WANG DIN SHIN v. NINA KUNG

HCAP000008A/1999

HCAP8/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO.8 OF 1999

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J U D G M E N T

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Contents

Volume 1

Section I - The Wangs Family

List of Abbreviations

Chapter 1 - Prologue

Matters Not In Dispute

The Plaintiff's Case

The Defendant's Case

The Issues

Chapter 2 - The Wangs Family From 1911 To 1960

The Early Years

Impact of the Korean War

Teddy and Nina

The Plastic Business

The 1960 Will 18

Chapter 3 - The Period Between 1960 To 1970

CIL and Christoban

The Credibility of Yih on Happenings During This Period

The U.S.A. Connection 32

The Taiwan Connection

The Defendant's Adulterous Affair in 1968

The Evidence of Mr Donald Cheung

The Safe Deposit Box and the Discovery of the 1968 Will

The Retrieval of the 1968 Will

Yih Lee Kong Leaving Chinachem

Nina's Accusation Against Yih

Nina's Accusations Against Her Father-In-Law

The Credibility of Wang Sr

Chapter 4 - The Post-1970 Period

Provisions for Nina by Teddy

The Aborted Trust Arrangement Right Up to Shortly Before Teddy's Kidnap

The Credibility of Teresa

Chapter 5 - Suspicious Circumstances

Suspicious Circumstances I - No Reason to Change Intention

Suspicious Circumstances II - Why a Home-made Will?

Suspicious Circumstances III - The Opportunity to Draw Up the Will and By Whom and Where?

Suspicious Circumstances IV - Other Instances Out of Character of Wang

Suspicious Circumstances V - Convoluted Expression and Unreasonable and Untrue Contents

Suspicious Circumstances VI - Lack of Revocation Clause

Suspicious Circumstances VII - Tse as a Witness and His Statement

Suspicious Circumstances VIII - The Defendant's Prior Knowledge of the Contents of the 1990 Documents When She was not Supposed to Know the Same

Suspicious Circumstances IX - The Defendant's Behaviour in Propounding the 1990 Will

Final Conclusion on All the Suspicious Circumstances

Volume 2

Section II - Handwriting

List of Abbreviations

Section IIA - General Consideration & The Questioned Signatures of Wang Teh Huei (王德輝)

Chapter 6 - Introduction and Legal Consideration

Introduction

Is Forgery the Only Issue?

Burden of Proof

Standard of Proof

Admissibility of Opinion Evidence on Handwriting and Signature Identification

Chapter 7 - Principles and Basis of Examining and Evaluating Handwriting and Signature Evidence

The Contentions and Agreement of the Defendant's Experts

Chapter 8 - Wang Teh Huei's Genuine or Sample Signatures

Two other "Written Names" of "Wang Teh Huei" (王德輝)

What Sample Signatures would the Defendant have?

Chapter 9 - The Questioned Signatures of Wang Teh Huei (王德輝) (I) - The Macro View

The Plaintiff's Allegation of Simulated Forgery

The Opinion of the Three Experts Called by the Plaintiff

The Defendant's Experts

The Macro Analysis

The Explanation of the Defence by Her Expert Prof. Jia

Chapter 10 - The Questioned Signatures of Wang Teh Huei (王德輝) (II) - The Micro Analysis

Similarities

(1) The character " Wang" "王"

(2) The character "Teh" "德"

(2) The character "Huei" "輝"

Significant Differences

Further and Other Significant Differences

Tremors

Conclusion

Chapter 11 - The Questioned Signatures of Wang Teh Huei (王德輝) (III) - The Presence of Tremors and the Medical Evidence thereof and the Overall Conclusion on Wang's Signatures

Tremors

Medical Evidence

Overall Conclusion on the Four Questioned Signatures of Wang

Volume 3

Section IIB - The Questioned Signatures of Tse Ping Yim (謝炳炎) & Conclusion on Handwriting

Chapter 12 - The Signatures of Tse Ping Yim (謝炳炎) (I) - General Consideration

The Plaintiff's Allegation

The Time Factor

Tse's Background

The Changes in Tse's Signatures

Chapter 13 - The Signatures of Tse Ping Yim (謝炳炎) (II) - The Samples

The Voucher Samples G1-100 and 101

The Signature on the Home Visit Permit

Chapter 14 - The Signatures of Tse Ping Yim (謝炳炎) (III) - Summary of the Opinion of the Experts

Mr Gus Lesnevich ("GL")

Mr Patrick Cheng Yau Sang ("Cheng")

Mr David Tsui Chee Keung ("Tsui")

Prof. Jia, Xu and Zhan

Preliminary Analysis

Chapter 15 - The Signatures of Tse Ping Yim (謝炳炎) (IV) - Micro Analysis

Tracing

Significant Differences

The Tremors

Other Features Revealed During Prof. Jia's Evidence

Chapter 16 - The Conclusion on the Four Questioned Signatures of Tse Ping Yim (謝炳炎) and The Overall Conclusion on the Two Sets of Signatures of Wang and Tse

Conclusion on Tse's Questioned Signatures

Overall Conclusion on the Four Sets of Questioned Signatures of Wang and Tse

Chapter 17- The Authorship and General Features of the Four Questioned Documents

Undisputed Opinion on Documents A, B and C

Document D

A Document "E"?

Other Indentation or the Lack of It 379 The Authorship of Document A 380 The Samples

The Identification of the Writing in Document A

Sections III & IV- Ink-dating & Final Conclusion

List of Abbreviations

Section III - Ink-dating

Chapter 18 - Ink-dating - The Analysis And Method

The Analysis

The Method

The Results

The Defence

Chapter 19 - The True Proficiency or Blind Test

Chapter 20 - The Law

Chapter 21 - The Underlying Scientific Theory Of The Dye-Ratio Method

The First Hypothesis (Extractability)

The Second Hypothesis (Decomposition)

Conclusion

Chapter 22 - Scientific Validity

Validation Studies

Peer-review

Chapter 23 - Acceptance By The Scientific Community And The Court

Acceptance of the Techniques by Courts

Conclusion

Chapter 24 - Arbitrary Separation of Fused/Overlapped Chromatographic Peaks

Higher Resolution should be used

Conclusion

Chapter 25 - Illogical Results Of Dye-Ratio Method

Criticism 1

Criticism 2

Criticism 3

EJS's Defences

Conclusion

Chapter 26 - Mass Independence

What EJS could have done

EJS's Claim

Conclusion

Chapter 27 - One Standard Deviation

The Student's t-test 2 STDs (95%) or 3 STDs (99.7%) should be used

The Student's T-test

Conclusion

Chapter 28 - Procedure

VAM Procedures

Protocol

EJS's Laboratory Technique as shown on the Video

Ink Thickness

Conclusion

Chapter 29 - EJS's Qualification And Integrity

Qualifications

The Defence Experts

EJS's Integrity

Chapter 30 - Conclusion On Ink-dating

Section IV - Final Conclusion

Chapter 31 - Final Conclusion

Background

Suspicious Circumstances

Handwriting

Ink-dating

The 1990 Documents

Orders

Chapter 32 - Epilogue

Chapter 33 - Costs

The Application

Costs on Indemnity Basis

Ink-dating

The Direction on the Cost on LiveNote and the Written Submissions

The Plaintiff's Costs to be Paid Out from the Estate of the Deceased

Appendices

Appendix 1 - Table on the Progress of Trial

Appendix 2 - The Four Questioned Documents and their Translations

Appendix 3 - Master Chart of Wang Teh Huei's signatures (E6-654(37B))

Appendix 4 - Master Charts of Tse Ping Yim's signatures (E6-654(18-20))

Appendix 5 - Judgment on the Application by the Plaintiff for Leave to Swear Death dated 22 September 1999 in HCEA79/1999

Appendix 6 - Judgment on the Application by the Defendant for Stay of Proceedings dated 20 August 2001 in HCAP8/1999 Volume 4

SECTION I       THE WANGS FAMILY

"吃素菜，彼此相愛，

強如吃肥牛，彼此相恨。"

Section I Wangs Family

List of Abbreviations

Chapter 1 - Prologue

1.1 Mr Teddy Wang Teh Huei ("Wang") (王德輝), the deceased, was kidnapped on 10 April 1990. He did not appear again. On 22 September 1999, this court granted leave to his father, Mr Wang Din Shin ("Wang Sr"), the plaintiff herein, for him to swear to the death of the deceased to have occurred on or since 10 April 1990.¹

1.2 The deceased originally made a will in 1960 (prepared by Messrs P.C. Woo and Co.) and bequeathed all his estate to both the plaintiff and his wife Mrs Nina Wang also known as Madam Nina Kung Ru Xin (王龔如心), the defendant herein. By this 1960 Will, it was further provided that : "if there are children by my said wife [i.e. Mrs Wang] living at the date of my death my said wife shall hold half share or part of the share so bequeathed to her UPON TRUST for my said children as tenants in common in equal shares".² The intention of the deceased there and then was clearly that the children's share should come out from the wife's half share rather than the father's half share.

1.3 Eight years later the deceased however made another will dated 15 March 1968, revoking his earlier will and bequeathing all his estate to the plaintiff only ("the 1968 Will"). The 1968 Will was prepared by Mr Donald Cheung ("Mr Cheung"), solicitor who also acted as one of the two attesting witnesses. The other attesting witness was Mr F. Zimmern, the other partner of his solicitors' firm. Mr Cheung gave evidence by video link from Vancouver in this trial. He described how he was instructed by the deceased and how the 1968 Will was prepared and executed. His evidence was not challenged on cross-examination. Consequently, the plaintiff has proven the due execution of this 1968 Will.

1.4 The plaintiff instituted the present proceedings on 24 September 1999 seeking a grant of probate in solemn form in respect of the 1968 Will.

1.5 The defendant filed a defence and counterclaim. The defendant alleges that there is in existence a later will in Chinese dated 12 March 1990. There are four documents³ ("the 1990 Documents/ 1990 Will"). The defendant is the sole beneficiary under this 1990 Will. She therefore counterclaims for a declaration in solemn form in favour of the 1990 Will and against the validity of 1968 Will.

MATTERS NOT IN DISPUTE

1.6 It is common ground between the parties' handwriting experts that the body of the questioned 1990 Documents A, B and C are not written by the deceased. It is also common ground that the author of the body of Document A is not the same as the author of Documents B and C, whereas the author of Documents B and C is probably the same person.

THE PLAINTIFF'S CASE

1.7 The plaintiff's case is that the 1968 Will is the last valid will of the deceased and that the 1990 Will was not signed by the deceased. In particular, the plaintiff alleged that neither the deceased nor the purported witness Mr Tse Ping Yim ("Mr Tse") signed the 1990 Will (Mr Tse was a domestic servant of the deceased and the defendant). The plaintiff alleged that their two signatures were forged.

1.8 The plaintiff's two handwriting experts (Mr Gus Lesnevich and Mr David Tsui) both opined that the signatures of both the deceased and the purported witness Mr Tse on the 1990 Will were forged. The plaintiff further called the Government Chemist Mr Patrick Cheng Yau Sang who is a handwriting expert in the document section of the Government Laboratory. He opined that the purported signatures of Mr Tse were forged and that the purported signatures of the deceased on the 1990 Will "might not have been written by him".

1.9 The plaintiff's ink-dating expert Mr Erich J. Speckin opined that the 1990 Documents A and C were not written on or near the purported date in 1990 but at a later time "at least in 1996 or later".

THE DEFENDANT'S CASE

1.10 The defendant's three handwriting experts from the Mainland, who compiled one report, opined that both the signatures of the deceased and the witness Mr Tse on the 1990 documents were all genuine.

1.11 The defendant did not ask her expert to perform any ink-dating examination on the 1990 documents. However her two experts both asserted that the ink-dating methods performed by the plaintiff's expert were not reliable. One of the defendant's experts also expressed the view that the samples extracted from the questioned documents were contaminated during the process of examination.

1.12 In respect of Mr Tse's signatures, the defendant produced a statutory declaration of Mr Tse dated 6 September 1999 and his affirmation dated 9 September 1999 to the effect that he was asked by the deceased to sign his name on certain documents in the evening on 12 March 1990 inside the deceased's office. Since then Mr Tse passed away on 6 December 1999.

THE ISSUES

1.13 The first issue for the plaintiff as regards the 1968 Will is whether the 1968 Will was validly executed. At the trial this was not disputed by the defendant as appeared in no cross-examination of Mr Donald Cheung on this issue. Thus the remaining issue is whether this 1968 Will has been validly revoked by the 1990 Will.

1.14 As regards the 1990 Will, the main issues are :

1.15 In deciding the aforesaid issues, the court would have to decide the evidence given by all handwriting experts and the ink-dating experts. Before that, I shall consider the background of the plaintiff's business and the business of the deceased leading up to his disappearance in April 1990 in the next chapter.

Footnote:

(i)  See Appendix 1 for detail dates of the hearing

Appendix 5 for the Judgment thereof
2  p.1, F1
3  Appendix 2

Chapter 2 - The Wangs Family From 1911 To 1960

THE EARLY YEARS

2.1 Wang Sr was born in Wenzhou (溫洲) in Zhejiang Province (浙江省) in the Mainland on 15 October 1911 (i.e. just five days after the establishment of the Nationalist China). His father is Wang Chun Ah (王仲雅), who was running a company called Yeh Wah Feng Dyeing Company (益華豐染料公司) in Wenzhou. At that time, the company was a dealer of the British ICI in respect of dyestuff. Wang Sr started working in his father's company at the age of about 17 in 1928. In 1930, he took over his father's company after his death.

2.2 He married his wife Ms Ruen Yu Chin (任玉珍) in 1932 when he was 21. His eldest son Teddy Wang Teh Huei¹ was born in 1934. Three sons and two daughters were born by Madam Ruen, namely :

2.3 When Wang Sr was 26 (1937), his wife and Teddy followed him to live in Shanghai where he was working. Later they were unable to return to Wenzhou due to chaos caused by the Japanese war and were held up in Shanghai. In 1941 he started a new company : Wing Wah Industrial Dyestuff Company (榮華公司). Further, in 1946 he set up another trading company called China United Chemical Company ("CUC") which engaged in import business. The Chinese name for CUC was Wah Mou Company (華懋公司) and this name Wah Mou (華懋) was first used by Wang Sr as evidenced by a photograph produced by him showing a social gathering between CUC and an American Cyanamid representative at D2-322. This photograph was taken in a restaurant also called Shanghai Wah Mou Restaurant (上海華懋飯店) in 1946. This probably is the origin of the Chinese name Wah Mou (華懋) which has been used up to today.

2.4 Between 1937 and 1940, he often travelled to Shanghai to purchase goods for reselling in Wenzhou. It was about this period of time Wang Sr came to know Nina's father, who was a staff member of ICI, a company doing business with his company. Nina was born in 1936. She was about three at the time when Wang Sr met her during her father's visit to his home. Thereafter, Nina's mother often brought her to the Wangs house to play. It was through these visits that Teddy and Nina came to know each other in their early childhood.

2.5 After the defeat of the Japanese in World War II, in or about November 1945, Wang Sr came to Hong Kong to do business. Later in 1946, he started a branch of Wing Wah Industrial Dyestuff Company in Hong Kong to carry on the business of importing industrial raw materials and western medicine. In 1947, he also set up a branch of CUC in Hong Kong.

2.6 It was at this time in 1947 that Teddy came from Shanghai to Hong Kong to further his study. He was about 14 years old. In September 1948, Teddy was enrolled as a boarding student at St. Stephen's College in Stanley. In the same year, Wang Sr arranged for his wife and his other children, Teresa, Tak Miu, and Tak Tzai to come to Hong Kong. His youngest daughter, Tak Hwa, stayed behind in China for a while and she was later also brought to Hong Kong by her mother.

IMPACT OF THE KOREAN WAR

2.7 Up to the time of the Korean War, Wang Sr's business in Hong Kong was good. Initially, he had rented two flats in Happy Valley to be used as quarters for his employees. He and his family were living in North Point where most Shanghainese were staying in Hong Kong at that time. When his nephew, "Yih" Lee Kwong (葉理光) came to Hong Kong in 1951, he was allowed by Wang Sr to stay in one of those flats in Happy Valley. Yih's mother is the elder sister of Wang Sr. Yih started working in Wang Sr's company in Hong Kong shortly afterwards.

2.8 However the business of CUC in Hong Kong was seriously affected by the Korean War in 1950 because of the US embargo on goods importing into Mainland China. A princely sum of about US$40,000 belonging to CUC was frozen by the US government and was not released to him until about 1954 or 1955.

2.9 Consequently, Wang Sr had to reduce his living and business expenditure. Some of the staff were dismissed and repatriated back to the Mainland. One of the flats in Happy Valley was surrendered back to the landlord. In or about 1952 his family moved to stay in the remaining flat in Happy Valley where Yih had earlier been permitted to stay with other staff. They had also ceased using chauffeur. From then on, Yih stayed with the family until Teddy's marriage in 1955. In fact, he shared a room with Teddy. Yih's relationship with Teddy had always been good as Yih was the elder cousin and had worked in the Wang's company before Teddy. Thus, Teddy used to consult Yih before Yih left the Wangs company in 1970.

2.10 However, it could not be said that Wang Sr was in financial difficulties, though his business was not as good as before. His family still engaged the service of two domestic servants. Teddy was still studying in St. Stephen's College as a boarder. His school fees and boarding fees were duly paid. There was certainly no evidence to suggest that he could not afford the education of his children whether in Hong Kong or elsewhere. In fact, in reply to an inquiry in July 1952 from Drew University in the States as to, inter alia, whether Teddy was financially able to undertake his study in the U.S., the principal of St. Stephen's College said :

2.11 Further, Wang Sr was keeping a close interest in Teddy's study and activities in school. He certainly supported Teddy's wish to study in the US.³

2.12 In order to combat the US embargo, China United Chemical Corporation Limited (香港華懋公司) ("CUCCL") was incorporated as a limited company in Hong Kong in 1952. The idea was to sever this company from the Wing Wah Company in the Mainland. It can be seen from the old letterhead at the aforesaid F6-1448 letter to St. Stephen's College that Wang Sr's company was originally called China United Chemical Corporation Hong Kong Branch (華懋企業公司，香港分公司) at 506 Chung Tin Building, No.5 Des Voeux Road Central, Hong Kong. It was then changed to China United Chemical Corporation with the Chinese name (香港華懋公司) as evidenced in the new letterhead used at F6-1447 without any description that it was a Hong Kong branch only (presumably of a Headquarter and here it was in Shanghai) but with exactly the same address as aforesaid. Shortly afterwards, this Hong Kong company was incorporated as a limited company.

2.13 CUCCL had a paid up capital of $600,000. There was no doubt that Teddy was the favourite child of Wang Sr, being the eldest son in a Chinese family. Even during the time when Teddy was still at school in March 1952, he was allotted with 1,000 out of 6,000 issued shares of CUCCL when none of the other children was given any share.⁴ Yih was employed as the accountant of this new company which took over the assets and debts of the old business in Hong Kong. These debts were owed to banks but were secured by the goods of the company.⁵

2.14 Thus, although the business was not as good as before, the financial situation of Wang Sr could not be said to be poor at all. Although Yih was only the company accountant and therefore would not have known about the personal debts of Wang Sr, there was no reason for Wang Sr not to have recourse to the resources from the company if he was heavily in debts and in turn Yih should have known about it.⁶ However, according to the evidence of Yih, he was not aware of any such personal debt.

2.15 Teddy was expelled from St. Stephen's College in September 1952 because the school discovered that he had forged his school report when he applied to Drew University for admission. What happened was Teddy put in the marks for an examination in school, which he had not yet taken and sent the same to Drew University in his application.

2.16 The termination of his schooling was a well-kept secret even among family members. Apparently it was only known to his father and Teddy. Even Yih, and apparently Nina did not know the true reason why Teddy ceased schooling in 1952 until this trial. Wang Sr has kept the family shame for all these years.⁷ Even in an interview with a reporter from a magazine in 1999,⁸ Wang Sr had not revealed the true reason therefor, leaving the reporter with the impression that it was due to poor business of the company that Teddy was forced to cease his study. That might even have misled Nina.

2.17 The truth was only revealed during the course of Wang Sr's evidence when he sought to answer the allegation in Nina's witness statement. She said that Teddy told her that he was forced to terminate his study because of the business failure of his father. Therefore she said in her statement that Teddy in fact disliked or hated his father for that and this was put to Wang Sr^.9 In fact, based on the magazine, Counsel for the defence mounted a very strong attack on Wang Sr in respect of the reason for Teddy's termination of his schooling. It might well be true that Teddy had told Nina that lie and Nina believed that for all these years. However there was no evidence from Nina at all that Teddy in fact told her that he disliked or hated his father. In any event that was not the evidence before me from the plaintiff's witnesses at all. The truth was actually verified from the file produced by the Principal of St. Stephen's College in respect of Teddy's schooling.

2.18 After Teddy was expelled from school in September 1952, he then started working in his father's companies. By then his elder cousin Yih had already been working in the companies for quite a few years. The two of them became very close. They worked in the same office in the daytime and shared the same room at home after work. Wang Sr himself thought very highly of his nephew, Yih. He considered that Yih was a good businessman and had a very intelligent brain. There were many things that Wang Sr himself would have to consult him and certainly Teddy "always consulted" him and "had to ask him everything".¹⁰ According to Yih, Teddy asked him very detailed things about his past including how he made money in Shanghai and other things. However, Teddy himself was not a person who would like to tell people much about himself. He certainly had not told Yih the reason why he ceased his schooling.

TEDDY AND NINA

2.19 In about the middle of 1955, Nina came to Hong Kong alone from Shanghai and lived with the Wangs family. She and Teddy got married on 29 September 1955,¹¹ i.e. shortly after her arrival in Hong Kong. Before her marriage while she was in Hong Kong, she shared a room with Teresa who then took care of her and gave her assistance in going around because Nina was then not familiar with Hong Kong.

2.20 The date of the marriage was also the 19th birthday of Nina. Teresa said it was Nina who chose that date for her marriage and the Wangs family was prepared to accommodate her. The marriage took place in the Marriage Registry located at what was the Supreme Court Building in Statute Square at that time and the Legco Building today.

2.21 Initially when Wang Sr was being shown the marriage certificate of them, he denied that he had attended their ceremony in the morning because he did not see his signature on the certificate as a witness.¹² However, eventually when pictures taken of him before the then Supreme Court Building was shown to him, he agreed that he must have attended the ceremony with his wife. This lapse of memory is understandable as Nina herself also made a mistake in thinking that her marriage took place in the City Hall. (The present City Hall where the Marriage Registry is, was not built there and then until 1961.)

2.22 After the marriage, the relationship between Nina and her father-in-law, Wang Sr, appeared to be good. When Wang Sr went to Taiwan for business, Nina sent photo of herself and Teddy to him.¹³ Some of the photos were taken by Yih at that time. The whole Wangs family stayed together under the same roof until some time after 1960 when Teddy and Nina moved out of the flat.

2.23 Likewise the relationship between Yih and the Wangs family including Nina was also very good. Apart from working together with Teddy in the same company, Yih went out with the couple and took pictures for them, some of which were produced in court.

THE PLASTIC BUSINESS

2.24 Some time around 1958, Yih suggested to Wang Sr and Teddy to get into plastic business.¹⁴ In Hong Kong in the late-50s and early-60s, the plastic business was very prosperous after hard plastic was invented in the States and became material for making a number of household wares. The most prosperous business was the suppliers of plastic material which was on the rise nearly everyday in those days. In order to be an agent for the American suppliers, one would have to have considerable capital together with connections with them. It would be ideal for Wang Sr's company which dealt with chemicals imported from America with capital and connections.

2.25 Yih was invited by Wang Sr to participate in this business. As a result, an agreement was entered into which was reduced into writing in a document which became DPH668 in this trial. Yih's participation and a receipt of his payments to the Wangs and their company was drawn up (DPH 669). This document recorded his contribution and withdrawal from the plastic business by both Yih himself and Teddy.

2.26 In the financial year of 1959-1960, Wang Sr's business was doing "rather good" with a profit of $706,257.82.¹⁵ In the following year, the profit was even better and it was about $1,000,000. In fact, the account which Yih subsequently drew up in 1960 relating to the plastic business showed that in fact handsome profit was made from the plastic business alone.¹⁶

2.27 In or about 1960, Teddy suggested to his father to go into the property development business. By then, Teddy was about 27 years of age only. With the capital from CUCCL, Wang Sr set up a new company called Chinachem Investment Company Limited ("CIL") (華懋置業有限公司). That was in 1960 and Wang Sr let Teddy engage in property development himself. This was the beginning of the Chinachem group. It also explains why the Chinachem group contained the word "chem" in its name when its property business has little to do with chemicals thereafter.

2.28 In the meantime, in the second half of the 1950s, Wang Sr often went to Taiwan for business and Madam Ruen also went to join him on one occasion. However, she had to come back early because she received a letter from Teresa complaining to her that while she was away with Nina taking care and control of the household, Nina had ill-treated the younger brothers and sisters of Teddy. That apparently was the beginning of troubles within the Wangs family, some of which Nina was not responsible at all as will be apparent later herein.

2.29 However, the business lines of the family became better and better. The branching out into plastic business in 1958 and the participation of the Wangs family in the real property market in 1960 were all at the right times in Hong Kong. Thus Yih must be right in saying, as the accountant of the company, that since their establishment of the Hong Kong company, the business had always been good. At first, the company was basically run by Wang Sr and Yih. After Teddy joined the company in 1952, he started to learn from both of them, particularly from his senior cousin Yih. Gradually, Teddy assumed more decision-making power over the years with the affectionate approval and consent from his father. This would be more so in the late 1950s when Wang Sr was often away to Taiwan.

2.30 Wang Sr testified that his relationship with Teddy was "very good", like "one heart, one soul", and that Teddy was "a very filial son". Even after Wang Sr had retired from the business, Teddy still consulted him on important matters. That probably is true and I have no reason to doubt his evidence.

2.31 On the other hand, Yih said that before 1960, Nina had hardly any role to play in the business of the Wangs family. No doubt during that period, she had visited the office and gave general assistance to Teddy. She did simple work such as typing out L/C applications. She was never given any specific job or task. Counsel for the defence mounted a very lengthy cross-examination on Yih about Nina's ability to do various things, such as taking shorthand and typing and her ability in art. However, there was nothing specifically put or suggested to Yih as to what exactly was her role in the business there and then. The evidence of Yih is that until the time he left Chinachem in 1970, Nina never received any salary or payment from Chinachem while even Teddy was paid a salary. This was never challenged by the defence. I can however accept that Nina's participation in the company had gradually increased throughout these years up to 1990, and her attendance to various classes from secretarial training to dancing gradually decreased and some of them ceased altogether. Obviously, after Teddy's disappearance in 1990, she became eventually the only one in charge in the whole Chinachem group. In short, Yih and the defence were talking about two different periods of time.

THE 1960 WILL

2.32 Teddy made a will dated 23 April 1960 ("the 1960 Will") and appointed both Wang Sr and Nina as joint executors and trustees. They were also beneficiaries in equal shares to his estate.¹⁷ This 1960 Will was formally prepared and executed in a solicitors' firm, Messrs P.C. Woo & Co. After making the Will, Teddy gave it to Wang Sr for safe-keeping. He told his father the contents of the Will but in the meantime asked him not to tell Nina because he did not want anyone to know about it.¹⁸ This Will was thus kept by his father and produced to court in this action. The fact that Teddy told his father not to reveal the same to Nina is tell-tale of his secretive character in keeping everything to himself to the exclusion of all the others including even his own wife.

2.33 Further, the fact that the Will did not contain any usual revocation clause indicated that Teddy probably had told his solicitor that this was his first will. The Will was made within a matter of only five years from the date of marriage. By then Teddy and Nina probably did not know that they could not have any children. Thus Teddy's then wishes were to give half of his estate to his father and half of his estate to his wife but should they have children, then Nina would have to hold half of her own shares in trust for her children in equal shares.

2.34 During the period in 1950s, it is clear from the evidence of Teresa that the Wangs family was very much united. They lived under the same roof in Happy Valley. Teddy took an active interest in the affairs of his younger siblings. Soon after he worked in the family business, Teddy bought a car.¹⁹ He took his siblings out for movies and also bought them food. He played football with his younger brothers.

2.35 During school holidays, Teresa and her younger brothers and sister also went to the office to help in some small ways, e.g. in the case of Teresa doing some typing.²⁰ Teresa also gave evidence that after Nina's marriage, for a while she had fallen ill and Teresa was told that she had contracted tuberculosis. In spite of that and the warning of her mother, Teresa took care of Nina.

2.36 During the free time, Teresa, Nina and other siblings including Teddy practised calligraphy together using "calligraphy samples" (字帖).²¹ She also gave evidence that Nina had tried to imitate the writing of Teddy. The defence in the lengthy cross-examination of Teresa for 12 1/2 days challenged only the following pieces of evidence as being untrue at all, namely :

There was certainly no suggestion that Teddy did not practise calligraphy with his siblings. I accept that Teddy and his siblings were very close in their relationship, particularly in their early childhood as he spent a lot of time with them. Further, Teresa was the closest sibling to Teddy, being closer in age to him. Teddy used to instruct Teresa to do certain odd jobs, like purchasing tickets for movies for everybody. In those days this was a delightful task which every child would like to do.

2.37 However, on the other hand, the relationship between Nina and Teddy's siblings was not that close. In fact, it had deteriorated later. Although Nina would join the activities of Teddy and his siblings, such as going to movies, yet according to Teresa she often bought her own food and did not share it with them.²³ It appeared that for a while after their marriage, Teddy's mother was still in charge of the household. When she left for Taiwan to join her husband, she handed it to Nina. Usually such an important position would be undertaken by the most senior woman in the family and she happened to be the daughter-in-law of the family, Nina.

2.38 However, Nina's treatment of the siblings was not as good as their mother. This resulted in a complaint letter written by Teresa to her mother who then felt concern enough to return to Hong Kong leaving her husband behind in Taiwan. As I have said, this is the beginning of internal troubles for the Wangs family which ended this period of early years up to 1960, although on the business side, the Wangs family was prospering.

2.39 In general, I think it is fair to say that the evidence of Teresa was that Nina was somewhat jealous of the good and close relationship between Teddy and his siblings and also his senior cousin Yih.²⁴ However, Teddy did not take much heed of Nina's negative attitude and apparently he had done nothing to alleviate the situation. Building human relationship is of course a much more difficult matter to tackle than building up a business. Teddy did not realize that a lot of efforts have to be made in building up a marital relationship.²⁵ On the contrary, from the evidence before me, it is quite clear that Teddy behaved in a chauvinistic way. He probably thought this new marital relationship should be just like his siblings relationship. If his wife were to behave like his other younger siblings (respecting him and obeying his command), all's well would end well. In the end I must say that Teddy was responsible for a number of things that had happened in the next period. In other words, if he had taken heed of those indications of troubles, certain happenings in "Act II" of this sad story might not have happened. This is the most critical period in the relationship between Teddy and Nina in the next decade leading up to 1970 which I shall consider in the next chapter.

Footnote:

1The pīnyīn spelling of his name should be Wáng Dé Huī but his name in English was actually spelt in Shanghainese.
2pp.1454-1455, F6. All references here are Trial Bundles Numbers for easy reference of the parties only and not for
    general readers, e.g.     here : the 6th Box File in Bundle F. The Trial Bundles are numbered as follows :
    A: Pleadings
    B: Affirmations
    C: Exhibits produced to the affirmations in Bundle B
    D: Witnesses Statements and Documents referred to by them
    E: Experts Reports
    F: Plaintiff's Documents
    G: Defendant's Documents
    H: Computer Images Capture
    General readers can therefore understand from the Bundle Number as to whose documents they are, e.g. here Bundle F6
    is of course documents of the plaintiff herein.
3 See the file produced by St. Stephen's College at pp.1437-1463, F6, especially p.1447 and p.1448
4 p.344, F1
5 T112:30:8. In this Judgment, T112:30:8 means Transcript of the Hearing Day 112, page 30, line 8
6 T112:30:19-21
7 T14:52:19
8 p.1627, G5
9 T14:52 and 57
10 T4:54:7-14
11 p.431, F1
12 T5:8:1-5
13 T5:9:5
14 T4:57:21
15 T4:60:23
16 pp.428-429, F1
17 p.1,F1
18 T5:26
19 T135:44:11
20 T135:60:2-15
21 T135:47:1-19
22 T149:8:6-12
23 T135:18:18-25
24 T135:18-24
25 For example, see the Research Paper by Dr. Ago Bürki-Fillenz : "Ich bin nicht mehr die-Frau, die du geheiratet hast"
    translated by Sarah Yasson Chang in the book : "I Am No Longer The Woman You Married" (published by Breakthrough Limited)

Chapter 3 - The Period Between 1960 To 1970

CIL AND CHRISTOBAN

3.1 The new company Chinachem Investment Company Limited ("CIL") (華懋置業股份有限公司) was set up to conduct property development business. It was incorporated on 7 September 1960. The founders or subscribers to the memorandum were Wang Sr, Teddy and Yih. The capital for the property business came from the profit of the plastic business in which Yih had a share.¹

3.2 The return of allotment in 1961 indicated that Yih was also allotted with 10% shares of CIL. The rest of the shares were allotted to Wang Sr and his children as well as Nina, with Teddy being the largest shareholder.² Between 1962 and 1964, there was some increase in capital and Yih had not made a proportional subscription for the new shares. His shareholding in CIL therefore was reduced to 8%.³

3.3 Wang Sr had gradually faded out of the family business. In the second half of the 1950s he often went to Taiwan for business. He became ill in about 1964 or 1965. In this period of time, at the suggestion of Teddy that it was beneficial for tax purposes, Wang Sr on 31 December 1964 transferred all but one of his shares in CUCCL and CIL to a Panamanian company, "Christoban" Enterprise SA. He had also asked all his other children to transfer all their shares to Christoban. They all did so save for Teresa who was then studying in the States. Teddy and Nina also transferred all but one of their shares to Christoban.⁴ The fact that one share left registered in the name of Wang Sr, Teddy, and Nina, was probably because of the requirement of director shareholding.

3.4 The first property project of CIL was a joint venture with a customer of CUCCL in Kwun Tong. Thereafter CIL began developing real property on its own. During this period of time there could be little doubt that Yih was the right-hand man of Teddy. Apart from taking care of the accounts of the whole Chinachem group of companies, he also helped Teddy in the conduct of the real estate business. Yih attended every land auction with Teddy and assisted him therein by drawing up tables in respect of amortised land cost per square foot of constructed area at different bidding prices for Teddy's quick and easy reference. He also assisted in the design stage of the building, liaising with architects and signing contracts with contractors. At a later stage, he was also responsible for fixing the selling prices, designing and drawing the sale brochures etc. In short, he was really involved at all stages except the construction work of the building, which was dealt with by Teddy himself.⁵ He was also responsible for purchasing wooden doors, window frames and sanitary equipment to be used in the building. Teddy trusted Yih so much that Yih could say that there had never been an occasion when his decision was overruled by Teddy.⁶ The defence was unable to put to Yih any single instance which would suggest that he was untruthful.

THE CREDIBILITY OF YIH ON HAPPENINGS DURING THIS PERIOD

3.5 However, the defence mounted a very strong attack on Yih in cross-examination on his role and also his account of Nina's role in the property development business. I am afraid I have to say that after this lengthy cross-examination nothing has been achieved except that Yih's evidence was fortified. I accept the plaintiff's submission that Yih is a wise, able and honest man. Despite the lengthy cross-examination designed with surprised documents used to confront him like hat-trick rabbits, he gave his evidence in a fair, composed, and humble manner. He is a credible and reliable witness. I am actually quite impressed that he could still have a clear memory in a number of details at his advanced age. He is now retired in Canada and he has no interest in this action at all. He even paid his own travelling expenses to come to give evidence for Wang Sr. He gave me the impression that he did not want to burden Wang Sr but he did not want to boast about it. It can be seen that he has a deep respect for him out of inter alia gratitude to the Wangs family for taking care of him at his tender age. No doubt he had contributed a lot in laying a firm foundation for the plastic business and later the property business from which Chinachem had since then grown into a big empire. Thus despite Nina's desire to paint the picture of her own importance and deep involvement in the business during that period, she was unable to point out a single incident whereby a decision made by Yih was overruled by Teddy or herself. However, inevitably I have to deal with some futile cross-examination to illustrate his accuracy and honesty.

3.6 The defence mounted a very long attack on Yih in cross-examination concerning his role and also his account of Nina's role in the property development business. In respect of one development of Chinachem in the name of Charmain Heights which Nina through her Counsel suggested that she was the person who designed it and not Yih, she was not even able to suggest specifically what Yih said in evidence as to what had been done or performed by him in respect of this brochure, was not done by him but someone else.

3.7 The cross-examination on Yih on the preparation of the brochure fully revealed and highlighted the irresponsible and opportunist approach of the defence. First on Day 116, it was suggested that Nina had studied a course in Hong Kong University in 1961 or 1962 on interior design. Yih in evidence said he did not know about it.⁷ It was also suggested that she studied design courses in the U.S. The purpose no doubt was to seek to lay a foundation that Nina had the talent, skill or speciality to make the brochure with the view of challenging Yih's evidence on his role in the real estate business of Chinachem. Thus, apart from the issue of Yih's credibility, the defence was trying to paint a picture that even from the earlier period in the 1960s, Nina had been treasured by Teddy as his helpful assistant. It was put to Yih that Nina had the right skill but he had not, to which Yih disagreed.⁸ The obvious implication from the suggestion was that since Nina had the skill it must be she and not Yih who did the brochure.⁹

3.8 However this claim of her special knowledge or her attending classes in Hong Kong was never substantiated. No document or certificate or her attendance of the class was disclosed. Bearing in mind that Nina was able to produce the certificate of her attendance of commercial classes at Maryknoll School in 1956, it would be more than surprising that she would not be able to produce any certificate or documentary evidence of her attendance of these courses in 1961 or 1962.

3.9 Further her attempt to give credence to the suggestion that she had acquired skill through taking courses in the U.S. did not meet with much success either. Although Yih knew that she had studied in the U.S. for a few months, he was not aware of what courses she took.¹⁰ Again she had not substantiated her claim of expertise and certainly no document was disclosed to show what courses she in fact had taken in the U.S.

3.10 Later in the cross-examination, it became clear from Yih's evidence that the preparation of the brochure would include putting a lot of ideas and words.¹¹ It was then suggested to him that, with Nina's knowledge, she could contribute more than Yih in relation to the artistic side of the brochure.¹² Of course the truth was that Nina never actually did anything about the brochures during the time of Yih, other than producing two photographs relating to a bedroom and a living room at Yih's request.

3.11 Yih was able to say from memory that the art work and design in those days were done by two printing companies : Lai Do and Lai Shing.¹³ He would only give very little comment and contribution himself in respect of the layout and "artistic" works.¹⁴ It is noticeable that while the brochures were in Nina's possession by this stage of the evidence, Nina had not produced any brochure to Yih in cross-examination yet. The four brochures subsequently produced by Nina to cross-examine him proved that he was right. At this further stage of cross-examination, Nina through her Counsel then resorted to asking whether Yih could rule out that Nina could have given her ideas to the companies that did the design.¹⁵ This turned out to be a fishing expedition because if indeed Nina had given any idea to the printers, she must be able to give instructions to her Counsel about that, including the names of the printers and also what her ideas and contribution were and the particular brochures involved. However, none of such matter was forthcoming.

3.12 On Day 120, the issue on the brochure was again explored in cross-examination. The brochure of Charmain Heights was shown to Yih. Previously Yih was cross-examined in detail on three brochures relating to the three phrases of Shui Ning House (瑞寧樓) which was a project in Kwun Tong and the flats there were small and cheaper. It was suggested to him that if one looked at the brochure of Charmain Heights, the quality was so good that it could only be done by professional people like architects.¹⁶ This was denied. In fact Yih was able to give rather detailed evidence on his contribution to the making of this brochure. Again the suggestion that the front page was done by an architect was never substantiated either by evidence or by document.

3.13 In fact, probably Nina never had much to do with this brochure, otherwise she would have realized that there was a clear statement in the brochure that it was designed by Lai Do like other brochures of Shui Ning House.¹⁷ This would certainly negative her earlier allegation that the front page was designed by an architect or that the whole brochure was designed by her.¹⁸

3.14 Further, in connection with Charmain Heights, it was suggested that the Chinese name must be given by Nina and that Yih was lying when he said he chose the Chinese name for Charmain Heights simply because "Ch" sound in Charmain should be pronounced as "Sh" in French. The suggestion was quite outrageous. First as Yih pointed out, whether "Charmain" was pronounced with "Ch" or "Sh" sound, it could still be a good Romanised name for the Chinese name 霞明閣, i.e. the Chinese name is neither "Ch" nor "Sh" but "h" in Cantonese or "x" in Mandarin. Secondly there was really no evidence to show that Nina was more conversant with French pronunciation. Again this piece of cross-examination illustrated the fishing approach of the defence trying to fish for and appropriate any opportunity to get something as a basis for suggesting that she had a great contribution to the real estate business of Chinachem at this crucial period.

3.15 On the other hand, for the work done by Yih relating to the land auction, his works on the tables drawn up by him were marked on the land auction brochures which were kept in the files of each of the development projects where brochures and the price lists of the sale of the flats of the projects were kept. This was his evidence. These files were certainly still available to Nina who was able to pull out the brochures for the sale of the flats in order to cross-examine Yih.¹⁹ But, of course, all the records for each and every file were not produced. The defence only used a few which they thought would suit their purpose in the cross-examination. No doubt her Counsel were only given those tables but not the others.

3.16 The records of Chinachem for all these projects were certainly very well kept as this was evidenced by the fact that the defence was able to pull out correspondences, like rabbits in the hat-trick, between The Hong Kong Building and Loan Agency Ltd and CIL in 1967 ²⁰ and other land acquisition papers²¹ to cross-examine Yih when she thought that it would assist her case to do so. However, there was really no document which Nina was able to produce to contradict Yih's evidence as to his job and what he had in fact done. In the circumstances where clearly the full record was available to the defence, the Court may draw the inference that in fact the full record of Chinachem would have supported Yih's evidence.

3.17 I am afraid I must say that some of this cross-examination is just a waste of time. The defendant tried hard to clinch on anything to suggest that during this period she played an important role in the business of Chinachem. However, there was simply no evidence that would justify any such suggestion. Not only did she not give any evidence of these matters, she was unable to call any evidence from anyone to show that she had made any real and important contribution during this period of time. It was vaguely suggested that she contributed by conducting negotiations with bankers and Government departments. However, there was no document whatsoever produced to show that she was in fact in charge of these matters during this period of time.

3.18 The documentation on the correspondence with The Hong Kong Building and Loan Agency Ltd did not show she was in any way involved in the negotiation. There was no suggestion that she signed the letter at G11-3350 the signature on which appeared to be more consistent with the letter being signed by Mr Simonson, the expatriate secretary employed by Chinachem at that time. While the defence might like to take the convenience of appropriating to Nina whatever work or contribution that Yih was not able to say who should be responsible for, the reality of the situation was that during the 20 days of cross-examination of Yih, the defence Counsel was unable to specify or specifically put to Yih even one single banking transaction or bank mortgage that Nina had negotiated during this period. Further the defence could not produce any one single piece of correspondence or document which would suggest that she was responsible for in respect of any discussion with any banking officials.

3.19 Even the belated hearsay statement from Lord Sandberg formerly Chairman of the Hong Kong and Shanghai Banking Corporation ("HSBC") could not assist the defence. On the face of the statement, he met the Wangs couple while he was in the Inward Bills Department of the HSBC's main branch. He said that he frequently dealt with Nina and he spent considerable time in negotiating the terms of letters of credit for their business. The business he spoke of clearly would not be the property development business. In the normal course of the business, the bank would grant a certain amount of banking facilities to its customers including L/C facilities. Such facilities would be reviewed periodically, normally annually. The scope for any negotiation of the terms of the opening of L/C would be pretty small and the question of negotiating on L/C facility terms would usually be just a routine affair.²²

3.20 At any rate, his statement did not say that the person with whom he negotiated was Nina or Nina only. In this respect, it is notable that his statement was deliberately vague as to the context in which he "frequently dealt" with Nina. In terms of the time frame, it was more likely that he was speaking mainly of the pre-1960 period when the main business of Chinachem was dealing with medicines, chemicals and plastics which would involve L/C facility and not property development. In those early days, it is clear from Yih's evidence that Nina did help in the preparation of the typing of L/C by referring to L/C precedent forms at the instructions of Teddy.²³ It might well be that she was also asked to deliver the application to Mr Sandberg (as he then was) at that time.²⁴ Certainly, he could not have and had not spoken of any financing of property development business with Nina.

3.21 In the end it does not even matter whether Nina had played a stronger role or anything at all because the undisputed fact was Teddy had changed his 1960 Will and made another one in 1968 for his father only. This will be considered fully hereinbelow. Suffice it for me to say here that Yih was demonstrated by the cross-examination that he is an entirely honest and truthful witness.

THE U.S.A. CONNECTION

3.22 In the ensuing period of time, there were many unhappy incidents in the relationship between Nina and Teddy. It is reasonably certain that during this period of time, Nina had left Hong Kong for the U.S. for some time. As aforesaid, it was suggested that she went to the U.S. to attend certain courses on design but there was nothing to substantiate that suggestion by her Counsel. Even from her own affirmation,²⁵ she only said that in the mid-1960s, she left Teddy for approximately one year for the U.S. and this was in the context of her having some difficulties in her marriage with Teddy. Hence, the situation was certainly not one of a loving couple with one of them trying to better herself for the business and with the support of the other. This was further supported by the evidence of Teresa who told the Court that the mother of Nina claimed credit for persuading Nina to return to Teddy in Hong Kong from the U.S. Again Nina could produce no evidence to rebut this piece of evidence from Teresa at all. That was in or about 1963/1964.

THE TAIWAN CONNECTION

3.23 From the evidence of Yih, it is also clear that during the riots in Hong Kong in 1967, Teddy intended to invest in Taiwan. Taiwan was not new to him because in or about 1964 after Teddy had his operation, Yih and Teddy had visited Taiwan for pleasure. Chinachem had always had business dealings with one Mr Wu Cheong To (吳昌濤) in Taiwan in relation to the plastic business. In 1967, Yih and Teddy went to Taiwan and stayed there for about three months to set up some joint venture business with Mr Wu in Taiwan in connection with the real estate development. Wu in fact at first refused to have any dealings in real estate development with Teddy but Yih eventually persuaded Wu to do so with Yih's personal guarantee on Teddy's credibility and performance. Since this visit, either Teddy or Yih would go to Taiwan in relation to the joint venture. The business venture in Taiwan with Wu was a business of Teddy personally and not Chinachem.

3.24 In fact, this joint venture proved to be disastrous for everyone involved. According to Yih, it was Teddy who insisted on changing the approved plans by changing each unit into two units for one whole floor of many units. Eventually they were sued by purchasers and the whole project was in a big muddle. From Wu's correspondence, it is clear that he was desirous to get some help from Yih and Teddy but they were both heavily engaged in Hong Kong. Later Yih heard that Wu was apparently imprisoned because of this development project.

3.25 During this period of time around 1967, Teddy at least had one intimate girl friend in Taiwan and this is quite apparent from the two affectionate and intimate letters written by her to him.²⁶ Certainly up to the time of his death, Teddy still retained a large number of photographs of three certain ladies in his safe deposit box in the Bank of Canton to which Yih was the only other person apart from Teddy himself, authorized to have access but not Nina.

3.26 From the first letter of Teddy's girl friend in Taiwan, apparently she had received a phone call which she suspected was Teddy's wife checking on her. She even stated in this letter the full telephone conversation with that lady inquisitor whom she thought was Nina. The telephone number given by that inquisitor belonged to Teddy's company. Thus, apparently Nina was already apprehensive of Teddy's extra marital affairs and was in the course of tracking down his girl friend.

THE DEFENDANT'S ADULTEROUS AFFAIR IN 1968

3.27 On the other hand, shortly thereafter in or about early 1968, Wang Sr was on his way to Taiwan again. At the airport, he saw Nina behaving intimately with a man. When he came back to Hong Kong he told Teddy about it. Teddy asked him to engage a private investigator to look into the matter. Whereupon Wang Sr engaged the Sino-Western Private Detective Agency²⁷ to investigate the matter.

3.28 The private detective succeeded in taking some photographs showing Nina and a man walking together intimately.²⁸ That was 1968 and not the year 2002. That man turned out to be a businessman dealing with Chinachem and not a close friend of Teddy or the Wangs family. Wang Sr gave the photographs to Teddy.

3.29 According to Wang Sr, Teddy was "so furious that he said he had to beat up this man to death".²⁹ One week later, Teddy told Wang Sr that there was no need to investigate any more because Nina "had already admitted" the affair to him. Wang Sr's evidence of this 1968 affair was subsequently corroborated by the evidence of Yih and Teresa.

3.30 Apparently since 1964 Teddy must have realized that he was infertile because of the Mayo Clinic Report. This Clinic is in Minnesota. However he found some pills in the possession of Nina. He gave one of them to Yih and asked him to find out what this pill was. Yih was unable to get an answer from the drug store. But on the next day, Teddy gave him a row of pills, out of which was the one given to him the day before, and told him that they were contraceptive pills. This was found out by Teddy himself. Teddy then told Yih about what Wang Sr saw and the engagement of the private detective to investigate about the affairs of Nina.30 (In other word Yih had nothing to do with the private detective at all and I just put a note here for the further development of the problem because Teddy told Nina later on that it was Yih's idea to engage a private detective which caused the deterioration of the relationship between Nina and Yih.)

3.31 The relationship between Teddy and Nina thereafter deteriorated. In fact shortly afterwards, Yih saw bruises on the face of Nina, as if she had been violently (but of course unlawfully) treated by Teddy. Teddy told Wang Sr that he "wanted to divorce her" but both Wang Sr and Yih had persuaded him not to do so.³¹

3.32 In the following months, Teddy carried out a series of actions. On 12 February 1968, Teddy rented a safe deposit box in his own name in the Bank of Canton, making only Yih as his deputy authorized to open the box.³² On 15 March 1968 Teddy made a new will, i.e. the aforesaid 1968 Will, naming Wang Sr as the sole executor, trustee and beneficiary. This 1968 Will expressly revoked all his former wills and testamentary dispositions. This was prepared by his solicitor, Mr Donald Cheung and was executed in the presence of two partners of Messrs F. Zimmern & Co. as aforesaid in Chapter 1 herein.

3.33 According to Wang Sr, Teddy also asked Nina to "give back all the money, everything, assets, etc. and he said he did not want Kung to take away any of his property".³³ Thereupon Nina duly advised the Hong Kong and Shanghai Bank to close her account and transfer the balance to the account of Teddy.³⁴ Nina also transferred to Teddy her share in a property at 410 Bellevue Apartments³⁵ and her shares in the American Investors Fund, Inc.³⁶ between June and August 1968. On 19 October 1968, Teddy informed HSBC that the sum of US$4,686.10 issued by American Investors Fund Inc. should be deposited into his account and not Nina's account, as just the day before, the bank was informed by a Mr C.S. Lo of Chinachem that the aforesaid sum should be deposited into Nina's account.

3.34 Further on 22 August 1968 Teddy executed a Power of Attorney in favour of Yih. Teddy then revoked the Power of Attorney he had previously issued to Nina and he informed the Hong Kong & Shanghai Bank by a letter dated 7 July 1969.³⁷ According to Teddy's aforesaid letter, it was sent when Nina was not in Hong Kong. It is noteworthy that the 1968 Will and the correspondences relating to the aforesaid acts were all kept by Teddy inside the safe deposit box of the Bank of Canton, to which Nina had no access. Some of the documents in the box were not known to Nina for these years unless she had been informed of the same like the revocation of the Power of Attorney which Teddy had previously issued to her.

3.35 The evidence before me supported the finding that Nina probably had committed adultery and that was the main reason for Teddy changing his 1960 Will by executing a new one in 1968 removing Nina as one of the beneficiaries of his estate. In this regard, there was never any statement of denial made on oath by Nina of her extramarital relationship with someone at that time. (It is also fair to point out here that Nina's affair was after Teddy's affairs.)³⁸

3.36 In any event, whether Nina had actually committed adultery or not, clearly Teddy believed that she did and that was the reason for him to change his will and started taking everything back from Nina by a series of actions. In other words even if, for the purpose of argument, the evidence before me is not sufficient to support a case of adultery in the circumstances, it does not matter at all in respect of the explanation as to why Teddy had taken this series of actions. Certainly he firmly believed that had happened.

THE EVIDENCE OF MR DONALD CHEUNG

3.37 Mr Donald Cheung, the solicitor who prepared the 1968 Will, is now residing in Vancouver, Canada, and he gave evidence through videolink on Day 13 of the trial.

3.38 Although Nina has not admitted the 1968 Will in her defence, Mr Cheung was not cross-examined on the authenticity or due execution of the 1968 Will at all. Indeed his evidence on the circumstances of how the 1968 Will came into existence was never challenged during cross-examination.

3.39 He described in detail the circumstances of how the 1968 Will came into existence including how Teddy instructed him and how he drafted and testified thereto together with the late Mr Frederick Zimmern, the two of them were the only two partners of Messrs F. Zimmern & Co. there and then.

3.40 Mr Cheung said that on 15 March 1968, Teddy, who was a regular client of his firm, came up to his office in the morning and gave him "testamentary instructions", as follows³⁹ :

The fact that Mr Cheung asked Teddy to repeat what he said indicated that the instructions given by him, though very clear, was nonetheless a surprise to Mr Cheung.

3.41 Mr Cheung immediately "hand-drafted his will" and instructed his secretary to engross it. It took him only 10 to 15 minutes to hand-draft this simple will.⁴⁰ The engrossment was then shown to Teddy who read and confirmed "that those were his instructions". (I just want to digress a bit here and point out that Yih also testified that Teddy used to read legal documents meticulously. In respect of an agreement to purchase land in Taiwan when some wordings were not clear, he took the document home to read it before signing it the next day.)⁴¹

3.42 Mr Cheung described that Teddy was "really serious" and he had "no doubt whatsoever" that Teddy understood the contents of the will. He then took Teddy to the late Mr Frederick Zimmern's room. Mr Zimmern read through the engrossment and confirmed with Teddy that those were his instructions. Teddy then signed the will in the presence of Mr Cheung and Mr Zimmern. This standard procedure adopted by solicitors was so simple and yet solemn and clear in order to ensure that Teddy understood the content before they attested to his signature thereto. This also shows that when Teddy wanted to make a new will he would go to a solicitor who should be bound by professional confidentiality and that solicitor would be his usual solicitor known to him. This will have a lot of bearing when I consider the suggested or alleged circumstances when the 1990 Documents were allegedly executed by Teddy.

3.43 Under cross-examination, Mr Cheung described that Teddy and Nina were a "loving twin couple; they were like twins". However when it came to decision-making, Teddy always made "the ultimate decision". The following testimony is very telling⁴² :

3.44 Further in re-examination, Mr Cheung added the following, namely⁴³ :

3.45 I would also like to add here that Mr Cheung's involvement with the Wangs couple had gone deeper into the 1980s when he unfortunately had a dispute with them. Thus this description of them was not restricted to the sixties. Further under re-examination, Mr Cheung stressed that Teddy and Nina were "very, very private people". He added : "They do not discuss their personal matters with me, or, to the best of my knowledge, with my former wife."44 This kind of character of Teddy is in line with what Yih said that Teddy would ask him a lot of things but he would never tell Yih personal things of himself. That is why Yih did not know why Teddy ceased this schooling at St. Stephen's College and definitely he had never been told by Teddy that he was being expelled from school. The character of Teddy will be considered later under the heading of suspicious circumstances concerning the 1990 Documents allegedly signed by Teddy.

THE SAFE DEPOSIT BOX AND THE DISCOVERY OF THE 1968 WILL

3.46 I will digress here and consider this safe deposit box and the discovery of the 1968 Will therein in the year 1997. As aforesaid the whole arrangement made by Teddy in opening a new safe deposit box making Yih his deputy and making a new will in 1968 was clearly aiming at revoking the 1960 Will and cutting Nina away from having any benefit from his estate. The whole circumstances in 1968 certainly would suggest that Teddy would not want Nina to know about his action therein.

3.47 Furthermore Teddy opened the new safe deposit box on 12 February 1968 and only made Yih a deputy as aforesaid. The Bank of Canton was not Teddy's or Chinachem's usual bank. However it was just round the corner from Holland House along Ice House Street where Chinachem Headquarter was there and then and so was the office of Messrs F. Zimmern & Co. The location was very convenience for both of them, i.e. Teddy and Yih. When Yih was asked by Teddy to go to the Bank to sign the necessary document to become a deputy for the operation of the safe deposit box, Yih could not remember now whether Teddy had already had the box with the Bank or not. From the document kept by the Bank⁴⁵ the overwhelming probabilities were that it was a situation when both Teddy and Yih went to open the account for the safe deposit box because there was only one date on the agreement and the specimen signature card with their signatures when Yih was made a deputy. There and then he was also told by Teddy that if Wang Sr asked him to open the box, he should just open it for him.⁴⁶

3.48 From the events that subsequently happened, namely the making of the 1968 Will and the placing of the will in the deposit box, it is quite clear that by 12 February 1968, Teddy must have contemplated making a new will in favour of Wang Sr cutting away the interest of Nina. It was not until one month later, on 15 March 1968, that Teddy went to the solicitors' office to make his new will. Hence, it is quite clear that the making of a will was a very solemn and serious matter to Teddy and he was not one of those persons who would lightly make a rush decision to change his previous will. Angry though he must be with Nina and her behaviour, the 1968 Will was made after due consideration and was not a decision made at the spur of the moment.

3.49 There could be no dispute that Teddy did tell Wang Sr about his new will, and also the fact that Wang Sr could ask Yih to retrieve the will from the safe deposit box. Apart from the fact that Yih had testified that he was told by Wang Sr some time in 1968 about this,⁴⁷ the fact that eventually the box was opened at the instigation of Wang Sr must mean that he was informed of the existence of the will in the box by Teddy.

3.50 Further, although Yih's evidence was that he was not able to remember whether he was given any key to the box by Teddy at the time he was made a deputy or at any time thereafter, yet if he had been given one, he must have lost it. It is clear that between Wang Sr and Yih, one of them must have been given the key to the box by Teddy, otherwise the arrangement of asking Yih to open the box for Wang Sr would be defeated. The Bank confirmed that two keys were issued, although Nina could only find one from the belongings of Teddy. That probably was the one issued to the box holder, i.e. Teddy. When Wang Sr had given his evidence and thereafter Yih was giving his evidence, I got the impression that it might well be Teddy's meticulous arrangement that Wang Sr was given the key whereas Yih was made a deputy without having the key. The impression I got was a logical deduction from the following facts :

However when asked whether this could possibly be the arrangement of Teddy, Yih could not say whether that was the case because he could not even remember when he was asked to sign his name as a deputy, whether it was at the opening of the box or thereafter. He could not remember whether he was given the key or not at all. Wang Sr could not remember anything more than Yih either. However that might well be the arrangement made by Teddy, though it does not matter one way or the other in this case. The fact remains that neither of them had opened the box during the lifetime of Teddy.

3.51 In any event, the correspondence address registered with the Bank for this box was P.O. Box 6752 which was the P.O. Box address of one Ping Hing Hong (丙興行). This was a separate company operated by Wang Sr himself only. It was only on 12 February 1968, i.e. the very same day of the opening of the account with the Bank of Canton for the box, that Teddy acquired all of his father's interests in this company at the consideration of $50,000.⁴⁸ In the circumstances the choice of the P.O. Box address of a company previously not belonging to the Chinachem group is a further indication that Teddy did not want Nina to become aware of this new box and its contents. Teddy even went all the way to acquire all his father's interests in this company at a considerable consideration. This further supported the premeditated and detailed plan of Teddy in his series of actions.

3.52 However, in the previous Probate Action HCAP 6/1997, Nina claimed in an affirmation made on 24 April 1998 that she was always aware of the existence of this box and was even responsible for arranging its rental payments.⁴⁹ She also claimed that she was shown the key to the box by Teddy and knew where it was kept. By then it was more than eight years since the disappearance of Teddy and it would not be surprising that she was able to locate and produce the key among the belongings of Teddy. She further alleged that when Chinachem group had moved to the Far East Finance Centre in Central, Teddy had asked her to empty the box and transfer the contents to another box to be opened at the Bank of Tokyo⁵⁰ but she said that later on both she and Teddy had forgotten about it because they were both busy. However, I accept the plaintiff's submission that it was just a bald assertion on her part and it was not true because :

3.53 Further the documents found in the box included the 1968 Will and other documents such as those concerned with the revocation of Nina's Power of Attorney and the appointment of Yih in her place. All these were sensitive documents which Teddy was trying to keep from Nina by placing them in this box to which she had no access.

3.54 Hence I accept the plaintiff's submission that her claim that she was asked to empty the box and to relocate its content is just another untrue statement made by Nina under oath at the time when she was not aware that apart from the 1968 Will, there were other things in the box which Teddy would definitely not want her to know about.

3.55 Further in order to support Nina's allegation that she was aware of the existence of this box, she said she was even responsible for the payment of the rental and she exhibited certain ledger of CIL showing two payments for the rental for this box in January 1975 and April 1981⁵¹ but there was no other voucher or payment record. The payment on each of the two occasions was only for one year. If indeed she was responsible for the payment of the rental through one of the companies of CIL, there must be an entry for each of the payments in every year and not just two years since it is difficult to imagine that payment would be missed for the years in between given the fact that there must be a number of staff in the accounts department of CIL to attend to this matter.

3.56 In any event, Nina's production of the ledger could not in fact show that she was responsible for or even aware of the payment there and then. She had chosen not to produce the vouchers supporting the entries in the ledgers which would have shown who in fact had authorized the payment. The payment could in fact be authorized by Teddy but Nina simply found these entries in the ledger after litigation in 1997 had commenced and conveniently made use of the two ledgers to make her claim. It is true that the payment for the rental of this box was made out of the money of CIL was quite unusual because it was clearly a box opened in the name of Teddy for his personal usage only and not CIL.

3.57 Further at the time of her affirmation in April 1998, she was probably not aware that payments were made for every year up to February 1981.⁵² However because of some communication problems with the box holder, the payment of the rental had not been made for a number of years since then and the arrears were subsequently made up afterwards between the year 1982 and 1991, i.e. a payment was made on 16 July 1990 in one go for nine years after Teddy had disappeared according to the record of the Bank.⁵³ If Nina were in fact responsible for the rental payment as alleged, she had certainly not given any explanation for why neither she nor CIL had made any payment for these nine years.

3.58 In relation to the P.O. Box being used as the correspondence address for this safe deposit box, Nina also claimed that the P.O. Box had been used by Teddy and her for many years. It was not made clear by her as to when she would claim that she had started to use the box.⁵⁴ There is no evidence that she had used this P.O. Box before. The P.O. Box was located at Mongkok near the place where Wang Sr lived and was no where close to the office of Chinachem or where Nina resided in 1968 up to 1992.

3.59 The only evidence was two ledgers of CIL for the years 1976 and 1981 (produced by Nina in cross-examination of the plaintiff's witness), showing that the rental for the P.O. Box had been paid by CIL.⁵⁵ The defence claimed that it was evidence to support the fact that the P.O. Box was opened in the name of a Chinachem company and not Teddy. However, bearing in mind that in the case of the safe deposit box which was plainly opened in the name of Teddy and yet similarly CIL's ledger recorded that its rental had been paid by CIL in or about the same two years, the mere production of the ledgers of CIL showing that certain sums of money had been paid by CIL for the rental for this post office box, is neither here nor there. Again as she had chosen not to produce other more pertinent documents, such as the vouchers supporting the two entries in the ledger, the two entries would not assist Nina's assertion. The vouchers would show who had actually authorized the payment. Other documentary evidence, such as the demand note or receipt of the payment of the rental, would also show the identity of the person who rented the post office box. If those supporting vouchers were to be produced, it might well show that it was authorized by Teddy himself by mistake or one of his subordinates who was told by Teddy, again mistakenly, to make those two payments.

3.60 Further after Teddy had disappeared, as I have said nine years rental was paid for the safe deposit box on 16 July 1990 in one go between the period of 12 February 1982 and 11 February 1991. It was one cash payment. Apparently the annual demand notes between 1981 and 1990 or 1991 could not reach Teddy. In the next year on 2 March 1992, again there was a cash payment for the rental deposit of the box up to 11 February 1993.⁵⁶ By then in 1992, Wang Teh Huei's name in the receipt was stated to be of 97, Mongkok Road, Flat D4, Kowloon where Wang Sr and/or Teddy's mother was/were residing (instead of no address stated as in the previous receipt of 16 July 1990). By then of course Bank of Canton had changed its name to Security Pacific Asian Bank Limited, which fact would have some bearing to be considered later.

3.61 Thus I accept the plaintiff's submission that the claim by Nina of her being informed of the 1968 Will because of her knowledge of the existence of the safe deposit box and the post office box is simply untrue. She might well have become (at a later stage) aware of the existence of a 1968 Will of Teddy through the letter of Deacons dated 11 February 1985 ⁵⁷ informing Messrs Ip, Ku & Stoppa, the then solicitors acting for Teddy and Nina of the fact that Messrs F. Zimmern & Co. had in their custody "a copy will of T.H. Wang dated the 15th March 1968".

3.62 However this inference (that she was aware of it shortly after the 1985 letter) was not necessarily an irresistible inference because at the time, Teddy was still alive, and he might not have allowed this information to be passed onto Nina. She merely got hold of the letter only after the disappearance of Teddy and started to make up stories which she dared not confirm in Court in these proceedings. It is also notable that Messrs Ip, Ku & Stoppa did not ask for or demand the return of the copy will until 1991 well after the disappearance of Teddy in April 1990.

3.63 Nina in one of her affirmations alleged that when Messrs Ip, Ku & Stoppa asked Messrs F. Zimmern & Co. for the return of the wills and testamentary disposition of their clients earlier, Deacons on behalf of Messrs F. Zimmern & Co. replied by letter dated 11 February 1985.⁵⁸ She alleged that Teddy was furious with the suggestion in the reply letter of Deacons that there should be a meeting for the handing over of the wills, and Teddy refused to have the meeting and instructed "the solicitor" to simply cancel the meeting.⁵⁹ However the alleged reaction of Teddy was wholly unbelievable.

3.64 In the first place Deacons' letter was drafted in the most amiable manner. It is clear that their client, Messrs F. Zimmern & Co., was willing to deliver the envelopes containing the copy will of Teddy and the will of Nina in their "present condition". The letter merely suggested that in order to avoid any unhappy episode in the future, it would be in the interest of both parties to have the envelopes opened and the contents identified in the presence of both parties' solicitors and possibly also in the presence of an independant solicitor, say a solicitor from Messrs Johnson, Stokes & Master, who was there and then disinterested in the matter. There was nothing in the letter to suggest that if it were the wish of Teddy and/or Nina that they simply wanted the envelopes back, they would not be given back to them in the same state as they were then being held by Messrs F. Zimmern & Co. The letter of Deacons was actually written in a very amiable and thoughtful manner, which is not that common between disputing solicitors nowadays.

3.65 Further, if indeed, the suggestion did not meet the approval of Teddy, one would expect that there would be a letter from Messrs Ip, Ku & Stoppa to inform Deacons of the refusal of the proposal and to ask for the return of the envelopes in their present condition as indicated in the letter of Deacons. There was simply no such correspondence at all. Deacons' proposal was never put as a condition for the return of the copy will.

3.66 In any event, if indeed it was Nina's case that that was the real situation, then it would be open to her to call her then solicitors to give evidence to support her allegations even though she was not prepared to back up what she said in the affirmation by giving evidence in the trial. No such evidence was ever called by the Defence.

3.67 Thus I accept the plaintiff's submission that the more likely reason for Teddy not asking for the return of the copy will was that he did not want Nina to become aware of its contents and hence he did not give instructions to Messrs Ip, Ku & Stoppa to ask for its return. The allegation that Teddy was furious with Deacons' suggestion is not true. It was not until 1991 after the disappearance of Teddy that Nina's solicitors asked for and obtained the delivery of the copy will⁶⁰ and it is doubtful whether this firm of solicitors had ever had any direct instructions from Teddy to ask for the return of the copy will in 1991 when Teddy had already disappeared.

3.68 From the record kept by the Bank of Canton, before the occasion of 26 February 1997 when the box was opened by arrangement made with the solicitors of the Bank, the record only showed that the box was last opened on 22 October 1975 after the box was opened by Teddy on 12 February 1968. Was it the only occasion when the box was ever opened by Teddy between 12 February 1968 and 26 February 1997? If so it would be the only occasion (i.e. 22 October 1975) when Teddy had ever opened the safe deposit box and put the 1968 Will into it, as Mr Stephen Wong, the Bank's solicitor, said that when the box was next opened in his presence on 26 February 1997, the 1968 Will was already inside the box.

3.69 Thus the plaintiff submitted that the box was only opened on one occasion on 22 October 1975 and everything inside were put there on that occasion only. The documents and the photographs only came into existence after the box was first opened in February 1968. Further it must be Teddy himself who put them in because Yih had never exercised his power as deputy to open the box prior to 1997 at all and Yih could not have the original 1968 Will or other documents to be put into the box. Even the photographs developed by "Stereo Company" were apparently developed in "3.68" and "4.68" for two sets of photographs of one lady, and "7.69" and "8.69" for another two sets of photographs for another lady. One separate photograph of her was dated "1969.7.14". Another photograph of a third lady was not dated at all. In other words between 1968 and 1975 Teddy must have kept all these documents and photographs somewhere else.

3.70 It is true that Ms Cyan Chan called by the plaintiff did say that the Bank had kept a record of all occasions when anyone had access to the safe deposit box.⁶¹ Then she produced the record which impliedly meant all the records kept by her Bank. However there is one thing which has apparently escaped the attention of at least the plaintiff's Counsel and that is at page 195 of F1 which is supposed to be the record of all occasions of access. It was stated at the bottom right that it was a form of Security Pacific Asian Bank Limited. That was the name of the Bank sometime afterwards. The form was stated at the left bottom as form 804 (12/88) which can possibly mean a form of this Bank in 1988. It is also therefore possible that either there was no access record before October 22, 75 as stated in this form and/or the handwritten date of "OCT 22, 75" was copied manually from an old record into the new form of the Bank in its new name. Further by 1997 this Bank had already changed its name further to Bank of America (Asia) Limited. By that time the Bank had been keeping access card of persons opening the box in the form at page 196(a) of F1. No access card was produced in respect of the opening on 22 October 1975 and possibly there was no such access card by then or the same had been lost with other record of access to the box. It is also possible (and I cannot put it higher than that) either the copying into the form at page 195 was done manually by copying only the last entry in the old form but not the previous occasion or occasions of access. Alternatively before that new form was introduced, there was simply no record of access (which is less likely). In other words there is possibly an old record which either has been destroyed or still kept in the microfilms archive of this Bank in the names of its predecessors. No one has asked Ms Cyan Chan these questions.

3.71 Judging from the character of Teddy and his carefully premeditated plan of opening the safe deposit box together with acquiring a Post Office box for the former's address of correspondence, before the 1968 Will was executed, I do not quite believe that he would not have walked from Holland House where Messrs F. Zimmern & Co. was to the Bank of Canton around the corner along Ice House Street immediately or shortly after he had executed the 1968 Will. Ms Cyan Chan, PW1, only worked in the Bank since 1984 and of course she could not personally tell us what had happened to the Bank practice before that nor even how the first entry at page 195 was made out. If the other possibility, i.e. Teddy only put all the documents and photographs into this box on one occasion in 1975, then it would also fortify the plaintiff's submission that he intended to keep this 1968 Will secretly even seven years later and should be aware of its existence by refreshing his memory when he put the same into this box. This also could support the plaintiff's submission that there was there and then still the continued trust of Teddy on Yih even after he left Chinachem in 1970. On the other hand this would negative the allegation made by Nina against Yih on the circumstances of how he left Chinachem and also on any suggestion that the relationship between Teddy and Nina had completely made up and reconciled by October 1975. On the other hand, there is still the possibility that those items found in the box could have been put by Teddy into it on divers dates between 15 March 1968 and 22 October 1975. But that would not destroy the plaintiff's submission of Teddy's continual trust on Yih.

THE RETRIEVAL OF THE 1968 WILL

3.72 Towards the end of 1996, Wang Sr asked Yih for assistance to open the safe deposit box with the Bank which by then had changed its name to Bank of America (Asia) Limited. It would appear that initially Wang Sr would like to find out whether Teddy was still keeping the 1968 Will in that safe deposit box because after a lapse of many years, Teddy might have taken away the will.⁶² Yih agreed to Wang Sr's request for help but he could not find the key. He could not even be sure as to whether he was ever given the key as aforesaid.

3.73 Thus the plaintiff's solicitors, who also acted for Yih at that time, on his instructions asked the Bank on the procedure for opening the box in such circumstances. They were advised that the written consent of Teddy, being the box holder, would be necessary and only Teddy could authorize Yih to force open the box.⁶³ Through subsequent negotiations between the solicitors and the Bank and its legal advisers, an agreement was reached whereby the box might be opened on 26 February 1997.⁶⁴ Eventually the box was opened on 26 February 1997 in the presence of a bank officer, Ms Lisa Chan, the Bank's solicitor, Mr Stephen Wong, Mr Lam Wah Chung, a clerk of the Yih's solicitors and also Mr Yih. When the box was opened the 1968 Will was found amongst the contents inside. Unfortunately there was a dispute which became a quarrel between Mr Lam and Mr Wong resulting in the closing of the box without drawing up a list of the contents.⁶⁵

3.74 There was a grave misunderstanding between Yih's solicitors and the Bank's solicitors. Mr Wong for the Bank naturally thought that since he was a professional solicitor acting for the Bank only, he would have a very independant position and he would be the best suited person to take out the documents and make an inventory thereof. However before he could ascertain what was in the box first, Mr Lam used unnecessary and rude words against him. Mr Lam asked Mr Wong not even to touch anything inside the box because he said "they worth a big fortune which Mr Wong could not even make up with all the monies he could earn in a few life's time". This was insulting, irrelevant, and unnecessary. If Mr Wong could not be allowed to touch those documents how could he make an inventory of all the items therein.

3.75 On the contrary Mr Lam probably thought that the Bank was only responsible there and then to force open the box and all persons from the Bank including its solicitor should exeunt from the vault and let Mr Yih and his solicitor or solicitor's clerk to inspect the box. In fact Mr Yih at that time was not inside the vault but was outside and he was represented by presumably Mr Lam. However naturally the Bank would be very concerned that nothing should be taken out from the box without their knowledge and also nothing should be put into the box. If its representatives were not to be present, how could the Bank ensure that these two things would not happen. Since Mr Lam would not allow Mr Wong to touch the document and apparently intended to inspect the contents of the box without the presence of the Bank's representative, Mr Wong, as a prudent solicitor, therefore advised the Bank to close the Box immediately so that no one at all could gain access to those contents inside. This is in the context that Yih, though a deputy of the box holder Teddy, had not got the key and the Bank's practice of allowing a box to be force opened would require the authorization of the box holder himself but not the deputy only. There simply was not any modus operandi agreed beforehand between the two parties resulting in this unhappy misunderstanding.

3.76 Subsequently the box was opened again on 22 April 1997 in the presence of two representatives of the Inland Revenue Department⁶⁶ and an inventory of the contents in the box was drawn up.⁶⁷ This was done in accordance with the general practice of the Inland Revenue⁶⁸ and accordingly the plaintiff's solicitors were allowed to take away the 1968 Will found inside the box after copies had been made and the Will was produced in this action.

YIH LEE KONG LEAVING CHINACHEM

3.77 Coming back to the last period of this chapter and that is after the 1968 Will was executed. That could be little doubt that the relationship between Teddy and Nina must have deteriorated. It also appeared that he might even have beaten up Nina.⁶⁹ By that time in 1968, Teddy's investment in Taiwan would also require someone to look after from time to time. Apart from sending Yih to go there, at the suggestion of Yih, Teddy also sent Nina to Taiwan so that they could have a cooling off period instead of getting a divorce and she would have something to do in Taiwan.⁷⁰ Nina did go to Taiwan and returned on 27 March 1968⁷¹. The relationship between the couple had certainly improved gradually in the later days.

3.78 However since the incident in 1968, Nina treated Yih very badly. She accused Yih for having told Teddy of her personal affairs and having instructed investigators to investigate her personal affairs.⁷² In short she thought that Yih had deliberately driven a wedge between her and Teddy to sabotage their relationship. That was furthest from the truth. Yih, instead of denying at the outset of Nina's allegation, he asked Teddy first about it as he apparently had sensed something wrong in what Teddy had told Nina. It then transpired that Teddy deliberately attributed everything to Yih because he thought that if he had told Nina of his father's role in instructing the private detective, Nina would hate Wang Sr and their relationship would be bad. Nina might even bully Wang Sr. Teddy's way of thinking at that time would appear to be that he did not want to have any quarrel within his family. Yih said that Teddy thought Yih had a strong say in the company and he was really just next to Teddy, he did not think that Nina could and would do much to embarrass Yih.⁷³

3.79 However the strongest reasons for Teddy to tell Nina that lie that it was Yih who was responsible were because :

What Teddy had not anticipated or could not care so much in the circumstances, was the strong reaction of Nina and the consequence that Nina became really hostile to Yih and the working atmosphere in the office became very poor.

3.80 In fact Nina expressly told Yih afterwards one day in 1969 that if Yih should stay in the office, the relationship between her and Teddy would never be a good one.⁷⁴ This would put Yih into a very difficult position. He was responsible actually for persuading Teddy not to divorce Nina so clearly he did not want to see his cousin having a broken marital relationship with Nina. However if he should insist on staying in Chinachem and complained to Teddy of the hostile attitude of Nina, that would definitely make the situation worse. Furthermore at the time the pressure of work on Yih in Chinachem was very, very heavy.

3.81 Yih was in charge of the accounts of the Chinachem group in Hong Kong and he also had to take care of Teddy's property joint venture investment in Taiwan. On top of being the accountant, he was also heavily involved in the real estate business of Chinachem.⁷⁵ Further Yih's health was not good at that time. The property investment in Taiwan had come to a very critical stage and Mr Wu had incessantly asked either Yih or Teddy to come over to solve the critical problems of the disgruntle purchasers.

3.82 Thus Yih understood at that time that it was time for him to go. He told Wang Sr and Teddy of his intention to resign and to sell his interests in Chinachem back to the Wangs. Neither of them wanted him to leave. The initial reaction of Wang Sr was that Yih should not raise any idea of leaving the company at all and that no matter what had happened, things could be resolved without Yih's departure.⁷⁶ Teddy's initial attitude was that the problem with the attitude of Nina could be resolved by divorce. However Yih's reaction to that suggestion was that if Teddy were to divorce Nina, he had better waited until Yih had left Chinachem because Yih did not want to be seen to be the person responsible for their divorce.⁷⁷

3.83 There were also discussions between Yih and Teddy on Yih's selling back his interests in Chinachem to the Wangs. Yih suggested the price of $1 million, and the initial remark of Teddy was that it was too low.⁷⁸ Yih said that that was the first time he heard Teddy saying a price was too low when people was trying to sell him something. Yih's estimate was that at that time the asset worth of the Chinachem group was about $100 million.⁷⁹ He named the much lower price without reference to the actual asset worth because he realised that Teddy always considered money to be a very big thing.⁸⁰ He asked for $1 million because if he had asked for more, Teddy would in all probabilities not agree to pay and it would have taken a very long time to get an agreement and payment. Things would become very uncertain.⁸¹ There was again no question of his selling his shares while remaining as an employee and there was again no question of his quitting as an employee without selling his shares. The former would obviously defeat his reason for raising his resignation and the latter would not be acceptable to Yih either because he would have no capital to start his own business. In other words Yih quoted this low figure because he intended to make an offer to the Wangs which they could not refuse as far as the price is concerned.

3.84 Teddy initially refused in a negotiate with Yih not because he would like to encourage Yih to ask for a higher price for his shares. He was actually trying to dissuade Yih to sell his shares and leave the company by giving him the idea that it was not a wise move to sell the share at $1 million. Later Teddy must have had a careful consideration the actual worth of Yih's shares as he even asked for copies of the initial 1958 agreement to see how much was Yih's actual entitlement from the plastic business as the capital for the real estate business came from the plastic business. Yih was entitled to the two businesses of Chinachem and in fact by 1965 he had been allotted some shares in CUCCL as well.⁸² After some discussions on this matter, by January 1970 Yih knew that Teddy was eventually willing to buy out his interests. Teddy even represented to Yih that the amount of $1 million was the price given to him for the time being and there would be some calculation of the price in the future.⁸³

3.85 However Yih did not want to take any risk of any change of mind on the part of the Wangs, so he prepared the agreement and at the wish of Teddy, Wang Sr signed the agreement with Yih to acquire his shares in Chinachem. This agreement was dated 31 January 1970.⁸⁴ Yih was paid a personal cheque in the sum of $1 million post-dated to 30 June 1970 for his shares. Later on he was asked to exchange that cheque for two, one dated 30 June 1970 for $750,000 and the other dated 28 July 1970 for the balance $250,000.⁸⁵ After the agreement was signed, Yih physically left Chinachem.

3.86 However the Wangs still wanted to see if he could be persuaded to change his mind. While staying at home during the few months after the agreement was signed, Teddy still sent someone to bring his salary to him every month until the end of July.⁸⁶ It must be the case that even after Yih received the $1 million, Teddy would still hope that Yih could change his mind to cancel the sale and come back to Chinachem to work for him. In fact during this period of time, Yih had still worked on the brochures for six Chinachem projects⁸⁷ and together with Teddy he had also attended a very private and confidential meeting with other persons in the property business at the Miramar Hotel.⁸⁸

3.87 The clear intention of the parties must be that Yih would leave Chinachem and would relinquish all his interests in all Chinachem companies. The agreement set out the number of shares in the companies registered in the name of Yih. But in fact the list was not exhaustive as there were some shares in one company within the group that Yih had forgotten about and hence he had omitted to list them out. The defence then made use of those documents provided by Nina, in order to cross-examine Yih on his credibility and memory because there was one company which he had left out in the list stipulated in the agreement.

3.88 That company which was left out in the list was On Lee which CIL had acquired an interest on 19 May 1969, i.e. shortly before Yih had left Chinachem group. However as Yih had said, he would not be foolish enough to leave that company out if he could remember it and he would not leave the matter for a long time until his cross-examination in 2001 and had not claimed any interest for those shares which he actually owned. In other words, he would not deny to have owned those shares when it is very apparent that he was still a shareholder and director thereof when he drafted and signed the agreement on 31 January 1970.

3.89 The documents shown to Yih in cross-examination clearly shows that Teddy made Yih as well as one of the aforesaid Mr Simonson, the expatriate secretary, directors of On Lee and each of them were allotted two shares so as to meet the director share qualification. On Lee used to be a company wholly owned by a Mr Hsu. When Teddy decided to have a joint venture with Hsu, shares were allotted to CIL and its nominees. On Lee, under the control of Mr Hsu, bought land for $1,422,500 on 16 May 1969. Three days later, on 19 May 1969, shares were allotted to CIL, thus indicating that around that time, there must have been an agreement for a joint venture between CIL and Mr Hsu for the development of the land.

3.90 Usually, in the case of joint venture, each joint venture partner would be responsible for his share of the building costs.⁸⁹ On Lee, however, took out a building mortgage on 9 October 1969 to finance his development.⁹⁰ This of course did not necessarily mean that Chinachem would not have enough ready cash to finance its share of the construction costs, as it could well be the case that Mr Hsu would like to finance his share of the construction costs by having On Lee to take out a building mortgage instead of relying on financing from CIL who would usually charge higher interest rate than that on a bank's building mortgage.⁹¹ By then, CIL had never taken any building mortgage itself. Chinachem was quite famous and known to more informed people in Hong Kong that it was the only big building developer which was still running its business on cash basis. Yih had previously testified that CIL did not have any building mortgage during his time with Chinachem. This building mortgage was therefore used to discredit Yih and the defence was, so to speak, trying to make a song and dance around it.

3.91 However, Yih's involvement with this company was very minimal and short. He said he really had had no recollection of any money being drawn out from CIL to acquire interests in On Lee. This was not surprising because the initial payment could well be made by Teddy first as loan to CIL or even no payment had ever been made until after January 1970 and the books of CIL would then be made up to reflect the position at the end of the accounting year⁹² which would be the end of March 1970. By then Yih had already left the company.⁹³ In such circumstances, no money would be drawn from the accounts of CIL and Yih would not have known of the investment. Likewise, if the books of On Lee were continued to be handled by Hsu's side for sometime after CIL joined in, again Yih would not have much impression of this company. According to Yih, he had never come across the situation of Chinachem drawing down on a building mortgage.⁹⁴ I believe him. In fact, even if there was any draw-down on the On Lee building mortgage, it might not have taken place before Yih's departure from Chinachem as the first draw-down could not have taken place until the building had reached the 4th floor level⁹⁵ and On Lee had just acquired the land on 16 May 1969.

3.92 In fact notwithstanding that On Lee shares were not included in the list of shares to be sold in the agreement, the two shares of Yih in this company were registered as having been transferred back to Wang Sr on 1 December 1970⁹⁶ apparently, without Yih's execution of any instrument of transfer since the defence could not produce any. Even if there was an instrument of transfer signed by Yih, Yih must have genuinely forgotten about this and his previous signature on a document to accept the two shares in the first place.

3.93 In the end, I find that the incident concerning On Lee could not cast any doubt on Yih's credibility at all. After all, these events took place over 30 years ago and he was never given any opportunity to refresh his memory with reference to any or all the documents. On Lee left no impression on his mind as evidenced by the fact when he drew up the agreement for the sale of his interests in Chinachem to Wang Sr, he had left out On Lee. If the On Lee investment was of any significance to him at that time, there was surely no reason for him to have left it out. If he deliberately left that out, there is no reason why he did not claim anything on top of the $1 million consideration for On Lee shares.

3.94 Further, that was the time when he was squeezed in the middle, first between Teddy and Nina on purely personal level and, secondly, between Teddy and Mr Wu of Taiwan on the joint venture land development project as the aforesaid. On top of that, he had the very busy daily routine of a large group of companies to handle. He must be very tired indeed when he said he was "sick" at that time. He just wanted to get out of all these unfortunate happenings not created by him but by Teddy and Nina themselves.

NINA'S ACCUSATION AGAINST YIH

3.95 The defence mounted very irresponsible, vicious and hostile attack on the evidence of Yih, particularly on the circumstances of his departure from Chinachem. In summary, the defence case, which was no doubt at the instructions of Nina herself, was that Yih was driven away from Chinachem because of his "misconduct". It was suggested that since his last return from Taiwan, Teddy suspected that Yih had stolen money from him and had orally alleged that Yih had stabbed him at his back.⁹⁷ This was flatly denied by Yih.

3.96 However, the defence through the cross-examination had failed to point to any specific instance which would suggest that Yih had stolen anything. She then sought to show that Yih was in charge of the accounts of the Taiwan joint venture company and insinuated that there was thus the opportunity for Yih to steal and to cover his theft. The reality was that the joint venture company employed someone to be the book-keeper and accountant. Although the system was devised by Yih, the entries were done by the employed staff. Yih, as one of the directors of the joint venture company, did look at the accounts of the company and did draw on a trial balance on one occasion as a kind of audit of a part of the accounts when he was sent to Taiwan. It further transpired that the accounts or ledgers of the joint venture company were drawn up by the employee in Taiwan and sent to Hong Kong every month. This had been under the charge of a Mr Tai Ching Ping in the Chinachem office in Hong Kong, and Mr Tai later on also succeeded Yih as the accountant of the Chinachem group when he left the company.⁹⁸ Thus Mr Tai could have discovered Yih's "misconduct" in the accounts if he had one.

3.97 Furthermore, in September 1999, Nina had already said in one of her affirmations that she was aware that Mr Tai Ching Ping, the accountant succeeding Yih and Mr Lee Yue Ching, a former clerk responsible for the sale of Chinachem flats in Hong Kong had important and relevant information on the circumstances in which Teddy had come to lose confidence in Yih. She said that owing to the pressure of time there and then, she was unable to file such evidence available from Messrs Tai and Lee.⁹⁹ However, two and a half years later when Yih was cross-examined in March 2002, there was still not one single specific instance which Nina was able to put to Yih through her Counsel for his alleged misconduct, cheating, or stealing from Teddy or Chinachem.

3.98 The cross-examination of Yih, who was 76 at the time of giving evidence, was extremely long, excessively thorough and vigorous, if not downright oppressive. He was asked in meticulous details including how much money he brought to Hong Kong in 1951 and how he made his money in Shanghai in those days,¹⁰⁰ as well as how much assets he had when he left Chinachem in 1970. He was then cross-examined in meticulous details on how he made his money in his investment in property at Fung Wong Terrace after he left Chinachem in 1970.¹⁰¹ Documents of some 30 years old relating to the activities in Taiwan were thrown at him without any warning or prior discovery.¹⁰² The explanation for no discovery was that those documents were only relevant to credibility. This amounted to a direct admission that those documents were not directly relevant to any issue in this case. However Yih was able to give a clear account of his explanation on the documents and the underlying transactions relating to them.

3.99 Again, brochures were extracted from files of projects to cross-examine him and again, Yih was able to give a detailed account of his role in the matter, although initially he could not recall the role of the Hong Kong Building and Loan Agency as he was not involved in any negotiation with them. Clearly, Yih was a truthful and able person and he put his heart into his work when he was with Chinachem and that explained his deep impression on things he handled. His memory is extremely fantastic, bearing in mind he is already 76.

3.100 On the contrary, Nina who claimed that she was responsible for assisting in the closing down of the Taiwan investment because it was suffering from heavy losses, and therefore must have gone through the accounts of the business, had failed to produce any evidence on any alleged misdeed on the part of Yih and certainly had not even come forward to support her own wild allegations against Yih after all these unfounded allegations were put (not even suggested) to Yih, nor could she call any witness to support her allegations.

3.101 Furthermore, the accusations of Nina against him were vague and ever shifting. In her affirmation in September 1999, Nina said103 :

Thus the suggestion there and then was that the resignation was directed by Teddy and the shares were simply taken away from Yih.

3.102 However, it must be due to the fact that the discovery in this action revealed the agreement to sell the shares to Wang Sr was properly made, Nina then realized that she could no longer make the accusation that the transfer of the shares was ordered or directed by Teddy. She then changed her version and started making the accusation that Teddy suspected that Yih had stolen money from him and suggested to Yih that he brought up the issue of resignation because he was afraid that his "misdeed" in Taiwan would be discovered. She further made the insinuation that Yih had enriched himself so much from his theft and dishonesty, and consequently he could sustain a lavish life without doing much work since he left Chinachem.¹⁰⁴ The question was put to Yih on Day 124 which was after days of cross-examination on the Taiwan activities when it had become clear that the accusation of theft was not made out. The case was put to Yih in the following terms¹⁰⁵ :

3.103 By then the accusation that Teddy suspected Yih had stolen from him obviously did not make any sense in the light of the fact that Teddy was willing to pay for the shares. This was in any event at a gross undervalue and there has not been any evidence to contradict him in spite of the fact that Nina could easily disprove the same with the books of Chinachem even without giving evidence herself.

3.104 Further, the shares in Chinachem did not actually have a market because they were shares in private companies and could not be transferred without the consent of the board. Furthermore, the long practice of Chinachem had always been that no dividend was declared and unless the companies were wound up, there was not much practical benefit in holding the shares.

3.105 The further suggestion by the defence that because of the suspicion on theft, Teddy had delayed in paying the $1,000,000 to Yih was even more ridiculous. As Yih had pointed out, if indeed Teddy had reason to suspect that he had stolen money from him, he would not simply delay in making payment of the price as Teddy had the record of taking his employee to the police station even that employee had only stolen $7.¹⁰⁶

3.106 The suggestion that Teddy hated Yih so much that he did not even want to see him and hence Teddy asked Wang Sr to deal with Yih¹⁰⁷ was again ridiculous. If there was any truth in Teddy's having reasons to believe that Yih had stolen or had been dishonest, there was really no reason for him not to report the matter to the police even though they were cousins. Furthermore, if he hated Yih so much, he could simply refuse to buy his shares and Yih's investment would simply be locked in the companies. Further still, those companies never paid any dividend and there was no obligation on the part of Teddy to continue to use those companies in which Yih had any shares for any profitable future trading or development projects after Yih had left. At least, Teddy could negotiate a even cheaper price for his shares, say, $100,000 only which no doubt Teddy would have been able to do so if he suspected Yih of having stolen any money from him or otherwise had been dishonest, and the same should also be known to Yih himself.

3.107 The suggestion was made that since Yih's last return from Taiwan, Teddy ceased to trust him. The several days of cross-examination on the affairs in Taiwan did not reveal anything which indicated that Yih had stolen anything or had done anything improper. In the end the suggestion was that since he was in charge of the accounts in Taiwan, he was in a position to steal as aforesaid.¹⁰⁸ It was also put to Yih that Teddy "made the accusation" against Yih because both the Max Factor joint venture business and the plastic raw materials business were profitable but there was never any profit given to Teddy.¹⁰⁹ As for the Max Factor business, the position was that the only involvement of Yih was that at the request of Teddy, he tried to ask Mr Wu if he was prepared to admit Teddy as a partner but Yih was not successful. Thus Teddy's participation therein must be sometimes later. In any event it also transpired that it was not even suggested that any profit of Max Factor business had been paid to Yih and a complaint was eventually reduced to the suggestion that Yih had stood on the side of Wu and Yih had told Teddy that there was no profit.¹¹⁰

3.108 In fact Teddy had never asked Yih anything about the profit of Max Factor investment,¹¹¹ and before he left Chinachem, he had never heard of any dispute relating to the Max Factor business.¹¹² While there was litigation between Teddy and Mr Wu over the profit from the Max Factor business, that was only much later in 1975.¹¹³ In this respect, Nina ought to have documents to verify the timing of the Max Factor litigation but she was unable to produce any document to show that the recollection of Yih was wrong.

3.109 In respect of the plastic business, Mr Wu no longer needed to purchase the plastic materials from Chinachem in Hong Kong or from Chinachem's supplier in the U.S. as the supplier itself had set up an operation in Taiwan. Again, no document was produced from Chinachem to contradict Yih. Finally, there was yet another new invented case on the allegation of suspected theft and cheating. The defence new case was put in the following way¹¹⁴ :

3.110 In the end, Nina again had not been able to point out those other pieces of land out of which Teddy had suspected that Yih had made a profit or had cheated him or stolen from him through Wu. Yet if there was any truth in such an accusation, there was no reason why the defence would not be in a position to contradict Yih by documents or a witness. In fact, as aforesaid, Teddy had put Yih in an extremely embarrassing position in respect of the Taiwan investment as Yih had "guaranteed" for Teddy to Wu, Teddy's insistence on changing the approved plan to make the project more profitable had the dire consequence, as Yih had heard later, that Wu eventually ended up in jail.

3.111 Apart from the aforesaid solid evidence from Yih, the other solid facts which completely negative Nina's accusation were the acts of Teddy himself. Since Yih's visit to Taiwan, in August 1968, he gave Yih an unfettered power of attorney which had never been revoked until Teddy's disappearance in 1990. This would only be revoked by operation of law upon Teddy's unfortunate death. Instead, Teddy carefully put the power of attorney together with his 1968 Will and other important documents into the safe deposit box, to which only he and Yih had access but not Nina. The accusation and suggestion that Teddy had lost all his trusts on Yih was simply an untruthful invention of the defence.

3.112 In conclusion, I must say that Nina's accusations against Yih were not only groundless but were shifting all the times. Even when Nina did not give evidence, those accusations illustrated that her credibility was poor and she constantly made things up in order to suit her convenience. All this cross-examination was just a waste of time, which no doubt was undertaken at the instructions of Nina.

3.113 On the contrary, the whole episode of the cross-examination of Yih did also confirm his evidence on, inter alia, one of the main reasons for his leaving Chinachem, namely, that Nina was very hostile to him, so much so that even after 30 years Nina was still making up irresponsible accusations against Yih to damage his reputation. However, Nina's hostility was also contributed by the information she received from Teddy who deliberately misinformed her of Yih's involvement in the discovery of her misbehaviour and had advised him on employing a private detective to investigate her. Unfortunately for a long time, Nina thought it was true. The bare truth is not only that it is not true, but on the contrary Yih had always been a faithful and honest cousin and employee and co-shareholder not only to Teddy but also to Nina. These are the last words I would like to use to end this sad period of the 1960s concerning the Wangs and Yih which was ended by Yih's departure from the Chinachem group.

3.114 In the next chapter concerning the period after 1970, I shall start with the role of Nina since then. But before I do, I think it is convenient to consider here also those serious allegations of Nina against her father-in-law and in turn his credibility before I end this chapter on the 1960s.

NINA'S ACCUSATIONS AGAINST HER FATHER-IN-LAW

3.115 Nina made a number of allegations against her father-in-law, some of them were put or suggested to Wang Sr through her Counsel and some of them were made in her affirmations before the Court. Nearly none of them were substantiated by direct viva voce evidence either from her or from her witnesses. These allegations were intended to show that Teddy would not have made any testamentary disposition in favour of his father.

3.116 Nina alleged that Teddy "hated" his father and a number of reasons were given therefor. First, it was suggested that Wang Sr was reckless in the conduct of the business resulting in the loss of a lot of money and Teddy was forced to terminate his study in order to conduct the family business. It was also suggested that Wang Sr had borrowed a lot of money and Teddy would have to repay his debts.

3.117 In an attempt to substantiate these points, Nina introduced the evidence in respect of the dealing between Wang Sr and his old time partner, Mr Mau Kai Chee (牟介之) with a view of showing that Wang Sr still owed Mr Mau a lot of money and Mr Mau was chasing after him. Wang Sr's attitude was that although he had not fully paid Mr Mau the money for the acquisition of his shares, the IOU note dated 26 January 1952¹¹⁶ produced by the defence was forged. The defence however had never been able to prove the note nor had Nina adduced any evidence as to the source of the note. Certainly the debt would have been statute-barred and was unenforceable either by 1958 or six years after one week of the date of demand by notice in accordance with the stipulation in the note, and demand had been made either in 1961 or some time later. Therefore the six-year period would have expired long before the date of the trial herein. Hence there would not have been any question of his legal obligation to pay the alleged debt since then.

3.118 At any rate, there was never any suggestion that any of the debts of Wang Sr had been paid by Chinachem. Nina was not able to question Wang Sr on any specific instance where it was suggested that any debt of Wang Sr was paid by Chinachem or by Teddy personally himself.

3.119 Of course Wang Sr denied that he owed people any money that would have required Teddy or Chinachem to pay on his behalf. Certainly during the time when Yih was the accountant for the Chinachem group, there was neither instance of any such payment nor instances where people went to the office of Chinachem to ask for payment of Wang Sr's debts.

3.120 It is not clear whether there was any arrangement between Wang Sr and Mr Mau similar to the arrangement between Wang Sr and Mr Koo Lam Hing (顧林慶). In or about the same period of time when Wang Sr was travelling between Hong Kong and Shanghai before the Korean War, the supervision of the Hong Kong Branch of Wing Wah was entrusted by him to Mr Koo who had a small share of Wing Wah in Hong Kong. Apparently Wang Sr gave the ownership of the Hong Kong branch of Wing Wah to Mr Koo in exchange of his shares of Wing Wah in China. That should be in 1948. Was there a reverse arrangement between Wang Sr and Mr Mau as he was apparently complaining also that he was left behind in the Mainland and therefore had to shoulder the debts of the headquarter company over there? However Wang Sr did not say there was such an arrangement.

3.121 Further the situation of this IOU note might well be similar to the situation in the case of The Estate of Yang Sen-hui & Others v. Pao Yuen Tung Hsing Yieh Co. Ltd.¹¹⁷ The debt in the IOU pursued by Mr Mau would in any event be barred by laches as decided in the aforesaid case in which Leading Counsel for the defence was also involved and therefore should be familiar with the facts therein.

3.122 The defence categorically said that this IOU note was only concerned with the credibility of Wang Sr. In other words, it was not directly relevant in this case except as to the credibility of the plaintiff only. In the end, I find the whole line of cross-examination is just a waste of time.

3.123 The defence also relied on the report in one of the issues of the Next Magazine¹¹⁸ as supporting her allegation that Teddy was forced to terminate his study because of the poor financial position of his father's business. This is of course untrue as aforesaid. There was no reason or justification for Teddy to hate his father for his expulsion from St. Stephen's College earlier in September 1952. In fact his father was kind enough to cover this dark side of Teddy for many years, which was not even known to Nina herself. Thereafter he had accommodated Teddy by offering a job for him in his own company. The position of Wang Sr was such that, had Teddy been qualified to study abroad, he could definitely support him to further his study in the States. In fact Teddy was trying hard or just too hard to get admitted into Drew University in the States. Should he succeed in his scheme, he would have been admitted to the University over there.

3.124 This episode of the reason for Teddy's leaving school revealed that Nina was trying to make up stories without realizing that there was strong documentary evidence to show her up since she did not know the true reason for Teddy's cessation of schooling in St. Stephen's College. However Teddy might or might not have told Nina that he ceased studying because the Korean War had affected his father's business and he was forced to leave school also because his father had lost money in his business. There is, however, no justification for her to suggest that Teddy hated his father.

3.125 Further it might well be that Nina thought that she could get away from such wild suggestion as Teddy would not be here to contradict her and she might feel secured in making such allegation by relying on the report in the magazine which appeared to be based on an interview with Wang Sr. However, what she would not have anticipated was that Teddy had committed forgery and St. Stephen's College had kept a good record on its students for a long time. She probably did not realize that the depth of love between Wang Sr and Teddy was such that even in 1999, in an interview with the press after the death of Teddy, Wang Sr had not even revealed the infamous but true reason for Teddy's termination of his schooling in order to protect the reputation of his son. Wang Sr was not under oath at the time of the interview. Consequently the report in the magazine that Nina thought was a trump card she was holding in making this accusation, also fell apart.

3.126 The second alleged reason for Teddy's hatred of his father was said to be Wang Sr's affairs with a Madam Cheung. It was said that Teddy loved his mother a lot and hence when he found out that Wang Sr had lived with Madam Cheung he felt offended and hated his father for having another woman.

3.127 However the affairs between Wang Sr and Madam Cheung started before 1959 when Teresa was still living with the family in Hong Kong. It was the time when Teddy's mother, Madam Ruen, had seen fit to make a trip to Taiwan to look for her husband but she came back because of the letter of Teresa complaining about Nina. The existence of Madam Cheung as the girlfriend, mistress or concubine of Wang Sr could not have been unknown to Teddy by late 1950s. At any rate, by about 1965 in the next period he must have known that Wang Sr was living together with Madam Cheung as according to the evidence of Yih, there was an occasion around that time when Yih visited Wang Sr and Madam Cheung at their place and saw Teddy and Nina there. They had a meal together. There was nothing strained or wrong in the relationship between Teddy and Wang Sr.

3.128 Furthermore, during the time when Nina went to Taiwan during 1968 and 1969, Madam Cheung went to Teddy's place to tidy the place and to walk his dog.¹¹⁹ In fact this aspect of the evidence of Yih was not challenged in the 20-days' cross-examination of him.

3.129 Teresa also testified that in 1973 she saw the photograph of Madam Cheung on the desk of Teddy who showed the photograph to her telling her that she was the concubine of their father. Teddy was not offended and confirmed to her that he had met Madam Cheung and had been to her place for meals before.¹²⁰

3.130 Apart from the solid evidence from Wang Sr, Yih and later Teresa, there is still the most telling piece of evidence from Teddy to show that all these allegations by Nina were false and were simply made up by her. If indeed Teddy disliked or hated Wang Sr for whatever reasons, why should Teddy make the 1960 Will in those terms giving half of his estate to his father and handling over the will to him for safe-keeping? Surely by 1960 if there was any truth in the suggestion that Teddy had resented his father for having had to make him to cease his study and to come out to work to pay off his debts, one would expect that he would feel most resentful in the first few years of his tender age for having to cease schooling right after the start of his academic term in September 1952.

3.131 Yet further in 1968, when he made his second will, the 1968 Will, he gave all his estate to his father. It is also important to note that in either of the two wills, Teddy had not made any provision for his mother. Thus in the end I find all these allegations against Wang Sr were not true or otherwise unsubstantiated at all.

THE CREDIBILITY OF WANG SR

3.132 Even at an advance age of over 90, Wang Sr gave evidence to support his case and presented himself for cross-examination which lasted for some seven full days. The area covered by cross-examination was wide and inquisitive including questions as to whether he had ever told a lie¹²¹ and whether he had ever owed any people money. His evidence covered his relationship with his son Teddy and the circumstances leading to the 1968 Will as well.

3.133 In the cross-examination by the defence, all sorts of allegations were made against him, such as his being in debt, imprudence in business and womanizing, etc. Although he did make some mistakes in his evidence, those were due to his confusion on the events or the questions asked of him, or his advanced age. He readily apologized to Nina for taking an unfair view of her, such as in accusing her of opposing to his application for maintenance whilst in fact her solicitors did not actually take part in the proceedings and the letters written were merely by way of observations only. His apology was genuine and prompt even when Counsel for the defence used strong words and accent in the question trying to get an apology from him.

3.134 His Counsel submitted that despite his clumsiness at times in giving evidence, he is a credible witness. I however consider that his clumsiness is, on one hand, much better than most people of his advanced age. On the other hand, this kind of "clumsiness" is a sign of his honesty instead. Some memory really failed him but he was not trying to make up anything. He was actually trying very hard indeed to recall the event and answer the question as honest as he could as in the case of the IOU note in favour of Mr Mau. But he really could not remember what had actually happened in those days. I consider him to be a credible witness. 

3.135 The period of the 1960s also ended with a sad note of Yih leaving the Chinchem group. I shall now consider the next period in 1970 leading up to 1990.

Footnote:

1 T110:34:19-24
2 pp.381-382, F1
3 T110:37:5-9
4 p.351 and p.360, F1
5 T110:45:9-14
6 T115:31:2
7 T116:21:24 to 22:4
8 T116:22:25
9 T116:24:6-10
10 T116:30:14
11 T116:32:18
12 T116:33:5
13 T116:37:11-14
14 T116:49:13-15
15 T116:49:18
16 T120:56:1-4
17 T120:56:25-57:9
18 T120:59:16
19 pp.3313-3336 and pp.3342-3347, G11
20 pp.3348-3350, G11
21 pp.3351-3369, G11
22 T132:64:9-15
23 T110:47:11
24 T132:63:24
25 para.28, p.288, F26
26 p.1796 and p.1799, G5
27 p.190, F1
28 pp.190-192, F1
29 T5:16:6
30 T110:60-62
31 T110:64:23-65:4
32 p.194, F1
33 T5:21:10
34 pp.29-36, F1
35 p.37, F1
36 p.38, F1
37 p.15, F1
38 In this lengthy judgment, finding of facts would not be made unless it is relevant and necessary. Here these findings
    of facts are certainly relevant and necessary to explain the 1968 and subsequent acts of Teddy and the consideration
    of whether the four questioned documents are genuine or forged, including Document D where it was stated "One life one love".
39 T13:6:16-18 and 20-22, all emphasis in all the quotations in this judgment are mine unless otherwise stated.
40 T13:7:15
41 T119:12:5-10 and 19-20, T130:36:17-25
42 T13:30:12-20
43 T13:46:13-22
44 T13:41:3-6
45 pp.193-194, F1
46 T124:20:12-16 and T132:50:9
47 T132:51:16-25
48 p.17, F1
49 para.33, p.289, F26
50 para.35, p.290, F26
51 p.290, p.299 and p.301, F26
52 p.194a, F1
53 p.198, F1 the lower receipt
54 para.37, p.290, F26
55 p.304 and p.306, F26
56 p.198, F1, the upper receipt.
57 p.295, F26
58 p.296, F26
59 paras.20 and 21, pp.296-297, F26
60 p.63, F1
61 T2:21:19-25
62 T124:17:14-18:6
63 p.157, F1
64 pp.158-168, F1
65 pp.169-170, F1
66 pp.173-177, F1
67 pp.135-137, F1
68 p.135a, F1
69 T111:1:5-2:24
70 T111:19:18-21
71 p.3370, G11
72 T110:65:12 and 66
73 T110:67:23-68:7
74 T111:3:19-22
75 T111:4:15-23
76 T111:6:4-12
77 T111:8:4-12
78 T111:7:15
79 T132:41:8-13
80 T122:36:23
81 T122:40:22-41:15
82 p.356, F1
83 T111:10:11
84 p.430, F1
85 T111:11:6 and T121:67:1-10
86 T122:63:11-15
87 T116:24:16
88 T122:89:16-93
89 T132:22:8
90 p.3257, G11
91 T132:31:5-14
92 T132:30
93 T118:58:10
94 T132:14:10
95 p.3266, G11
96 p.2141, F8
97 T122:50:23-51:4
98 T126:18:2-19:21 and 31:5-35:13
99 p.2113, F7
100 T111:47:16 and at ET at C SEQ
101 T124:24:15-64:16
102 pp.3370-3460, G11
103 p.2113, F7
104 T127:25:25
105 T124:15:22
106 T122:58:4-15
107 T122:60:23-25
108 T126:40:9
109 T126:40:17
110 T127:23:24-24:17 and 47:17-53:20
111 T127:27:7
112 T127:9:19
113 T127:10:19
114 T130:39:23-40:9
115 Ng is the Cantonese pronunciation of Mr Wu's surname吳
116 p.1587, G5
117 [1983] HKLR 124, the facts of this case will not be listed here due to the length of this judgment.
118 p.1627, G5
119 T111:19:2-7
120 T133:59:8-18
121 T8:37:21

Chapter 4 - The Post-1970 Period

4.1 The post-1970 period began after the departure of Yih from the Chinachem in January 1970. It can also be called "the post-Yih period in Chinachem". It is not disputed that Nina thereafter assumed a much more important role in the affairs of Chinachem. It is also not disputed that the relationship between her and Teddy had improved from those incidents which happened in the last decade. However the allegation of her involvement in Chinachem in the 1960s was a deliberate confusion with the important role of Nina in Chinachem only after Yih had left. This can be seen from the line up of witnesses in this trial.

4.2 On the plaintiff's side, there were Wang Sr, Yih and Teresa. All of them in particular Yih said that Nina did not have an active role or specific job description in the Chinachem group. Yih's evidence was only concerned with Nina's role in Chinachem after her marriage in 1955 up to the time Yih had left in January 1970. No one has ever said that Nina did not play any or any important role in Chinachem up to 1990.

4.3 On the defence side, there are the following witnesses, namely :

4.4 Accordingly, all these witnesses called by the defence confirmed my impression that the good and loving relationship between the Wangs couple was only observed by those defence witnesses in the post-Yih period. They were outsiders and not members of the Wangs family.

4.5 The position of Teddy and Nina in the post-Yih period is best sum up by the observation of Mr Cecil Chao called by the defence¹ :

4.6 Mr Chao's company Wah Kwong had many joint venture projects with Chinachem until at least the mid-1980s. The Wangs couple gave him the impression that overall both of them were in charge of Chinachem.² But then he said that Teddy adopted the tactics of saying things like "I would go back to consult my spouse" so as to enable them to have a second thought.³

4.7 Mr Chao did not have the impression of Mr Alan Kwan but he got the impression of Mr Edwin Cheung in Chinachem. It is not surprising because Mr Alan Kwan only worked for a much shorter period in the early 1970s for Chinachem. Mr Kwan might not have more chances of meeting joint venture partners of Chinachem in his short stay in the company, at least not as much as Mr Edwin Cheung who had worked for the company for six solid years. During this longer period, Mr Cheung could have developed a more closer relationship with the Wangs couple and therefore had more exposure to other joint venture partners, like Mr Chao.

4.8 As aforesaid, Mr Donald Cheung said in 1968 there were some problems in the marital relationship of the Wangs couple, and Nina went to San Francisco thereafter. In the later period, they were often together after Nina had returned from San Francisco.

4.9 Mr D. Cheung said, as it has been pointed out hereinbefore, when it came to decision-making, it was ultimately Teddy to make the decision although he would consult his wife and others.⁴

4.10 Mr Chao also said in evidence-in-chief to the effect that Teddy also liked to attend meeting and meetings were an important part of his life. In fact Teddy attended more meetings with him and Nina only attended some of the meetings.⁵

4.11 It is fair, therefore, to say that Teddy would not shy away from attending any meetings. He would obviously attend important meetings with his business partners when major decisions would have to be made. As Mr Donald Cheung observed, the kingpin was still Teddy who made the ultimate decision. This view was also supported by Mr Edwin Cheung.

4.12 In respect of the relationship between Teddy and Nina, Mr Edwin Cheung said⁶ :

His observation of the ranking between Teddy and Nina must be correct as he was a highly trusted and close employee of Chinachem in this period, save and except Yih in the previous period.

4.13 The next question which both sides in this case would like the Court to consider is whether Teddy had complete and unreserved trust in Nina. I am afraid in dealing with marital relationship, sometimes the position is not as clear as black and white, i.e. whether the answer is positive or negative or even to what degree of trust. Sometimes for some couples, the position is changeable like a weather-cock in the wind in English or in Chinese like the price of fresh seafood which will change everyday.

4.14 The crucial question is whether the trust of Teddy in Nina was so unreserved and complete that when it came to making a will to deal with his properties after his death, the only rational decision he could make was to give all his estate to his wife. Even if he had that intention or desire, for the purposes of argument only, the further question is : whether he had successfully done so before his death when he was having such an intention.

4.15 All witnesses called by the defence are only "outsiders" of this family and to them it might well be that, from their observation, the trust between the two of them was almost total.⁷ I can accept that to many outsiders, their relationship can be described as good. They appeared to be back to a normal loving couple again.

4.16 However it should be recalled that throughout 1968 and possibly in 1969, he had sent Nina to Taiwan and entrusted her to take care of his investment over there. From the letter of Yih dated 28 March 1968,⁸ it was clear that Nina had come back from Taiwan the day before. Teddy must have trusted her to represent his interest when she was sent by him to Taiwan. However unknown to outsiders or it might well include Nina also, the solid truth is that, just a few days before that, on 15 March 1968, he had made his 1968 Will depriving Nina of all her inheritance under the 1960 Will. Thus, it supported the contention that, as submitted by the plaintiff's side, the fact that Teddy would entrust Nina to participate in his business or even to act as his deputy in business and live as a loving couple with her, did not mean that he would be prepared to give her his property upon his death. Further, it will be seen later herein, Teddy had instead made a lot of provisions for her throughout his life up to 1990.

4.17 Furthermore, even after Yih had left Chinachem, according to Yih, Teddy was still concerned with some alleged or suspected improper conduct of Nina way back in the years between 1966 to 1968 when he and Nina were living at Yau Yat Lau in Yau Yat Chuen. Yih said in 1974, Teddy still arranged to meet him at a coffee shop in Central with a view of asking Yih to investigate into something he heard from his mother which would suggest that Nina might have some improper relationship with a Mr A when their matrimonial home was at Yau Yat Lau.⁹ Yih in fact told Teddy that he should not be asking for trouble himself and that Yih did not want to get involved in these matters. This is indicative of the different characters of Yih, being kind and peace-making with that of Teddy who was suspicious and inquisitive to say the least. Meanwhile of course to all outsiders, the Wangs couple had appeared to be an extremely loving couple working and doing business together.

4.18 Further Teddy must have visited the safe deposit box, at least on 22 October 1975 and he must have realized or refreshed his memory that he had the 1968 Will in the box. But he had chosen not to disturb the 1968 Will, although he had ample opportunity to revoke this Will, or to make alteration or an amending codicil to his testamentary disposition. He did not do any of these things even after the apparent improvement of their relationship. To other outsiders, Nina closely assisted him in his business including the high profile appearance in the Diary Farm take-over battle.

PROVISIONS FOR NINA BY TEDDY

4.19 From the various companies searches together with other documents and bank accounts, it is quite clear that Teddy had been providing Nina with either inter vivos gifts or they had agreed, expressly or by necessary implication, on how the assets should be divided or held by each of them. There are a number of matters which are still in litigation between Nina and the administrators and/or Wang Sr himself. However, no matter what view one would take, whether Nina on one side was right in respect of her contention of ownership of certain properties or the administrators and/or Wang Sr on the other side, Nina had been adequately provided with enormous assets either by way of gifts or by way of reward for what she had done in this empire which Teddy and she, and later on she alone had built. I shall state shortly hereinbelow those items of assets.

4.20 On the negative side, in the aforesaid series of actions taken by Teddy in 1968, he had removed Nina as one of the beneficiaries of his estate. He had also caused funds to be cut off from Nina. This was apparent from the other documents he kept in the safe deposit box :

4.21 However in the later period, Teddy started to make provision to Nina but not by way of testamentary gifts. During this period between 1970 to 1990, Teddy had made generous inter vivos provisions for Nina. In or about 1970 the flagship company of Teddy was CIL. Since about 1965, the majority shareholder of CIL and also CUCCL had always been Christoban. The other shareholders (except Teresa and Yih) merely held shares to be qualified as directors. Of course as a result of the sale of the shares by Yih in 1970, 160 shares in CIL and 100 shares in CUCCL had been transferred to Wang Sr. As for Teresa, she continued to hold 400 shares in CUCCL and 50 shares in CIL. Apparently at the time when Wang Sr asked all his children to transfer the shares to Christoban, Teresa was abroad. At the moment, there is a dispute as to who actually beneficially owned Christoban and this issue is not the subject matter of the present proceedings. Nina contended that Christoban at all times belonged to her beneficially.¹⁷

4.22 It is clear from the evidence of Mr Edwin Cheung that since the second half of 1970s, CIL was faded out as a flagship company in the group and instead one Chime Corporation Limited ("Chime") was used as the flagship company. Thus by the 1980s, CIL and CUCCL were no longer the major asset holders within the group. Chime was incorporated on 14 February 1973 with Wang Sr and a Mr Foyn (the expatriate secretary) as the subscribers therefor.¹⁸

4.23 A few months afterwards, on 20 July 1973 Mr Foyn transferred his subscriber shares to Teddy.¹⁹ Sometime in 1976 or before, the capital in Chime was re-organized by dividing the share capital into A shares and B shares. The issued capital of Chime was then 20,000 A shares of $100 each and 30,000 B shares of $1 each. Chime issued 19,998 A shares to Mr Tai Ching Ping but no B shares were issued. Hence on the face of the record, since at least from 31 December 1976, Chime was owned as to :

4.24 No one suggested that Mr Tai would be holding the majority shares of 19,998 in his own right. In fact it was not maintained by anyone that he held the shares beneficially at all. There is a dispute between the administrators and Nina as to whether Mr Tai held those shares for Teddy or for Nina and again this matter is not a subject issue in these proceedings.

4.25 Nina became a director of Chime in 1977,²¹ but even by then she did not hold any shares, and subject to the disputed beneficial ownership in the 19,998 A shares held in the name of Mr Tai, she had no interest in the flagship company at all. But of course, if she were right in her contention that all those A shares held by Tai were held for her, then apart from the nominal 1 share, Teddy would have no interest in the flagship company at all at that stage.

4.26 On 27 October 1980 there was another movement in the capital structure of Chime. This time, it has a lot to do with Nina's brother coming to Hong Kong and Teddy wanted to assist him in his immigration by putting assets in his name. On that day Wang Sr's 1 share was transferred to Teddy, but by then Wang Sr had already ceased to be a director of Chime for some time. Teddy and Nina were each allotted 2,000 A shares and 12,000 B shares. Nina's brother Mr Gong Xian Xin (龔咸心) and his wife were each allotted 3,000 A shares and 3,000 B shares. At the same time, Gong Xian Xin and his wife and also Tai were also made directors.²² Mr Gong is one and the same person as Dr Kung Yan Sum (龔仁心). The Shanghainese pronunciation of (咸) is ("yǐn") which is somewhat similar to the Cantonese pronunciation of (仁). He changed his name after he came to Hong Kong and passed the licentiate examination for medical practitioner. Again there is an issue as to whether Gong Xian Xin and his wife held their shares in Chime in trust for Teddy or Nina, which is also the subject matter of other proceedings only.

4.27 As to the 19,998 A shares held in the name of Tai Ching Ping, there were some disputes as to whether it had been transferred to Teddy or Nina in 1989. On Nina's case, at the direction of Teddy, those shares were transferred to her by Tai,²³ although in an annual return for the year ending 31 December 1989 signed by Teddy and filed in the Company Registry on 30 January 1990, those shares of Tai had became registered in the name of Teddy and not Nina.²⁴

4.28 Sometime in August and September 1990, by three further allotments, Nina was allotted with a further 15,000,000 of B shares in Chime.²⁵ This allotment was challenged by Wang Sr and also the administrators as being a wrongful allotment to dilute Teddy's shareholding. Nina's justification for the act was that Chime owed Chritoban $1.48 billion interest-free loan. The bankers of Chime had expressed concern over the indebtedness of Chime to Christoban because of Chime's small capital. So there was a need to increase the capital of Chime by the issuance of 15,000,000 B shares which she took up at a total premium of $1.5 billion.²⁶ Her explanation had not been accepted by the administrators and there is again currently litigation between Nina and the administrators on this issue.

4.29 In any event on the basis of Nina's version on the various ownership of the shares under dispute in Chime and Christoban (which Wang Sr would not accept as true), it is more than clear that Teddy had in his life time made more than generous provisions for her. This would be so especially if those 19,998 A shares registered in the name of Tai Ching Ping were held in trust for her and Christoban was owned beneficially by her. This would effectively mean that between at least 1976 to 1980, the flagship companies of the group were virtually owned and controlled by Nina according to her version, and Teddy had in fact virtually given her everything and if Teddy were to die there and then, there would be very little left in the estate.

4.30 On Wang Sr's contention of the true position of the beneficial ownership of the shares, then even assuming that Nina is to be found to have no interest at all in Christoban, that would not significantly affect the provision to her because by late 1970s the flagship of the group had already been changed to Chime. Since 1980 on the assumption that Tai's shares and the shares held by Nina's brother and sister-in-law were all held for Teddy, Nina would still have been given 6.67% of the A shares and 40% of the B shares. In terms of voting rights, she would be holding 23.33% of the voting rights in the flagship company.

4.31 It is important to note here that by the 1970s, the Wangs couple must have become seasoned, experienced and sophisticated businessman and businesswoman. They must have known the principles of companies being controlled by the shareholders and directors, although it appeared that they chose to run the companies in a traditional Chinese way.²⁷ It is also important to bear in mind that according to a conservative estimate of Mr Edwin Cheung, by 1980 Chime's worth was already one thousand million or one billion.²⁸

4.32 On top of the equity in the assets held by companies controlled by the flagship company, there are many other companies holding valuable assets to which Nina and Teddy were holding equal shares. The long list of such companies in five pages was made out and produced by the defence.²⁹

4.33 Furthermore on top of the aforesaid valuable assets, there were numerous joint accounts opened by Teddy and Nina where Nina would have a right of survivorship. Nina had disclosed only some of them.³⁰ According to Mr Edwin Cheung, the main deposits were in their joint accounts, and they held such accounts in the Bank of Canton, Continental Illinois Bank, West LB Asia Ltd, and Chase Manhattan Bank.³¹

4.34 On the first occasion of the kidnap in 1983, there was no difficulty in drawing out $75 million from their joint accounts and facilities by Nina.³² Again in 1990 when Teddy was kidnapped for the second time, Nina had no difficulty whatsoever in raising the princely ransom monies. The Chinachem group as aforesaid was well known to be cash rich in those days and the only major property developer doing its business on cash basis.

4.35 From the schedule of properties that the administrators were able to ascertain there was only one bank account with the Bank of Canton in Teddy's name, thus indicating that most of the bank accounts of Teddy in Hong Kong were joint accounts so that the balance would be subject to the law of survivorship and would not form part of the estate.³³ This would also mean that the other account holder being Nina, Nina would have all the monies therein by operation of law.

4.36 Accordingly during the lifetime of Teddy, he had already made adequate provisions for Nina. Upon his sudden death, there could be no great problem for Nina to continue with the business as she had been made directors and shareholders of the major companies. Consequently, it can be safely inferred that Teddy would probably feel that even if all the shares of him were left to Wang Sr, as the latter got older, it would be increasingly unlikely that he would physically interfere with the running of the companies which he had not done for many years since about 1965. The brothers and sisters of Teddy had shown no interest in the business of Chinachem whatsoever. Teddy had also put Nina into a comfortable position so far as cash is concerned.

4.37 Further it is not the case that Teddy could have forgotten about this 1968 Will. First, as it had been pointed out earlier, he must have been reminded of it in October 1975 when he went to open the safe deposit box. Then the occasion in 1985 when on behalf of Messrs F. Zimmern & Co., Deacons offered to return his copy Will, by a letter addressed to his solicitors Messrs Ip, Ku & Stoppa. Thus he must be reminded of the 1968 Will again by them. The inter vivos provisions for Nina and also the fact that Teddy had left his 1968 Will unchanged for so many years are strong factors indicating that his good relationship with Nina did not mean that he would have made any further testamentary provision for her. Even if he had that intention, it does not mean that he had successfully done so. Of course whether he had successfully done so in the context of this case must be meticulously scrutinized. In the end, it is fair to conclude that the improved good relationship and generous inter vivos provisions would only indicate that Teddy would like to benefit Nina by inter vivos provisions only and not by testamentary provisions.

THE ABORTED TRUST ARRANGEMENT RIGHT UP TO SHORTLY BEFORE TEDDY'S KIDNAP

4.38 Nina had given discovery of some documents relating to some tax avoidance arrangements involving the use of trust. There was no evidence adduced to show how exactly these documents fitted into the financial arrangements of Teddy and certainly no relevant evidence was adduced to show any relationship between those documents and the testamentary intention of Teddy.

4.39 The plaintiff's stance is that the defence in this action had not given full discovery of all the relevant documents. In fact in her various lists of documents up to and including her 12th list of documents filed on 16 April 2002, Nina had deliberately left out the standard paragraph 5 designed to state that the list disclosed is exhaustive. The form of the list and the wordings are prescribed by Order 24, rule 5 and there could hardly be any excuse for excising these all-important paragraphs from the lists.

4.40 When this irregularity was discovered and pointed out, the excuse put forward by her was that when the earlier lists were filed, things were done in a hurry and the defendant's solicitors could not feel that they could advise their client to include the statutory paragraph 5 into the list and subsequently the lists filed were based on the same format.³⁴

4.41 However, the explanation was both lame and disingenuous. When Nina took the liberty of filling up to the 6th list on Day 5 of the hearing, the plaintiff applied for an order that the defendant should verify her list and in particular that the list was exhaustive.³⁵

4.42 The defendant did not oppose to this application and the Court made an order for the lists to be verified as well as an explanation to be given for the late discovery. The defendant then asked for an extra day over and above the weekend to prepare the affidavit in order to deal with the matter properly.³⁶ The form and content of an affidavit to verify the lists are again prescribed by Order 24, rule 5, Form 27 and in relation to paragraph 5 of the list, it would require the deponent to state that the statement in paragraph 5 of the list was made to the best of the deponent's knowledge, information and belief. It is thus clear that in making the affidavit in purported compliance with the Court's order, the defendant must have been made aware that the all-important paragraph 5 of the list was missing.

4.43 However, to fudge the issue, the defendant took the unusual course of just following the statutory form of the affidavit in relation to paragraphs 1 to 4 only again.³⁷ Thereafter, the defendant filed the 7th to 12th lists all in the same form without stating that the list was exhaustive. Eventually when the irregularity was discovered, the defendant had filed an affirmation rectifying the defect. However, in the circumstances of this case, the affirmation could not be taken on its face value. Moreover, throughout this trial there were many instances of the defendant's deliberately withholding discovery of the relevant materials and only producing documents which she thought would advance her case but not those which would support the case of the plaintiff. Some of the documents were only produced in cross-examination of the plaintiff's witnesses. Since the defendant did not give evidence, there was no opportunity for the plaintiff to cross-examine her on her discovery at all.

4.44 Even assuming those documents disclosed by Nina in respect of their intended trust arrangement were exhaustive, it could be seen that the documents fell into two periods. The first related to the year of 1987 between July and August.³⁸ This related to some discussions with one Mr William Lam relating to the use of a Canadian Trust Corporation to hold assets. There was nothing in any of the documents to record any intention on testamentary disposition on the part of anyone, let alone Teddy. The document at G1-151 expressly stated that "estate duty aspect is also to be considered" but there was nothing to indicate that this was ever considered. It appeared that apart from Nina and this Mr William Lam, Nina's then solicitor, Mr Fred Kan was also actively involved. Even if Nina decided not to give evidence herself for whatever reason, there is no reason why she could not call Mr Fred Kan to explain the arrangements then.

4.45 The second batch of documents spread from 7 August 1989 to March 1990.³⁹ This period coincided with the time after 4 June 1989, i.e. the Tiananmen Square incident which had affected severely the confidence of the Hong Kong people most at that time. As one can see the enthusiasm dropped very quickly. Apart from a statement in the letter of 7 August 1989 where Mr Trace of Private Capital (Asia) Ltd recorded his first reaction in a meeting with the Wangs, there was absolutely nothing in these documents to touch on any inheritance or testamentary disposition of anyone at all. The only relevant statement in the letter of 7 August 1989, was that apparently the Wangs were concerned that there were no family dependants to inherit their wealth. Their concern was not anything like testamentary disposition or making provision for the saving of estate duty. This concern was where to put away their assets in other jurisdiction in order to get the best tax advantage. Assuming that Teddy had told Mr Trace that he had no family dependants to inherit his estate, Teddy might well have been asking Mr Trace to design a scheme in the future and Teddy would probably anticipate that by the time when the scheme was implemented, Wang Sr being his old father would have pre-deceased him.

4.46 These documents dealt with inter vivos arrangement of ownership of assets. It was stated in the basic assumption that the ultimate beneficial owners of the property subject to the arrangement would be Teddy and Nina themselves.⁴⁰ The arrangement is therefore wholly irrelevant to the issues in the present case. The assets which could be put to the arrangement were assets belonging to Teddy and Nina. What it meant was that there was not to be any trust in favour of anyone else. This had nothing to do with the testamentary disposition made by Teddy to Nina or vice versa. Furthermore, the scheme being suggested would appear to be flexible enough to enable a trust to be set up by Teddy to benefit Nina and others and vice versa. The only limitation for each trust was that the settler should not benefit from the trust he/she had set up.⁴¹ In any event, all these ideas of having some sort of tax arrangements do not even begin to show that there was any change of the testamentary intention on the part of Teddy. These 1989 documents do also show that Teddy was a cautious person and he was not slow at all in employing the service of his lawyers. Hence, even though he was being advised by professional people in the area of tax avoidance, he still sought advice from his own solicitors when the idea was really at a very preliminary stage.

4.47 Even if, for the purpose of argument, it could be said that the various contacts with the tax advisers would indicate that Teddy had contemplated leaving his estate to Nina rather than to Wang Sr, it seems that Teddy thought there was still really no hurry for him to do so. He must have realized that as time went by since the making of his will in 1968, the chances of his father being directly benefited under his will would be getting increasingly smaller as Wang Sr was going into an advanced age, whilst he himself was still in good health regularly doing exercise. The natural thing to do was either to go on with the discussion with the tax advisers to work out a scheme or to go to a solicitor firm to have a properly drawn-up will.

4.48 In any event, there was no explanation as to why Nina suddenly called off all further actions of their professional advisers by a letter dated 15 February 1990, just shortly before the date on the 1990 Documents.⁴² Instead Nina alleged that Teddy had made a homemade will in 1990 which, by implication, must have revoked the 1968 Will. Would Teddy have done that after all these world-class and world-wide professional advisers were consulted? Would he have opted to make a homemade will instead with the assistance of the two mysterious Mr X and Mr Y (as it will be apparent in Section II herein that Document A was written by one person and Documents B and C by another person), and his domestic servant was asked to witness his signature instead of having a proper will drafted by a solicitor and witnessed by two solicitors who would be bound by their professional ethics of confidentiality? There are other suspicious circumstances which I will consider in the next chapter surrounding the 1990 documents. But before I do it is convenient to sum up the credibility of one key witness who has testified on those facts which had happened in this period. I have already done so for the plaintiff Wang Sr and Yih in the previous chapter. I shall deal with the credibility of Teresa Wang here.

THE CREDIBILITY OF TERESA

4.49 Teresa lived with Teddy in Hong Kong until she departed to the States for her studies in 1959. Thus she was not in Hong Kong in the crucial period of the 1960s, 1970s and 1980s. Being the eldest among all the younger siblings of Teddy, she was closest to Teddy. It is very clear from her evidence or the way she gave evidence that she has a strong siblings relationship with her elder brother, for whom she has very high respect and regard. She testified on the good relationship between Teddy and his siblings when they were young. Certainly the good relationship between her and Teddy was maintained even after her departure to the States. She met Teddy on holidays and at least on two occasions when her husband was not with her for the holidays, she stayed with Teddy and Nina in the same hotel room. This piece of evidence was led to show that Teddy was not a romantic person.

4.50 She also testified on the good relationship between Teddy and his parents and rebutted the allegation that Teddy hated his father because of his relation with Madam Cheung.

4.51 Although she did not stay together with Teddy for a long period of time since her departure in 1959, she came back to Hong Kong every now and then to visit her parents and she saw Teddy and Nina whilst they were in the States for holiday and/or for Teddy's regular medical checkup over there. Thus she was in a position to make a good observation on the character and disposition of Teddy and the relationship between Teddy and Nina. Many of her observation were in fact supported by other evidence. Based on her observation of the character and disposition of Teddy, she considered that it would be unlikely that Teddy would have made a will in the form of the four questioned documents. However, such piece of evidence could not be just taken on its face value. Whether the four questioned documents were made by Teddy should be considered carefully in light of other pieces of evidence beside the handwriting and ink-dating evidence. Thus this Court will not just accept her opinion unless it was also supported by other strong and cogent facts which will be discussed in more detail in the next chapter concerning suspicious circumstances.

4.52 However, her relationship with Nina obviously had gone worse since the disappearance of Teddy in 1990, and she was certainly very upset with the treatment which her parents, especially her mother received from Nina. Consequently she had strong and sometimes impulsive temper in respect of her comment about Nina. Suffice it for me to say that her views about Nina were tainted with one of the figures of speech and that is exaggeration. This case could not be decided on whether those negative criticisms of Nina by her were true or not. However certainly on the most important aspect of her evidence, namely the character and disposition of Teddy, her evidence was well supported by other witnesses or documents.

4.53 Further her evidence on Nina's writing was again unchallenged in that it was never put or suggested to her that it was not the handwriting of Nina. That was in relation to the sample handwriting of Nina. Although she had been cross-examined on those documents, it is clear that the two samples provided by her, namely the copy draft authorisation letter which contained Nina's handwriting in her letter addressed to Teresa and the Fotomax photo holder which contained also Nina's letter addressed also to her.⁴³ In this respect, it should be noted that despite the long cross-examination of 14 days, it has never been suggested to her that those two items were not sent to her in the circumstances she said in her evidence, nor had it been suggested to her that those two items did not bear Nina's handwriting.

4.54 I consider Teresa a credible witness in those areas concerning the Wangs family in the early years and the character and disposition of Teddy. I do not intend to decide on the other areas in particular her opinion about Nina as to what kind of woman she is.

4.55 This period also ended with a sad note and that was the disappearance of Teddy on 10 April 1990. However one outstanding question remains and that is : did Teddy sign on the four questioned documents on 12 March 1990 or at all before he disappeared? I shall consider this question by referring to all the suspicious circumstances in the next chapter.

Footnote:

1 T158:21:15
2 T158:20:19
3 T158:8:17-22
4 T13:46:18
5 T158:16:1-18
6 T159:34:1-22
7 per Mr Alan Kwan at T164:27:24-28:11
8 p.3370, G11
9 T123:29:24-31:17, T132:74:6-80:12 and 82:16-20 (in camera)
10 pp.12-14, F1
11 pp.18-23, F1
12 p.29, F1
13 para.1, p.35 and p.37, F1
14 p.15, F1
15 p.38, F1
16 pp.188-189, F1
17 para.18, p.317, F26
18 p.391, F1
19 p.397, F1
20 pp.400-402 and p.404, F1
21 p.407, F1
22 pp.410 and 411, F1
23 para.38, p.322, F26
24 pp.417-420, F26A(2)
25 p.422, F26A(2)
26 pp.316-321, F26
27 T159:76:2
28 T160:11:13-21
29 pp.1894-1898, G6
30 pp.1608-1623, G5
31 T159:35:3-9
32 T159:36:19-23
33 p.2241, F8
34 T133:13:2-25
35 T5:74:5
36 T5:83:8-15
37 para.2, p.37, B
38 pp.151-155, G1
39 pp.181-224, G1
40 p.184, G1
41 para.5, p.212, G1
42 p.217, G1
43 DPH 671 and 673

Chapter 5 - Suspicious Circumstances

5.1 In respect of "suspicious circumstances" raised by the plaintiff, there were severe, lengthy and voluminous arguments made in the submissions of Counsel on both sides. They concerned with pleading as to whether lack of knowledge and approval of Wang in respect of the 1990 Will was ever pleaded pursuant to Order 76, rule 9 and burden of proof.

5.2 I consider that all these arguments were unnecessary in this case including the argument on burden of proof. The case before me is simply this : The defendant in her counterclaim relied on the 1990 Documents as the last will of Wang. The plaintiff on the contrary pleaded that these documents were nothing but forged documents. In other words it is not a case of just lack of knowledge and approval of the testator in signing the documents which happened to be a testamentary document. It is an outright attack on the Documents that they were not the testator's testamentary documents at all and ex hypothesi the testator certainly would have no knowledge and approval of the Documents in question. Thus all these suspicious circumstances, to my mind, were raised to support the plaintiff's contention that the 1990 Documents were all forged.

5.3 In the course of the arguments on the last day of the hearing for Counsel's oral speeches on 15 October 2002, Counsel for the defence would accept such an analysis of the pleadings and the way the plaintiff's case was conducted, whereas the plaintiff's Counsel did not accept such an analysis and submitted that these points of suspicious circumstances would support a separate and distinct case of lack of knowledge and approval over and above or at least collateral with the plaintiff's allegation of forgery. I think Counsel for the plaintiff are wrong.

5.4 In other words, after defendant counterclaimed on the ground of 1990 Will of Wang, and propounded the same to be admitted in probate, the plaintiff pleaded in his Reply and Defence to Counterclaim and contended that these documents were not made by Wang and the purported signatures of him and Tse were forged. Assuming neither the plaintiff nor the defendant has any evidence in handwriting and/or ink dating concerning those four questioned documents, the question is : Has the defendant discharged the burden of dispelling all the suspicions aroused in the Court that the 1990 Documents were the testamentary script of the deceased?

5.5 Even if I am wrong in the burden of dispelling the suspicions on the defendant herein, the question still is : Has the plaintiff discharged the burden of proving that the 1990 Documents were forged documents by reason of those suspicious circumstances aroused in the Court?

5.6 I do not intend to consider all the voluminous authorities cited to me. I shall restrict myself to two cases cited. The first is Fuller v. Strum [2002] 2 All ER 87.

5.7 In that case the court was concerned with the additional sentences handwritten at the end of the will of the testator as follows :

5.8 Deputy Judge Jules Sher QC pronounced only for the validity of part of the will and not the aforesaid part to Geoffrey the defendant, because of the "doctrine" called "righteousness of the transaction". However the Court of Appeal reversed the Deputy Judge's decision. It was held in the Court of Appeal that :

5.9 The second case cited is In The Estate of Fuld, Decd (No.3), Hartley v. Fuld [1968] PD 675. The case was tried for about 92 days and judgment was passed by one of the great jurists in England, Scarman J (as he then was) three months later. The facts of the case are quite different from the case before me involving German, English and Canadian connections. I do not intend to repeat them here. However, some of the observations and decisions of Scarman J therein are very useful. He decided that the phrase of "knowledge and approval" was not part of the substantive law and that was only a rule of evidence. He said at page 697D-698B :

Further at page 712D-F, he further said :

5.10 At page 714E, Scarman J said :

and at page 716 B-C :

5.11 In light of the aforesaid 2 cases, and applying those legal principles as therein decided, the first question in this case is :

The second question is therefore :

Alternatively, whether those suspicious circumstances would enable me to say that it is highly probable that the 1990 Documents are just forged documents. I shall consider those suspicious circumstances one by one hereinbelow.

SUSPICIOUS CIRCUMSTANCES I - NO REASON TO CHANGE INTENTION

5.12 From the evidence in support of those facts which I found to be true in the early years in Chapter 2 herein, there is no doubt that Teddy made his fortune because of the business he took over from his father. He was first conducting the business of CUCCL that concerned with importing chemicals and medicine, which then branched into the plastic business. From the profit of the plastic business, CIL was set up to conduct property development business and thereafter he made his fortune from the Chinachem group which has grown into a big empire since then.

5.13 In his previous two Wills of 1960 and 1968, his father was at first made a major beneficiary and thereafter the sole beneficiary respectively. In neither of these two Wills did he provide anything for his mother at all. It does not mean that he did not love his mother. He must have thought that his mother would be well taken care of by his father and when he was old, her children. He proved to be right in that there is evidence to suggest that his father did take care of his mother in spite of the fact that since the 1960s he lived with another woman, Madam Cheung. Thereafter, Wang Sr became quite old and required the care of Madam Cheung instead. His mother has since then been taken care of by her children and their spouses. Basically it was Tak Hwa or mainly her husband, i.e. the son-in-law of Madam Ruen, who has retired some time ago. Teresa said they eventually did not even ask Chinachem to foot Madam Ruen's medical bills because they found it to be very troublesome bordering on refusal. However, I think it is fair to add here that when Madam Ruen was admitted to hospital, a senior officer of Chinachem had made sure that she would be admitted to the first class ward. No doubt that was at the instructions of Nina. Teresa herself also came back to Hong Kong more often than before in order to take care of her mother.

5.14 The evidence also supported the fact that Teddy always had a deep gratitude and respect for his father for what he had provided to him especially at his tender age.

5.15 Further as aforesaid, his father had protected him by keeping the secret of his expulsion from St. Stephen's College in 1952 for a long time even within the Wangs family. On the other hand, 16 years later in 1968 Teddy shifted the responsibility of probing into the affairs of Nina from his father to his cousin Yih. There are other instances of the thoughtful arrangement made by Teddy when Wang Sr travelled to the U.S. Usually these are nearly nothing for a tycoon but not for Teddy. Teddy himself was very fugal that he always travelled in economy class himself. When he once travelled in the business class, he expressed his joyful experience to his godson Anthony. All these illustrated the very close and loving relationship between the father and the son and also the fact that he was extremely careful with his money.

5.16 Further Teddy could not have forgotten about his 1968 Will since he made it, because as aforesaid, at least in 1975 and 1985, he was reminded of it.

5.17 It is significant to note that even in 1983 when he was first kidnapped and released with the effort of Nina, he did not think it fit to change this Will to make testamentary provision for her there and then. Thus, I cannot accept the submission from the defence that the incident of his fall from the horse on 10 March 1990 will trigger off a series of actions for Teddy to change his 1968 Will.

5.18 In any event, I find Dr Kung's evidence suggesting that the fall was very serious, is not true. I do not however find Anthony to be lying deliberately when he said that even by 1 April 1990 when he met Teddy for meal, Teddy was still having a bandage on his head and showed to various people a blood stained shirt.¹ I prefer the evidence of Mr Edwin Cheung who said that Teddy attended the land auction on 23 March 1990 and succeeded in bidding a piece of land in conjunction with the Sino group. This was supported by documents.² When he met Teddy in the auction, he could observe nothing wrong with him and certainly Teddy did not wear any bandage.³ Teresa's long distance telephone conversation with Teddy shortly after his discharge from the hospital also revealed that there was nothing serious.

5.19 Further, it was not the first time Teddy fell from a horse and he had definitely fallen before, according to Anthony. Anthony also said that Teddy was keen to convince people that his fall was really a minor thing.⁴ Thus my impression is Anthony was probably confused or otherwise could not remember clearly the condition of Teddy in this incident which happened 12 years ago. Further, Teddy was examined by doctors in the Queen Mary Hospital and later by Dr Wu in the St. Paul's Hospital. Neither of the two teams of doctor had found anything wrong or serious with him. I find that it could not be a case that he became suddenly worried about his life so as to make him to change his previous will hastily. Further or alternatively, even if he became suddenly worried about his life, he would not have changed his will just because of that which was much less traumatic as the kidnap in 1983. Besides Nina had been adequately and substantially provided for throughout all these years as pointed out in the last chapter. These provisions represented one substantial part of the earnings from the Chinachem group.  Why in 1990 should Teddy suddenly change his will to give the remaining part representing his estate also to Nina instead of his father?

SUSPICIOUS CIRCUMSTANCES II - WHY A HOME-MADE WILL?

5.20 Both the 1960 and 1968 Wills were properly drawn up and witnessed by solicitors. Teddy was never slow in using services of solicitors and they were never slow in serving him. He was physically surrounded by firms of solicitors in his own headquarter, the Chinachem Building. They were his usual solicitors.

5.21 For instance, even in the very preliminary stage of some discussion on some tax planning scheme when he was being advised by experts, he would also, as a matter of prudence, use the service of his own solicitors, Messrs Woo, Kwan, Lee & Lo. There is really no reason whatsoever for him not to use the service of his solicitors when making his will. This will would have a very drastic effect because he would have revoked the beneficial interest of his father and everything would be given to his wife instead.

5.22 On the other hand, all the provisions of his 1990 "Will" are very simple. He must have realized from his experience of his 1968 Will that it would only take a few minutes for such a will to be drawn up and with the assistance of computer or word processor in 1990, the document could be engrossed even much faster. He had his usual firm of solicitors, Messrs Ip, Ku & Stoppa at that time just on the floor below.⁵ The then modern word processing power of computer or word processor could turn up precedents for adaptations at a much quicker speed and neater in presentation if his solicitors were instructed than to have someone writing out the four questioned documents. In fact the suggestion that he would not use his solicitors in such circumstances is totally out of his character. Mr Cecil Chao described Teddy as a good, sharp, prudent, and very careful businessman. When Mr Chao was asked whether Teddy was a careful person over documentations he said that he thought he should be, since he had all the lawyers working for him he would be very careful with all documents.⁶ Yih also said that Teddy would ask lawyers to be the attesting witnesses. Even witnesses called by the defence on Teddy's general attitude and requirement on documentations, none of them had the audacity to suggest that he believed that Teddy would fancy a home-made will, such as the four questioned documents in this case.

5.23 It has already been pointed out earlier that one of the most unexplainable questions is why Teddy asked two persons whose identity was unknown, Mr X and Mr Y, to write out Documents A, and then B and C. As a businessman he must realize the importance of making clear provisions and instructions in order to ensure that there should be no dispute in the future. Yih explained that Teddy "attached great importance to legal requirements" and would not have asked two laymen to be the attesting witnesses to his will.⁷ I accept that must be true for Teddy. Even assuming that he did change his mind over who should benefit from his estate, surely he would also want to make sure that there could be no dispute as to his intention to benefit his wife.

5.24 By adopting the home-made will while all his previous wills were made solemnly and formally in solicitor firms, he must have realized that it would really be asking for troubles which he could easily avoid. If he had made his 1990 Will in a solicitor's firm, or otherwise through the assistance of solicitors with their attestation to his signature, at least this litigation before me could be avoided. I must say that this act of having a home-made will would be totally out of character for Teddy.

5.25 In this respect, Dr Kung was called to support the notion that Teddy had made some home-made wills before. He testified that on two occasions at about Chinese New Year time in 1984 and 1985 when Teddy and Nina went on holidays to the U.S taking North West Airlines, he was given sealed envelopes. It was said that those envelopes probably contained the wills of Teddy and/or Nina. He said that either one of them told him, while he was driving the Wangs couple to the airport, to the effect that there was a will and key inside the envelope. If any of the two of them did not come back after the trip (meaning if something untoward happened to them) he should open the envelope. Inside the envelope it was written as to what he should do and he should do this and that. He could not say whether there was one will or two wills inside the envelope.⁸

5.26 However he further testified that, in the second half of 1997, he spoke to Nina about some reporting in the newspaper that it was reported that Teddy had no will. Dr Kung then reminded Nina that there were at least two occasions that he was given a will and she could have this will propounded.⁹ It is important to note that Dr Kung agreed that even on this occasion, Nina did not tell him that she was also in possession of an envelope which was given to her a month before Teddy's disappearance in 1990.¹⁰ His evidence was that since the blackmail case which was reported in the newspaper in about April 2001, he saw the contents of the 1990 Will published for the first time.¹¹ He then spoke to Nina again and mentioned about the two envelopes he was given on the aforesaid two occasions in 1984 and 1985 and he asked Nina where they were.¹² He said that Nina's answer was that they were torn.

5.27 In Dr Kung's first witness statement on 9 January 2001, there was no mention about the holiday wills. He said that by then he was still unaware of Nina's contention that there was supposed to be a 1990 Will. He then made a second statement on 28 July 2001 mentioning about being handed the envelope containing the holiday will on at least two occasions without any year or time frame. He claimed in cross-examination that the person taking the statement from him did not ask him about the time when this was supposed to happen.¹³ This is again incredible. It is also significant to note that Dr Kung said the two of them were probably going to the States for Teddy's check-up. Although Teddy used to have his check-up there, he just did not go there in 1985 (but only in 1984 and 1986) as revealed only later on after Dr Kung's evidence by Mayo Clinic's letter dated 2 July 2002.

5.28 When Nina made her affirmation on 16 January 1998 as her affirmation of Testamentary Scripts in HCAP No.6 of 1997, she made no mention about the will supposedly handed to Dr Kung in 1984 and 1985. By then she should have been reminded by Dr Kung already in the latter part of 1997 concerning the two home-made wills of 1984 and 1985.

5.29 Even in the affirmation of Testamentary Scripts filed on 18 November 1999¹⁴ herein, Nina did not mention about the home-made wills given to Dr Kung in 1984 and 1985. Instead she mentioned about the home-made wills allegedly given to Ng Shung Mo between about 1985 and 1989 and a will given to Andrew Wong in or about 1988 or 1989 before Teddy went on holiday. Thus the original version in effect was from 1984 right up to 1989, Teddy had been in the habit of making home-made wills right up to 1989, i.e. the very year before 1990 in which the questioned home-made will was made.

5.30 Neither Andrew Wong nor Ng Shung Mo was called to give evidence in this respect in this case at all. There is no explanation for this material discrepancy in that Nina never mentioned anything about the home-made will given to Dr Kung on these two occasions.

5.31 Andrew Wong was a member of the auditor firm acting for Chinachem group.¹⁵ Ng Shung Mo was and still is an employee of the defendant. There could be no difficulty in calling either of them.

5.32 In the end, I find this whole business of Teddy having made a "will" which was put in a sealed envelope and left with someone while he went on holiday is a complete fabrication by Nina and Dr Kung and also those who were prepared to collaborate with her.

5.33 In any event, Dr Kung has never seen those alleged holiday wills. Whether there was one or two such "wills" on each occasion is not known, and whether they were proper wills containing testamentary disposition again no one knows. But the circumstances as described by him would suggest that both Teddy and Nina would have known the contents thereof or at least its existence as this conversation was said by either one of them in the presence of the other. Yet Nina did not say earlier about Dr Kung's version of the holiday wills at all not to mention the contents thereof.

5.34 In the end, I accept the plaintiff's submission that this whole episode of holiday wills in the evidence of Dr Kung is a complete fabrication and should be ignored. But the suspicion still lingers on and that is : Why would Teddy suddenly make a home-made will and with the assistance of at least four persons : Mr X, Mr Y, Mr Tse, and Mr K.S. Lee? Who are these Mr X and Mr Y? Why should Teddy ask two different persons to write out all these contents for him when he was perfectly capable of writing them himself?

5.35 Teddy was such a secretive person and he did not want other people to know his personal affairs. Why should he allow or request two strangers to write out his will who were not solicitors who would otherwise have advised him to make a proper will in English? Why should Teddy allow two persons, whose identity are still unknown, to know the contents of his last will which was highly confidential and sensitive when he did not even allow Nina, the intended beneficiary, to know the contents when, according to Nina, she was only given the sealed envelope and she did not even know the contents thereof? As described by Mr Yih,¹⁶ Teddy would not allow other persons to know about his personal matter. In the words of Yih, it would be impossible that Teddy would want two persons to know the contents of his will.

5.36 The contents of these three documents at least also disclosed his personal sentiment for Nina, and against the Wangs and Kungs family why would Teddy allow other persons to know his strong sentiments as contained in the 1990 Documents? Further why should Teddy ask his butler in his house and cum messenger in his company to be the witness? Why Teddy did not ask the two writers of his will to attest to his signature or other more senior and trusted staff in Chinachem who should have been the more suitable candidate? After all, Teddy should have known that if there should be any dispute on whether Teddy had signed the documents, the witness could come forward to verify his signature.

5.37 Furthermore why would Teddy make a home-made will on 12 March 1990 when just before that he had consulted a number of world-class and world-wide professional advisers in respect of all his assets with global and long-term objectives?¹⁷ This was not a short period. The contemplation for a trust corporation to hold all his assets (for the purposes of tax or inheritance as aforesaid in the last chapter) had been going on between July 1987 and 15 February 1990 i.e. right before the purported date of the home-made will. Why should he suddenly opted to ask the two mysterious Mr X and Mr Y to write out a home-made will for him and express his strong sentiments through them after all these long consultation, meetings and correspondences with his professional advisers?

SUSPICIOUS CIRCUMSTANCES III - THE OPPORTUNITY TO DRAW UP THE WILL AND BY WHOM AND WHERE?

5.38 Teddy was hospitalized on 10 and 11 March 1990. He was discharged on 12 March and he was then taken back to his home by Dr Kung first and then he went to his office later on that day. According to the statement of Tse Ping Yim he gave to Mr Allan Leung on 9 September 1999, he was asked by Mr Wang on the same day of 12 March 1990 at about 6 p.m. to come into his office and to witness him signing on all four documents now propounded by Mrs Wang as the last will of him. Tse was very vague on the time of the day in his handwritten statement, though he gave a number of other details which are not directly relevant to the incident of attesting to Mr Wang's signatures. It is not in dispute that Teddy did not write any of the first three Documents A, B and C. Document A was written by Mr X whereas Documents B & C were written by Mr Y. When the documents were written by these two other persons, why Teddy did not ask them to witness his signature when they would have known the contents thereof anyway? This leads me to another set of questions : where would the documents be drawn up? Further according to the evidence of a staff, Li Kwok Kee, the partition for Teddy's room in the office was a glass partition so that anyone could see what was happening inside. It is surprising that the defence was unable to call anyone to support the allegation that Tse had gone into Teddy's room to witness his signature at about 6 p.m. that day, which according to the statement of Tse, it was a rare once and for all occasion for him unless incidentally no one was around. To my mind, all these are unanswerable and/or unexplainable questions unless the documents were forged. Further where did he find these two mysterious persons?

5.39 I accept the plaintiff's submission that these four questioned documents could not have been drawn up :

5.40 Mr Tse said that he accompanied Mr Wang in the Hospital until 3 a.m. on 11 March 1990. He did not say that he saw Mr Wang asking one or two other persons to write out some documents or the "wills" for him. Nina was also at St. Paul's Hospital and she stayed as much as she could until Teddy insisted that she should go back to the office.¹⁸ However that would leave the Chinachem office as the only possible venue. If these documents were prepared in Chinachem office on the very day Teddy was discharged from hospital, why Teddy did not ask any of his solicitors, who would be readily available in his building or thereabout to prepare the documents but asked this Mr X and Mr Y to write out the same as aforesaid?

5.41 Where did Teddy got these three pieces of thin paper and one piece of thicker paper to write out his "wills"? Furthermore, in the office of Chinachem, there must be some more appropriate stationery than the four pieces of paper which contained the markings of "One life one love" in two versions thereon to be used for writing his will. Why should Teddy choose three pieces of very thin paper and a bit thicker one if that was not for the purposes of producing forged signatures of Tse by superimposition tracing? Thus even the opportunity for Teddy to cause the 1990 Documents to be drawn up by two mysterious persons at any time or place after his fall on 10 March 1990 but before what Tse said about his attestation to his employer's signatures at 6 p.m. two days later would be very slim.

5.42 Perhaps the answer to all these questions might well be this : Teddy did not write out the documents himself or caused the same to be written for him because he could not do so after he had disappeared in 1990 or that he was already dead.

SUSPICIOUS CIRCUMSTANCES IV - OTHER INSTANCES OUT OF CHARACTER OF WANG

5.43 The 1990 Documents were rather sloppily prepared. This is especially so for Document A, and yet Document A was the document which expressly said that it was a will and that on the face of it, it bore two witnesses' signatures purportedly in due compliance with the usual requirement of the Wills Ordinance in respect of all kinds of wills.

5.44 Yet the document contained alterations in some of the characters on it including the characters : "部", "贈", "妻", "龔". These characters were plainly over-written upon as if the original writing was written with a defective ball pen otherwise the same was running out of ink.

5.45 In respect of Document B, although there was no over-writing on characters, it is also clear that for some of the characters, the ink colour was faint.

5.46 From any point of view that a will is a solemn document and Teddy who had made two wills before, could not be unaware of that. There was really no reason for Teddy to accept these two documents, especially Document A as his last will which would revoke his 1968 Will with drastic effect and to sign thereon. This is particularly so when the evidence given would suggest that Teddy was a good businessman and there is strong evidence to suggest that he had a very high and strict requirement on form and documentation.

5.47 In this respect the defence called evidence from Mr Edwin Cheung and Mr Alan Kwan to contradict Teresa's evidence to the effect that when she was young, if she made a mistake, Teddy would ask her to type the whole thing all over again.¹⁹ However Mr Edwin Cheung's evidence in cross-examination was that he had no recollection of the specific instances of mistakes or alterations of documentation, and he gave his views only based on what he understood to be the sense of priority of Teddy, i.e. that Teddy would treat business as the first priority and the timing was important for business and business was more important than formality.²⁰ Whether Teddy would require something to be redone because of the mistake would depend on how big was the mistake and whether the time was available, as he would not waste time on doing work that would worth nothing.

5.48 Mr Alan Kwan's evidence was that Teddy did not like drafting letters himself. He would get the expatriate secretary Mr Foyn to draft letters for him and for official replies to government, Mr Foyn would do the drafting for Teddy.²¹ Even if there were any typo, Teddy probably would not have noticed it because he read them so quickly. I do not find any severe conflict among the witnesses. I found that Teddy would size the situation, taking into account the importance of the document and the time available for making amendment. Further, his requirement in the 1960s might well be different from his requirement in the 1980s where word processor would then be available. I do not think any witness would say that Teddy would never require any retyping of letters if mistakes were found therein even for important letters written to the government.

5.49 The defence further tendered two copy letters in the course of the cross-examination of Teresa alleging that they were the original copy documents kept and taken from the files of Chinachem.²² The plaintiff side did not accept the authenticity of these two documents. They are both photocopy and not original carbon copy of the letters the original of which have been sent to the bank.

5.50 In the first place the first letter was apparently drafted by Mr Foyn and typed by Nina herself as it contained the initials "NTHW:F". It was dated June 6, 1972 which is an American way of typing the date. No doubt Nina had been in America in the 1960s as aforesaid. The second letter was dated 8 January, 1987 which was signed by Nina herself. The signatories were stated to be TH Wang and/or Nina TH Wang. That is why apparently Teddy corrected the penultimate line in the letter from "in favour of Mr and Mrs TH Wang" into "Mr and/or Mrs TH Wang" and affixed his initial there. Similarly in the previous letter it was corrected to state more clearly that the shares to be placed with the Bank of Canton was placed in their custody "as security" and again Teddy also affixed his initial. This letter was signed by Teddy and Nina together. Apparently it also bore Nina's initial or signature. If they were corrections of Teddy before the letters were sent out, it at least supported the fact that he was a very meticulous man.

5.51 However it is not clear whether the corrections were done by Teddy only after the letters were sent out, and someone including Teddy spotted the necessity for the two corrections or, alternatively it might well be the case that, as submitted by the plaintiff, the bank itself had spotted the necessity for the corrections and therefore sent back the letters for Teddy's initial. This might well explain why instead of keeping the original carbon copy, CIL kept a photocopy of each letter with the original signatures on them (usually one does not sign the carbon copy as well) together with the corrections and initials of Teddy in their respective files.

5.52 The defence relied on the standard printed form of Power of Attorney provided by the S.C.M.P in support of a contention that the Teddy would not be careful on documentation and would not care much about the formalities of document is neither here nor there either and I will not like to go into detail here. I would just like to say that this would only support the general contention of Yih that Teddy was very fugal boardering on misery. He only used a printed form provided by S.C.M.P. instead of asking his solicitors to make an important Power of Attorney for Nina in order to avoid solicitors charges thereof. It is only understandable that he made a mistake in filling in the name of Nina instead of his own name when very probably he did not know the mistake himself.

5.53 Thus, in all probabilities, Teddy would not have accepted the sloppy writings on his solemn and drastic will with all these corrections and over-writings written by a defective ball pen running out of ink. Why should he sign on it nonetheless?

5.54 Further why should he choose these two kinds of paper for Documents A, B and C on one hand and Document D on the other hand. Apparently Document D is a better piece of paper for fountain pen with which the writing of "One life one love" was used. This fountain pen is not the calligraphic pen used to sign Wang's four signatures. As evidenced by the condition of the Wang's signatures now on the four pieces of paper, crackings now occur severely especially for Documents A, B and C in Wang's signature when compared with the earlier photocopies taken therefrom. Why Teddy did not use the usual A4 bond paper which must be readily available in the Chinachem office? A solicitor would use very thick piece of paper for solemn documents like deeds and wills. Could the thin 1990 documents be chosen by the writer just because they were thin and therefore easier to forge Tse's signature by superimposition?

5.55 Further why should Teddy use three pieces of paper with these faint words ("One life one love") on or if these faint words were put onto the paper afterwards, why should he allow such words to be put on his wills? After all there was already the fourth sheet which said "One life one love". Was it his intention that all four pieces of paper should contain the faint writing of "One life one love" in two versions in the background as a romantic person? However after all, from all the evidence before this Court, Teddy was not a romantic person, but apparently Nina is.

5.56 Furthermore why should Teddy use Chinese in his will instead of English. After all he seldom signed in Chinese unless the documents were in Chinese as appeared in all his sample signatures in Chinese. In all other instances when he had business dealings, including giving power of attorney to others, he did so with documents in English and he signed in English except those Taiwanese Power of Attorney which printed form was in Chinese. Hence in the present case, it would be unlikely that Teddy would suddenly find it necessary or desirable to get someone to draft his will in Chinese for him. After all even though Wang Sr did not know much English and yet in both the 1960 and 1968 Wills where provisions were made for him, they were written in English.

SUSPICIOUS CIRCUMSTANCES V - CONVOLUTED EXPRESSION AND UNREASONABLE AND UNTRUE CONTENTS

5.57 The four documents must have been drafted at more or less the same time so that Teddy would have all four documents in a small pile before he asked Tse to come into his room to witness his signature, according to Tse's statement and Mr Alex Lam. Apparently, Teddy would have put them into separate envelopes, sealed them and put all four white envelopes into a brown envelope and then gave the brown envelope to Nina later. First of all, it is surprising and strange that Teddy would have found it necessary to have document D to be witnessed by Tse as well. This document was not testamentary in nature. Furthermore as it will be more apparent in Section II that it would be more natural for him to sign this document in English and not Chinese at the right-hand bottom column of the paper.

5.58 Why should Teddy not ask one person to write out his whole will in one go albeit on three sheets of paper? Furthermore since Documents B and C were written out by the same person, Mr Y, why should that person write two separate documents and not combine the contents into one? Further Documents B and C were in fact in slight conflict. The sentiment expressed in Document B was that Teddy was very concerned with his parents and his sick sister and he would insist Nina must take care of them. However in the next document, Document C, he prohibited Nina from giving any money, benefit or property to other members of the Wangs family. How could Nina take care of his younger sister in accordance with the strong sentiments expressed by Teddy for her without giving her any money or benefit from the estate? Why would Teddy give a direction to Nina to take care of his younger sister in Document B and at the same time prohibit her from benefiting her with his assets in Document C? Does it mean that Nina can only take care of her with Nina's own money and if so why?

5.59 In both Documents B and C, there was an expression that Teddy's parents and the other members of the Wangs were disappointing and that is, disappointing to everybody including Teddy (...... 我王家其他任何人，他們全部都令人失望). However during the whole course of this trial, there was really nothing that could suggest that Teddy was disappointed with his parents and certainly there was nothing to show that any expression of disappointment on his parents was justified. It has been repeated many times that he was actually grateful and respectful to his father as aforesaid. He had been very concerned with his father's health especially when he did not come back to the office. There was nothing to suggest that he had any expectation on his parents which his parents could not deliver. His relationship with his parents had always been good.

5.60 In any event assuming that he was disappointed with his father for whatever reason, why should Teddy be disappointed with his mother? Even on the defence case, Teddy was very fond of and in good terms with his mother. Why should he make sure that she would not be benefited by his estate?

5.61 As far as his siblings, the other Wangs are concerned, they all have very high achievements in life including Teresa. In fact, Teddy's two younger sisters and brothers all had much higher academic achievements than Teddy as Teddy had not even finished secondary school. Teresa got a Masters Degree and she is a computer programmer in a reputable computer company in the States.

5.62 Wang Tak Miu always ranked first in class every year when he was studying in Hong Kong. In the Hong Kong Certificate Examination, he got 10As. At that time, there was some sort of ranking in Hong Kong and he ranked the third in the whole of Hong Kong in that public examination. Then he made an application to study in Stanford University and he got his four years' scholarship. He pursued his masters degree and PhD degree all free of charge because he got scholarship therefor.

5.63 Wang Teh Hwa is a qualified chartered accountant by profession. For some time she had her own accountancy firm and Teddy had given her a lot of business.

5.64 As for the youngest brother Wang Tak Tzai, he graduated from the University of Michigan in Pharmacy and he got a Doctor of Pharmacy degree. The evidence can only support the conclusion that the other siblings of Teddy are all fulfilled intellectuals even though Teddy had not finished secondary school. There is absolutely nothing to suggest any one of them could have disappointed Teddy. In fact Teddy should be and was very proud of them. He was very fond of their children as well as he had no children himself. For example, when Teresa's younger daughter got admitted into a medical school in the States, Teddy was overjoyed and he gave her a princely sum of money in order to encourage her.

5.65 In short the expression that his parents were disappointing and all members of the Wangs family were disappointing in Documents B and C could not be the expressions of Teddy himself.

5.66 On the other hand, the expression in Document C that everyone of the Kungs family were disgusting (你龔家各人也令人討厭) is also a very surprising expression. On the evidence of the defence case, Teddy was injured in a riding accident and he went to Dr Kung for help first. Dr Kung had kindly treated his superficial wounds and took him to Queen Mary Hospital. At Teddy's request he arranged to have him taken to St. Paul's Hospital so that he could be treated and examined by an expert. Dr Kung and his mother Madam Kung Sr had accompanied Teddy for some time and later took Teddy out of the Hospital to his home upon his discharge. There was nothing from Dr Kung's evidence to show that he could be in anyway disgusting. In fact Teddy should be grateful to Dr Kung and Mrs Kung.

5.67 Why should he on the same day of his discharge execute a document to say that they were so disgusting that he would prohibit his wife from giving any part (i.e. not even one cent) of his enormous estate to anyone of them? Moreover, even apart from the assistance given to him between 10 and 12 March 1990, the evidence disclosed that Teddy had always been rather friendly and generous to his brother-in-law, Dr Kung. He allotted shares in Chime, his flagship company to him and made him and his wife directors. Even though they were holding their shares in Chime as nominees only, there was really no obligation on his part to do so and this was done to enable Dr Kung to come to Hong Kong. He even allowed Dr Kung's family to stay at University Heights (owned by Chinachem) at a nominal rent of $1 per month. He visited Dr Kung's clinic from time to time to have some massage treatment. When he was released from his kidnap in 1983, he went directly to the clinic of Dr Kung. Why should he suddenly feel that all members of the Kung family were so disgusting to him? Hence again the expression that "everyone of the Kungs family was disgusting" is so puzzling that it could not be the expression of Teddy himself either.

5.68 If one were to choose between Teddy and Nina, I find that Nina herself might well have found the Wangs family disappointing and the Kungs disgusting. Wang Sr, before and after 1997, i.e. the seven years' period after the disappearance of Teddy, had tried to retrieve the 1968 Will and thereupon started litigation with Nina. It caused her a lot of troubles since then. Nina has not been on good terms with Teddy's siblings and particularly with Teresa in recent years after Teddy's kidnap in 1990 for a number of reasons as aforesaid.

5.69 On the other hand, according to Teresa, Mrs Kung boastfully said that it was her who had persuaded Nina to come back from the States and stay with Teddy as aforesaid. She might find her mother's incessant persuasion too nagging. In conclusion, if one has to choose between Teddy and Nina, I think the expression that the Wangs family members were disappointing and the Kungs family was disgusting suited the sentiments of Nina much better than Teddy. Could it be an expression of Nina instead of Teddy in these questioned documents? Could this be a case of "projection" of Nina in psychology onto Teddy which was eventually found in Teddy's purported "will"? Would Nina add those words into the will also for the purposes of making it more convenient for her to refuse the Wangs and Kungs when they should ask her for any payment from the enormous estate of Teddy?

5.70 Further, there was also strong and solid evidence from Yih that Teddy was a decisive person and if he decided to give Nina anything, it would not be his character to mention things like his parents disappointed him and they should not be given any benefit by her.²³ Moreover it is quite clear that it would not be the character of Teddy to seek to justify his decision of making gifts or provisions. When he made his 1968 Will, which was a very drastic revocation of the 1960 Will, he was giving everything to his father instead and leaving no provision for his wife whatsoever under his estate, he did not even think fit to give any reason for changing his previous will or to justify the deprivation of Nina from his estate or the fact of giving his whole estate to his father. Why should Teddy find it necessary to explain here as to why he was giving all his estate to his own lawful wife?

5.71 Furthermore the clear evidence from Yih and Teresa was that Teddy was not a romantic person. It would be out of his character for him to say words like "One life one love" amongst his will. Consequently the expression used in Document B, such as "I love my wife. After my death, all of my property, real estate and my body shall belong to my beloved wife" ("我愛妻子，世上她是我最愛，在我死後，任何屬於我的財產﹑物業﹑我的身體，都屬於我愛妻"), was probably not the expression of Teddy.

SUSPICIOUS CIRCUMSTANCES VI - LACK OF REVOCATION CLAUSE

5.72 Teddy had the experience of making two previous wills. He ought to have known that it was usual to have a revocation clause in the second will, and in fact many more knowledgeable laymen might have known that too. None of the four 1990 Documents contained any revocation clause when Teddy well knew there was a previous will for his father.

5.73 If he had asked someone to write the Documents for him, then the overwhelming probabilities would be that he would have at least told one of them to write an express provision to revoke his previous wills. After all, these Chinese "Wills" were verbose and certainly were less concise than his two previous English wills prepared by solicitors. Thus one would expect Teddy should include an express revocation clause if Teddy had ever had the idea of revoking the previous 1968 Will and making Nina the sole beneficiary under his estate.

5.74 On the other hand, if these four documents were not actually drafted under the instructions of Teddy, then of course, the forger might not even know whether Teddy had any previous wills. Even if she did know the existence of a previous will, she might not have seen or known the content and therefore did not know its exact provisions. If it should turn out that he did not actually have any previous will, the provision of revocation might bring another kind of suspicion to the documents. Would this be a reason why there was no revocation clause in the 1990 Documents?

SUSPICIOUS CIRCUMSTANCES VII - TSE AS A WITNESS AND HIS STATEMENT

5.75 Tse Ping Yim was in fact the defendant's main witness. His death on 6 December 1999 means that he is unable to give evidence. Before his death he had made two statements, the first one was made on 6 September 1999 before Mr Alex Lam, a solicitor who was supposed to be present when Tse wrote out his statement, giving an account of his witnessing the execution of the four documents by Teddy. The other statement was taken from Tse on 9 September 1999 by another solicitor Mr Allan Leung.

5.76 From his statements, it would appear that Tse was very careful in drawing a distinction between Mr Wang and Mrs Wang. It is quite obvious that he felt that he was much better treated by Mrs Wang.

5.77 From his earlier statements to the police during the investigation of the kidnap in 1990 (from which the specimen signature samples of Tse were taken in the contemporaneous period), he first started working for Chinachem in 1972 and left in 1974. He rejoined Chinachem in August 1982 as a cleaner of the Chinachem buildings which were let to tenants. After the kidnap of Mr Wang in 1983, he was asked by Mrs Wang to work in their home as a butler. Hence he got his job of butler because of Mrs Wang. However in 1989, he was asked by Mr Wang also to take on the duties of being a messenger of Chinachem office. He had to go to the company everyday to deliver documents and sometimes it was even on his way to the office in the morning. His extra duties were imposed upon him by Mr Wang. As I have said he became the butler cum purchaser of food cum cook cum messenger for Mr and Mrs Wang and also the Chinachem group.

5.78 There is no doubt that he was trusted by Mr and Mrs Wang, otherwise he would not be allowed to work and stay in their house. However, this does not mean that he was highly thought of by Mr Wang or liked by him. Very little was known about him, in respect of his character and Mr Wang's feeling of him. There must be a lot of people working in the office who would be able to testify as to Mr Wang's feelings and opinion on Tse, but the defence had not called any evidence on this at all.

5.79 However from Teresa's evidence, it would appear that Tse was a very talkative person and he liked to please his employers and their relatives. When Teresa returned to Hong Kong in 1984, she stayed in Teddy's house for a few days. One day Tse walked her to the Peak Tram Station and on the way he told her a lot of things like himself and his family²⁴ and also about Mr Wang and his treatment of his father. He told Teresa things like "your elder brother is playing games with figures"²⁵ and "whenever he [Mr Wang] found that his father was not at work, he would often ask someone to make a call to see why he did not go to work".²⁶ That means that Teddy was very concerned with his father's health so that if he did not see him going back to the office, he would at once try to find out why.

5.80 Tse plainly knew the relationship between Teddy and Teresa, and it must be quite obvious to him that Teddy was quite fond of Teresa, otherwise he would not have asked her to come to stay in the house. While he had just been working as the butler in the house for less than two years and must have just met Teresa for the first time, his chat with Teresa and the topic of the chat would clearly indicate that he was a very talkative person, eager to please his employer and for that reason also his beloved sister.

5.81 However, it is also equally clear that Teddy's character was such that he did not like this kind of talkative employee, chatting about other people's affairs. From the evidence of Teresa, Teddy certainly did not like talking about other people.²⁷ In fact from the observation of Teresa, Teddy was not particularly polite to Tse. He called him "old chap" and did not talk to him directly. When he was complaining about the food cooked by Tse, he made his complaint to his wife in order that Nina could tell the "old chap" to make better food.²⁸

5.82 Teresa's evidence was supported by the evidence of Mr Edwin Cheung called by the defence. In respect of Teddy's character, he said that he was the sort of person who did not like unnecessary chat with people or chitchatting was not really his style. In fact he would like employees to be succinct, to be concise and to deliver the work, rather than a talkative employee. Generally speaking, he did not like talkative people as his employees. Those who kept quiet and simply delivered goods to him at the right time would be best with his heart as employees.²⁹ Thus given the talkative nature of Mr Tse, it was unlikely that he would be able to win the heart of Teddy. It was thus very unlikely that Teddy would confide in Tse anything if at all and certainly it was more than unlikely that Teddy would ask him to be a witness to his will which would have given him an opportunity to know what was in his will by a quick glance. Due to the talkative nature of Tse, it would mean he would not keep the secret of what he saw or read. Tse said that he did not read the content of the documents, yet before Teddy asked him to be his witness Teddy would not know whether Tse could glance through it quickly.

5.83 Further could Tse possibly miss or otherwise did not notice the two big characters of (遺囑) meaning Will in Chinese in Document A when he signed his name thereunder and beside the two characters of (証人) meaning witness? If he had noticed that, why did he not say it in this statement? Further, in that case, why did he not tell Mrs Wang about it for all these nine years between 1990 and 1999?

THE CONTENT OF TSE'S STATEMENT

5.84 Why would Teddy select Tse to be his witness on this important document involving all his estate and two persons who were dear and near to him?

5.85 From the account of Mr Alex Lam, the solicitor, it would appear that Tse was very well rehearsed in writing out his statement. According to Lam's evidence, Tse's statement taken on 6 September was all written out by Tse himself. Before he started writing the statement, Lam had merely asked him four questions, viz.³⁰ :

5.86 However with these four brief questions to guide him before he started writing out the statement, Tse wrote out the statement completely by himself in one go without making any draft and in fact with little correction. The only possible correction, if it was a correction at all, would be in line 5 the third last Chinese character : 出"雙"入對. The character "雙" only had a slight over-writing on it, otherwise the whole statement was impeccably written like a piece of composition. It was written in a neat and orderly manner.³¹

5.87 Further his statement showed that he went into details on the loving relationship between Mr and Mrs Wang, the riding accident of Mr Wang and his hospitalization. It is quite obvious that he must have been told to put all these information in to assist his lady boss to enable her to run a case that the riding accident triggered off Mr Wang to make a new will. Who would have told him that? His reference to the loving relationship between Mr and Mrs Wang was obviously the result of some coaching so as to assist Mrs Wang's case to show some reason for Mr Wang's intention or motivation to give all his estate to her. Otherwise it would be unlikely for him to include all these things in addition to the description of the basic facts of how he came to be the witness to the signature of Mr Wang in these four questioned documents. Who would have coached him on that?

5.88 Accordingly it is more probable that his statement now produced before the Court was already prepared or written by him before Lam's arrival at Chinachem's office on 6 September 1999. According to Lam, Tse took out a sheet of paper and started writing it on the conference table. The original statement of Tse indicated that there was deep writing indent at the back of the paper indicating that when the document was written, it was written on a soft surface. Hence it would be unlikely that it was written on a sheet of paper on the hard conference table as indicated by Lam. By contrast the signature of Lam on the same paper did not appear to have the same obvious indent mark on the paper. The contrast further supports the conclusion that the paper now produced as his statement taken on 6 September 1999 was pre-prepared by Tse and not written out on the conference table as Lam had told the Court.³² The defence might submit that the strength of the pen movement of Tse might well be heavier than Lam's. But then it still could not explain why Tse could create such an indent on the hard surface conference table. Would Tse's statement be a pre-prepared statement?

5.89 Of course, having at least had one occasion of writing out a statement on the incident, there would be no difficulty for Tse to attend the interview with another solicitor Mr Allan Leung and give a substantially similar statement. The interview before Mr Leung and the statement taken thereof will be considered later after Mr Lam's evidence was considered.

TSE AND MRS WANG

5.90 It is also clear that since the disappearance of Mr Wang, Mrs Wang had been treating Tse extremely well. In 1992, Tse's wife, Ms Tong Kwai King became one of the two shareholders of Global Cheers Ltd.³³ According to Li Kwok Kee (the head of the cashier department who was called by the defence to give evidence on, inter alia, exhibit G1-100 and G1-101), this is a company which holds the very lucrative business of cleaning contracts of buildings developed by Chinachem, bearing in mind there are hundreds of development of Chinachem and there are a number of buildings within one development and in turn a number of units or flats in each building. Of course, Li Kwok Kee himself subsequently was also made a director. Having obtained consent of Mrs Wang (which actually took place during his cross-examination)³⁴ to disclose the information, he subsequently told the court that he was merely a nominee for Mrs Wang. Li Kwok Kee certainly considered that such an arrangement for him to be a nominee was incriminating probably because that would involve the concealment from the incorporated owners of many buildings of the fact that Mrs Wang was behind the company.

5.91 If Tse's wife was an actual beneficial owner of the share she held, then she must have been given a great opportunity of making a lot of money from the lucrative cleaning contracts held by Global Cheers Ltd. Although it was only Tse's wife who became the shareholder, it is inconceivable that this was not done with the consent, or through the arrangement, or simply because of Tse. The big question is : Why?

5.92 It may be the case that like Li Kwok Kee, Tse's wife was similarly a nominee only as there is no evidence at all on that. However, even though she was a nominee, it clearly indicated that Tse's wife would be prepared to go a long way to give assistance to Mrs Wang to conceal her beneficial ownership in Global Cheers Ltd in order to get the cleaning contracts from the Incorporated Owners of the buildings. Why should she be the nominee and not other persons and why should it be in 1992 after the disappearance of Mr Wang but before Mrs Wang lodged the Testamentary Script into court under an Unless Order?

5.93 Furthermore, the circumstances of Tse's departure from Hong Kong on 24 September 1999, the day immediately after the plaintiff had obtained leave from the Court to report forgery to the police are more than a coincident.³⁵ He must be one of the key witnesses that the police would very much like to interview on the allegation of forgery.

5.94 Furthermore, it would seem that he was entitled to holidays of an indefinite period or length as there was no indication on his employment record as to the number of days of leave he had applied for or been granted with and who was responsible for the approval therefor. The defence had certainly not called any evidence to explain his leave arrangement. Furthermore, his employment record³⁶ simply indicated that he took leave from 14 September 1999, i.e. well before he departed from Hong Kong on 24 September 1999, and that was shortly after he had given two statements to two solicitors of Mrs Wang on 6 and 9 September 1999, i.e. he started his holiday leave on a Tuesday after the weekend on 11 and 12 September that year. The employment record also recorded that he would not be given any pay in November because he was sick. The exact entry is as follows :

Li Kwok Kee explained that Ah Chung (阿虫) here is Mr Ng Chung Mo, a senior employee of the Chinachem group who has been working in Chinachem for a long time. He was one of the potential witnesses, who had given a witness statement, but he was never called to give evidence.

5.95 It would seem that Tse was being paid while he was well to stay in the Mainland but as soon as he was sick and became indisposed, he was not paid whilst he was also in the Mainland. There was no innocent explanation given for this strange arrangement. One might think that he might have reported from Guangzhou or anywhere to the Chinachem group that he was sick and therefore he could not come back to report for duties. However, there is still no explanation given at all to the question why he could not be given sick leave? The employment record apparently only shows that he started to take his holiday from 14 September 1999 and had not reported for duties for the whole October. Was he still on holiday in October? He had taken a pleasure trip to Thailand on 28 October 1999 but he did not fly through Hong Kong. Instead he flied directly to Thailand for his holiday and went back to Guangzhou on 2 November 1999, again directly without going through Hong Kong.³⁷ Was he still employed by Chinachem or was he given an indefinite period of holiday and if so, why? Why was he not given sick leave, say when he was admitted to Shenzhen's People's Hospital on 14 November 1999 but instead no salary was paid to him by Chinachem according to the decision of Ng Chung Mo?

5.96 By reasons of the aforesaid matters, I accept the plaintiff's submission that the statement of Tse was highly suspicious and I cannot accept what he said in the statement concerning the circumstances of the execution of the four questioned documents.

THE CREDIBILITY OF ALEX LAM

5.97 I shall now consider the credibility of Mr Alex Lam. Lam was called to explain the circumstances of the making of the statement of Tse in the evening of 6 September. He gave his evidence in a very soft and inaudible voice. He has been reminded repeatedly that the microphone in front of him was only for digital recording and not for an amplifying system. The recording cannot pick up a person's nodding his head. He appeared to be very nervious and timid. I must say that he was hesitant and evasive and was not a credible witness. Whilst it is not in dispute that Tse did make the statement which was dated 6 September 1999, it is wholly uncertain as to whether the statement was made in the circumstances as alleged by him or whether it was already a pre-prepared statement.

5.98 Apparently he had something to hide when it came to the issue of whether his firm was already in possession of the copies of the questioned documents even before the envelope was opened in Court on 6 September 1999 in the afternoon. His explanation for his inability to produce and show to the Court the copy questioned documents which were shown to him by his employer, Mr Joseph W.K. Poon, on 6 September 1999 before he was asked to go over to the office of Chinachem to take the statement from Tse, was that it was due to a burglary or moving office some time later. This was unacceptable and incredible.

5.99 His evidence was that he did not take along a copy of the questioned documents when he went to the office of Chinachem to take the statement from Tse. I do not find it likely to be true. From his evasive attitude, there might well be something in the copy questioned documents kept in the file of his firm which he would not like to show to the Court or simply there was no such copy questioned documents kept. In other words, Tse could produce copies of the four questioned documents by himself when he gave his statement dated 6 September 1999 to Lam. Further he was not even able to produce his attendance note or even the bill for his service. Apparently there might well be something in the attendance note or the bill to show that the account he gave on what he did in the office of Chinachem was not true. Without the attendance note, one cannot even check the date and the time spent on his taking statement from Tse. What was Lam trying to hide?

5.100 Further Lam appeared to be instructed late after work by his employer Mr Joseph W.K. Poon and went to Chinachem Headquarter in Tsimshatsui East to take a statement from Tse. By the time he had finished, it was very late in the evening already. The matter was of course important and it had to be done expeditiously but why was it as urgent as that? If, it was really that urgent, why Tse was not asked by either Mr Poon or Mrs Wang immediately after the Court had adjourned that day to go to Mr Poon's office in Central to give a statement to Lam instead of Lam going to Mrs Wang's building? After all, Tse went to Mr Allan Leung's office to give a statement at Mr Leung's office three days later.

5.101 Furthermore why Lam did not ask a solicitor of another firm to attest to Tse's statutory declaration but drafted and attested to the same solely by himself which he admitted, was contrary to proper practice and conduct.

SUSPICIOUS CIRCUMSTANCES VIII - THE DEFENDANT'S PRIOR KNOWLEDGE OF THE CONTENTS OF THE 1990 DOCUMENTS WHEN SHE WAS NOT SUPPOSED TO KNOW THE SAME

5.102 I shall consider the evidence of Mr Allan Leung first. The second statement of Tse was taken by Mr Allan Leung. He was the solicitor of the defendant present at the hearing on 6 September 1999. His firm acted for her in that hearing and also in the subsequent hearing of the plaintiff's application for leave to swear death. Mr Leung's evidence was that during the hearing on 6 September 1999, after the envelope was opened and the contents were shown, he had a telephone conversation with the defendant. The Court had given each party a set of copies of the four questioned documents. He recalled that he had given copies of one set of questioned documents to Mr Joseph W.K. Poon, who was the solicitor acting as an adviser and a confidant of the defendant and he was also present at the hearing.³⁸ (I must say that both Mr and Mrs Wang had never run out of solicitors acting for them.) This could only be done after his return to his office as there would not be any photocopying facilities available in the Court after the Court adjourned late in the afternoon. As soon as possible after his return to his office at Cheung Kong Centre, he made another telephone call to the defendant.³⁹

5.103 There were just two telephone conversations between him and his client on that day⁴⁰ and he did not have any other meeting with her since he attended Court that day.⁴¹ Hence, anything he learned from his client on that day relating to the contents of the questioned documents would be either from the telephone conversation during the brief Court adjournment or the one he had with his client after he went back to his office.

5.104 Further it was Mr Leung's evidence that even when he spoke to the defendant after Court on 6 September 1999, his impression was that she would not have copies of the questioned documents before her.⁴² In the conversation he had with the defendant after Court, he advised her to identify the witnesses⁴³, to identify the writing on the document and to engage an expert on handwriting and also to take a statement from the witnesses as soon as possible.⁴⁴ Either during the short Court adjournment or during the conversation after Court, he must have told the defendant the names of the witnesses on the document.⁴⁵ Tse's name was plain and obvious from the documents and hence Mr Leung would not have any difficulty in reading his name and identifying him.

5.105 However, in relation to Document A, all Mr Leung could say is that the other witness was surnamed Lee⁴⁶ and he had told the defendant that this other witness was Mr Lee.⁴⁷ The Court of course during that afternoon hearing stated that the other signature appeared to be "K.S. Lee". However Mr Leung might not have picked that up. Mr Leung would say that probably in one of the two conversations with the defendant on 6 September 1999, the defendant had told him that Lee, the other witness on Document A had already died.⁴⁸ Thus from the evidence of Mr Leung, on 6 September 1999, even without the questioned documents before her, the defendant was able to say that the other purported witness to Document A was dead. It was not suggested by her nor was there any evidence to suggest that someone had told her independently before that that one of the witnesses to one document inside the envelope she got from Teddy signed his name as Lee Kin Sang.

5.106 Lee Kin Sang happened to be a contractor or employee of Chinachem who had died on 21 June 1996.⁴⁹ This piece of evidence would strongly indicate that the suggestion that the 1990 Documents were placed in a sealed envelope and given to Nina in 1990 by Teddy and Nina had never opened the envelope was not true. In fact if she had told her solicitor on 6 September 1999 that the other witness Mr Lee on Document A was dead, this would be a strong indication that she had already known that this "Lee something" was Lee Kin Sang and he had already died. She could not have known that unless she had already seen Document A or otherwise was a party to the forgery of Document A.

5.107 In order to salvage this situation, Counsel for the defendant showed Mr Leung a transcript of a hearing on 23 September 1999 whereby Mr Warren Chan for the plaintiff was recorded to have said⁵⁰ : "if he is one Mr Lee Kin Sang, my instructions are he is dead already, which is why I say for obvious reasons the earlier the police investigation the better." Then Mr Leung was asked in re-examination as to whether he was sure that before Mr Warren Chan said that to the Court, he already knew that a Mr Lee Kin Sang had already died. To that Mr Leung said he could not really remember.⁵¹ Mr Leung also could not say from the document that the signature of the other witness is Lee Kin Sang. Then Mr Leung said "It is possible that that was the first time I learned about that"⁵² meaning when Mr Warran Chan said to the Court "Lee something" was indeed Lee Kin Sang and that he was dead. Eventually Mr Leung said the impression he had earlier about the details of this person could have come from the hearing on 23 September 1999.

5.108 The piece of re-examination would at most make the evidence of Mr Leung less certain as to when he knew that other witness Lee was dead, whether it was on 6 September 1999 or on 23 September 1999.

5.109 However, there were other pieces of uncontroversial evidence which would show that Mr Leung must have been told of the death of the witness "Lee something" on 6 September 1999. From the evidence of Mr Leung, after the conversation with Mrs Wang, he also wrote a letter of advice to his client on 9 September 1999 recording the advice given to her on 8 and 9 September 1999. One of the matters recorded was the need to take a statement from Tse. The relevant part of the letter said⁵³ :

5.110 There could be no doubt that leading Counsel had been advising that it would be important to obtain urgently a statement from the witnesses to the 1990 Will and Mr Leung had advised Mrs Wang to identify those witnesses and to take a statement from them.⁵⁴ However the letter of advice of 9 September 1999 only mentioned about taking a statement from Mr Tse and not anything like finding out the identity of this "Lee something" and/or taking a statement from him. Likewise in taking the statement from Tse on 9 September 1999, Mr Leung did not ask Tse any question about the signature of "Lee something" at all.

5.111 One may argue that since the letter was written on 9 September 1999, by then the defendant would have the opportunity of seeing a copy of Document A and would have advised Mr Leung that the signature of this "Lee something" would appear to be like that of Mr Lee Kin Sang who had already died and hence there was no point in making any pursuit of taking a statement from him. However that was not the case put in the re-examination. The re-examination was conducted on the basis that Mr Leung only learned of the death of Mr Lee Kin Sing by 23 September 1999. Had it been the case that the defendant had told Leung of the death of Mr Lee and hence there was no point in pursuing to take any statement from him on 8 or 9 September 1999, then she must be in a position to instruct her Counsel to lead such evidence in re-examination or Leung would have said so anyway. There was no further communication disclosed between Leung and Mrs Wang apart from his last telephone conversation with her on 6 September and his letter of 9 September.

5.112 Hence notwithstanding the very specific re-examination question, it is clear the overwhelming probabilities were that by 9 September 1999, Mr Leung had already been made aware of the death of the other witness, Lee Kin Sang and hence nothing was mentioned about him in his advice letter of 9 September 1999. His knowledge could only have been acquired on 6 September 1999 as the other alternative that he learned of it on 23 September 1999 could not explain why his letter of 9 September 1999 made no mention of this Mr Lee. The defendant's case that she was given the sealed envelope and that she had never opened and looked at the contents was either false or at least very suspicious in light of her instructions to Mr Leung of the death of the other witness Lee on 6 September 1999. One would wonder why she had such a knowledge that the other witness is Lee Kin Sang and he had already died unless she had seen Document A already or she was a party to the forgery of the 1990 Will. This is another suspicious circumstances.

5.113 Consequently if on 6 September 1999, the defendant had already instructed Mr Leung that the other witness to Document A was dead, she could only have done so by taking the stance that the person involved was Lee Kin Sang. However in the hearing for interrogatories on 5 July 2001, the defendant's leading Counsel, in response to a specific question from the Court : "was it your instruction that she did not know this signature", told the court that "she does not know this signature" and later on after taking specific instructions told the Court that his understanding was correct.⁵⁵ Then just before the commencement of the trial of this action, the defendant purported to give discovery of some documents signed by Lee Kin Sang, the contractor for Chinachem,⁵⁶ and sought to justify the late discovery by her solicitors saying that the discovery had prompted searches made as a result of the exchange between her leading Counsel and the Bench on 5 July 2001.⁵⁷ However some of the documents disclosed must have been deliberately obtained in January 2001 already and thus could not have been the result of the exchange on 5 July 2001.⁵⁸ The letter of the defendant's solicitors also said that :

That would appear to be the position taken by the defendant there and then.

5.114 Furthermore throughout this very long trial in this action, the defendant appeared to conduct her case as though Document A had only one witness signature and that was the signature of Tse. There was no attempt to lead any evidence on the possible identity of the "Lee something" as the defence apparently was saying that she could not be certain who he was. The defendant also adduced no evidence on what effort she had spent on trying to ascertain the identity of the "Lee something" or seeking to show that the "Lee something" was or was not in fact Lee Kin Sang. Since "Lee something" was plainly one of the attesting witnesses, the party propounding the will should have endeavoured to call evidence from him on the execution of the will, and to explain why such evidence from him would not be available. This was never done in this case. Instead there is evidence that the defendant knew of the content of the will at a time when she was not supposed to know. Both "witnesses" happened to die after Teddy's disappearance, one before the Testamentary Script was lodged with the Court and one after that but before the trial. There was no attempt to dispel the suspicious circumstances herein.

SUSPICIOUS CIRCUMSTANCES IX - THE DEFENDANT'S BEHAVIOUR IN PROPOUNDING THE 1990 WILL

5.115 Since the commencement of the proceedings by the plaintiff in respect of the estate of Wang, first by application for leave to swear death and later by Probate Action No.6 of 1997, the defendant's attitude had always been dilatory. She had asked for extension of time on many occasions in respect of a number of matters. She has also tried to stay the trial of this action.⁵⁹ The defendant had shown extreme reluctance to disclose to the plaintiff that she was in possession of the 1990 Documents which she knew were the "Wills" and testamentary directions of Wang. There was really no reason for the delay in the filing of the affirmation of Testamentary Scripts in Probate Action No.6 of 1997. Since according to her, she had always had the 1990 Will in her possession albeit it was in a sealed envelope, there should be no difficulty for her to prepare and file the affirmation. It certainly could not have taken her over six months to enquire, search and realise that in fact she had this envelope.

5.116 Eventually under the compulsion of the "unless order", after the defendant had filed her first affirmation of Testamentary Scripts, she still tried every means of preventing its contents from being revealed, even to the plaintiff because of two purported reasons :

5.117 Both reasons are daft and illogical. In fact it is difficult to see why the defendant would not like to open the envelope because if upon the opening of the envelope, it was revealed that Teddy had made a perfectly proper will which revoked the 1968 Will and gave no interest whatsoever to his father, then plainly his father would not have any interest to maintain any proceedings regarding the estate, whether for application for leave to swear death or for probate of the 1968 Will. However the reluctance of the defendant to take such a course would more probably be due to :

5.118 In the defendant's affirmation of Testamentary Scripts of 16 January 1998, the following things were purportedly said to her by Teddy when the envelope was handed to her⁶¹ :

From this account she gave in this affirmation, she would not have known anything about the contents of the will save that the envelope contained the will with confidential instructions relating to her husband's estate. She would not have known that :

5.119 However on the same day of this affirmation i.e. 16 January 1998, the defendant also filed a Defence in HCAP No.6 of 1997. By her Defence, she pleaded that the 1968 Will was "cancelled" ( without any particulars as to how) but she made no counterclaim to propound the 1990 Will as she could not when the envelope had not been opened.

5.120 After the plaintiff had discovered, inter alia, that the defendant's act in diluting Wang's interest in Chime, the plaintiff applied for the appointment of receiver or administrators. The defendant filed various affirmations resisting the application. In her affirmation of 14 July 1999, she said⁶² :

Further, in her affirmation of 15 July 1999, she said⁶³ :

5.121 It is difficult to see if the defendant had never seen the contents of the envelope, how could she claim that she was the sole beneficiary of the later will which superseded and revoked the 1968 Will? What if the envelope only contained the directions to his father to make a specific lump sum gift to his mother or siblings or even to Nina, as in the nature of a codicil?

5.122 If on the other hand, Teddy had already on the occasion of handing over the envelope to her, told her about the contents of the will, then what was the point of Teddy asking her not to open the envelope until his death? Furthermore, if she was truthful in saying that she was told to keep the contents of the Will secret and would like to respect Teddy's wishes therefore, why should she reveal the contents of the 1990 Will in her affirmation of 15 July 1999? As Nina did not come forward to give evidence, we would not know what would be her answer to these two questions.

5.123 Furthermore, in her earlier affirmation of 16 January 1998⁶⁴, she said :

5.124 Thus what were hitherto instructions relating to the estate had become instructions to me relating to the disposition of the estate. Unless she in fact had seen the contents of the envelope, how could she say that the instructions concerning the estate were instructions given specifically to her? As it turned out the instructions were given to her not to allow either the Wangs or the Kungs to benefit from the estate.

5.125 Then came the hearing on 6 September 1999, the defendant suddenly changed her mind and instructed her Counsel to inform the Court that she no longer had any objection for the envelope to be opened. She did not inform the Court the reason for her sudden change of heart.⁶⁵ I find that the plaintiff's submissions as to the most probable reason for this change of heart on 6 September 1999 were probably right, namely she realised that :

5.126 Taking all the aforesaid suspicious circumstances, it is more probable than not that the defendant had already been aware of the contents of the envelope even before it was opened by the Court, including the fact that one of the two witnesses was one Lee Kin Sang who had died on 21 June 1996. The question is how could she have known the contents before the envelope was opened by the Court?

FINAL CONCLUSION ON ALL THE SUSPICIOUS CIRCUMSTANCES

5.127 The defendant by her counterclaim propounded the 1990 Will by these four 1990 Documents. The burden is on her to prove that these were the last testamentary scripts of Wang, the deceased, and that they were genuine documents properly executed by the testator. I am afraid that the evidence before me is far from that. She has failed to dispel all these suspicious circumstances in order to prove the 1990 Will before it could be admitted to probate. Those suspicious circumstances together can only point to one irresistible conclusion and that is the 1990 Documents are nothing but forged documents.

5.128 If the burden is on the plaintiff to prove the 1990 Documents were forged documents as he has alleged forgery in his pleadings, I must say that he has discharged this burden by the evidence presented before me. All these pieces of evidence concerning suspicious circumstances alone are strong and cogent evidence. The only irresistible conclusion that one can draw from all the unanswered or unanswerable, or unexplained or unexplainable questions raised by the evidence presented by the plaintiff, is that the 1990 Documents are forged documents. In order words, even assuming that the plaintiff has no evidence whatsoever on handwriting to prove that the signatures were not written by Wang nor Tse respectively, all the suspicious circumstances raised by the plaintiff would by themselves sufficient to cast grave doubts on the authenticity of the 1990 Documents. I must say that from the evidence presented before me, I have no doubt by the suspicious circumstances alone, that the 1990 Documents are nothing but forged documents. This is just an independant assessment and conclusion on the suspicious circumstances only, i.e. independant of the handwriting evidence and therefore not affected by it at all at this stage.

5.129 I shall in the next section, Section II, consider the handwriting evidence concerning the signatures of Wang and then Tse and the handwriting in the body of Document A, one after the other. However, I would also emphasize here again that each issue of evidence will be considered independantly first and a conclusion will be drawn therefrom before the cumulative effect of the evidence will be considered later in the Final Conclusion.

Footnote:

1 T156:47:16, 48:3, T157:19:1-5 and 22:24
2 p.92 and p.72, F1
3 T160:91:17-25
4 T157:21:20-25 and 5:3-8
5 para.39(b), F26
6 T158:27:13 to 28:3
7 T111:30:19
8 T162:30:3-6
9 T161:53:2-5 and 55:1-6
10 T161:53:18-22
11 T161:60:17-19
12 T161:56:14-18
13 T162:15:17-23
14 para.7, p.6, B
15 ibid
16 T111:30:24
17 p.211, G1 : letter of Mr Peter Trace of Private Capital (Asia) Ltd dated 14.2.1990
18 T161:29:13 and 157:13:18-22
19 T135:60:2-14
20 T160:65:19-66:9
21 T164:47:14
22 pp.3770-3771, G13
23 T111:37:12-24
24 T133:79:12-14
25 T133:79:21
26 T133:79:23
27 T135:17:4-7
28 T135:50:13-17 and T143:69:22
29 T160:74:3-17
30 T150:100:10-19
31 p.29, D
32 T150:102:18-22
33 F8-2257 and T163:27:13
34 This will be considered in detail in Section II, Chapter 13
35 p.1839, G6
36 p.1492, G5
37 For detail see Chapter 12 under Tse's Background
38 T154:74:22
39 T154:77:17-19
40 T154:85:1
41 T154:85:2-5
42 T154:76:23-25
43 T154:77:20-21
44 T154:78:20-22
45 T154:78:23 to 79:1
46 T154:81:8-14
47 T154:80:17-19
48 T154:80:20 to 81:7
49 p.2041, G8
50 T154:139:3-5
51 T154:138-141
52 T154:140:24-25
53 p.3772, G13
|54 T154:85:12-18
55 T1:39:11-47:3
56 pp.124-125, pp.128-129, G
57 T1:49:2-15
58 p.124, G and T1:79
59 See Appendix 6 for the Judgment thereof
60 paras.5 and 6, p.269, F26
61 para.8, p.269, F26
62 para.13, p.310, F26
63 para.8, p.314, F26
   para.51(e), p.327, F26
    para.51(n), p.329, F26
64 para.11, p.270, F26
65 T154:59:9

Representation:

SECTION II - HANDWRITING

Section II - Handwriting

List of Abbreviations

Chapter 6 - Introduction And Legal Consideration

INTRODUCTION

6.1 In this Section II, I shall consider the main dispute between the parties, i.e. whether the 1990 Documents are forged documents. I shall assess the issue independently, i.e. independant of the previous issue of surrounding suspicious circumstances and I shall state what findings are proved to my satisfaction and to what standard of proof thereof. Further each four sets of signatures of Wang will be assessed independently first before the four sets of Tse's signatures in these four documents. Then they will be considered together but only thereafter.

6.2 Thereafter the handwriting in the body of the four documents will be considered separately. Further, under this issue, the experts' evidence will be considered deliberately first and independently before the evidence of Teresa's identification of the handwriting thereof. Then the two separate pieces of supporting evidence will be considered together.

6.3 The overall conclusion on handwriting and the two sets of signatures shall be considered together at the final conclusion at the end of this judgment after Section III on ink-dating. There shall be an overall consideration and synthesis of all the evidence before me.

6.4 As stated in Section I hereinbefore, Section III is written before Section II which in turn is written before Section I. Apart from the practical consideration of the order of submissions received from Counsel, it is also intended to achieve the independant assessment of each issue and in turn sub-issue before the synthesis of them in turn of one after the other and finally together.

IS FORGERY THE ONLY ISSUE?

6.5 Counsel for the defendant submitted that the only issue in this case is forgery since the plaintiff challenges the 1990 Will of Wang consisting of one or more of the four documents on the basis that it was not made by him and, in particular, that "the signatures of [Wang] and [Tse] on the 1990 Documents were forged".

6.6 On the other hand, Counsel for the plaintiff submitted that it is wrong to say that the only issue in this case is forgery and it is a misleading way of characterizing the issue. The issue is whether the defendant has satisfied the Court that the four questioned documents were duly executed by Wang as his last testamentary document. It was submitted that besides the examination of handwriting evidence, the suspicious circumstances in this case, particularly the conduct of the defendant in propounding the 1990 Will should be scrutinized in minute details by this Court.

6.7 It is quite clear as considered in Section I hereinbefore, there are other background circumstances which are relevant in my consideration, for example whether Wang would execute such documents as his last will shortly after his fall from a horse in the ways as alleged by the defence but, there and then unknown to him, also shortly before his fatal kidnap. Each issue shall be considered separately and independently first. The relevant legal consideration thereof is considered hereinbelow.

BURDEN OF PROOF

6.8 Counsel for the defence submitted that, although the defendant has the general burden to satisfy the Court that the 1990 Will should be propounded as the last will of Wang, it is common ground that in respect of the issue of forgery, the burden rests squarely on the plaintiff who asserts forgery. Thus it was submitted that the burden is on the plaintiff to satisfy the Court that each of the questioned signatures of both Wang and Tse on each of the four documents was forged.

6.9 On the other hand, Counsel for the plaintiff submitted that the defendant has to prove positively that there was no forgery and it is not up to the plaintiff to prove any forgery. The plaintiff's burden was only an evidential burden, which would mean that the plaintiff would have to adduce or point to some evidence which would be sufficient for the Court to leave the issue to the jury, in the case of a trial by jury, or to leave the issue to be considered by the Judge in the case such as the present, where the Judge sits as both Judge and jury. Counsel for the plaintiff admitted that there were some statements in some text book which appears to say that the burden of proving fraud, undue influence and forgery lies on those who allege it.¹ It was submitted that the editors in William, Mortimer and Sunnucks must be referring to the evidential burden, as the editors went on to say that the burden of proof in many cases shifts during the course of the case.

6.10 I tend to accept the submissions of the defence with certain additional consideration. Since it is the plaintiff who alleges forgery the burden is on him to prove that these eight signatures and the documents thereof were forged. The question of burden of proof would only arise if the Court cannot decide whether those signatures were forged or the evidence was so evenly balanced and the one who has the legal burden of proof would fail, i.e. the plaintiff in this case would fail in his allegation of forgery. This situation will not arise here.

6.11 However, on the other hand since it is the defendant who propounded the 1990 Documents as the last testamentary documents of Wang, the burden rests squarely on the defendant to establish that the documents were indeed the last wills of Wang. It would be part and parcel of the defendant's legal burden of proving that the signatures of Wang and Tse were genuine in the course of propounding the 1990 Will. Even when the Court cannot decide whether these signatures were forged or in another case where no forgery is alleged, the defendant would still be required to prove that the Wills were signed by the testator with the necessary animus testandi. It is also part and parcel of the defendant's legal burden to clear up all the relevant suspicious circumstances in light of the plaintiff's allegation of forgery.

6.12 In this respect I would just stop here although Counsel on both sides submitted various scenario in the consideration of legal burden of proof. I do not blame them for doing so since they do not know what finding of facts I will make. This various possibilities would have no use apart from academic consideration. For example what is the legal position if I find Wang's signatures are genuine whereas Tse's signatures are forged or vice versa. In my finding these circumstances do not arise and anything I consider as the legal position would be obiter anyway in this long judgment. Thus I do not intend to prolong it any further. I would, as submitted by Counsel for the plaintiff, evaluate the handwriting experts' evidence by scrutinizing their reasoning, analysis and whether the conclusion reached was supported by cogent evidence.

STANDARD OF PROOF

6.13 Counsel for the defence submitted that it is well-established law that in a civil case where a serious allegation is made, like forgery or fraud, although the standard of proof is still on a balance of probabilities, the courts would not find such allegation established unless the evidence is strong and cogent.

6.14 In Re H and Others [1996] AC 563, at p.586 Lord Nicholls of Birkenhead said :

I accept the submission of the defence (in fact the plaintiff's Counsel did not submit otherwise) that this Court should require strong and convincing evidence before it would make a finding of forgery.²    For the benefit of the parties I shall state clearly in my findings herein what findings I will make and to what standard of proof I find the facts are proved, i.e. whether it is on a balance of probability, high degree of probability, strong cogent and convincing evidence, or beyond reasonable doubt.

ADMISSIBILITY OF OPINION EVIDENCE ON HANDWRITING AND SIGNATURE IDENTIFICATION

6.15 Both sides accepted that the Court may admit the evidence of the opinion from experts upon the genuineness of a disputed signature or handwriting, whether ancient or modern, after the experts have compared it with specimens proved to the satisfaction of the Court to be genuine. Even without making comparison, experts are also entitled to give general opinion from their general knowledge of the subject on whether the writing is in a feigned or natural hand.³

6.16 However, Counsel for the plaintiff submitted that opinion evidence on handwriting is not restricted to experts. The law is stated in Halsbury's Laws of England, 4th edn, Vol. 17, para.89 as follows :

6.17 Apart from the position at common law, the Court can also admit evidence from lay persons on handwriting under section 17 of the Evidence Ordinance which provides :

6.18 There could be occasions that the court is prepared to infer from the name in a signature itself as proof of the identity of the person signing. However, the cases falling within this category would all be cases where there was nothing to raise any doubt on the identity. For example in Roden v. Ryde (1843) 4 QB 626, 114 ER 1034 an action was brought against the defendant Evans for goods sold and delivered and also on a bill of exchange accepted by the defendant Ryde. It appeared that about five years before the action was brought, the defendant Evans had been a customer of the plaintiff and had written a letter acknowledging receipt of the goods. The witness who proved these facts did not know whether the defendant was the same Evans; nor was any further evidence given of the fact. In relation to the bills of exchange, there was evidence that the defendant Ryde had kept cash at the bank where the bills were made payable, and had drawn cheques which the cashier had paid. The cashier also swore that the acceptance was in the same writing as that on the cheques. However, he had not paid any cheque for some time and did not know the parties personally and could not identify the defendant Ryde.

6.19 The court held that in the circumstances before the court, there was sufficient prima facie evidence on the identity of the respective defendants and in the absence of any contrary evidence the identity was proved. In so ruling, the court took into account the fact that the names of the persons signing on the documents were not very common names, and the chances of persons with the same names signing on the documents were remote.

6.20 Also the court further held that the case in which the defendants could prove that the signatures were not theirs was the reason for throwing the burden on the defendants to prove the negative. Lord Denman CJ said (114 ER 1307) :

6.21 Since in this case this Court is sitting as both Judge and jury, the Court is entitled to take into consideration the opinion of lay persons on the comparison between the disputed handwritings and genuine handwritings, Counsel for the plaintiff submitted that the Judge is also entitled to make comparison himself between the disputed handwritings and signatures against those which had been proved to be genuine to his satisfaction and come to a decision as to whether the defendant had proved the disputed documents were the last wills of the deceased.

6.22 As the law permits opinion of lay persons on handwriting comparison to be given, Counsel for the plaintiff submitted that it must necessarily follow that the law would permit experts who are not acquainted with the language in which the writings or the signatures are made to give evidence on the authenticity of the writings or the signatures concerned. In the present case, the disputed writings are all in Chinese, but it would appear that at least to the extent that the writings are in the form of signatures, occidental handwriting expertise and methodology had been accepted by the Court to be equally applicable.

6.23 In Kung Wong Sau Hin v. Kung Kwok Sun and others, Probate No. 2 of 1982 (per Deputy Judge Nazareth QC, as he then was), the Court was concerned with the authenticity of a home made will said to be signed by the deceased propounded by the defendant. The signature was in Chinese. To support the will, the defendant called a highly qualified professor who had vast experience and knowledge on Chinese calligraphy and had given evidence on Chinese handwritings in courts before. His approach to the handwriting was that Chinese calligraphy was a living art and had much more in it than Latin script. With the trained eyes, one could recognise the "Qi" (氣) (translated as rhythmic "vitality" by the expert) in the characters and through the recognition of this feature, the writing could be identified. The plaintiff called Mr Radley as expert who admittedly did not know Chinese. In the end, the court accepted the evidence of Mr Radley notwithstanding he did not know Chinese. The court accepted the evidence that the examination of ideographic writing should proceed in the same orderly scientific manner that is employed with more familiar script, and that it was possible for an occidental questioned document examiner to make meaningful examinations of documents written with ideographic characters. The court also accepted the evidence that a signature in Chinese was different from ordinary handwriting in Chinese in that the former did not necessarily represent convention handwriting, but had become so personalised as to be a mark produced almost by reflex action with very little conscious effort.

6.24 Kung Wong Sau Hin case also reaffirmed that even in cases where the allegation was whether the will sought to be propounded was forged, the issue was whether the party propounding the will had discharged the burden of showing on balance of probabilities that the will was executed by the deceased, and not as a separate issue of whether the allegation of forgery was proved (see pages 21, 32 and 37 of transcript of the Judgment). Deputy Judge Nazareth QC first considered whether on the general evidence called by the party propounding the will that they had satisfied him that the will was duly executed by the deceased. On coming to the view that the evidence was not sufficient to satisfy him that the will was executed by the deceased, he then went on to consider the expert evidence on handwriting led by that party to see if overall he was satisfied that the will was duly executed. The Judge was not so satisfied (see page 32). The Judge remarked that it would in fact not be necessary for him to go on to consider the evidence of the party opposing the document. Thus the plaintiff's Counsel herein submitted that had it been the case that the burden was on the party alleging forgery to have the legal burden of proving positively forgery, then it would be surprising that the Judge should not approach the opposing party's evidence on forgery first. At the end of the day, the Judge concluded his decision that the defendant before him failed to establish on balance of probability that the document propounded was duly executed by the deceased. In fact, the Judge did not make any express finding that the document propounded was a forgery, which would be required if the real issue was forgery.

6.25 I do not quite accept this submission according to what I have stated earlier in this chapter on the distinct and different burden of proof on each party and they are related in some respects as two sides of a coin.

6.26 Furthermore, the Kung Wong Sau Hin case also reaffirmed the true role and value of expert evidence. The Judge expressly affirmed the statement of the law in Phipson on Evidence, 13th ed., paras.27-34 that the duty of expert "is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusion, so as to enable the judge or jury to form their own independant judgment by their application of these criteria to the facts proved in evidence."

6.27 Thus Counsel for the plaintiff submitted that it is for this Court to decide on his own view whether the signatures of Wang were executed by him in the manner and circumstances as suggested by the defendant. It is not a question of the Judge's accepting the conclusion or the opinion of any particular expert in substitute for his own. However, in deciding on my own view, I must say that I shall accept any particular expert's evidence if I find, on reasoning and analysis, his view is correct and acceptable. I shall in the next chapter consider the basis and approach of assessing handwriting evidence.

Footnote

Chapter 7 - Principles And Basis Of
Examining And Evaluating
Handwriting And Signature Evidence

7.1 Both sides agree that in comparing handwriting and signature between the known and the questioned ones, one has to note both similarities and differences.

7.2 However the defence complained that the plaintiff's experts (Mr Gus R. Lesnevich "GL", Mr Cheng Yau Sang, Patrick "Cheng" and Mr Tsui Chee Keung, David "Tsui") have over-emphasised on similarities in comparing handwritings and on differences when comparing signatures. The plaintiff, on the contrary, complained that experts for the defence ignored those significant similarities in comparing handwritings and those significant differences in comparing signatures.

7.3 Thus it is important to state at the outset what is a similarity and what is a difference and what constitutes a significant one. This will also include the consideration of what constitutes a set of variations within the known handwritings or signatures. But before that, one would also have to consider the principles and basis of making comparison between the known handwritings/signatures and the questioned ones. I shall start with what both sides have agreed as the bible of handwriting examination - Osborn on Questioned Documents 1947.¹

7.4 Osborn said² :

7.5 In respect of "natural variation" Osborn said³ :