YEUNG YUEN KING v. KONG WAI HA AND OTHERS

CACV 79/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 79 OF 2014

(ON APPEAL FROM HCAP NO. 19 OF 2010

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REASONS FOR JUDGMENT

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Hon Lam VP (giving the Reasons for Judgment of the Court):

1.  On 15 November 2008, Kong Chi Sun [“the Deceased”] died leaving a widow, the Plaintiff (who was married to him in 1996) and a son (also born in 1996). From an earlier marriage, the Deceased had three daughters. In this probate action, the Plaintiff sought a grant in respect of the estate of the Deceased on the basis of certain writings of the Deceased in a management diary. The three daughters are the three defendants. The relevant writings [“the Writings”], made by the Deceased on 5 April 2003 are as follows:

「我將我名下的紅線公共小型巴士車牌GC1747取消另外購買過另外一部豐田燃氣公共小型巴士全新的由紅線轉入綠線95M，96M，95，96專線，車牌為KY7649号，荃灣大河道88号，灣景廣場33E買入時為港币幣貳佰叁拾伍萬，小巴現時價值镸四佰叁拾萬中港車KY2292車價連裝備伍拾萬和銀行，恆生，杜享戶口的港币全屬我love妻接收除了我父親江蔭桐，兒子江耀錦有權反對，其她他人一律不能反對」

2.  After trial, Deputy High Court Judge Bebe Chu concluded in her judgment of 17 March 2014 that the Writings embodied the testamentary intentions of the Deceased and as such constituted a valid will duly executed under s 5(2) of the Wills Ordinance. The learned judge therefore ordered that letters of administration of the Deceased’s estate to be granted to the Plaintiff and, in light of the potential interest of the son as a minor, a co-administrator to be appointed by the court.  On 27 March 2014, the judge ordered the Deceased’s sister to be appointed as a co-administrator.   

3.  Of the three daughters, only the 1^st Defendant was present at the trial though the 3^rd Defendant was also represented by the same counsel Mr Koo.  The 1^st and 3^rd Defendants appealed against the judgment and they are again represented by Mr Koo in this appeal.

4.  In light of the limited scope of the appeal, it suffices for us to give a brief summary of the factual background.  In her careful judgment, the judge gave a very detailed account of the Deceased’s two marriages.  The Deceased was married to his first wife in 1973 and they gave birth to the three daughters in 1973, 1975 and 1978 respectively.  His first wife left him soon after giving birth to the third daughter.  This happened before the Deceased first met the Plaintiff.  He and his first wife were formally divorced in 1996 before the Deceased married the Plaintiff.  The Deceased transferred a property in Tuen Mun to the first wife by way of settlement at the time of divorce.  The judge found that the Deceased had no further legal obligation to pay further substantial amounts to the first wife after the divorce though he did pay her some monies until 2001.

5.  The Deceased had been a public light bus [“PLB”] driver and he had a PLB licence.  In 1989, he became a truck driver and he rented his PLB to other drivers.  He first met the Plaintiff in mainland China in 1993 and they started a relationship in 1995. After their marriage, they had to divide their time between Hong Kong and Dapeng (in Shenzhen) as the Plaintiff had not yet obtained a resident status in Hong Kong.  The Plaintiff stopped working and became a full time housewife. When the son reached schooling age, she became permanently settled in Hong Kong, living in a public housing unit with the Deceased and the son.  In 2001, with financial assistance from the father of the Deceased, the couple purchased a property in Tsuen Wan and the family moved to live there together with the father.  The father also contributed financially to the purchase of a new PLB by the Deceased in 2003.

6.  According to the findings by the judge, the Deceased and the Plaintiff had a close and happy relationship during their 12-year marriage.  There was ample evidence from the father, the sister and brother of the Deceased and two of his friends to support such finding.  The Deceased had a stroke in June 2006 and his friend testified that the Plaintiff had taken good care of the Deceased.  The Deceased had told the friend in 2007 that he would leave everything to the Plaintiff after his death.  The judge rejected the evidence of the 1^st Defendant that the Deceased was unhappy with the Plaintiff.

7.  On the other hand, the relationship between the Deceased and the three daughters were not close.  The 2^nd daughter had disappeared for a long time. The 3^rd daughter had left home in 1996.  As regard the 1^st daughter, viz the 1^st Defendant, she was married in 1990 and she emigrated to Canada in 1993.  She returned from Canada in 2004.  The judge found that contact between the 1^st daughter and the Deceased was not that frequent and their relationship was not close.

8.  The judge referred to the relevant entries in the diary at paras 42 to 45 of the judgment:

“42. The Document is set out hereunder in its entirety and original wording:

「2003年4月4日

今天我因為做多一車單落，時間過了再不夠時間裝貨再上只好回家明天一起收埋大庆才上.晚上兩夫妻在閒談，她突然對我說出一此年初時到觀音山拜神時所求到的簽文內容告訴我，她說那此神棍解簽告知她今年有孝在身 這消息今我也吃了一驚也今我love妻 我也不如怎安 我love妻，所以說真不可以迷信，

2003年4月5日

今日是中國人的掃墓節日，大部份的中國人都會帶著一家人到先人的墓前奉上際品 花拜際一番，但我因為昨日的工作還未做完因此今天還要將工作完成，不能休息。在上大陸途中我突然想她我love妻昨晚的話，我有一種不祥的感覺，最好不要發生在我和我的家人身，想是這樣想，但結果是怎樣有誰會預知，一想到我自己有好多事還未完成像吉人說，望天打卦，但有些事我又不能預先做，真煩，但我都是不能不預先寫好在此，等我love妻有權接收我 的一齊其她他人冇權反對她因我love妻是很善良的人，不知人間黑暗，

2003年4月5日晚上8⁰⁰至12⁰⁰時我睡覺前寫下的2003年3月我將我名下的紅線公共小型巴士車牌GC1747取消另外購買過另外一部豐田燃氣公共小型巴士全新的由紅線轉入綠線95M，96M，95，96專線，車牌為KY7649号，荃灣大河道88号，灣景廣場33E買入時為港币幣貳佰叁拾伍萬，小巴現時價值镸四佰叁拾萬 中港車KY2292車價連裝備伍拾萬和銀行，恆生，杜享戶口的港币全屬我love妻接收除了我父親江蔭桐，兒子江耀錦有權反對，其她他人一律不能反對。

江志新            5-4-2003年」

43. As can be seen, there were 3 sections of handwritings on the Document.  The 1^st section appeared to be written on 4 April 2003 in Hong Kong (“1^st Section”). Briefly, the Deceased wrote in this section about a casual conversation with P that night, when she told him that when she went to pray to the gods at the Guanyin temple earlier that year she was told by a fortune teller who told her that she would have a funeral that year.  The Deceased wrote he was shocked and did not know how to pacify his love wife.

44. Then the second section was dated 5 April 2003 (“2^nd Section”).  Briefly, the Deceased wrote in this section that day was the Ching Ming Festival, but he still had to work as he was not able to finish his orders the day before, and on his way to the Mainland, he suddenly remembered what P told him the night before, and that he had a feeling of bad fortune.  He had written that he hoped there would not be anything happening to him and his family, but as who could tell, and that as there were some matters he still had not carried out, he had better write it down, so that P had the right to take over everything he had and that the others could not object.

45. Then in the following section (“3^rd Section”), the Deceased recorded that he was writing between 8 pm to 12 midnight on 5 April 2003 before he went to sleep.  In this 3^rd Section, he appeared to be listing out his assets.  He wrote that in March 2003 he had cancelled the “red route” licence for GC 1747 and bought another PLB KY 7649 and switched from “red” route to “green” route, the Skyline Plaza Property of which the purchase price was HK$2.35m, the PLB was worth $4.3m, the truck KY 2292 $500,000, and the Hong Kong dollar cash in the bank accounts at Hang Seng and Daoheng, all to be taken over by P, apart from  his father Kong and the Son having the right to object, no one else had such right.”

9.  We set out these paragraphs at length because Mr Koo’s arguments in this appeal focused on the construction of the Writings.  In particular, Mr Koo succinctly summarized his contentions as follows at para 7 of his skeleton submissions:

“7. The outcome of this appeal depends on the proper and true construction of the Document. And the issues are, upon a proper and true construction of the Document:-

(a) Whether “the rights of Kong and the Son to object” provided by the Document constitute or merely constitute a “condition” for P to be gifted all of the Deceased’s assets, or in effect a delegation by the Deceased to others his testamentary power, which delegation is not permitted in a will; and

(b) Whether or not there can be no reasonable doubt that the Document embodied the testamentary intention of the Deceased.”

10.  On the so-called rights of the father and the son to object [“the objection provision”], Mr Koo’s submission is that it infringed the rule that a testator cannot delegate to another the right to make or vary or revoke a will for him.  Counsel cited Re Smith (1869) LR 1 P&D 717 at p.719 and Re Morris, Lloyds Banks Ltd v Peake [1970] 1 All ER 1057 at 1066 in support of this proposition.

11.  As it is not really in dispute, we only need to refer to a short passage in the judgment of Lord Penzance in Re Smith (1869) LR 1 P&D 717 at p.719:

“It is true that a testator cannot confide to another the right to make a will for him, and it is equally true that he cannot leave to another a power to revoke his will after his death … but there is nothing in the statute to prevent a man from saying that the question whether a paper shall be operative or otherwise shall depend upon an event to happen after his death.”

12.  The judge was aware of this principle as she cited Re Smith (1869) LR 1 P&D 717 at para 48 of the judgment.  She came to the conclusion at para 110 of the judgment that the objection provision was only a condition imposed on the gift to the Plaintiff and it did not confer a power on the father or the son to revoke the will.

13.  In our judgment, there are several possibilities when a testator includes a proviso on what would otherwise be an absolute gift:

(a) The proviso may purport to give the power to a third party to override the primary gift and to completely re-exercise the testamentary power of disposition or to revoke a will;

(b) The proviso may be a mere condition which takes effect as either a condition precedent or a condition subsequent which the donee of the gift will have to take subject to;

(c) The proviso may create a power on the part of the donee of the gift to make an appointment in favour of some third parties; and

(d) The proviso may be too uncertain to have any legal effect, in which case the primary gift will take effect free from such proviso.

14.  Whether a particular provision in a will falls within one of the above possibilities is a question of construction.  It is only when the provision falls within the first scenario that the whole disposition would be invalid by reason of the rule discussed in Re Smith, supra.  In the three other scenarios, the disposition would be valid though the ultimate distribution of assets will depend on the terms of the condition or power and their legal effect.

15.  In the present context, it has to be borne in mind that neither the 1^st Defendant nor the 3^rd Defendant is one of persons on whom the Deceased had conferred a right to object.  Thus unless Mr Koo successfully persuades us that the proper construction of the objection provision falls within scenario (a) (in which event the gift to the Plaintiff would be invalid and the estate would have to be distributed on the basis of intestacy), she does not have any interest in the estate in any one of the other three scenarios.  It is purely a matter between the Plaintiff and the son and the father as to which is the correct analysis out of scenarios (b), (c) and (d), see Wong Oi King v Lai Lok Yee Catherine [2003] 4 HKC 438.

16.  In our judgment, on the proper construction of the Writings in the context of the document as a whole, it is quite plain that the Deceased intended to make a primary bequest in favour of the Plaintiff upon his death.  Further, it is clear from the last sentence in the Writings that the Deceased wished to pre-empt objections from other persons (including the three daughters).   

17.  For the following reasons, it is also plain to us that the objection provision cannot be construed as a delegation of testamentary power (whether by way of re-exercise of the power of testamentary disposition or revocation of the will) to the father or the son:

(a) The objection provision only refers to the raising of objection without going on to give the father or the son the power to re-distribute the assets in whatever manner the father or the son deems fit or to revoke the bequest.  Conceptually, these two powers are different;

(b) The objection provision permits both the son and the father to raise objection and each of them may have different views.  It is unworkable if testamentary power or power of revocation is delegated to two different persons with different interests without any mechanism for reconciling their views;

(c) The objection provision does not provide for the consequences when an objection is raised by either one of those two persons: in particular, it does not stipulate that once an objection is raised, the primary bequest shall not take effect at all;

(d) Bearing in mind the factual matrix at the time when the Writings were made, the Deceased recognized that the father (by virtue of his financial contributions to the new PLB and the Tsuen Wan property) might have a legitimate claim to part of the assets. The son might also have a claim to the estate in respect of his maintenance. The rights of objection were grafted onto the primary bequest to oblige the Plaintiff to take those claims into account.  In our view, that was probably how the Deceased, as a layman, tried to balance the interest between the Plaintiff, the father and the son; and

(e) There was simply no reason why the Deceased would wish to delegate the testamentary power or power of revocation to the father or the son in light of what he had written down as the purpose of the Writings in what the judge described as the 2^nd section at para 44 of the judgment. 

18.  Thus, we agree with the conclusion of the judge that the objection provision did not fall foul of the rule in Re Smith, supra.

19.  As mentioned above, it is not necessary for the purpose of this appeal to decide whether the objection provision is a condition, a power or ineffective.  Though there are certainly arguments in favour of the view that it is too uncertain to be effective in law, we are not minded to disturb the judge’s conclusion that it can operate as a condition when we have not heard submissions from the father or the son. There is nothing before us to suggest that the father or the son had raised any objection.

20.  Once it is concluded (as we do) that the objection provision does not give rise to any right on the part of the father or the son to rewrite the testamentary provision or to revoke the will, Mr Koo’s submission that it had the effect of postponing the disposition to sometime in the future due to the minority of the son does not have the necessary foundation. 

21.  Mr Koo also tried to contend that there is a reasonable doubt on whether the Writings embodied the testamentary intention of the Deceased.  The testamentary nature of the Writings is obvious when one reads them in the context of everything written on those two pages of the diary as summarized by the judge at paras 43 to 45 of the judgment.  This is also borne out by the Plaintiff’s evidence on what the Deceased told her when he showed her the diary shortly after he had made those entries.  The judge was plainly right in coming to the conclusion that the Writings were testamentary and the requirements of s 5(2) of the Wills Ordinance were satisfied.

22.  Ultimately, Mr Koo came back to the construction and effect of the objection provision, which for reasons canvassed above, cannot avail the defendants.

23.  For these reasons, we dismissed the appeal with costs.