HO SIK CHEUNG v. CHENG YIN PING ELIZA

HCAP 18/2016

[2020] HKCFI 2295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 18 OF 2016

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JUDGMENT

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1.  Ho Yung Hon, deceased (“the Deceased”) passed away in 2007. The defendant (“Cheng”), wife of the Deceased’s eldest son, obtained grant of probate in respect of a will of the Deceased made in 1998. The plaintiff (“Sik Cheung”), the youngest son of the Deceased, brought this action against Cheng on the ground that the 1998 will should be, and has been, revoked, and that the last will of the Deceased made in 1999 should be propounded.

Background

2.  The Deceased and his wife, also deceased, had the following children:

(1)  Ho Kam Cheung (“Kam Cheung”), son;

(2)  Ho Ping Tai (“Ping Tai”), daughter;

(3)  Ho Kwan Tai (“Kwan Tai”), daughter, also deceased;

(4)  Ho Man Tai (“Man Tai”), daughter;

(5)  Ho Cho Tai (“Cho Tai”), daughter;

(6)  Sik Cheung, son, the plaintiff;

(7)  Ho Mei Tai (“Mei Tai”), daughter.

3.  Kam Cheung had four children, two sons and two daughters, born out of his first marriage which ended in divorce in 1985.  Kam Cheung married Cheng in 1987, and three sons were born out of this second marriage.

4.  The Deceased’s wife passed away in December 1996.

5.  The Deceased passed away on 29 April 2007 at the age of 96.

6.  The bulk of the Deceased’s estate comprises four lots of land in Demarcation District 189 Shatin, New territories (or Tin Sum Village).  Typical village type houses were erected on these lots, which have become Nos 25A^[1], 65^[2], 110^[3] and 238^[4] respectively of the village.  Various family members have resided, and some are still residing, at these houses.

7.  Discovery of a series of events concerning the Deceased and his properties since the passing of his wife in 1996 has brought about clashes and litigations within the family up to 2002.  Details of these events will be referred to below.  Suffice to say as introduction that the Deceased and his other children eventually manage to stand together against Kam Cheung and Cheng who were considered to be the culprits behind the misfeasance.

8.  In 2015, the children (other than Kam Cheung) instructed solicitors^[5] to apply for the grant of probate in respect of the last will of the Deceased dated 12 November 1999 (“the 1999 Will”).  Only upon that did they discover that grant had already been applied for and obtained by Cheng in respect of the previous will of the Deceased dated 19 October 1998 (“the 1998 Will”).  Apparently, Cheng applied on 8 September 2015 as the executrix appointed under the 1998 Will.  On 15 September 2015, probate was granted to her (Grant No HCAG 012884/2015) (“the 2015 Grant”).

9.  On 23 September 2016, Sik Cheung, as the executor named in the 1999 Will, commenced the present action against Cheng for propounding the 1999 Will and thereby revoking the 1998 Will and the 2015 Grant.  Alternatively, Sik Cheung contends that the 1998 Will, and thus the 2015 Grant, should be revoked on the ground that the execution of the will was procured by the undue influence or fraud of Kam Cheung and Cheng over the Deceased, so that the Deceased did not know or approve of its contents and legal effect.

10.  The 1999 Will, if propounded, would by its terms suffice to revoke the Deceased’s previous testamentary scripts, including the 1998 Will.  I can therefore understand why the contention of undue influence tainting the making of the 1998 Will is put forward as an alternative case of Sik Cheung.  However, the reality of the matter, as will be seen from the discussion below, is that the allegations in connection of the undue influence and the 1998 Will form a material part of the circumstances surrounding the making of the 1999 Will.  Hence the need to consider and to make necessary findings of such relevant circumstances in any event.

11.  In defence, Cheng challenges the Deceased’s testamentary capacity at the time of the execution of the 1999 Will.  She too raises undue influence but allegedly exerted by Sik Cheung on the Deceased that brought about this last will of the Deceased.

Propounding a will

12.  Mr Vaughan, appearing for Sik Cheung, correctly summarises the applicable principles.  A person who propounds a will has the burden to satisfy the court that it is the will of the deceased by evidence, which should establish on the balance of probabilities that:

(1)  there was due execution of the will;

(2)  the testator was of testamentary capacity; and

(3)  the testator knew and approved of the contents of the will.

See Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, at §§171-173.

13.  A testator must have animus testandi (ie a testamentary intention) to make a valid will. It follows that the wish to effect the will upon the death of the testator must be entirely the result of his or her volition, and that he or she must know and approve of the contents of his own will.  A testator lacks animus testandi if he makes his will as the result of fraud or undue influence.  The burden of proof in this regard falls on the party who opposes the validity of the will: see Nina Kung (above) at §178.

14.  Often-cited in the context of testamentary capacity is the explanation by Kwan JA in Chiu Man Fu v Chiu Chung Kwan Ying CACV 40/2012 (18 June 2013) (at §52):

“I start with the classic statement of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565 laying down four criteria for testamentary capacity, which I have numbered for ease of reference:

“It is essential…that a testator (1) shall understand the nature of the act and its effects; (2) shall understand the extent of the property of which he is disposing; (3) shall be able to comprehend and appreciate the claims to which he ought to give effect; and, (4) with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.””

15.  Whether a testator is mentally competent under the above test may depend on the level of the complexity of a will: In the Estate of Park [1953] P 112, 136.  The testator must be able to discern and judge all the circumstances relevant to the making of his will, and the testamentary capacity of a testator must be measured in relation to the facts and subject matter of each particular case.

16.  As to the role of a solicitor in the preparation and execution of a will, the Court of Appeal has laid down useful guidelines in Re Estate of Au Kong Tim (No 3) [2018] 2 HKLRD 864.

Undue influence

17.  In the present context, influence is undue if the will is not the offspring of the testator’s own volition but the record of someone else’s: see Hall v Hall (1865-69) LR 1 P & D 481.  In Li Chi Loy v Li Lai Lan Candice [2008] 5 HKLRD 74, Poon J (as he then was) explained (at §83):

“The approach to undue influence is well summarised in Edwards v. Edwards [2007] All ER (D) 46, where Lewison J said :

“47. There is no serious dispute about the law. The approach that I should adopt may be summarised as follows:

i) In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;

ii) Whether undue influence has procured the execution of a will is therefore a question of fact;

iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influences as vitiating a testamentary disposition;

iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud.

v) Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment discretion or wishes, is enough to amount to coercion in this sense;

vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’ sake to do anything. A ‘drip drip’ approach may be highly effective in sapping the will;

…

ix) The question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent.””

The case of Sik Cheung (and his siblings)

18.  Sik Cheung, Man Tai and Cho Tai gave evidence of the history of the family and the past disputes.  Essentially, the Deceased was an indigenous villager with not much education.  Amongst his siblings, Sik Cheung had the fortune of attaining tertiary education and the competence of becoming a surveyor working for the Government.  The family lived together until the children moved out of the family residence after their respective marriages, except for Cho Tai who is not married.

19.  In the1980s, the Deceased, Kam Cheung and Sik Cheung, being the indigenous male descendants, were respectively granted lots of land in the Village.  The Deceased was granted No 1657, where he caused to be built the house now known as No 238 mentioned above.  Ping Tai, Kwan Tai and Mei Tai funded the build.

20.  By succession, the Deceased also owned Lots Nos 1263, 1693 and 1294 in the Village.  He caused to be built on these lots houses which have become Nos 25A, 110 and 65 respectively mentioned above.  Since 1988, the Deceased and his wife as well as Cho Tai had resided on the 2/F of No 110, and let out the other two floors for rental income.

21.  According to Sik Cheung, the relationship between Kam Cheung and the Deceased was not all along harmonious.  As he understands, Kam Cheung has sold his original lot in the Village back in the 1980s due to need of money.  In 1970s to 1980s, Kam Cheung had various business ventures that eventually failed one after the other.  Instead of supporting his parents financially, Kam Cheung was used to making frequent demands for financial assistance from the parents and siblings.

22.  After his divorce from his first wife, Kam Cheung did not support his divorced wife and their four children.  Because of his good relationship with them, the Deceased allowed her and his grandchildren to move into No 65.

23.  A few years after Kam Cheung married Cheng, both of them were adjudged bankrupt in about 1991.  Not without reluctance, the Deceased helped by accommodating Kam Cheung and his family in No 25A in 1994.

24.  Notwithstanding the strain on the family relationship accrued from Kam Cheung’s situation, the family had so far managed to maintain reasonable harmony.  That however changed after the mother passed away in December 1996.

25.  The Deceased was much upset about the passing of his wife.  He was over 80 years old then.  During a family gathering in February 1997^[6], the Deceased expressed his wish to dispose of his properties upon his death as follows:

(1)  No 25A, then occupied by Kam Cheung, Cheng and their sons, would go to Kam Cheung.

(2)  No 65, then occupied by the first wife of Kam Cheung and the grandchildren, will go to the two grandsons.

(3)  No 238 will go to Ping Tai (2/F), Kwan Tai (1/F) and Mei Tai (G/F), who funded the building of the house.

(4)  No 110, home of the Deceased, will go to Sik Cheung (G/F), Man Tai (1/F) and Cho Tai (2/F).

26.  This later evolved into the preparation of a will in the same year.  Kwan Tai and Ping Tai’s husband accompanied the Deceased to the solicitors’ office^[7], where the Deceased executed his will on 16 December 1997 (“the 1997 Will”).  Kwan Tai was named the executrix.  The terms of the 1997 Will reflected adjustment of the Deceased’s express intention mentioned above, namely:

(1)  Nos 110 and 238 would still be bequeathed as mentioned above;

(2)  The other real and personal properties of the Deceased, net of the funeral and testamentary expenses as well as payable duties, would be distributed amongst the seven children in equal shares as tenants in commons.

27.  At the same time, the Deceased executed documentation appointing the three daughters as his attorney essentially to handle all the matters in connection with No 238.

28.  Since the passing of her mother, Cho Tai, who is not married and had been living with the Deceased at No 110, had played a major role in taking care of the Deceased.  However, quarrels between them over trivial matters at home became more often, which at one point drove Cho Tai to decide to live apart.  Meanwhile, Kam Cheung and Cheng were seen getting closer to the Deceased than before.  Following the moving out of Cho Tai, arrangement was also made amongst the family members to take care of the meals of the Deceased.  In 1998, Kam Cheung and Cheng also sent a domestic helper to stay with the Deceased at his house.

29.  At the beginning, the other children detected nothing sinister about the conduct of Kam Cheung and Cheng concerning the Deceased.  However, Sik Cheung and his siblings later came to realise what they considered to have been the manoeuvre of Kam Cheung and Cheng over the affairs and assets of the Deceased behind the back of the other siblings. The following events were referred to:

(1)  The Deceased somehow opened a new bank account and transferred his cash to this account in December 1998.  Cheng kept the bank card enabling her to withdraw cash from that account.  Effectively, Cheng took over the management of the Deceased’s financial affairs, rendering the Deceased dependent on her for access to his cash.

(2)  In about October 1998 and April 1999, the Deceased was brought by Kam Cheung and Cheng to a firm of solicitors^[8] where he was asked to sign certain documents.  It was subsequently discovered that the Deceased executed the 1998 Will in October 1998, and the conveyance of No 110 to Cheng as trustee for her three sons in April 1999.

(3)  By the terms of the 1998 Will, the Deceased revoked the 1997 Will and made the following bequests of his estate:

(a)  No 65 to the two sons of Kam Cheung from his first marriage;

(b)  No 110 to Cheng’s three sons;

(c)  No 238 to Cheng’s three sons;

(d)  No 25A to Cheng’s three sons;

(e)  Residuary estate to Cheng’s three sons.

(4)  By the terms of the conveyance, the Deceased was said to agree to transfer No 110 to Cheng for the consideration of HK$2.8 million, which he never received^[9].

(5)  In 1999, legal action was commenced in the name of the Deceased against Mei Tai, Ping Tai and Kwan Tai[10] concerning No 238 (HCA 8246/1999).  The Deceased also accused Ping Tai’s husband of theft of the title deeds to No 238.

30.  At one point in 1999, the Deceased apparently began to feel uneasy about what had happened, and had approached Man Tai and Sik Cheung for assistance.  With theother children’s assistance and legal advice, the Deceased eventually regained control over HCA 8246/1999 against his three daughters mentioned above, and managed to bring an end to that by agreeing to a declaration to the effect that he held No 238 on trust for the three daughters.  That would be in line with the history and the consistent intention of the Deceased in respect of that property as mentioned above.

31.  The Deceased also commenced action against Kam Cheung (as the 1^st defendant) and Cheng (as the 2^nd defendant) to set aside the conveyance of No 110 mentioned above on the ground of, amongst others, undue influence (HCA 15909/1999).  Kam Cheung and Cheng resisted the claim.  After trial, Hon Waung J delivered his judgment on 9 May 2002 (“the 2002 Judgment”).  In the absence of appeal, the judgment became final.

The 2002 Judgment

32.  The significance of the 2002 Judgment lies not only in its outcome that was favourable to the Deceased, but also in the findings of fact in respect of very much the same factual background of the present action mentioned above.  Mr Vaughan fairly acknowledges that this court is not bound by that judgment.  That said, the parties to that judgment are bound by the findings of fact in respect of the factual dispute in that case.  Whilst this court must make its own findings of fact for determining the present case, neither party may for the purpose of the present action attempt to re-open and to advance any factual allegations that contradict the findings in respect of the same factual dispute in the 2002 Judgment that binds them: see Kan Wai Chung v Hau Wun Fai & Ors, CACV 43/2012 (7 February 2013).  Any attempt by the parties to that judgment to re-open any of these factual issues in the present case will amount to a collateral attack on the findings in that judgment.

33.  On the above note, it is only prudent for this court to set out below the findings of the learned judge in the 2002 Judgment:

“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 1^st 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 1^st defendant was not in close relationship with the family. This was before the death of the mother, before the 1^st defendant moved back into the village and this must have been the state of affair also when he broke up with the first wife, ie Madam Yung, and took up with Madam Cheng (the 2^nd defendant) even before they got married and even before the 1^st 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 1^st and 2^nd defendants, at least, one of the sons was born before the marriage. So, the 1^st 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 2^nd 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 1^st defendant and the father (although the mother, I think, have a soft spot for the 1^st defendant), nor between the 1^st defendant and his brother (ie 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 (ie 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 1^st defendant, ie the house occupied by the 1^st and 2^nd defendants.

(2) Number 65 will go to the two sons of the first marriage of the 1^st 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 1^st and 2^nd 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 1^st 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 1^st 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 2^nd 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 1^st 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 1^st and 2^nd 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 2^nd 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 1^st and 2^nd defendants they ought to be satisfied because they were gaining firstly their own house no 25A and also the two sons of the 1^st 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 2^nd 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 sometime in December 1998 into which the 2^nd defendant had access in terms of operation and the card of which account was in fact entrusted by the plaintiff to the 2^nd 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 1^st 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 2^nd 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 2^nd 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 2^nd Will already shows clearly the dominance of the 1^st and 2^nd 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 2^nd 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 2^nd 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 2^nd 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 1^st and 2^nd 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 2^nd 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 1^st 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 2^nd 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 2^nd 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 2^nd 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 2^nd 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 2^nd 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 2^nd 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 2^nd 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 1^st and 2^nd 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 2^nd defendant for food, for care, for the management of his financial affairs, and for ideas. Step‑by‑step the 2^nd 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 2^nd 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 1^st and 2^nd defendants, particularly by the 2^nd 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...”

34.  The learned judge’s findings explained in §§27-28 and §§39-42 are of particular relevance to the present action.  Indeed, Mr Vaughan highlights the same in his submissions.  Whilst the subject matter of dispute in the 2002 Judgment was the conveyance of No 110, the learned judge, in my respectful view, was right in considering the conveyance and the making of the 1998 Will not in isolation but as part and parcel of what Kam Cheung and Cheng engineered to dispose of the Deceased’s properties for their benefit at the material time. The findings of the learned judge in respect of the circumstances surrounding the making of the 1998 Will could not be brushed aside as mere obiter as far as the parties to the judgment are concerned.

This court’s assessment

35.  Now this court heard the witnesses.  I find that Sik Cheung and his siblings gave truthful evidence, notwithstanding uncertainties or lack of precision in some minor details. Whilst one may say that the contest at the end concerns their self-interests, I detect no sense of greed among them other than their genuine wish to prevent the distortion of intention of the Deceased which Cheng attempts to do by maintaining the 1998 Will in the circumstances.

36.  The circumstances leading to the execution of the 1998 Will and the 1999 conveyance mentioned above, as well as the terms of the 1998 Will, clearly manifest the steer of hers and Kam Cheung’s to channel nearly all the assets of the Deceased to them, be it with a view to benefiting their then still under-aged sons or not.  That happened when it was not that the Deceased had no intention of providing for Kam Cheung.  The 1997 Will spoke for itself.  Such intention of the Deceased to provide for Kam Cheung of course lasted until he, according to Sik Cheung, changed his mind upon discovering the misdeeds of Kam Cheung and Cheng in 1999.

37.  The Deceased passed away in 2007.  Sik Cheung and his siblings did not apply for probate in respect of the 1999 Will until 2015.  It was suggested to them during cross examination that they held back because of their awareness of the lack of testamentary capacity of the Deceased and thus the integrity of the 1999 Will. However, it is unclear what they could have realistically achieved regarding that by the delay.  In any event, explanation was given by Sik Cheung and his sisters, and I find that to be believable.  In my judgment, that is in any event immaterial to the adjudication of the major dispute in the present case. What is important is that it was upon his application for grant in 2015 did Sik Cheung and his siblings came to realise that Cheng has already applied for and obtained probate in respect of the 1998 Will earlier in the same year.  I have no doubt that Cheng did that behind their back.  She must be in denial or disregard of the adverse findings of the court in the 2002 Judgment against her in respect of the 1998 Will.  She chose to apply for grant by herself.

38.  In her evidence, Cheng claimed ignorance about the adverse findings against her in respect of the making of the 1998 Will in the 2002 Judgment.  She even alleged that she came to realise such findings only during cross examination in trial.  To effectively suggest that her legal representatives, previous and current, did not explain to her the 2002 Judgment, and that her current legal representatives managed to plead her case in respect of the 1998 Will in the present action without her instruction in this respect, Cheng is utterly unbelievable and her evidence in this respect must be rejected.

39.  All matters considered, I have all the reasons, on the basis of the evidence before this court, to come to the same conclusion on the facts in this respect as that of the learned judge in the 2002 Judgment set out above.  I find that the 1998 Will came to existence in circumstances where there was actual undue influence exerted by Kam Cheung and Cheng on the Deceased between 1998 and 1999 prior to the making of the will.  On that ground, the 1998 Will was liable to be revoked.

Circumstances surrounding the making of the 1999 Will

40.  Whether or not the 1998 Will is liable to be revoked on the ground of undue influence, it remains the burden of Sik Cheung to formally prove the 1999 Will.  As mentioned, it became Cheng’s turn to allege undue influence of Sik Cheung (and his siblings) that tainted the 1999 Will.  It becomes her burden to substantiate such allegation.

41.  As mentioned, Sik Cheung and his siblings first came to learn from the Deceased in mid-1999 about the matters affecting the latter’s assets that were engineered by Kam Cheung and Cheng.  After further discovery, Sik Cheung and his siblings assisted the Deceased in taking steps to salvage the Deceased’s position.

42.  Regarding No 238, the Deceased signed a declaration in June 1999 acknowledging the beneficial interest of the three daughters in the property, which was consistent with his declared intention so far.  It should be noted that the declaration was expressly worded to “再確認”, or re-confirm, the position.

43.  Report had been made to the police regarding No 110.  In June 1999, the police took a statement from the Deceased[11]. The statement recorded the Deceased’s complaint to the police that the property was cheated out of him by Kam Cheung and Cheng by the conveyance of the property to Cheng on trust for their three sons.

44.  Meanwhile, legal advice was also obtained.  According to Sik Cheung, they came to know Mr Kevin Ng (“Ng”) of Kevin Ng & Co through a friend who then worked as a court interpreter (Mr Yeung) in early September 1999.

45.  With Ng’s assistance, the Deceased first managed to regain control over HCA 8246/1999 and to bring it to an end by consenting to a declaration by the court in October 1999[12] in favour of his three daughters regarding the beneficial interest in No 238 in line with his consistent intention declared so far.

46.  Ng also act for the Deceased in commencing HCA 15909/1999 against Kam Cheung and Cheng to set aside the conveyance of No 110.  Kam Cheung and Cheng took the stance of resisting the Deceased’s claim.  This must be known to the Deceased then.

47.  It was amidst these steps taken by the Deceased in 1999 to target what he considered to have been the misfeasance of Kam Cheung and Cheng that he also caused the 1999 Will to be prepared.  According to Sik Cheung, one or two weeks after the Deceased had formed the idea of making a new will, they went to meet Ng.  The intention of the Deceased has to be assessed in these circumstances prevailing then.

Intention as per the 1999 Will

48.  Under the 1999 Will, Sik Cheung is the executor, and there are the following bequests:

(1)  No 110 to Sik Cheung (G/F), Man Tai (1/F) and Cho Tai (2/F and roof);

(2)  No 238 to Mei Tai (G/F), Kwan Tai (1/F) and Ping Tai (2/F and roof);

(3)  No 65 to the two sons from the first marriage of Kam Cheung;

(4)  All other real property to Sik Cheung;

(5)  Residuary estate to Sik Cheung, Man Tai, Cho Tai, Mei Tai, Kwan Tai and Ping Tai in equal shares.

49.  Consistent with the declared intention of the Deceased, legal title to No 238 will upon his death go to Mei Tai, Kwan Tai and Ping Tai, who have beneficial interest in the property as always acknowledged by him during his lifetime.  The bequest of No 110 also reflects what was always the declared intention of the Deceased, but for the 1998 Will.  Nos 65 will go to the two sons of Kam Cheung from his first marriage.  The precise dispositions aside, the nature of this bequest to provide for the family of Kam Cheung’s first marriage and for landed properties to be inherited by the sons born out of that marriage is consistent with the declared intention of the Deceased so far.  The other real property, known to be No 25A, will effectively go to Sik Cheung, and the residuary estate of the Deceased would be distributed amongst Sik Cheung and his siblings.

50.  One may say that Sik Cheung stands to benefit from the re-distribution of the estate as compared to before.  One may say this is a notable feature of the 1999 Will.  Much was indeed said about that at the trial on behalf of Cheng.  However, the equally, if not more, notable feature of the 1999 Will is the removal of the family of Kam Cheung and Cheng as beneficiaries.  Despite queries raised on Cheng’s behalf at the trial, I do not find any intention of the Deceased to do so to be inherently improbable.  On the contrary, I would go so far as finding that any intention of the Deceased to make a fresh will, and to make it his point, to disinherit the family of Kam Cheung and Cheng would only be consistent with the circumstances prevailing at the material time as mentioned above.

51.  Regarding how the Deceased came to make the 1999 Will containing these terms, much is said about the evidence of Sik Cheung and his two elder sisters during cross-examination.  All evidence considered, including the criticism laid against them in respect of general and specific credibility, I accept that, minor uncertainties aside, they all tried to tell the truth.  Importantly, even assuming that it was any of them who brought up the subject of making a new will to the Deceased, which I do not find actually happened, that per se would still have been miles away from the requisite nature of exertion of coercion or undue influence by them on the Deceased that would render the making of the 1999 Will anything short of that of his own free will: see Hall v Hall (1865-69) LR 1 P&D 481; Re Edwards [2007] EWHC 1119; Li Chi Loy (above) at §83.

52.  Mr Chan (appearing with Mr Lun) for Cheng cited Re Estate of Yip Keung, HCAP 15/2004 (19 December 2007) in support of his submission that the court should jealously and vigilantly examine the evidence in support of the 1999 Will.  In that case, A Cheung J (as he then was) actually found[13] that though the plaintiff was not the one who wrote or prepared the will, he was involved in making the necessary introduction of the draftsman of the will to his father. He was present when the draftsman took instructions from the father.  He supplied information to the draftsman for the preparation of the will, and he alone stood to benefit under the will.  The will drawn up in such circumstances, the court found, would only excite the suspicion of the court, and hence the need to examine the evidence in support of such a will vigilantly and jealously.  Actually, the learned judge in HCA 15909/1999 adopted a similarly vigilant approach towards the evidence in support of the 1998 Will.  He found that the 1998 Will was extraordinarily in favour of Kam Cheung and Cheng through their sons, and that it was prepared under their domination and engineering.

53.  In the present case, I accept Sik Cheung’s evidence that he took no part in giving instruction to Ng in the preparation and execution of the 1999 Will.  Both Sik Cheung, his sisters and Ng confirmed in evidence that the children accompanied the Deceased to Ng’s firm on both occasions, but instruction in respect of the new will was taken by Ng in confidence from the Deceased without the presence of Sik Cheung or his sisters.  Nor was any of them present in the room when the 1999 Will was executed before Ng and the other witness.  There is no evidential basis for finding that Sik Cheung and his sisters either devised or were consulted by Ng on the terms of the 1999 Will.  Whether or not any of them somehow became aware of some of the terms of the will before or after the will was executed points neither here nor there, insofar as whether the Deceased expressed his own free will to Ng at the material time.

54.  Ng produced his attendance notes in respect of the meetings with the Deceased on 2 September 1999 and 12 November 1999 respectively.  The former was formally disclosed on 21 January 2019, two days prior to the pre-trial review.  For that, the plaintiff took out his summons dated 21 January 2019, supported by the affirmation of Ng.  The summons was adjourned to be dealt with at the trial, apparently to enable Cheng to file evidence in opposition.  No such affirmation in opposition has been filed.

55.  The principles regarding late discovery of documents in the case Hong Lok School Limited v Chow Sai Yiu, HCA 17139/1999 & HCA 19001/1999 (7 July 2003) are referred to.  The attendance note contained the record of the meeting between the Deceased and Ng.  No doubt the note is relevant.  With their maker giving evidence at the trial in any event, Cheng would have the opportunity to cross examine him on both sets of notes.  No irreparable prejudice would be occasioned to Cheng by the late discovery.  No contrary evidence of prejudice was adduced by Cheng.  I rule that the note may and should be adduced.

56.  In view of the challenge against the authenticity of both sets of attendance notes, which was maintained at the trial, the originals of the two sets of attendance notes were formally produced by Ng in the witness stand[14]. Ng was cross examined specifically on the notes.  All evidence considered, I have no doubt about the authenticity of these notes.  Nor do I doubt that they contain a fair record of what transpired during those two meetings between Ng and the Deceased.

57.  Consistent with his declared view about the dishonesty of Kam Cheung and Cheng towards him by then, the attendance notes recorded the Deceased’s instruction that the family of Kam Cheung and Cheng should inherit no part of his estate.  Hence the re-distribution of his estate amongst the other children and the two grandsons from Kam Cheung’s first marriage.  That, I find, was what drove the Deceased to decide to make this new will.

58.  The evidence of Sik Cheung and his two elder sisters impresses me that the former is not a greedy person.  I do not find that Sik Cheung has been motivated by greed in his involvement in this saga between his father and his eldest son.  The apparent favouring of Sik Cheung in the re-distribution of the estate under the 1999 Will is also not overwhelming, when considered together with the other bequests.  The dominant feature of the 1999 Will, which is consistent with the circumstances surrounding the Deceased then, was to disinherit the family of Kam Cheung and Cheng.  The benefit to Sik Cheung from the re-distribution, I find, was consequential and does not excite suspicion in the circumstances.

Whether the Deceased had the necessary mental capacity

59.  The question then is whether the Deceased in fact had the mental capacity of forming and conveying the testamentary intention mentioned above as well as knew and approved of the terms of the 1999 Will that embodies such intention.  The criteria set out in the case of Chiu Man Fu (above) refer.  The prudence of Ng in the course of taking instruction from the Deceased and preparing the 1999 Will was questioned in court.

60.  First, and legitimately, reference is made to how Ng satisfied himself in fulfilment of his duty as the handling solicitor that the Deceased had the mental capacity of forming and conveying the testamentary intention as well as knowing and approving of the terms of the 1999 Will.

61.  During his cross examination, Ng was directed to the so-called “golden rule” in Kenward v Adam (1975) The Times, 29 November 1975.  Briefly, in the case of a testator who is of advance age or frail health, the solicitor instructed to prepare his will would be expected to satisfy himself as to the capacity and understanding of the testator on the basis of medical evidence.  Ng accepted that he was not aware of such rule at the material time.  That said, I do not understand that to be a rule which, if not followed, would lead to the conclusion that the will is invalid.  The rationale which counts is that the handling solicitors must form his view on the basis of proper assessment and information, of which medical evidence in respect of the testator’s condition and capacity is normally the most reliable type.

62.  As mentioned, Ng was instructed in the latter half of 1999 to advise and act for the Deceased, which eventually brought about the end of HCA 8246/1999, commenced in his name against his daughters, and also brought about the Deceased’s commencement of HCA 15909/1999 against Kam Cheung and Cheng.  It was amidst these steps of the Deceased that Ng was also instructed to prepare the new will of the Deceased.  Ng confirmed that he managed to obtain instruction from the Deceased in respect of all these matters by then.  Further, the terms of the 1999 Will were not complex.  Ng explained that the Deceased managed to give him clear instruction as to his intended disinheritance of Kam Cheung and his family as well as his bequests during the 40-minute meeting in September 1999.  It was not that Ng had no basis for forming an informed assessment of the capacity of the Deceased to give instruction by then.

63.  It is legitimate to note the fact that the Deceased acted by Sik Cheung as his next friend in HCA 15909/1999.  However, that had yet to be the state of affairs when the action was commenced in 1999.  By mid-2000, the parties in that action had also exchanged witness statements.  Then the Deceased had a stroke in August 2000.  The issue of the capacity of the Deceased arose.  The appointment of next friend to continue that action took place in September 2001.

64.  In view of the circumstances surrounding the relevant time and personally known to Ng since he had been acting for the Deceased, I would not find fault on the part of Ng in not seeking medical assessment of the Deceased in September 1999 before satisfying himself that the Deceased was then capable of giving and understanding his own instruction.  Whether the psychiatric expert evidence now adduced for the purpose of this trial serves to cast different light on this subject will be discussed below.

65.  The query as to the whether the Deceased knew and approved of the terms and effect of the 1999 Will is also raised with reference to what are said to be oddities amongst the terms of the will.  The alleged oddities appear in clause 3 of the 1999 Will, which says:

“I DECLARE that this my Will expresses my real intention and my son HO KAM CHEUNG (何錦祥), his cohabitee CHENG YING PING (鄭燕萍) [Holder of Hong Kong Identity Card No…] and the natural sons HO PAK SUN (何柏燊) [Holder of Hong Kong Identity Card No…], HO KI SUN (何祺燊) and HO MING SUN (何明燊) [Holder of Hong Kong Identity Card No…] born to the said CHENG YING PING (鄭燕萍) and any other siblings of the said HO KAM CHEUNG (何錦祥) and CHENG YING PING (鄭燕萍) shall not in any way be entitled to any part or share of my real and personal estate under this my Will.”

66.  The alleged oddities are as follows:

(1)  The Hong Kong Identity Card Numbers for Kam Cheung and Ki Sun were missing.

(2)  The English name of Pak Son (instead of Pak Sun) and Chinese name of Ki Sun (which should be其燊 instead of 祺燊) were misspelt.

(3)  The reference to “any other siblings” of Kam Cheung and Cheng for the purpose of the disinheritance was inconsistent with the rest of the will.

I would also add that the English name of Cheng (which should be Yin Ping instead of Ying Ping) was misspelt.  It was also factually incorrect to describe Cheng as the cohabitee of Kam Cheung.

67.  In my view, none of the above alleged oddities is significant.

68.  First, none of these persons was present or had their identity card details made available for the purpose of preparing the Will. Nor were such information obtainable from the 1997 Will.  I would not be surprised that these persons were not consulted for the purpose of making a will which was to disinherit them.  As to the description of Cheng, Ng explained that that was the Deceased’s own choice.  Importantly, notwithstanding the query about the identity card details and spelling of the names, there is no issue as to identity.

69.  Second, the reference to “any other siblings” of Kam Cheung for the purpose of the expressed intention to disinherit was inconsistent with the bequests in favour of precisely the siblings of Kam Cheung under the rest of the 1999 Will.  Reference to “any other siblings” of Cheng for this purpose also makes no sense, as the siblings of Cheng or their entitlement to the estate of the Deceased never entered the picture of this family dispute at all whatsoever.  Indeed, they are oddities.  However, these oddities, in my judgment, do not serve to cast doubt on the capacity of the Deceased in expressing his true intention or understanding the terms in this respect.

70.  In this respect, Mr Vaughan submits that when there appears to be inconsistency in the will, the court will construe the will with the endeavor to give effect to the true intention of the testator.  It should be the express intention to be ascertained from the entire will.  See Mardulyn v Lee Yee Hung [1993] 2 HKLR 267.  This must be right.  In Tan Cheng Gay & Ors v Tan Choo Suan & Anor (2015) 18 HKCFAR 430, Ribeiro PJ explained that:

“33. We have the benefit of the authoritative exposition of the principles applicable to the construction of wills provided by Lord Walker of Gestingthorpe NPJ in the recent decision of this Court inSecretary for Justice v. Joseph Lo Kin Ching, a decision drawing substantially upon the judgment of Lord Neuberger of Abbotsbury in Marley v Rawlings.

34. As Lord Walker NPJ points out, wills have as two important features (i) the fact that they are unilaterally created documents and (ii) that they have an ambulatory character, that is, that they are intended to take effect from the time of the testator’s or testatrix’s death, which may be some time after the will was executed. These features must be borne in mind when construing a will.

35. Against that background, it is now established that, subject to statutory regulation, one adopts the same approach to interpreting wills as one does to interpreting contracts and other legal documents: “... the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context”.

36. In other words, subject to statute:

“...the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party's intentions.”

37. This approach is consistent with the well-known “arm-chair” principle, save that it must be kept in mind that that principle looks to context as at the time the will is made whereas the will speaks from the time of death regarding any general description of property.

38. Lord Walker NPJ’s summary of the “two all-important principles of construction” are of particular present relevance, namely “that the words must be read and understood in their context, and that the will must be read as a whole”. This requires the Court to adopt an “iterative” process, checking each of the rival meanings against the other provisions of the document and investigating its practical consequences, and:

“It may require the court to go forwards and backwards painstakingly between the various words and phrases, occurring in different parts of the document, which give rise to the problem.””

71.  Clause 3 of the 1999 Will no doubt conveys the express intention of the Deceased to disinherit the family of Kam Cheung and Cheng.  The reference at the same time to “any other siblings” of Kam Cheung and Cheng for the same purpose however is so odd and out of place that it could not have been intended.  The clause, as it is and as a whole, admits of no other fair construction or understanding that meets common sense either. That said, there is no need in the circumstances of this case to speculate what might have been intended to be put there instead of the reference to “any other siblings” of Kam Cheung and Cheng for the purpose of this clause.  Such reference hardly creates ambiguity or doubt in the express intention of the Deceased at all, and must only be ignored in the fair construction of the intention of the Deceased manifested by this clause.

The medical expert evidence

72.  Now turning to the medical evidence.  As mentioned, Ng was questioned on the basis, amongst other things, that no arrangement was made for the medical assessment of the Deceased’s mental condition for the purpose of preparing the 1999 Will in September to November 1999.

73.  The children of the Deceased took the Deceased to consult psychiatrist Dr Chan Chung Mau (“Dr Chan”) on 3 and 6 December 1999, which was about 3 weeks after the execution of the 1999 Will. The Deceased suffered a minor stroke (cerebro-vascular accident) in September 2000.  After his discharge from the hospital, the children took the Deceased to see Dr Chan again on 22 September 2000.

74.  Dr Law Wun Tong (“Dr Law”), psychiatrist, was engaged to see the Deceased only once in April 2001 and for the purpose of assessing his ability to attend court proceedings in HCA 15909/1999.  That resulted in the subsequent appointment of Sik Cheung to act as the next friend of the Deceased in 2001 in continuing the proceedings in HCA 15909/1999 as mentioned above.

75.  Neither Dr Chan nor Dr Law was specifically engaged, when they respectively saw and examined the Deceased, to assess the Deceased’s testamentary capacity.  Obviously they had no further chance of examining the Deceased for such purpose.  What Dr Chan was instructed on behalf of Sik Cheung and Dr Law was instructed on behalf of Cheng to provide was their expert opinion on the likely mental and testamentary capacity of the Deceased as of the relevant time, ie when he gave instruction in September 1999 and executed the 1999 Will in November 1999.  Dr Chan and Dr Law produced their expert reports dated 9 January 2017 and 17 July 2017 respectively.  The two produced their joint report dated 26 August 2017.  On 8 January 2018, Dr Law produced his own further report.

76.  The Deceased was first brought to consult Dr Chan in December 1999 for reported impaired memory and paranoid ideas.  Mental examination then revealed that the Deceased was oriented to time, place and person.  He had no abnormal appearance or behaviour.  He was fully conscious and aware of the surroundings.  His mood was neutral.  He remembered correctly his address and the name of his daughter who accompanied him to the clinic.  He complained that his eldest son had cheated him and got his three properties (which has been proven in HCA 15909/1999 and in the present case to be fact instead of paranoid ideas).  Dr Chan gave his tentative diagnosis that the Deceased suffered from paranoid disorder and suspected early dementia.  Drugs were prescribed.  The condition of the Deceased was reported to have ups and downs depending on his intake of medicine.  After his discharge from the hospital due to his stroke, the Deceased was taken to see Dr Chan in September 2000.  Examination then revealed that the Deceased had no abnormal appearance or behaviour.  Nor was there abnormality in perception such as delusion or hallucination.  He was still orientated to day of week and could give his address correctly.  There was no paranoid symptom.

77.  Dr Chanset out in his report the questions that need to be asked for assessing the testamentary capacity of a person.  He fairly acknowledged that such assessment was not, and could not be, carried out.  However, judging from these findings upon actual mental examination that were proximate to the time of the making of the 1999 Will, Dr Chan observed that the Deceased’s cognitive functions were not significantly impaired, and his paranoid symptoms had no relation to his ability to make a will.

78.  The only time Dr Law saw the Deceased was in April 2001, which was more than a year after the making of the 1999 Will and the medical examinations of the Deceased by Dr Chan in December 1999.  As revealed by the medical records, the condition of the Deceased had deteriorated by then.  There was also his stroke in August 2000.  When the Deceased was seen by the psychiatrist in the public hospital in October 2000, he was still aware of his lawsuit against Kam Cheung over the conveyance of his property, but he could name only 4 out of his 7 children.  His MMSE score was 22/30.  When he was seen by Dr Law in April 2001, he still appeared to be aware of the ongoing litigation then, but he was disoriented in time, place and person.  His memory and concentration were significantly impaired.  His MMSE score had dropped to 15/30.  Pursuant to his brief then, Dr Law assessed accordingly and gave his opinion that the Deceased was unable to follow court procedures due to the significant cognitive function impairment then.  Dr Law also referred to the records of the subsequent medical examination of the Deceased in July 2001 and April 2006, which revealed further decline in the Deceased’s cognitive function.

79.  Dr Law was equally fair in acknowledging the difficulty in giving an opinion on the testamentary capacity of the Deceased at the relevant time, when he did not have the opportunity to administer the capacity-specific assessment.  He referred to the information available from (i) the Deceased’s consultation with Dr Chan in December 1999; (ii) the Deceased’s admission to the hospital for stroke in August 2000; and (iii) the Deceased’s consultation of the government psychiatrist in October 2000.  With such information, Dr Law inferred that the Deceased suffered from cognitive function impairment as well as some paranoid features around the time when he made the 1999 Will.

80.  In their joint report, both experts elaborated what led to their opinion as per their previous reports, while reiterating the significance of the specific questions that need to be asked of a person for the purpose of assessing that person’s testamentary capacity.  Both of them did not have the opportunity to do that.

81.  After the joint report, Dr Law was instructed on behalf of Cheng to give his further report.  What he felt able to add in terms of conclusion was that it cannot be ruled out that the Deceased’s capacity was impaired by his cognitive function impairment and paranoid delusion.

82.  The experts gave evidence in court.  Reference was made to certain public hospital record, which somehow reported the insidious onset of mental change of the Deceased years prior to 2000.  However, Dr Chan did not find inconsistency between the symptoms so recorded and his diagnosis of the condition of the Deceased upon his examination of the Deceased in December 1999.  Dr Law fairly acknowledged the possible impact of the stroke in August 2000 on the MMSE score when he was examined in October 2000.  He also did not disagree that dementia does not necessarily mean the lack of testamentary capacity.  As mentioned, both experts reiterated that assessment of testamentary capacity really requires the administering the relevant questioning of the testator, which they had no chance of doing.  In terms of eliciting instruction from the Deceased as to his testamentary intention, Ng was in fact the only one who was ever able to hear the Deceased personally.

83.  The circumstances are such that the psychiatric experts simply tried to do their best, when asked upon to give an opinion on the likely testamentary capacity of the Deceased at the time when the 1999 Will was made.  In the absence of the capacity-specific assessment, both had to rely on their observation and diagnosis upon their respective examination of the Deceased.  In real terms, Dr Chan had the clear advantage in terms of timing and thus relevance and reliability of his examination and diagnosis.  Relatively, it becomes less fair to require Dr Law to give his opinion on the basis of his examination of the Deceased more than a year later when the condition of the Deceased had evidently worsened.  Dr Law’s reports give such impression of the circumstantial limitation that he was faced with, and the learned doctor’s restraint in expressing his opinion.

84.  All evidence and expert opinion considered, I prefer to place due weight on the observations and opinion of Dr Chan in respect of the mental condition and capacity of the Deceased, and thus his testamentary capacity, at the relevant time, namely when the instruction was given and the 1999 Will was executed in September and November 1999 respectively.  I am satisfied as a matter of fact that the Deceased possessed such capacity at the time.

Res judicata

85.  It is contended on behalf of Cheng that Sik Cheung is estopped from pursuing his claim in respect of the 1998 Will because of the principle of res judicata, the res being the issue of the validity of the 1998 Will in HCA 15909/1999.  It is argued that Sik Cheung should not be permitted to proceed with such claim when he could have sought determination and relief in respect of the same in HCA 15909/1999.

86.  I agree with Mr Vaughan that the argument is misconceived.  In HCA 15909/1999, the Deceased claimed to set aside the conveyance of No 110 to Cheng.  Whilst the circumstances surrounding the conveyance inevitably overlapped with the making of the 1998 Will, and thus the necessary findings of fact for the purpose of determining that action, there was no issue of any person seeking as an interested party to nullify the 1998 Will.  Nor could there be such person, when the Deceased was still alive.  Instead of himself seeking to revoke the 1998 Will, which would have made no sense, it would be up to the Deceased to take steps during his lifetime to revoke the 1998 Will.  That he did by making the 1999 Will.

Conclusion

87.  All matters and evidence considered, including those discussed above, I come to the judgment that the Deceased gave instruction as well as knew and approved of the terms of the 1999 Will at the relevant time.  By virtue of its clause 1, all previous wills and codicils were revoked and the 1999 Will is the last will of the Deceased.  To leave no doubt, I also find that the 1998 Will was vitiated by reason of the undue influence exerted by Kam Cheung and Cheng, and therefore invalid and liable to be revoked.

Order and costs

88.  In respect of the summons taken out by Sik Cheung in respect of the attendance note of Ng, I grant leave as sought.

89.  I make the following orders:

(1)  Order pronouncing the 1999 Will in solemn form;

(2)  Declaration that the 1998 Will is invalid and liable to be revoked;

(3)  Declaration that the 1998 Will has been revoked by virtue of the 1999 Will;

(4)  The 2015 Grant to Cheng be revoked;

(5)  As and when probate in respect of the 1999 Will is granted to Sik Cheung, the following orders shall take effect:

(a)  Order that Cheng do provide an account of her prior administration of the estate of the Deceased;

(b)  Order that Cheng do account for the net proceeds in relation to the disposition, if any, of the assets in the estate of the Deceased;

(c)  Declaration that any net proceedings pursuant to (b) above, if any, are held by Cheng on trust for the estate of the Deceased and the beneficiaries under the 1999 Will;

(d)  Order that upon such account pursuant to (a) and (b) above, Cheng do pay over the entire net proceeds or any sum found due under (a) to (c) above to Sik Cheung as the executor of the 1999 Will.

90.  Costs should follow the event.  Cheng applied for probate, notwithstanding the findings of her undue influence in respect of the 1998 Will against her in the 2002 Judgment. She resisted the claim in the present action to declare the invalidity of that will on the same factual basis, which this court now finds against her.  The circumstances cause me to wonder if costs against her on a higher basis is warranted.  That said, it remains the burden of Sik Cheung in any event to prove the 1999 Will, which is also his primary case, in this action.  At this stage, I am minded to just make a nisi order that Cheng shall pay the costs of Sik Cheung in this action, including any costs reserved, to be taxed, if not agreed.  In the absence of application within 14 days to vary, the nisi costs order shall become absolute without further order of the court.