ZHANG RUI HUA AND ANOTHER v. WANG LAN AND ANOTHER

CACV 208/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 208 OF 2013

(ON APPEAL FROM HCAP 13/2010)

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REASONS FOR JUDGMENT

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Hon Cheung CJHC:

1. At the conclusion of the hearing of this appeal, we allowed the appeal of the defendants from the judgment of Chung J given on 18 September 2013, and ordered a retrial of the probate action below concerning the validity of the purported last Will of the deceased, Po Yu (“the deceased”) dated 2 February 2005 (“the Will”). We now give our reasons.

The facts

2. As there will be a retrial, I shall be brief with the facts, and unless otherwise required, I shall refrain from making comments on the facts and assertions of the parties.

3. The deceased came from the Mainland but became a Hong Kong resident in December 2000.  He was a businessman doing business on the Mainland.  His business and personal affairs were such that he had to travel regularly among and stay in Hong Kong, Shenzhen and Yuxi City, Yunnan.  Towards his later years, he suffered from ill health; in particular, he suffered from heart diseases, from which he eventually died on 24 March 2005 in Shenzhen at the age of 50.

4. The deceased’s personal life would appear to be less than straightforward.  His mother is Madam Zhang Rui Hua, the 1^st plaintiff in the probate action.  He is also survived by his widow, Madam Wang Lan, the 1^st defendant, whom he married in 1980.  They had no children but according to Madam Wang, there is an adopted daughter, Ms Pu Juan, the 2^nd defendant.  Her status as a lawfully adopted child of the deceased is disputed, and it formed part of the counterclaim eventually dismissed after trial by the judge.

5. On the other hand, the deceased would appear to have formed a relationship with a Madam Ma in Shenzhen.  That relationship produced an infant son, Pu Chuan Yao, the 2^nd plaintiff, suing by his uncle (a younger brother of the deceased), Mr Pu Jun, as his next friend.  Indeed the plaintiffs asked for a declaration that the 2^nd plaintiff is the infant son of the deceased, which was disputed by the defendants.

6. To complete the story, the deceased would also seem to have formed another cohabitation relationship with a Madam Yeung in Hong Kong.  Madam Yeung was not a party to the probate action below.

7. Apart from the disputed status of the 2^nd plaintiff and that of the 2^nd defendant as the deceased’s infant son and lawfully adopted daughter respectively which, if established, would entitle each of them to a beneficial share in the estate of the deceased if he had died intestate, the probate action raised also this overriding issue, that is, whether the Will is a valid and last will of the deceased.  Under the Will, the deceased left everything to the two plaintiffs and specifically disinherited his wife Madam Wang.  Nothing was left to Madam Ma or Madam Yeung either.  The Will is said to have been made by the deceased during his last visit to Yuxi City at the office of his younger brother, Pu Jun.  The computer‑printed Will was prepared with the help of a Mr Yang, a colleague of Pu Jun who typed out the deceased’s handwritten draft for him to execute.  Execution of the Will was done in the presence of the brother, Mr Yang and the deceased’s long time employee/driver and friend, a Mr Han.  Mr Yang and Mr Han also signed the Will as attesting witnesses.  After execution, a copy of the Will was made at the office and given by the deceased to Pu Jun for safekeeping.  The deceased is said to have kept the original Will in a small safe which he kept in his residence in Yuxi.

8. The deceased left Yuxi for Hong Kong afterwards.  As mentioned, he passed away in Shenzhen less than two months later.  He never had a chance to return to Yuxi.  The relevance of this is that the original Will could not be found after the death of the deceased.  According to the plaintiffs, Madam Wang had caused her brother‑in‑law (the natural father of the 2^nd defendant) to change the lock to the living room of the residence of the deceased in Yuxi and nobody could gain access to the deceased’s residence (or the safe) after his death.  The safe had since gone missing, and so had the original Will of the deceased.

9. According to the plaintiffs, the deceased’s marital relationship with Madam Wang was bad, and in fact they had been formally separated since 1999.  They were not on good terms and that explained why she was disinherited by the deceased in his Will.  All this was denied by Madam Wang.

10. Given those facts, not surprisingly, disputes soon arose between the two sides regarding succession to the deceased’s estate.  There were proceedings on the Mainland and proceedings in Hong Kong.

The non‑contentious probate proceedings

11. It is now necessary to detail the initial non‑contentious probate proceedings in Hong Kong which, ultimately, led to the commencement of the probate action below.  Madam Wang, as widow of the deceased obtained estate duty clearance in Hong Kong in 2005, with a view to obtaining letters of administration of the deceased’s estate.  Apparently she was ignorant of the existence of the Will.  By HCAG008461/07, she applied formally for the grant of letters of administration of the deceased’s estate (as an intestate estate).  She named herself and Pu Juan as the only persons entitled to share in the deceased’s estate as his widow and lawfully adopted daughter respectively.  The application was filed on 20 August 2007.  A few months back, that is, on 22 May 2007, Madam Zhang, the deceased’s mother, through her son, Pu Jun, instructed a firm of solicitors (Gary KW Tam & Co) to enter a caveat in respect of the estate of the deceased under HCCA 001198/07. As a caveat is only valid for six months[1], a further caveat was entered on behalf of Madam Zhang on 21 November 2007[2] and a third one was entered on 19 May 2008[3].

12. This eventually prompted Madam Wang, the intending administratrix, to serve a warning to caveator dated 20 June 2008 on Madam Zhang through her solicitors.  Pursuant to rule 44(7) of the Non‑Contentious Probate Rules[4], the warning required Madam Zhang:

“(1) to enter an appearance either in person or by your solicitor at the Probate Registry of the High Court of the Hong Kong Special Administrative Region, setting forth what interest you have in the estate of PO YU (普宇), Deceased, late of … South Horizons, Aberdeen, Hong Kong, contrary to that of the party at whose instance this warning is issued; or

 (2)  if you have no contrary interest but wish to show cause against the sealing of a grant to such party, to issue and serve a summons for directions by a Registrar of the said Registry.”

13. Madam Zhang duly entered an appearance through her solicitors on 2 July 2008, pursuant to either rule 44(9) or (10) of the Rules.  The appearance stated:

“Full Name and Address of Caveator:

ZHANG RUIHUA (張瑞華), widow, of ... Yunan Province, China …

The Deceased died without issue leaving surviving him the person warning as the lawful widow and the Caveator as the lawful and natural mother of the Deceased. The Caveator is one of the persons entitled to share in the estate of Deceased.

Entered an appearance for the above named Caveator: in this matter.”

14. Significantly, the existence of the Will and Madam Zhang’s interest in the estate as one of the two named beneficiaries under the Will (rather than as the mother of the deceased as such) were not mentioned in the appearance at all.  Moreover, it was specifically stated that the deceased died without leaving any issue surviving him, when the Will clearly stated that the 2^nd plaintiff, the other beneficiary named in it, is the deceased’s son.  These discrepancies obviously do not sit well with the plaintiffs’ case on the existence of the Will and that the plaintiffs, as mother and son of the deceased, are the only two beneficiaries named under it (collectively “the Discrepancies”).

The probate action

15. All this eventually led to the commencement of the probate action, in which the plaintiffs alleged the existence and sought probate of the Will, and claimed for a declaration regarding the 2^nd plaintiff’s status. The action was defended by the defendants, who counterclaimed for a grant of letters of administration in favour of Madam Wang and a declaration of status regarding the 2^nd defendant.

16. Not surprisingly, the Discrepancies were made a subject of comment in Madam Wang’s witness statement dated 6 July 2011 (para 34):

“而第一原告人張瑞華向法庭於2008年存檔的文件當中，曾清楚說明因普宇沒有任何子女，故此第一原告人作為死者的母親張瑞華有權分享遺產，而文件當中亦從來沒有提及普宇有任何遺囑。而後來，事情的發展峰迴路轉，第一原告人在本案中忽然改口聲稱普宇立有遺囑及第二原告人是普宇的私生子，令人費解。 ...”[5]

The trial

17. The action came before the judge for trial, which lasted 5 days.  At issue were the validity of the Will – that is, formal execution and testamentary capacity; the loss of the original Will and rebuttal of the presumption of revocation; and the respective statuses of the 2^nd plaintiff and 2^nd defendant (which would be relevant if a finding of intestacy was made).

18. Not surprisingly, Pu Jun was cross‑examined at some length on the Discrepancies at trial.  His explanation in the witness box was:

“談到遺囑嘅呢件事，遺囑我哋已經搵唔到嗰個原稿喇--原本嗰份喇，其實我心裡有數喇，我都好知道嗰個遺囑係去咗邊，同埋我哋一定攞唔到嗰個原裝正本。照我本人對國內法律嘅了解，國內嗰個法律對於作為呢啲咁樣證件複印本係唔承認嘅，最初，老實講，响呢件事之前嘅最初，我從來都冇諗住拖埋嗰張遺囑落嚟講嘅，因為我都諗我嗰張係複印本嚟嘅之嘛，影印本，都冇起到咩嘢嘅作用 … 後來要攞普傳耀出嚟講就係要做好多相關嘅動作，一定要過嚟香港搞㗎喇，所以就係先起碼令王蘭唔到喐到嗰啲遺產，就做咗我而家呢個顯示嗰個文件嘅動作，將啲遺產凍結咗上嚟先，呢個就係我當時嘅諗法。後來我做乜事又要提出嗰個遺囑呢？係有一次我同譚律師講即係呢件事係咩嘢呢？我哋香港嗰個法律認唔認影印本㗎？咁佢話認喎，咁然後我咪將嗰個--呢件事件存在嘅真實嘅一啲咁嘅嘢大概講咗一次畀佢聽，我咪提起囉，所以先至變成提番出嚟嗰個正式地提出嚟囉，係咁嘅意思，個過程亦都係咁。”[6]

19. The significance of the Discrepancies, bearing particularly in mind that according to the plaintiffs’ case, Pu Jun was an eyewitness to the making of the Will and played a significant part in it, was not lost on the defendants’ counsel at final submission.  Counsel submitted (para 24):

“(5) In the Appearance to Warning … to oppose the grant of Letters of Administration to D1, it was stated that ‘The Deceased died without issue leaving surviving him the person warning as the lawful widow and the Caveator as the lawful and natural mother of the Deceased. The Caveator is one of the persons entitled to share in the estate of the Deceased’. Again, surprisingly, P1 and/or PW1 [Pu Jun] made no reference to the Will.

 (6)  PW1 in cross-examination contended that as he only got a copy of the Will, he did not mention it to the lawyers.  Is that likely?  Is it possible that the solicitors firm acting for P1 throughout the contentious probate proceedings could avoid questioning PW1 whether the Deceased made any will?  Is it even possible that PW1 could forget mentioning the Will or copy thereof, such an important testamentary document in these contentious probate proceedings, if the Will had really existed?  Was the Will fabricated at a later stage by P1 and/or PW1?  In any event, why PW1 failed also to mention P2 as he was all along aware that P2 is the illegitimate son of the Deceased?  Whatever may have been the motive of PW1, it is undisputed that he was at least lying to the lawyers.”

20. To this, the plaintiffs’ counsel, in her written final submissions, replied simply that Pu Jun “gave a reasonable and credible explanation for his statement so as to prevent Wang Lan from disposing [of] the estate before it was too late” (para 124).

The judgment below

21. The judge reserved judgment after trial.  In a 14‑page judgment handed down 2 months later, the judge dealt with various issues and made findings.  He found in favour of the formal execution of the Will as put forward by the plaintiffs, as well as the deceased’s testamentary capacity.  He found that the Will had not been revoked by the deceased prior to his death despite its disappearance afterwards, and that the presumption of revocation had been rebutted.  He also found that the 2^nd plaintiff is indeed the infant son of the deceased.  But in the sealed judgment, no declaration was made regarding his status.  The judge ordered that the copy Will be admitted to probate, and dismissed Madam Zhang’s counterclaim for the grant of letters of administration.  He found that the deceased had not “disowned” the 2^nd defendant as his adopted daughter, but did not expressly say or find that the 2^nd defendant is indeed his lawfully adopted daughter.  In any event, no declaration was made in her favour and the entire counterclaim, as mentioned, was dismissed.

22. The judge recognised that the disputed issues were essentially issues of fact turning largely on the evidence of the witnesses.  In paragraph 16 of his judgment, the judge said:

“Details regarding the factual matters over which the testimony of the respective parties’ witnesses differ will be set out below. Insofar as it may be necessary to find an overall assessment of their credibility (or credibility over matters not specifically so set out below), I prefer the testimony of the plaintiffs’ witnesses over that of the defence witnesses (where their testimony conflicts).”

23. The judge dealt with the making of the Will in paragraphs 21 to 28 of his relatively short judgment.  He rightly focused his attention on the evidence of Pu Jun, Yang and Han, who all claimed that they were present and personally witnessed the deceased’s execution of the Will.  Indeed, Yang and Han were attesting witnesses.  That was paragraph 21.

24. In paragraph 22, the judge noted the defence submission that these witnesses were untruthful because many parts of their evidence were (a) inherently implausible; and (b) contradicted by “indisputable evidence”.  The judge did not elaborate on the “indisputable evidence”.

25. In paragraph 23, the judge dealt with the evidence of Mr Yang and explained why he did not accept a particular criticism made by the defence regarding his evidence.  He did not mention the other criticisms made.

26. In paragraphs 24 to 26, the judge turned to the evidence of Mr Han and explained why he did not agree with the defendants’ submission regarding a certain discrepancy between his witness statement and the contents of the Will.  He did not deal with the other points made against Mr Han’s evidence.

27. Then, rather surprisingly the judge devoted only one single paragraph to deal with Pu Jun’s evidence which, as explained, was of obvious importance:

“27. There are various parts of Pu Jun’s testimony which are not entirely satisfactory (see below). However, the part of his testimony concerning the preparation and execution of the said will is supported by the testimony of Yang and Han (see above).”

28. Nowhere in his judgment can one find out what these “various parts” of Pu Jun’s evidence which the judge described as “not entirely satisfactory” were, despite the “see below” reference.

29. Rather, in paragraph 28, the judge simply concluded:

“28. For the above reasons, I accept the testimony of Pu Jun, Yang and Han to be truthful and reliable in relation to this aspect. Accordingly, I find that the said will was prepared and executed by the deceased.”

30. The judge went on to deal with testamentary capacity in paragraphs 29 to 33 of the judgment.  The question of the missing original Will and the presumption of revocation were dealt with by the judge in paragraphs 34 to 41 of the judgment.  The adoption of the 2^nd defendant was, as mentioned, dealt with in part in paragraphs 42 and 43.

31. The judge summarised his conclusions in paragraphs 44 and 45 of the judgment.

32. Before he dealt with costs in the last paragraph of his judgment (paragraph 48), he devoted two paragraphs to deal with “other matters”:

“46. The parties’ closing submissions also mentioned various other matters. These have not been expressly set out or dealt with in the above headings and sub-headings. This is so only because of the need to balance between the length of the judgment and its comprehension. It does not mean those other matters are thought to be irrelevant (or have been overlooked). To avoid doubt, those other matters have also been considered.

47. Such matters include:

(a) whether the deceased regularly lived together with Mdm Wang until his death;

(b) details pertaining to the preparation and execution of the said will;

(c) the said will was “home-made” but yet was typed up and appears to conform with the provisions of Hong Kong’s Wills Ordinance (Cap 30);

(d) the said will made no provision for Mdm Wang or Juan, respectively the deceased’s wife and adopted daughter;

(e) Mdm Zhang, Mr Li and Juan did not testify at trial;

(f) the plaintiffs amended their pleading by deleting the averment to the effect the safe was still inside the deceased’s room in Yuxi as late as 28 March 2005;

(g) Mdm Wang accompanied the deceased on some of the occasions when the deceased went to the hospital for medical treatment;

(h) Mdm Wang has kept some of the medical records.”

The grounds of appeal

33. Understandably, the defendants felt aggrieved by the very brief manner in which the judge dealt with the various hotly contested factual issues, particularly those relating to the making of the Will.  They appealed.  A quick perusal of the very detailed written closing submissions of the parties at trial would reveal that many factual matters and details were canvassed during evidence, and various points and arguments were advanced in final submissions.  This is not surprising given that the case essentially turned on the facts, and from the defendants’ perspective, they were not present on the occasion when the Will was allegedly made and all they could do was to put the plaintiffs, who were propounding the Will, to strict proof of due execution.  The evidence of those who claimed to have witnessed the execution of the Will was therefore of particular importance.  Indeed their evidence was vigorously tested at trial.

34. In short, in this appeal, the defendants sought to challenge, on two related bases, the judge’s findings of fact regarding the valid execution of the Will as claimed by the plaintiffs’ witnesses.  First, the judge failed to deal with the contemporaneous documents, particularly the caveats and appearance to warning mentioned above, which would appear to contradict the plaintiffs’ case that the deceased had made the Will in the presence of Pu Jun, who, as mentioned, acted on behalf of his mother in giving instructions to the solicitors to enter the caveats and appearance to warning.  Secondly, the judge failed to give adequate reasons for rejecting the defendants’ criticisms of the plaintiffs’ witnesses’ evidence and for preferring their evidence to that of the defendants.

Overturning a finding of primary fact

35. Overturning a finding of primary fact on appeal is notoriously difficult, and an appeal on fact should only be entertained on narrow and well defined circumstances.  This court (differently constituted) has recently given guidance on when that can be done: see, in particular, Lam VP’s detailed discussion of the relevant law and practice in paragraphs 11 to 29 of his judgment given in China Gold Finance Limited v CIL Holdings Limited, CACV 11/2015, 27 November 2015.  Three days before, in Singh Harjit v Determination Business Limited trading as Muse Studio, CACV 68/2015, Kwan JA, giving the judgment of the court, also had this to say regarding an appeal on fact:

“6. The approach of the appeal court in this kind of situation is well established.  As the Court of Final Appeal has held in Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336, in considering an appeal against a primary finding of fact, the question for the Court of Appeal was whether, even though it did not have the advantages enjoyed by the trial judge who received the evidence at first hand, it was nevertheless satisfied that his conclusion on the facts was “plainly wrong”.  The Court of Appeal should intervene only if so satisfied.  If not so satisfied, the Court of Appeal should defer to the trial judge’s conclusion even if in some doubt as to the correctness of the trial judge’s decision on the facts.

…

8. More recently, Lord Hodge in the Privy Council in Beacon Insurance Co Ltd v Maharaj Bookstore Ltd [2014] UKPC 21 at §§11 to 18 stated these principles after having reviewed a number of relevant authorities:

(1) The phrase “plainly wrong” in this context directs the appeal court to consider whether it was permissible for the trial judge to make the findings of fact in the face of the evidence as a whole.  That is a judgment that the appeal court has to make in the knowledge that it has only the printed record of the evidence.  The court is required to identify a mistake in the judge’s evaluation of the evidence that is sufficiently material to undermine his conclusions.

…

9. In Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600, Lord Reed JSC made further observations at §§62 to 68 about the criterion for appellate intervention that the trial judge must have gone “plainly wrong”.  The adverb “plainly” does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge.  It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion.  What matters is whether the decision under appeal is one that no reasonable judge could have reached.  Hence, in the absence of some other identifiable errors, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appeal court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”

36. In the present appeal, the question becomes whether the judge was plainly wrong in finding for the making of the Will as contended for by the plaintiffs, in the sense that there was “a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence”, amounting to “a mistake in the judge’s evaluation of the evidence that [was] sufficiently material to undermine his conclusions”; or, in the words of Lam VP in China Gold, the question is whether the judge “has fallen in palpable errors which could give rise to grounds for intervention by the appellate court” (para 15).

The duty to give reasons

37. As regards the duty to give reasons, the leading authority is no doubt the Court of Final Appeal’s decision in Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997‑1998) 1 HKCFAR 279.  At p 290E/F to H, Li CJ explained the benefits of a duty to give reasons in these terms:

“ First, it would impose desirable intellectual discipline and concentrate attention on the relevant issues. It would thus assist in ensuring that any decision is made on proper grounds and contribute to the effective disposal by the tribunal of its work. Secondly, reasons would assist in demonstrating to the parties that the tribunal has carried out its task properly and would enable them to decide on the appropriate course of action in the case at hand, including whether to appeal or apply for judicial review. It would also provide guidance in the future to the community and persons concerned in this area. Publishers as well as the law enforcement and prosecuting authorities would have a better understanding of the standards as applied by the tribunal and would be in a better position to make their own decisions accordingly. Thirdly, the reasons given by the tribunal will promote and enhance consistency in its decision making and assist the law enforcement and prosecuting authorities. I would observe that broad consistency in approach is important. Fourthly, the giving of reasons would demonstrate to the community that the tribunal is functioning properly and this would engender public confidence.”

38. Li CJ then explained at pp 290J to 291G what constitutes adequate reasons:

“Where there is a duty to give reasons, it must be discharged by giving adequate reasons. What would amount to adequate reasons for a decision would depend on the context in which the decision maker is operating and the circumstances of the case in question.

…

First, the reasons given should show that the tribunal has addressed the substantial issues before it and show why the tribunal has come to its decision. There may not be any need however to address every single issue. But the reasons should show that the issues that arise for serious consideration have been considered.

Secondly, when deciding on questions of indecency or obscenity, there may be cases where the contents of the articles in question would virtually speak for themselves. In these instances, the duty to give reasons could be discharged by describing the contents without much more. Apart from cases of this kind, a decision on indecency or obscenity which merely recites the statutory guidelines in s.10 would not normally be adequate. Such statements would in effect assert conclusions and would not reveal why the tribunal has come to such conclusions.

 Thirdly, the reasons may not require great elaboration and they may be brief.  It is only when they are defective in substance that they should be considered inadequate.  Ultimately, what are adequate reasons in the circumstances of a particular case has to be approached sensibly.”

39. In the subsequent case of Zhuo Cui Hao v Ting Fung Yee [1999] 3 HKC 634, Chan CJHC (as he then was) stressed a professional judge’s duty to analyse in his judgment the material points in evidence of the case and give reasons as to why he had reached a particular conclusion or decision (p 639C‑E):

“ Generally speaking, a professional judge is under a duty to analyse in his judgment the material points in the evidence of the case and give reasons as to why he has reached a particular conclusion or decision. This is the only way to make people understand why their evidence is not accepted by the court and why they lose in a case. Only by this can justice be seen to be done. Furthermore, the losing party needs to be clear on whether there is any error in the reasons for the decision given by the court before he can decide whether to appeal or not, and, at a later stage, submit to the Court of Appeal his grounds of appeal in order to seek to set aside the original decision. A professional judge is under a duty to give adequate reasons for any decision which he has made. This is a principle of paramount importance in the common law system. This principle is quite clear.”

My views

40. On the question of the judge’s handling of the caveats and appearance to warning, I take the view that the defendants’ criticisms were well made.  Pu Jun claimed to have witnessed the making of the Will by his brother.  That was in February 2005.  Disputes soon arose between the two sides after the death of the deceased in March 2005.  There were proceedings on the Mainland where the mother’s side claimed that Madam Wang’s side had stolen or caused to be stolen from the deceased’s safe a gold watch and certain documents.  Yet, the missing original Will was not mentioned.  As regards the deceased’s assets in Hong Kong, on behalf of his mother, Pu Jun instructed the solicitors to enter three caveats in relation to the estate of the deceased.  That was obviously done as a precaution against Madam Wang’s obtaining representation of the estate.  It is true that under the law, a caveator does not need to state his interest in the estate in a caveat.  However, once a warning is served, the caveator is required to give particulars of any contrary interest (that is, interest contrary to that stated by the person serving the warning) which he may have in the estate of the deceased: rule 44(7).  Apparently, the solicitors were fully aware of this requirement, as they did state on behalf of Madam Zhang her interest in the estate in the appearance to warning which has already been extracted.  On the known facts, the solicitors’ instructions must have come from Pu Jun who acted on behalf of his mother throughout.

41. The lack of any mention of the Will and Madam Zhang’s interest in it in the appearance to warning was a glaring discrepancy in the plaintiffs’ case.  The fact that the deceased left behind an infant son who was also named as a beneficiary in the Will was not mentioned either.  As described, these matters were made the subject of vigorous cross‑examination and serious criticism in final submission.  As also mentioned, the plaintiffs’ counsel had no choice but to face the point squarely in her very detailed and careful written final submissions.

42. It is, of course, not for the appellate court to decide on paper whether Pu Jun’s explanation should be believed, or more importantly, whether the Will was really made by the deceased as claimed.  They were matters for the trial judge.

43. What one was entitled to expect from the trial judge was that he would deal with the Discrepancies in his judgment, and the explanations given by Pu Jun in the box regarding them, as well as the similar discrepancy between what was mentioned and not mentioned in the Mainland proceedings and in the probate action, in the overall assessment of the witnesses’ evidence and other available evidence, when deciding the factual issues concerning the making of the Will; and to explain his reasoning accordingly.

44. With respect, the judge rather inexplicably did not make one mention of the three caveats and the appearance to warning in his judgment.  The nearest he came to such a mention was in paragraph 22 of his judgment where he said that the defence submitted that the plaintiffs’ witnesses were untruthful because many parts of their evidence were “contradicted by indisputable evidence”, and in paragraph 27 where the judge mentioned certain not entirely satisfactory aspects of Pu Jun’s evidence.  Yet, as already pointed out, he did not elaborate on what indisputable evidence he had in mind, or what these various unsatisfactory aspects of evidence were.  And in any event, he did not deal with them.  In relation to the crucial evidence of Pu Jun who gave instructions to the solicitors regarding the caveats and appearance to warning, the judge only spent one short paragraph, before he decided in the following paragraph that his evidence together with that of Mr Yang and of Mr Han should be believed.

45. And even in the sort of “catch-all” paragraphs at the tail end of his judgment, that is paragraphs 46 and 47 already extracted, where the judge dealt with “other matters” and where he listed out, in paragraph 47, what these other matters were – matters which he said he had considered but did not see fit to specifically deal with in his judgment, there was no mention of the three caveats and the appearance to warning.

46. In those circumstances, one is, with respect, driven to the conclusion that the judge has either ignored or forgotten to take into account the Discrepancies, or he has failed to give adequate reasons for accepting the plaintiffs’ case on the making of the Will despite the Discrepancies.  In either case, the judge has fallen into “palpable error” in relation to his findings of fact, by reason of which this court could and should interfere with his findings.

47. This being my view, I do not find it necessary or appropriate to deal with the other evidential matters also relied on to challenge the judge’s findings of fact or his reasons.  The plaintiffs’ case on the making of the Will must be carefully examined at a retrial, and many of these matters will probably be fully tested in cross‑examination and argued in submissions.  Of these matters, the less said the better it is.

48. The upshot of all this is that there has to be a retrial on the question of the making of the Will.  The status of the 2^nd plaintiff is not affected by the errors made by the judge regarding the evidence pertaining to the making of the Will.  That finding was not really challenged on appeal.  In fact, we were told the defendants had conceded the 2^nd plaintiff’s status at trial.  The order for retrial is therefore without prejudice to that finding although the judge did not see fit to make a declaration in favour of the 2^nd plaintiff.  Testamentary capacity as well as rebuttal of the presumption of revocation are two issues that depend to a large extent on the witnesses’ evidence.  What has been discussed in this judgment may have had an impact on the overall assessment of the trial court on the credibility of the witnesses in question. The findings of the judge in relation to those two matters cannot safely be allowed to remain.  In other words, there will also be a retrial on those two issues, that is, testamentary capacity and rebuttal of the presumption of revocation.  As regards the status of the 2^nd defendant, the judge, as mentioned, only dealt with one issue (“disowning”), and in any event, made no finding or declaration regarding the status of the 2^nd defendant, except that he simply dismissed the entire counterclaim.  That, in the circumstances, is quite unsatisfactory.  The retrial will need to deal with the status of the 2^nd defendant as an issue, absent any agreement to the contrary.

Disposition

49. For those reasons, the appeal was allowed, the judge’s judgment was set aside, and a retrial was ordered, but without prejudice to the judge’s finding that the 2^nd plaintiff is indeed the natural son of the deceased.  We also ordered the costs below to be in the cause of the retrial.  As for the costs of the appeal, costs should follow the event and I see no reason to order otherwise.  The defendants had to come to court to seek redress, and the plaintiffs could have conceded the appeal but did not do so.  I would award the costs of the appeal to the defendants to be taxed if not agreed.  There will also be legal aid taxation of the costs below as well as the costs of the 1^st defendant on appeal.

Hon Cheung JA:

50. I agree with the Reasons for Judgment of the Chief Judge.

Hon Chu JA:

51. I agree.