law) asked about the Property which then led to Madam Hui seeking legal advice, and that after her lawyer analyzed the situation, she was advised that she should proceed by way of donatio mortis causa.  

84.  During the trial, Madam Hui had said that after the Deceased’s death, Mr Hung continued to rent the Property (without a tenancy agreement having been signed) until it was sold pursuant to the order for compulsory sale.  Madam Hui admitted to learning of the application for the compulsory sale in around 2010 because she was alerted by Mr Hung who said that he had received some letters from the Government.  At the time, Mr Hung had asked her if he would receive any compensation after the compulsory sale, and thereafter, he stopped paying the rent.  Madam Hui said she was told that she could not be involved in the compulsory sale unless the Property was in her name.  As such, she decided to seek legal advice to see if she could sue Mr Hung for rental arrears, and to deal with the transfer of the Property to her at the same time.

85.  According to Madam Hui’s affirmation, her lawyer had explained to her about how the estate of a deceased who died intestate would be distributed.  Because the Deceased never mentioned to her that she had been married or had children, and Madam Hui did not see any friend or family visiting the Deceased, Madam Hui claimed that she was of the belief that the Deceased did not have any relatives that could inherit her estate in intestacy. Further, according to Madam Hui, since she was not blood-related to the Deceased and there was no documentary evidence of the Deceased’s adoption of Madam Ko, she thus believed that donatio mortis causa was the most reasonable and appropriate means (“故此臨終遺贈是我相信最合理及合適的方法”).  When asked at the trial, Madam Hui explained by “the most reasonable and appropriate means”, she meant the means which she could make an application to the Court.

86.  When asked by Ms Wong whether what she said had implied there were other means and if so what they were, Madam Hui then replied that she did not hear her lawyer mention any other means and said that what she said was drafted by her lawyer.  When asked by this Court why, upon learning of the application for compulsory sale in 2010, she did not initiate the present proceedings immediately, Madam Hui said that she had already retained lawyers to prepare documents and had no idea what they were doing. 

87.  The evidence from the files concerning the grant of the Letters of Administration and later the letters of administration de bonis non of Madam Ko’s estate showed that Madam Hui instructed solicitors in June 2011 in relation to the application of the letters of administration de bonis non of Madam Ko’s estate, but there was no sufficient evidence that she had at that time also consulted solicitors in relation to the purported gift of the Property.  There was no evidence that she had instructed solicitors to participate or to record her interest in the application for compulsory sale of the Property.   In fact, the present proceedings were only commenced on 29 November 2016, after the sale of Matauwei Apartments on 7 November 2016. It would thus appear that she only issued these proceedings to try to obtain the net sale proceeds.  In any event, she only commenced this action 24 years after the Deceased’s death.

The alleged circumstances of the donatio mortis causa

88.  What has been set out above is the background against which Madam Hui’s allegations regarding the donation mortis causa have to be examined.  According to Madam Hui she was aware that the Deceased had several cabinets/drawers in her room of which one was locked but did not know the contents therein, and this was because she never went inside the room.  Having said this, Madam Hui later then admitted during the trial that she did go inside the Deceased’s room to do cleaning and that she was also aware that the rental proceeds collected by the Deceased were either kept in the drawer or under the mattress.  She also said she knew that the Deceased had placed important documents inside a locked drawer inside her room because she had seen the Deceased opening the drawer with a key at the time when she was going to open the Joint Account.

89.  Madam Hui’s evidence in her affirmation was that one day in about March 1991, the Deceased was with her in the living room and said to her, “阿嫂，我年紀已這麼大，又多病痛，應該就快會去搵佳仔了，庇利街層樓我死後便歸你所有，屋契我現在交俾你，你要好好收埋。”.  After that, she entered her room and Madam Hui heard the sound of keys and a drawer opening.  Thereafter, the Deceased took out an envelope containing the title deeds of the Property, and gave it to her.  During cross-examination, Madam Hui however said that the Deceased had further told her “萬一我有不測你就睇住呢頭家，睇住三個女” at the time the title deeds were given to her.  According to Madam Hui, she then kept the title deeds safe and the Deceased did not ask for their return.  

90.  As said earlier, there are 3 requirements for a donatio mortis causa.

1^st requirement

91.  Although the Deceased was said to have high blood pressure, heart and respiratory problems in March 1991, at the trial, Madam Hui had said those ailments suffered by the Deceased were common old age problems which only required only occasional visits to the doctor.  Apart from a daily pill for keeping her blood pressure down, the Deceased did not seem to require regular medication.  

92.  Madam Hui had also said that the Deceased had pain in her joints which the doctor said was due to old age, and that the pain would be relieved by the Deceased taking an injection if necessary.  On occasion where the Deceased had shortness of breath and chest pain, Madam Hui said she would accompany the Deceased to the doctor and the Deceased would then recover after taking medication. 

93.  Ms Wong had referred the Court to what was said by Jackson LJ and Patten LJ of the Court of Appeal in the English case of King v Dubrey & Ors [2016] 221, and submitted that those passages quoted by her in her closing submissions sounded an important reminder about how donatio mortis causa is an exception to the rule that equity will not perfect an imperfect gift, and this was recognized by this Court in Re Estate of Chen Soo King. Ms Wong further submitted that King v Dubrey had in fact overruled what was held in the case of Vallee v Birchwood [2014] Ch 271 and thus mere old age and frailty would not be sufficient to satisfy the first requirement.

94.  Ms Wong also referred to the cases of Lau Cheung Chun and Anor v the Secretary for Justice [2018] HKCF 208 and also Mak Yuk King v The Personal Representatives of Wong Wah Wai, deceased, HCA 850/2009, unreported judgment 19.02.13.  In the former case, the gift was made after the deceased’s condition deteriorated and about 24 days before the deceased’s death, and in the latter case, it was made when the deceased was seriously ill and about a month before the deceased’s death.

95.  In the present case even though the Deceased was 86 year old in March 1991, ie according to her date of birth on the commemorative tablet, she was not in a state of serious ill-health for her age at that time.  Even on Madam Hui’s own case, the Deceased’s death was sudden. 

96.  Since the Deceased had bought the Property, she must have known that ownership of the Property would not be passed by simply handing over the title deeds to Madam Hui.  As the Deceased was also the co-administrator of Madam Ko’s estate, she must also have some knowledge about what would happen to a deceased’s estate on intestacy.  There was no evidence that the Deceased was immobile in March 1991 notwithstanding her age, and if the Deceased had intended to gift the Property to Madam Hui on death, there was no reason why she could not have made a will.  In fact, she could also have made a will at the time when she went to open the Joint Account with Madam Hui.

97.  Having considered Madam Hui’s evidence, I do not find that there was sufficient evidence that the Deceased was contemplating her own death in March 1991, or that the Deceased was making a gift in contemplation of death.  Thus, I am of the view that the 1^st requirement was not satisfied.

2^nd requirement

98.  As pointed out by Ms Wong, since the Deceased was residing with Madam Hui, there was nothing to prevent Madam Hui from discovering the title deeds from the Deceased’s personal effects after her death.  There was no supporting evidence to what was allegedly uttered by the Deceased to her and Madam Hui admitted that the Deceased did not hand over to her the keys to the Property, nor keys to the mail box at the Property.  Again, I do not find there was sufficient evidence that the 2^nd requirement was satisfied.

3^rd requirement

99.  Fruther, there was nothing in the alleged utterances of the Deceased to Madam Hui at the time of the purported gift that the gift was subject to a condition that the Property would revert to the Deceased if the contemplated death did not occur.  As said earlier, there was no sufficient evidence that the Deceased was contemplating her own death in March 1991.  I do not find the 3^rd requirement was satisfied.

Conclusion

100.  To conclude, having considered all the circumstances of this case, I am not satisfied that the 3 requirements of a donatio mortis causa have been met in the present case.

101.  In light of the above, I dismiss Madam Hui’s application.  As the SoJ’s role was neutral, I am of the view that it is appropriate to make no order as to costs.