WONG KWONG YIU v. MOK HING CHUNG

CACV 166/2014 AND CACV 239 /2014

[2019] HKCA 452

CACV 166/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 166 OF 2014

(ON APPEAL FROM HCAP NO 8 OF 2010)

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AND

CACV 239/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 239 OF 2014

(ON APPEAL FROM HCAP NO 10 OF 2012)

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(Heard together)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  These two appeals are brought by different parties in two probate actions against the judgment of Recorder Coleman, SC handed down on 3 July 2014 ([2014] 4 HKLRD 685). For ease of reference, I will adopt all the abbreviations and expressions in the judgment below.

2.  CACV 166/2014 is an appeal in respect of the estate of Wong Yin Sheung (“WYS”) and is brought by Wong Kwong Yiu (“WKY”), the defendant in that action (HCAP 8/2010).  It raises two issues: the issue of resulting trust (if the estate of WYS consists of property held on trust for WYS’s elder sister Wong Yin Ling (“WYL”)); and the issue of the validity of WYS’s will dated 6 June 2006 (“the Will”), under which Mok Hing Chung (“MHC”; the plaintiff in that action and a nephew of WYL and WYS) is the sole executor and beneficiary.  The judge rejected WKY’s case that WYS held property (consisting of a landed property and some cash at bank) on trust for WYL and held that the Will is valid and should be admitted to probate with MHC as the executor as provided.

3.  CACV 239/2014 concerns the estate of WYL and was brought by MHC, the defendant in that action (HCAP 10/2012).  The judge held in favour of WKY that he is the adopted son of WYL within section 2(2)(c) of the Intestates’ Estates Ordinance, Cap 73 (“the IEO”) and as such is entitled to a grant of letters of administration in respect of WYL’s estate.  MHC seeks to challenge the judge’s finding on WKY’s status as adopted son.  If MHC is successful and WKY fails on the adoption issue, it is common ground that he would have no locus standi to raise the resulting trust issue or the will validity issue in the other action.  MHC had legal aid and was represented by counsel at the trial and for a long time in this appeal.  He only filed a notice to act in person in February 2019.

4.  Although WKY has succeeded in the adoption issue, this is somewhat of a pyrrhic victory, as he has failed on the resulting trust issue and the will validity issue in the other action and is unable to take any monetary benefit from having any entitlement to the estate of WYL.

5.  That sets the scene for these appeals.  I propose to deal with the resulting trust issue first, followed by the will validity issue and lastly the adoption issue.

Background

6.  I take the relevant background facts from the judgment below, assisted by a helpful summary in the submissions of Mr Jenkin Suen for WKY.

7.  WYL and WYS were sisters.  They had never married and lived together throughout their shared lives.  Neither had any natural children.

8.  WYL died at the age of 77 in 1996.  WYS passed away in 2006 aged 86.  According to the schedule of assets and liabilities dated 18 May 2007 filed in respect of the estate of WYS, the assets comprised cash balances in various bank accounts, some of which were held in joint names with WYL, in the total amount of less than $350,000, and a property at Pobjoy Court in Prince Edward Road, Kowloon (“PJ Court”) valued at under $4 million.  As the judge has remarked, it is deeply unfortunate that there has been such protracted, acrimonious and disproportionately expensive litigation between family members over such a sum.

9.  WYL and WYS were two of the five natural children of Wong Yuk Ting (“WYT”).  WYT’s only son, Wong Gan Yan (“WGY”), died unmarried and without issue at the age of 18 in 1938.  Another daughter also died young.  Only one of the daughters, Wong So Han (“WSH”), got married and had children; among them were two sons being MHC and Mok Hing Chuen, who was re‑named Wong Cheong Wing (“WCW”).  WSH passed away in 1961.

10.  Until his death in 1965, WYT owned and operated a construction business, Kin Yick Lung Construction Company, from the Ground Floor of 368 Castle Peak Road (“368 CP”).  WYL and WYS helped in the family business, neither had ever worked outside.  They continued the business for a while after their father’s death, but the business ran into financial troubles and it was closed in 1967.  Whatever money the two sisters had originated from their father.  The sisters thereafter lived on rental income or capital.

11.  WYT wished to provide an heir by adoption, and in accordance with custom and practice adopted a son Wong Gan Hing (“WGH”).  WGH married Ng Yuk Ching (“NYC”) and they had ten children.  The third child is WKY, born in 1953.

12.  WSH agreed to give one of her sons for posthumous adoption by her deceased brother WGY in 1939 or 1940.  This was evidenced by a Letter of Gift, and the child aged five at the time was renamed WCW.

13.  It is the case of WKY (which was accepted by the judge) that he was adopted by WYL three days after his birth in a formal ceremony.  WKY spent his first three years with his natural parents, he then lived with WYL until the age of 22 when he went to Canada to study in 1975.  WKY has since resided in Canada.

14.  When WKY first went to live with WYL in 1956, she was living with her parents and WYS at 1^st Floor of 368 CP.  There used to be another property at 366 Castle Peak Road (“366 CP”), in which WSH lived with her family.  366 CP was registered in the name of Wong Yung, which was an alias of WYS and it was sold to a third party for $15,000 in 1947.

15.  In 1957, WYT, using his alias Wong Sau, bought the flat at 1^st Floor of 108 Boundary Street (“108 BS”) at $67,000 and the whole family moved to live there.  By an assignment dated 1 September 1959, WYT transferred 108 BS to WYL at the stated consideration of $55,000.  The sisters continued to live in 108 BS after their parents passed away in the 1960s.

16.  In 1963, WYL entered into a sale and purchase agreement to buy 2^nd and 3^rd Floors at 368 CP (redevelopment) for $100,000.  In 1964, WYL nominated WYS to accept the assignment on completion.  That property was held by WYS until it was sold in 1989 for $730,000.  As noted by the judge[1], that provided a source of funding for the sisters’ living, but even with prudent management and a modest lifestyle, that sum of $730,000 realised was not going to be sufficient for the remainder of their lives.

17.  In 1995, the sole remaining landed property held by one of the sisters was sold, to maintain their livelihood.  This property was their residence at 108 BS, held in the name of WYL and a smaller property, PJ Court, was purchased. 108 BS was sold for $4.56 million, with completion of the purchase on 10 August 1995.  A time deposit of $3.648 million was created in the joint names of the sisters on 14 August 1995 and this was reduced by $1.648 million on 21 August 1995.  On 22 August 1995, the sisters signed the sale and purchase agreement for PJ Court as purchasers at the price of $1.72 million.  PJ Court was assigned to them on 8 September 1995 as joint tenants.  The remaining funds from the sale of 108 BS were put into one or more joint bank accounts in the sisters’ names.  They moved to PJ Court and lived there until they passed away.  There can be no dispute that the funds for the purchase of PJ Court came from the proceeds of sale of 108 BS.

The resulting trust issue

18.  In August 1997, WKY filed an appearance to the warning to caveator issued by MHC alleging inter alia that PJ Court, the bank accounts held jointly by WYS and WYL and other unknown accounts held under WYS’s name and a safe deposit box held by WYL with WYS as deputy all belong to the estate of WYL.  In the defence filed by WKY to HCAP 8/2010, he does not admit that the assets as stated in the schedule of assets and liabilities are beneficially owned by WYS and averred that they were held by WYS in resulting trust for the estate of WYL.  Under the “Particulars of Resulting Trust”, he pleaded that WYL was “the only person providing the whole of the purchase monies” to purchase PJ Court and WYL was “the only person providing or contributing funds to the numerous cash or time deposit accounts” set up by her under the joint name of WYL and WYS.

19.  In the reply and defence to counterclaim filed by MHC, he averred that WYL was not the only person providing the whole of the purchase monies to purchase PJ Court or the only person providing or contributing funds to the cash or time deposit accounts, and that at all material times, the sisters were unmarried and living together and supported each other.

20.  WKY filed a rejoinder to deny that WYL had ever made or intended to make any gift of PJ Court or the funds in the bank account under joint names to WYS.  He averred that the bank account in joint names was set up for convenience of cash management by WYS on behalf of WYL, likewise PJ Court was held in their joint names for convenience of management by WYS while they lived together in that property.  He further averred that the entire purchase money of PJ Court was provided solely by WYL from the proceeds of sale of her property at 108 BS.

21.  PJ Court was registered in the names of the sisters as joint tenants.  The starting point where there is joint legal ownership is joint beneficial ownership.  It is assumed that equity follows the law and that the beneficial interests reflect the legal interests in this property.  The onus is on the person seeking to show that the beneficial ownership is different from the legal ownership and in what way, and this is not a task to be lightly embarked upon (Stack v Dowden [2007] 2 AC 432 at §§54, 56 and 68).

22.  The judge held there was no factual foundation for the presumption of resulting trust asserted by WKY, noting that the correct approach is to treat any presumption simply as an evidential tool, which is not necessary if there is actual evidence of intention[2].  The fund flow from the date when 108 BS was sold is not an answer and it is necessary to look at the funding issues at a much earlier time.  On the evidence, there was no real likelihood that either sister could have afforded to pay from their own resources for the properties which were held in their respective names and the practical reality was that any funds which either of them had must have originated from their father.  And on the evidence as a whole, the sisters considered themselves to be, and treated themselves as true joint beneficial owners of the assets held in their respective and joint names, and both intended the funds to be used for them jointly and for the survivor to take beneficially the totality of the assets remaining at the death of the first of them[3].  In any event, the judge would also have found that the purchase of PJ Court in their names as joint tenants, and the placing of funds in a joint bank account (with the survivorship clause express) would have rebutted any presumption[4].

23.  We are here concerned with a domestic context.  The judge considered a host of factors relevant to ascertaining the true intentions of the sisters regarding the assets held by one or the other at earlier times and subsequently in joint names.  These factors included their family background, the assets and financial resources of the family, the way in which properties were held by family members in accordance with the direction of the father, the apparent characters of the sisters, their lack of employment since the late 1960s, the support they gave each other as the only surviving members of their immediate family, the reason why 2^nd and 3^rd Floors at 368 CP were sold followed by the remaining property at 108 BS some years later, the reason why PJ Court was purchased.  He attached significance to the fact that when the remaining property at 108 BS was sold, the replacement property of PJ Court was at once put into their names as joint tenants, a departure from the practice when a property was acquired and held in the name of one of the sisters as directed by the father[5].

24.  Thus, regarding the properties and assets held by one or other of the sisters in the past, there is clear evidence of conduct which will readily found the basis from which to infer a common intention on the beneficial ownership (that they were true joint beneficial owners) as well as the conduct relied on to give rise to a constructive trust.  This is the second limb of common intention constructive trust as discussed by Cheung JA in Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327 at §§2.4 to 2.9.

25.  I do not think the judge’s approach and finding could be faulted.

26.  Mr Suen took a number of points on appeal.  None of them are of merit.

27.  He raised a pleading point.  He pointed out that MHC merely pleaded that WYL was not the only person providing or contributing to the whole of the purchase monies for PJ Court and the funds in the bank accounts and did not plead that WYL was not the beneficial owner of 108 BS and the proceeds thereof, that WYL did not pay the consideration for the assignment of 108 BS to her, or who else had provided the purchase monies for PJ Court.  In the absence of such pleading, the judge should not have embarked on an enquiry whether the beneficial ownership of 108 BS was different from its legal ownership, and should just have held that WYL’s ownership of 108 BS gives rise to a resulting trust in her favour over PJ Court.

28.  I consider the pleading of MHC to be adequate.  His pleading was in response to the averments of WKY in raising a resulting trust that WYL was “the only person providing the whole of the purchase monies” to purchase PJ Court and that WYL was “the only person providing or contributing funds to the numerous cash or time deposit accounts” set up by her.  No particulars were pleaded by WKY in support of those averments, it was only in the rejoinder that he pleaded that the entire purchase money of PJ Court was provided solely by WYL from the proceeds of sale of her property at 108 BS.  An allegation of fact which is important to WKY’s case of resulting trust should have been pleaded in his defence so that MHC could respond to this in his reply.

29.  There is nothing in the criticism that MHC did not plead who else apart from WYL had provided the purchase monies for PJ Court.  No particulars were sought by WKY in that regard, if he was ever genuinely in doubt as to MHC’s litigation stance, which I think must have been obvious, in light of how the sisters conducted themselves as regards the properties held by each (the sale and purchase of properties are found in public record), the lifestyle they had and the resources they shared (known to their family members).

30.  Mr Suen sought to invoke the presumption of advancement as regards 108 BS.  He contended that even if WYL did not have the resources to pay the stated consideration of $55,000 for the assignment of this property to her by her father in 1959, this presumption should apply in the absence of contrary evidence so that a father who purchased property and transferred it to his daughter must have intended to gift it to his daughter.  He complained that the judge did not consider the presumption of advancement.

31.  As mentioned earlier, the judge regarded the correct approach is to treat any presumption simply as an evidential tool.  He did not mention specifically the presumption of advancement but from his analysis of uncontroversial evidence and the inherent probabilities, he found as a fact that 108 BS was family property and the way in which it was held was changed at the direction of WYT[6].  Obviously, he did not find it appropriate to apply the presumption of advancement.

32.  Mr Suen submitted that the judge did not sufficiently consider the evidence of the intention of the parties on the transfer of 108 BS in 1959.  He argued that the father must have intended a gift to WYL as he was in his 60s or 70s and even if he had intended to retain beneficial interest over this property, it should be inferred that the beneficial interest was intended to remain with the father during his lifetime and it was intended to pass to WYL after he passed away.  Counsel also relied on the evidence of one of the sisters of WKY, Wong Fung Yee (“WFY”), who testified that WYS had told her that WYS held the assets of WYL in trust on behalf of the Wong family and WYS would live on the interests earned on the fixed deposits, that WYS did not have money and that all the money belonged to WYL.

33.  The above contentions all go to the weight to be given to various pieces of evidence from which inferences might or might not be drawn.  They clearly do not meet the stringent requirements to disturb the findings of fact of the trial judge.

34.  Mr Suen made elaborate submissions on the parties’ intention premised on the insufficiency of evidence to rebut the presumption of resulting trust, which he contended should arise in favour of WYL.  It is not necessary to deal with them in any detail.  Firstly, it is not correct to approach the parties’ intention in that way, as it is unnecessary to resort to presumption where there is actual evidence of intention, as the judge had found.  Secondly, the judge’s primary holding is that a presumption of resulting trust does not arise having rejected the factual foundation for it, and he had found on the evidence the common intention on beneficial ownership was that the sisters were true joint beneficial owners of PJ Court and of the funds in the joint accounts.

35.  For all the above reasons, I reject the challenge to the holding that there was no resulting trust in favour of WYL.  WKY has failed to discharge the onus of establishing that the beneficial ownership in the assets held jointly by WYL and WYS should be different from the joint legal ownership.

The will validity issue

36.  The Will was made six months before WYS passed away on 3 December 2006 at the age of 86.  The contest here is testamentary capacity.  Mr Suen contended that MHC, who sought to propound the Will and hence bears the legal burden, has not established that the three limbs as to testamentary capacity laid down in Banks v Goodfellow (1869-70) LR 5 QB 549 at 569 are met.  The relevant questions addressing the three limbs about WYS’s testamentary capacity are as follows:

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

(2)   If WYS was capable of understanding the extent of the property of which she was disposing?

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

37.  I will first relate the relevant background matters (taken from the judgment and supplemented by the medical notes and hospital records) and the findings in the judgment:

(1)   The cause of death of WYS recorded on the death certificate was colon cancer. She had been suffering from this disease for over a year before her death, for which she had refused medical treatment.  In late January 2006, she suffered a fall at home and fractured her right hip, affecting her mobility, for which she also refused operative treatment.  By 25 May 2006, WYS’s colon cancer had undergone metastasis, and she was suffering from anorexia and malnutrition.  She was admitted to hospital on 26 May 2006 and was discharged the following day.  At that time, she was wheelchair bound and was totally dependent on assistance for self‑care.  She was re‑admitted to hospital on 28 November 2006 and passed away on 3 December 2006.

(2)   The judge drew a “real distinction” between WYS’s deteriorating physical health and her mental health[7].  In the medical notes and hospital records, there was no reference to senile dementia or anything like it.  In fact, throughout 2006 until the month before her death, the records identified no mental or cognitive problem or incapacity.  In the notes of examination of a registered nurse dated 1 February 2006, it was recorded that WYS’s mental state was “good”, mental ability was “conscious” (as opposed to “confused”), memory was “normal”, emotion was “calm”, and verbal communication was “normal”.  The same observations were recorded for the hospital clinic attendance on 26 May 2006.  It was only in the notes dated 28 November 2006 (five days before her death) that her mental state was recorded as “tired”, and her verbal communication as “inarticulate”, albeit she remained conscious and calm.

(3)   In early February 2006, Wong Sum (a family friend of some 50 years and regular visitor) visited WYS after her fall at home.  WYS did not at first recognize him until prompted by WFY.  WYS then had a discussion with Wong Sum and insisted on giving him a lai see packet because he was such an old family friend and needed it.  The judge did not think this transient failure to recognize someone, almost immediately rectified, would point convincingly to any relevant diminished mental capacity[8].

(4)   There was evidence from family members on her mental condition.  Other than the incident relating to Wong Sum, WFY was not able to refer to any string of occasions when she doubted WYS’s mental capacity or competence (notwithstanding she was a frequent visitor, albeit less after February 2006 because a carer had thereafter been employed by MHC to look after WYS).  From the evidence in WYS’s letters to WKY, and other evidence from a great nephew Johnber Mok, who described her as always of clear mind and “amazing” in the way that she would discuss current affairs, the judge found that she was “clearly very intelligent and interested in what was going on” and did not see from the evidence “any real suggestion that that changed at any material time”[9].

(5)   It was between the February and May hospital visits that WYS began preparations for the making of the Will.  The particular solicitors’ firm, KP Lam & Co, was chosen by MHC.  WYS was first seen by a staff member of the firm, Ms Chan Lee Fong, on 15 May 2006[10], at home. Ms Chan (who was not called as a witness) interviewed WYS and obtained instructions from her, which were recorded in Chinese in a letter of appointment and a will checklist, both signed by WYS in confirmation.  WYS’s instructions were for the Will to be drafted in Chinese, it was to be a “universal will” (dealing with all property), and for MHC (identified correctly as her nephew; the Chinese characters外甥were accurately amended to read姨甥) to be appointed executor and sole beneficiary.

(6)   Ms Chan requested that WYS should obtain a doctor’s certificate about her mental well‑being on the day intended for the making of the Will.  This was because of the firm’s practice to ask for such a certificate for any one making a will if that person was over 70 years of age or in hospital.

(7)   On 6 June 2006, WYS was accompanied by MHC to see Dr Kan Ka Kit, an orthopaedic surgeon who treated her in hospital in February 2006 when she fractured her hip.  Dr Kan was asked to provide a certificate, which he did in the following terms: “Ms Wong attended my clinic on 6/6/06.  She showed coherent speech.  She is mentally fit to make decision.”  Dr Kan gave evidence he had not been asked to make the certificate for the purpose of WYS making a will and thought he was being asked to certify that she was mentally competent to have decided how she should be treated for her physical conditions, in particular as regards her refusal to undergo operative intervention for her fractured hip in February 2006.  He considered WYS to be fit to make significant medical decisions.

(8)   After obtaining the certificate from Dr Kan, WYS returned to her home with MHC, where she was attended by Mr Lam Kin Pui, the principal of the firm, and Ms Chan.  WYS produced the certificate to them, and they repeated the terms of the Will to her and confirmed with her that it accorded with her prior instructions and wishes. After reading and confirming the content of the Will, it was signed by WYS and witnessed by Mr Lam and Ms Chan.  All three also signed at the bottom of each page and on the execution page.  The entire process was about 30 minutes.  No suspicion was raised in the mind of Mr Lam as to her capacity to understand and make a proper testamentary provision by the Will.  MHC was not in the same room when the Will was executed although he was present in the apartment.  A nurse or carer was also present, but no party had sought to adduce any evidence from her.

(9)   After the death of WYS, MHC handed to WKY and WCW a document dated 26 December 2006 by which he notified them of the address for any enquiry to be made as regards the will of WYS and that was the address of the firm of Mr Lam.  MHC was told by WYS to give some notice to WKY and WCW.  The judge found it likely that as the Will made MHC both executor and sole beneficiary, WYS could have anticipated that either or both of WCW and WKY might potentially be disappointed or even upset[11].

38.  The judge was satisfied on the balance of probabilities that WYS was of sound mind when she made the Will and, at the end of the day, the court’s conscience has been satisfied that the Will genuinely reflects her true testamentary wishes and that she clearly understood the content and meaning of the Will[12]. He had this to say at §206 of the judgment:

“The Will was simple, and readily understandable by a lady of WYS’s intelligence and education. I accept that an enquiry should look below the surface of the document, and consider if the testator had a real understanding of what might be the subject of the document, and perhaps who might have been candidates as beneficiaries. It was ‘universal’ and so dealt with all property. There is nothing inherently unlikely – and certainly nothing “irrational” as was suggested for WKY – in WYS’s decision, as an unmarried and childless woman the last of her generation and with many potential successors long settled overseas and rarely seen, to appoint a Hong Kong resident nephew (one who has been involved and concerned in looking after her when she most needed it) as her sole executor and beneficiary.”

39.  Mr Suen argued that the judge had only made a bare reference to Banks v Goodfellow[13] and did not specifically address each of the three criteria in relation to testamentary capacity.  At most, the judge had only addressed the first limb (if WYS was capable of understanding the nature of the act of making the Will and its effects) but not the second and third limbs (if she was capable of understanding the extent of the property of which she was disposing, and if she was able to comprehend and appreciate the claims to which she ought to give effect).  Counsel placed heavy reliance on the judgment of the Court of Appeal in Choy Po Chun & Anr v Au Wing Lun [2018] 2 HKLRD 864.

40.  As in that case, the solicitor here did not follow the checklist set out in “Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers” published by the British Medical Association and the Law Society.  Nor was the Will witnessed or approved by a medical practitioner who would make a record of his examination of the testator and his findings, following the “golden rule” referred to in Kenward v Adams (1975) The Times, 29 November 1975.  In their interaction with WYS, Mr Lam and Ms Chan had asked no questions if WYS had any other living close relative, the size of her estate or the nature of her assets.  Mr Suen contended that they had plainly not directed their minds to ascertain if the second and third limbs were satisfied and an inference could not properly be drawn from the evidence that the second and third limbs (if not all three) had been met. In the circumstances, the judge’s reliance on the execution of the Will by WYS before Mr Lam and Ms Chan was misplaced.

41.  Even though the judge had not specifically addressed each of the three criteria for testamentary capacity, it seems to me in §206 he may well have implicitly found that all three criteria were satisfied.  In any event, unlike Choy Po Chun & Anr v Au Wing Lun, there is sufficient basis for inferences to be properly drawn from the evidence and findings as summarized above that not only the first criterion but the second and third were also satisfied.

42.  The Court of Appeal held in Choy Po Chun that the trial judge had only addressed the first of three criteria and there was no proper basis for requisite inferences to be drawn that the other two were met.  The relevant fact situation in that casewas very different.  In contrast to the mental condition of WYS, the testator was suffering from dementia, the severity of which would probably be between mild and moderate.  WYS gave instructions for the Will to Ms Chan directly.  In Choy Po Chun, the instructions for the will were relayed to the solicitors’ firm by one of the beneficiaries.  The testator in that case left surviving him his wife, three children and six grandchildren, he had a history of having made previous wills and left a substantial estate of over $1 billion.  There is no evidence of any previous will made by WYS.  Her estate comprised just the property she resided in and cash in bank accounts of not more than $350,000.  She was an unmarried and childless woman.  She appointed as her executor and sole beneficiary her nephew MHC who was resident in Hong Kong and had been looking after her.  The judge also found it likely she could have anticipated that WCW and WKY (both have long settled overseas) might potentially be disappointed or even upset about the appointment in the Will.

43.  In light of the facts in this case, I do not think the judge was in error in relying on the due execution of the Will by WYS before Mr Lam and Ms Chan, even though they had failed to follow the good practice to assist in the avoidance of disputes (not a rule of law) in the checklist in the “Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers” and the golden rule in Kenward v Adams.  That said, I cannot emphasize too strongly that solicitors charged with drafting a will should carry out proper groundwork of the kind as discussed in some detail by Cheung JA in Choy Po Chun at §§2.3 to 2.7.

44.  Mr Suen criticized the judge’s reliance on the evidence of Dr Kan as misplaced and again emphasized that the doctor, who is an orthopaedic surgeon, did not direct his mind to the three limbs in Banks v Goodfellow.  It was also contended that as Ms Chan was not called to testify, the court should draw adverse inference against MHC.

45.  The judge expressed the view that he does not think “the assessment of a person’s mental capacity to make competent decisions as regards their own medical care and treatment is likely to be fundamentally different from the assessment of that person’s mental capacity to make competent decisions as regards their own testamentary wishes.”[14]  This may be stating it too broadly as this general statement may not be aptly applied to all kinds of factual situation.  But more pertinently, it must be read with the sentence immediately following: “The important point is that it is sufficient if the testator has such a mind and memory as will enable him or her to understand the elements of which the will is composed and the disposition of property in its simplest forms: see, for example, Banks v Goodfellow …” This indicated that the judge had not lost sight of what to look for in ascertaining testamentary capacity and that he had not misdirected himself in law.

46.  Dr Kan’s evidence may well leave much to be desired but it is only one piece of evidence considered by the judge, who did not appear to have given it critical weight.  On the facts and findings as summarized above, there is sufficient material to infer that the criteria for testamentary capacity were satisfied.

47.  Before leaving Dr Kan’s evidence, I wish to say that the manner in which the solicitors’ firm requested a doctor’s certificate about WYS’s mental condition on the intended day for the execution of the Will is most unsatisfactory.  Dr Kan gave evidence he did not think it was within his ability as an orthopaedic surgeon to certify someone fit to execute a will, although he accepted that when he studied medicine, he was taught how to examine a patient’s mental condition.  It is common sense and prudent practice that when a medical practitioner is asked to examine a person for the purpose of certifying he is fit to execute a will, the solicitors instructed for this purpose should first provide to the medical practitioner a proper description of the legal test for testamentary capacity, so that the latter could make a proper assessment in that regard.

48.  There is nothing in the point about not calling Ms Chan to testify.  The judge did not appear to have relied on the hearsay evidence of Mr Lam regarding the earlier meeting between Ms Chan and WYS.  The letter of appointment and will checklist signed by WYS were adduced.  The judge is entitled to give such weight to these documents as he saw fit.

49.  There is no merit in any of the contentions raised on behalf of WKY on the will validity issue.  His challenge regarding the holding that the Will is valid must fail.

50.  Lastly, as regards the complaint that the judge did not deal with claims on the ownership of personal chattels and documents of WYL found in the safe deposit box of WYS, this was not raised in the pleadings or even addressed in the written closing submissions of WKY at the trial.  There is no valid basis for the appeal court to deal with this dispute raised in the supplemental notice of appeal of WKY.

The adoption issue

51.  The judge held that WKY is the adopted son of WYL within the meaning of section 2(2)(c) of the IEO, namely, “a person adopted under … an adoption made in Hong Kong in accordance with Chinese law and custom before 1 January 1973.”  This holding comprised findings on Chinese law and findings of fact.

52.  In respect of Chinese law, the judge made these material findings based on the expert evidence adduced:

(1)   The relevant Chinese law is the Qing Code (大清律例) section 78, which is concerned primarily with appointing a successor to continue the male family line (立嫡子 or 立嗣).  As a single woman (a femme sole), WYL did not have the capacity to make a full adoption for the appointment of a successor and so the appointment of a male successor could not have been achieved through the adoption of WKY by WYL[15].

(2)   Although a femme sole could not adopt a legal heir, there seems no reason why she should not have an i-tze (courtesy child; 義子), male or female, by informal or quasi-adoption.  Chinese law recognizes that such a child may have some share in the family property when adopted by the male head, and inferentially the same right might accrue to one adopted by a femme sole.[16]  The Qing Code expressly recognizes the status of an i-tze as a member of the adoptive family, and part of the provisions in the Li (例) of section 78 are intended to provide appropriate protection to that status, including as to potential family inheritance, depending upon the quality of the relationship between the i-tze and the adoptive parents[17].

(3)   There are no requirements for the formalities set out in the Qing Code, whether as to formal or informal adoption.  No requirements were prescribed as to how an i-tze was taken[18].

53.  The above findings on the status of an i-tze are akin to findings on foreign law, which is an issue of fact that must be proved by evidence (Ma Siu Siu Vivian v Tam Wai Mun Alice & Anr, HCAP 13/2011, 7 March 2016, §10).  The appeal court should be slow to interfere with a judge’s findings on Chinese law based on expert evidence.

54.  As for factual matters, the judge made these material findings:

(1)   WKY’s natural mother, NYC, agreed and was willing to give WKY to WYL for adoption.  On the third day of his birth, an adoption ceremony took place and an heir lamp was lit in front of the ancestors[19]. This would normally have been considered a valid adoption under Chinese law, but for the lack of capacity in WYL as an unmarried woman to be able to adopt a child for the purposes of appointing a successor to continue the male family line[20].

(2)   There was an intended adoption by the transfer of parental rights and obligations from WKY’s natural parents to WYL and thereafter WKY became a part of WYL’s family to the practical exclusion of his natural parents and family[21].

(3)   All the expert witnesses agreed that WKY can be regarded as an i-tze[22].

55.  In his skeleton submission, MHC contended that as a single woman, WYL did not have the capacity to make a full adoption for the appointment of a successor, and that WKY is not the adopted son (養子) or i-tze of WYL.  He also included a revised index with new documents in his skeleton submission being items 29 to 33.

56.  MHC’s contention that WYL did not have the capacity to make a full adoption for the appointment of a successor is not to the point.  The judge had made a finding as such, noting that all the experts were in agreement on this.  The real issues are whether as a matter of Chinese law an i-tze can properly be regarded as an adopted child under the Qing Code[23], and whether as a matter of fact WKY is the i-tze of WYL.  As summarized earlier, the judge had ruled against MHC on both issues.

57.  There is nothing to indicate that the judge had not considered the various factual matters referred to in MHC’s submission.  MHC’s contention that WKY is not the i-tze of WYL is without foundation.  I will deal with the fuller arguments advanced in this respect when I consider the grounds in the amended notice of appeal.

58.  For the new documents included in his submission, only items 29 and 33 were produced at the trial.  They are of little relevance to the issues at hand.  Item 30 was among the new documents MHC had sought to adduce on appeal and his earlier application issued by his former lawyers was rejected by the Court of Appeal on 19 October 2018.  Items 31 and 32 are not the subject of any summons to adduce new evidence.  Even if such an application were to be made, the requirements in Ladd v Marshall [1954] 1 WLR 1489 would not be met.  MHC is not entitled to rely on items 30 to 32.

59.  MHC did not elaborate on any of the seven grounds of appeal in the amended notice of appeal prepared by his former lawyers.  I propose to deal with them succinctly.

60.  In ground 1, it was contended that the judge was wrong in holding that based on the presence of the intention of transfer and the permanent transfer of parental rights and obligations from the natural parents, WKY was the i-tze and/or adopted son of WYL in accordance with the Chinese law and custom.  In support of this contention, it was argued that under the Qing Code, the Chinese concept was in respect of succession in the sense of keeping the male line (繼嗣), so that family ancestral worship would continue by the appointed successor and such concept is in contrast to that of adoption (領養), and the reference to i-tze in section 78(3) of the Qing Code was in relation to inheritance of the family property but not succession.  As there is clear stipulation in the Qing Code (i.e. section 78) governing succession, there is no place for the application of any custom to the Chinese concept of succession.

61.  That argument would appear to be premised on the evidence of the expert witness called by MHC as summarized in §104 of the judgment and was rejected by the judge.

62.  I agree with the judge.  The judge was clearly aware of the distinction between succession and inheritance in the Qing Code.  The issue is not whether WKY was or could be adopted as successor under Chinese law but whether he is the adopted son of WYL in accordance with Chinese law.  As the judge had noted, there is nothing in the Qing Code which prohibits the taking of an i-tze.  On the contrary, the Code expressly recognizes the status of an i-tze as a member of the adoptive family, and part of the provisions in section 78 are intended to provide appropriate protection to that status, including as to potential family inheritance.  He concluded in §117 of the judgment: “In effect, whilst section 78 of the Qing Code is essentially or primarily concerned with questions of succession, and adoption for that specific purpose, the provisions also presuppose a different form of adoption.” The judge was entitled to reach that view on the basis of the expert evidence before him.

63.  In grounds 2 and 3, it was contended that WYL being a femme sole could not adopt any one as her child under Chinese law and custom.

64.  All the expert witnesses agreed that WKY can be regarded as an i-tze.  The judge had considered the expert evidence and the commentary in Chinese Family and Commercial Law (1921) by George Jamieson, pp 151 to 152 (referred to by all the experts) in arriving at the conclusion that a femme sole can nevertheless adopt an i-tze by quasi‑adoption under Chinese law.  There is no basis to interfere with his conclusion.

65.  I agree with Mr Suen that the reference to Chinese custom is a red herring.  As the judge had found that adoption of an i-tze by a femme sole is not prohibited by (and is expressly recognized under) Chinese law, there is no need to pray in aid Chinese custom.

66.  The contention in ground 4 is that the judge was wrong to hold that WKY is an adopted son of WYL within the meaning of section 2(2)(c) of the IEO.  This is just another way of running the argument that as WKY was not, and could not, be adopted by formal adoption as a successor under the Qing Code, it was wrong to hold that he is an adopted son of WYL.  I reject it for the same reasons as in the grounds already canvassed.

67.  The remaining grounds, grounds 5 to 7, are concerned with challenges to findings of fact made by the judge in relation to the evidence of WKY and his natural mother NYC.  The arguments advanced in the grounds of appeal are a repetition of the points raised below and dealt with in the judgment[24].  No palpable error of any kind has been demonstrated.  Nor can it be said that the findings of fact are plainly wrong.  There is simply no basis to disturb the findings of the trial judge who had the advantage of having received evidence at first hand.

68.  None of the grounds advanced by MHC to challenge the judge’s findings on the adoption issue are of merit.  His appeal must fail.

Conclusion and costs

69.  As WKY has failed in the resulting trust issue and the will validity issue, CACV 166/2014 must be dismissed.  We have heard the parties on costs and there is no dispute that costs should follow the event.  MHC’s costs of this appeal should be borne by WKY, to be taxed if not agreed.

70.  MHC has failed in the adoption issue, so CACV 239/2014 must be dismissed. WKY’s costs of this appeal are to be paid by MHC, to be taxed if not agreed.