LAM WAI LIK ERIC AND OTHERS v. TAM SUET MUI

HCAP 5/2015

[2020] HKCFI 3047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 5 OF 2015

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J U D G M E N T

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A. INTRODUCTION

1.  In this action, the defendant, Madam Tam Suet Mui, seeks to propound the 2005 Will made by the Deceased, Mr Lam Chok Wai, failing which she seeks to establish the 1999 Will of the Deceased.  

2.  Although named as the defendant, it is the outcome of the counterclaim which essentially resolves how the Deceased’s estate is to be distributed.  The 1999 and 2005 Wills are in identical terms regarding the disposition of the estate.  The defendant was appointed the sole executrix and beneficiary under these 2 wills.  They each contained a revocation clause revoking any prior will or testamentary instrument made by the Deceased.  So, if the court pronounces for the force and validity of the 2005 Will, that document will revoke the 1999 Will.  Likewise, the 1987 Will made by the Deceased in favour of the plaintiffs will also be revoked.

B. THE ISSUES FOR TRIAL

3.  Upon the close of pleadings, the following triable issue of facts emerged: –

(1) In respect of the 1999 Will: –

(a) whether the 1999 Will (the original of which being disclosed by one Ringo Ho) was made by the Deceased in that: –

(i) the signatures on the document (Exh-D1) were not that of the Deceased; and

(ii) the ink on Exh-D1 purported to be the signatures of the Deceased was not more than 2 years old as at 2019 (when the document was said to have been made on 13 August 1999, 20 years earlier).

(b) whether, should the 1999 Will be made by him, the Deceased had the testamentary capacity to do so as at 13 August 1999;

(c) whether the Deceased did know and approve of the contents of the 1999 Will.

(2) In respect of the 2005 Will: –

(a) whether, should the 2005 Will be made by the him, the Deceased had the testamentary capacity to do so as at 18 August 2005;

(b) whether the Deceased did know and approve of the contents of the 2005 Will.

4.  At the closing submissions, the plaintiffs’ counsel expressly confirmed that the “due execution” of the 2005 Will is not challenged.

C. THE UNCONTROVERSIAL FACTUAL BACKGROUND

5.  Despite the parties’ disputes on certain aspect of the case, it appears that some basic background facts are either undisputed or indisputable and they form the factual matrix for consideration of this court as to the validity (or otherwise) of the 1999 Will and the 2005 Will.

6.  The Deceased was born on 22 August 1945 in Hong Kong from a relatively well-off family headed by one Lau Kau (林球), the founder of the “Tai Lin Radio Services Limited (泰林無線電行)” (hereinafter referred to as “Tai Lin Radio” or “Tai Lin”) in 1946.  Tai Lai Radio was a well-known distributor of electrical and electronic appliances.  The Deceased was the eldest son amongst his siblings of eight.  Apart from his younger brother Lam Chok Lai (林作禮) (the “Deceased’s Brother”) and Madam Lam Shum Shun Mui, the Deceased’s mother (the “Deceased’s Mother”), who also participated in the management of its business at a later stage, from records kept by Tai Lin Radio, none (but 1) of the Deceased’s 6 younger sisters had been involved in the management of the business of Tai Lin Radio.

7.  Due to his father’s deteriorating health and death in 1965, the Deceased was forced to abandon his university education in the United States and he stayed in Hong Kong to take over the management of Tai Lin Radio whilst, at the same time, studying at the Baptist College for commercial studies, a course he subsequently completed.

8.  In 1970, the Deceased and the 2^nd plaintiff started their courtship and, on 12 October 1974, they entered into a Registrar’s Marriage at the City Hall out of which they had the following 2 children: –

(1) the 1^st plaintiff, son, born on 10 November 1976 in Hong Kong; and

(2) the 3^rd plaintiff, son, born on 13 November 1978 in Hong Kong.

9.  After the birth of her second son in 1978, the 2^nd plaintiff, a graduate of the then Hong Kong Polytechnic for secretarial studies, joined Tai Lin Radio to assist in its administration and she later became its manageress and director.

10.  On 15 August 1985, before the defendant and the Deceased knew each other, the defendant acquired, in her sole name, Flat C, 9/F, Block B and Car Parking Space 69, Mountain Court, No. 5, Homantin Hill Road (“Flat 9C”) at $1.27 million subject to a legal charge and her solicitors handling the purchase were Messrs Woo, Kwan, Lee & Lo.  Flat 9C was sold by the defendant on 9 May 1988 at $1.68 million.

11.  The Deceased came to know the defendant in about early 1986 and thereafter they started an extra marital relationship.  Whilst there is a dispute as to the defendant’s occupation at that time, I agree that this dispute is irrelevant as the honesty and credibility of a witness (albeit being of an important consideration in the instant case) do not depend upon his/her upbringing and job.

12.  On 20 April 1987, out of their extra marital relationship, the defendant bore the first child, Lam Wai Ting, Michelle (“Michelle Lam”) for the Deceased.

13.  Whilst maintaining 2 families at the same time and the 2^nd plaintiff having full knowledge of him having a mistress and a daughter begotten by the defendant, on 3 September 1987, the Deceased made his formal will with the professional help of Messrs M. K. Lam & Co. (i.e. “the 1987 Will”).  No issue has been raised by the defendant as to the (formal or substantial) validity of the 1987 Will.  The defendant’s case is that the 1987 Will would have been revoked by the 1999 Will and/or the 2005 Will by their express revocation clauses.

14.  According to the records retrieved from the Land Registry, the defendant acquired, in her sole name, Flat A, 9/F, Block B and Car Parking Space 96, Mountain Court, No. 5, Homantin Hill Road (“Flat 9A”) at $1.83 million on 29 February 1988, almost 1 year after Michelle Lam was born, whilst it was the defendant’s case that the Deceased acquired the said property in or about mid-1986 whilst she was pregnant with the first child between the Deceased and her, i.e. Michelle Lam.

15.  On 14 March 1989, “791738 Ontario Ltd.”, a Canadian corporation (with 2 shares issued each of them registered in the respective names of the Deceased and the 2^nd plaintiff) purchased 42 Strathearn Avenue, Richmond Hill, Ontario, Canada (the “Strathearn House”) at CAD$330,000.  Its house number was later changed to “36”.

16.  On 16 April 1989, out of their extra marital relationship, the defendant bore the second child, Lam Wai Ching, Wilson (“Wilson Lam”) for the Deceased.

17.  Since the Deceased’s extra marital relationship with the defendant, the defendant had, by stages, become the sole owner of a number of landed properties.  Given her case that, since her cohabitation with the Deceased in 1986, she has never worked, the only inference to be drawn was that their purchase prices came from the Deceased. 

18.  In 1992, the Deceased and the plaintiffs applied for immigration to Canada as a family.  During the summer of 1992, the Deceased, being a landed immigrant of Canada, stayed in Toronto for a few months (and he returned to Hong Kong in or about mid-late 1992) whilst the plaintiffs were still in Hong Kong.  After the summer of 1992, the 1^st plaintiff and the 3^rd plaintiff started attending a boarding school at St. Andrew’s College in Toronto.  However, the 2^nd plaintiff remained in Hong Kong working for the Tai Lin Radio.

19.  Whilst in Canada, between July and August 1992, the Deceased wrote 2 letters by hand, one in English to the 2^nd plaintiff and the other in Chinese, to the 1^st plaintiff and the 3^rd plaintiff on matters concerning his family.  The fluent English contents of the English letter coupled with his educational background (a graduate of the King’s College and the Baptist College) refute any suggestion of his want of proficiency in, and command over, the English language. 

20.  In the same year (1992), the defendant and her children also emigrated to Canada as investors and they resided at the Strathearn House (by then, its house number had been changed to “36”).

21.  At the request of the Deceased, on 4 April 1993, the 2^nd plaintiff sold her 1 share in “791738 Ontario Ltd.” to the Deceased for CAD$500,000.  Events transpired that the ‘sold share’ was later registered in the name of the defendant.  This CAD$500,000 has never been paid to the 2^nd plaintiff up to the present moment.

22.  On 12 July 1994, the Deceased settled a trust known as “The General Fortune Trust” (the “Trust”) to be managed by the Hongkong Bank International Trustee Ltd. (the “Trustee”) with one Cheung Yee-chee (“Cheung”), an old friend of the Deceased’s father, as the paper settlor, for the sole benefit of the Deceased and all his existing and future children, but neither the defendant nor the 2^nd plaintiff was a beneficiary under the Trust.

23.  To inject valuable assets into the Trust, the Deceased caused the following landed properties to be ‘sold’ to one General Fortune International Inc., a BVI corporation, (the “Trust Co.”), holding assets for the Trust: –

(1) on 12 July 1994, G/F and 1/F of No. 310, Nathan Road (Tai Lin Radio’s flagship shops) were ‘sold’ to the Trust Co. at $29 million;

(2) on 12 July 1994, 2/F to 5/F, being the domestic portion of No. 310, Nathan Road (including Tai Lin Radio’s registered office) were ‘sold’ to the Trust Co. for $14 million;

(3) on 12 July 1994, Shops 6 and 7 on G/F, Prosperity Building, No. 6E, Nelson Street, Kowloon, were ‘sold’ to the Trust Co. for $17.5 million; and

(4) on 12 July 1994, G/F and 1/F of May Ming Mansion, No. 312, Nathan Road, Kowloon, were ‘sold’ to the Trust Co. for $15.5 million.

Despite the sale and purchase agreements, out of these 4 sales, only the domestic units listed in (2) above were assigned to the Trust Co. on the same day of the agreement but none of the rest of the aforesaid landed properties has been assigned to the Trust Co. Instead, 6 years later, by a Deed of Cancellation of 2 February 2000, the sale by the Deceased of the landed properties listed in (1), (3) and (4) above were cancelled.  The Deceased’s estate remains their owner as of today.  The sole director of the Trust Co. was Lion International Management Limited, a wholly owned subsidiary of the Trustee until 28 February 1997 when the defendant was appointed as the sole director of the Trust Co.

24.  In return for the sale of the landed properties set out at paragraph 23(1) to (4) above to the Trust Co., on 24 August 1994, the Hongkongbank International Trustee Ltd. issued a promissory note for CAD$13,678,906.00 (being the aggregate value in Canadian currency of these 4 landed properties) in favour of the Deceased as consideration for acquisition of assets for founding the Trust.

25.  The Deceased’s extra marital relationship with the defendant was a notorious fact, and was well known to all the staff of Tai Lin Radio as the defendant regularly attended its office.  This disrespectable attitude of the Deceased towards the 2^nd plaintiff, as his wife, became the subject matter of the 2^nd plaintiff’s petition for divorce of 28 September 1994 (under FCMC 6670/1994) on the ground of the Deceased’s ‘unreasonable behaviour’.  The 2^nd plaintiff’s petition was later amended to “2-year’s separation with consent” and the Deceased was (at least up to the date of the Divorce Settlement Order hereinbelow referred to) represented by Messrs Cheung, Tong & Rosa.

26.  On 27 July 1995, through their legal representatives, the Deceased and the 2^nd plaintiff settled the latter’s claim for financial relief and this was approved by Deputy District Judge Hung when the parties’ agreementwas sanctioned under a Consent Order under which the Deceased was obliged to pay $39 million to the 2^nd plaintiff by instalments (the “Divorce Settlement Order”).  Decree Nisi was granted on the same day.  Thus far, decree absolute has yet to be granted by the Family Court.  Hence, as of today, the 2^nd plaintiff remains the lawful widow of the Deceased.

27.  On 23 August 1995, the day after his return from Canada (then living with the defendant and her children), the Deceased suffered his 1^st stroke whilst working at the Tai Lin Radio’s office and the 2^nd plaintiff (who remained working there) took him to the Queen Elizabeth Hospital for treatment.  The Deceased suffered serious damage to his brain as revealed from the medical records kept for the Deceased.

28.  14 months later, on 1 October 1996, out of their extra marital relationship, the defendant bore the third child, Lam Wai Chun, Justin (“Justin Lam”) for the Deceased.

29.  In 1996, the 2^nd plaintiff went to Canada to take care of the 1^st plaintiff and the 3^rd plaintiff, who were starting their university educations at the University of Toronto and University of York.

30.  By August 1997, 25 months after the Divorce Settlement Order, the 2^nd plaintiff received only up to $10 million by 2 instalments, being part of her entitlement under the Consent Order.  Since then, no payment has ever been made by the Deceased.

31.  In the meantime, in the summer of 1997, the 1^st plaintiff returned from Canada and started working for Tai Lin Radio at its newly formed “mobile phone section”.

32.  The Deceased declared, in the “Sun Life Total Disability Claim Form”, that March 1998 was the latest time he ever worked.

33.  On 21 August 1998, Tai Lin Radio filed “Notice of Change of Directors” reporting the resignation of the Deceased and his sister, Lam Kit Yin, as directors.  The statutory form was signed by the Deceased’s Brother.

34.  In September 1998, the business of the ‘mobile phone section’ proved to be a complete failure and it was shut down.

35.  On 8 April 1999, the Deceased suffered his 2^nd strokeand he was admitted to the Queen Elizabeth Hospital.  He was discharged on 12 April 1999.  As a result of his 2^nd stroke, the Deceased suffered infarct at his left internal capsular region, presenting with right hemiparesis and dysarthria.

36.  On 25 June 1999, the Deceased filed an insurance claim and, in the “Sun Life Total Disability Claim Form”, he asserted that (a) he would not be able to manage and run a large company and (b) he did not expect himself to be able to resume work, either full or part-time.  On the Statement of Disability annexed to the said claim form, the Deceased was diagnosed to be, inter alia, totally incapable of performing any work. 

37.  On 13 August 1999, the Deceased was alleged to have made the 1999 Will prepared by Messrs Woo, Kwan, Lee & Lo at the office of Messrs Woo, Kwan, Lee & Lo, appointing the defendant as the sole executrix and the sole beneficiary.  It was the defendant’s case that the Deceased took away the 1999 Will and gave it to Messrs Ho & Partners for safe keeping but it was lost by Ringo Ho.

38.  In this respect, the plaintiff submits it is illuminating to note the following stances of the solicitors involved in handling the 1999 Will when formal requests were made, in 2015 (and 2018) after commencement of the present action, for discovery of (i) the original document and (ii) the relevant file: –

(1) “…We do not have the wills nor their copies…Our file relating to the 1999 Will has been shredded…” (24 April 2015, the stance of Messrs Woo, Kwan, Lee & Lo); and

(2) “…Our Ringo Ho has never received the 1999 Will for safekeeping as alleged nor does he have neither knowledge nor sighting of the said Will…” (8 June 2015 the stance of both Messrs Ho & Partners and Ringo Ho).

The court notes that the stance of Messrs Ho & Partners (and of Ringo Ho) must be considered against the dramatic discovery of the alleged original 1999 Will by Ringo Ho, allegedly on 14 September 2018, as in his letter to the defendant’s solicitors, he said: –

“…I enclose the 1999 Will dated 13^th August 1999 prepared by Messrs Woo Kwan Lee & Lo for your necessary action. I have searched every nook and cranny in my office to locate the document as the same was left by Mr. Lam years ago and I apologize for the delay. As the said Will is now with your client, I believe it will no longer be necessary to continue with the subpoena and I invite you to withdraw the subpoena and vacate the hearing on next Friday in due course…Ringo Ho.”

39.  Between 21 February 2000 and 8 November 2000, the Deceased attended Dr Yu Yuk Ling on a number of occasions and attended the Hong Kong Sanatorium & Hospital investigating into the underlying reason for his repeated strokes.  During this period, Dr Yu and the Hong Kong Sanatorium & Hospital carried out various tests inclusive of MRI and they reported that: –

(1) “…there has been impairment in [the Deceased’s] higher mental functioning more marked recently…”.

(2) the Deceased’s brain had “extensive ischaemic changes in periventricular region”;

the Deceased was unable to do simple “serial – (subtraction) 7 test”, unable to drive and his mentation remained slow.

40.  On 12 July 2000, there were changes in the terms and provisions in the Trust instrument by, inter alia: –

(1) the removal of 4 Clauses therein resulting in the (future) spouse of the contributor would be able to take benefit under the Trust; and

(2) the Deceased being replaced by the defendant and the said Justin Lam (the 3^rd child of the defendant) as beneficiaries. 

The net result of such changes was to allow the spouse and all children (even under 18 years’ old) to take benefit under the Trust, contrary to the originally contemplated prohibition against the same. 

41.  In the same month, on 29 July 2000, the Deceased: –

(1) by HCMP 3814/2000 applied for partition and sale of No. 312, Nathan Road and 2 other landed properties.  The Deceased’s Brother and the Deceased’s Mother were made respondents; and

(2) by HCCW 680/2000 applied for the winding-up of Failand Limited, a property holding company, in which the Deceased and the Deceased’s Brother were the only shareholders.

For such applications, Messrs Kao, Lee & Yip represented the Deceased.

42.  On 5 December 2000, the Deceased suffered his 3^rd stroke and was admitted to the Queen Elizabeth Hospital.  Dr Yu found the Deceased to have “…impaired higher mental function.  His ability to handle financial matters and documents has been substantially compromised…”.

43.  In April 2001, the Deceased withdrew his claims in HCMP 3814/2000 and HCCW 680/2000.

44.  On 11 May 2001, Messrs Ho & Partners filed Notice of Change of Solicitors in FCMC 6670/94 replacing Messrs Cheung, Tong & Rosa as solicitors acting for the Deceased in the divorce suit.  By that time, the outstanding matter was the Deceased’s obligation to pay the unpaid $29 million under the Divorce Settlement Order.  Hence, the involvement of Messrs Ho & Partners was to defend the 2^nd plaintiff’s enforcement of the Divorce Settlement Order.

45.  On 15 May 2001, Dr Yu filled in the “Attending Physician’s Statement of Disability” for Sun Life Financial of Canada the following remarks: –

“Clinical examination confirmed presence of neurological deficit…[the Deceased] is not competent to endorse cheque and direct the use of proceeds thereof…[the Deceased] was totally incapacitated to resume work…the [Deceased’s] deficits are permanent and unlikely to improve with training or further rehabilitation.”

46.  On 16 July 2001, (a) Sino Billion Ltd. (“Sino Billion”) and (b) Citi Honour Ltd. (“Citi Honour”), both BVI corporations controlled solely by the defendant, commenced actions under HCA 3185/2001 and HCA 3191/2001 against the Deceased for repayment of $30 million in each action, allegedly as loans advanced to the Deceased.  Messrs Ho & Partners acted for both plaintiffs in those actions, and the defendant herein, as the sole director of these 2 plaintiffs, would be the only person capable of giving instructions for such purpose.

47.  On 10 August 2001, the 2^nd plaintiff issued Judgment Summons against the Deceased to enforce the Divorce Settlement Order in FCMC 6670/94 for the outstanding judgment debt of $29 million returnable for hearing on 24 September 2001.

48.  Three days before the hearing of the Judgment Summons, on 21 September 2001, the Deceased suffered his 4^th stroke and was admitted to the Hong Kong Sanatorium & Hospital.  On the same day, Messrs Ho & Partners, as solicitors acting for the Deceased in FCMC 6670/94, wrote to the 2^nd plaintiff’s solicitors enclosing the Deceased’s Notice to Act in Person in FCMC 6670/94.  The effect of which would be to stall the progress of the hearing.

49.  On 22 September 2001, whilst hospitalized at the Hong Kong Sanatorium & Hospital, Dr Yu attended the Deceased and took the view that: –

“…[the Deceased] is expected to require hospital treatment until the end of this month.

The present episode of ischaemic stroke occurred on the day of admission; he presented with dysphasia and right hemiparesis.

…in view of his higher mental dysfunction, it may not be in his best interest to appear in court without legal representation.”.

50.  Whilst hearing of the Judgment Summons in FCMC 6670/94 was stalled due to the Deceased’s 4^th stroke, judgments by default of the Deceased’s appearance in HCA 3185/2001 and HCA 3191/2001 were obtained by Sino Billion and Citi Honour each for $30 million with costs and interest on 4 October 2001.

51.  Since his 4^th stroke (21 September 2001), the Deceased had been regularly residing in Shenzhen, China whilst the defendant and her children were living in Toronto, Canada.

52.  On 27 October 2001, the Deceased’s Mother passed away.

53.  On 14 December 2001, Sino Billion and Citi Honour obtained Charging Orders Nisi in HCA 3185/2001 and HCA 3191/2001 as means to enforce judgment for the total judgment debt of $60 million against the Deceased.  These Charging Orders were made absolute on 28 January 2002 upon the Deceased failing to defend the enforcement action.

54.  It is noteworthy from documentary records that, at this time, the Deceased was living in Shunde (順德), China and for most of the time in hospital incapable of responding to the applications of Sino Billion and Citi Honour for the Charging Orders Nisi and Absolute.  The content of his medical certificate also refutes the defendant’s allegation that, since “the end of 2002”, the Deceased had been residing in China.

55.  On 31 January 2002, Sino Billion and Citi Honour, by HCMP 427/2002 and HCMP 428/2002, applied to sell the aforesaid 4 landed properties as means to enforce the Charging Orders Absolute, the Deceased consentedto the relief sought.  The Consent Order for Sale was made by Master K.Y. Chan (as he then was) on 8 March 2002.

56.  In his Affirmations of 7 February 2002, as well as various Affidavits of Means, resisting the 2^nd plaintiff’s Judgment Summons the Deceased relied upon the following facts and matters: –

(1) that he lived at Room 1504, 15/F, Block B, Hoi Yuet Wah Sing, Fishery Village, Huangchang, Shenzhen City and later moved to Flat 3A, Block B of the same development (both said to be rented premises);

(2) that he had judgment debt of $60 million against him by Sino Billion and Citi Honour in HCA 3185/2001 and HCA 3191/2001;

(3) that he had to repay the following mortgages (as at 7 February 2002): –

(a) Standard Chartered Bank a monthly instalment of $73,371.24 (for an outstanding mortgage loan of $6,399,879.71 in respect of Flat B, 12/F, Block B, Mountain Court, 5 Homantin Hill in his sole name);

(b) Chekiang First Bank Ltd. a monthly instalment of $22,981.00 (for an outstanding mortgage loan of $2,689,270.84 in respect of the Ravana Garden in his sole name). 

57.  On 1 March 2002, the Deceased, through his solicitors, filed an application in FCMC 6670/1994 seeking to discharge or vary the Divorce Settlement Order.

58.  On 26 March 2002, in respect of the Judgment Summons application under FCMC 6670/94, the 2^nd plaintiff also obtained a Charging Order Absolute against the Deceased’s interest in the 4 landed properties.  Due to the effect of the Land Registration Ordinance and the dates of the respective registrations, the Consent Orders for Sale in favour of Sino Billion and Citi Honour ranked prior to the 2^nd plaintiff’s Charging Order Absolute.

59.  The defendant wasted no time to enforce the Consent Orders for Sale as, 5 weeks after the Consent Orders for Sale, on 22 April 2002, the defendant, as the sole director of Citi Honour, entered into a formal sale and purchase agreement with one Win Source International Ltd to sell the Deceased’s interest in G/F & 1/F, No. 312 Nathan Road and Shops 6 & 7, No. 6E Nelson Street at $30 million of which $300,000 was said to be received by Citi Honour as deposit.  Again, on 29 May 2002, the defendant executed an assignment to assign the Deceased’s ½ share of interest to the said Win Source International Ltd.  It is interesting to note that there was no evidence of receipt of the deposit or balance of the purchase price.

60.  Messrs Hui & Lam, solicitors acting for Win Source, as the purchaser, were cautious to the sale by a chargee under a Consent Orders for Sale as they made enquiry as to the factual basis upon which the Consent Orders for Sale was obtained.  In response to such enquiry, the defendant, in her capacity as the sole director of Sino Billion and Citi Honour, issued 2 letters dated 27 May 2002 in identical terms, and 2 further letters dated 29 May 2002 also in identical terms, supporting their contention that the Consent Order for Sale were supported by bona fide debts due from the Deceased: –

“We…hereby confirm that the loan made between [the Deceased] and we pursuant to the [loan agreement of 29.5.2001] was a bona fide transaction and that the time of the said transaction, we have no notice of [the 2^nd plaintiff’s] claim in relation to…FCMC 6670 of 1994.”

“We…would like to confirm…(1) the written confirmation dated 27^th May 2002 …was signed by our sole director Miss Tam Suet Mui; (2) all proceedings in respect of [HCA 3185 & 3191/2001] and the present sale are all initiated by us in good faith without any notice of intention of defeating claims or orders for financial provisions.”

61.  The falsity of the defendant’s said statements is self-evident from the following uncontroversial facts and, as well, the express findings of Poon J (as Poon CJHC then was) in HCA 3185/2001 and HCA 3191/2001 in his Lordship’s Reasons for Decision delivered on 19 February 2003: –

(1) on 11 May 2001, Messrs Ho & Partners replaced Messrs Cheung, Tong & Rosa, as solicitors acting for the Deceased in FCMC 6670/94.  At that time, the outstanding issue of FCMC 6670/94 was the 2^nd plaintiff’s enforcement of the Divorce Settlement Order against the Deceased for the outstanding debt of $29 million;

(2) on 16 July 2001, Messrs Ho & Partners, acting for both Sino Billion and Citi Honour, issued the Writs of Summons and filed the Statements of Claim in HCA 3185/2001 and HCA 3191/2001 against the Deceased to claim a total sum of $60 million;

(3) on 10 August 2001, whilst Messrs Ho & Partners were acting for the Deceased in FCMC 6670/94, the 2^nd plaintiff issued Judgment Summons against the Deceased to enforce the Divorce Settlement Order in respect of the outstanding judgment debt of $29 million;

(4) on 14 December 2001, Messrs Ho & Partners filed Charging Order Notice to Show Cause under HCA 3191/2001, and, in particular, Ringo Ho filed his affirmation in support of Citi Honour’s application therein; and

(5) the claims of Sino Billion and Citi Honour in HCA 3185/2001 and HCA 319120/01 were adjudicated and found by Poon J as ‘bogus’ as the learned Judge held: –

“…The evidence was indeed overwhelming. It clearly showed and I accepted that… the purported loans to [the Deceased] by Sino Billion and Citi Honour and their claims in the actions were bogus; that the default judgments, the charging orders and the orders for sale were all obtained by collusion and fraud by [the Deceased], Citi Honour and Sino Billion to defeat [the 2^nd plaintiff’s] claim against [the Deceased] to enforce the maintenance order and to deny [the Deceased’s Mother]’s interest in the Properties…” [Emphasis added]

Hence, whilst acting as solicitors for the Deceased in FCMC 6670/94 (thus knowing full well the 2^nd plaintiff’s enforcement of the Divorce Settlement Order for the balance of $29 million), Ringo Ho also represented Sino Billion and Citi Honour to pursue their bogus claims for ‘2 loans of $30 million’ each.  In such circumstances, how could the defendant contend that she did not know the 2^nd plaintiff had an existing claim against the Deceased when Ringo Ho, as solicitors acting for both Sino Billion and Citi Honour (whose sole and common director was the defendant), was also acting for the Deceased in FCMC 6670/94?

62.  On or about 21 June 2002, the Deceased’s Brother and the estate of the Deceased’s Mother (and the 2^nd plaintiff on 31 May 2002) applied, in HCA 3185/2001 and HCA 3191/2001, to set aside (a) the default judgments for $60 million; (b) the Charging Orders Nisi and Absolute; and (c) the Consent Orders for Sale of the landed properties registered in, inter alios, the names of the Deceased, the Deceased’s Brother and the Deceased’s Mother as tenants-in-commons and, after a 2-day hearing, on 19 February 2003, Poon J set aside all the aforesaid judgments and orders.

63.  It is noteworthy that in the setting aside application, neither the Deceased nor Sino Billion/Citi Honour appeared to defend.  At no time had the defendant, Sino Billion/Citi Honour tried to justify the validity of the default judgments, the Charging Orders and Consent Orders for Sale up to the present.

64.  From the foregoing, the plaintiffs submitted that the viva voce evidence of the defendant (and that of Ringo Ho, as a subpoena witness) must be treated with greatest caution.

65.  On 24 February 2003, the Chekiang First Bank Ltd. exercised its right of mortgagee, sold Ravana Garden then registered in the sole name of the Deceased for $2.06 million due to his default in making mortgage repayment.

66.  From the contents of the Bankruptcy Report made by the Trustee in Bankruptcy, the Deceased had, for a continuous period of some 40 months (between 29 June 2003 and 17 February 2005) been out of Hong Kong after departing for China via Lok Ma Chau.

67.  In the meantime, on 16 July 2003, due to his continuous default in making repayment, the Chekiang First Bank Ltd. petitioned for the Deceased’s bankruptcy under HCB 13693/2003 for an unknown debt and service of the proceedings was effected through substituted service.  On 8 October 2003, a Bankruptcy Order was made against the Deceased. 

68.  On 30 October 2003, the Deceased made an abortive attempt to return to Hong Kong but was stopped at the border checkpoint due to want of a Home Return Permit (回鄉證) and/or his Hong Kong Identity Card.  Upon receiving telephone call of the matter, Yue Tsang Keung (“Yue”), a former employee of Tai Lin Radio went to the Huanggang Checkpoint to assist him.  In the course of rendering assistance to the Deceased, Yue discovered that the Deceased had serious impairment to his intelligence.  It is noteworthy from the defendant’s case that the Deceased’s identity card and travelling documents were kept by Tam Siu Fung (譚紹峰), one of the defendant’s brothers “…for [the Deceased’s] safety…” due to the difficulty in the Deceased’s mobility.

69.  Between November 2003 and March 2004, the Deceased was found to be residing at a factory staff dormitory at Shenzhen and, on this matter, the parties have the following disputes: –

(1) according to the plaintiffs, the living environment was shabby and Deceased was given RMB5 a day for his living expenses; and

(2) according to the defendant, the Deceased chose to live at the staff dormitory but he had a room of his own, only the defendant’s said brother resided with other staff.  The Deceased had regularly RMB2,000 with him.

70.  On 13 March 2004, the 2^nd plaintiff, Yue and Cheung visited the Deceased for the last time in Shenzhen and thereafter, the Deceased was out of reach of the plaintiffs and his ex-staff. Despite their enquiries, the defendant’s family members refused to disclose the Deceased’s whereabouts. 

71.  As revealed from the Bankruptcy Report, on 17 February 2005, the Deceased returned to Hong Kong and he was, on the same day, admitted to the Queen Elizabeth Hospital and on 23 February 2005, he was transferred to the Kowloon Hospital where he was hospitalized for some 3 months until his discharged on 20 May 2005.

72.  Upon his discharge, the Deceased lived at a Care and Attention Home for the Elderly (護老院) at Yuen Long.

73.  Between 31 May 2005 and 20 July 2005, the Deceased attended, from time to time, the Yuen Long General Outpatient Clinic of Tuen Mun Hospital with medical problems indicative of complete want of care (for example, bed sore, right hip pressure sore, sepsis, smelly wounds) and he was on long term RT feeding and indwelling by foley catheter.

74.  On 24 July 2005, the Deceased was re-admitted to the Tuen Mun Hospital and he was again diagnosed of “…multiple infected bedsores, impaired renal function, sacral sore and fever…”  He was bed-bound on RT feeding and “noncommunicable”.  On 26 July 2005, the Deceased was discharged with appointment for follow-up treatment scheduled on weekly basis.

75.  On 18 August 2005, the Deceased was alleged to have made the 2005 Will at the Care and Attention Home for the Elderly by putting his left thumbprint and a cross-mark on the paper. 

76.  According to the defendant, she was not even aware of the Deceased giving instructions and making of the 2005 Will.

77.  On the same day, the Deceased attended the Tuen Mun Hospital for follow-up treatment at 2:40 pm, when he was diagnosed of still suffering from: –

“…right hip pressure sore…still smelly wound…alarming symptom explained to AED (Accident & Emergency Department) if decrease GC (general condition) continue…”

This is the continuation of the Deceased’s earlier diagnosis.

78.  The Deceased’s conditions did not improve and between 18 August 2005 and 21 November 2005, the Deceased was in and out of the Tuen Mun Hospitaland, on 21 November 2005, after he was transferred to Pok Oi Hospital on 10 November 2005, he died from the following causes of death: –

“Sepsis and multiple bed sores”.

79.  On 22 December 2006, the defendant, through Messrs Woo, Kwan, Lee & Lo, wrote to the Official Receiver informing the death of the Deceased and enquired as to whether the Official Receiver had held the estate of the Deceased.

80.  On 9 October 2007, the defendant, through Messrs Ho & Partners, wrote to the 2^nd plaintiff’s solicitors enquiring into the amount of unpaid debts due to the 2^nd plaintiff under FCMC 6670/94.

81.  On 17 October 2008, Tai Lin Radio petitioned for its own winding-up under HCCW 498/2008 and a winding-up order was made on 2 March 2009.  Tai Lin Radio was solvent.

82.  On 18 January 2010, the 2^nd plaintiff commenced HCMP 96/2010 against the Official Receiver, the Deceased’s estate and Failand Ltd to recover the outstanding debt of $29 million payable by the Deceased under the Divorce Settlement Order.  The defendant, by her affirmation filed on 16 March 2010 resisted the 2^nd plaintiff’s application and disclosed the 2005 Will with a chop of Messrs Ho & Partners thereon dated 11 November 2007 said to be the last will of the Deceased and the defendant asserted herself as the sole executrix and sole beneficiary of the Deceased’s estate. In her said affirmation, the defendant gave her explanation as to the reason for not applying for probate of the 2005 Will: –

“5. I have not immediately applied for probate after the death of the Deceased because my then financial position did not allow me to do so, even though I wanted to and I was willing to do so all along…I have now given instructions to my legal advisors to apply for probate as soon as possible.”.

In fact, the defendant did not apply for probate of the 2005 Will until 9 years late (on 5 March 2014).  The defendant’s aforesaid affirmation of 16 March 2010 was the first time when the 2005 Will ever appeared. 

83.  On 23 April 2010, with the consent of the 1^st plaintiff and the 3^rd plaintiff, the defendant was appointed the representative of the Deceased’s estate solely for the propose of defending HCMP 96/2010.

84.  On 13 July 2010, the defendant made an affirmation, presumably for her application for probate of the 2005 Will, but her affirmation has never been filed for such purpose.

85.  In or about October 2013, the 3^rd plaintiff, the defendant and Michelle Lam met at a bar at the Royal Plaza Hotel, Mongkok where they discussed the estate of the Deceased but the subject matter of discussion was disputed between the parties.

86.  On 5 March 2014, the defendant applied for probate of the 2005 Will under HCAG002986/14.  The 2005 Will was lodged by the defendant with the Probate Registry.

D. GENUINENESS OF THE 1999 WILL

87.  Although counsel for the plaintiffs have refrained from using expressions like “forgery”, “fake” or “bogus document” to refer to Exh-D1 on their pleading, opening and even in the case put to Mr Kam under cross-examination, their case in this respect is unmistakably clear.  Exh-D1 is not the Deceased’s will.  The nature of this case can be gathered from the plaintiffs’ latest pleadings and the opinions from their handwriting and forensic experts.  First, what purported to be the Deceased’s signatures on both pages of Exh-D1, Q1 on page 1 and Q2 on page 2, were forged.  Between Q1 and Q2, they displayed fundamentally different characteristics, even though they were the imitation of a single forger.  Second, the plaintiffs’ forensic expert, Dr Albert Lyter, opined that the result of the ink-aging test carried out by him indicated that the ink for writing Q1 was applied to the paper recently within 2 years before his examination in July 2019.  He further opined that the formulation of the ink used for signing on the first page was different from that for the second page, which accounted for the difference in colours of the ink between the 2 pages.

88.  As put by the plaintiffs, the issue in respect of due execution, and therefore formal validity, of the 1999 Will is whether the 1999 Will (the original of which being disclosed by Ringo Ho) was made by the Deceased, in that it is the plaintiffs’ case that: –

(1) the signatures on Exh-D1 were not that of the Deceased; and

(2) the ink on page 1 of Exhibit D1 purported to be the signature of the Deceased was not more than 2 years old as of July 2019.

89.  It is important to note that by raising the issue of forgery, the plaintiffs are moving away from the conservative position of just putting the propounder to strict proof of due execution of the will.  The plaintiffs are now asserting a positive case that Exh-D1 was a forgery.  In respect of an analogous situation found in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 where Mr Wang senior alleged that the writings containing allegedly the will of his son produced by his daughter-in-law, Nina Kung, were forgeries, Lord Scott of Foscote NPJ made this observation in paragraph 624:

“The burden and standard of proof to which I have referred would have been applicable if Mr Wang senior had simply put Mrs Wang to strict proof of due execution of the 1990 will. But Mr Wang senior went further. He denied that the 1990 documents had been duly executed and pleaded that the Wang signatures had been forged. He also, in the knowledge that Mr Tse was dead and unaware that Mr Tse had before his death confirmed his signatures by statutory declaration, added to his pleading the allegation that Mr Tse's signatures were forged. The evidential burden of proving these positive allegations fell fairly and squarely on Mr Wang senior who had made them. …”

90.  His Lordship went on to discuss the burden and standard of proving forgery making reference to cases including Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586 to emphasise that the standard of proof in civil cases of such allegation was still the balance of probabilities but the strength of the evidence required to establish such case should commensurate with the gravity of the allegation. 

91.  In the same case, Ribeiro PJ explained the burden cast upon the father-in-law as the evidential burden rather than the legal or persuasive burden to be satisfied like the party in Re H.  But his Lordship also emphasized that in assessing the evidence to be adduced by the party alleging forgery, the court must bear in mind the seriousness of the misconduct alleged recognizing that it carries an inherent degree of improbability.

D1. General comment on the handwriting and forensic expert opinions

92.  The defendant invited this court to prefer the opinion of her experts.  As submitted by the defendant, and accepted by this court, both Mr S C Leung and Dr Valery Aginsky displayed a high degree of care in the respective selection of known samples of the Deceased’s signatures and the use of appropriate methodology to conduct the test and in the presentation of their opinion.  They supported their opinions with sound and cogent reasons.  In the case of Dr Aginsky, he presented his opinion along with detailed experimental data and cited a plethora of scientific literature about ink and their characteristics.  This cannot be said about the respective counterparts of Mr Leung and Dr Aginsky.  There is a conspicuous absence of good reasons or scientific data to support their opinions. 

D2. Handwriting expert evidence

93.  The expert for the plaintiffs, Dr Daniel In Jea Wong, after excluding all but one signature samples of the Deceased which post-dated his first stroke in August 1995, opined that Q1 and Q2 were forged. Mr S C Leung for the defendant, on the contrary, considered that Dr Wong’s exclusion of the samples was unwarranted.  After comparing Q1 and Q2 with all the sample signatures available, Mr Leung is of the opinion that the 1999 Will was highly probably signed by the Deceased.

94.  Mr S C Leung charted the gradual and progressive evolution of the Deceased’s signature since 1987.  He found that he signed as “Lam Wai” omitting the middle name “Chok” and, among other characteristics, his way of writing the alphabet “a” and “i” in “Wai” was especially iconic.  He noted the existence of changes of the Deceased’s style of signatures after the 1995 stroke but he did not notice any significant impact the strokes had on the Deceased’s writing capability.  For comparison with the 2 questioned signatures, he considered a number of sample signatures which came into existence in the post-1995 stroke period up to 2002.  In the selection of these samples, he took care to satisfy himself that they were internally consistent.  He considered that it was improbable for a forger to create so many bifurcations of forms and simplifications that are consistent with logical and stepwise evolution of the signature.  He also took into account the fact that most of these samples were verified or witnessed, such as the assignment in conveyancing transaction in 1997 and affirmations made by the Deceased in the litigations which occurred in 2000 to 2002. 

95.  Dr Wong, has however taken a very unconventional approach (which Mr Leung described as “phenomenal”).  He rejected, for comparison purpose, all post-1995 known samples with which he was provided except one: Item C43. 

96.  Dr Wong dogmatically and repetitively defended his decision of choosing samples along this line: “… common sense dictates that each of the strokes that particular person suffered would render the person more severely suffering from the stroke conditions.  And hence there should be a deterioration of the writing ability when comparing the first stroke period as against maybe the third and the fourth stroke period”.

97.  As submitted by the defendant, Dr Wong’s opinion suffers a want of logic and good common sense despite his repeated answers starting with “common sense dictates”.  A person may change his style of signature and writing after an episode of stroke, but the change has to be detected by using known samples after the stroke.  And if he suffers multiple strokes, the change, if any, following from each episode should be compared and assessed individually.  Dr Wong’s wholesale rejection of the post-1995 samples which deprived him of a reasonable opportunity to detect changes, if any, just does not make sense.  Further, he refused absolutely to consider the acceptability of the post-1995 known samples even if one assumes they were genuine signatures of the Deceased.  Such blinkered approach cannot possibly inspire confidence in the accuracy and reliability of his opinion. 

98.  The right-hand portion of Q1 contains a horizontal stroke which first bends downwards and then upwards when it ends on the extreme right (that gives rise to Dr Wong’s description that it was convex in shape).  The right-hand portion of Q2 on the other hand had this horizontal stroke first bending upwards then downwards (that gives rise to Dr Wong’s description that it was concave in shape).  Q1 was written at an angle tilting up to the right whereas Q2 was written very much along the horizontal pane.  As to the convex/concave difference between Q1 and Q2 to which Dr Wong attached sinister significance, Mr Leung considered it was not fundamental in nature.  Q1 was written in a cramped space on the left-hand margin of the first page by the Deceased probably in an abnormal posture.  That affected his usual style of signing.  A survey of the other known samples by Mr Leung did not reveal any signature written in that manner (tilted up from left to right).

99.  As analysed by the defendant, there is this paradox in the opinion of Dr Wong.  If the difference is that fundamental as he said, it could well be the imitations by 2 different persons.  Yet, he did not opine that way.  He said that Q1 and Q2 were written by the same forger.  When asked why a forger could have imitated 2 signatures bearing “fundamental” difference as he described under cross-examination, he explained that there was lapse of concentration on the part of forger.  I agree that that explanation does not accord with the reality because it was inherently unlikely that the forger could have suffered such lapse within such short space of time. 

100.  To the contrary, Mr Leung observed that Q1 and Q2, between themselves, exhibited certain variants and yet these variants all tally with the control signatures.  In his opinion, which I accept, this is strong indication of common authorship.

D3. Forensic expert evidence on SLRM

101.  Dr Aginsky pointed out among others the lack of experimental data in Dr Lyter’s report, the misinterpretation of the thin layer chromatography (“TLC”) test leading to the erroneous conclusion that the ink used for signing the first page of Exh-D1 is of different formulation from the ink on the second page, and the misuse of the ink aging test in the circumstances when it could not be used to test a document which was without doubt more than 6 months old: see Part VI “Rebuttal to the Lyter Report”.  Dr Aginsky concluded in Part VII “Conclusions” that the totality of evidence obtained from the documenting dating examination of Exh-D1 provides support for the proposition that the 1999 Will was produced and signed on or around the date 13 August 1999 and it provides no support that any of the first 2 pages were produced and/or signed at a much later point in time. 

102.  Dr Aginsky is the author of the Solvent Loss Ratio Method (“SLRM” or “the Test”).  It was the ink-aging test conducted by Dr Lyter using the GC/MS machine.  Dr Aginsky said the Test is only applicable to ink applied to paper for 6 months or less.  And to yield a meaningful result of the Test, the threshold of 50% in terms of R% value - meaning the percentage loss of the quantity of solvent in the ink known as 2-phenoxyethanol (“2-PE”) after heating the ink for 2 hours at 70 degrees centigrade over the pre-heated quantity of 2-PE – has to be adopted.  A R% over 50% means that the ink is less than 6 months old.  The Test cannot be used to ascertain the age of the ink if it is older than 6 months because the R% would no longer correlate with the age of ink on paper when the ink becomes older than 6 months.  In other words, any positive result of the Test yielding an R% value over 50%, assuming it is carried out in an accurate manner, can only indicate that the ink was less than 6 months old.  The Test ceased to be applicable to inform the age of the ink on Exh-D1 as that document had been lodged with the Probate Registry since the end of September 2018.  So the ink on that document must be older than 6 months.   

103.  Under cross-examination, Dr Lyter disclosed for the first time that in respect of the Deceased’s signature on page 1, he only carried out the Test once.  He was asked what R% value was yielded by the Test because that important piece of data was absent in his report.  He gave the startling figure or data that the R% value in respect of that test was 91.3% (represented by the loss of 1.05 nanograms per 1 cm ink line over the pre-heated quantity of 1.15 nanograms per 1 cm ink line).  As mentioned above, if the R% value of the Test on that ink is over 50%, the Test would indicate that the ink under examination would be six months or younger. On the R% data provided by Dr Lyter, the ink on the first page would have an age of 6 months or younger.  But he opined that the ink was applied to the first page within 2 years of his examination.  Further, if one had regard to the test results obtained by the Canadian Border Service Agency as shown in Figure 1 in the Joint Report, such high R% value would indicate that the ink was just applied to the paper within a day or so before the examination.  Dr Lyter defended his opinion based on the Test result on the basis that he was being conservative.  That did not make sense at all. 

D4. Competing opinions on the ink formulation

104.  Dr Aginsky considered that there is strong evidence, from the result of his forensic examinations to conclude that the signatures on pages 1 and 2 of the 1999 Will were actually written by ink with the same formulation.  These examinations include (i) TLC for testing the non-volatile components (or the colour components) and (ii) gas chromatography/mass spectrometry (“GC/MS”) for the volatile or semi-volatile components (which includes the solvent and other resins for the dye).  His examination showed that there were 5 common colour components detected on both pages by TLC and 6 non-colour components detected by GC/MS.  Among the 5 colour ones, there were 2 blue components (Victoria blue) and 3 violet components (crystal violet (“CV”), methyl violet and tetra-methyl-pararosaniline (“TEMR”)). These 11 components collectively formed the ink’s DNA profile as put by Dr Aginsky. 

105.  There was also this 6^th colour component on the first page.  That was the chemical compound tri-methylpararosaniline (“TRMR”).   TRMR is a by-product resulted from the photo-decomposition of the CV dye, which was described as the parent dye. 

106.  By conducting the TLC using technique with enhanced efficiency, Dr Aginsky was able to detect the presence of CV dye on page 1 (whereas Dr Lyter initially said he could not in his first report).  Dr Aginsky further found significant presence of TRMR versus the relatively small presence of CV dye on page 1.  In contrast, he found a significant proportion of CV dye on page 2 but not TRMR.  It would not typically appear in such a significant proportion in an ink with CV dye.  In his 35 plus years of researches in the field of ink analysis and dating, monitoring changes in inks on paper after exposure to heightened temperatures or light, he was of the opinion that the only scientifically sound explanation for the changes in the composition of dye components on page 1 is the result of photo-decomposition.  Dr Aginsky’s opinion in this regard was put to Dr Lyter for his comments.  He said that the presence of TRMR on page 1 could be due to photo-decomposition of the CV dye, but it could also be due to manufacturing requirement.  He however did not explain why the presence of CV dye was so weak on page 1 when such dye was present in significant quantity on page 2. 

D5. Other surrounding features of Exh-D1 under forensic examination

107.  (i) The seal – both experts agreed that “the pages are stapled and bounded together with a red ribbon and a brown-red sealing-wax seal”.  (ii) The toner – Dr Aginsky testified that the print on the 1999 Will came from 9 micron toner which was widely used in the 1990s.  The type of toner ceased to be popular in about 2005 with the 5 micron toner coming into the market which allowed printing at 1200 dpi (dots per inch).  Dr Lyter generally agreed but he said some might still use this kind of toner in the present times.  It was however put to him that it was not likely to be used by a busy firm of solicitors in these days.  (iii) The striations – Dr Aginsky detected similar morphological defects – complex patterns of elaborate striations found on signatures of both pages.  Dr Lyter said that this alone could not indicate that the signatures were written by the same pen.

D6. Other evidence surrounding the making of the 1999 Will

108.  The court will normally and indeed should take into account the totality of evidence to decide the issue of forgery.  It will attach great importance to the testimony of those witnesses who actually saw what happened.  In Nina Kung, Chan PJ, observed that “It can be seen that the courts generally prefer the direct evidence of witnesses who actually saw and heard what happened to the opinion evidence of an expert.  This is especially so in the case of handwriting evidence because of the nature of such evidence” after referring to cases including Fuller v Strum in previous paragraphs in which the trial judge preferred the evidence of the direct witnesses to experts’ opinion that the will in question was a forgery.

109.  Here, the defendant called both attesting witnesses to the 1999 Will, Mr Kam Hung Ming (“Mr Kam”) and Mr Francis Kung (“Mr Kung”), to testify.  In the witness box, Mr Kam was shown Exh-D1 in his examination-in-chief.  He initially showed some hesitation because there were some holes in the document which did not exist at the time of execution.  After being told that the document had been subjected to forensic examination and holes were made for the purpose of examination, he then readily said to the effect he could positively identify the document as the will executed by the Deceased in 1999.  Mr Kam was of course able to identify his own signature on the first page and his 2 signatures on the second page.  He was also able to identify the signature of Mr Kung, the law clerk whom he summoned to be the other attesting witness.  Further, he noted the presence of the sealing device which was put in place after the will was signed. That was the seal of his firm, Woo Kwan Lee & Lo.  In his letter dated 14 April 2015 answering the enquiry of T K Tsui & Co, Mr Kam said the 1999 Will was given to the Deceased after execution and he took it away. 

110.  Mr Kung’s recollection was comparatively more hazy. He did not know the Deceased, and he was brought to the occasion just to witness the execution.  But he was very definite that he could identify his own signature and name chop.  He could also recognise Mr Kam’s signature.

111.  There has never been suggestion to Mr Kung that he could have signed as witness on the date of or close to the 1999 Will a document which looked similar to Exh-D1.  Indeed, there is no similar suggestion put to Mr Kam at any time during the first time cross-examination or when he was recalled on Day 16 for the plaintiffs’ case to be put.

112.  Cross-examination of a witness serves the important purpose of finding out if he is telling the truth.  Where forgery of a document is alleged, it is even more important to use the opportunity of cross-examining the witness to serve such purpose.  But there was a complete absence of vigorous questioning of Mr Kam or Mr Kung. 

113.  Equally inexplicable is the absence of any suggested motive why these 2 witnesses would testify in the way they did.  There was at one stage the suggestion in the opening that Mr Kam was the godfather of the defendant’s daughter, Michelle Lam, but the plaintiffs did not actively put that to Mr Kam or the defendant or Michelle Lam.

D7. Mr Ringo Ho’s evidence

114.  The defendant’s case is that she first saw the 1999 Will in about 2001 at the office of Mr Ringo Ho when she and the Deceased went to see Mr Ho in connection with the loans to be given by the 2 BVI companies, Citi Honour and Sino Billion.  The will’s contents were disclosed to her on the occasion.  She later learned from the Deceased that Mr Ho had misplaced the will but he would help them by explaining to the Court that he misplaced the will.  This led to the subsequent discussion between the Deceased and the defendant that the Deceased should re-make the 1999 Will.  Michelle Lam’s evidence, which was not challenged, was that she heard the discussion of such nature between her parents.  In the period after the Deceased’s death in 2005 and when the defendant contacted Mr Ho concerning probate of the 2005 will, he repeated to the defendant that he would help her by explaining to the court that he misplaced the 1999 will.  But the defendant’s evidence in this regard was cast a shadow of doubt subsequently when Mr Ho’s firm wrote on 8 June 2015 stating that he had never come across the will.  He denied possession of the document. 

115.  Given this shift of attitude, the defendant applied for and obtained a subpoena to compel Mr Ho to attend the trial as a witness of the court to give evidence and produce any file(s) kept by his firm, Messrs Ho & Partners, which (a) involved the probate or handling of any will or testamentary instrument of the deceased; or (b) called for the handling solicitor’s knowledge or information or contents of such will or instrument. 

116.  Mr Ho was due to appear on the first day of the original trial (which was then assigned to be heard by Deputy High Court Judge To) fixed just for the purpose of receiving documentary evidence covered by the subpoena.  That was Friday, 21 September 2018.

117.  But on Friday 14 September 2018, one week before the trial, Mr Ho wrote a letter to the defendant’s solicitors, Messrs Ivan Tang & Co., enclosing the original of the 1999 Will under cover of a letter in his firm’s name.  It reads “I have searched every nook & cranny in my office to locate the document as the same was left by Mr Lam years ago and I apologize for the delay.”. 

118.  The re-discovery of the original will was brought to the attention of the court and the plaintiff’s solicitors the following Monday.  And on the return day of the subpoena, the plaintiffs applied for and obtained an adjournment of the trial on the ground that they needed to obtain evidence from handwriting and forensic experts regarding the authenticity of this newly-discovered document. 

119.  In Mr Ho’s testimony given before the court during this trial, he admitted that what was said in the letter denying that he was ever in possession of the 1999 Will was wrong.  He could not remember when or the exact circumstances as to how the original of the 1999 Will came into his possession but it would be around 2001 when his firm acted for the BVI companies.  He agreed that he was in possession of the document during the period from 2001 to 2018 although he was unable to tell what had happened to it and how it was kept during that period.  He said his firm’s office was relocated during that period at least once.  When he rediscovered the document, it was among the title deeds of his own property and it was placed in an envelope.  He said, however, that during the period of possession, he had no idea how his secretary had dealt with this document or other documents.  He did not know if she had re-arranged his documents and if so, how.

120.  In this regard, I would accept the evidence of Mr Ho. 

121.  The weakness of the plaintiffs’ case on forgery stems from a lack of a coherent theory explaining the motive for the crime and identifying the parties in complicity, except Mr Kam, because on their case, he must be telling lies.  The preparation of a simple will like the 1999 Will and attending to its execution could not be any more ordinary and routine a piece of work for a solicitor.  Why should Mr Kam involve himself in the crime of forging of a will?

122.  Unless Mr Ho was a party to this “scam”, and there was no suggestion that he was, under cross-examination by the plaintiffs’ counsel, it is difficult to see how the case of forgery can get off the ground let alone on the scenarios built upon the expert opinions of Dr Wong and Dr Lyter.

123.  On the issue of the genuineness of the 1999 Will, I rule in favour of the defendant.

E. TESTAMENTARY CAPACITY

E1. The 1999 Will

124.  Ribeiro PJ stated the following in Nina Kung v Wong Din Shin (supra) at paragraph 176: –

“176. If someone wishes to dispute the validity of a will on the grounds that there is want of…testamentary capacity, or of the requisite knowledge and approval, that person bears an evidential burden of putting the relevant ground of challenge in issue. If the evidence adduced by him or otherwise arising in the case is of sufficient cogency to raise such an issue, the court, when assessing the evidence as a whole at the end of the case, decides whether the proponent of the will has discharged the persuasive burden in relation to the relevant fact in issue on the balance of probabilities.” (Emphasis supplied)

125.  In raising the issue of want of testamentary capacity of the Deceased in making the 1999 Will, I agree the plaintiffs have pleaded and proved the following facts and matters preceding 13 August 1999: –

Raised in pleadings

(1) the Deceased did not have the necessary mental capacity to make a testamentary instrument on or prior to 13 August 1999 [Re-re Amended Reply & Defence to Counterclaim, para.6];

Raised in evidence (as undisputed and indisputable evidence)

(2) the mental condition of the Deceased preceding (and up to) 13 August 1999 (relevant for consideration on this issue) can be summarized as follows: –

(a) on 8 April 1999 (4 months before the 1999 Will) the Deceased suffered his 2^nd stroke and developed infarct at left internal capsular region of his brain;

(b) on 15 April 1999, as a result of MRA test, the Deceased’s brain revealed ‘a lacunar infarct at the left pons, ischemic changes in the peri-ventricular region’ and he was diagnosed of having ‘the impairment of higher mental functions became more marked’;

(c) on 25 June 1999 (1½ months before the 1999 Will), the Deceased’s condition was recorded in the “Total Disability Claim Form of Sun Life Assurance Co” as ‘…not able to manage his work as he used to due to impairment of his memory system (記憶系統受破壞, 不能處理原來之工作)…’.  In the same form, the Deceased was recorded as not being able to resume work, either full or part-time;

(d) on 3 August 1999, Dr Lee Man Kong, Chief of Service of Department of Neurosurgery at the Queen Elizabeth Hospital before his retirement in 2002, assessed the mental and physical impairments of the Deceased in the presence of the defendant when he failed the ‘Serial 7 test’.  Dr Lee concluded that “…the [Deceased] suffered from cerebrovascular disease with residual neurological deficits.  He would not be able to manage and run a large company…”.  It was Dr Lee’s oral evidence that, with his mental condition, neither would he be able to manage a small company;

(e) in the summer of 1999 (prior to the 3^rd plaintiff’s return to Canada for his education at the York University), the Deceased was unable to discern 3 separate and repeated requests from the 3^rd plaintiff for payment of his school fees although the Deceased had been a person emphasizing the importance of his children’s education.

126.  According to Mr Kam, in July 1999, the Deceased came to his office to give instruction for the preparation of a will and, on 13 August 1999, the Deceased came alone where he executed the 1999 Will.  With no information about the Deceased (except his belief that he was the defendant’s “boyfriend”), Mr Kam did not ask the Deceased a single question necessary to ascertain the testamentary capacity of the Deceased as has been laid down in the well-known decision in Banks v Goodfellow (1869-70) LR 5 QB 549in the following 3 criteria: –

(1) If the Deceased was capable of understanding the nature of the act of making the 1999 Will and its effects?

(2) If the Deceased was capable of understanding the extent of the property of which he was disposing?

(3) Was the Deceased able to comprehend and appreciate the claims to which he ought to give effect?

(see: Re the Estate of Au Kong Tim [2018] 2 HKLRD 864, paragraph 45).

127.  Apart from the defendant’s acquisition of landed properties through his firm, prior to the 1999 Will, Mr Kam had never had any direct or indirect contact with the Deceased, save for the purchasing of a unit in Ravana Garden in 1997, where the defendant executed the formal sale and purchase agreement as the Deceased’s attorney and Mr Kam was the conveyancing solicitor handling the transaction.  For the preparation of the 1999 Will, Mr Kam had never asked one single question from the Deceased shedding light on any of the aforesaid 3 criteria.  Mr Kam relied upon his intuitive sense in concluding that the Deceased had the mental capacity to make a will.

128.  In 2005, before commencement of the present action, upon enquiry, Mr Kam gave (a) an account of his instruction for the preparation of the 1999 Will and (b) the reason for not following the criteria laid down in Banks v Goodfellow: –

“In about July, 1999 [the Deceased] instructed us to prepare a will to give all his properties to [the defendant]. At that time [the Deceased] was a middle aged businessman and healthy, we prepared the will as instructed without asking question about his affairs; it was not the practice to make such enquiry…” (Emphasis supplied).

129.  The three limbs to ascertain the testator’s testamentary capacity laid down in Banks v Goodfellow are well established rules of law, compliance with the same is necessary for the defendant, the proponent for the 1999 Will, to discharge her legal burden in showing whether the Deceased had the necessary mental capacity to make the 1999 Will.  In any event, Mr Kam’s reason for not asking questions to satisfy himself the three criteria demonstrates his want of awareness of the long-established legal principles in Banks v Goodfellow.

130.  The ‘checklist’ set out in the “Assessment of Mental Capacity, A Practical Guide for Doctors and Lawyer” published by the British Medical Association and the Law Society (available well before the 1999 Will) had laid down guidelines for lawyers and doctors to ascertain whether the testamentary capacity of a potential testator would be capable of meeting the three criteria.  (see: Re the Estate of Au Kong Tim, paragraph 46)

131.  As submitted by the plaintiffs, the effect of Mr Kam’s failure to ask any question to establish the three criteria laid down in Banks v Goodfellow can be analysed as follows.

E1.1  Criterion (1) – understanding the nature of the act of making the 1999 Will and its effect

132.  Had the Deceased been asked any question with a view to establishing Criteria (1), he would understand that, by making the 1999 Will he would: –

(1) deprive the plaintiffs of their moral entitlement under the 1987 Will;

(2) deprive the 1^st plaintiff and the 3^rd plaintiff of their legal entitlement under the Consent Order in FCMC 6670/94 for their maintenance and cost of university education;

(3) deprive the moral claims of the 1^st plaintiff (22 years 9 months old) and the 3^rd plaintiff (20 years 9 months old) for their upbringings; and

(4) deprive the moral claims of Michelle Lam (12 years old), Wilson Lam (10 years old) and Justin Lam (2½ years old).

This is directly contrary to the accepted character of the Deceased as a responsibleperson who had, at all times, placed specific emphasis upon the need of his children to be properly educated.

E1.2  Criterion (2) – understanding the extent of the property of which he was disposing

133.  Given his upbringing and his interest derived from Tai Lin Radio (and its affiliates), the Deceased had multiple interest in movable and immovable properties in Hong Kong, the PRC, U.S.A. and Canada and the understanding of which would require a complex analysis of the Deceased’s ‘property profiles’.  It is especially so when, upon the defendant’s own admission, the Deceased had a habit of purchasing landed properties in the defendant’s name.

134.  The 1999 Will would have an effect of disposing also of landed property registered in the names of the Deceased and his younger brother although, in fact, also beneficially owned by his mother whose name did not appear in the documents.  Whilst, in his affirmation of means (7 February 2002), the Deceased admitted that only No. 310 Nathan Road was shared by 3 of them, in a prior affirmation filed in HCMP 3814/2000 (4 December 2000), the Deceased did not dispute that not only No. 310 Nathan Road but also (a) No. 312, Nathan Road and (b) Shops 6 & 7, Nelson Street were beneficially owned by 3 of them (i.e. himself, his brother and his mother).  These are landed properties with very substantial value but the Deceased did not appear to have a clear understanding of his interest.

135.  The apparent conflicts as to the extent of the Deceased’s interest in land as deposed to in his affirmations of 4 December 2000 and 7 February 2002 would render it impossible for the Deceased to give a global disposal without first distinguishing his interest from that of others whose beneficial interest did not surface in the documents.

136.  I accept that the more complex the Deceased’s interest in movables and immovables (both within and outside the jurisdiction), the more difficult it would be for the Deceased to understand the extent of the Deceased’s properties without first conducting a review of his ‘property profile’ which would be a precondition for him to dispose by the 1999 Will.  It is especially so when the conflicts in his affirmations show that he was not too clear about the extent of his interest.

E1.3  Criterion (3) – comprehending and appreciating the claims to which he ought to give effect

137.  When considering this criterion, Criterion (1) should be considered together.

138.  Whilst ‘claims’ would necessarily include legal and moral claims, I agree that, as at 13 August 1999, the Deceased had the following obvious claims to which he ought to give effect: –

(1) the 2^nd plaintiff’s legal claim under the Consent Order in FCMC 6670/94 for the balance of $29 million which remained unsatisfied after the lapse of 4 years;

(2) the 1^st plaintiff and the 3^rd plaintiff’s legal claim in the Consent Order for maintenance for their living expenses and education when they were still in university education which would be defeated upon him making the 1999 Will and his death;

(3) the 1^st plaintiff and the 3^rd plaintiff’s moral claim apart from the Consent Order; and

(4) the moral claims of Michelle Lam, Wilson Lam and Justin Lam for their maintenance and education which would expect to be very substantial and for a reasonably long duration.

It is necessary to point out that the defendant cannot contend that, by disposing of all his assets to her, the moral claims of her children would have merged with the defendant’s entitlement.  The Deceased made a clear distinction between claims of children and their mother and this is reflected from the contents of the 1987 Will. 

139.  Comprehending and appreciating the legal and moral claims of these claimants would render it necessary for these claimants to be specifically catered for with specific provisions in the 1999 Will, instead of depriving of their legal and moral claims in favour of the defendant who had, hitherto, been sufficiently provided for by inter vivo gifts of landed properties (as contended by the defendant). 

140.  Objective factual background shows that, by 13 August 1999, the defendant was the only person having substantial assets vis-à-vis the rest of the claimants.  The strange phenomenon being that the 1999 Will shows that the Deceased did not comprehend and appreciate these claims as no effect had been given to any of them.

141.  On the uncontroversial evidence that the Deceased was (a) a responsible person and (b) a person to ensure his children to be properly educated, it is difficult to see how, without the Deceased being asked the relevant questions for clarification of the three criteria, the testamentary capacity of the Deceased could be established.  I agree that, on the uncontroversial factual background leading to 13 August 1999, the 1999 Will was irrational having regard to the various legal and moral claims to which the Deceased ought to give effect, but in fact none of them was addressed.

142.  Whilst it was Mr Kam’s evidence that the Deceased was “…strong and capable of walking, running without help (健碩, 行得走得, 唔洗人扶)…”, reliance upon the outward behaviour of a testator is unreliable as has been pointed out by Briggs J in Re Key [2010] 1 WLR 2020: –

“…persons with failing or impaired mental faculties may, for perfectly understandable reasons, seek to conceal what they regard as their embarrassing shortcomings from persons with whom they deal, so that a friend or professional person such as a solicitor may fail to detect defects in mental capacity which would be or become apparent to a trained and experienced medical examiner, to whom a proper description of the legal test for testamentary capacity had first been provided…” (at para.7, with Emphasis supplied)

143.  In the instant case, had questions been put by Mr Kam to the Deceased on the three criteria, the Deceased would reveal the fact that (a) 4 months earlier, he had suffered his 2^nd stroke and (b) 10 days ago, when his mental and physical impairments were subject to formal assessment, Dr Lee evaluated the Deceased as totally incapacitated from performing his or any other work and Dr Lee’s assessment was partly supported by the Deceased’s failure in the “Serial 7 test”.

144.  Whilst the view of an experienced solicitor on his assessment of the mental capacity of a testator before him should be respected, it is submitted by the plaintiffs that such respect is to be derived from the solicitor having discharged his duties in carrying out a proper assessment i.e. asking questions to satisfy the requirement of Banks v Goodfellow.  This does not apply to Mr Kam who had (a) very little experience in preparing wills and (b) asked no question at all before causing the Deceased to sign the 1999 Will.  As has been explained by Christopher Pymont QC in Re Ashkettle (dec) 2013 EWHC 2125 (Ch): –

“43. I have also been taken to Hawes v Burgess [2013] EWCA Civ 94, where the Court of Appeal recently expressed the view that it is “a very strong thing” for a judge to find lack of testamentary capacity when the will has been prepared by an experienced and independent solicitor following a meeting with the testator, when it had been read through and explained to her and when the solicitor had formed the view that the testator was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational (see per Mummery LJ at paras.57 and 60 and per Scott Baker LJ at para.69), I accept the wisdom of these comments though I observe that they do not go so far as to suggest that, in every case, the evidence of an experienced and independent solicitor will, without more, be conclusive. Any view the solicitor may have formed as to the testator’s capacity must be shown to be based on a proper assessment and accurate information or it is worthless; and (as Mummery LJ acknowledges) the terms of the will may themselves suggest that the solicitor’s assessment was not soundly based.” (Emphasis supplied)

145.  The uncontroversial factual background coupled with the contemporaneous medical records of the Deceased formed the foundation of the opinion of Dr Chung See Yuen (“Dr Chung”) that it was unlikely that the Deceased had mental capacity to make the 1999 Will by reference to the criteria laid down in Banks v Goodfellow.

146.  The view of Dr Benjamin Lai (“Dr Lai”) on the effect of failure on the part of Mr Kam to ask questions touching on the 3 criteria of Banks v Goodfellow, can be discerned from the following exchange between counsel for the plaintiffs and Dr Lai in cross-examination: –

“Q: Yes. But, Dr Lai, had this question been asked, then it would eliminate … the risk of not having a mental capacity, because if he gave certain answer, you would call for the psychiatrist to help; agree?

A: Well, if those questions – if the questions are asked and answers are given, then perhaps it will – and the answers are recorded, perhaps I would have a better idea of whether the mental capacity on that day about – let put it the other … If the questions are asked and answers are available, we have a better idea about the mental capacity of the deceased on that day [ie 13.8.1999].” (emphasis added)

147.  The gist of the experts’ evidence being that either the Deceased did not have mental capacity (Dr Chung) or there was no evidence to support the defendant’s contention that the Deceased had mental capacity (Dr Lai).

148.  It is noteworthy that even should the Deceased be able to pass the “Serial 7 test”, this would not satisfy the Banks v Goodfellow criteria as the former being a simpletest for the purpose of assessing the ability of a person’s “concentration and calculation” and the Banks v Goodfellow criteria being one requires much higher mental requirement.  Dr Chung gave the following evidence in explanation: –

“A: But for testamentary capacity, one needs a more complicated assessment [than MMSE test], as indicated in the Banks v Goodfellow test….you have to ask a lot more questions, and the questions are much more difficult than those asked in the MMSE…” (emphasis added)

…

Q: If a person has suffered deficiency in a higher mental function, would he be expected to pass the MMSE test? Which, according to you, a very simple test.  Very quite lower standard.  Isn’t it?

A: Yes, yes, he may pass the MMSE test, but may not pass the Bank v Goodfellow test.”

149.  Whilst it is arguable as to whether the “golden rule” (referred to by Templeman J in Kenward v Adams (1975) The Times, 29 November 1975) applies to the making of the 1999 Will, I agree that, since Mr Kam had never asked one single question, the effect of failing to ask any of these questions before attesting the 1999 Will was a reflection of Mr Kam’s complete failure to ascertain from the Deceased the three criteria necessary to establish mental capacity required under the rule in Banks v Goodfellow.

150.  The defendant submitted that there are various events and evidence from which the satisfaction of the 3 criteria in Banks v Goodfellow can be inferred (see: paragraph 46 of the Defendant’s Closing Submissions).

151.  However, it is important to note that in order to prove testamentary capacity, all 3 criteria have to be satisfied. As stated by Kwan JA (as she then was) in Au Kong Tim (Supra) at paragraph 61: –

“61. Mr Chua sought to rely on some of the medical notes and records (a consultation summary in June 2008 stated that the deceased had “no gross neurological deficit”; a discharge summary in May 2008 mentioned “decreased subdural haematoma”) and the evidence of Dr Tsang Chun Pong that the deceased could “hear and understand and obey commands”.  But I do not think such evidence would assist in establishing that the two other criteria for testamentary capacity are satisfied.” (Emphasis supplied)

152.  Also, at paragraph 57 of the same case Kwan JA stated thus:

“… Mr Yeung and Mr Lau did not make any inquiries with the deceased. Mr Yeung’s act of reading and explaining the 2008 Will to the deceased twice was merely designed to ascertain if the deceased understood the contents and effect of the will and thereby to confirm the instructions they had received indirectly through William. What the deceased had said during March 2007 to May 2009 as related in paras.56(1) and (2) of William’s first witness statement (which I have set out earlier) could not provide a proper basis for the requisite inferences to be drawn. There is no or no sufficient basis for inferences to be drawn that the other two criteria have been satisfied.” (Emphasis supplied)

153.  Likewise, I do not think the evidence referred to by the defendant would assist in establishing all 3 criteria laid down in Banks v Goodfellow.

E2. The 2005 Will

154.  Whilst the defendant bears the burden of proof of the Deceased’s mental capacity in making the 2005 Will, it is noteworthy from the testimony of Dr Lai that, after assessing the contemporaneous documents before him, he was unable to say that the Deceased had mental capacity in making the 2005 Will.

155.  Dr Lai’s following evidence is illuminating as to his view of the mental capacity of the Deceased in making the 2005 Will: –

“Q: Remember my learned friend asked you what is your view on the mental capacity of the Deceased when he made the 2005 Will.  Your answer is “inconclusive”, you used that term.

A: I said I cannot conclude.” (emphasis added)

156.  I agree that Dr Lai’s expert evidence is fatal to the defendant’s case in propounding the 2005 Will when the burden of proof rests squarely upon the defendant.  Dr Lai cannot give any view on whether the Deceased had mental capacity in making the 2005 Will.

157.  Dr Lai’s expert evidence on the issue of mental capacity of the Deceased in making the 2005 Will was, in effect, a reflection of the Deceased’s mental conditions from the following records/evidence: –

(1) that, since 2000, the Deceased suffered his 3^rd and 4^th strokes respectively on 5 December 2000 and 21 September 2001, impairing his higher mental functions and resulting in higher mental dysfunction;

(2) that, since 2000, the Deceased had been: –

(a) diagnosed of having “extensive ischemic changes in periventricular region in the brain”;

(b) diagnosed of having “mentation slow” and he persistently failed in the “Serial 7 test”;

(c) diagnosed of having “deficits were permanent and unlikely to improve with training or further rehabilitation”;

(d) in and out of hospital since his return to Hong Kong on 17 February 2005 and he had been on “long term RT feeding and indwelling by foley catheter”, found to have multiple bed sores and smelly wounds and “non-communicable” latest since July 2005; and

(e) since in the aged home, the only response from the Deceased was (i) moving his fingers and (ii) blinking his eyes.

158.  It is noteworthy from the evidence of Mr Kam that, no instructions had been taken directly from the Deceased and, on 18 August 2005, the Deceased was in bad physical condition and the 2005 Will was obtained by Mr Kam through non-verbal communication. The following being the means by which the 2005 Will was obtained: –

(1) answers from the Deceased were obtained by leading questions; and

(2) the Deceased had no positive means of giving negative answers to Mr Kam’s leading questions.

It is also noteworthy that, prior to the Deceased’s execution of the 2005 Will, Mr Kam had already known that the Deceased’s had suffered a stroke and he was expected to make a will for a patient who had suffered a stroke, an illness with serious impact upon the mental ability as a matter of common sense.

159.  Despite that, Mr Kam proceeded with the execution of the 2005 Will and, upon cross-examination, he was not even aware of the “golden rule” which had been the norm in the practice of solicitors since 1975 in preparing testamentary instruments for an aged or seriously ill person by asking questions to satisfy himself of the mental capacity of the Deceased.  See: Re the Estate of Au Kong Tim (Supra), paras. 2.4, 2.6.

160.  The defendant’s contention that the “golden rule” applies only to the ‘elderly and not in good health’ is misconceived.

161.  With his poor health apparent to Mr Kam, no prior consultation with a medical practitioner was obtained before him putting the Deceased to making the 2005 Will. 

162.  I find that when attesting the 2005 Will, Mr Kam had been in serious breach of the “golden rule” and this casts serious doubts on the Deceased’s mental capacity.  It is not necessary to reiterate again that the defendant bears the burden of proof of the Deceased’s mental capacity in making the 2005 Will, which she has failed to do.

F. KNOWLEDGE AND APPROVAL

F1. The 1999 Will

163.  In view of my finding that testamentary capacity is not established in respect of the 1999 Will, it is not necessary to consider if the defendant has proved the Deceased’s knowledge and approval of the same.

164.  In Au Kong Tim (Supra) at paragraph 67, Kwan JA said this:

“67. As testamentary capacity is not established, William’s case in propounding the 2008 Will must fail. It is unnecessary to consider if he has proved affirmatively the deceased’s knowledge and approval of the will owing to suspicious circumstances which would bring into operation the second rule in Barry v Butlin (1838) 2 Moo PC 480. As Sir Andrew Morritt C has stated in Perrins v Holland [2011] Ch 270 at [31]: ‘Plainly testamentary capacity is a prerequisite to knowledge and approval because if the former is not shown there is no need to look for the latter.’”

165.  In any event, in his oral closing submissions, the plaintiffs’ counsel accepted that regarding the 1999 Will, the second rule in Barry v Butlin did not apply.

166.  The second rule provides that: if a party writes or prepares a will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased (see: Nina Kung v Wong Din Shin (Supra),paragraph 204).

167.  The fact is that as regard the 1999 Will, there is no evidence that the defendant wrote or prepared the same.

168.  There is no general duty on the proponent of a will to dispel suspicious circumstances (see: Nina Kung v Wong Din Shin (Supra), paragraph 218).

F2. The 2005 Will

169.  The position regarding the 2005 Will is different.

170.  In Nina Kung v Wong Din Shin (Supra), at paragraph 218, Ribeiro PJ said this: –

“218. It follows that properly understood, Tyrrell v Painton & Another [1894] P 151 extends the second rule [in Barry v Butlin] only to the extent of embracing the situation where the person who had drawn up the will was someone other than the person who took under it, but where the two were closely related or associated with each other. In such cases the proponent of the will was equally required to dispel that suspicious circumstance by adducing affirmative evidence that the testator did indeed know and approve the contents of the will. …” (Emphasis supplied)

171.  As submitted by the plaintiffs, the following factual background amounted to suspicious circumstances as would require specific proof of ‘knowledge and approval’ in respect of the 2005 Will: –

(1) the “Mr Wong”, the person who gave instruction to Mr Kam for the preparation of the 2005 Will must be a person ‘closely related or associated with’ the defendant as:

(a) the Deceased had not been able to verbally communicate to any third party (as confirmed by Tam Hoo Fung) latest since 31 May 2005;

(b) no one except the defendant and her family members and friends knew the whereabouts of the Deceased since his relocation to Nam Shan, Shenzhen by Tam Shao Fung in 2004, and no question would arise that anyone would know his whereabouts since his return to Hong Kong;

(2) “Mr Wong” gave specific instruction to Mr Kam to prepare a will identical to the 1999 Will which had the effect of making the defendant the sole beneficiary;

(3) Mr Kam accepted that he had never verified the identity of the “Mr Wong”before accepting his instructions to prepare the 2005 Will in terms as so instructed;

(4) prior to 2005, save and except the defendant (and the Deceased), no one knew that the Deceased had made the 1999 Will and, hence, no question would arise that, unless the defendant told him, Mr Wong could have given instruction to Mr Kam to prepare a will mirroring the 1999 Will.

172.  The above factual background would be sufficient for this court to be vigilant and jealous to require affirmative evidence of the Deceased’s knowledge and approval of the 2005 Will, as it is obvious that the instruction came from the defendant or someone closely related or associated with her.

173.  In the instant case, I agree that there is no affirmative evidence to dispel the strong suspicious circumstances as the 2005 Will was drawn up by instruction of a person with no evidence to show that such instruction came from the Deceased.  Instead, due to the Deceased being ‘non-communicable’ latest since May 2005, it is difficult to see how he could give instruction to Mr Wong.  Moreover, the 2005 Will was the product of ‘leading questions’ from Mr Kam and, as pointed out by this court, in the circumstances deposed to by Mr Kam, the Deceased was not in a position to give negative answers by any positive means.

174.  Even on the assumption that the 2005 Will had been made upon the Deceased giving instructions to Mr Kam on 18 August 2005, that day was the only occasion when Mr Kam saw the Deceased without prior consultation or taking of instructions.  As has been pointed out by the plaintiffs: –

“10-36 Where a testator gives instructions in answer to questions, particularly leading questions, the court will require more stringent proof than other cases that the will embodies the unprompted testamentary intentions of the deceased. The fact that the deceased has given no instructions for the will require explanation, especially where…the deceased was without independent advice, legal or otherwise, and that his relations and friends were kept from him.’ (Emphasis supplied)

See: Williams, Mortimer & Sunnucks on Executors, Administrators and Probate (21^st ed. 2018).

175.  No explanation has been forthcoming from the defendant or any witnesses propounding the 2005 Will on her behalf.  Instead, the defendant advertised to locate “Mr Wong”, who due to the aforesaid factual background, could only be a person ‘closely related or associated’ with her or her family members.

176.  For the reasons stated above, I hold that the defendant has failed to establish the Deceased’s knowledge and approval of the 2005 Will.

G. CONCLUSION AND DISPOSITION

177.  Regarding the 1999 Will, I rule in favour of the defendant on the issue of whether the 1999 Will was made by the Deceased, but against her on the question of whether the Deceased had the testamentary capacity to make the will as at 13 August 1999.

178.  Regarding the 2005 Will, I find against the defendant both on the Deceased’s “testamentary capacity” to make the will, and on whether the Deceased did “know and approve” of the contents of the will.

179.  Nowhere in the defendant’s pleadings has allegation been raised by the defendant challenging the formal or substantial validity of the 1987 Will.  Her only allegation is that it has been revoked by the 1999 Will and/or the 2005 Will, which have both been rejected by this court.

180.  In the premises, I order as follows: –

(1) The will made by the Deceased on 3 September 1987 be pronounced in solemn form for its force and validity; and

(2) The counterclaim herein by the defendant be dismissed.

181.  I further order that the costs of these proceedings be paid by the defendant to the plaintiffs, such costs are to be taxed if not agreed.

182.  The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same.

183.  Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.