WONG MAN v. CHEN SING ZIANG

HCA 6624/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 6624 OF 2000

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J U D G M E N T

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1. In this Action, the Plaintiff claims against the Defendant for breach of agreement as contained in a document entitled "Deed of Separation" dated 10 January 2000 ("the Deed"). The Deed was executed by both parties before a solicitor, Miss Sarena Young, a partner of Messrs. Christine F L Ip & Young.

2. According to the Recital of the Deed, the Plaintiff and the Defendant had lived together as cohabitees since about August 1993. However, as a result of differences the parties wished to live separately from each other and cease co-habitation.

3. The Deed provided that the parties would separate and live apart from each other in consideration of the sum of HK$750,000.00 payable by the Defendant to the Plaintiff. It was further provided that the sum of HK$750,000.00 was to be paid by the Defendant to the Plaintiff on or before 30 April 2000. However, should the Defendant fail to pay the said sum by that date, the Defendant would have to pay an additional sum of HK$100,000.00, making a total of HK$850,000.00, on or before 30 June 2000. Until full payment of the sum of HK$750,000.00 or HK$850,000.00 as the case may be, the Defendant was further obliged to pay the Plaintiff a sum of HK$6,500.00 per month for her maintenance. It was also provided that the costs of the preparation and execution of the Deed should be paid solely by the Defendant.

4. There is no dispute that the Defendant did not pay the sum of HK$750,000.00 by 30 April 2000. The Plaintiff alleges that the Defendant had, in early May 2000, made partial payment of HK$50,000.00 leaving an outstanding balance of HK$800,000.00. As for monthly payments, it is common ground that the Defendant had continued to make payment of $6,500.00 monthly up to June 2000. The Plaintiff is therefore claiming the monthly sum from July 2000 until full satisfaction of the HK$800,000.00.

5. Whilst not disputing that the sum of HK$750,000.00 was not paid, the Defendant contends that the Deed was procured by duress and undue influence of the Plaintiff. As for the $50,000.00 paid by him in May 2000, the Defendant says that the payment was made simply to prevent the Plaintiff from causing trouble on the occasion when he was due to execute an agreement in connection with the sale of his office premises at Nathan Centre. He denies that it was a payment made in partial satisfaction of the alleged liability under the Deed. The Defendant counterclaims for an order that the Deed be set aside and the return of the $50,000.00.

Defendant's Oral Testimony - Preliminary Point

6. The oral testimony of the Plaintiff and the Defendant is crucial in the determination of the dispute between the parties.

7. Among the evidence, altogether six medical reports have been produced in respect of the mental condition of the Defendant. Three of the reports (Drs Jason K Y Fong's, Anita C Leung's and Peter Ho Pang Nin's) were prepared in July 2000 and three others (Drs K Singer's, Michael Hing Pui Tsang's, and Yu Yuk Ling's) in May and June 2002. When the question of the admission of the medical reports was raised with the parties at the beginning of the trial, both counsel indicated that they would be content with the production of the reports without requiring the experts to attend for examination. In the event, none of the experts had given oral evidence at the trial.

8. A question has arisen in relation to the manner in which the Defendant testified at the trial. In the final submissions, Miss Ma representing the Defendant, described the Defendant as a frail, infirmed, vulnerable old man (aged 79 at the time of the trial), suffering from senile dementia and hearing problems. She submitted that the Defendant's condition accounted for some of the slow responses, confused thinking and utterance of irrelevant matters under cross-examination. On the other hand, Mr Wong representing the Plaintiff, described the Defendant as someone with a clear mind who was able to comprehend basically all questions put to him. He was merely evasive when he found himself unable or unwilling to give straight answers to the questions put to him.

9. Dr Singer, who examined the Defendant on 7 June 2002, concluded that the Defendant was suffering from dementia of mild to moderate degree. The Defendant was described to have suffered, inter alia, memory impairment; disturbance in executive functioning (planning, organizing, sequencing, abstracting); significant impairment in social and occupational activities; and cognitive deficits. Dr Singer reported that the Defendant was also suffering from depressive mood as manifested by his loss of interest, energy and initiative.

10. Dr Tsang, a psychologist who examined the Defendant on 30 and 31 May 2002, reported that the Defendant was having "some memory difficulty" although the impairment was exaggerated. The Defendant was also found to have suffered some mild cognitive deficits.

11. Dr Yu, a neurologist who examined the Defendant on 13 June 2002 with a view to reporting on his higher mental functions, recorded that the Defendant's response to the examination was slow. Dr Yu confirmed that the Defendant was suffering from dementia.

12. Bearing in mind the unchallenged medical evidence above, I have reminded myself that I should be slow to draw adverse inference that the Defendant was evasive in his testimony merely from the fact that he had at times, or even repeatedly, claimed not to be able to recall events; or that his oral testimony may at times appear to be confused or interspersed with irrelevance.

Relationship between the Plaintiff and Defendant

13. The Plaintiff and the Defendant are both Shanghainese. Their relationship is of some relevance to this case.

14. The Plaintiff came to Hong Kong in 1992. She was 29 and was then married to a Hong Kong resident. The Plaintiff described her relationship with her husband as good. However, sometime in 1993, she separated from her husband because of his poor health. According to the Plaintiff, the separation was only meant to be temporary. It was intended that they would re-unite when his health improved.

15. In early 1993, the Plaintiff became a beautician for a short time. Not happy with her work as beautician and also feeling rather upset after separation from her husband, she wanted a break from work. She was attracted by a newspaper advertisement which offered an opportunity to "learn to dance" and earn some money at the same time. She attended the Kam Dou Ballroom for an interview and was offered about $40.00 to $50.00 an hour to accompany customers for "tea-dance". She commenced work immediately after the interview. Although she was adamant in her answers in cross-examination that the reason of her commencing work at "the Ballroom" was a desire to learn to dance (an opportunity which, attractively, was offered for free), just how she could have thought the Ballroom was a place to "learn to dance" had not been satisfactorily explained. Her answer that at the time of her interview, she failed to realize that the establishment was not exactly a dance school and it was not until she had actually commenced work did she become aware that the so-called "Ballroom" was in fact a nightclub, is in my view, unconvincing.

16. The Plaintiff was introduced to the Defendant on the second day at work at the Ballroom. The Defendant was then aged 70 although, according to the Plaintiff, he looked only about 50 or 60 and appeared to be enjoying good health. She told the Defendant during conversation that she did not find the job suitable and she would soon quit. In the event, as she could only get paid upon completion of at least 6 days of work, she left "the Ballroom" after 6 days.

17. The relationship between the Plaintiff and the Defendant developed. At the beginning, they only met about once a month. Despite the difference in age, she began to develop a close friendship with the Defendant. Being both Shanghainese, she and the Defendant were able to communicate easily. Initially, the Plaintiff found the Defendant to be a very caring person. She also felt sorry for the Defendant who told her that his children did not much care about him and that he was very lonely.

18. The Plaintiff did not work after she had left "the Ballroom". According to her evidence (which I accept on this point), the Defendant asked her not to work for fear that she would be attracted to other men and develop what the Defendant would consider to be an unwelcome association with them. He promised to support her financially, and in fact he began paying her a monthly sum of $5,000.00 about 3 or 4 months after they had known each other. This was later increased to $5,500.00 and then $6,000.00.

19. As their friendship developed, she came to know that he was the proprietor of a trading business, the owner of two properties - a flat in Mei Foo Sun Chuen ("the Mei Foo Flat") and the office premises at Nathan Centre ("the Commercial Property"), and was financially well established overall.

20. It is the Plaintiff's evidence that the Defendant persuaded her to move into the Mei Foo Flat to live with him, which she did in about August 1993. Their relationship became very intimate and they had since lived together as man and wife. The Defendant specifically took issue over the question of co-habitation but admitted that the parties did maintain a sexual relationship. According to his witness statement (the contents of which he confirmed at the trial), the only occasions when the Plaintiff had stayed overnight at the Mei Foo Flat were Saturdays after they had been out together. The Plaintiff would leave the flat around mid-day the following day. (I pause to observe that the Defendant's evidence at the trial was different on this point: he said the Plaintiff stayed 2 days a week at the Mei Foo Flat, Wednesdays and Saturdays.) In refuting the Plaintiff's allegation of co-habitation, the Defendant asserted that his eldest son in fact moved to live with him at the Mei Foo Flat in 1994 after his (the son's) separation from his wife. His son continued to stay at the flat until he (the son) immigrated to Canada in March 1998. It is the Defendant's case that he had never co-habited with the Plaintiff. Throughout they maintained only a relationship of "friends" and not cohabitees. The relationship was described by Miss Ma as that of "boyfriend/girlfriend" when questions were put to the Plaintiff in cross-examination.

21. Whether or not the parties were actually co-habiting (a question to which I will return later), the relationship developed between them was undoubtedly an intimate one. Understandably the Plaintiff was very conscious of the fact that she was not formally married to the Defendant and was concerned about her legal status. The possibility of a formal marriage had been the subject of much discussion between the parties. The Defendant urged the Plaintiff to get a divorce from her husband, which the Plaintiff did in 1995. Furthermore, the Defendant had from time to time assured the Plaintiff that she would be provided with security, both financially and status-wise, by telling her that he would marry her, would look after her for the rest of her life, and would share half of his properties with her by adding her name to the Mei Foo Flat and the Commercial Property.

22. Being already involved in a physical relationship with the Defendant and finding herself financially dependent on him, the Plaintiff was obviously concerned that her legal status as well as financial position was precarious. She was evidently also worried about the fact that the Defendant's assurances had not materialized. In a document dated 30 May 1995 entitled "Letter of Agreement" (at page 170 of the Bundle of Documents, "the Letter of Agreement"), the parties agreed that in the event of their still being unable to be formally married by June 1996, and if the Plaintiff was willing to co-habit with the Defendant, the Defendant would give her a sum of $200,000.00 as security and maintain her "till old" (which, I understand to mean indefinitely). On the other hand, if the parties were to get married, the Defendant would pay $500,000.00 (to be kept by the Defendant in the meantime). The parties promised each other not to "transfer his/her affection elsewhere".

23. I have, in this connection, considered whether the expression in the Letter of Agreement - "if the Plaintiff was willing to co-habit with the Defendant" - might throw any light on the question whether the parties were co-habiting as of May 1995 (the time of the Letter of Agreement). Having read and re-read the document, I am unable to derive much assistance on the question. I read the document as simply stipulating the financial condition to be met if, in June 1996, the Plaintiff was willing to co-habit with the Defendant without a formal marriage. The said expression is referable simply to such a state of affairs as might exist in June 1996 and gives no indication as to whether the parties were already co-habiting as of May 1995.

24. In this connection, I have also considered the memorandum (at page 169 of the Bundle of Documents, "the Memorandum") referred to in the evidence. Similar to the Letter of Agreement, the Memorandum set out the different levels of financial provisions that the Defendant would be required to make for the Plaintiff, depending on the extent of the Plaintiff's commitment towards the relationship with him. According to the Memorandum, should the relationship be one of "maternal grandfather/granddaughter", the Defendant would have to pay for rent and living expenses "in the same way as under current arrangement"; alternatively, were there to be co-habitation, payment of $200,000.00; or further alternatively, were there to be a relationship of "husband/wife", payment of $500,000.00 (though the money would be kept by the Defendant), and also half of the Defendant's assets.

25. Appearing at the foot of the Memorandum was a date "1995 summer". If the date was truly reflective of the time of the Memorandum, it may arguably throw some light as to the state of affairs in or about the summer of 1995. According to the Plaintiff, however, she wrote the Memorandum in 1993 not very long after she came to know the Defendant. She stressed that the document did not in fact contain a date at the time it was written. By reference to the similarity in handwriting between the figure "95" appearing on the Memorandum and the undisputed handwriting of the Defendant on the Letter of Agreement, she was at pains to stress that the date was inserted subsequently by the Defendant. I will not, however, attempt to draw any conclusion on the basis of my own comparison of the handwriting. Yet, in the absence of a denial from the Defendant, I am prepared to accept that the date was probably inserted by the Defendant.

26. More pertinently, the obviously less formal manner in which the Memorandum was drawn up when compared with the Letter of Agreement suggests to me that the Memorandum most probably preceded the Letter of Agreement. The contrary scenario that the Memorandum might have been written in the summer of 1995 will give rise to further questions of why, and under what circumstances, would the Memorandum come into being at all when, shortly before that, the parties had already subscribed their signatures to a much more formal agreement in every respect. The absence of an explanation raises doubt in my mind as to the reliability of the date appearing on the Memorandum. On balance, I would accept the Plaintiff's evidence that the Memorandum was drawn up sometime in 1993. Therefore, given the timing of the Memorandum, the document throws no light on the question whether the parties were already living together as of 1995.

27. Further on the question of co-habitation, the Plaintiff was cross-examined by reference to the application she filled in when she and her husband applied for their divorce in 1995. It transpired that on the application, the residential address given by the Plaintiff was an address in Tsuen Wan (allegedly an address of her relative) and not the address of the Mei Foo Flat. I have considered the Plaintiff's response to cross-examination on this point. I do not accept her explanation that she had so stated the address at the time because she did not want her husband to know where exactly she was staying. Such explanation contradicted one of her earlier answers that if she was required to give a Hong Kong address for the application, the address of the Mei Foo Flat would be given.

28. Moreover, I have also noted that in an Assignment dated 27 November 1996 (which will be further discussed), the Plaintiff's address was again stated to be the Tsuen Wan address. There is no question here of the Plaintiff not wanting to disclose her whereabouts to her husband. If the Plaintiff were indeed already in co-habitation with the Defendant as of the time of the Assignment, I fail to see why the Mei Foo Flat was not given as her address.

29. The evidence of the neighbour, Madam Lam, does not materially assist the Plaintiff on this point. On balance, I reject the Plaintiff's evidence that she began living with the Defendant sometime in 1993. I find that although the parties had developed an intimate relationship and the Plaintiff regularly stayed overnight at the Mei Foo Flat, at least as of the end of 1996, the Plaintiff and the Defendant were not living together or "cohabiting". I accept as more likely that the Defendant's son was indeed staying at the Mei Foo Flat until March 1998. That said, however, it does not follow that I would necessarily find in the Defendant's favour that the parties had never cohabited with each other. Indeed, as will become apparent later, I find it more likely that the parties had in fact cohabited and been living as husband and wife sometime before the Deed was executed.

30. I now return to the discussion of the parties' relationship in about 1996. Anxious about her precarious position, the Plaintiff pressed the Defendant to formalize their relationship. I accept the Plaintiff's evidence (which was disputed by the Defendant) that on one occasion, the parties did go to the Marriage Registry but as the Defendant was only able to produce proof of separation from his wife and not a divorce, he was advised to consult a lawyer with a view to procuring proper documentation of a divorce before a formal marriage could be celebrated with the Plaintiff. The subject was repeatedly raised by the Plaintiff but was invariably met with an answer that the Defendant's own divorce had yet to be finalized. From 1996 onwards, not only did the Plaintiff question the Defendant's sincerity over his endeavours to honour his promises, she was unhappy about the increasing frequency of the Defendant's visits to nightclubs and his association with the hostesses. Quarrels became a common occurrence.

31. On the financial front, in October 1996 the Defendant transferred half of his interest in the Mei Foo Flat to the Plaintiff, the property being worth about $3 million at the time. It was suggested by Miss Ma in the Plaintiff's cross-examination that the reason for the transfer was a result of the Plaintiff's oppression over the Defendant. I find such suggestion to be unfounded. It seems more probable to me that the Defendant made the transfer in consequence of the Plaintiff's constant reminder of his promise to share half of his properties with her.

32. Soon after the transfer (about a month later), the Plaintiff's half share was re-conveyed to the Defendant. It is not disputed that the Defendant paid the Plaintiff a sum of $500,000.00 in connection with the re-conveyance. I have little doubt that the re-conveyance was brought about because the transfer had given rise to serious conflict between the Defendant's children and the Plaintiff. I accept the Defendant's evidence that after the transfer, the Plaintiff had asserted ownership to the property and objected to the Defendant's son's stay at the flat. To defuse the situation, the Defendant had no alternative but to compromise with the Plaintiff. On the terms of the compromise, I would accept the Plaintiff's evidence that the Defendant not only agreed to "purchase" her half share for $500,000.00 but also promised to procure a smaller property for her. I also accept that in pursuance of the promise, the parties approached estate agents and had been taken to view a number of properties. However the search for a suitable property apparently produced no result and the situation simply drifted along in the time to follow.

33. I wish at this point to digress and refer to the videotape shown in the course of the Plaintiff's evidence-in-chief. It contains scenes of the annual trips over 4 consecutive years from 1995 to 1998 made by members of the Defendant's family to Ningbo to sweep the graves of the Defendant's deceased parents. Scenes were shown of the grave-sweeping ceremony during which family members took turn to bow before the ancestors' graves. Invariably, it was the members of the Defendant's generation (that is, the Defendant and his siblings) who first took their turn according to seniority; then followed by their spouses; then members of the next generation; and then the next (the Defendant's grandson). It is significant to note that over the years, the Plaintiff had not only joined the family trips but had taken her turn in the ceremony in the order that would have been accorded to the position of the wife of the Defendant. To me, it is obvious that the relationship between the Defendant and the Plaintiff was a lot closer than that of mere "boyfriend/girlfriend". However, it does not necessarily indicate cohabitation, a question I have already dealt with earlier and will be further discussed later.

34. Before I turn to discuss the events in 1999, I wish to deal with a point made by the Defendant, namely, that the Plaintiff's relationship with him was primarily motivated by financial considerations. It was submitted that the Plaintiff was attracted to and fell for him not out of love and affection, but sheer greed for his wealth. I consider this submission to be an exaggeration of the situation. Whilst I have no doubt that financial considerations played a large part in the Plaintiff's decisions on her relationship with the Defendant, I do not agree that her motive of developing the relationship was necessarily as submitted. The better view, it seems to me, is that the Plaintiff was very conscious of the need for security to protect her precarious position when her confidence in being able to maintain the relationship on the strength of the emotional tides alone was wanting.

35. I will now turn to the events in 1999. I find that by 1999, the Plaintiff had moved into the Mei Foo Flat and lived with the Defendant. In contrast with the Tsuen Wan address given in her divorce application and the Assignment earlier referred to, the evidence showed that in 1999 she had used the Mei Foo Flat as her address (in particular, I refer to the address on her credit card statements). I would also attach importance to the statements in the Deed that the parties had cohabited and they were desirous of putting an end to the relationship as cohabitees (although in this connection, I also note the inaccuracy of the time stated in the Recital as to when cohabitation had allegedly begun). I also find as a fact that the Plaintiff had had the keys to the Mei Foo Flat (which were returned to the Defendant after the signing of the Deed). In all likelihood, the parties began cohabitation sometime after the Defendant's son had moved out of the flat in 1998, but on the available evidence I am unable to make a more specific finding on the timing.

36. I also accept the Plaintiff's evidence that during co-habitation, the Defendant paid her a monthly sum of $6,500.00 for her personal expenses.

37. Accordingly, by 1999, the situation was that the Plaintiff was living with the Defendant but had still failed to secure a formal status as his wife. The Defendant's promise for a smaller property had yet to materialize.

38. The parties made a trip to Shanghai for about 10 days in December. There is some dispute about the purpose of the trip. The Plaintiff said the trip was made after some debt collectors had caused trouble to them in relation to debts allegedly contracted by the Defendant's grandson and the grandson's uncle (the former brother-in-law of the Defendant's son). Fearing for their personal safety, they went to Shanghai to stay with relatives for a short while. Whilst acknowledging the incident of the debt collectors, the Defendant, however, denies that the Shanghai trip was connected with it. To me, the exact purpose of the trip is not material. What is important is the fact that the Defendant consulted a medical doctor whilst in Shanghai and was diagnosed to have exhibited early signs of dementia. The medical notes of the Chinese doctor, though not separately produced, were referred to in the medical reports of Dr Ho, Dr Fong and Dr Yu. I will return to these medical notes later in the Judgment.

Events Leading to Separation

39. In cross-examination of the Plaintiff, Miss Ma put the Defendant's case on the basis that the Plaintiff, being apprised of the Defendant's dementia, became very worried about her life and her own future. This led to her demand for a separation to end the relationship. Her behaviour became hysterical. By way of contrast, however, although the Defendant in his witness statement has alluded to the fact of visiting the hospital in Shanghai in the Plaintiff's company, he did not specifically attribute his mental condition to be a triggering cause for the discussion of separation between the parties. Instead, he stated that he had told the Plaintiff about his plan to retire, to sell his properties, wind up his business, and to go to Canada to stay with son's family for at least 6 months. It was this message which annoyed the Plaintiff whereupon she became abusive. Indeed, his case was that the parties merely maintained a relationship as friends throughout and there was no reason why they needed to have any discussion about separation.

40. According to the Plaintiff's evidence on the other hand, at the end of 1999, she discovered in one of the Defendant's drawers his certificate of divorce with his wife. She also discovered photographs of the Defendant's lady friends and their letters to him. She felt deceived when she realized that the long standing alleged impediment preventing the Defendant from marrying her was all a lie. Also according to her, the Defendant told her that his children objected to his relationship with her. Around the same time, there was even an incident between her and the Defendant's daughter which allegedly turned physical. She felt aggrieved when the Defendant, instead of being supportive of her, appeared to have sided with his daughter. It was in these circumstances that both parties thought it desirable that they should sever their relationship and separate from each other.

41. I have doubts about the Plaintiff's version of these events. In contrast to the production of the letters and photographs of the Defendant's lady-friends, the supposed divorce certificate (which is a far more important document) was not initially disclosed in these proceedings nor produced at the trial. It was only in the course of the Defendant's evidence that the Plaintiff sought to adduce a document, purporting to evidence the Defendant's divorce (which application I have refused). It has not been satisfactorily explained why the Plaintiff did not seize the certificate when she discovered it, or if she did, why it was not produced earlier.

42. In all probabilities, I find the most likely scenario to be that there was indeed discussion about separation and the determination of their relationship as cohabitees. The discussion was brought about partly by the Plaintiff's concern of her future in light of her knowledge of the diagnosis of the Defendant's condition, and partly by the raising of the subject of the retirement plan by the Defendant.

The Homemade Agreement

43. The parties negotiated terms of their separation. I accept the Plaintiff's evidence that the Defendant, conscious of the fact that his promise for a smaller property for the Plaintiff had not been fulfilled, suggested the alternative of simply transferring the Mei Foo Flat to her instead. They intended to consult a solicitor in Mongkok in connection with the transfer of the property and had even arranged to meet at the Mongkok MTR station for that purpose. At the end, the Defendant told the Plaintiff that the solicitor was not available to meet them. Instead, the Defendant suggested that they should consult the Sin Hua Bank because the property was still subject to mortgage. He spoke to the bank manager on the telephone and was advised that since his daughter was the guarantor of the mortgage, her consent would be required for the transfer. As the prospect of the daughter giving her consent was practically nil, he was advised to consider discharging the mortgage with alternative finance so that his daughter's guarantee would be released and he could then effect the transfer. He consulted his friend, Mr Sham, who introduced him to Wing Lung Bank with a view to arranging an alternative mortgage loan to discharge the Sin Hua Bank security. They went to Wing Lung Bank with Mr and Mrs Sham but were unable to procure the loan.

44. When questions relating to the visits to the banks were put to the Defendant in cross-examination, instead of straight denials the Defendant was argumentative. He queried why the questions were asked since no transaction resulted. When further asked whether it was Mr Sham's idea to approach the Wing Lung Bank, he again questioned what difference it would make whether it was or was not as no concluded transaction came about. To me, the Defendant's resort to queries instead of straight denials is suggestive that the visit to Wing Lung Bank did take place. The Defendant was merely trying to evade giving the answers. As I said earlier, I would accept the Plaintiff's evidence on this point.

45. According to the Plaintiff, upon realizing that a transfer of the Mei Foo Flat to her would not be possible, the Defendant suggested that he would pay her a sum of $750,000.00 instead. She queried the proposed amount, as it was not half of his assets as previously promised. The Defendant allegedly assured her that given time, he would be able to pay her more. He said he had only about $700,000.00 to $800,000.00 at hand, but given another 3 months to Ching Ming Festival he would be able to pay $1,250,000.00. She had no idea why the figures of $750,000.00 or $1,250,000.00 were proposed. She was asked to consider the terms for a few days. On 6 January 2000, the Defendant suggested to embody his proposal in a written agreement to be signed by them in the presence of a witness. Mr Sham was approached who invited them to dinner at his place and discuss the matter. They called on Mr Sham as arranged. At one stage the Defendant and Mr Sham had had a private conversation in one of the rooms and when they eventually emerged, the Defendant began to draw up the Chinese memorandum (at page 1 of the Bundle of Documents, "the Homemade Agreement"). At the time, Mr Sham had asked whether the Defendant had thought carefully about separation to which the Defendant confirmed he had. Upon completion of the drafting, the Homemade Agreement was signed by both the Plaintiff and the Defendant and witnessed by Mr and Mrs Sham.

46. It was recorded in the Homemade Agreement that the Plaintiff and the Defendant desired to put an end to their relationship as cohabitees. For her maintenance, the Defendant would pay the Plaintiff a sum of $750,000.00 by 16 January 2000, and in default, $1,250,000.00 by Ching Ming Festival.

47. According to the Defendant, on the other hand, the Plaintiff had applied immense mental pressure on him for about 10 days before the execution of the Deed which, by implication, would have lasted a period from about 1 January to 10 January 2000. He described that the Plaintiff followed him everywhere and he illustrated the extent of the pressure by referring to an instance of the Plaintiff immediately coming out of the washroom upon hearing that he was to leave the flat. He said that she had even refused to allow him to answer the telephone call from his children. She kept him under guard at all times and he had lost his freedom for 10 days. It did occur to him to report the matter to the police but in the end he decided against it.

48. When questioned about the circumstances of the signing of the Homemade Agreement, the Defendant did not remember the occasion of having dinner with the Shams and the Plaintiff. He described, however, the occasion at Mr Sham's place when Mr Sham, quite unexpectedly, took out some paper and suggested the terms of the separation between the Plaintiff and the Defendant. It was Mr Sham who drafted the terms and the Defendant merely copied them onto another piece of paper. When questioned why Mr Sham would come to suggest and draft the terms of their separation, the Defendant surmised that Mr Sham might have wanted to please the Plaintiff because of his (Mr Sham's) affection for her or it might have been due to Mr Sham's long standing resentment of the Defendant's previous courtship with one Madam Chiu for whom Mr Sham also had an affection. When further pressed in cross-examination, the Defendant retracted by saying that he was unable to recall how he came to write and sign the agreement. He repeatedly asserted that he was very confused when the document was signed.

49. I have to say that the Defendant's evidence (and conjecture) on the circumstances of the making of the Homemade Agreement is wholly unconvincing and must be rejected. His insinuation that Mr Sham was acting in collusion with the Plaintiff in inducing him into the agreement is likewise rejected. In addition, it is worth noting that his testimony at the trial was in sharp contrast with his witness statement, in which he asserted (in paragraph 10 in particular) that the Homemade Agreement was brought about by the Plaintiff's barging into his flat, behaving in a fierce and menacing manner, and intimidating him with threats of taking her own life, to cause harm to his daughter and even to the Defendant himself. At the trial, these alleged threats were not mentioned nor were they identified as the reason for his signing of the Homemade Agreement.

50. To me, neither the Plaintiff's nor the Defendant's account of the surrounding circumstances of the Homemade Agreement is entirely truthful. On balance, I do not find that the Plaintiff had made the alleged threats of suicide or physical violence against the Defendant or his daughter, or that the agreement was procured as a result of such threats. On the other hand, however, I do not accept the Plaintiff's assertion that the terms were all volunteered by the Defendant and presented to her for consideration in the manner described by her. Being a shrewd lady as she undoubtedly is, and given her great anxiety in ensuring the best security for herself, I would find it difficult to believe that the Plaintiff would be content simply to walk away quietly (so to speak) to consider the proposed terms as presented without question (bearing in mind her evidence that she had little idea of how such terms were arrived at). What I find more likely is that the Plaintiff did press the Defendant for money payment as a condition for separation in view of the practical difficulty involved in effecting a transfer of the Mei Foo Flat or the purchase of an alternative property. I am convinced that there had been nagging at the Defendant; instances of refusing to leave him alone, pestering him for an acceptable proposal to her; and an occasion of the Plaintiff's preventing the Defendant from taking the telephone call from his children.

51. I have little doubt that the Defendant had found the Plaintiff annoying and troublesome and that there had been quarrels and arguments over the terms of separation. It was in these circumstances that the Defendant eventually proposed the terms as now appearing on the Homemade Agreement. He obviously did so with reluctance, conscious of the financial implications but eager to "buy himself out" of a troubled relationship with the Plaintiff which, by then, was already devoid of any feelings of affection and to which his children had expressed unreserved objection. In this connection, it is pertinent to note the Plaintiff's evidence (which I accept) that almost as soon as the parties had completed the execution of the Homemade Agreement, the Defendant informed her that he had telephoned his friend, Mr Chiu, for a loan to enable him to fulfil his payment obligations but to no avail. To me, the fact that the Defendant had thought fit to commit himself to an agreement before he was sure of his ability to perform it is indicative of the Defendant's anxiety for a quick solution to appease the Plaintiff. That said, however, rather than suggesting that the Defendant was acting under coercion, such behaviour, in my view, was wholly consistent with the manner in which, so often, promises had so rashly and casually been given by the Defendant, hoping always that the Plaintiff could be persuaded to accommodate him when the time had come for them to be honoured.

52. Whilst I would not doubt that in discussing the terms of separation with the Plaintiff and eventually agreeing to them, the Defendant was conscious of his own predicament, and in that sense, did experience the pressure pertaining to the circumstances in which he found himself, that however is not to say that the Plaintiff had exercised undue influence or exerted undue pressure on him into proposing and agreeing to such terms. Having considered the evidence, I do not find that the Plaintiff's behaviour was such as to amount to actual coercion of the Defendant or to have undermined the independence or autonomy of his decision-making power.

Execution of the Deed

53. According to the Plaintiff (whose evidence I accept on this point), after they returned home from the Shams, the Defendant again mentioned his inability to pay her $750,000.00 by 16 January. He gave the reason that he needed the money for his business and asked the Plaintiff for more time to pay. She initially insisted that according to their agreement, he could have until Ching Ming Festival if he so wished but he would have to pay $1,250,000.00. At the same time, however, she obviously realized that the prospect of his paying $1,250,000.00 was not very realistic.

54. It appears clear to me (as evidenced subsequently by their conduct at the office of Miss Young) that the parties continued to argue over the payment to be made and the time for making it. The arguments remained as heated as they were before. However, I am not prepared to accept the Defendant's assertion (in his witness statement) that the Plaintiff had repeated the threats she had allegedly made previously.

55. What seems to me most likely is that the Plaintiff, as a condition for agreeing to allow the Defendant more time to pay the sum of $750,000.00, insisted that they should enter into a formal agreement to be prepared by solicitors. The Defendant reluctantly accepted the condition because it was also to his benefit to have the time extension properly recorded and to have a reprieve at least for the time being. It was in these circumstances that the parties, through the introduction of Mr Sham, attended the office of Miss Young on 10 January 2000.

56. Miss Young has given an account of her meeting with the parties at her office. I accept her evidence entirely. According to Miss Young, the Plaintiff handed her the Homemade Chinese Agreement. The Plaintiff told her that the parties wanted a formal agreement to be prepared by solicitors. The Defendant, however, intimated that he would not be prepared to make payment before Ching Ming Festival. In her presence, the parties argued over payment of the sum of $1.25 million, whereupon negotiation ensued between the Plaintiff and the Defendant over the timing of the payment and the amount payable.

57. In the course of the negotiation, it was mentioned that the Defendant would only be able to raise the money after the property was sold (although the property was apparently not specifically identified). There was also discussion about the timing of the completion of the transaction. Miss Young understood that conversation to be concerned with the financial arrangement which the Defendant proposed to make in order to meet the payment. Hence, the discussion of the payment dates. A compromise was eventually reached in that the sum of $750,000.00 was to be paid by 30 April 2000 and an extra $100,000.00 was to be paid in the event of the Defendant requiring more time to pay.

58. Miss Young had advised the parties of their right to seek independent legal advice and separate representation. It was upon their confirmation that they had understood her advice that she began drafting the document. After its preparation, Miss Young explained the terms to the parties and that they would be legally bound by the agreement once it was executed. The parties then signed the Deed.

59. It is worth noting Miss Young's description of the parties' arguments and negotiations as loud. When further asked whether she detected any signs that the Defendant was suffering from dementia, her answer was "absolutely not". Her impression was that the Defendant was eager to put an end to the relationship and hence was willing to making payment to the Plaintiff. According to Miss Young, the Defendant had had occasions to voice his disagreement over terms with which he was unable to agree. She described the Defendant as impatient. But she also added that both parties were fierce and unfriendly towards each other when the subject of money was raised.

60. In the light of Miss Young's account of the meeting (which I accept), it is clear to me that the Defendant was fully able to exercise judgment for himself whether or not to accept the terms of the agreement. Whilst I am prepared to accept that he was reluctant to agree to those terms, and probably quite resentful that he would have to pay the Plaintiff not an insubstantial sum of money to terminate their relationship, it was a far cry from saying that he was acting under threat or undue influence of the Plaintiff when the Deed was signed. I have no hesitation in rejecting the Defendant's assertion (in his witness statement) that he dared not make a noise when the Plaintiff was giving instructions to Miss Young for fear of being visited with something nasty if he did not accede to the Plaintiff's demands. Indeed, in his cross-examination, the Defendant had admitted that if only he had the money, he would be quite willing to pay the Plaintiff. That was his intention at the time of the agreement.

61. In this connection, I have not overlooked the fact that the Plaintiff's account of the meeting differs from that of Miss Young's. Insofar as the Plaintiff tried to press upon me that it was the Defendant who produced the Homemade Agreement to Miss Young; who actively volunteered information that the parties desired a variation of the terms; and who alone gave Miss Young instructions as to the agreement for their separation; such evidence is rejected.

62. Having considered the evidence I find that, in all probability, the Defendant had indeed fully appreciated the contents of the Deed and its binding effect upon his subscribing his signature thereto. I am not satisfied that his consent to the terms was in any way vitiated by duress or undue influence of the Plaintiff.

63. In arriving at the above conclusion, I have considered the undisputed medical evidence adduced at the trial. The 3 reports prepared in July 2000, being closer in time, are more pertinent than the 3 others prepared in 2002. As none of the medical experts attended the hearing, their opinions were given without the advantage of considering the parties' evidence given at the trial, and most importantly, Miss Young's account of the Defendant's behaviour at the meeting. Consequently, there is no evidence before me as to whether and to what extent the experts' opinion might be affected if they did have the opportunity to do so.

64. Moreover, the reports do not enable me to understand whether, and if so, how, or the extent of the Defendant's symptoms as found by the experts (namely, his impairment of memory and ability to learn new information; decline in cognitive abilities; mild deterioration in ability to sustain attention or retrieve information) might have impacted upon his ability to understand the terms and/or to exercise judgment over whether or not to enter into the agreement. In the absence of explanations from the experts, I am unable to come to a view, and thus not prepared to make a finding that his ability was indeed impaired by reason of these conditions.

65. I have also noted Dr Anita Leung's findings that the Defendant suffered mild deterioration in his ability to think conceptually; and had a tendency, in face of stress or troubles "to escape by taking the apparently easiest way out, without contemplating seriously and thoroughly other alternatives and possible consequences". Dr Leung further opined that in signing the Deed, the Defendant "might have been feeling coerced and stressed that he opted for an immediate relief without anticipating the behavioral consequences seriously". It was submitted on behalf of the Defendant that what I should consider is not so much the Defendant's comprehension of the provisions of the Deed and the consequence of signing it, but the fact that the Defendant was more vulnerable to threats and coercion.

66. I would first observe that the question of whether or not the Defendant was feeling coerced or stressed is a matter of fact for the Court. I have already made my findings in the earlier parts of this judgment. Secondly, and more pertinently, Dr Leung's opinion and counsel's submissions as to the Defendant's vulnerability is clearly at odds with Miss Young's observation that during negotiation of the terms, the Defendant was in fact engaged in arguments with the Plaintiff and was not inhibited in voicing his disagreement from time to time. In any event, in the absence of further explanation from Dr Leung or the other experts, I find it difficult to relate Dr Leung's findings to the factual circumstances that I have found to pertain to the making of the agreement; and assess the extent, if at all, such findings might bear on the question of the Defendant's ability to exercise judgment regarding the conclusion of the same.

67. For completeness, I have not overlooked the medical notes of the Shanghai hospital as reproduced in paragraph 6 of Dr Yu's report. I do not consider the diagnosis that the Defendant was suffering from dementia takes his case any further.

68. I am not persuaded that the medical evidence assists the Defendant.

Payment of the Sum of $50,000.00

69. After the signing of the Deed, the Plaintiff moved out of the Mei Foo Flat and returned the keys to the Defendant. They had since had meeting with each other and had gone out for meals together.

70. I also accept the Plaintiff's evidence that when the Defendant put the Mei Foo Flat on the market, she accompanied the Defendant and the potential purchasers to view the flat. The property was eventually sold in May 2000.

71. The Plaintiff became concerned that the April date had passed and the Defendant had failed to make payment of $750,000.00. She pressed the Defendant for payment. I accept the Plaintiff's evidence that the Defendant had told her that his children objected to the fact that he had signed the Deed. Indeed, the Defendant admitted in his testimony that his son queried why he would agree to pay more since he had already paid her $500,000.00 previously. In the event, the Defendant only gave the Plaintiff $50,000.00. I believe, by then, the Defendant had already formed the intention not to perform his obligations under the Deed but to pursue his plan to join his son in Canada.

72. The Commercial Property was also sold in about June 2000. Insofar as the Defendant alleged (in his witness statement) that the $50,000.00 was paid to prevent the Plaintiff from causing trouble at the solicitors' office in relation to the execution of documentation for the sale of the Commercial Property, I would reject the same.

Construction of the Deed

73. The material parts of the Deed provide as follows:

"	1.	... in consideration of the sum of HK$750,000.00 payable by CHEN to WONG in manner hereinafter described, the parties hereto shall live separate and apart from each other and hereby covenant and agree with each other as follows:
		(4) Either of them shall at all times hereafter support and maintain himself or herself, ...
	2.	The said sum of HK$750,000.00 shall be payable by CHEN to WONG on or before the 30th day of April 2000 PROVIDED that in the event of CHEN failing to pay the said sum of WONG on or before the 30th day of April 2000, CHEN shall pay an additional sum of HK$100,000.00 making a total sum of HK$850,000.00 to WONG on or before the 30th day of June 2000.
	3.	Until full payment of the said sum of HK$750,000.00 or HK$850,000.00 as the case may be, CHEN shall pay to WONG a sum of HK$6,500.00 per month as her maintenance."

74. Two questions arise. One is the effect of the term for payment of the additional $100,000.00 in default of payment of $750,000.00 by 30 April 2000. At the invitation of the Court, Miss Ma sought an amendment to the Defence in the course of her final submissions to contend that the payment of the additional sum of $100,000.00 amounted to a penalty and was unenforceable. After hearing submissions, in view of the lateness in the application which, if granted, would have necessitated the reopening of the evidence to deal specifically with the issue as to how the term was arrived at, I have refused the application. Hence, there is no issue as to the enforceability of Clause 2.

75. The second question concerns the interpretation of Clause 3. By describing the monthly payment as "maintenance", Clause 3 was in apparent conflict with Clause 1(4) which provided that the parties would thenceforth support and maintain themselves. By making provision for monthly "maintenance" until the lump sum payment is discharged, the parties had already provided for "the remedy" in the event of default of the lump sum payment. It could not have been intended by the parties that the Defendant would be obliged to pay monthly "maintenance" and, in addition, interest consequent upon default of the lump sum payment by the respective due dates.

Conclusion

76. I would give judgment for the Plaintiff in the sum of $800,000.00. The Defendant is to pay a monthly sum of $6,500.00 from July 2000 until payment of the sum of $800,000.00. No interest will be awarded on either the sum of $800,000.00 or the monthly payments. The Defendant's counterclaim is dismissed.

77. The injunction granted by Deputy Judge Gill on 3 July 2000 as varied by Deputy Judge McMahon (as he then was) on 15 August 2000 shall continue until satisfaction of the judgment herein.

78. There will be an order nisi that the Plaintiff shall have the costs of the Action.