TSUI CHEUNG HING v. TSUI HING LAN

CACV 78/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 78 OF 1999

(ON APPEAL FROM HCA 8483 OF 1997)

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J U D G M E N T

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Leong, J.A.:

1. This is an appeal against the judgment of Yam, J on 20th January 1999 dismissing a claim by the plaintiff to set aside a Deed of Gift in respect of two properties in Yuen Long New Territories. The Deed was executed by the plaintiff on 18th July 1992 in favour of the defendant. The plaintiff has filed detailed grounds of appeal, but these can be briefly summed up as follows:

"1. The Judge had not considered his alternative plea of undue influence; and

2. The evidence does not support the Judge's findings."

2. The plaintiff's case is that he signed the Deed in the honest but mistaken belief that it was for making a property search. He never intended to give the properties to the defendant. Alternatively, the plaintiff says that because the defendant had been taking care of him he reposed his trust and confidence in the defendant and the Deed was procured by the defendant's undue influence on him.

3. In view of the nature of the claim and the grounds of appeal, it is necessary for me to set out the evidence in some details. The plaintiff's evidence is this. He is the eldest son of the family and he has two younger brothers, Tsui Mou-fat and Tsui Ping-fat. The defendant Tsui Hing-lan is the daughter of Tsui Ping-fat. The plaintiff has been blind since 1962 but he is able to do the daily chores and go around the village without assistance. He considers himself a rather strong and not easily persuaded person. In 1996, because Tsui Ping-fat was responsible for taking care of ancestral burial grounds, the plaintiff gave the title documents of the two properties to Tsui Ping-fat so that the latter could collect rent for that purpose. Later the plaintiff learnt that Tsui Ping-fat attempted to transfer the properties to his own name but failed to do so because no transfer could be made without the plaintiff's signature. As a result, they were not on good terms. The plaintiff used to be assisted by his daughters who visited him once a fortnight to buy food for him. But in 1992, the defendant occasionally came and bought food for him. Sometime in that year, the defendant and her husband took the plaintiff to what he assumed to be a solicitors' office and there the defendant told him to sign a piece of paper for making a property search to see if Tsui Ping-fat had secretly transferred the properties to someone else. On the instruction of a person in the office, he signed on a document which he believed was for property search. The defendant told him that person was a solicitor. The plaintiff says he was never explained of the contents of that document but he signed it nevertheless. Thereafter he heard no more of the two properties.

4. In 1998, his nephew Tsui Chi-kin suggested to him to make a property search because Tsui Chi-kin suspected the defendant have done something with the properties. The plaintiff did so. He then realised that what he signed in 1992 was a Deed of Gift giving the two properties to the defendant. His assertion is that the two properties belong to the family and could only be inherited by a male member of the family and there could be no reason that he could have passed the two properties to the defendant, a female member of the family. The plaintiff says that he made a will on 25th July 1997 leaving the two properties to his nephew Tsui Chi-kin and he could not have signed the Deed in 1992 to give the two properties to the defendant.

5. In his evidence in cross examination, the plaintiff denied that the defendant had ever taken care of him not to say in 1992. He told the Judge that the defendant's assistance to him, if any, was limited to four occasions when she visited him in 1994 and bought food and collected public assistance for him. He agreed that when he signed the Deed he understood what the solicitor said to him in punti and on that occasion, the defendant had told him the two properties were transferred to her name but his response was that they could not be transferred to a woman. He admitted that when he made his will in July 1997, it was explained to him in punti by his solicitor and he understood it before he signed.

6. The defendant's case is that the plaintiff of his own free will transferred the properties to her and signed the Deed fully understanding it to be a Deed of Gift of the properties to her. The defendant's version of what transpired is this. Since she was a small child she had been on good terms with her uncle, the plaintiff. After the plaintiff became blind, his daughters took care of him but they ceased to do so in 1991/92. She then took over the task and visited him weekly to buy food for him and collect for him his public assistance. Despite his handicap, the plaintiff was able to go around without help in his daily life. The plaintiff only became hard of hearing in 1992 but he understands punti without difficulty.

7. In 1992, the plaintiff told her his son Kwai Choi was not filial and he would not transfer the properties to Kwai Choi even though Kwai Choi had asked him to do so. The plaintiff told her he inherited the properties simply because he was the eldest son of the family but in fact, the properties should have been inherited by the defendant's father who was responsible for taking care of ancestral burial grounds. Because the defendant had been looking after him, he thought that the properties should be in her name so that the properties would in any case go back to the defendant's side of the family. The plaintiff then told her to instruct solicitors to handle the matter and that her father who had the title documents should also go along to the solicitors office so that her father knew what happened.

8. On 18th July 1992 the defendant and her husband took the plaintiff to Raymond Chan & Co. and her father Tsui Ping-fat was also there. Mr. Tsoi Kin-wan of the solicitors firm in the presence of all parties, produced the Deed of Gift and explained the contents in punti to the plaintiff, in particular that the two properties were thereby transferred to the defendant by way of gift. The plaintiff was asked if he understood and he replied he did. The defendant herself repeated to the plaintiff in Hakka, the native tongue of the plaintiff, the question if he understood clearly what Mr. Tsoi had explained to him. The plaintiff said he understood. The plaintiff then signed on the document. After that, the plaintiff told the defendant that he had given the two properties to her. No influence or undue pressure had been exerted on the plaintiff to make him sign nor there was anything said or done so as to mislead the plaintiff that he was signing something else. After the visit to the solicitors' office, they all went to have tea together even though the plaintiff had hitherto not been on good terms with Tsui Ping-fat for a long time.

9. In 1997, the defendant was about to emigrate to the United States. She told the plaintiff that she would not be able to take care of him any more. The plaintiff asked her if the defendant's sister would do so. The sister refused. The plaintiff was apparently upset and he told the defendant that he would deny that he had signed a Deed of Gift in her favour. The defendant asserts that she never intended to return to Hong Kong after she emigrated and she had no intention whatsoever to dispose of the properties and if she did have such intention, she could have done so long before she emigrated.

10. Two police officers who had interviewed the plaintiff in punti when he went to report that he had been cheated of the properties were called by the defence. They testified that the plaintiff understood punti. Mr. Tsoi Kin-wan of the solicitors firm also testified confirming the evidence of the defendant that he had explained in punti the contents of the deed to the plaintiff who replied he understood.

11. The deed no doubt contained the address of the defendant instead of the plaintiff. The plaintiff asserts that this is proof that the defendant had tricked him into signing it. The defendant admitted she gave instructions to Mr. Tsoi to prepare the deed and she gave her address instead of the plaintiff's to be put on the deed. But Mr. Tsoi explained that when he asked for the plaintiff's correspondence address, the defendant gave her own address because postal service was poor in villages and important letters might not reach the plaintiff if the plaintiff's village address was used as correspondence address.

12. Thus, two conflicting versions of events were before the Judge. The Judge concluded that he accepted the defendant's version rather than the plaintiff's and he found that the plaintiff understood punti and clearly knew the nature and effect of the deed and he gave the two properties to the defendant out of his own free will. Apparently the question of the defendant's address on the deed did not affect the Judge's acceptance of the defendant's version. The Judge gave nine detailed reasons for his conclusion:

"(1) The Plaintiff said he knew that the Properties could not be taken away from him without his signature. If as he alleged that the Defendant told him the document to be signed was for the purpose of conducting search on the Properties to see if Tsui Ping Fat had changed the ownership, why should he do so knowing full well that no one could take away his Properties without his signature. There was simply no need to conduct a check on the Properties at all.

(2) Mr Tsoi Kin Wing, the solicitors' clerk, said he had clearly interpreted the content of the Deed to the Plaintiff in punti and the Plaintiff replied in punti that he understood and nodded his head. Mr Tsoi and his firm was unknown to the Defendant. She just chose Mr Tsoi's solicitors' firm, M/s Raymond Chan & Co., by picking it up from a commercial building in Yuen Long. If the Defendant misrepresented to the Plaintiff that what he was signing was only a document for the purpose of conducting a land search, it could hardly be done without the assistance of Mr Tsoi. In any event, there was no reason why Mr Tsoi would turn a blind eye to the Defendant's misrepresentation.

(3) It is common ground that the Plaintiff was not in good talking terms with the Defendant's father. There was no reason for the Defendant to invite her father to go along to the solicitors' office. If it was a scheme of fraudulent misrepresentation, it would only jeopardize such a scheme by inviting her father to go along. The presence of Tsui Ping Fat did not arouse the Plaintiff's suspicion at all. The only reason why she had invited her father to come along was because the Plaintiff had asked her to do so.

(4) The Plaintiff admitted knew that the Defendant's father Tsui Ping Fat was at the solicitors' office. It had never occurred to the Plaintiff that Tsui Ping Fat would try to deprive him of the Properties. If the whole purpose of going to the solicitors, as alleged by the Plaintiff, was to find out whether Tsui Ping Fat had obtained his Properties, there was simply no reason why Tsui Ping Fat should be there when the Plaintiff was signing a document only for the purpose of conducting the search to see whether Tsui Ping Fat had deprived the Plaintiff of his Properties.

(5) It is also common ground that after the visit to the solicitors' office, everyone, including the Plaintiff and Tsui Ping Fat, went along to have tea together after they have not talked to each other for over 30 years. This is only consistent with the Defendant's version that the Properties were there and then given back to the Defendant and her father, that is, 'their side of the family'. It is simply illogical that the two of them suddenly sat the same table and had tea together when moments ago the Plaintiff was trying to find out whether the other one had wronged him.

(6) There is no reason why the Defendant should have told the Plaintiff that she was about to immigrate to the United States of America in June 1997 for good. The Defendant did so simply because she must tell the Plaintiff that she could not go on looking after him by buying food for him from time to time. I accept the Defendant's version that it was because of her cessation to attend to the Plaintiff that the Plaintiff was very upset by her departure. So much so the Plaintiff changed his mind and wanted to give the Properties to another person instead of the Defendant.

(7) The Defendant said the Plaintiff could speak Cantonese with Hakka accent and the Plaintiff could understand Cantonese. This is also supported by three other independent witnesses that the Plaintiff can speak and understand Cantonese, namely:

(a) Mr Tsoi Kin Wing, the aforesaid solicitors' clerk;

(b) SDPC 1762, the one who took a statement from the Plaintiff; and

(c) DPC 5513, the second police officer who took a supplementary statement from the Plaintiff.

All the aforesaid three persons could not speak Hakka at all.

(8) On 9 February 1998, the Plaintiff made a will in favour of Tsui Chi Kin. It was clearly stated therein that the solicitor, one Mr Leung Chun Kuen, interpreted and read over the will to the Plaintiff in Cantonese and the Plaintiff understood the same. Tsui Chi Kin said he attended the aforesaid execution and the solicitor communicated with the Plaintiff, being the testator, through Tsui Chi Kin himself in Hakka. However, Mr Leung did not state that to be the case in his affirmation nor in the will itself. If Mr Leung could speak Hakka, he would use Hakka to explain to the Plaintiff and stated the same in the interpretation clause. If he could not, it would be very dangerous and unprofessional for him to allow the sole beneficiary to explain the will to the testator.

(9) The Plaintiff admitted that he had been listening to the local radio in Cantonese for ten odd years and he could understand the news broadcast in Cantonese. The Plaintiff was born in Hong Kong and had worked in Hong Kong before he became blind in 1967."

13. Suffice to say that from the Judge's reasons, it is apparent that he had considered all the material aspects of the evidence before him and his findings of the primary facts and the conclusions he drew from the primary facts are all well supported by evidence.

14. One of the grounds of appeal complains that the Judge has not gone into the claim by the plaintiff that he signed the Deed under undue influence actual or presumed as a result of the relationship between the plaintiff and the defendant. It would appear from the judgment that the Judge had not addressed to this issue. However, this matter was disposed of during the trial. At the early stage of the trial, counsel for the plaintiff indicated that there was no evidence of actual undue influence on the plaintiff's side but he informed the Judge he would consider the matter further, postponing it to the end of the trial when all evidence had been called, so that he could assess whether there was any evidence on which he could address on that issue. At the end of the trial, counsel for the plaintiff indicated to the Judge that he would not address on this issue further and would confine himself to the evidence regarding the circumstances under which the deed was signed by the plaintiff. Thus, although counsel for the plaintiff did not specifically indicate abandonment of the issue of undue influence actual or presumed, from his address to the Judge in his final submission, clearly the issue was abandoned by the plaintiff. In any case, the plaintiff admitted that he was of strong character and not easily persuaded and the defendant's assistance to him was to a very limited extent. Even if their uncle and niece relationship is taken into account it would be difficult to see how the plaintiff could have established that he had reposed trust and confidence in the defendant from which undue influence may be presumed.

15. In Aktieselskabet Dansk Skibsfinansiering v. Wheelock Marden Co. Ltd. [1998] 3 HKC 153, the Court of Appeal sets out the approach to be adopted on appeal when there is a challenge on findings of fact by the Judge. At page 162 of the judgement of Godfrey and Liu, JJ.A, their Lordships had this to say:

" ... we remind ourselves of the guidance given by the authorities as to the approach which we in this court should adopt when faced with a challenge to a judge's finding of primary fact. Those authorities, as we read them, establish that although an appeal to this court is by way of rehearing, that does not mean that this court re-tries the case. It is in the first instance the function of the trial Judge, not this court, to find the facts; and we ought not to substitute our own findings of fact for his merely as a result of our own appreciation of the case. In respect of a judge's finding of primary fact, particularly a finding based on the credibility of a witness, before we disturb such a finding, we must be satisfied that there was no evidence to support it; or that it ran counter to documentary or other incontrovertible evidence which the Judge must have overlooked; or that it can only have been based on a misapprehension of the facts or some faulty process of reasoning. ... "

16. Following that approach, I do not see anything in the Judge's findings based on the credibility of the witnesses that would warrant interference. I would dismiss the appeal.

Keith, J.:

17. I agree that this appeal must be dismissed for the reasons so clearly given by Leong, J.A. In particular, I agree that Yam, J. cannot be criticised for not addressing the question of undue influence in his judgment. The combined effect of what the Plaintiff's counsel said before and after the evidence amounted, in my view, to an abandonment of the Plaintiff's pleaded case that the deed of gift should be set aside for undue influence.

18. I only wish to add a few words of my own relating to the fact that the Plaintiff has not appeared on the hearing of the appeal nor has he been represented. In those circumstances, two issues arose when the appeal was called on for hearing:

(i) Should the hearing go ahead or should it be adjourned?

(ii) If it should go ahead, should the appeal be dismissed on the basis that there was no-one present to argue the Plaintiff's case, or should the appeal be considered on its merits, the court adjudicating, as best it could, on the issues raised in the Notice of Appeal?

Mr. Francis Yip for the Defendant contended that the hearing should not be adjourned, but because the Plaintiff was not present the appeal should be dismissed with costs. For my part, I rejected the latter argument. If the concession made by leading counsel in Ford v. China Light and Power Co. Ltd. (PCA 9/97) is correct (and the Privy Council thought it was), the failure of the Plaintiff to attend the hearing of the appeal, whether by counsel or otherwise, would not justify the court in dismissing his appeal without a consideration of the merits.

19. I turn to whether there should have been an adjournment of the hearing of the appeal. Although the Plaintiff would undoubtedly have known that the appeal was due to be heard today, I was concerned whether the Plaintiff knew that there would be no-one in court to argue his appeal. Two days ago, an order was made under Ord. 67 r. 1(1) declaring that his solicitors had ceased to be the solicitors acting for him. Yesterday, those solicitors certified that a copy of that order had been left at the Plaintiff's contact address, namely a room in an estate in Tai Po. In view of the Plaintiff's various infirmities, and in view of the fact that he had, up to the date of the trial at any rate, been living in one of the houses to which the deed of gift related, it may be that the Plaintiff did not know that an order had been made which had the effect of no-one being in court to argue his appeal.

20. On the other hand, the order made under Ord. 67 r. 1(1) could only have been made if the summons for an order under Ord. 67 r. 1(1) had been served on the Plaintiff. The Plaintiff must therefore be treated as having known that an order which had the effect of permitting his solicitors to withdraw from the record could well be made. In those circumstances, and because the Plaintiff may well have been content for the appeal to go ahead in his absence, I agreed that the hearing of the appeal should not be adjourned. It is, in theory, open to the Plaintiff to apply for the judgment given on this appeal to be set aside - provided, of course, that he establishes as a matter of fact that he did not know that no-one would be in court to argue his appeal - though I should not be regarded as in any way encouraging him to make such an application.

Nazareth, V.-P.:

21. I also agree that the appeal must be dismissed for the reasons given by Leong, J.A. I agree in addition with what Keith, J. has said in relation to the plaintiff's absence.

22. I add the following. I am satisfied that the plaintiff had notice that his appeal would be heard today, both in compliance with the applicable requirements and in fact. I am also satisfied that in the particular circumstances the proper course for this Court in the exercise of its discretion was to proceed to hear the appeal. Fortuitously, before their withdrawal, the plaintiff's former solicitors put in very detailed grounds of appeal, almost in the nature of a skeleton argument. In the result, it emerged clearly that the proper course was to proceed to deal with those grounds and not to simply dismiss the appeal as Mr. Ip for the defendant invited us to do. That has the result that it may leave it open to the plaintiff to seek to set aside our judgment, which is a matter that we have not overlooked, nor is it a matter of which Mr. Ip is unaware.

23. The appeal is accordingly dismissed.