CHIU MAN FU AND OTHERS v. CHIU CHUNG KWAN YING

CACV 40/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 40 OF 2012

(ON APPEAL FROM HCAP NO. 9 OF 2005)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the Court):

1. On 18 June 2013, this court handed down judgment dismissing the plaintiffs’ appeal against the judgment of Poon J, in which the judge dismissed the plaintiffs’ claim in a contested probate action. The plaintiffs seek leave to appeal to the Court of Final Appeal on the basis that the proposed appeal would involve questions of great general or public importance.

2. They have identified three questions to be raised in the proposed appeal:

“1. Where a will is challenged on the basis of lack of testamentary capacity, is evidence of signs or symptoms of a mental disorder a pre-requisite to consideration of the 4^th element of Banks v Goodfellow[1], namely that “no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that 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” (p. 565); or is such “disorder of the mind” evidenced by the very irrationality of the total disinheritance of his issue as identified in Boughton v Knight[2]that there is a point at which such repulsion and aversion to one or more of the testator’s children (exemplified by Man Ying and Man Fu on the evidence of this case) must be held to have proceeded from some mental defect in himself, and hence evidence unsoundness of mind (p. 69)?

2. In which context is it correct, as stated in Sharp v Adam[3] that the 4^th element “is concerned as much with mood as with cognition” ([93], p. 23), in the immediate aftermath of Madam Wong’s suicide was Mr Chiu’s decision to reverse his earlier will in which he left everything to all his children (14 at the time in 1997) and to disinherit them all (16 in 2003), evidence of a relatively short-term mood disorder in which his affections were poisoned, his sense of right perverted and in which he was prevented from exercising his natural faculties?

3. Is this category of disorder of the mind to be determined as Sir J Hannen directed the jury in Boughton v Knight, i.e. “this is eminently a practical question, one in which the good sense of men of the world is called into action, and that it does not depend solely on scientific or legal definition (p. 67)?”

3. Question 1 is in substance the argument raised by Mr Sarony, SC as mentioned in paragraphs 56 and 57 of our judgment, namely, that the judge had failed to address the issue whether the 4^th element in Banks v Goodfellow was satisfied.  Question 2 is in essence the argument advanced as also mentioned in paragraph 56 of our judgment, namely, that the 4^th element in Banks v Goodfellow is concerned as much with mood as with cognition and whether a testator lacked testamentary capacity does not relate exclusively to his cognitive powers.  We rejected those arguments for the reasons given in paragraphs 58 to 63 of our judgment.

4. Both these questions are fact sensitive and cannot be said to be questions of great general or public importance.  Further, they are based on the premise that the total disinheritance by the testator of his children was irrational, contrary to the concurrent finding of the trial judge and of this court, see paragraph 61 of our judgment.  There are no special circumstances to justify the reversal of that concurrent finding (Sky Heart Ltd v Lee Hysan Co Ltd (1997-1998) 1 HKCFAR 318 at 333A to 338A; Hong Kong Kam Lan Koon Ltd v Realray Investments Ltd (2010) 13 HKCFAR 215 at 216).  In any event, we do not consider these questions reasonably arguable as they are based on faulty grounds and are hypothetical.

5. Question 3 is misconceived, as rightly pointed out by Mr Yu, SC.  What Sir J Hannen was saying in Boughton v Knight was no more than that there were no hard and fast rules as to whether a testator was in possession of testamentary capacity or a sound disposing mind, and that would always be a question to be determined on the particular facts of the case.  The question as framed does not arise from our judgment for determination, and is certainly not one of great general or public importance.

6. For the above reasons, we refuse to give leave to appeal to the Court of Final Appeal.  We order the plaintiffs to pay the defendant’s costs in this application.  We make an order that the own costs of the 6^th plaintiff be taxed in accordance with the Legal Aid Regulations.