HO YUNG HON v. HO KAM CHEUNG AND ANOTHER

HCA15909/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.15909 OF 1999

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J U D G M E N T

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1. This is the trial of an action brought by Ho Yung Hon, a man who is now aged around 91-92, certainly over 90, against his son Ho Kam Cheung, the 1st defendant and the 2nd defendant, the wife of the 1st defendant, Eliza Cheng Yin Ping, and his daughter-in-law, to set aside a transaction entered into by him with the 2nd defendant in relation to a premises which had been called throughout as no.110, in the village where he and the defendants were residing in Shatin.

2. The claim was resisted by the defendants on two bases. Firstly that it was a bona fide and genuine transaction and even though there was no payment (the payment which should have been made was a total of $2.8 million for the three flats of no.110), it was, in fact, a voluntary gift by the plaintiff. The second resistance was against the contention of the plaintiff that there was undue influence exercised by the defendants on the plaintiff when these transactions were entered into in April 1999.

3. In order to fully understand and analyse the consequence of what had happened, it will be necessary to set out first the family background of the parties and then the property interests and the evolution of the story which took a little bit of time.

4. First, the family relationship. The plaintiff was not born with high level of education. He came from a relatively humble background in Shatin. He was a butcher. He, together with his wife, have seven children. The seven children are, firstly, Ho Kam Cheung (1st defendant). He is now around the age of 60, followed by the daughter Ho Ping Tai, then another daughter Ho Kwan Tai, another daughter Ho Man Tai, a further daughter Ho Cho Tai, a younger son called Ho Sik Cheung and the youngest daughter Ho Mei Tai. Of those seven children, it will be seen later that the elder son, the younger son and at least two or three of the daughters Cho Tai, Kwan Tai and Man Tai, all played relevant roles in the evolution of the story.

5. The family was not wealthy and upon the early retirement of the plaintiff due to ill health when he was at the relative young age of about 50 and with the children many of them still very young (Cho Tai was only about 11-12 years old and was still in primary school), many of the children were forced to go out to work at the relatively early age and had to leave school. The only one who escaped this handicap was Ho Sik Cheung, the younger son who was allowed to receive full education and became, in fact, a respectable surveyor working for the Government. Ho Kam Cheung, the elder son, who could otherwise help to bring up and support the family unfortunately did not do so. The evidence that emerged clearly was that he was a black sheep of the family, who had never helped with the family, who always got himself into serious financial difficulties and who was always stretching out his hands to the mother (not the father because of his bad relation with the father), and to his brother and sisters. The 1st defendant obviously was a man who liked to take chances and seemed to have been involved in many business ventures that one way or another failed.

6. The family in time prospered a little bit so that there were, by the 1980s, four properties which became relevant to this case. I will try to limit myself as much as possible to only the relevant aspects of the properties. There are four properties in question. The first is no.25A in the village and that is now occupied by the 1st and 2nd defendants. In fact, that had been occupied by them after their return to live in the village in the mid-90s. Then, there is no.65. Number 65 is a village house belonging to the plaintiff where the children of the 1st defendant from his first marriage to Madam Yung had been living for some time. Then, there is no.238. That was a house built in 1987 by the 1st defendant's company for the three sisters in circumstances where the government granted the land to the plaintiff and it was a question of either taking up the advantage of the grant and having the house built, or losing such an opportunity. The house was built in 1987 for the three sisters and with money given by those three sisters : Ho Ping Tai who was given the second floor, Ho Kwan Tai who has the first floor of no.238, and Ho Mei Tai who has the ground floor. Ho Mei Tai still lives on the ground floor whereas Ho Ping Tai and Ho Kwan Tai, although they have their respective flats, namely on the second and the first floor, they no longer live there and their premises have been rented out, with the rent collected by them. Finally, there is no.110. Number 110 is the house which is the subject matter of the dispute in this action. It was built so that the plaintiff who used to occupy one of the other houses moved into the second floor of no.110. Before the death of the wife in December 1996, the second floor was occupied by the plaintiff, his wife and Cho Tai, the unmarried daughter. The first and the ground floors were let out and the plaintiff has been collecting the rent from those two flats. That is the setting of the properties and the family members.

7. I do not think it is necessary for me to go back to the complicated family story before the death of the mother in December 1996. Suffice it to say this, that the black sheep of the family, the 1st defendant, has never got on very well with the rest of the family including the plaintiff. Whereas the other six brother and sisters seem to get on very well and see each other regularly, the 1st defendant was not in close relationship with the family. This was before the death of the mother, before the 1st defendant moved back into the village and this must have been the state of affair also when he broke up with the first wife, i.e. Madam Yung, and took up with Madam Cheng (the 2nd defendant) even before they got married and even before the 1st defendant was divorced.

8. Madam Cheng came into the picture quite a few years before the 90s in circumstances where they were probably working together both in the motor trade and they formed a close relationship. Three sons were born to the 1st and 2nd defendants, at least, one of the sons was born before the marriage. So, the 1st defendant, in fact, has two sons and two daughters from the first marriage with Madam Yung and three sons from the second marriage with the 2nd defendant. Of course, the other brother and sisters were also married and have children with the exception of Man Tai. The relationship in the family, therefore was, before their mother's death, not particularly harmonious neither between the 1st defendant and the father (although the mother, I think, have a soft spot for the 1st defendant), nor between the 1st defendant and his brother (i.e. Ho Sik Cheung) and sisters.

9. The mother died rather suddenly and unexpectedly in December 1996. Upon the mother's death, there was a family meeting and discussion about the disposition of the four properties owned by the plaintiff. The case of the plaintiff, as told to the court by the three principle witnesses who gave evidence for the plaintiff (i.e. the younger son Ho Sik Cheung, the important witness Ho Cho Tai, and the other daughter Ho Kwan Tai), was that there was the announcement by the father at that family meeting in December 1996 or January 1997 to the effect that he wished or intended that the four properties would be divided in the following way :

(1) Number 25A will go to the 1st defendant, i.e. the house occupied by the 1st and 2nd defendants.

(2) Number 65 will go to the two sons of the first marriage of the 1st defendant, that is to say to the grandsons and they are, of course, the two eldest grandsons.

(3) Number 238 will go to the three sisters who had, in fact, paid the money for the building of it under the arrangement with the plaintiff that they were going to have those properties, namely, they will go to Ho Ping Tai (the top floor), Ho Kwan Tai (the first floor) and Ho Mei Tai (the ground floor); and

(4) Number 110 which he occupied the top floor, will go to the younger son Ho Sik Cheung (the ground floor), Ho Man Tai (the middle floor) and Ho Cho Tai (the top floor).

10. The family property disposition meeting was disputed in the evidence of the 1st and 2nd defendants who gave evidence for the defendants supplemented by the evidence from the legal team, Ms Louisa Tso of Messrs Tony Kan & Co., and the legal executive, the clerk Mr Tse. The evidence from the two defendants is that there was no such announcement and they were certainly not there when that was said, although I think in the case of the 1st defendant his evidence somewhat changed during the course of the hearing.

11. The announcement by the plaintiff was made at a time when, of course, he was at a loss after the sudden death of his wife and he wished to make proper dispositions for all the children. That was followed by a Will that he made in December 1997. The situation of the plaintiff after the death of the wife was that he continued to live in the same flat with the daughter Cho Tai. The daughter Cho Tai who has always been his favourite but who due to a slight difference of opinion had moved out of the flat at the time when the mother died. Immediately upon the mother's death, she moved back in. I do not think that is in dispute. What is, however, in dispute is how long Cho Tai continued to live with the father in that flat.

12. Living in the flat with Cho Tai however was not easy because Cho Tai was working full time, and sometimes very late. There was therefore a need to have some family arrangement made as to how the plaintiff was going to be fed and an agreement was reached that lunch would be looked after by the 1st defendant's side whereas the dinner would be looked after by the others, especially those who were living either in the flat like Cho Tai or nearby like the sisters and the brother.

13. Everything seemed to go very well until Cho Tai moved out. Circumstances which caused Cho Tai to move out were trivial but revealing. The father accused the daughter of wasting water, by using the shower and water splashed from the shower apparently ruined and wetted the soap powder and splashed on the floor. The father was saying that the daughter should be more modest and should be using just a bucket to clean herself rather than with the modern shower. Be that as it may, as a result of a row between the father and the daughter, she moved out. There was a dispute at the hearing as to when she moved out with the defendants saying it was in early or mid-1997 and those on the plaintiff's side saying in fact it was about a year later.

14. I think at this stage I should give my view as to the way I regard the credibility of the witnesses because it would have an important bearing on my findings of fact on the whole of the story.

15. I first start with the two key witnesses for the defendants because it was admitted that the burden is on the defendants to show the intention to confer a gift. I start in particular with the 2nd defendant. She gave her evidence with composure and with dignity. She looked neat and presentable. She is undoubtedly highly intelligent and she is also undoubtedly a person of ability and capable of gaining the confidence of people quite easily. It is not for nothing that she had been the sales manager of Tai Chong Hong for some time and very successfully as I understand it. But she is not a witness whose evidence I can accept. She is capable of thinking long, hard, and in advance and plan and act accordingly to her advantage and to the advantage of her husband and her children. I find her to be not a satisfactory or reliable witness.

16. The husband, the 1st defendant, is a very different kind of person. A man not of many words, a man who only shows occasional anger but undoubtedly capable of violent reaction, a man who has been undoubtedly defeated by many failures of adventures in his life. His relationship with his wife, that is the present wife, is undoubtedly deep and close. I cannot say whether he was the brain behind this or whether the wife is. I think I can only say that they deserve each other and that in some ways they are like Macbeth and Lady Macbeth. They are what I regret to call a horrible pair. I do not therefore in any way find him an acceptable or credible witness. If there is anything that they have said which are not supported powerfully by independent contemporaneous reliable evidence, I will not accept their oral evidence.

17. Of the three witnesses for the plaintiff I find Cho Tai the most attractive, honest and reliable witness. She has a natural charm, a natural goodness and innocence and a natural ability to be good to people and I am not surprised that she was the father's favourite. I accept her evidence completely unless there are some minor errors which can be demonstrated.

18. The younger brother is a much more complicated person, undoubtedly intelligent and undoubtedly able. He gives the best evidence of all. His evidence is coherent, clear, reasoned, to the point and highly persuasive. It may be coloured of course by some self-interests but I also accept him as a witness of truth and honesty.

19. Then there is finally the evidence of Kwan Tai. She is very good-natured, sometimes a bit confusing but nevertheless trying her best to give her account of what happened. I accept her also as a witness of truth.

20. All three of them made one mistake in their written statement. All three of them said that Cho Tai moved out in March 1997. I do not know how the mistake came to be made because they then in oral evidence all said that the timing of the moving out of Cho Tai was later. I believe that the mistake was genuine, I believe their oral evidence that the moving out was a year later in 1998 and I believe that there are other surrounding circumstances which can explain how the 98 version is more likely to be the correct date of the moving out.

21. Then I finally want to say just a few words about the two legal witnesses. Ms Louisa Tso was the solicitor who attended to the parties on three occasions : in October 1998 when the Will was signed; in January 1999 when the parties went to see her about the no.238 recovery and in April 1999 on the signing of the no.110 conveyance. Although she gave her evidence professionally, I have considerable reservation about her recall of the events having regard to what I observe to be her desire to protect the professional interest of her firm and the interest of those whom she really regarded as her clients, the defendants. It is to be noted, for example, that on the two important dates when the documents were signed, there were no previous full taking of the instructions by her, these were all left to her underlings and there were no attendance notes of those two important occasions, that is in October 1998 when the Will was signed and in April when the no.110 agreement was signed. Mr Tse, was less intelligent than Ms Tso, and therefore he relied much more on saying I could not remember. I do not find him a particularly helpful witness and unless I am forced to I will not place too much reliance on their evidence.

22. I now return to a review of the events following the departure of Cho Tai. The departure of Cho Tai provided the opportunity for the 1st and 2nd defendants to move in, not physically themselves (although physically the moving in was done in the form of their Philippina maid moving in to live there) but in the sense of their being able to get close to the plaintiff so that the dominance and influence and control would be gained over the plaintiff and therefore over his assets. The assets of the plaintiff consist of really the four properties I described plus the money in his bank account. The plaintiff has a joint account in Hong Kong Bank with Cho Tai and events will show how successfully the 2nd defendant managed to win over the plaintiff, weaning him from his previous close tie to Cho Tai. The primary target must be the properties. When the plaintiff made the family announcement in December 1996 or January 1997 (soon after the death of the wife) of the disposition of the properties, one would expect that on the part of the 1st and 2nd defendants they ought to be satisfied because they were gaining firstly their own house no.25A and also the two sons of the 1st defendant got no.65. But I think the events will show that the defendants were not satisfied with that and their eyes were on everything, that is, on the other two properties, no.110 as well as no.238.

23. The way as I understand it, that the events evolved so as to cause the plaintiff to change his stance totally after the departure of Cho Tai took place as follows : First, there was the maid moving in. It is not clear when but I suspect it would be some time, may be around the summer of 1998, perhaps shortly before. But that was followed by an allegation that somehow the title deeds of the plaintiff in the flat have been stolen with the accusing finger being pointed at Mr Tam. Mr Tam being the husband of Ho Ping Tai. As I understand it, the deeds of the four properties were kept (with the exception of the original of no.238) by the plaintiff. The original of no.238, as I understand, has always been kept by Ho Ping Tai because Ho Ping Tai put up the money for the building of no.238, that is the second floor. But there was the accusation that the title deeds had somehow been tempered with and stolen after a visit of Mr Tam to the premises. Mr Tam of course had a close working relationship with the plaintiff and with the plaintiff's properties because he had been the one who had been preparing the tax returns for the plaintiff in relation to no.238 and no.110.

24. The accusation of the incident of the stealing of the title deeds was followed by a very important event and that is the receipt of the tax demand at page 359. I think the tax demand dated 29 September must have been received one or two days after. The tax demand was for a sum of some $31,000 and according to the defendants' evidence, especially Madam Cheng, that is the 2nd defendant's evidence, she said that the plaintiff was asking why suddenly he had to make that tax payment in relation to no.238, the rent of which he did not collect : why should he be paying tax for that. This was in fact a false accusation against the daughters because the evidence which I accept is that in the past, the tax (although the tax returns were signed by the plaintiff because the properties were in his name), had always been paid by the daughters. But the seed of the betrayal had been planted in the mind of the plaintiff and this was what led to the complete change of front of the plaintiff which then led subsequently to his changing the Will, followed by the steps taken to recover no.238 and the conveyancing of the no.110 to the defendant.

25. But in fact by late September 1998, it was clear that the plaintiff had changed his trust from Cho Tai to the defendants because on 24 September (one can see from page 313 of the bundle), he apparently had closed the joint account with Cho Tai and moved the money then in that joint account of $156 odd thousand from the joint account into a new savings account which he opened (the statement of which is to be seen at Exhibit P9), in his own name. So this is first gain after the departure of Cho Tai followed by, as one can see later, the opening of a new account of Asset Advantage, probably some time in December 1998 into which the 2nd defendant had access in terms of operation and the card of which account was in fact entrusted by the plaintiff to the 2nd defendant.

26. The false accusation about the tax demand and the seed planted of the betrayal by the daughters in relation to tax and the stealing of the deeds led to, as I understand it, the plaintiff being taken by the defendants to the lawyers. The detail account given by the defendants of going to see District Officers and then being given certain advice which then led to their going to seek the firm of Tony Kan (a lawyer which was nominated or named by the plaintiff) are accounts which I reject. They are not supported by any contemporaneous documents. I believe and I hold as a fact that the defendants had sought out Tony Kan the firm as being lawyers of their friend and in whom the defendants could trust and events had shown that the firm of Messrs Tony Kan & Co. regarded the defendants and not the plaintiff as their clients.

27. The contemporaneous evidence, however, clearly show that by late September 1998, Mr Tse of the law firm was already approached, followed by the opening apparently of the file on 12 October 1998 with visit by the 1st defendant talking to Mr Tse. On 19 October, the Will at page 221 was apparently signed in circumstances which show that Madam Cheng approved the Will on 17 October (see page E16). This is quite extraordinary and this was without the lawyer having seen the plaintiff himself, without taking the right instructions from the plaintiff in the absence of interested parties and without the attendance note on the day when the Will was signed. I therefore have considerable reservation about the evidence given by Ms Tso on this but be that as it may, the will which is called the second Will was signed and we can see at page 321, that the Will provides (and this is what was extraordinary) for all four properties to be left on his death, to whom? Not to any of the seven children, but everything to the three grandsons of the plaintiff, that is the three sons of the 2nd defendant. That must be, by any standard an extraordinary will. Explanation was given that it was the desire of the plaintiff as a traditional villager to leave everything only to the male grandchildren but if that is the case I think at least all the male grandchildren should be beneficiaries not just those of the 2nd defendant. And if there is any case of traditional view of the male grandchildren taking then the eldest grandson must have a larger claim than anyone else.

28. The explanation was given in evidence by the defendants that the plaintiff said to the defendants that no.25A should go to the sons of Madam Yung if they did well and when they got married. I do not believe a word of that evidence. The nature of the 2nd Will already shows clearly the dominance of the 1st and 2nd defendants over the plaintiff at that stage. What then followed was merely a further extension of that dominance and influence of the defendants over the plaintiff. Detail account was given of how in December 1998, legal work started on the recovery of no.238, the idea being to recover no.238 from the daughters so that the possession of no.238, as well as the future rent, will all go to the plaintiff. This step was in relation to no.238. The other, of course, is no.110.

29. On 9 December when there were already earlier discussions with the lawyers about the conveyancing of no.110, the 2nd defendant (according to the attendance note at page 858) suddenly gave instructions to stop all work on no.110. That was unusual because way back in October, there was already the talk of the plaintiff giving away no.110 as an inter vivos disposition. Why was it necessary to have inter vivos disposition, when the 2nd Will was already made, giving everything to the same people. It is difficult to understand although there was justification or explanation given by the defendants. The 2nd defendant gave an explanation which she recalled on the reason why she gave the instructions on 9 December 1998 to stop work on no.110. I do not accept her evidence. There may be a combination of reasons for that action. One reason I suspect may be connected with her inability to receive no.110 at that time, because upon the bankruptcy of the 1st and 2nd defendants in early 1991, they were under disability as bankrupts. By 1998, it should be known (probably that was the reason for the telephone call on 9 December) that the two defendants would in the future have the benefit of automatic discharge as a result of the amendment to the law of discharge of bankruptcy.

30. What was not in doubt was that work did stop on no.110 conveyancing. The work on no.238 recovery proceeded and there was a letter sent out on 7 January 1999 at pages 367 and 371 demanding the return of no.238. The natural reaction to that letter was that the daughters then rushed to the home of the plaintiff and there was a row and the police had to be called. The break between the plaintiff and the daughters was obvious. The recovery preparation of no.238 went ahead when there was a meeting on 20 January 1999 between Ms Tso and the defendants and the plaintiff (see D8 to D10). Then there was a conference on 24 February with Mr Cheung, the new solicitor in Central litigation office of Messrs Tony Kan & Co. who took over from Ms Tso. On 5 March apparently, the $30,000 cost of account had to be paid to Messrs Tony Kan & Co. to fund this litigation that was about to commence.

31. Of course at that stage, it was not difficult to persuade the plaintiff to part with $30,000 because it would seem that the Asset Advantage account was already under the control of the 2nd defendant and she could easily take money out from that account although she said in her evidence that everything she did was with the approval of the plaintiff. On 24 March, it would seem that the savings account in the sole name of the plaintiff was closed and everything was transferred to the Asset Advantage account. This is to prepare for the date which is arriving, the important date of 1 April when the two defendants will be free of bankruptcy disability. The assignment and the sale and purchase agreements were executed in early April 1999. The documentation can be seen in bundles A, B and C. There was again no attendance note of Ms Tso of exactly what she did. But the event subsequent to the gaining of the no.110 by the defendants then moved quickly because in May the no.238 recovery High Court action was commenced in the name of the plaintiff by Messrs Tony Kan & Co. Something however happened in June. The plaintiff apparently called Ho Kwan Tai and wanted to see the daughters and to make up with them which led to a tea house declaration made by the plaintiff whereby he declared that no.238 in fact belonged to the three sisters (the document can be seen at page 437). The meeting was attended by the plaintiff, Ho Kwan Tai and Ho Man Tai. This was a very important declaration because with that declaration made, the plaintiff was intending to stop the litigation and acknowledged that he was wrong about the no.238 recovery action.

32. By a letter of 15 June, the lawyers for the daughters sent a copy of the tea house declaration to Messrs Tony Kan & Co. This then led to the extraordinary situation Mr Cheung of Messrs Tony Kan & Co. going with the plaintiff and the 1st defendant to the police to repudiate the no.238 declaration. The police statement signed by the plaintiff could be seen at page 443.

33. The further event thereafter was a telephone call on 23 June or thereabout by the plaintiff to Kwan Tai asking them to come back and asking for reconciliation because he had been cheated or he found that he had been cheated because he found buyers with a compass inspecting the first floor of no.110 which he still considered to be his premises. By Chinese custom, it is when premises are to be sold that potential buyers come to see the premises with the compass to see whether the premises intended to be purchased have good "Fung Shui". On 24 April, the plaintiff went with the younger son and Cho Tai to see Mr Cheung of Messrs Tony Kan & Co. asking him to formally discontinue the action. There was an account given by Ho Sik Cheung of what had taken place which was at variance with the purported attendance note of Mr Cheung. Mr Cheung, did not give evidence. I am in some doubt as to the veracity or the truthfulness of that attendance note, especially because I just do not know when and in what circumstances it was made. But what is however of interest is the evidence of the younger brother of Mr Cheung's resistance to the instructions to stop the proceeding, and the insistence by the solicitor in choosing to speak to the plaintiff alone for one hour. During that time apparently calls were then made by the lawyer with the 2nd defendant.

34. I accept the evidence of Ho Sik Cheung which cast considerably doubt on what took place as alleged by the defendants and on the reliability of the document which was the purported attendance note of Mr Cheung. Be that as it may, it would seem that on 28 June, the plaintiff found out about the compass matter. When I said earlier it was on 23 June, it was a slip as the date the compass incident happened was on 28 June and not on 23 June. 23 June was merely a telephone call by the plaintiff to Kwan Tai to come back and there was apparently a reconciliation. On 28 June, there was the discovery of the compass matter which then led to the daughters' finding out that there had been a conveyancing of no.110 to the 2nd defendant.

35. On 29 June, the plaintiff together with the younger son and the cousin of Kwan Tai went to the police and made a statement at page 180 about no.110, basically to repudiate the conveyance of no.110 made in April 1999. Events then soon moved to the stage where the new lawyers took over the litigation in relation to no.238. Litigation then ended. This new action litigation started with the plaintiff claiming against the defendants for the recovery of no.110.

36. The above chronology is long and detailed and some are complicated, but the impact of the chronology on the result of this case really turns on the central question of what was the relationship between the plaintiff and the two defendants during that period of time from about the summer of 1998 until April 1999 whether :

(1) it was such that he was under their domination, influence, control, so that there was no free exercise of his will;

(2) it was his free independent intention to give away the three flats in no.110 to the three grandchildren from the 2nd defendant's marriage to his son or, in other words, whether he was willing not to receive the money from the sale and purchase agreement of the no.110.

37. I will first look at the matter from the point of view of the free gift because that is the burden of defence assumed by the defendants in order to counter the claim for the recovery of the premises. It is to be noted of course that the form of the transactions which were entered into was not a gift under deed by the plaintiff to the defendants as a trustee for the three sons of the 2nd defendant, but is in the form a sale and purchase agreement with the money to be paid even though it was at the undervalue (instead of $4.2 million it was undervalued at $2.8 million). As admitted, no money was paid. In fact, it is inconceivable that the defendants could be in a position to pay any money. They were not financially in such a position that they were able to buy these premises. Yet that was the form of the conveyance. Is it conceivable without the influence of the defendants that the plaintiff who I find as a fact to be a person who was very very careful with money, would be forgoing the $2.8 million that was due to him if the conveyance was a bona fide sale and purchase. I cannot possibly believe someone like the plaintiff who cared about what had been wasted with a shower, about small sums of money, someone so careful would be giving away even to his grandchildren, $2.8 million.

38. So I think there is no doubt that the defendants have totally failed to discharge the burden of proof on them to showing that the plaintiff intended to give away as a free gift the money that would be due to him or in other words to give away to those grandchildren the no.110 property.

39. I then turn to the second question of undue influence. The 2nd Will that is the Will of October 1998 is agreed must be looked at together with the conveyance of no.110 as part of a package because although they were separated in time by few months, it was really part of the package and part of the same alleged expressed intention of the plaintiff relied upon by the defendants. Now the 2nd Will, that is the will of October 1998, was to give everything, all four properties, to those three grandchildren. One asks the question why when all seven children have a call on the plaintiff's natural love and affection and the normal and usual thing would be to give something to each child, he gave them nothing and gave everything in this October Will to the grandsons, by the 2nd defendant.

40. The second aspect, even more powerful against the second Will, is the fact that one does not generally skip a generation and show disapproval of one's children by giving everything to the grandchildren. It is not the natural thing to do. Unless of course, the grandparents happened to have formed a very deep bond with those grandchildren, which is not this case. So, there was simply no reason or explanation for a grandfather to give everything to the three grandchildren, male, they may be. It took this form because the son and the daughter-in-law were not in a position to receive them because of bankruptcy. Through the guise of giving them to the grandchildren, the 1st and 2nd defendants, therefore could gain possession of those four properties. As a result of (this is the key point) the total dominance by the two defendants over him, he surrendered his free will and gave everything in the way he did. In my view, the Will of October 1998 must be read together with the conveyance of no.110 and they showed a total unnatural disposition by a very old man. This very old man was totally dependent on the defendants, especially on the 2nd defendant for food, for care, for the management of his financial affairs, and for ideas. Step-by-step the 2nd defendant managed to gain all the essential control over the plaintiff :

(1) food;

(2) care by the maid;

(3) the bank accounts and with access to cash for daily money;

(4) suggestions of betrayal by the daughters; and

(5) the coup de grace was to get back no.238 from the daughters and to give away no.110 right away. There was no necessity to give away no.110 right away, especially when it involves payment of immediate stamp duty. The excuse was estate duty if it was done by 2nd Will.

41. The finding of fact that I made is that there was, as happened in a similar way in the case of Inche Noriah v. Shaik Allie Bin Omar [1929] AC 127, control and dominance by the 1st and 2nd defendants, particularly by the 2nd defendant, over the life and affairs of the plaintiff to such an extent that they exercised undue influence over the plaintiff and therefore the transactions that were entered into suffered from the vice of undue influence. This is a case both of what had been called a 2B presumed undue influence category as well as the category 1 actual undue influence, which then led to the extraordinary result of the greedy defendants gaining everything, the entire property portfolio of the plaintiff.

42. I have no doubt that the findings of fact should be that the evidence, as given by the plaintiff's witnesses, had been established and that the defendants' evidence are rejected insofar as they are in conflict, and that therefore the transactions in question must be impeached, and must be set aside. I therefore adjudge and hold that the conveyance entered into by the April 1999 documentation should be set aside. The costs of the action should be to the plaintiff. The defendants' own costs will be taxed in accordance with the Legal Aid Regulation.