TSANG LIN YAU LINDA (sue as the Administratrix De Bonis Non of the Estate of the late LEE WONG FUN CHONG also known as LEE WONG FUN CHONG Florence) v. LEE JUN SING AND OTHERS

HCA 1114/2022

[2025] HKCFI 2927

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1114 OF 2022

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J U D G M E N T

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A.  INTRODUCTION

1.  The Plaintiff, in her capacity as the administratrix de bonis non of the estate of the late Lee Wong Fun Chong (“Mrs Lee”), claims various items of relief concerning dealings in relation to a share in the 4^th Defendant, a private company (“Globalwide”), which was registered in Mrs Lee’s name prior to her death (“the Share”).

2.  Mrs Lee died intestate on 30^th December 2016. Her widower, Lee Sing Man (“Mr Lee Senior”), was appointed as administrator of Mrs Lee’s estate on 13^th March 2018, but he passed away on 29^th July 2019 before completing the administration of the estate. Mr Lee Senior left a will dated 18^th September 2018 (“Mr Lee Senior’s Will”), under which the Plaintiff, Tsang Lin Yau Linda (“the Plaintiff”), was appointed as executrix.

3.  Probate of Mr Lee Senior’s Will was granted to the Plaintiff on 20^th September 2019. Subsequently, the Plaintiff was also appointed administratrix de bonis non of Mrs Lee’s estate by the grant of letters of administration on 21^st January 2022.

4.  The present dispute arises out of the execution of a Deed of Family Arrangements dated 21^st August 2019 (“the First DFA”) by all the legatees under Mr Lee Senior’s Will. Amongst other things, the First DFA dealt with the 50% interest in the Share which devolved on Mr Lee Senior pursuant to the provisions of the Intestate Estates Ordinance (Cap.73).

5.  The Plaintiff challenges the validity of the First DFA on two grounds: first, that she lacked the requisite standing on 21^st August 2019 to distribute any part of Mrs Lee’s estate; and second, by application of the doctrine of non est factum. She further says that the Defendants are estopped from relying on the First DFA.

B.  THE FACTS

6.  Unless otherwise indicated, the following is undisputed or otherwise indisputable, and I find them as facts. In this section, I also resolve a number of factual disputes.

B1.  Dramatis personae

7.  The Plaintiff is one of three legatees under Mr Lee Senior’s Will, and a signatory to the First DFA in that capacity and also as executrix of the will.

8.  The Plaintiff completed her secondary education to the level of the Hong Kong Certificate of Education Examination, although she believes that she did not pass the English examination. After that she worked for the travel agency Thomas Cook. She then worked at another travel agency, El Sol Tours (HK) (“El Sol Tours”), which was owned as to 95% by the late Dr Stanley Ho and as to 5% by Mr Lee Senior. After Mr Lee Senior’s death, the Plaintiff became a director of El Sol Tours. She has been working at El Sol Tours for about thirty years.

9.  It was at El Sol Tours that the Plaintiff came to know Mr Lee Senior. In time, she became a personal assistant to Mr Lee Senior, at least in relation to his personal matters. The Plaintiff says that she also assisted Mr Lee Senior in his business matters and accompanied him, Mrs Lee and Ms Janet Wong on business trips, although the Defendants dispute the extent to which the Plaintiff was involved in Mr Lee Senior’ s business matters.

10.  Mr Lee Senior was a businessman who worked with Dr Stanley Ho for many decades.

11.  The 1^st Defendant, Lee Jun Sing (“Lee Jun Sing D1”), is the elder son of Mr Lee Senior and Mrs Lee. He is one of the two directors of Globalwide. He is a legatee under Mr Lee Senior’s Will, and a signatory to the First DFA.

12.  Lee Jun Wai (“Lee Jun Wai”) is the younger son of Mrs Lee and Mr Lee Senior, and the brother of Lee Jun Sing D1 (together, “the Lee Brothers”). He was (and still is) based in the United States, and therefore played a relatively lesser role in the events in question. He is a legatee under Mr Lee Senior’s Will, and a signatory to the First DFA, yet was not made a party to the present proceedings.

13.  The 2^nd Defendant, Wong Wai Han Stella (“Stella Wong D2”), is the wife of Lee Jun Sing D1 and the registered holder of one of the two shares in Globalwide (which is not the subject of dispute in these proceedings). She is also a director of Globalwide.

14.  The 3^rd Defendant, Wong Fung Mui (“Janet Wong D3”), is the cousin of the Lee Brothers. She has been the company secretary of Globalwide since its establishment.

15.  Globalwide is a private Hong Kong company which holds three properties in Kowloon.

16.  Wendy Lam (“Wendy Lam”) is a partner of Messrs Stevenson Wong & Co (“SWC”). She was engaged by Mr Lee Senior in March 2017 to assist in the administration of Mrs Lee’s estate. She was also engaged by the Plaintiff in the administration of Mr Lee Senior’s estate from about August 2019 to 10^th March 2021 (I deal with the dispute as to whether she also acted for the Lee Brothers below).

17.  The Plaintiff subpoenaed Wendy Lam to give evidence and produce documents at trial (essentially, the entirety of SWC’s file relating to the estate matters of Mr Lee Senior and Mrs Lee, the deeds of family arrangement, and the transfer of the Share). The evidence she gave and the documents she produced (including detailed contemporaneous attendance notes made either by Wendy Lam herself or her assistant Ivy Yeung (“Ivy Yeung”)), most of which were unchallenged, was of much assistance in reconstructing the events which happened, as recounted below.

B2.  Events up to Mr Lee Senior’s death

18.  Mrs Lee passed away intestate on 30^th December 2016. At the time of her death, she was the registered holder of the Share. She was survived by Mr Lee Senior and her two sons, Lee Jun Sing D1 and Lee Jun Wai. Pursuant to s.4 of the Intestate Estates Ordinance (Cap.73), half of the residuary estate of Mrs Lee was to devolve on Mr Lee Senior, and the other half on the Lee Brothers.

19.  In March 2017, Mr Lee Senior engaged Wendy Lam to assist him in handling the application for letters of administration of Mrs Lee’s estate. Mr Lee Senior nominated Janet Wong D3 to provide relevant information concerning Mrs Lee’s estate to SWC. Thereafter, Janet Wong D3 acted as the point of contact between Wendy Lam and Mr Lee Senior.

20.  On 13^th March 2018, letters of administration of Mrs Lee’s estate were granted to Mr Lee Senior. The assets in the Schedule of Assets and Liabilities annexed to the letters of administration named, amongst other things, interests in a number of private companies.

21.  On 18^th September 2018, Mr Lee Senior made his last will. He appointed the Plaintiff as sole executrix. He bequeathed his estate to the Plaintiff, Lee Jun Sing D1 and Lee Jun Wai in equal shares. The Plaintiff was aware of the terms of Mr Lee Senior’s Will around the time that it was made. The Lee Brothers did not learn of the will until after Mr Lee Senior’s death.

22.  On 27^th April 2019, Wendy Lam emailed Janet Wong D3, referring to an upcoming meeting scheduled for 3^rd May 2019. She sought confirmation of the intended re-distribution of Mrs Lee’s estate and attached an Excel table for Janet Wong D3’s reference. The table showed, amongst other things, that Mrs Lee’s interest in a property at Merry Court, Castle Road (“the Merry Court Property”) was to be redistributed to Lee Jun Wai, that Mrs Lee’s interest in a property at Hatton House, Kotewall Road (“the Hatton House Property”) was to be redistributed to Lee Jun Sing D1, and the Share was to be redistributed to Lee Jun Sing D1.

23.  In the event, the meeting at SWC took place on 6^th May 2019. At previous visits to SWC, Mr Lee Senior had been accompanied by the Plaintiff, although the Plaintiff would wait in the reception area and not participate in the meetings held at SWC. On 6^th May 2019, however, Mr Lee Senior asked the Plaintiff to join the meeting. The meeting was attended by Mr Lee Senior, the Plaintiff, Lee Jun Sing D1, Lee Jun Wai, Janet Wong D3, as well as Wendy Lam and Ivy Yeung of SWC. The Plaintiff claimed in re-examination that she left the meeting halfway through; I reject this evidence as:

23.1  when cross-examined about what was discussed at the meeting on 6^th May 2019, she did not mention that she had left the meeting early. It was specifically put to the Plaintiff that she was present at the meeting and heard Mr Lee Senior’s wish that the Share should be transferred to Lee Jun Sing D1, and she did not suggest that she had left the meeting or was not present for any part of it;

23.2  it was only in re-examination that the Plaintiff claimed, for the first time, to have left the meeting halfway through, and after counsel for the Plaintiff, Mr George Chu, said to the court that the Plaintiff’s earlier evidence was that she was called into the meeting half way through (in fact, that was not her evidence – her evidence was that she was in the meeting at Mr Lee Senior’s invitation and as the Lee Brothers were not arguing);

23.3  Wendy Lam, who gave evidence before the Plaintiff did, gave evidence that the Plaintiff had attended the meeting. It was not suggested to Wendy Lam that the Plaintiff had left the meeting at any point or was not present for any part of it;

23.4  the attendance note of the meeting does not record that the Plaintiff left early (or joined late).

24.  According to the attendance note prepared by Ivy Yeung, one of the matters discussed was “Globalwide transfer back to LJS”.

25.  About two months after that meeting, Mr Lee Senior’s health rapidly deteriorated. On 22^nd July 2019, Lee Jun Sing D1 and Wendy Lam visited Mr Lee Senior in hospital. At that time, neither Lee Jun Sing D1 nor Wendy Lam knew that Mr Lee Senior had made a will. Wendy Lam’s attendance note of the occasion recorded the doctor had expressed a view that Mr Lee Senior was not able to sign any documents. There was a discussion between Lee Jun Sing D1 and Wendy Lam that in the unfortunate event that Mr Lee Senior passed away, the transfer of interests in the Merry Court Property and the Hatton House Property could be dealt with by way of a deed of family arrangement, with a cash adjustment (the two properties were differently valued and there had earlier been discussions about obtaining valuations to equalise the position between the brothers). Wendy Lam also noted that Lee Jun Sing D1 had asked Lee Jun Wai to return to Hong Kong to visit Mr Lee Senior.

26.  On 29^th July 2019, Mr Lee Senior passed away. At the time, the administration of Mrs Lee’s estate was not yet complete. The redistribution of the Hatton House Property, the Merry Court Property, and the Share had not yet been effected.

B3.  The appointment of SWC and preparation of the First DFA

27.  There were two telephone calls between Wendy Lam and the Plaintiff sometime between 1^st and 11^th August 2019. Wendy Lam says that in the first of these, the Plaintiff asked Wendy Lam to tell the Lee Brothers about Mr Lee Senior’s Will. In the second conversation, the Plaintiff told Wendy Lam that she had already told the Lee Brothers about the will.[1] Wendy Lam’s note of the second conversation records that Lee Jun Wai joined the call after it started. Lee Jun Wai at that stage was exploring who to appoint to act, and he asked whether Wendy Lam would take up the appointment. Wendy Lam explained that if the Plaintiff, Lee Jun Wai and Lee Jun Sing D1 were in agreement, then it would be fine for her to act. She further said that if CT Chan (another solicitor) were to handle the probate application, she could work with him in relation to the deed of family arrangement, with the Plaintiff being represented by CT Chan and the Lee Brothers by Wendy Lam. If there was no agreement at all, then it would be a case of contentious probate.

28.  There was a first meeting of all the legatees under Mr Lee Senior’s will, and Janet Wong D3, with Wendy Lam at SWC on 12^th August 2019. At that meeting, Wendy Lam explained that if there was an agreement as regards the distribution of the estate, they could proceed with a deed of family arrangement. At the meeting, the engagement of Wendy Lam was confirmed, and reference was made to the circulation of an engagement letter. The Plaintiff’s email address was noted down by Wendy Lam. Wendy Lam also noted that the Hatton House Property would be given to Lee Jun Sing D1 and the Merry Court Property to Lee Jun Wai, and that the Plaintiff agreed to this.

29.  On 13^th August 2019, SWC issued a letter of engagement to the Plaintiff, confirming the terms of the Plaintiff’s engagement of SWC and Wendy Lam to act for her in relation to the estate of Mr Lee Senior. The letter was signed by the Plaintiff to accept the appointment, and countersigned by Lee Jun Sing D1 and Lee Jun Wai to acknowledge the appointment. Thus whilst the Plaintiff had argued that SWC acted for the Lee Brothers, it is clear from the terms of the letter that SWC only acted for the Plaintiff. The Plaintiff confirmed in cross-examination that she understood the terms regarding who was to carry out the work (Wendy Lam) and the fees to be charged, and otherwise about 60% of the letter (which was written in English).

30.  On 14^th August 2019, Wendy Lam circulated a signed copy of the letter of engagement, and asked Janet Wong D3 to provide financial information so that the schedule of assets and liabilities of Mr Lee Senior as at the date of his death could be prepared, as it was Wendy Lam’s plan to have the probate application papers signed on Monday 19^th August 2019 (the meeting in fact took place on 21^st August 2019). The Plaintiff sent an email in reply three minutes later, saying “Noted Thx! Best regards, Tsang Lin Yau”. As acknowledged in cross-examination, the Plaintiff knew that the next meeting at SWC would involve the signing of papers to apply for a grant of probate.

31.  On 20^th August 2019, at 6:49pm, Wendy Lam sent a draft of the First DFA to Janet Wong D3’s assistant Enid, and a draft schedule of assets and liabilities which Janet Wong D3 had approved earlier that day to be annexed to the First DFA in due course. Wendy Lam asked whether the draft, and the papers for application for probate, should be circulated to Lee Jun Sing D1, Lee Jun Wai and the Plaintiff.

32.  As the email reached Janet Wong D3’s office after office hours, Janet Wong D3 reverted to Wendy Lam only the next day, 21^st August 2019. She called Wendy Lam to ask whether Globalwide was to be included in the First DFA. Wendy Lam said that an instrument of transfer would need to be signed as well and that might be a possibility that stamp duty would be payable for the transfer of the Share to Lee Jun Sing D1.

33.  Wendy Lam then revised the draft First DFA and sent it to Enid at 11:35am. It was not circulated to Lee Jun Sing D1, Lee Jun Wai or the Plaintiff ahead of the meeting scheduled for later that day at 3:30pm.

B4.  The signing of the First DFA

34.  At 3:30pm on 21^st August 2019, the Plaintiff, Lee Jun Sing D1, Lee Jun Wai and Janet Wong D3 met Wendy Lam at SWC. The papers to be signed that day were (1) those involved in the Plaintiff’s application for probate of Mr Lee Senior’s Will, and (2) the First DFA.

35.  I find as a fact that Wendy Lam explained these documents to the participants at the meeting.

35.1  Wendy Lam gave evidence that she explained both sets of documents in Cantonese, perhaps with some English terms. She said that insofar as any paragraph of the First DFA referred to a schedule, she turned up the schedule and explained that to the parties.

35.2  Lee Jun Sing D1 also gave evidence that Wendy Lam explained the First DFA to the Plaintiff in Chinese and drew attention to the fact that by signing the First DFA, Mr Lee Senior’s 50% interest in the Share was to be vested in Lee Jun Sing D1, and the Plaintiff and Lee Jun Wai would renounce and relinquish their rights in Globalwide.

35.3  Janet Wong D3’s evidence was that Wendy Lam explained the documents for applying for a grant of probate, and the First DFA, to those present at the meeting.

35.4  This evidence from Wendy Lam, Lee Jun Sing D1 and Janet Wong D3 that Wendy Lam explained the probate application documents and the First DFA at the meeting of 21^st August 2019 was not challenged by Mr Chu.

35.5  In cross-examination, the Plaintiff so did not go so far as to say that Wendy Lam or Lee Jun Sing D1 gave false evidence that the First DFA was explained to her in detail as summarised above. She accepted that there may have been an explanation of the First DFA, but if so she did not understand it; however, she did not give any sign of her alleged non‑comprehension at the time.

36.  The First DFA was signed by the Plaintiff once in her capacity as the executrix of Mr Lee Senior’s Will and once in her capacity as a legatee under the will, and by each of the Lee Brothers as legatees under the will. The term “beneficiary” rather than “legatee” was used in the First DFA.

37.  The First DFA recited that the Plaintiff was in the course of applying for a grant of probate, and that at the time of Mr Lee Senior’s death, he was the owner of the properties as set out in Schedule 1 thereto (namely, the Merry Court Property and the Hatton House Property) and the asset as set out in Schedule 2 thereto. Paragraph 12 of Schedule 2, headed “Other Assets”, listed “Interest in the estate of LEE WONG Fun Chong” (Mrs Lee). It also recited the agreed valuations of the Merry Court Property and the Hatton House Property. It then recited that under Mr Lee Senior’s Will, the residuary estate of Mr Lee Senior was to be divided and distributed to the Plaintiff, Lee Jun Sing D1 and Lee Jun Wai equally. The final recital stated that the Executrix and each of the three beneficiaries had mutually agreed that Mr Lee Senior’s estate was to be vested as provided for in the First DFA.

38.  The First DFA then provided as follows.

“ …

4. The Executrix, the First Beneficiary [the Plaintiff] and the Third Beneficiary [Lee Jun Wai] do hereby jointly and severally acknowledge that they agree that the Hatton House Property be vested in the Second Beneficiary [Lee Jun Sing D1] and hereby renounce and relinquish all their respective rights titles benefits and interest of and in the Hatton House Property and will not make any claim or demand whatsoever in future in relation to the Hatton House Property. The Executrix shall do such acts as may be necessary directed and required by the Second Beneficiary to transfer the Hatton House Property.

5. The Executrix, the First Beneficiary [the Plaintiff] and the Second Beneficiary [Lee Jun Sing D1] do hereby jointly and severally acknowledge that they agree that the Merry Court Property be vested in the Third Beneficiary [Lee Jun Wai] and hereby renounce and relinquish all their respective rights titles benefits and interest of and in the Merry Court Property and will not make any claim or demand whatsoever in future in relation to the Merry Court Property. The Executrix shall do such acts as may be necessary directed and required by the Third Beneficiary to transfer the Merry Court Property.

6. The Executrix, the First Beneficiary [the Plaintiff] and the Third Beneficiary [Lee Jun Wai] do hereby jointly and severally acknowledge that they agree that the 50% interest in [the Share] be vested in the Second Beneficiary and hereby renounce and relinquish all their respective rights titles benefits and interest of and in Globalwide and will not make any claim or demand whatsoever in future in relation to Globalwide. The Executrix shall do such acts as may be necessary directed and required by the Second Beneficiary to transfer the 50% interest in the Share.

7. The parties hereto agree to share the assets and liabilities as particularised in the Schedule of Assets and Liabilities enclosed hereto in three equal shares, taking into account the values of the Hatton House Property and the Merry Court Property, which shall be taken up by the Second Beneficiary and the Third Beneficiary absolutely upon the issuance of the Grant of Probate.

…”

39.  It emerged at trial in Wendy Lam’s evidence that four original copies of the First DFA were in fact signed, a fact that had caused some confusion earlier on in the proceedings as both the Plaintiff and the Defendants had thought that only three originals had been signed.

40.  Wendy Lam sent three originals of the First DFA to Janet Wong D3 under cover of SWC’s letter of 22^nd August 2019.[2] In her oral evidence, Janet Wong D3 clarified that she did receive this letter (contrary to what she had earlier thought) and she said that she then distributed the three originals to Lee Jun Sing D1, Lee Jun Wai and the Plaintiff. The Plaintiff denies that she ever received a copy from Janet Wong D3. I prefer and accept Janet Wong D3’s evidence on this point as on the whole she was a more credible witness than the Plaintiff. Furthermore, the signatures of the original of the First DFA in Lee Jun Wai’s possession matched one of the ones in SWC’s letter of 22^nd August 2019, providing support for Janet Wong D3’s evidence that she did distribute the three originals at the time. There was also no reason why Janet Wong D3 would have withheld the documents at the time: the parties were on cordial terms and Janet Wong D3 had no personal interest in the subject matter of the First DFA.

41.  On 2^nd September 2021, Wendy Lam sent to the Lee Brothers various original documents, including the fourth original of the First DFA.

B5.  The grant of probate and signing of the Second DFA

42.  On 20^th September 2019, probate of Mr Lee Senior’s Will was granted to the Plaintiff.

43.  After probate of Mr Lee Senior’s Will was granted, Wendy Lam started to prepare a second deed of family arrangement for conveyancing purposes in relation to the Hatton House Property and the Merry Court Property, and assents for the two properties. Wendy Lam’s evidence, which I accept, was that she prepared the second deed of family arrangement for the purpose of implementing paragraphs 4 and 5 of the First DFA, and that she had in fact contemplated, at the time of the First DFA, that a second deed of family arrangement would be necessary.

44.  On 15^th October 2019, Wendy Lam circulated to Lee Jun Sing D1, the Plaintiff and Janet Wong D3 drafts of a further deed of family arrangement, an assent regarding the Hatton House Property, an assent regarding the Merry Court Property, and an instrument of transfer in relation to the Share. The draft deed of family arrangement recited that probate had been granted to the Plaintiff on 20^th September 2019, and omitted reference to the Share. The schedules also described the Hatton House Property and the Merry Court Property more fully and properly than in the First DFA.

45.  The deed of family arrangement that was eventually signed on 31^st October 2019 (“the Second DFA”) further omitted reference to the parties’ agreement to take into account the values of the Hatton House Property and the Merry Court Property in sharing the assets and liabilities in the estate of Mr Lee Senior.

46.  It was Wendy Lam’s evidence that the clause relating to the Share was taken out in the draft of 15^th October 2019 because Janet Wong D3 had given her instructions that the Share was to be treated differently, although there was no attendance note to this effect. Counsel for the Defendants, Mr Nelson Miu, submitted that this piece of evidence was incredible, given that it was not evidenced by any attendance note, nor was Wendy Lam able to say what the different treatment was to be. He was concerned in case that there should be any suggestion that the Second DFA had superseded the First DFA. However, it seems to me that this piece of evidence has no relevance to the issues in these proceedings:

46.1  it is not the Plaintiff’s case that the Second DFA superseded the First DFA (and Mr Chu confirmed this in his closing submissions);

46.2  it is not the Plaintiff’s case that there were any discussions between the legatees under Mr Lee Senior’s Will that the Share was to be dealt with other than pursuant to the First DFA;

46.3  Wendy Lam also gave evidence that Janet Wong D3 had not asked her to take out the clause regarding the Share, and that she was not aware of any discussions between the legatees under Mr Lee Senior’s Will as to how to deal with the Share or otherwise about Globalwide, much less any agreement that the Share should be dealt with differently from what had been agreed under the First DFA;

46.4  Wendy Lam’s uncontradicted evidence is that the purpose of the Second DFA was for the conveyancing of the Hatton House Property and Merry Court Property.

47.  What was not disputed was (and I therefore find) that on about 8^th November 2019 (after the signing of the Second DFA), Janet Wong D3 gave instructions to SWC via Ivy Yeung that the Share was to be registered in Janet Wong D3’s name rather than Lee Jun Sing D1. This was to some extent a “different” treatment of the Share than originally contemplated in that it would not be held directly by Lee Jun Sing D1, but was nevertheless in accordance with the First DFA, the Executrix being bound to transfer the 50% interest in the Share as directed by Lee Jun Sing D1. Indeed, in Wendy Lam’s evidence, she described this as a difference in treatment.

48.  On 18^th October 2019, Wendy Lam sent an email to the Plaintiff and the Lee Brothers, confirming a meeting on 31^st October 2019 to discuss and sign papers in relation to Mr Lee Senior’s estate.

49.  The meeting took place as scheduled on 31^st October 2019. This was the second meeting of all the parties at SWC. Wendy Lam explained the terms of the Second DFA (and the assents) paragraph by paragraph to the attendees. She could not recall whether she explained why there was a need for the Second DFA.

50.  As with the First DFA, the Second DFA was signed by the Plaintiff once in her capacity as the executrix of Mr Lee Senior’s Will and once in her capacity as a legatee under the will, and by each of the Lee Brothers as legatees under the will.

51.  As mentioned, after the Second DFA was signed, Janet Wong D3 gave instructions that the Share was to be registered in her name.

B6.  The signing of documents for transfer of the Share; queries raised by the Plaintiff regarding Mr Lee Senior’s estate

52.  On 15^th November 2019, the Plaintiff, the Lee Brothers, and Janet Wong D3 met Wendy Lam again at SWC. This was the third meeting of all the parties at SWC. At this meeting, there was a discussion between the parties that $300 was to be the consideration for transfer of the Share, in which the Plaintiff took part (as she accepted). Janet Wong D3 produced three $100 banknotes, which Wendy Lam photocopied. The Plaintiff, Lee Jun Sing D1 and Lee Jun Wai each signed on the photocopy to acknowledge receipt. However, the Plaintiff says that she did not know what she was signing, and she did not know that the Share was to be transferred to Janet Wong D3. She says that she knew the money came from Janet Wong D3, but she did not know whether this was her own money or money “from the company” or “on behalf of the boss”.

53.  The meeting was cut short that day as there were protests going on in Central, and it was decided that the parties would return on another occasion to sign the instrument of transfer and the bought and sold note in relation to the Share.

54.  Shortly after the meeting, the Plaintiff called Wendy Lam saying that Mr Lee Senior should have held shares in a securities account maintained with Sun Hung Kai Securities; Wendy Lam said that she would check and revert. In the afternoon, Wendy Lam called Janet Wong D3 about this query, and the latter explained that the shares were held by Bailey Development Limited, a company in which Mr Lee Senior had held shares (“Bailey”). The Plaintiff had been with Lee Jun Wai when she called Wendy Lam. Wendy Lam therefore asked Janet Wong D3 to call Lee Jun Wai to explain the matter to the Plaintiff.

55.  On 19^th November 2019, the Plaintiff and Wendy Lam had a telephone conversation in which the Plaintiff said that there should be another company named “Nice Gold” in which Mr Lee Senior had held shares; Wendy Lam said that she would check. The meeting for later that afternoon at 3:30pm was confirmed.

56.  At that meeting on 19^th November 2019, the Plaintiff signed the instrument of transfer and sold note in relation to the Share, together with instruments of transfer in relation to shares of 14 other private companies comprised in the estate of Mr Lee Senior. This was a meeting between the Plaintiff and Wendy Lam alone, and it lasted fifty-five minutes. Wendy Lam’s attendance note records that at this meeting:

56.1  she explained that Bailey was a nominee holding shares for Mr Lee Senior. As the Plaintiff agreed in cross-examination, this was in response to her query some four days earlier that Mr Lee Senior should be holding shares in a securities account with Sun Hung Kai Securities; the answer was that the shares were in fact held in the name of Bailey;

56.2  the Plaintiff looked at the accounts of Bailey, “Top Gun”, “Team Hero” and “Pioneer Asset” (Top Gun Management Consultants Ltd, Team Hero Development Limited, Pioneer Asset Investment Limited), and expressed the view that she was not comfortable with giving up these shares (to the other beneficiaries of Mr Lee Senior’s estate);

56.3  Wendy Lam advised the Plaintiff that she was free to decide what to do, and that she should sign only after giving due consideration to the matter. (In the end, the Plaintiff did not sign instruments of transfer in relation to these three companies that day.)

57.  On 20^th November 2019, Lee Jun Sing D1 and Janet Wong D3 went to SWC. Janet Wong D3 signed the instrument of transfer for the Share and the bought note in relation to the Share. The instrument of transfer and the bought and sold notes were then presented for stamping; stamp duty was paid and the instrument of transfer and bought and sold notes were stamped on 22^nd January 2020.

58.  The instrument of transfer and the bought and sold note for the Share identified the transferor as being the Plaintiff in the capacity of the executrix of the estate of Mr Lee Senior, and the identity of the transferee as being Janet Wong D3. However, at the time, the Share did not in fact form part of the estate of Mr Lee Senior. The documents were therefore a nullity and failed to effect the transfer of the Share, although this was not realised at the time, and Lee Jun Sing D1 and Stella Wong D2, as directors of Globalwide, registered Janet Wong D3 as shareholder in place of Mrs Lee on 22^nd January 2020.

B7.  Further queries raised by the Plaintiff regarding Mr Lee Senior’s estate

59.  There was more toing and froing regarding the disposition of the shares in Top Gun, Team Hero, and Pioneer Asset.

59.1  On 20^th November 2019, Wendy Lam relayed Janet Wong D3’s explanations for having Lee Jun Sing D1 taking up the shares, and the Plaintiff said that she would consider them.

59.2  On 21^st November 2019, the Plaintiff indicated that she wished to take up the shares in Team Hero, Top Gun and Pioneer Asset, and Wendy Lam asked Janet Wong D3 and Lee Jun Sing D1 for their views.

59.3  On 28^th November 2019, there was a telephone discussion between the Plaintiff and Wendy Lam in which it was discussed that Lee Jun Sing D1 and the Plaintiff would each have one of the two shares in Pioneer Asset, and that the sole share in Top Gun and Team Hero would be jointly owned.

60.  On 20 November 2019, the Plaintiff also told Wendy Lam that a Ms Yeung owed Mr Lee Senior $500,000 and had issued a post-dated cheque. Wendy Lam was to check.

61.  On 29^th November 2019, the Plaintiff had a meeting with Wendy Lam at SWC. They discussed various matters, including following up the post-dated cheque, a corrective affidavit to be made by the Plaintiff, a ledger account sent by Janet Wong D3, and shares in BVI companies.

62.  16^th December 2019, the Plaintiff had a telephone conversation with Wendy Lam. The Plaintiff said that they had missed reporting a company called Seven Seas Finance & Trade. Wendy Lam said that SWC would conduct a company search accordingly. The Plaintiff also said that she had sought legal advice from a lawyer Mak Yiu Wah. In her oral evidence, the Plaintiff said the reason for issuing this letter was that she was dissatisfied with Wendy Lam’s service.

63.  On 17^th December 2019, Messrs B Mak & Co sent a letter on behalf of the Plaintiff to SWC, asking for auditors’ reports and annual returns of each of the 17 private companies listed in Schedule 5 of the Schedule of Assets and Liabilities of Mr Lee Senior as annexed to the grant of probate, statements of account of Mr Lee Senior’s account maintained with one Celetio Investments Limited, and details relating to Mrs Lee’s estate, all said to enable the Plaintiff “to ascertain and investigate the estate of [Mr Lee Senior], which appears not to be conclusive”.

64.  On 10^th March 2021, Messrs KT Chan & Co (“KTC”), the Plaintiff’s current solicitors, wrote to SWC to say that they had instructions to act for the Plaintiff in place of SWC. Amongst other things, KTC demanded that SWC remit the cash assets of Mr Lee Senior’s estate into an account in the name of the Plaintiff as executrix.

65.  In her oral evidence, the Plaintiff repeatedly complained that Wendy Lam seldom returned her calls, and did not answer her queries. This was given as an explanation for why the Plaintiff lost trust in Wendy Lam and instructed other solicitors. In her witness statement, the Plaintiff complained that neither Wendy Lam nor other persons of SWC explained the “piles” of documents she was asked to sign, and this was another reason for her loss of trust in Wendy Lam. However, as the unchallenged attendance notes of Wendy Lam and her assistant from November 2019 show, the Plaintiff’s queries were answered, and explanations were given to the Plaintiff.

B8.  Proceedings between the parties and other persons

B8.1  The Five Companies’ Action

66.  On 2^nd September 2021, Build Kingdom Limited, Hung Fat Cheung Investors Limited, Lisco Investments Limited, Tai Kong Tung Company Limited and Wing Ngai Company, Limited (“the Five Companies”) commenced proceedings against the Plaintiff as executrix of Mr Lee Senior’s estate in HCA 1321/2021, claiming repayment of shareholders’ loans owed by Mr Lee Senior totaling some $100m (“the Five Companies’ Action”). Mr Lee Senior had either directly or indirectly owned a minority stake in these five companies, and had been a director. The majority stake in the Five Companies had been owned by Dr Stanley Ho.

67.  During his lifetime, Mr Lee Senior had signed audit confirmations acknowledging the various debts to the Five Companies. The liabilities were set out in the Schedule of Assets and Liabilities annexed to the grant of probate of Mr Lee Senior’s Will.

68.  By 31^st August 2021, SWC held around $66m in cash, being cash and proceeds of sale of securities in Mr Lee Senior’s estate.

69.  In the Five Companies’ Action, the Five Companies complained that despite a demand, the Plaintiff as executrix failed to repay the debts.

70.  On 21^st January 2022, the Five Companies applied for summary judgment against the estate of Mr Lee Senior, seeking summary judgment in the sum of $98m. DHCJ Le Pichon granted unconditional leave to defend, given that (1) the evidence of Shum Ming Cho, a director of the Five Companies who made affirmations in support of the application, had said that purpose of the loans to Mr Lee Senior had generally been to enable him to conduct business activities for the Five Companies vis-a-vis third parties without disclosing the identity of the Five Companies and Dr Stanley Ho, and (2) there was a discrepancy between the amounts confirmed in the audit confirmations signed by Mr Lee Senior and the amounts of debt stated in the original schedule of assets and liabilities prepared by SWC, Wendy Lam and Janet Wong D3.

71.  The Defendants considered that the breakdown in relationship with the Plaintiff stemmed from (what they considered to be) her misconception that Lee Jun Sing D1 had commenced and orchestrated the Five Companies’ Action in order to extract monies out of the estate of Mr Lee Senior under the pretext of loans.[3] In an affidavit made in the Five Companies’ Action, the Plaintiff said that she did not have any direct knowledge as to whether Mr Lee Senior owed the debts, as he had never told her that he owed money. However, she thought that it was highly unlikely because Mr Lee Senior was a very successful and wealthy businessman and had business in other countries; he carried out investments with tycoons including Dr Stanley Ho (although she was not involved in these); she had never heard from Mr Lee Senior, his business partners, Shum Ming Cho or Janet Wong D3 that Mr Lee Senior had such significant debts; all along he lived his life as a wealthy man; and Mr Lee Senior told her that Mrs Lee used to inject money into some of his private companies to an interest, and the Plaintiff was sure that Mrs Lee would have repaid the loans for Mr Lee Senior rather than injecting the money to earn interest.

72.  The Lee Brothers say that they believed the debts to be genuine liabilities of the estate, given the signed audit confirmations and audited accounts during the lifetime of Mr Lee Senior. They point out that although Lee Jun Sing D1 had become a director of the Five Companies after the death of Mr Lee Senior, the companies were controlled by the estate of Dr Stanley Ho as the majority shareholder.

73.  The Lee Brothers further pointed out that contrary to the Plaintiff’s claim, Mr Lee Senior’s estate was solvent even after the debts were taken into account.

B8.2  The Removal Action

74.  Since about April 2021, Messrs Lee, Wong & Lam (“LWL”), who were then acting for the Lee Brothers, had been repeatedly asking about how certain funds received by the Plaintiff as executrix of Mr Lee Senior’s estate had been dealt with, the expected timeframe for disposing of various assets of the estate, the proposal to settle the estate’s debts, and production of bank statements of the estate’s bank account, but essentially received no substantial response.

75.  Relying on these matters, and citing concerns that administration of the estate was not been properly conducted, on 3^rd September 2021, Lee Jun Sing D1 and Lee Jun Wai commenced proceedings in HCMP 1286/2021, seeking to remove the Plaintiff as executrix (“the Removal Action”).

76.  In the Removal Action, Lee Jun Sing D1 filed an affirmation on 7^th September 2021 in support of injunctive relief in the Removal Action, asking for an order that the funds belonging to the estate still held by SWC should be held by a stakeholder so that the Plaintiff would not be able to freely use the funds, without obstructing her performance of duties as executrix. As part of the background, the Second DFA was referred to, but not the First DFA.

B8.3  The Beddoe Action

77.  On 4^th August 2022, the Plaintiff commenced HCMP 1053/2022 against the Lee Brothers, seeking an order that she be at liberty to defend the Five Companies’ Action and that she be indemnified for the expense of doing so by the estate of Mr Lee Senior (“the Beddoe Action”).

B8.4  The current proceedings

78.  KTC wrote to Globalwide on 22^nd February 2022 and to Lee Jun Sing D1, Stella Wong D2, and Janet Wong D3 on 8^th April 2022, challenging the validity of the transfer of the Share to Janet Wong D3 on 22^nd January 2020, and asking for copies of the instrument of transfer and bought and sold notes.

79.  No response was provided to KTC.

80.  On 30^th August 2022, the Plaintiff commenced the current proceedings. The Plaintiff also applied for an injunction to restrain the Defendants from (amongst other things) dealing with the Share. On the giving of undertakings by the Defendants, directions were given on 1^st September 2022 for the parties to file affidavit evidence in relation to the application for injunction.

81.  On 27^th September 2022, Lee Jun Sing D1 filed an affirmation offering undertakings on behalf of all the Defendants not to deal with the Share until the conclusion of the proceedings. It was in this affirmation that the First DFA was referred to for the first time, as part of the explanation of how the Share came to be transferred to Janet Wong D3 at the direction of Lee Jun Sing D1.

82.  On 19^th October 2022, an order was made by consent giving the injunctive relief sought.

B9.  Other matters

83.  On 21^st January 2022, letters of administration de bonis non of Mrs Lee’s estate were granted to the Plaintiff. The estate of Mrs Lee did not have any liabilities.

C.  THE ISSUES

C1.  The agreed issues

84.  Prior to trial, the parties had agreed on a list of issues in dispute. In the course of Mr Chu’s opening submissions, the real contentions being advanced were clarified, and the parties subsequently prepared a revised agreed list of issues, as follows.

84.1  Issue 1: whether the First DFA is valid and binding on the Plaintiff.

84.1.1  Sub-issue (1): whether the Plaintiff can rely on the defence of non est factum to disown the First DFA.

84.1.2  Sub-issue (2): whether the fact that the Plaintiff has no locus standi to distribute the estate of Mrs Lee prior to her appointment as administratrix de bonis non affects the validity of the First DFA.

84.2  Issue 2: if the First DFA is valid and binding on the Plaintiff, whether Lee Jun Sing D1, Stella Wong D2 and Janet Wong D3 nevertheless are estopped from relying on the same given that Lee Jun Sing D1 had only referred to the Second DFA but not the First DFA in his various affirmations filed in the Five Companies’ Action and the Removal Action.

84.2.1  Sub-issue (1): whether Lee Jun Sing D1’s silence (in failing to refer to the First DFA in affirmations filed in other proceedings) amounted to a representation. In other words, whether there was a duty on Lee Jun Sing D1 to disclose the First DFA in those proceedings.

84.2.2  Sub-issue (2): if Lee Jun Sing D1’s failure to disclose the First DFA in affirmation filed in other proceedings amounted to an actionable misrepresentation, what detrimental reliance the Plaintiff suffered as a consequence.

C2.  What was not in issue

85.  In the light of the way in which Mr Chu conducted the Plaintiff’s case at trial, I note the following for the record.

86.  The list of issues originally included an issue relating to the Plaintiff’s allegation that Lee Jun Sing D1, Stella Wong D2 and Janet Wong D3 had “knowingly and unlawfully conducted and approved the transfer of the [Share] with dishonest intent to deceive the Estate” of Mrs Lee.

87.  However, in his written opening submissions, Mr Chu said that the Plaintiff did not have to prove dishonesty. When asked for clarification, Mr Chu in his oral opening submissions said that he was not maintaining allegations of dishonesty against the Defendants.[4] One of the amendments made to the list of issues was therefore to delete the issue relating to the Plaintiff’s allegation of dishonesty. Despite that, Mr Chu saw fit to attempt, several times, to cross-examine the Defendants’ witnesses about their alleged dishonest behaviour, and to add further allegations of conspiracy against the Defendants in his written closing submissions.

88.  There were various complaints in the SOC of conversion, breach of trust, breach of fiduciary duty, liability under ss.275 and 276 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap.32) and conversion, none of which were raised in the agreed list of issues. Mr Chu confirmed that he did not seek to make these complaints.

89.  As the original agreed list of issues had not made reference to any issue arising on the counterclaim (by Lee Jun Sing D1 asking for the Plaintiff to effect the transfer of the Share at Lee Jun Sing D1’s direction), I asked counsel in the course of their opening submissions whether there was any issue on the counterclaim that needed to be determined. Mr Miu explained that the Defendants’ stance was that if the First DFA were valid, it would follow that the counterclaim would succeed. Mr Chu expressly agreed that this was also his stance. Accordingly, counsel were in agreement that no issue needed to be added to the agreed list of issues to address any dispute arising from the counterclaim, and the revised agreed list of issues did not make any reference to any issue arising on the counterclaim.

90.  Despite this, in his written closing submissions, Mr Chu sought to advance two new defences to the counterclaim; what is more, these had never even been pleaded in the first place. First, he argued that the First DFA had not been stamped, and was not admissible under s.15(1) of the Stamp Duty Ordinance (Cap.117); the counterclaim should therefore fail. Second, he argued that no cause of action on the First DFA had accrued, since (inter alia) no “breach of contract” was pleaded. When asked for an explanation as to why he saw fit to raise two wholly new arguments despite his confirmation in opening submissions that if the First DFA was valid, the Defendants’ success on the counterclaim followed, he said that this was because when he took on the case, the First DFA had not yet been disclosed by the Defendants. But in fact, when Mr Chu pleaded the Reply and Defence to Counterclaim, he did so by reference to the First DFA. In any event, even if it were true, the answer could not have explained why new, unpleaded defences to the counterclaim were only raised in closing submissions.

91.  Mr Chu then acknowledged that in any event, the two new arguments had been wholly answered by the reply submissions lodged by Mr Miu, namely that:

91.1  as a matter of fact, the First DFA had been submitted for stamping and been adjudged not chargable with any duty; the copy with this stamp had not hitherto been disclosed given that no issue had ever been raised by the Plaintiff in this regard;

91.2  it was clear from Wong Suet Foon Shirly v Collector of Stamp Revenue [2021] 3 HKLRD 862 at [23] to [25], [29] (Lam VP, Chu and Au JJA) (an authority provided to Mr Chu prior to his lodging of his submissions, in connection with Mr Miu’s submissions regarding disclaimer) that stamp duty was not payable on the First DFA;

91.3  the obligation on the Plaintiff to distribute the Share in accordance with the First DFA – assuming its validity – would have arisen upon the Plaintiff’s appointment as administratrix de bonis non, so that there was no question of the counterclaim being “premature”.

D.  ISSUE 1(1): NON EST FACTUM

D1.  The applicable principles relating to non est factum

92.  The starting point is that where a person of full age and understanding has signed a document which purports to have legal effect, it is not enough to show that he signed without knowing its contents for the document to be disavowed. He will be held to it unless he shows a recognised legal basis for concluding that his apparent consent has in some way been vitiated (such as non est factum) or that reliance on that document by some other person falls into some category of unconscionable conduct justifying relief in equity. To disown a signed legal document, facts constituting the particular vitiating factor relied on must be pleaded and established by the evidence. See Ming Shiu Chung v Ming Shiu Sum (2006) 9 HKCFAR 334 at [84], [87] (Ribeiro PJ).

93.  For the defence of non est factum to apply, it has to be established that:

93.1  the defendant was under a disability, whether permanent or temporary;

93.2  the document he signed was fundamentally different from what he thought he was signing; and

93.3  he was not careless in appending his signature to the document.

See Keswani Soshila v Keswani Motiram [2022] 2 HKLRD 822 at [34] (Chu JA, as she then was).

94.  The defendant bears a heavy burden of proof and he must establish each of the three components: Keswani Soshila at [34].

95.  As regards the second component, mere ignorance of what is being signed does not constitute non est factum. See Saunders v Anglia Building Society [1971] AC 1004:

95.1  at 1016F, where Lord Reid explained that the essence of the plea of non est factum is that the person signing believed that the document he signed had a particular character or effect, when in fact its character or effect was quite different. He could not have such a belief unless he had taken steps, or been given information, which gave him some grounds for his belief;

95.2  at 1017C, where Lord Reid repeated that there had to be a “radical difference” between what the defendant signed and what he thought he was signing; one could use the words “fundamental” or “serious” or “very substantial”. What amounted to a radical difference would depend on all the circumstances;

95.3  at 1018H-1019A, where Lord Hodson said that the different to support a plea of non est factum had to be in a particular which went to the substance of the whole consideration or to the root of the matter;

95.4  at 1022G-H, where Viscount Dilhorne said that it would not suffice if the signer thought that in some respect it would have a different legal effect from what it has, or if in some respects it departed from what he thought it would contain. The difference had to be such that the document signed was entirely, or fundamentally, different from that which it was thought to be, so that it can be said that it was never the signer’s intention to execute the document; and

95.5  at 1026A-B, where Lord Wilberforce described the principle as applicable when the transaction which a document purported to effect was essentially different in substance or in kind from the transaction intended.

96.  As regards the third component, a person who signs a document must exercise reasonable care. What amounts to reasonable care will depend on the circumstances and the nature of the document which it is thought is being signed. It is reasonable to expect that more care should be exercised if the document is thought to be of any important character than if it is not. See Saunders at 1023E (Lord Wilberforce).

D2.  Application of the principles relating to non est factum

97.  The Plaintiff clearly fails to establish a defence of non est factum. None of the three components of the defence are shown.

98.  As regards disability, the Plaintiff claimed to have a limited understanding of English. However, it was not the case that she did not understand any English at all: she understood 60% of the letter she signed to engage SWC; she was able to understand Wendy Lam’s emails enough to send a short reply in English. Nor was she an uneducated person with no working experience, who might not understand the significance of appending a signature to a document.

99.  In any event, the Plaintiff’s alleged inability to understand English is something of a red herring. It is undisputed that Wendy Lam explained the First DFA to the attendees at the meeting of 21^st August 2019 in Cantonese. Even if the Plaintiff were unable to understand the English in the First DFA, this disability is of limited relevance in establishing a claim of non est factum.

100.  Insofar as the Plaintiff did not understand Wendy Lam’s explanation, she did not say so, or give any sign of non-comprehension. Wendy Lam was a solicitor acting for the Plaintiff; there is no reason why the Plaintiff could not have sought clarification or have raised queries if she had wished to do so. (As set out elsewhere in this judgment, she was in fact well able to raise queries about the manner of distribution of Mr Lee Senior’s assets.) On 21^st August 2019, the Plaintiff was only asked to sign (1) the papers relating to her application for a grant of probate, as to which there is no claim of non est factum, and (2) the originals of the First DFA (not “piles” of documents as claimed in her witness statement), so it is not as if the document or its significance was obscured by the amount of business being transacted at the meeting. Moreover, prior to this meeting, the Plaintiff had not been asked to sign any other documents by SWC other than the engagement letter, so again, it could not be the case that by this point in time, the Plaintiff had signed so many “piles” of documents that the First DFA was just another piece of paper to her. In the circumstances, the Plaintiff fails to show that she was not careless in signing.

101.  Finally, the Plaintiff fails to show that there was any fundamental difference between what she signed and what she thought she was signing, since she in fact did not in fact say what she thought she was signing. The Plaintiff’s case was put in various ways. It was pleaded on her behalf that she did not understand the First DFA (Reply paragraph 3) and that she did not remember signing it (Reply paragraph 7); her witness statement said that she did not know of its existence until Lee Jun Sing D1 disclosed it in his affirmation of 27^th September 2022 (paragraph 29), that it was not explained to her (paragraph 33), and that it was “one of the many piles of documents which I was told to sign by Wendy Lam” (paragraph 39).

101.1  The fact that a person did not understand a document that he was signing does not necessarily mean that he thought that it was of a nature fundamentally different from what he actually signed. Even if the Plaintiff did not understand the First DFA, she could still have been aware that she was signing a document regarding the proposed redistribution of assets in Mr Lee Senior’s estate.

101.2  The fact that a person has forgotten that he signed a document does not mean that at the time of signing, he thought that it was of a nature fundamentally different from what he actually signed. If anything, the Plaintiff’s evidence that she did not remember signing the First DFA makes it more difficult for her to establish a positive case as to what she thought the document was.

101.3  The fact that a person signed many documents at the same time does not mean that at the time of signing, he thought that any of them were of a nature fundamentally different from what he actually signed. In any event, it is clear from the evidence that the Plaintiff did not sign piles of documents on 21^st August 2019: she only signed the documents to apply for a grant of probate, and the four originals of the First DFA. She does not suggest that she was under any misconception as to the nature of the former. This only leaves the latter, so that factually, it simply could not have been the case that because there were many different types of documents being signed that day that the Plaintiff misunderstood the nature of the First DFA.

102.  Mr Chu in closing submissions complains that the First DFA did not show the value of the underlying assets owned by Globalwide. However, that does not mean that the Plaintiff was under any misapprehension as to what she was signing – the First DFA set out that the Plaintiff and Lee Jun Wai were giving up their interest in the Share, and this was explained to the Plaintiff.

103.  Mr Chu also referred to various other points, such as that the Plaintiff was “the only non-family member to sign” the First DFA, and that she was still mourning the sudden passing away of Mr Lee Senior. These are simply not relevant to whether the defence of non est factum has been made out.

D3.  Other evidence relating to non est factum

104.  The above suffices to dispose of the defence of non est factum. However, I should at this juncture also address various other parts of the evidence relating to the defence. In my judgment, they demonstrate the unreliability of the Plaintiff’s evidence generally. The Plaintiff gave evidence relating to other matters which I also found to be lacking in credibility, and I have dealt with this in the context of those other matters.

105.  In sections B5 and B6 above, I set out the queries which the Plaintiff made in November 2019 regarding how the shares in some of the private companies owned by Mr Lee Senior were to be distributed between the Plaintiff and the Lee Brothers, and her requests to Wendy Lam to check on assets which she thought should belong to Mr Lee Senior’s estate. These show that the Plaintiff was not an ignorant person with no understanding of assets such as shares in private companies. They contradict the picture sought to be painted in her witness statement of a person who willingly signed documents as instructed by Wendy Lam, without having received any explanation, because she trusted Wendy Lam and did not know any better. When these instances were put to the Plaintiff, she sought to explain them away by saying that it was only after she was appointed as executrix that she learnt to raise queries. I do not find this to be a credible explanation: there were just some three months between the signing of the First DFA and the Plaintiff’s queries, and the Plaintiff does not say how, during that period, she suddenly acquired the acumen to scrutinise company accounts and decide that she wanted to obtain shares in Top Gun, Team Hero and Pioneer Asset, but relinquish a claim to shares in the other private companies which had been owned by Mr Lee Senior.

106.  As earlier set out, it is the undisputed evidence of Wendy Lam that she explained the First DFA to the attendees of the meeting of 21^st August 2019. This is to be contrasted with the Plaintiff’s evidence in her witness statement, where she repeatedly said that she was asked to sign piles of documents by Wendy Lam without any explanation of their contents: “I was asked to sign piles of documents each time when I came up to her office” (paragraph 32); “…I did not understand the many probate application documents which I was asked to sign…I also do not have the ability to understand English legal documents. However, neither Ms Lam nor any other persons of SW&C explained them to me in those occasions” (paragraph 33); “Concerning the 1^st Purported DFA, had I been fully advised of that document. [sic] It was one of the many piles of documents which I was told to sign by Wendy Lam. Alternatively, it was executed without fully informing me of its legal effects” (paragraph 39).

107.  As Mr Miu pointed out, even if the Plaintiff did not understand the terms of the First DFA, she must surely have known what she was signing when she later signed her name (1) on 15^th November 2019, on the photocopy of the three $100 bills that Janet Wong D3 provided as consideration for the transfer of the Share, and (2) on 19^th November 2019 when she signed the instrument of transfer and the sold note in relation to the Share.

107.1  In relation to the photocopy of the three $100 bills, the Plaintiff agreed with Wendy Lam’s evidence that she had taken part in the discussion to agree on the figure of $300. She also acknowledged that the cash came from Janet (but claimed that she did not know whether it was being paid on behalf of the “company” or the “boss”). Yet she claimed that she did not know what she was signing, or that the Share was going to be transferred to Janet Wong D3. I do not find this to be credible.

107.2  In relation to the instrument of transfer and the sold note, these were in fact signed at the very meeting when the Plaintiff reviewed the accounts of Top Gun, Team Hero and Pioneer Asset and expressed the view that she did not want to give up the shares in these companies, when Wendy Lam told her that she was free to decide what to do and should only sign after giving due consideration to the matter, and when the Plaintiff ultimately did not sign away the shares in those three companies. Furthermore, this was a meeting between the Plaintiff and Wendy Lam which lasted fifty-five minutes, and at which the Lee Brothers were not present, so that the Plaintiff would have had the time and opportunity to ask questions of Wendy Lam. It is simply incredible for the Plaintiff to say that she did not pay attention to the documents being signed. When it was put to the Plaintiff that Wendy Lam had specifically advised her at the meeting that she did not need to sign anything she was not comfortable with, the Plaintiff then claimed that she remembered that this advice of Wendy Lam’s was only given after she had signed all the documents that day. This makes no sense, since the Plaintiff decided that day not to sign the transfer documents in relation to Top Gun, Team Hero and Pioneer Asset, based on the advice. It was clearly a piece of evidence given in an attempt to explain away what was recorded by Wendy Lam in her attendance note as having been discussed on 19^th November 2019.

E.  ISSUE 1(2): THE PLAINTIFF’S LOCUS STANDI

108.  Mr Chu raised numerous points to support his argument that the fact that the Plaintiff did not become the administratrix de bonis non of Mrs Lee’s estate until after the making of the First DFA rendered it invalid in some way. At the end of the day, it seems to me that whether or when the Plaintiff became the administratrix of Mrs Lee’s estate is simply irrelevant to the validity of the First DFA.

E1.  The applicable legal principles relating to the making of a deed of family arrangement

109.  The legatees under a will are entitled to enter into a deed to vary the dispositions under the will. The deed will be effected as soon as it is communicated to the executor, who then becomes bound by the same. This is the case even if, at the time of the deed, the legatees do not yet have an interest in the estate because it has not yet been ascertained, for example because it is an interest in the residuary estate.[5] See Re Estate of Lee Da Kor [2010] 1 HKLRD 415 at [29] (Poon J, as he then was), citing Crowden v Aldridge [1993] 1 WLR 433 at 439A-C.

110.  Mr Chu accepted that the Plaintiff, as legatee under Mr Lee Senior’s Will, was entitled to enter into the First DFA.[6]

E2.  Application of the principles relating to the making of a deed of family arrangement

111.  In the present case, the First DFA sought to vary, amongst other things, the disposition of the Share – the Plaintiff and Lee Jun Wai agreed that Mr Lee Senior’s interest in the Share would be vested in Lee Jun Sing D1, and they renounced and relinquished their rights in Globalwide. The First DFA was made by all the legatees under Mr Lee Senior’s Will. It was also undeniably communicated to the executrix, given that the Plaintiff signed not only in her capacity as a legatee, but also additionally in her capacity as the executrix of the will.

112.  Mr Chu first submitted that the Plaintiff had no right to distribute the estate of Mrs Lee (including the Share) until she was granted the letters of administration on 21^st January 2022, and therefore did not have the power to sign the instrument of transfer and sold note on 19^th November 2019.[7] This is not controversial: Mr Miu accepts that this is the case, so that the transfer of the Share to Janet Wong D3 was invalid; this is precisely why there is a counterclaim by Lee Jun Sing D1. However, the fact that the Plaintiff could not have transferred the title to the Share on 19^th November 2019 as administratrix de bonis non of Mrs Lee’s estate has no bearing on whether the Plaintiff could have entered into the First DFA on 21^st August 2019 as legatee under Mr Lee Senior’s Will, and as executrix of that will.

113.  Mr Chu then submitted that the Plaintiff had no capacity to enter into the First DFA as administratrix de bonis non of Mrs Lee’s estate or to give away any part of Mrs Lee’s estate through the First DFA.[8] However, the Plaintiff did not enter into the First DFA in that capacity.

114.  Mr Chu then submitted that the Plaintiff was not acting as executor de son tort.[9] Nobody suggested that the Plaintiff was so doing.

115.  Mr Chu then submitted that the instrument of transfer and bought and sold note in relation to the Share could not be rectified.[10] But Mr Miu did not seek such rectification.

116.  Mr Chu then submitted that the Plaintiff had no locus to act as executrix when entering into the First DFA since she had yet to become the executrix at the time.[11] This is factually incorrect. The appointment of the Plaintiff as executrix was by virtue of Mr Lee Senior’s Will, and not the grant of probate. See Williams, Mortimer and Sunnucks, at paragraph 5‑05. In any event, even if the Plaintiff had not been executrix at the time of the First DFA, this would not have affected the validity of the deed. Since it was made by all the expectant beneficiaries, it bound the Plaintiff as executrix even if she was not party to it, once she learned of it: Re Estate of Lee Da Kor.

117.  Mr Chu then submitted that the First DFA was not communicated to the Plaintiff as administratrix de bonis non of Mrs Lee’s estate until after the current proceedings were commenced, since it was not disclosed until 27^th September 2022 in these proceedings. The argument was that it was therefore not effective until that time, citing Re Estate of Lee Da Kor. However, that is a misunderstanding of the authority. The First DFA would have taken effect as soon as it was communicated to the Plaintiff as executrix of Mr Lee Senior’s estate, and that was done on 21^st August 2019. In any event, it is not suggested that anything turns upon when the First DFA became effective.

F.  ISSUE 2: ESTOPPEL

118.  Mr Chu’s case as to estoppel was, with respect, somewhat muddled, relying on authorities about various different types of estoppel. When asked to clarify the Plaintiff’s case on estoppel during his oral opening submissions, he said that the Defendants had made a representation that the First DFA did not exist; the representation was untrue because Lee Jun Sing D1 failed to disclose it; and the detriment suffered by the Plaintiff was the cost incurred in entering into the current proceedings. When asked to clarify the basis for saying that the Defendants could not rely on the First DFA in the present proceedings, he said that they could do so, and it was just that the Plaintiff had suffered a detriment in having incurred legal expenses in the present case.

119.  Approaching the issue on the basis that the Plaintiff is arguing for estoppel by representation, as Mr Chu appears to be saying, I do not see that the mere fact that Lee Jun Sing D1 had only referred to the Second DFA but not the First DFA in his various affirmations filed in the Five Companies’ Action and the Removal Action could amount to a representation that the First DFA did not exist.

119.1  The First DFA had no direct relevance to either of those two sets of proceedings. Mr Chu was unable to explain why Lee Jun Sing D1 should have been under any duty to disclose the First DFA in those proceedings. Indeed, he was not even a party to the Five Companies’ Action. In such circumstances, Mr Chu could not explain why silence on the part of Lee Jun Sing D1 in those two actions could amount to a clear and unequivocal representation that the First DFA did not exist.

119.2  Nor did Mr Chu explain why any representation on the part of Lee Jun Sing D1 would mean that Stella Wong D2 and Janet Wong D3 would be estopped from relying on the First DFA.

120.  Nor could there have been any detrimental reliance by the Plaintiff. On her case, she was aware of the First DFA by 27^th September 2022. This was less than a month after the present proceedings were commenced (on 30^th August 2022). However, the Plaintiff did not at that point in time withdraw the proceedings, thus undermining the suggestion that she persisted with the proceedings because of the representation.

121.  Even if one approaches the claim of estoppel as one of promissory estoppel, with the representation being that the Defendants would not rely on the First DFA, it must fail on the facts for similar reasons.

122.  There is no claim for damages and no question of any “actionable misrepresentation” (cf. Issue 2(2)).

G.  THE COUNTERCLAIM

123.  Given my findings above, it follows that the First DFA is valid, and the Defendants can rely on it to defend the Plaintiff’s claim.

124.  Mr Miu submitted that by cl.6 of the First DFA, which was executed as a deed, (1) the Plaintiff, as executrix of Mr Lee Senior’s Will, disclaimed Mr Lee Senior’s (50%) interest in the Share to which he would otherwise have been entitled on Mrs Lee’s intestacy; and (2) Lee Jun Wai disclaimed the entirety of his interest in the Share, not only as an expectant beneficiary under Mr Lee Senior’s Will, but also as an expectant beneficiary under Mrs Lee’s intestacy. That being the case, Lee Jun Sing D1 was left as the only expectant beneficiary under Mrs Lee’s intestacy to whom the Share could be distributed. See Wong Suet Foon Shirly v Collector of Stamp Revenue [2021] 3 HKLRD 862 at [36] to [48]. In the circumstances, Lee Jun Sing D1 is entitled to call on the Plaintiff as administratrix de bonis non of Mrs Lee’s estate to transfer the share to him or at his direction.

125.  Mr Chu did not identify any objections to this analysis.

126.  In the circumstances, I accept that judgment should be given on the counterclaim.

H.  COSTS

127.  Mr Miu in his written closing submissions submitted that the Plaintiff should bear costs (1) personally rather than recovering them from the estate of Mrs Lee and (2) on an indemnity basis.

128.  I indicated at the hearing of the oral closing submissions that the parties should make their submissions as to costs, rather than incur further costs for such arguments at a later stage.

H1.  Whether costs to be recovered from the estate of Mrs Lee

129.  In contrast with the Beddoe Action, the Plaintiff did not seek to obtain a Beddoe order regarding the present proceedings. This is not necessarily fatal to the Plaintiff’s attempt to seek to recover costs from the estate of Mrs Lee. The question is whether a judge would have authorised the claim, had the Plaintiff asked for a Beddoe order in advance. The matter should be considered from the point of view at the time when the claim was made and not with the benefit of hindsight of the outcome of the case. See Chan Gordon v Lee Wai Hing (No.2) [2011] 2 HKLRD 1029 at [11] to [13]. In that case, Au-Yeung J considered this by reference to three questions.

130.  The first question is what the strengths and weaknesses of the claim were. In my judgment, the weakness of the claim should have been apparent from the outset.

130.1  On the claim of non est factum, it would have been within the Plaintiff’s own knowledge that the First DFA was explained to her, as she accepted in her evidence at trial. The available evidence of the other attendees at the meeting of 21^st August 2019 was that the First DFA was explained. The Plaintiff did not obtain evidence from her own solicitor Wendy Lam to support a case of non-est factum; when she finally subpoenaed Wendy Lam in May 2025, that evidence was to the effect that the First DFA was explained in detail attendees of the meeting. Furthermore, nowhere in the Plaintiff’s evidence was there an explanation of what the fundamental difference was between the nature of what she thought she was signing and what she actually signed.

130.2  On the claim that the Plaintiff’s lack of standing to distribute the estate of Mrs Lee prior to her appointment as administratrix de bonis non affected the validity of the First DFA, the lack of merits of this argument would have been apparent even without the benefit of any evidence at trial.

130.3  On the claimed defence of estoppel, Mr Chu’s submission was that there was a representation that the First DFA did not exist, simply by virtue of the fact that it had not been mentioned in other proceedings. However, no factual or legal basis was advanced to explain why there was a duty on Lee Jun Sing D1 in those other proceedings to disclose the First DFA (particularly when he was not in fact a party in the Five Companies’ Action). Again this is a matter which should have been apparent well before trial.

131.  The second question is what options were available to cover the administratrix’s costs. As Au-Yeung J observed, an administrator should remain neutral if there are rival claims to the assets of an estate. In the present case, the Plaintiff was the only person who stood to benefit (as an expectant beneficiary of Mr Lee Senior’s estate) if the Share was recovered for Mrs Lee’s estate, since Mrs Lee’s estate had no creditors, and Lee Jun Wai had renounced his interest in the Share and made a witness statement confirming (inter alia) that he had agreed that the Share should be transferred to Janet Wong D3. In fact, Mr Chu initially accepted that the proceedings were initiated by the Plaintiff for her own benefit. He then submitted that it was to the benefit of Mrs Lee’s estate to recover the share since Janet Wong D3 was not a beneficiary thereunder. However, it has never been disputed that the Share was transferred to Janet Wong D3 at the direction of Lee Jun Sing D1.

132.  In the circumstances, it is likely the court would have directed that the Plaintiff should join the proceedings in her own right and litigated with her own funds, rather than use the estate’s funds to litigate for her benefit. Cf. Chan Gordon at [23].

133.  The third question is the estimated costs of the litigation were, and whether they were in proportion to the value of the estate. On this question, no figures were put before me. All that is known is that the only remaining valuable unadministered asset of Mrs Lee’s estate is the Share, and that Globalwide in turn holds a number of real properties.

134.  In the circumstances, I agree with Mr Miu’s submissions that it would be wrong for the Plaintiff to be allowed to recover the costs of this unsuccessful litigation from the assets of Mrs Lee’s estate, which would essentially mean charging them against the Share, when the Share should and would have been transferred to Lee Jun Sing D1 following on from the First DFA in accordance with the then agreed position. The only reason that this was not successfully effected was that the transfer documents were signed at a time when the Plaintiff had not been granted the letters of administration de bonis non, a matter which should not be laid at the door of Lee Jun Sing D1.

H2.  Whether costs to be on an indemnity basis

135.  Mr Miu submitted that the Plaintiff abused the generosity of Mr Lee Senior in making her a beneficiary of his estate, in that she knowingly entered into the First DFA which was to implement the wishes which Mr Lee Senior had expressed in his lifetime but had been unable to see to fruition because of his unexpected death, yet sought to disown it thereafter on meritless grounds. He further submitted that the Plaintiff abused the generosity of the Lee Brothers in not challenging Mr Lee Senior’s Will.

136.  It is not for the court to make any moral judgment as to the Plaintiff’s actions. I accept Mr Chu’s argument that the Defendants have not shown any special or unusual features which would justify an award of indemnity costs (cf. Town Planning Board v Society for the Protection of the Harbour Ltd (No.2) (2004) 7 HKCFAR 114 at [15] (Li CJ, giving the judgment of the court). The mere fact that the Plaintiff’s case was without merit does not, in the circumstances of this case, amount to a special or unusual feature.

I.  DISPOSITION

137.  I dismiss the Plaintiff’s claim.

138.  I give judgment for Lee Jun Sing D1 on his counterclaim.

139.  I further make a costs order that the costs of and occasioned by the action are to be paid by the Plaintiff to the Defendants, and that the costs of and occasioned by the counterclaim are to be paid by the Plaintiff to Lee Jun Sing D1, both sets of costs to be taxed if not agreed, and that the Plaintiff is to pay the aforesaid costs personally and is not to recover them from the estate of Mrs Lee.