DONG LI v. LAM PU QIAO

HCMP 663/2018

[2026] HKCFI 2612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 663 OF 2018

________________

BETWEEN

(by original action)

AND BETWEEN

(by counterclaim)

________________

________________

JUDGMENT

________________

A. Overview

1.  Mr Lam Mei Kuen (the “Deceased”) passed away on 16 October 2016 at the age of 61.

2.  The Deceased was married to Madam Leung Yuk Wah in 1985. They divorced in August 2001. The Defendant, who was born in 1986, was the daughter of the Deceased and Madam Leung.

3.  On 13 January 2003, the Deceased married the Plaintiff. They gave birth to a son and a daughter (the “Two Children”) in October 2004 and July 2006 respectively. The Deceased, the Plaintiff, and the Two Children lived together at Flat 7, 14^th Floor, Block B, Yue Tin Court, Shatin (the “Matrimonial Home”).

4.  These proceedings concern the validity of the 2 wills executed by the Deceased: -

(1) Under the will executed on 23 July 2014 (the “2014 Will”): -

(a) the Defendant is appointed the sole executrix of the Deceased’s estate;

(b) the Matrimonial Home is bequeathed to the Defendant; and

(c) The residuary estate is to be distributed in accordance with the Intestates’ Estates Ordinance.

(2) Under the will executed on 28 October 2015 (the “2015 Will”): -

(a) the Plaintiff is appointed as the sole executrix of the Deceased’s estate; and

(b) all the Deceased’s assets are bequeathed to the Plaintiff and the Two Children equally.

5.  On 14 December 2017, unbeknownst to the Plaintiff, the Defendant obtained grant of probate[1] based on the 2014 Will.

6.  The Plaintiff asks the court to: -

(1) order that the grant of probate in favour of the Defendant based on the 2014 Will be revoked; and

(2) propound the 2015 Will and grant probate in respect thereof in her favour.

7.  Meanwhile, the Defendant asks the court to: -

(1) propound the 2014 Will;

(2) pronounce against the validity of the 2015 Will; and

(3) order the Plaintiff to deliver vacant possession of the Matrimonial Home and to pay mesne profit in respect of her use and occupation of the Matrimonial Home[2].

B. The Plaintiff’s Case

B1. The Parties

8.  As mentioned, the Deceased and Madam Leung divorced in August 2001. This had nothing to do with the Plaintiff. The divorce was ascribed to the Deceased’s extramarital affairs with another woman.

9.  The Deceased and the Plaintiff met each other on a train from Shenzhen to Guangzhou around 2000. They soon developed a romantic relationship and were married in January 2003. At the time, the Deceased was 47 years old, whereas the Plaintiff was 24 years old.

10.  The Deceased was fairly well-educated. Prior to his retirement, he worked as a housing officer at the Housing Department. He received a master degree from the City University of Hong Kong. He could read and write Chinese and English.

11.  In contrast, the Plaintiff was less sophisticated. She came from the Mainland, and received education up to high school only. She lacked proficiency in English.

12.  In the circumstances: -

(1) The Deceased, being the sole breadwinner of the family, took charge of the financial affairs of the family. He made the major decisions (including decisions on matters relating to the Two Children’s education).

(2) The Plaintiff abided by the Deceased’s decisions. With limited connection with Hong Kong, she financially relied on the Deceased. She was a housewife, who took care of the well-being of the Deceased and the Two Children.

13.  The Deceased loved his Two Children and were concerned about their education. He upheld traditional values, but was stubborn and obstinate. The Plaintiff was not in a position to challenge the Deceased’s decisions.

B2. The 2012 Incident

14.  Unfortunately, during a family trip to Guangzhou in early 2012, the Deceased accidentally scalded himself with overheated water (which was prepared by the Plaintiff[3]) (the “2012 Incident”). The injury was so serious that the Deceased had to return to Hong Kong immediately for treatment and surgery. According to the Plaintiff, the Deceased put the blame on her, and he took the view that she failed to take good care of him during his recovery.

B3. Relationship between the Deceased and the Plaintiff was Strained

15.  Since the 2012 Incident, the relationship between the Deceased and the Plaintiff had deteriorated significantly. With a view to salvaging the marriage, the Plaintiff sought professional counselling from Caritas Dr & Mrs Olinto de Sousa Integrated Family Service Center[4].

16.  Be that as it may, in around early 2014, the Deceased moved out from the Matrimonial Home on various occasions. It was believed that the Deceased moved to some accommodation arranged by the Defendant.

17.  Meanwhile, the Deceased suffered from Parkinson’s disease, and his condition kept deteriorating. It appeared that the Deceased entrusted the Defendant to handle his financial affairs. For instance, some household expenses, including the wages of part-time caregivers, were paid by the Defendant.

18.  On 31 December 2014, the Defendant purchased Flat F, 25^th Floor, Block 6, Sherwood Court, Kingswood Villas, No 3 Tin Wu Road, New Territories (the “Kingswood Villas Property”) in her own name at HK$3,160,000. As admitted by the Defendant, the Deceased contributed around HK$1.5 million as a gift. According to the Plaintiff, this was a sizeable portion of the Deceased’s pension.

B4. The Deceased and the Plaintiff Reconciled

19.  As mentioned, it appears that the Deceased moved in and out of the Matrimonial Home on various occasions during the period from mid-2014 to mid-2015.

20.  According to the Plaintiff, in the evening on 26 July 2015[5] (ie 2 days prior to the Deceased’s birthday on 28 July 2015), she had a “heart-to-heart” conversation with the Deceased. During the conversation, the Deceased pointed his finger at the Plaintiff and said emotionally that she wanted to divorce him. In response, the Plaintiff immediately made it clear to the Deceased that she had no intention to divorce him. The Deceased understood that the situation was not like what he thought, and the Deceased and the Plaintiff began to reconcile with each other.

21.  However, on the next day (ie 27 July 2015), the Deceased was taken away. He disappeared and did not return to the Matrimonial Home to celebrate his birthday with the Plaintiff and their Two Children on 28 July 2015. The Plaintiff found out from the caretaker that the Defendant had taken the Deceased away. Despite repeated requests, the Defendant refused to (i) disclose the Deceased’s whereabouts; and (ii) allow the Plaintiff to have a telephone conversation with the Deceased.

22.  As such, on 4 August 2015, the Plaintiff reported the matter to the Police. This is evidenced by a letter dated 6 July 2023 issued by the Police[6]. In light of the Police’s intervention, the Defendant, on the phone, indicated that the Plaintiff could meet the Deceased the next day. However, the Defendant subsequently cancelled the intended meeting.

23.  It transpired that the caregiver disclosed the Deceased’s whereabouts to the Plaintiff.

24.  Hence, on 5 August 2015, the Plaintiff located the Deceased at an elderly home in Kennedy Town (the “Kennedy Town Elderly Home”). According to the Plaintiff, she and the Deceased broke into tears when they saw each other. The Plaintiff observed that the condition of the Kennedy Town Elderly Home was unsatisfactory, and the Deceased appeared to be anguished. The Plaintiff felt very upset. When the Plaintiff asked the Deceased whether he wanted to return to the Matrimonial Home, the Deceased immediately answered in the affirmative. In the circumstances, the staff of the Kennedy Town Elderly Home informed the Defendant (who acted as the Deceased’s contact person and who arranged the Deceased’s admission) about the matter, and the Defendant attended the Kennedy Town Elderly Home. As the Deceased was able to indicate that his wish was to return to the Matrimonial Home, he was allowed to leave the Kennedy Town Elderly Home together with the Plaintiff. The Defendant reluctantly accepted the Deceased’s decision.

25.  Since the aforesaid incident on 5 August 2015 (the “5 August 2015 Incident”), the Deceased had resumed living in the Matrimonial Home together with the Plaintiff and the Two Children. As the Plaintiff dedicatedly took care of the Deceased, they reconciled with each other completely, and their relationship improved. In the words of the Plaintiff: -

“我以行動表明對丈夫不離不棄，盡心照顧她和兩名孩子，丈夫亦放下過去誤會，不再因為燙傷的意外怪責我。”[7]

26.  The Plaintiff’s assertion is supported by some documentary evidence. The Deceased was admitted to Shatin Hospital on 22 August 2015. As stated in the discharge summary signed by a doctor dated 31 August 2015: -

“Previous breakdown of relationship between the patient [ie the Deceased] and his wife [ie the Plaintiff] due to [a] burning incident in 2011, now relationship improved, and patient [ie the Deceased] wants to go back home and continue to live with her [ie the Plaintiff].”[8] (emphasis added)

27.  According to the Plaintiff, the Deceased’s relationship with the Defendant had deteriorated after the Deceased resumed living in the Matrimonial Home together with her and the Two Children, and there was an occasion where the Deceased told her that the Defendant was not reliable and that she had deceived his money.

28.  In this connection, the Plaintiff’s assertion is supported by the contemporaneous medical records. According to the contemporaneous notes dated 21 August 2015 jotted by a medical social worker (namely Ms Luk Kit-yee, Alice) employed by the Hospital Authority : -

“ [She] [d]iscussed with [Patient, ie the Deceased] and wife [ie the Plaintiff] about the family relationships. [Patient, ie the Deceased] indicated he wanted his wife [ie the Plaintiff] to handle his affairs instead of his Eldest Daughter [ie the Defendant]. Yet he welcomed his daughter [ie the Defendant] to visit him if she wanted.” [9]

29.  The Plaintiff said that there was an occasion where the Defendant expressed hostility. On 6 August 2015, when the Deceased and the Plaintiff attended a bank in order to draw HK$5,000 to defray household expenses, the Defendant and her male friend stopped them from doing so. They made a fuss and alleged that the Deceased suffered multiple injuries. Under the Police’s intervention, the Deceased was sent to Kwong Wah Hospital. Although no injury was discovered, the Defendant and her male friend obstructed the Deceased and the Plaintiff from leaving. As a result, the Police intervened again. Since the Deceased indicated that he wished to go home with the Plaintiff, the Police allowed the Deceased and the Plaintiff to leave, and the Police officers escorted them to a taxi. (the “6 August 2015 Incident”)

30.  On the next day (ie 7 August 2015), the Defendant, together with a female friend, attended the Matrimonial Home. On this occasion, the Defendant proposed to impose various conditions for monitoring the household of the Deceased and the Plaintiff. As evidenced by a contemporaneous WhatsApp message, these conditions were as follows: -

(1) The Plaintiff should take good care of the Deceased’s diet and health, and should massage him all the time.

(2) After a domestic helper is located, the Plaintiff should find a job. The Defendant would be responsible for paying the wages of the domestic helper, but the Plaintiff should be responsible for paying the household expenses.

(3) If the Plaintiff is unemployed for 2 months, the Defendant would relocate the Deceased to another place, so that someone would take care of him.

(4) The Plaintiff may approach the Defendant if she is in financial difficulty.

(5) Surveillance cameras should be installed at the Matrimonial Home, so that the Defendant can monitor the household.

31.  The Plaintiff felt aggrieved and was of the view that the conditions proposed by the Defendant (and, in particular, the condition that surveillance cameras be installed at the Matrimonial Home) were oppressive. However, the Deceased and she were in financial difficulty. As such, the Plaintiff reluctantly accepted the Defendant’s proposal.

B5. The 2015 Will

32.  As mentioned above, the Plaintiff asserted that after the Deceased moved back to the Matrimonial Home, the Deceased no longer took the view that the Defendant was a reliable person. According to the Plaintiff, the Deceased appreciated that there was a need to provide for herself and the Two Children (who were respectively around 11 years old and 9 years old as of 2015).

33.  In this connection, there is some evidence showing that it was intended that the Kingswood Villas Property (which was registered in the Defendant’s name) was to be used to take care of the expenses of the Two Children. As stated in a WhatsApp message on 14 October 2014 from the Defendant to the Deceased[10]:-

“… I am going to tell what I think.

- If the property can be rented, eliminate the expenses of the property, the rest of all will be your children’s expense source.

- If the property cannot be rented, I will keep paying the mortgage, but I cannot afford your children expenses. Thus, no rental then your children cannot be paid.”[11]

34.  However, when the Defendant gave oral evidence, she clarified that whilst the Deceased intended that she should own the Kingswood Villas Property, she felt that she had a moral obligation to use the net rental income arising from the Kingswood Villas Property (if any) to support the Two Children in the future. Be that as it may, the rental income arising from the Kingswood Villas Property was barely sufficient to defray the expenses (including mortgage instalments, management fees, and Government rents/rates).

35.  It is not in dispute that the Defendant sold the Kingswood Villas Property on 9 April 2018 for HK$4.8 million and that the Defendant did not share any part of the sale proceeds with the Two Children and/or the Plaintiff.

36.  The Plaintiff emphasized that the Deceased’s wish was to ensure that she and the Two Children would have a place to live. In this regard, the Deceased had never indicated that she and the Two Children should move out of the Matrimonial Home. Indeed, at the time when the Deceased’s relationship with the Plaintiff was poor, the Deceased was the one who voluntarily moved out of the Matrimonial Home.

37.  In the premises, the Deceased wished to make a will in order to bequeath his estate (the major asset of which was the Matrimonial Home) in favour of the Plaintiff and the Two Children.

38.  On 15 October 2015, the Plaintiff accompanied the Deceased to attend the Shatin branch of Messrs Tony Kan & Co (hereinafter “TKC”). There, they were received by a legal executive named Man Siu Yin (hereinafter “Ms Man”). Neither the Deceased nor the Plaintiff had previously dealt with TKC and/or its staff/members, including Ms Man.

39.  The Plaintiff intended to adduce evidence from Ms Man. However, there is medical evidence[12] showing that Ms Man suffered from cancer and underwent chemotherapy recently. In the circumstances, Ms Man did not testify at trial. According to Ms Man’s witness statement[13], what happened on the occasion of 15 October 2015 was as follows: -

(1) Although the Deceased was wheelchair-bound, he appeared to be normal (精神狀況正常). However, when the Deceased started to speak, he had some difficulty in doing so, and his voice was unclear.

(2) In the circumstances, the Plaintiff was the one who gave verbal instructions on behalf of the Deceased in regard to the intended contents of the will.

(3) In order to make sure that the instructions actually came from the Deceased, Ms Man requested the Deceased to indicate that he agreed to the words said by the Plaintiff, and the Deceased would nod his head to indicate his agreement.

(4) Ms Man was told that the Deceased had made a previous will (ie the 2014 Will) in favour of the Defendant. As such, she advised the Deceased that upon making a new will, the 2014 Will would be revoked. In response, the Deceased nodded his head to indicate that he understood.

(5) Ms Man used a standard form of TKC titled “will instruction” (the “Preliminary Instruction Form”) to record the instruction that she received. As stated in this contemporaneous document[14], the instruction is that: -

“all to wife [the Plaintiff] & 2 Children in equal shares”

(6) Ms Man was also cautious enough to insert a remark in the Preliminary Instruction Form indicating that although the Deceased suffered from Parkinson’s diseases and diabetes, he was capable of expressing his wish[15].

(7) During the conversations, the Plaintiff said that the Defendant took custody of the Deceased’s pension. On this matter, the Deceased did not indicate that he agreed with what the Plaintiff said. Apart from this specific matter, the Deceased indicated his agreement to the words said by the Plaintiff.

(8) During the conversations, the Plaintiff also said that the Defendant ignored and/or abandoned the Deceased (大女對他不聞不問). When the Deceased heard this, he appeared to be very sad and broke into tears.

(9) At the end of the meeting, Ms Man made an appointment with the Deceased for executing the new will (which transpired to be the 2015 Will) on 28 October 2015. Ms Man emphasized that unless there was medical proof acceptable to TKC showing that the Deceased was of sound mind, the Deceased would not be allowed to execute the new will.

40.  On 28 October 2015 (at around 11am), the Deceased, who was accompanied by the Plaintiff, attended the Shatin branch of TKC for the purpose of executing his new will (ie the 2015 Will).

41.  According to Ms Man’s witness statement, what happened on the occasion of 28 October 2015 was as follows: -

(1) Whilst Ms Man could remember that she had a meeting with the Deceased at a conference room alone, she could not remember the details of the meeting.

(2) Nevertheless, Ms Man was able to confirm that in accordance with her usual practice, she would: -

(a) explain (i) the contents of the will and (ii) the contents of a document titled “instructions on the will (定立遺囑指示)” (the “Formal Instruction”) to the testator; and

(b) ensure that the testator understands and agrees to the contents of these documents.

(3) In the present case, the Formal Instruction set out (i) his relationships with the Plaintiff the Defendant and his Two Children; and (ii) his wish to bequeath all his assets, including landed properties, in favour of the Plaintiff and his Two Children in equal shares.

(4) Ms Man had no reason to believe that the standard practice mentioned in sub-paragraph (2) above was not followed. This is because her practice is such that until and unless she is satisfied that the testator understands and agrees to the contents of the will and the Formal Instruction, she would not allow the testator to meet the responsible solicitor.

(5) Ms Man could remember that the Deceased, in the presence of herself and Mr Chui Ka Fai Eddie (“Mr Eddie Chui”) (ie the responsible solicitor of TKK), indicated his agreement with the contents of the 2015 Will and the Instruction Form. In the premises, the Deceased (who could not write properly due to Parkinson’s diseases) executed the 2015 Will and the Instruction Form by stamping his name chop and imprinting his left thumb print with the assistance of the lawyers. The process was, of course, witnessed by Mr Eddie Chui and Ms Man herself.

(6) On the next day (ie 29 October 2015), the Plaintiff attended the Shatin branch of TKC. She provided Ms Man with an updated version of a document named “病人出院護理摘要” issued by Shatin Hospital, which was dated 29 October 2015[16]. According to this document, although the Deceased required assistance in dealing with his daily affairs, his emotional status was stable.

42.  According to Mr Eddie Chui (who testified on behalf of the Plaintiff): -

(1) On the occasion of 28 October 2015, he, together with Ms Man, met the Deceased alone in a conference room. With a view to avoiding the risk of undue influence, the Plaintiff was asked to wait outside of the conference room.

(2) Mr Eddie Chui explained the purpose of the meeting to the Deceased, and the Deceased showed full understanding. He did not observe anything abnormal about the Deceased’s behaviour, save that he was in a wheelchair.

(3) With a view to ascertaining whether the Deceased was of sound mind, Mr Eddie Chui specifically asked the Deceased to tell him his name, the names of the beneficiaries, and his relationship with them. The Deceased answered the questions correctly and was attentive throughout the meeting. The Deceased also indicated he understood that the 2014 Will would be revoked, and that this was what he intended to do.

(4) In the circumstances, the Deceased executed the Formal Instruction by stamping his name chop and imprinting his left thumb print on the document.

(5) Mr Eddie Chui then proceeded to interpret and/or explain the contents of the 2015 Will to the Deceased, and the Deceased verbally confirmed with him that he thoroughly understood and approved the same.

(6) In the circumstances, the Deceased executed the 2015 Will by stamping his name chop and imprinting his left thumb print on the document. The process was witnessed by Mr Eddie Chui himself and Ms Man.

43.  In the premises, it is the Plaintiff’s case that: -

(1) At the time when the 2015 Will was made, the Deceased was of sound mind. He had the requisite testamentary capacity and the ability to appreciate the nature and effect of the 2015 Will.

(2) The Deceased knew and approved the contents of the 2015 Will, which were explained to him by Mr Eddie Chui.

(3) The 2015 Will was also duly executed and in compliance with the statutory requirements under section 5 of the Wills Ordinance, Cap 30.

(4) Accordingly, the 2015 Will is the true last will of the Deceased, and the previous 2014 Will has been revoked by virtue of the 2015 Will.

44.  Insofar as the Deceased’s testamentary and/or mental capacity is concerned, it is worth mentioning that shortly before he executed the 2014 Will and the 2015 Will, he was assessed under a series of mini-mental state examinations (“MMSEs”). Although there were signs of some mild cognitive impairment, the results were, by and large, satisfactory[17]. The results were as follows: -

Dates of the MMSEs	Scores
16 June 2014[18]	21/30
18 June 2014[19]	22/30
1 September 2014[20]	21/30
18 August 2015[21]	24/30
24 August 2015[22]	22/30
22 October 2015[23]	22/30

B6. Circumstances after the 2015 Will was executed

45.  After the 2015 Will was executed on 28 October 2015, the Deceased continued to live in the Matrimonial Home together with the Plaintiff, and the Defendant continued to take up the responsibility of taking care of the Deceased. There are contemporaneous records showing that they received support and care services from various institutions[24].

B7. The Properties in the Mainland

46.  For completeness, it should be mentioned that whilst the Deceased co-owned a property together with the Plaintiff in the Mainland, he solely owned 2 properties in his own name in the Mainland (hereinafter collectively the “Mainland Properties”).

47.  According to the Plaintiff, on 5 October 2015, she was informed by the Defendant that legal proceedings were commenced in the Mainland in regard to the outstanding mortgage loan in the amount of RMB100,000 in respect of 1 of these Mainland Properties (which was located in Shenzhen). As the Plaintiff understood, if the outstanding mortgage loan was not repaid, the Mainland Property in question would be foreclosed.

48.  Since the Plaintiff and the Deceased were in financial difficulty, they decided to sell the Mainland Properties. To this end, in late December 2015/early January 2016, the Deceased, through the assistance of TKC, executed a power of attorney in favour of the Plaintiff. However, the Deceased still visited the Mainland when the Plaintiff, as his attorney, executed the documents for selling the 3 Mainland Properties. Throughout the process, neither the estate agent nor the public authorities in the Mainland questioned the Deceased’s mental capacity.

B8. The Deceased’s Death

49.  On 9 October 2016, due to hemorrhoidal bleeding, the Deceased was hospitalized.

50.  On 16 October 2016, the Deceased passed away, and it was believed that the primary cause of the death was pneumonia[25]. The Plaintiff said that the Deceased’s death was unexpected. As evidenced by the contemporaneous records from the Hospital Authority: -

“Wife [ie the Plaintiff] is emotionally unstable and unable to accept the husband [ie the Deceased] has passed away.”

51.  As evidenced by the contemporaneous WhatsApp records[26], the Deceased’s brother assisted the Plaintiff in handling the funeral of the Deceased, and he was asked by the Plaintiff to inform relatives to attend the Deceased’s funeral. Somehow, the Defendant did not attend the Deceased’s funeral[27].

C. The Defendant’s Case

52.  According to the Defendant, the Deceased was a police officer before he assumed a role with the Housing Department.

53.  The Defendant accepted that the Deceased was a stubborn person.

54.  The Defendant said that she had a good relationship with the Deceased during her childhood and teenage days. However, due to the Deceased’s adultery with the other woman (who was not the Plaintiff) in around 2001, the relationship between the Deceased and the Defendant (who was 14 years old at the time) had deteriorated. After the Deceased and Madam Leung (ie the Defendant’s mother) divorced, the Defendant lived with Madam Leung. Although the Defendant and the Deceased did not have much interaction with each other, the Deceased kept paying the Defendant pocket money of HK$2,000 per month.

55.  The Defendant’s relationship with the Deceased began to improve in around 2007 when she pursued postgraduate studies in the United Kingdom. At that time, the Deceased approached the Defendant to convey his blessing, and the two of them reconnected. However, it was still difficult for the Defendant to accept the fact that the Deceased had a second marriage with the Two Children.

56.  Be that as it may, the Defendant gradually became more involved in the Deceased’s life, and the Deceased would tell her about his personal affairs.

57.  In around 2013, the Deceased informed the Defendant about the Mainland Properties, and indicated that he wanted the Defendant to assist him in managing the affairs in respect thereof. In around March 2014, the Deceased, the Defendant, and the Defendant’s boyfriend (who is now her husband) even had a trip together to the Mainland.

58.  In around mid-2014, the Deceased and the Defendant had some discussion about bequeathal of his assets in the event of his passing, and on 18 July 2014, the Deceased said to the Defendant that it was urgent for him to prepare a will.

59.  In the circumstances, the Deceased instructed Messrs Tang & Associates to prepare a will (which transpired to be the 2014 Will). This was executed on 23 July 2014. The Defendant stressed that at the time, the Deceased was in good cognitive condition, though his physical condition was not as good, and he struggled to speak with clear pronunciation.

60.  After knowing that she was appointed as the executrix of the Deceased’s estate under the 2014 Will, there was discussion between the Deceased and the Defendant as to why the Deceased decided to bequeath his Matrimonial Home in favour of the Defendant. According to the Defendant, the Deceased told her that: -

(1) He wished the Defendant to have a better life and wished to make up for what he did to Madam Leung.

(2) He trusted the Defendant, who was a financially independent and well-educated person. She could manage and invest his assets responsibly.

(3) The Plaintiff did not have her own career and relied on him financially. She was not good at financial management.

(4) He would simply cover the living expenses of the Plaintiff and the Two Children.

61.  After the 2014 Will was executed, the Deceased told the Defendant that he did not want his cash savings to be passed onto the Plaintiff, and he would like to gift her a sum as down payment for acquiring a residential property under her name. It was in these circumstances that the Deceased funded the Defendant’s purchase of the Kingswood Villas Property. He provided the down payment in around HK$1.5 million.

62.  Meanwhile, the Deceased kept complaining to the Defendant that the Plaintiff (who came from the Mainland) was not well-educated, and she failed to teach the Two Children satisfactorily in accordance with his expectation. The Deceased even said that he “wrongly trusted” the Plaintiff over the years, and the lack of communication between them led to deterioration of their relationship.

63.  In this connection, the Defendant relied on a contemporaneous discharge summary issued by Shatin Hospital dated 14 July 2014. As stated in this document, the Deceased had “poor relationship with family including wife [ie the Plaintiff] and brothers”[28].

64.  In around mid-2014, the Deceased decided to move out of the Matrimonial Home. Since his self-caring ability had been decreasing, the Deceased moved into an elderly home in Tai Po (the “Tai Po Elderly Home”). However, the Deceased had a quarrel with another elder/resident. As such, he temporarily moved to the home of his mother (ie the Defendant’s grandmother). It transpired that the Deceased’s brothers did not agree that the Deceased should live at their mother’s home, and they even changed the lock of the entrance gate.

65.  Although the Defendant arranged the Deceased to stay in Alice Ho Miu Ling Nethersole Hospital, the Deceased was soon discharged. As such, the Deceased reluctantly moved back to the Matrimonial Home. Meanwhile, the Defendant arranged a part-time helper to take care of the Deceased.

66.  According to the Defendant, the Deceased made it clear that he did not wish to live together with the Plaintiff. In the circumstances, on 27 July 2015, the Defendant arranged the Deceased to be admitted into the Kennedy Town Elderly Home, and he moved in on 28 July 2015 (which was his birthday).

67.  The Plaintiff sent WhatsApp messages to the Defendant to enquire the whereabouts of the Deceased. However, the Defendant was told by the Deceased that he did not want the Plaintiff to know his whereabouts. Thus, the Defendant refused to disclose the Deceased’s whereabouts to the Plaintiff.

68.  According to the Defendant, she visited the Deceased at the Kennedy Town Elderly Home on 5 August 2015. To her surprise, she saw the Plaintiff sitting next to the Deceased. The three of them then went to a fast-food restaurant nearby. There, the Plaintiff said that the Deceased wished to return to the Matrimonial Home to live with her, and the Deceased, in tears, nodded his head to indicate that he agreed with what the Plaintiff said. In the words of the Defendant, she was “left in disbelief that the Deceased would suddenly have this abrupt change of attitude”, and “this inevitably led [her] to wonder what [the Plaintiff] had done to him or told him before [she] came to see him…”[29].

69.  As regards the 6 August 2015 Incident, the Defendant’s assertions are as follows: -

(1) She was informed by a Chinese medicine practitioner that the Deceased had been brought to a bank in Mong Kok.

(2) Thus, she immediately rushed to the bank. She saw that the Deceased was queuing in front of a counter, and he appeared to be not “very conscious”.

(3) She asked the staff of the bank to be cautious and reported the matter to the Police. In light of the Deceased’s condition, she suggested that the Deceased be sent to a hospital (which transpired to be Kwong Wah Hospital).

(4) When the Deceased was ready to be discharged from Kwong Wah Hospital, the Plaintiff insisted to take him back to the Matrimonial Home. The Defendant disagreed as she doubted whether the Deceased wished to return to the Matrimonial Home. Be that as it may, the Deceased left together with the Plaintiff in the end.

70.  As regards the occasion of 7 August 2015, in gist, it is the Defendant’s case that (i) the conditions and arrangements that she proposed were to ensure that the Deceased would be taken care of properly; and (ii) the Plaintiff unreasonably refused to honour the agreement with her.

71.  The occasion of 7 August 2015 was the last time the Defendant saw the Deceased. The Defendant accused the Plaintiff of implementing a premeditated plan to regain control of the Deceased’s life and to alienate her. According to the Defendant: -

(1) The Deceased (who suffered from Parkinson’s diseases) was no longer capable of using his mobile device. Thus, she could not communicate with the Deceased by way of exchanging text messages. She tried to call the Deceased’s mobile phone, but no one picked up.

(2) She went to the Matrimonial Home for 3 to 4 times to look for the Deceased, but no one responded.

(3) She sent a parcel to the Deceased at the Shatin Property, but it was returned.

(4) The Plaintiff refused to answer her text messages.

72.  Whilst the Defendant did not dispute the fact that the 2015 Will was executed at TKC’s office, she asserted that the contents of the 2015 Will (which radically depart from the 2014 Will) are inexplicable and that there were suspicious circumstances. In particular, the Defendant asserted that: -

(1) At the time when the 2015 Will was executed, the Deceased heavily relied on the Plaintiff to take care of his daily needs, and he was highly susceptible to threats and coercion.

(2) During his lifetime, the Deceased repeatedly said to her that he did not trust the Plaintiff with financial affairs, and he could not have agreed that the Plaintiff be appointed as the executrix of his estate.

(3) As of 2015, the Deceased’s cognitive condition had suffered a significant decline.

(4) There was a series of medical records showing that the Deceased was in poor physical condition and poor mental condition as of late 2015.

(5) The Plaintiff (who is a beneficiary) was involved in the process of the preparation and execution of the 2015 Will.

(6) The Deceased did not sign the 2015 Will, which was only executed by affixing the Deceased’s name chop and imprinting his left thumb print.

(7) Despite the Deceased’s poor physical and/or mental conditions, the 2015 Will was not witnessed and/or approved by any licensed medical practitioner.

73.  In the premises, it is the Defendant’s case that: -

(1) The Deceased did not have the requisite mental capacity to execute the 2015 Will.

(2) The Deceased did not know the contents of the 2015 Will and did not approve the same.

(3) The 2015 Will is liable to be vitiated on the ground of the undue influence exerted by the Plaintiff.

(4) The 2015 Will is invalid, and the 2014 Will is the true last will of the Deceased.

74.  Accordingly, the Defendant, being the executrix of the Deceased’s estate under the 2014 Will, is entitled to seek (i) vacant possession of the Matrimonial Home against the Plaintiff; and (ii) mesne profit in respect of the Plaintiff’s use and occupation of the Matrimonial Home.

75.  As regards her failure to attend the Deceased’s funeral, the Defendant accused the Plaintiff of failing to inform her about the Deceased’s death. She suggested that this was part of the Plaintiff’s premeditated plan to alienate her from the Deceased’s life and affairs.

D. Legal Principles

D1. Legal Principles on Assessment of Credibility

76.  In Lee Fu Wing v Yan Paul Po Ting [2009] 5 HKLRD 513 at 534, DHCJ Au (as Au JA then was) set out the well-established approach to assessing credibility. In the course of assessing the credibility of a party’s case, the court shall consider the following matters:

(1) whether the party’s case is inherently plausible or implausible;

(2) whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(3) where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests, this is relevant to the assessment of his overall credibility; and

(4) the demeanour of the witnesses.

77.  In the context of adjudicating a dispute in relation to an alleged oral agreement or understanding, in Joint and Several Trustees of the property of Yeung Wing Sing v Yeung Wing Sing & Anor [2021] HKCFI 2018 at para 26, Recorder Yvonne Cheng SC (as Cheng J then was) pointed out that:

(1) contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility;

(2) in deciding whether to accept a witness’s account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events;

(3) care should be taken in regard to the consistency of the witness’s evidence with undisputed or indisputable evidence, and the internal consistency of the witness's evidence;

(4) care should be taken in drawing conclusions about truthfulness and reliability solely or mainly from the appearance of a witness or from the assessment of a witness’s character; and

(5) witnesses’ credibility should be tested by reference to the objective facts proved independently of their testimony, and the court should consider their motives and the overall probabilities.

C2. Legal Principles on Propounding a Will

Burden of Proof

78.  As explained in Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387 at paras 171 to 178: -

(1) The party who propounds a will carries the legal or persuasive burden of satisfying the court that it is the will of the deceased.

(2) The standard of proof is the balance of probabilities. This means that the proponent of the will has the persuasive burden of proving on the balance of probabilities that: (i) there was due execution of the will; (ii) the testator was of testamentary capacity; and (iii) the testator knew and approved the contents of the will.

Testamentary Capacity

79.  In Re Estate of Lung Yee Fun [2024] HKCFI 1025 at paras 30 to 38, DHCJ Leung (as Leung J then was) comprehensively set out the legal principles relevant to testamentary capacity. The learned judge stated: -

“30. The 4 criteria for testamentary capacity laid down (at 565) in Banks v Goodfellow (1869-70) LR 5 QB 549 and recited in Chiu Man Fu & Ors v Chiu Chung Kwan Ying, CACV 40/2012 (18 June 2013) (at §52) are as follows:

(1) A testator shall understand the nature of the act and its effects.

(2) He shall understand the extent of the property of which he is disposing.

(3) He shall be able to comprehend and appreciate the claims to which he ought to give effect.

(4) No disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties. No insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

31. Each of the above criteria must be satisfied before the court holds that the testator had the requisite testamentary capacity at the material time: see Re Estate of Au Kong Tim (Wills: Validity) [2018] 2 HKLRD 864 (at §29).

32. Where the will was prepared by experienced and independent solicitors, the court is expected to exercise caution before the same should be upset on the ground of mental incapacity. Where the will was so prepared after actual meeting with the testator when the solicitor was instructed and formed the opinion from the meeting that the testator was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational, and the will so drafted was executed after it has been read though and explained by the solicitor, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property: see Hawes v Burgess [2013] EWCA Civ 94 at §§57, 60.

33. However, the appellate court in Re Estate of Au Kong Tim (Wills: Validity) (above) made clear (at §§59; 77) that this is not to say that the opinion of an experienced and independent solicitor in respect of the capacity of the testator, without more, should be conclusive. Any such opinion must be shown to be based on proper assessment and accurate information. There also comes the consideration of the often cited “Golden Rule”.

34. The “Golden Rule” suggests that in case of an aged or seriously ill testator, his will should be witnessed or approved by a medical practitioner. The appellate court in Re Estate of Au Kong Tim (Wills: Validity) explained (at §§2.1-2.4) that in practice, the solicitor who wishes to discharge his duty properly is expected to meet the testator personally for the purpose of taking or confirming instructions in respect of a checklist of information. The solicitor should refer to the checklist set out in the ‘Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers’ published by the British Medical Association and the Law Society to ascertain whether the testator is capable of understanding the nature of the act and its effects, understanding the extent of the property being disposed of as well as comprehending and appreciating the claims to which a person making a will ought to give effect.

35. That being said, the appellate court also explained (at §8) that compliance with the “Golden Rule” does not operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose is to assist in the avoidance of disputes or at least in the minimization of their scope by ensuring that basic requirements for the validity of a will would not be overlooked. That the so-called rule is really a matter of good practice was further made clear by the appellate court in Re Estate of Wong Yin Sheung [2019] HKCA 452.

36. In Re Estate of Lau Heung [2019] HKCA 769, the attesting solicitor had not adopted the ‘golden rule’ or the checklist procedure mentioned above but the will was upheld at trial and on appeal. The appellate court in that case (at §§18 and 19) referred to Re Estate of Wong Yin Sheung (above) where the appellate court, as mentioned, made it clear that much would depend on the facts and evidence in a case. The court also noted that Re Estate of Au Kong Tim (Wills: Validity) (above), as mentioned, did not rigidly prescribe that a party propounding a will would not be able to establish testamentary capacity if a solicitor failed to make proper enquiry and follow the rule as a matter of good practice. The question of testamentary capacity is a practical question and the court has to holistically assess the question by reference to all the evidence including, but not limited to, medical evidence, and to judicial common sense. Such understanding was most recently reiterated and applied in Wong Tung Wai v Wong Tung Po [2023] HKCFI 1240 at §22.

37. In other words, the question of whether or not a testator had testamentary capacity at the material time does not depend solely on scientific or legal definition or medical evidence. Nor does compliance or not with the ‘golden rule’ or the checklist procedure and guidelines in the instruction taking mentioned above serve more to answer the dispute than as a good practice to avoid or minimise dispute in the first place. It is ultimately a practical question of degree to be resolved on the basis of the facts and circumstances of each case as they happened. The criteria in Banks v Goodfellow (above) are not matters that are directly medical questions, but are matters for common sense and judicial judgment upon a holistic assessment of all the evidence. See also Theobald on Wills (19th ed) at §4-019.

38. The physical and mental condition of the testator, and its impact on his testamentary capacity, at the material times aside, the court would consider the rationality of the disposition under the will in the circumstances of the case. That also calls for caution, as the court has recognized that human nature is multi-dimensional and at times complicated, and therefore a testator, like any ordinary human being, conducts himself according to his own personality, temperament, traits, idiosyncrasies or eccentricities and that his act is influenced by his affections, desires and prejudices. Thus, in determining testamentary capacity, the law does not call for a perfectly balanced mind freed from all influence of prejudice, passion and pride. Nor does the law say that a man is incapacitated from making a will if he is moved by capricious, frivolous, mean or even bad motives. Eccentricity or lack of justice or even lack of common sense in the dispositions is not of itself enough. The testator may, for example, disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and the court must give effect to his will, however much the course he has pursued is condemnable, so long as he has the requisite testamentary capacity. The court does not sit to correct injustices in that respect. In other words, the law does not require a testator to act fairly, as one may perceive, when he makes a will. The law is not concerned with an objective assessment if his testamentary disposition is fair, reasonable or not, as this is not the test of whether he had the testamentary capacity to make the will: see Chiu Man Fu (CFI) (above) (at §§74-75). Without prejudice to the above, comparison of the will with the testator’s previous testamentary disposition may cast light on the rationality of the former: see Lee Wai Ho v Fung Kui Chuen, HCAP 21/2011 (19 August 2014) at §21.”

Knowledge and Approval

80.  The will must represent the testator’s testamentary intention, and the testator must approve the contents and effect of the will. It is not enough if the testator merely knew the words contained in the will: see Theobald on Wills (19th Ed) at paras 4-042 to 4-044 and 4-053; Gill v Woodall [2011] Ch 380 at para 71; and Re Estate of Lau Heung [2020] 2 HKC 19 at para 84.

81.  Where a party disputes the validity of a will for want of knowledge and approval, it carries the evidential burden of putting the relevant ground of challenge in issue. If the evidence adduced is sufficiently cogent to raise an issue, the court, when assessing the evidence as a whole, will decide whether the proponent of the will has discharged the persuasive burden in relation to the relevant facts on the balance of probabilities: see Nina Kung (supra) at para 176.

82.  It has been suggested that: -

(1) Where the will was duly executed and the testator had the requisite testamentary capacity, knowledge and approval of the testator is rebuttably presumed: see Nina Kung (supra) at para 206.

(2) As “a matter of common sense and authority”, if a will has been properly executed after being prepared by a solicitor and read over to the testator, this raises a “very strong presumption” that the will represents the testator’s intention at the material time when he executed the will: see Gill v Woodfall (supra) at para 14 (per Lord Neuberger MR).

(3) Evidence that the will was read over to or by the deceased is the “most satisfactory evidence” to establish knowledge and approval: see Li Wai Chu & Anor v Li Wai Ling (HCAP 6/2012, 20 June 2017) at para 129 (per DHCJ Kent Yee).

83.  However, the inquiry undertaken by the court is necessarily fact-sensitive in nature: see Nina Kung (supra) at para 206. The suspicious circumstances that the court will take into account include the following: -

(1) a beneficiary was involved in drawing up the will or those who drew up the will are closely related to the beneficiary;

(2) the contents of the will in question radically depart from the contents of the previous wills;

(3) the evidence of the propounder of the will is unsatisfactory;

(4) suspicious circumstances relating to the execution of the will;

(5) lack of contemporaneous documents in relation to the preparation and execution of the will; and

(6) refusal to call doctors who witnessed the execution of the will to give evidence.

see Nina Kung (supra) at para 218; and Re Estate of Lim Por Yen [2025] HKCFI 1401 at paras 207 to 208 (per Wilson Chan J).

Undue Influence

84.  Where a person seeks to challenge a will on the ground of undue influence, he bears the persuasive burden to establish undue influence, and the person seeking to propound the will does not carry a burden to disprove undue influence: see Nina Kung (supra) at paras 177 to 178.

85.  The burden of proving undue influence is a high one. There is no presumption of undue influence, and actual undue influence must be proven as a matter of fact: see Li Chi Loy v Li Lai Lan Candiac [2008] 5 HKLRD 74 at para 83 (per Poon J, as Poon CJHC then was).

86.  It has been suggested that: -

(1) In the present context, undue influence means influence exercised either by coercion (in the sense that the testator’s will must be overborne) or by fraud.

(2) Coercion is pressure that overpowers the volition without convincing the testator’s judgment, and this is distinguished from mere persuasion, appeals to ties of affection, or pity for future destitution, all of which are legitimate.

(3) Pressure causing a testator to succumb for the sake of a quiet life or escaping from distress of mind or social discomfort (if carried out to an extent that overbears the testator’s free judgment, discretion, or wish) is enough to amount to coercion, even though no force or violence is used.

(4) Undue influence may also take the form of control, domination, or emotional pressure over a period of time, such that a person is so controlled, crushed, intimidated, or dominated that he will do almost anything to please the abuser, avoid conflict with him/her, or to have a peaceful existence.

(5) A person in the final days of his life may have become so weak and feeble that very little pressure will be sufficient to bring about the desired result. He may be so fragile and fatigued that he is willing to do anything asked of him for the sake of quietness. This could constitute coercion.

(6) The court may draw inferences from the general circumstances, and undue influence occurs where the testator is coerced into doing things that he does not desire to do.

See Wong Tug Wai v Wong Tung Po [2023] HKCFI 1240 at paras 25 to 30; and Walker v Walker & Anor [2007] All ER (D) 418 (March) at para 221.

E. Deliberation

E1. The Deceased’s Testamentary Capacity

87.  I have no hesitation in finding that at the times when the Deceased executed the 2014 Will and the 2015 Will, he was of sound mind, and he possessed the requisite testamentary capacity.

Expert Evidence

88.  As pointed out in paragraph 44 above, the results of the MMSEs that the Deceased underwent were as follows: -

Dates of the MMSEs	Scores
16 June 2014[30]	21/30
18 June 2014[31]	22/30
1 September 2014[32]	21/30
18 August 2015[33]	24/30
24 August 2015[34]	22/30
22 October 2015[35]	22/30

89.  In their joint report dated 8 August 2024, Dr Yu Yuk Ling (who was engaged by the Plaintiff) and Dr Choi Wing Kit (who was engaged by the Defendant) [36]opined that the aforesaid MMSE scores “indicate that [the Deceased] had mild cognitive impairment of a similar degree”, but “there was no significant interval deterioration of his cognitive function”[37].

90.  According to Dr Yu, the Deceased had “mild cognitive impairment”. Nevertheless, “the contemporaneous medical records did not indicate any significant deterioration compared to July 2014” (ie the time when the 2014 Will was made), and the Deceased “had the requisite capacity to execute the [2015 Will] on 28 October 2015”[38].

91.  According to Dr Choi: -

(1) “[P]eople having mild cognitive impairment are able to make most of their personal decisions” (emphasis added), and “should not have difficulties in knowing the nature and effects of making a Will, the extent of his/her properties. He/she should also be able to comprehend and appreciate the claims to which he/she ought to give effect”[39].

(2) In light of the outcome of the MMSE conducted on 22 October 2015 (the score of which was 22/30), “there was no strong evidence suggesting that the Deceased did not possess the required testamentary capacity to execute the 2015 Will.”[40]

(3) “[T]here is no very strong evidence to safely conclude that the Deceased did not possess the required testamentary capacity when he executed the 2014 Will and the 2015 Will.”[41]

92.  Dr Yu’s opinion is consistent with Dr Choi’s opinion. Their opinion is consistent with the results of the MMSEs.

93.  I accept Dr Yu and Dr Choi’s opinion.

94.  I agree with Dr Yu and Dr Choi’s opinion that there is no evidential basis to suggest that the Deceased did not possess the requisite testamentary capacity at the times when the 2014 Will and the 2015 Will were executed. I also agree with Dr Yu’s opinion that the Deceased had the requisite capacity to execute the 2015 Will[42] (which Dr Choi did not dispute nor disagree).

95.  For completeness, it should be pointed out that: -

(1) In his submissions, Mr Arthur Poon (for the Defendant) emphasized that the Deceased’s performance in the “serial 7 tests”[43] under the MMSEs was poor, in that he only scored 1 out of 5 points.

(2) However, as explained by Dr Yu when he was cross-examined by Mr Poon, the fact that the Deceased performed poorly in the “serial 7 tests” only shows that due to cognitive impairment, the Deceased had difficulty in concentrating and carrying out calculation; it did not follow that the Deceased had lost the ability to make personal decisions.

(3) I fully accept Dr Yu’s explanation, which makes ample common sense. It cannot be said whenever a person is unable to perform calculation satisfactorily due to cognitive deficiency, he is ipso facto incapable of making personal decisions (including testamentary decisions). This simply does not follow.

(4) Unsurprisingly, Mr Poon’s contention is not even supported by the opinion of Dr Choi (who was engaged by the Defendant). Dr Choi did not opine that by reason of Deceased’s poor performance in the “serial 7 tests”, the Deceased might not have the requisite testamentary capacity.

The Defendant cannot blow hot and cold

96.  As demonstrated by the table above (see paragraph 88), the results of the MMSEs that the Deceased underwent in June 2014 were consistent with the results of the MMSEs that the Deceased underwent in August and October 2015. Based on the results of the MMSEs, both Dr Yu and Dr Choi opined that the Deceased’s mental condition did not deteriorate during the period from June 2014 (ie shortly before the time when the 2014 Will was executed) to October 2015 (ie the time when the 2015 Will was executed).

97.  In the premises, there is no room for the Defendant to contend that whilst the Deceased had testamentary capacity as of July 2014 when the 2014 Will was executed, he did not have the requisite testamentary capacity as of October 2015 when the 2015 Will was executed. Not only is this assertion inconsistent with the opinion of Dr Yu and Dr Choi, but it is also inconsistent with the factual evidence before the court.

Factual Evidence

98.  It is not in dispute that the Deceased’s physical condition was not satisfactory. Due to Parkinson’s disease, the Deceased was wheelchair-bound. He could not speak with a clear voice; nor could he write properly with a pen (such that the 2015 Will had to be executed by imprinting his name chop and left thumb print).

99.  However, it does not follow that the Deceased was mentally incapacitated or that he was incapable of: (i) understanding the nature of making a will and its effect; (ii) understanding the extent of the property of which he was disposing; and (iii) understanding the claims to which he ought to give effect. The factual evidence before the court tends to show that the Deceased was capable of understanding and appreciating the aforesaid matters.

100.  According to Mr Eddie Chui, on the occasion of 28 October 2015: -

(1) He explained the purpose of the meeting to the Deceased, and the Deceased showed full understanding.

(2) He specifically asked the Deceased to tell him his name, the names of the beneficiaries, and his relationship with them. The Deceased answered the questions correctly.

(3) The Deceased was also attentive throughout the meeting.

(4) When he explained to the Deceased that the previous 2014 Will would be revoked, the Deceased indicated that he understood and that this was what he intended to do.

(5) In the words of Mr Chui, it appeared to him that the Deceased behaved like any other normal person.

101.  Having observed the way in which Mr Eddie Chui gave evidence, I am of the view that he was an honest witness and a respectable professional. Indeed, Mr Chui had no interest in the outcome of these proceedings and no reason to lie to the court. I fully accept Mr Chui’s evidence regarding the events that happened on the occasion of 28 October 2015.

102.  As regards the events that happened on the occasion of 15 October 2015: -

(1) As Ms Man did not testify in court due to her unsatisfactory health condition[44], I approached the contents of her witness statement with skepticism.

(2) However, the crucial assertions in Ms Man’s witness statement are corroborated by the contemporaneous notes that she jotted down on the Preliminary Instruction Form[45]. As mentioned, Ms Man wrote down that:-

(a) “all to wife [the Plaintiff] & 2 Children in equal shares”; and

(b) although the Deceased suffered from Parkinson’s disease and diabetes, he was capable of expressing his wish.

(3) Like Mr Eddie Chui, Ms Man did not have an interest in the present dispute. I cannot discern any reason why Ms Man would seek to concoct facts and/or insert incorrect information in the Preliminary Instruction Form.

(4) In my view, Ms Man’s contemporaneous records in the Preliminary Instruction Form show that on the occasion of 15 October 2015, the Deceased was capable of communicating his wishes to Ms Man and Ms Man did understand the Deceased’s wishes.

103.  In light of Mr Eddie Chui’s evidence (which I accept) and Ms Man’s contemporaneous notes in the Preliminary Instruction Form[46] (which are, by and large, incontrovertible), I find that despite his physical fragility[47], the Deceased was apparently capable of expressing his wishes and capable of communicating/interacting with others. Put simply, the Deceased behaved like any other normal person. These findings are consistent with: -

(1) the contemporaneous medical records on 27 August 2015[48] showing that the Deceased’s (i) “speech [was] a bit slurred but comprehensible”; (ii) “speech was coherent and relevant”; and (ii) “eye contact was good”.

(2) the contemporaneous records in the medical notes showing that the Deceased was able to communicate his wishes to a doctor and a medical social worker that (i) he wanted the Plaintiff (rather than the Defendant) to handle his personal affairs and (ii) he wanted to live with the Plaintiff: see paragraphs 26 and 28 above and 122 and 123 below; and

(3) the opinion of Dr Yu and Dr Choi: see paragraphs 87 to 95 above.

104.  In the premises, I have no reason to suppose that the Deceased was incapable of making testamentary decision or that he was incapable of knowing and appreciating: (i) the nature and effects of making the 2015 Will and the 2014 Will; (ii) the extent of his properties; and (iii) the claims to which he/she ought to give effect under the 2015 Will and the 2014 Will. In this connection, as pointed out by Mr Tony Ko (for the Plaintiff), the Deceased’s major assets consisted of (i) the Matrimonial Home and (ii) the 3 Mainland Properties[49]. As Mr Arthur Poon (for the Defendant) fairly accepted, the Deceased (who lived in the Matrimonial Home together with the Plaintiff and the Two Children at the time when the 2015 Will was made) could not have failed to appreciate that he owned the Matrimonial Home. As regards the 3 Mainland Properties, there is a contemporaneous WhatsApp message from the Defendant to the Plaintiff on 5 October 2015 showing that there was a default in respect of the mortgage loan over 1 of the 3 Mainland Properties[50], and it was the Plaintiff’s evidence that she and the Deceased decided that the 3 Mainland Properties should be sold[51]. As will be elaborated below (see paragraph 133), I accept the Plaintiff’s evidence. In my view, at the time when the Deceased executed the 2015 Will on 28 October 2015, he could not have overlooked or forgotten the fact that he was an owner and/or a co-owner of the 3 Mainland Properties. This suggestion sounds utterly unreal to me.

105.  For completeness, it should be pointed out that there is no evidence showing that the Deceased suffered from any mental condition (such as delirium) on the occasion of 28 October 2015 (where the 2015 Will was executed) and the occasion of 23 July 2014 (where the 2014 Will was executed).

Sum Up

106.  To sum up: -

(1) I accept that as reflected by the results of the MMSEs, the Deceased suffered some “mild cognitive impairment”, and this was why he performed poorly in the “serial 7 tests” under the MMSEs.

(2) Nonetheless, as fairly accepted by Dr Choi (who was engaged by the Defendant), “people having mild cognitive impairment are able to make most of their personal decisions”, and they are still capable of satisfying the 3 criteria under Banks v Goodfellow[52].

(3) Dr Choi’s opinion is consistent with Dr Yu’s conclusion that the Deceased did have the testamentary capacity to make the 2015 Will (which I accept).

(4) Dr Choi’s opinion is also consistent with the factual evidence, which shows that the Deceased was capable of having normal interaction with others and expressing his wishes.

(5) In the premises, I do not believe that the Deceased was incapable of making personal decisions, including testamentary decisions.

(6) Indeed, it is the Defendant’s own case that the Deceased was capable of making the testamentary decisions under the 2014 Will. In this connection, both Dr Choi and Dr Yu opined that “there was no significant interval deterioration of [the Deceased’s] cognitive function” between the time when the 2014 Will was made and the time when the 2015 Will was made[53]. As such, there is plainly no room for the Defendant to contend that the Deceased (who had the requisite mental capacity to make the 2014 Will) somehow did not have the requisite mental capacity to make the 2015 Will. With no disrespect, the Defendant’s stance is simply opportunistic and disingenuous.

(7) It is also important not to lose sight of the fact that the contents of the 2015 Will are simple and straightforward[54]. In light of the opinion expressed by the 2 experts and the factual evidence before the court, I am not of the view that the Deceased was mentally or cognitively incapable of understanding the contents and nature of the 2015 Will.

(8) Accordingly, I find that the Deceased was capable of knowing and appreciating, and that he did know and appreciate: (i) the nature and effects of making the 2015 Will; (ii) the extent of his properties being disposed of; and (iii) the claims to which he/she ought to give effect under the 2015 Will.

(9) I also find that the Deceased possessed the requisite testamentary capacity at the time when the 2015 Will was executed (as well as the time when the 2014 Will was executed).

E2. The Knowledge and Approval on the part of the Deceased

107.  Having considered the inherent probabilities, the apparent logic of events, the contemporaneous documents, the parties’ objective conduct, the evidence of the witnesses, and counsel’s submissions, I find that: -

(1) Prior to 27 July 2015 and/or the 5 August 2015 Incident: -

(a) There was a severe tension in the relationship between the Deceased and the Plaintiff, and the Deceased did not trust the Plaintiff. Their poor relationship at the time was ascribed to various reasons, including (i) the Deceased’s view that the Plaintiff was responsible for the 2012 Incident; (ii) the Deceased’s skepticism as to whether the Plaintiff wished to continue their marriage; (iii) the Deceased’s declining health and his view that the Plaintiff did not take good care of him; and (iv) lack of good communication.

(b) The Deceased trusted the Defendant, instead of the Plaintiff. This was why he bequeathed the Matrimonial Home (which was his major asset) in favour of the Defendant under his 2014 Will.

(2) However, the dynamic in respect of the Deceased’s relationship with the Plaintiff and the Deceased’s relationship with the Defendant had changed drastically after 27 July 2015 and/or the 5 August 2015 Incident. The Plaintiff had, by action, demonstrated that she unconditionally loved the Deceased and that she would wholeheartedly take care of the Deceased, despite all the adversities that she faced. This was why the views of the Deceased had changed, and he had completely reconciled with the Plaintiff. In the circumstances, he trusted the Plaintiff again. Meanwhile, as the Deceased’s relationship with the Plaintiff became more and more intimate, the Deceased’s relationship with the Defendant became more and more distant. The Deceased obviously preferred the Plaintiff to the Defendant.

108.  I make the aforesaid findings for the following reasons.

109.  In his opening submissions, Mr Arthur Poon (for the Defendant) asked the following rhetoric question: having decided to bequeath the Matrimonial Home (which was his major asset) in favour of the Defendant under his 2014 Will executed on 23 July 2014, why would the Deceased change his mind shortly afterwards under the 2015 Will, which was executed on 28 October 2015?

110.  In gist, the response of Mr Tony Ko, together with Ms Winnie Li, (for the Plaintiff) was that whilst the 2014 Will was executed at a time when the Deceased and the Plaintiff had a poor relationship, the 2015 Will was executed at a time when the couple had completely reconciled.

111.  I fully accept Mr Ko and Ms Li’s submissions.

112.  The Plaintiff did not shy away from admitting the facts that prior to July or August 2015, her relationship with the Deceased was poor and that there were various misunderstandings. In her witness statement, the Plaintiff, in detail, mentioned about the Deceased’s displeasure about the 2012 Incident and how their relationship had gone downhill[55]. The Plaintiff’s assertions in her witness statement are consistent with what she said to the Defendant in a WhatsApp message dated 1 August 2015 (at 10:00am)[56]. There, the Plaintiff mentioned that before the 2012 Incident, she had a good relationship with the Deceased; however, since the 2012 Incident, the Deceased’s personality had changed, and he no longer trusted her.

113.  In light of the Plaintiff’s admissions, I accept that throughout 2014, her relationship with the Deceased was poor, and it was understandable why the Deceased would prefer to bequeath his major asset (ie the Matrimonial Home) in favour of the Defendant under his 2014 Will. It does not appear that at the time when the 2014 Will was executed, the Deceased trusted the Plaintiff and took a favourable view of her.

114.  Be that as it may, I have no doubt that the Plaintiff was all along deeply in love with and emotionally attached to the Deceased. The Plaintiff had never abandoned the marriage, and she did what she could have done to salvage the marriage. What the Plaintiff told the court in this regard is supported by the contemporaneous documents and records: -

(1) There is a certificate issued by Caritas Dr & Mrs Olinto de Sousa Integrated Family Service Centre showing that the Plaintiff sought professional counselling services. This is an indication that the Plaintiff was eager to salvage her marriage with the Deceased.

(2) More importantly, the communication between the Plaintiff and the Deceased’s brother shows that the Plaintiff was not prepared to abandon the Deceased at all. In short, as evidenced by the contemporaneous WhatsApp messages[57], on 30 June 2015, the Deceased’s brother invited the Plaintiff to consider divorcing the Deceased, and they had a telephone conversation. The Plaintiff’s initial response was equivocal. It appears that this was because she was confused at the time[58]. Be that as it may, subsequently, on 5 July 2015, the Plaintiff issued a text message (at 11:31am)[59] indicating that she would not consider divorcing the Deceased in the meantime, and irrespective of whether the Deceased was receptive, her wish was to support the Deceased and to take care of him. The Plaintiff further indicated that she hoped that the Deceased’s brother could understand. This appears to be a courteous indication that the Plaintiff would not accept the proposal of the Deceased’s brother that she and the Deceased should divorce.

(3) The aforesaid stance of the Plaintiff is consistent with the contents of the Plaintiff’s WhatsApp message to the Defendant on 1 August 2015 at 11:10am[60]. There, the Plaintiff made it clear to the Defendant that (i) she never thought about divorcing the Deceased; (ii) she would not mind even if the Deceased were indebted[61]; and (iii) she and the Deceased could start afresh, and she would take care of the Deceased.

115.  In the circumstances, it appears to me that the Plaintiff’s evidence regarding the events that took place in the evening on 26 July 2015 was credible. There was every reason why the Plaintiff would wish to have some “heart-to-heart” communication with the Deceased to sort out their misunderstandings. Indeed, in her WhatsApp message to the Defendant on 1 August 2015 (at 10:54am)[62], the Plaintiff mentioned that she had already communicated with the Deceased before the Defendant took him away, and it could not be the case that the Deceased did not want to return to the Matrimonial Home. It is obvious that the “heart-to-heart” communication on 26 July 2015 was not an afterthought, and the existence thereof is corroborated by the contemporaneous WhatsApp records. I fully accept the Plaintiff’s case and evidence in this regard.

116.  Based on the objective circumstances and the contemporaneous documents, it also appears to me that the Plaintiff’s evidence regarding the 5 August 2015 Incident was credible and reliable. In this connection, I have no doubt that the Plaintiff was worried about the Deceased as his whereabouts had been unknown to her. As demonstrated by the WhatsApp messages exchanged between the Plaintiff and the Defendant[63], the Plaintiff was desperate at the time, and she repeatedly urged the Defendant to disclose the whereabouts of the Deceased, but of no avail. As evidenced by the letter from the Police dated 6 July 2023[64], the Plaintiff was so desperate that she eventually requested the Police to intervene.

117.  When the Plaintiff was cross-examined by Mr Poon, she, in tears, mentioned how desperate she was. She even tried her luck by attempting to locate the Deceased in most elderly homes in Shatin and some elderly homes in Sham Shui Po. The Plaintiff’s evidence in this regard was not seriously challenged. I have no doubt that the Plaintiff was deeply concerned about the well-being of the Deceased.

118.  Insofar as there is any inconsistency between the Plaintiff’s evidence and the Defendant’s evidence in regard to the 5 August 2015 Incident, I prefer the Plaintiff’s evidence to the Defendant’s evidence: -

(1) I do not believe that on 5 August 2015, the Defendant coincidentally attended the Kennedy Town Elderly Home to visit the Deceased and thus “bumped into” the Plaintiff. This was too much a sheer co-incidence. In light of the events that had taken place since 27 July 2015, it appears to me that it was more likely than not that the Defendant, on purpose, attended the Kennedy Town Elderly Home upon the request of the staff there. This was because the Deceased requested to be discharged. In this connection, when the Defendant gave oral evidence[65], she said that she could not recall whether she was asked by the staff to attend Kennedy Town Elderly Home. It appears to me that the Defendant was simply being evasive.

(2) I do not believe that the Plaintiff managed to locate the Deceased through an alleged GPS function on his phone. Had this been the case, the Plaintiff would not have needed to (i) send lengthy WhatsApp messages to the Defendant urging her to disclose the Deceased’s whereabouts and (ii) request the Police to intervene.

119.  In my view, it was explicable as to why the Deceased became very emotional when he saw the Plaintiff at the Kennedy Town Elderly Home on 5 August 2015: see paragraph 24 above. In this regard, I accept the account of events provided by the Plaintiff. It is important not to lose sight of the fact that the Deceased lived in the Tai Po Elderly Home previously, and due to his inability to adapt and/or failure to get along with other residents, he soon decided to leave. It is perfectly understandable why a person, who is struggling with health issues, does not prefer to live in an elderly home together with strangers, and prefers to be taken care of by a member of his family at home. I do understand why the Deceased was touched when the Plaintiff overcame all the difficulties and managed to locate him.

120.  In any event, even on the account of events provided by the Defendant, she admitted that on 5 August 2015, the Deceased, in tears, indicated that he would like to return to the Matrimonial Home to live with the Plaintiff[66]. In the words of the Defendant, she “left in disbelief”[67].

121.  It appears to me that there was nothing “unbelievable” about the Deceased’s stance, and the Deceased’s emotion was perfectly explicable[68]. In my view, the Defendant simply refused to accept the facts that (i) the Deceased had reconciled with (or begun to reconcile with) the Plaintiff and (ii) in light of his experience at the Tai Po Elderly Home and the Kennedy Town Elderly Home, the Deceased preferred to live with his family at home and be taken care of by a member of his family.

122.  It cannot be disputed that the Plaintiff wholeheartedly and dedicatedly took care of the Deceased after the 2015 Incident, and their relationship had drastically improved. In this regard, the Plaintiff’s case is supported by a series of contemporaneous medical records: -

(1) As evidenced by the contemporaneous notes of Ms Luk Kit-yee, Alice (who was a medical social worker) dated 21 August 2015[69], she had a discussion with the Deceased and the Plaintiff, and the Deceased indicated that:-

“he wanted his wife [ie the Plaintiff] to handle his affairs instead of his Eldest Daughter [ie the Defendant]. Yet he welcomed his daughter [ie the Defendant] to visit him if she wanted.”[70] (emphasis added)

(2) As stated in the discharge summary signed by a doctor dated 31 August 2015[71], he interviewed the Plaintiff, and he jotted down the following: -

“Previous breakdown of relationship between the patient [ie the Deceased] and his wife [ie the Plaintiff] due to [a] burning incident in 2011, now relationship improved, and patient [ie the Deceased [wants to go back home and continue to live with her [ie the Plaintiff].”[72] (emphasis added)

It is obvious that what the Plaintiff said to the doctor was consistent with her case and evidence in these proceedings.

(3) According to the contemporaneous notes jotted by Dr Ding Qi of the Hospital Authority on 27 August 2015: -

“[Patient, ie the Deceased]’s mood [is] stable. [He] claims his relationship with wife [ie the Plaintiff] improved. [He] wants to go home with her.”[73] (emphasis added)

(4) According to the contemporaneous notes jotted by Dr Ding Qi of the Hospital Authority on 31 August 2015: -

“[Patient, ie the Deceased] wants to go home with current wife [ie the Plaintiff]. Mood stable”[74] (emphasis added)

(5) According to discharge summary issued by Shatin Hospital on 29 October 2015[75], the Deceased was admitted to hospital due to “non-compliance with medications, leading to increase hand tremor and [general conditions]”, and “Patient’s wife [ie the Plaintiff] is very keen to arrange clinical admission for medication titration & reinforce drug compliance in hospital”. This shows that the Plaintiff had taken care of the Deceased, and she was keen to ensure that the Deceased received proper medical treatment.

123.  Mr Arthur Poon reminded me to exercise caution in placing weight on the aforesaid contemporaneous medical records. This was fair enough. However, I am unable to agree with Mr Poon that these contemporaneous medical records merely contained self-serving declarations made by the Plaintiff. Apparently, this was not the case. The aforesaid contemporaneous medical records were not even generated for the purpose of this litigation. In my view, they show how the doctors and the social worker assessed the situation of the Deceased. I do not believe that the doctors and the social worker would turn a blind eye to the wishes of the Deceased. As evidenced by the contents of the aforesaid contemporaneous medical records, the wishes came from the Deceased and were expressed by the Deceased himself. For instance, the contemporaneous notes of the medical social worker (ie Ms Luk Kit-yee, Alice) dated 21 August 2015[76] show that the Deceased “wanted his wife [ie the Plaintiff] to handle his affairs instead of his Eldest Daughter [ie the Defendant]”. Further, the contemporaneous notes jotted by Dr Ding Qi on 27 August 2015[77] show that the Deceased “claims his relationship with wife [ie the Plaintiff] improved” and that he “wants to go home with her.”

124.  Indeed, the contents of the aforesaid contemporaneous medical records are consistent with: -

(1) the Plaintiff’s stance indicated in her communication with the Deceased’s brother and the Defendant via WhatsApp: see paragraphs 114(2)-(3) above; as well as

(2) the Plaintiff’s action and conduct in relation to the 5 August 2015 Incident, which amply demonstrated her love for the Deceased as well as her commitment to the Deceased.

125.  Having said that (i) the Plaintiff and the Deceased had reconciled and sorted out their misunderstandings and (ii) the Plaintiff had, after the 5 August 2015 Incident, wholeheartedly and dedicatedly taken care of the Deceased, I have every reason to believe that the Plaintiff had regained the trust of the Deceased. Even though the Deceased previously took the view that the Plaintiff was not trustworthy and reliable, the Plaintiff must have redeemed herself.

126.  In contrast, there is evidence showing that the Deceased’s relationship with the Defendant had deteriorated significantly after the 5 August 2015 Incident, and the Deceased no longer trusted the Defendant as she faded out of his life: -

(1) As mentioned, the contemporaneous medical notes jotted by the medical social worker (ie Ms Luk Kit-yee, Alice) on 21 August 2015[78] show that the Deceased “wanted his wife [ie the Plaintiff] to handle his affairs instead of his Eldest Daughter [ie the Defendant]” (emphasis added).

(2) The Defendant admitted that she had not seen the Deceased after the occasion of 7 August 2015[79].

(3) Whilst the Defendant accused the Plaintiff of stonewalling her from the Deceased’s life, this line of accusations would not avail her case at all. Regardless of whether the Plaintiff should be blamed for the deterioration of the relationship between the Defendant and the Deceased, the undisputed fact was that the Defendant did not spend time with the Deceased when he was fragile and thus most in need of support and care. It is understandable why the Deceased’s opinion about the Defendant had changed.

(4) In this connection, I am skeptical about the Defendant’s assertion that she had not been able to get in touch with the Deceased: -

(a) It is not in dispute that the Defendant knew that the Deceased lived together with the Plaintiff at the Matrimonial Home. As such, the Defendant could have approached the Deceased at the Matrimonial Home. I am skeptical about the Defendant’s assertion that she attended the Matrimonial Home for numerous times, but no one answered the door on each occasion. It does not appear to me that the Defendant’s assertion was inherently probable. Further, if what the Defendant asserted were true, what she should have done was to send WhatsApp messages to the Plaintiff to ascertain the whereabouts of the Deceased and to seek assurance that the Deceased was fine. This was exactly what the Plaintiff did when the Defendant took away the Deceased on 27 July 2015 without informing her in advance. For reasons best known to the Defendant, she did not send any WhatsApp message to the Plaintiff to ascertain the whereabouts of the Deceased and to ensure that the Deceased was fine. The Defendant only sent a WhatsApp message to the Plaintiff on 27 November 2016 asking about the Deceased’s condition[80]. By this time, the Deceased had passed away already.

(b) Further, as demonstrated by Mr Tony Ko, on 9 April 2015 (at 7:35), the Deceased sent a WhatsApp message to the Defendant[81], but the Defendant did not respond to the Deceased at all. As evidenced by the communication between the Defendant and the Deceased’s brother on WhatsApp: see WhatsApp messages on 22 June 2015[82], it appears that as of June 2015, the Deceased was still contactable by phone, and the Deceased’s brother was invited by the Defendant to call the Deceased via a mobile phone number. The contemporaneous records contradict the Defendant’s evidence that the Deceased had not been able to use his mobile device for communication since around April 2015[83]. The Defendant was unable to provide a meaningful explanation when she was cross-examined by Mr Ko.

(c) Eventually, in her oral evidence[84], the Defendant admitted that in light of the hostility between herself and the Plaintiff, she did not want to be too involved in the daily affairs of the Deceased. Bearing in mind that she had already made a big fuss on a previous occasion (搞咗場大龍鳳)[85], she wished to take a step back, such that the Deceased could enjoy tranquility. This was why she did not insist on meeting the Deceased, who was often accompanied by the Plaintiff.

127.  In the premises, it appears to me that the truth was that whilst the Defendant was occupied by matters regarding her own life and career, she was also wary of her poor relationship with the Plaintiff (who took up the responsibility of taking care of the Deceased). In the circumstances, the Defendant did not take an active role in the Deceased’s affairs, and she did not pay close attention to the matters of the Deceased. Whilst it may be unfair to suggest the Defendant had utterly ignored the Deceased, it is hardly disputable that the Defendant accepted that the Plaintiff would shoulder the responsibility of taking care of the Deceased. As such, the Defendant’s involvement in the Deceased’s life and personal affairs had faded out.

128.  In the premises, I cannot agree with Mr Arthur Poon’s suggestion that the Deceased could not have decided to change his testamentary wish, and could not have known and approved the contents of the 2015 Will. This suggestion is unreal.

129.  In light of the circumstances canvassed hereinabove, I am of the view that there was every reason why the Deceased would change his testamentary wish. The evidence, including the contemporaneous medical records, shows that after the 5 August 2015 Incident, the Plaintiff (rather than the Defendant) was the person whom the Deceased trusted most. Bearing in mind that (i) the Plaintiff wholeheartedly and dedicatedly took care of the Deceased and (ii) the Defendant faded out of the Deceased’s life, it was perfectly explicable as to why the Deceased would execute the 2015 Will and decide to entrust his estate with the Plaintiff. The inherent probability and the objective circumstances lie overwhelmingly in favour of the Plaintiff’s case.

130.  In his submissions, Mr Poon emphasized that the Plaintiff had always been an unsophisticated person who was not well-educated and not experienced in dealing with financial matters. Mr Poon further stressed that these facts had never changed. Mr Poon then went on to contend that it was unlikely that the Deceased would change his testamentary wish.

131.  Again, Mr Poon’s submission is unreal. The Deceased was not a CEO of a conglomerate who decided which fund manager should be engaged to invest the conglomerate’s assets. Instead, the Deceased was a patient who was most in need of love, care, and attention. In my view, it was perfectly explicable as to why in light of the development after the 5 August 2015 Incident, the Deceased would take the view that the Plaintiff, who wholeheartedly supported him, was the more deserving and reliable candidate to be appointed to deal with and receive the assets of his estate.

132.  Insofar as the explicability of the 2015 Will is concerned, I also have the following observations: -

(1) Mr Poon fairly accepted that the Deceased never intended to (i) disown the Two Children (who were respectively around 11 years old and 9 years old as of 2015) and/or (ii) expel them from the Matrimonial Home.

(2) Nonetheless, under the 2014 Will, the Matrimonial Home would be bequeathed to the Defendant. In other words, under the arrangement of the 2014 Will, the Two Children might only stay in the Matrimonial Home (which was their residence all along) at the mercy of the Defendant (who was their half-sister).

(3) The Deceased appeared to take the view that although the Matrimonial Home was the residence of the Plaintiff and she was the mother of the Two Children, the Defendant was the more trustworthy and reliable person to be entrusted to hold the interest in the Matrimonial Home. This was an extreme view to take. On the evidence before the court, it appears that the Deceased took this extreme view because he previously believed that there was a possibility of divorce and that the Plaintiff did not take good care of him after the 2012 Incident.

(4) In paragraph 33 of her witness statement, the Defendant asserted that the Deceased decided to bequeath the Matrimonial Home to her under the 2014 Will to improve her livelihood and to make up for what he did to Madam Leung (ie the Defendant’s mother)[86]. However, when the Defendant gave oral evidence[87], she disowned these assertions. The Defendant made it abundantly clear that based on the wish of the Deceased, her role was akin to a trustee or an administrator. Unless the Plaintiff remarries, she should be allowed to live in the Matrimonial Home. As regards the Two Children, they should be allowed to live in the Matrimonial Home (at least) until the time when they become fully independent[88].

(5) I can understand why the Deceased entrusted the Defendant to hold the Matrimonial Home at a time when he distrusted the Plaintiff and envisaged the possibility of divorce. However, for the reasons canvassed hereinabove, the circumstances had changed. Not only did the Plaintiff and the Deceased reconcile and sort out their misunderstandings, but the Plaintiff also wholeheartedly took care of the Deceased at times when he was most in need of love, care, and attention. There was every reason why the Deceased would take the view that the Plaintiff had redeemed herself and that the Plaintiff could be entrusted to hold the interest in the Matrimonial Home. After all, this was the most natural arrangement. The Plaintiff is the mother of the Two Children, who, as the Defendant accepted, should not be expelled from the Matrimonial Home according to the Deceased’s wish.

(6) For completeness, it should also be mentioned that at the time when 2014 Will was executed on 23 July 2014, the Deceased had not yet funded the Defendant to purchase the Kingswood Villas Property[89]. In other words, at the time when the 2015 Will was executed on 28 October 2015, the Defendant had already, with the Deceased’s financial assistance, become a property owner. When the Defendant gave oral evidence, she said that whilst she was initially reluctant to accept the Deceased’s gift, she appreciated the Deceased’s goodwill, and the Deceased’s intention was that she, being a property-owner, would grow up as a person. Put simply, the Deceased intended that the Defendant should become the real owner of the Kingswood Villas Property, and insofar as this property was concerned, the Defendant’s role was not merely a trustee or an administrator. In my view, this matter must have a bearing on the Deceased’s decision. There is every reason to believe that as the Deceased had already provided a substantial gift for the Defendant, it was no longer necessary to name the Defendant as a beneficiary under the 2015 Will. This is understandable and explicable.

133.  For completeness, I should also mention that: -

(1) It is the Defendant’s case that the Deceased’s wish was such that the 3 Mainland Properties should never be sold, and that they should be managed by her. However, under the power of attorney prepared by TKC, the Plaintiff managed to sell the 3 Mainland Properties. The Defendant doubted whether the Deceased genuinely consented to the sales, and, in this regard, the Plaintiff was extensively cross-examined by Mr Poon.

(2) In gist, the Plaintiff provided two explanations as to why she and the Deceased jointly decided that the 3 Mainland Properties should be sold:

(a) First of all, 1 of the 3 Mainland Properties was subject to an outstanding mortgage loan and could be foreclosed. The couple was not in a good financial situation. Thus, it was necessary to sell the 3 Mainland Properties.

(b) Second, she sought legal advice and was told that if the 3 Mainland Properties were only sold after the Deceased’s demise, the legal procedure in the Mainland would be cumbersome.

(3) It appears to me that the Plaintiff’s explanations are convincing. I accept her explanations. I am of the view that it was understandable and explicable as to why the Deceased would agree that the 3 Mainland Properties be sold.

(4) Insofar as the first explanation is concerned: -

(a) It is not in dispute that there was a default in respect of the mortgage loan over 1 of the 3 Mainland Properties, though the amount of the outstanding indebtedness is subject to dispute.

(b) The evidence does not show that the Deceased and the Plaintiff had retained a substantial amount of cash for defraying their expenses: -

(i) According to paragraphs 55 and 56 of the Plaintiff’s witness statement, as of October 2015, the Deceased only had a sum of HK$200,000 in 1 of his bank accounts.

(ii) According to the schedule of assets and liabilities in respect of the grant of probate in favour of the Defendant based on the 2014 Will[90], there was only an aggregate sum not exceeding HK$20,000[91] in the Deceased’s bank accounts maintained with Bank of China, HSBC, and Standard Chartered Bank.

(iii) When the Defendant gave oral evidence[92], she, at one stage, suggested that back in August or September 2014, she understood from the Deceased that his money would be exhausted within 12 months. Although the Defendant subsequently sought to retract her evidence by suggesting that she did not fully understand what the Deceased said, the Defendant’s initial admission seemed to be consistent with the Deceased’s WhatsApp message dated 10 September 2014 (at 19:41)[93].

(iv) The contemporaneous documents[94] show that the monies that the Deceased provided for his family were so insufficient that during the periods from 29 July 2014 to 30 December 2014 and 6 January 2015 to 31 March 2015, the Plaintiff had to seek assistance from a “food bank” operated by an NGO, such that she and the Two Children would not be starved. It has not been suggested that the Deceased would seek to abuse and/or mistreat the Plaintiff and the Two Children deliberately.

(c) The court is not provided with the contemporaneous bank statements in respect of the Deceased’s bank accounts. However, in light of the circumstances canvassed hereinabove, there are reasons to believe that even though the Deceased might not be in extreme financial difficulty, he could still be concerned about his financial situation.

(d) In my view, it was, to say the least, explicable and understandable as to why the Deceased and the Plaintiff would jointly decide that the 3 Mainland Properties be sold. I am not of the view that this decision was inexplicable and/or suspicious.

(5) The second explanation also seems credible to me. It is uncertain as to whether the power of attorney in favour of the Plaintiff would still be effective after the Deceased’s demise. If the 3 Mainland Properties were only sold after the Deceased’s demise, it would be necessary to go through a series of legal procedures to effectuate a change of registered ownership before any sale could take place. Obviously, this would be cumbersome. In my view, it was not surprising that the Plaintiff would receive advice along the aforesaid line.

(6) To sum up, even if the Deceased, at one stage, took the view that the 3 Mainland Properties should not be sold and that they should be managed by the Defendant, in light of the subsequent development, there were reasons why he would change his mind. I am unable to conclude that there were any inexplicable and/or suspicious circumstances surrounding the affairs relating to the 3 Mainland Properties.

134.  For all the above reasons, I find that: -

(1) It is perfectly understandable and explicable as to why the Deceased would wish to make the 2015 Will to supersede the 2014 Will.

(2) The contents of the 2015 Will are perfectly explicable.

(3) The contents of the 2015 Will are perfectly consistent with the objective circumstances of the present case.

(4) The objective circumstances and inherent probability lie overwhelmingly in favour of propounding the validity of the 2015 Will.

135.  I now address the evidence in regard to the execution of the 2015 Will.

136.  Mr Eddie Chui’s evidence regarding the events that took place on 28 October 2015 is set out in paragraphs 39 and 100 hereinabove, and will not be repeated here.

137.  However, I shall repeat that Mr Eddie Chui was a credible witness and a disinterested professional. He was wholly unshaken when Mr Poon cross-examined him. I fully accept Mr Chui’s evidence. I do not believe that there were reasons why Mr Chui would (i) depart from his usual practice[95]; (ii) fail or refuse to explain the contents of the 2015 Will to the Deceased in accordance with his usual practice; and/or (iii) fail or refuse to verify whether the Deceased knew and approved the contents of the 2015 Will in accordance with his usual practice.

138.  I am satisfied, and I find, that: -

(1) On the occasion of 28 October 2015, Mr Eddie Chui had satisfied himself that the Deceased was of sound mind and able to communicate with him in a meaningful manner.

(2) To this end, the Deceased was able to correctly answer Mr Eddie Chui’s questions regarding his name, the names of the beneficiaries, and his relationship with them.

(3) In the circumstances, Mr Eddie Chui proceeded to explain the contents of the 2015 Will to the Deceased.

(4) Whilst the Deceased indicated that he agreed to the contents of the 2015 Will, he also indicated that he agreed that his previous 2014 Will should be revoked.

(5) Thus, the Deceased executed the 2015 Will, and the process was witnessed by Mr Eddie Chui and Ms Man.

139.  In light of Ms Man’s contemporaneous notes in the Preliminary Instruction Form[96], I am also satisfied, and I also find, that: -

(1) On the occasion of 15 October 2015, Ms Man did ascertain the Deceased’s testamentary wish, and the Deceased did indicate to Ms Man that he agreed to bequeath all his assets to the Plaintiff and the Two Children in equal shares.

(2) In light of the Deceased’s unequivocal indication, Ms Man jotted down the Deceased’s instruction in the Preliminary Instruction Form[97].

140.  For completeness, I should mention that the fact that the Deceased was able to express his wishes and to communicate with others is corroborated by (i) the abovementioned contemporaneous medical records and (ii) the Defendant’s own admissions. In this connection: -

(1) As pointed out in paragraph 103 above, the contemporaneous medical records on 27 August 2015[98] show that the Deceased’s (i) “speech [was] a bit slurred but comprehensible”; (ii) “speech was coherent and relevant”; and (ii) “eye contact was good”.

(2) As discussed in paragraph 122 above, the contemporaneous medical records show that the Deceased was capable of expressing his wishes that he wanted the Plaintiff (not the Defendant) to handle his personal affairs and that he wanted to go home with the Plaintiff. It was obvious that the doctors and the medical social worker did not have difficulty in understanding the Deceased. Otherwise, the contemporaneous medical records would have contained a caveat. This was not the case.

(3) As discussed in paragraphs 120 to 121 above, even the Defendant admitted that during the 5 August 2015 Incident, the Deceased indicated that he wished to return to the Matrimonial Home together with the Plaintiff. Whilst the Defendant asserted that this seemed unbelievable to her, she obviously had no difficulty in understanding the Deceased’s wish and indication.

141.  Having considered all the circumstances into account, I am satisfied, and I find, that: -

(1) The Deceased was able to communicate with others and to indicate his wishes; and

(2) The persons who communicate with the Deceased should have no difficulty in understanding the wishes of the Deceased.

142.  I am also satisfied, and I also find, that: -

(1) The contents of the 2015 Will were duly explained to the Deceased by Mr Eddie Chui;

(2) The Deceased indicated to Mr Eddie Chui that he agreed to the contents of the 2015 Will; and

(3) This is the “most satisfactory” way to establish knowledge and approval on the part of the Deceased: see Li Wai Chu v Li Wai Ling (supra) at para 129.

143.  For all the above reasons canvassed hereinabove, I find and conclude that the Deceased did know and approve the contents and effect of the 2015 Will, and there were no suspicious circumstances surrounding this document.

144.  I also find and conclude that the 2015 Will was duly executed.

E2. Alleged Undue Influence

145.  It cannot be said that whenever a patient relies on a caregiver, the patient’s testamentary decision in favour of the caregiver must be ascribed to the latter’s undue influence. It depends on the circumstances. The underlying question is whether there was coercion or fraud exerted by the caregiver. In the present context, coercion is pressure that overpowers the volition without convincing the testator’s judgment. This is distinguished from mere persuasion, appeals to ties of affection, or pity for future destitution, all of which are legitimate. See Wong Tug Wai v Wong Tung Po (supra) at paras 25 to 30; and Walker v Walker (supra) at para 221.

146.  Having considered the inherent probabilities, the apparent logic of events, the contemporaneous documents, the parties’ objective conduct, the evidence of the witnesses, and counsel’s submissions, I reject the Defendant’s contention that the 2015 Will is liable to be set aside by reason of the alleged undue influence exerted by the Plaintiff. I also reject the suggestion that the Deceased did not voluntarily execute the 2015 Will.

147.  I make these findings for the following reasons.

148.  First of all, insofar as the objective circumstances are concerned: -

(1) I repeat the matters canvassed in paragraphs 107 to 134 hereinabove.

(2) The evidence before the court shows that: -

(a) The Plaintiff was deeply in love with the Deceased. She repeatedly indicated to the Deceased (as well as the Defendant and the Deceased’s brother) that she did not wish to divorce him. Indeed, when the Defendant said to the Plaintiff that the Deceased was in debt[99], the Plaintiff indicated that she did not mind, and she would still take care of the Deceased[100].

(b) In light of her love and commitment, the Plaintiff did wholeheartedly and unconditionally take care of the Deceased. In the circumstances, as evidenced by the contemporaneous medical records[101], the Plaintiff had replaced the Defendant as the person whom the Deceased trusted most. Whilst the Deceased wanted the Plaintiff, instead of the Defendant, to handle his affairs[102], he also wanted to return to the Matrimonial Home to live with the Plaintiff[103].

(c) There is no question that the Plaintiff and the Deceased had completely reconciled. The Deceased wanted to live with the Plaintiff and to be taken care of by her. The couple had resolved their misunderstandings and were adamant that they would not divorce.

(3) In the premises, there was every reason why the Deceased would, in exercise of his free will, take the view that the Plaintiff was the most deserving candidate to be entrusted to receive and deal with the assets under his estate (a major part of which was the Matrimonial Home).

(4) As explained in paragraph 132 above, bearing in mind that (i) the Deceased had already advanced a substantial gift in favour of the Defendant (ie the down payment for acquiring the Kingswood Villas Property) and (ii) the Plaintiff is the mother of the Two Children, who should be allowed to continue to live in the Matrimonial Home, the Deceased’s testamentary decision under the 2015 Will made ample sense.

(5) In my view, the objective circumstances simply do not show that the Deceased had been coerced into making the 2015 Will or that the Deceased’s judgment had been overpowered.

149.  Second, there is no direct evidence showing that the Deceased was coerced or pressurized to make the 2015 Will, and it appears to me that the direct evidence shows the contrary. In this connection: -

(1) The Plaintiff admitted that she discovered the existence of the 2014 Will from the records of the Deceased’s WhatsApp communication with the Defendant. Understandably, the Plaintiff was upset[104], and she was worried that she and her Two Children would not have a place to live in the future. Thus, the Plaintiff confronted the Deceased, whose immediate response was to wave his hand to indicate denial. It appears to me that the Deceased simply felt embarrassed and did not know how to respond meaningfully.

(2) According to the Plaintiff, although she was upset, she did not keep confronting the Deceased about the 2014 Will; nor did she berate the Deceased. I accept the Plaintiff’s evidence in this regard. I accept the Plaintiff’s explanation that she did not want the Deceased (who was fragile) to feel annoyed. Having said that the Plaintiff was deeply in love with the Deceased and genuinely concerned about his well-being, the Plaintiff’s explanation was believable. More importantly, the Deceased was simply willing to make a new will (which transpired to be the 2015 Will) to provide for the Plaintiff and the Two Children. In the circumstances, it was unnecessary for the Plaintiff to keep confronting the Deceased about the 2014 Will. The Plaintiff’s evidence makes sense to me. I am not of the view that the Plaintiff had exerted pressure on the Deceased.

(3) It was the Plaintiff’s evidence that as the Deceased wished to make a new will to supersede the 2014 Will, she looked for information from the internet, and TKC (which had a branch in Shatin) was located eventually.

(4) As mentioned above (see paragraph 42 above), it was Mr Eddie Chui’s evidence that on the occasion of 28 October 2015 (where the 2015 Will was executed), the Plaintiff was asked to leave the conference room, such that he and Ms Man could meet the Deceased individually.

(5) As explained by Mr Chui, he was aware that the Plaintiff is a beneficiary under the 2015 Will. Thus, in accordance with his usual practice, he had to interview the Deceased individually to avoid the risk of undue influence. It transpired that in the absence of the Plaintiff, Mr Chui managed to confirm with the Deceased that he consented to the contents of the 2015 Will and that his wish was to revoke the 2014 Will.

(6) Mr Eddie Chui was plainly a credible witness, whose answers were succinct yet firm. I have no reason to doubt his evidence; nor do I have any reason to believe that he would not follow his usual practice.

(7) In my view, had the Deceased been (i) unwilling to make the 2015 Will and/or (ii) coerced or pressurized by the Plaintiff, he would not have agreed to execute the 2015 Will in front of Mr Chui and Ms Man when the Plaintiff was not present.

(8) As discussed above and will be elaborated below, although the Deceased was physically weak, it was not the case that his mental condition was unsatisfactory, and he was certainly capable of communicating his wishes and decisions to others. I am not of the view that the testamentary wish under the 2015 Will was imposed on the Deceased at all. I am of the view that the Deceased agreed to the contents of the 2015 Will out of free will.

150.  Third, I now address the condition of the Deceased: -

(1) I accept that the Deceased was physically fragile. Due to Parkinson’s disease, the Deceased relied on others to take care of him. He was wheelchair-bound. He could not go to toilet by himself. He could not speak with a clear voice. With hand tremor, he had difficulty in writing.

(2) However, it does not necessarily follow that the Deceased was so mentally unfit that he was unable to exercise free will, and thus must be subject to abuse and domination by others.

(3) As pointed out in Section E1 (paragraphs 88 to 94 above), the parties’ psychiatric experts (ie Dr Yu and Dr Choi) opined that Deceased’s mental condition as of the time when the 2014 Will was executed (ie 23 July 2014) was the same as his mental condition as of the time when the 2015 Will was executed (ie 28 October 2015), and there was no significant deterioration. As mentioned, I accept Dr Yu and Dr Choi’s opinion.

(4) In the meantime, there is ample evidence showing that the Deceased was capable of expressing his wishes/decisions and the persons who interacted with him were able to understand the Deceased: -

(a) As discussed, the contemporaneous medical records[105] show that the doctors and the medical social worker had no difficulty in understanding that the Deceased’s wishes were to live with the Plaintiff and to allow the Plaintiff, instead of the Defendant, to handle his affairs. As evidenced by contemporaneous medical records on 27 August 2015[106], although the Deceased’s speech was “a bit slurred”, it was “comprehensible” as well as “coherent and relevant”. Further, the Deceased also had “good eye contact”.

(b) During the 5 August 2015 Incident, the Deceased indicated that he wished to return to the Matrimonial Home to live with the Plaintiff. Although the Defendant insisted that she “left in disbelief”[107], she apparently took the view that the Deceased’s wish was adequately expressed. Otherwise, she would not have allowed the Deceased to leave the Kennedy Town Elderly Home together with the Plaintiff.

(c) At the end of the 6 August 2015 Incident, the Police allowed the Deceased to leave together with Plaintiff. In my view, the Police must have been satisfied that the Deceased’s wish was to leave together with the Plaintiff. Bearing in mind the Defendant’s complaint at the time, the Police would not have allowed the Deceased to leave together with the Plaintiff had they been unable to ascertain the wish of the Deceased.

(5) In the premises, I am of the view that although the Deceased was physically weak, he was, at all material times (up to, at least, 28 October 2015), capable of expressing his wishes/decisions and his wishes/decisions were also capable of being understood by those who interacted with him. In my view, the Deceased’s mental condition was, to say the least, not so unsatisfactory that others could indoctrinate him and prevent him from exercising free will.

151.   Fourth: -

(1) Mr Arthur Poon reminded me that at the time when 2015 Will was executed (ie 28 October 2015), the Deceased was hospitalized, and the Deceased left Shatin Hospital for the purpose of attending TKC’s Shatin branch to execute the 2015 Will.

(2) I am not of the view that there were any suspicious circumstances.

(3) It is important to understand why the Deceased was arranged to stay in Shatin Hospital at the time: -

(a) As evidenced by the discharge summary issued by Shatin Hospital on 29 October 2015[108], the Deceased was admitted to Shatin Hospital because there was “non-compliance with medications, leading to increase hand tremor and [general conditions]”, and the Plaintiff was “very keen to arrange clinical admission for medication titration & reinforce drug compliance in hospital”.

(b) Hence, it was not the case that the Deceased was hospitalized because he was sick or he felt unwell. What happened was that the Plaintiff wanted to ensure “medication titration” and reinforce “drug compliance”.

(4) In the circumstances, it was hardly surprising that the Deceased was allowed to leave Shatin Hospital for the purpose of executing the 2015 Will. In this regard, it was the Plaintiff’s evidence that the doctor was told about this, and he had no objection. To this end, the Plaintiff was even provided with a document titled “病人出院護理摘要”, which shows that the Deceased was in a stable mood at the time.

(5) I fully accept the Plaintiff’s evidence. Had the Deceased’s condition been unsatisfactory, the doctors at Shatin Hospital would not have allowed him to leave at all.

152.  Fifth: -

(1) Mr Arthur Poon also reminded me that the execution of the 2015 Will was not witnessed by a doctor.

(2) I am not of the view that this was suspicious in the circumstances of the present case.

(3) According to Mr Eddie Chui, on the occasion of 28 October 2015, he had to satisfy himself that the testator (ie the Deceased) was a “normal person (正常人)”, and this was indeed the case.

(4) I fully accept Mr Chui’s suggestion, which was perfectly consistent with the objective circumstances and the undisputed evidence.

(5) As pointed out, the parties’ psychiatric experts (ie Dr Yu and Dr Choi) accepted that the Deceased’s mental condition at the time when the 2014 Will was executed was the same as his mental condition at the time when the 2015 Will was executed, and there was no significant deterioration.

(6) There is no suggestion that Mr Fung Jan of Tang & Associates[109] (who testified for the Defendant and who witnessed the Deceased’s execution of the 2014 Will) had discerned any “abnormality” about the Deceased.

(7) As such, like Mr Eddie Chui, Mr Fung Jan did not see the need to arrange a medical practitioner to verify the Deceased’s mental capacity and to witness his execution of the 2014 Will. This is consistent with the opinion expressed by Dr Yu and Dr Choi (which I accept).

(8) In the premises, despite the physical condition of the Deceased, the present case did not involve a scenario where a reasonable solicitor would have doubt about the Deceased’s mental condition, such that it would be necessary to engage medical practitioners to witness the execution. I am not of the view that there is room to criticize Mr Eddie Chui (as well as Mr Fung Jan).

153.  Sixth: -

(1) The Defendant pointed out that the Deceased executed the 2015 Will by stamping his chop and imprinting his left thumb print on the document, and he was assisted by Mr Chui and Ms Man.

(2) There was nothing suspicious.

(3) As evidenced by the contemporaneous medical records of the Shatin Hospital[110], the Deceased had been suffering from “hand tremor”.

(4) In this connection, when Mr Fung Jan testified, he observed that the Deceased’s signature on the 2014 Will was “shaky”[111]. This is consistent with the Deceased’s medical records.

(5) In the circumstances, it was perfectly understandable why the Deceased was asked to execute the 2015 Will by stamping his chop and imprinting his left thumb print. This could avoid suspicion that his signature was forged.

(6) It was also understandable why Mr Eddie Chui would assist the Deceased during the execution process. As explained by Mr Chui, based on his experience, if the testator were not guided, there was a chance that he would imprint his thumb print on an incorrect location. I accept Mr Chui’s explanations. Indeed, it has not been suggested that Mr Chui would coerce or coax the Deceased into executing the 2015 Will. This would constitute a grave misconduct, and was inherently improbable.

154.  For all the above reasons, I find and conclude that: -

(1) The contents of the 2015 Will make ample sense, and are consistent with the objective circumstances (including the development after 26 July 2015 and/or the 5 August 2015 Incident).

(2) Despite his physical fragility, the Deceased had sufficient mental capacity to decide his wishes (including testamentary wishes). He was capable of communicating these wishes, and the people who interacted with the Deceased had no difficulty in understanding the same.

(3) The Deceased executed the 2015 Will out of free will. He voluntarily agreed to the contents of the 2015 Will, which reflect his true testamentary wishes. He was not subject to any undue influence.

(4) The Plaintiff did not exert undue influence on the Deceased. She did not abuse, pressurize and/or coerce the Deceased; nor did she impose any testamentary wish on the Deceased.

F. Conclusion and Disposition

155.  For all the above reasons, I also find and conclude that:-

(1) The 2015 Will is the true last will of the Deceased; and

(2) The 2014 Will was revoked and/or superseded by the 2015 Will.

156.  In the premises: -

(1) I make a declaration that the 2015 Will is the true last will of the Deceased;

(2) I make a declaration that the 2014 Will was revoked by the 2015 Will;

(3) I make a decree pronouncing against the validity of the 2014 Will;

(4) I order that the grant of probate in favour of the Defendant based on the 2014 Will be revoked;

(5) I order that the 2015 Will be pronounced in solemn form of law;

(6) I order that there be liberty to apply; and

(7) I dismiss all the counterclaims brought by the Defendant (including the counterclaims for vacant possession of the Matrimonial Home and mesne profit in respect of the Plaintiff’s use and occupation of the Matrimonial Home).

157.  There is no reason why costs should not follow the event.

158.  I make a costs order nisi that the Plaintiff’s costs in these proceedings (including all costs previously reserved) be paid by the Defendant on a party-to-party basis to be taxed if not agreed (with certificate for 1 counsel).

159.  Lastly, I expressly my gratitude to Mr Tony Ko, Ms Winnie Li, and Mr Arthur Poon as well as Dr Yu Yuk Ling and Dr Choi Wing Kit for their helpful assistance.