TAN CHENG GAY AND OTHERS v. TAN CHOO SUAN AND ANOTHER

CACV 200/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 200 OF 2013

(ON APPEAL FROM HCMP NO 246 of 2013)

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J U D G M E N T

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Hon Poon J (giving the judgment of the Court of Appeal) :

1. By a judgment dated 23 May 2014, we dismissed the plaintiffs’ appeal against the judgment of Deputy High Court Judge Chu dated 6 September 2013. The plaintiffs now seek leave to appeal to the Court of Final Appeal against our judgment.

2. Before the learned Judge below as well as before us was this single issue of construction concerning clause 2 of the Joint Will, which provided :

“我們謹此聲明這份平安囑書將管轄及處理我們名下所有（不論在世界任何以地方）的財產。”

3. The issue was whether “名下” used in clause 2 only covered all assets held in the name of the Deceased or by him personally, excluding assets held on trust for him (as contended by the plaintiffs) or all assets beneficially belonging to the Deceased including assets held on trust for him (as contended by the 1^st defendant).  The Judge ruled in favour of the 1^st defendant.  So did we.  We said :

“39. As rightly accepted by the parties, ‘名下’ is an ordinary term without any technical meaning. It must be understood in its plain and ordinary usage in Chinese. According to現代漢語詞典 (2012 Edition) at p 806, ‘名下’ means ‘某人名義之下，指屬某人或跟某人有關’. The dictionary meaning of ‘名下’ in its plain and ordinary Chinese usage is beyond doubt and admits no ambiguity. When it is used in connection with assets, it means assets ‘belonging’ (屬) to the person concerned. It is not limited to those assets which are held under or in the name of that person alone.

40. ‘名下’ is used in Clause 2 in the phrase ‘我們名下所有…財產’ to describe the assets to be covered by the Joint Will. Read with the plain and ordinary meaning of ‘名下’ in mind, the testamentary intention as expressed in that phrase is crystal clear. It means ‘all the properties belonging to us’. It embraces all assets beneficially belonging to the Deceased and Madam Ng.

41.  Such a testamentary intention of the Deceased and Madam Ng to include all the assets beneficially belonging to them in the Joint Will is also apparent from other provisions.”

4. We then set out the other provisions and explained why they supported the testamentary intention of the Deceased and Madam Ng to include all the assets beneficially belonging to them in the Joint Will.

5. In rejecting one of the submissions advanced by Mr Ho, SC for the plaintiffs, we said :

“48. Third, Mr Ho submitted that if ‘名下’ means ‘belonging’, it would be superfluous to use it when ‘我們所有財產’ (all our properties) would suffice. In our view, in ordinary Chinese usage, ‘名下’ is very often used together with ‘所有’. ‘我們名下所有’ is a common expression used to refer to all things which belong to the persons concerned. We can see no superfluity in the language used.”

6. The plaintiffs accept that no appeal lies as of right under section 22(1)(a) of the Court of Final Appeal Ordinance, Cap 484. However, they contend that the intended appeal involves 5 questions as set out in their notice of motion which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for determination.  The 5 questions are :

“(a) Whether the Chinese phrase ‘名下’ or ‘名下所有’, when used in relation to the assets of the person concerned in a will or other document intended to have legal effect, should mean only assets held ‘under / in the name of’ the person concerned?

(b) Whether the Chinese phrase ‘名下’ or ‘名下所有’, when used in relation to the assets of the person concerned in a will or other document intended to have legal effect, should mean all assets ‘belonging’ to the person concerned, including assets held under or in the name of others but beneficially and on trust for the person concerned?

(c) Whether the Chinese phrase ‘名下’ or ‘名下所有’, when used in relation to the assets of the person concerned in a will or other document intended to have legal effect, should be capable of carrying the meaning of all assets ‘belonging’ to the person concerned including assets held under or in the name of others but beneficially and on trust for the person concerned?

(d) Whether the interpretation of the Chinese phrase ‘名下’ (in its ‘plain and ordinary’ usage or meaning when used in relation to assets) as adopted by the Court of Appeal (in paragraphs 39 and 40 of the Judgment), namely, that it ‘is beyond doubt and admits no ambiguity’ to mean ‘belonging’ to the person concerned, is erroneous, given that even the dictionary meaning of the phrase suggests that it should, or at least could also, mean ‘under the name’ of the person concerned?

(e) Whether the interpretation of the Chinese phrase ‘名下所有’ (in ‘ordinary Chinese usage’) as adopted by the Court of Appeal (in paragraph 48 of the Judgment), namely, that it refers to ‘all things which belong’ to the person concerned, is erroneous?”

7. In support of the plaintiffs’ application, Mr Ho argues that the questions proposed to be submitted to the Court of Final Appeal for decision turn on the proper interpretation of the phrase “名下” or “名下所有” when used in relation to a person concerned in a will or documents intended to have legal effect.  The plain and ordinary meaning of the phrase “名下” (when used in relation to assets of a certain person) means only assets held “under / in the name of” the person concerned.  When the phrase “名下” is used in conjunction with the phrase “所有” (in relation to assets of a certain person), such usage would point even more strongly towards the phrase “名下” or the combined phrase of “名下所有” as meaning only assets “under / in the name of” the person concerned.  The phrase “所有” in such context or usage could mean either “all (assets)” or “(assets) owned”.  In either case, if the phrase “名下” were to be understood to mean not merely assets held “under / in the name of” the person concerned but instead all assets belonging to the person concerned, the phrase “名下” would be superfluous.

8. Mr Ho further submitted that the questions are of great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.  The phrase “名下” or “名下所有” is commonly used in relation to assets of persons concerned in documents having or intended to have legal effect and is not being used in any special, unique or peculiar way in the Joint Will.  The proper interpretation of the phrase is therefore of great general or public importance.  He submitted that the interpretation given to the expression by us is plainly erroneous.  There has plainly been a miscarriage of justice in this case.  The questions ought to be submitted to the Court of Final Appeal for decision.

9. With respect, we disagree.

10. Construction of a will is necessarily a case-specific exercise.  Here, in ascertaining the Deceased’s testamentary intention as expressed in clause 2, we first applied the plain and dictionary meaning of the phrase “名下”.  We next considered the meaning of other provisions of the Joint Will.  We then rejected Mr Ho’s arguments as to why the plaintiffs’ construction should be accepted.  We finally came to the conclusion as we did.

11. Properly understood and considered in the context of how we approached and disposed of the construction issue, the construction that we have placed on clause 2 does not give rise to any general application of the dictionary meaning of the phrase “名下” to any will or document intended to have legal effect in any given circumstances, as the plaintiffs now contend.  Mr Ho’s submissions were basically a rehearsal of his arguments advanced before us at the appeal hearing.  They did not take the plaintiffs’ application any further.

12. For the above reasons, we do not think the intended appeal involves any question of general or public importance, or falls within the “otherwise” limb, which would entitle the plaintiffs to be granted leave to appeal to the Court of Final Appeal.

13. We dismiss the plaintiffs’ application and make any order nisi that the plaintiffs do pay the 1^st defendant costs, to be taxed if not agreed.