CHIU MAN FU AND OTHERS v. CHIU CHUNG KWAN YING

FAMV No 42 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 42 OF 2013 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO 40 OF 2012)

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REASONS FOR DETERMINATION

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Mr Justice Tang PJ:

1. On 12 December 2013, we refused leave to appeal.  These are our reasons.

2. The testator died on 4 December 2004 aged 55.  The cause of death was acute myocardial infarction and diabetes mellitus. He was a wealthy man and left an estate with a provisional net value of nearly $260 million.  He had sixteen children by four women, Madam Wong, the defendant, Ms Chan and Ms Lam. Nine of the children were by Madam Wong whom he married in September 1973, and the six youngest of whom are the plaintiffs in this action.  He and Madam Wong separated on 27 August 1989, and were divorced on 19 April 1993.

3. In about 1990, the testator began to live with the defendant as man and wife.  Their first son was born on the 22 February 1990.  The defendant bore the testator two more daughters who were born on 7 July 1993 and 20 July 1995.  The defendant, Ms Chan and Ms Lam were neighbours and friends since childhood.  The defendant introduced Ms Chan to the testator in 1990 because he needed a personal assistant which she became.  But Ms Chan soon became his mistress.  She bore him two daughters on 20 November 1995 and 21 April 1997 respectively and a son on 2 June 1998.  The defendant also introduced Ms Lam to the testator.  He and Ms Lam started to live together in 1993.  They had a son on 3 September 2000.

4. The testator made two wills.  The first on 24 December 1997, at the office of Messrs Day & Chan.  Under the 1997 will, he left his estate to his children.  At that time, he only had fourteen,the youngest two of the sixteen were not yet born.  He appointed Man Fu, his eldest son by Madam Wong and the defendant as executors. The residuary estate was to be divided into nineteen equal parts to be distributed among the fourteen children, each son taking two parts and each daughter taking one part.  No provision was made in the 1997 will for Madam Wong, the defendant, Ms Chan or Ms Lam.

5. Madam Wong committed suicide on 24 April 2003 in the Mainland.  That was followed by a funeral in the Mainland, where the testator felt that some of his children by Madam Wong had treated him “with utmost hostility and disdain”, he “then firmed up his mind to disinherit the 9 children.”[1]  

6. On 5 June 2003 the testator made a will at Messrs Deacons (“Deacons”), prepared for him by Ms Lilian Chiang of Deacons, based on instructions given to her by Ms Chan.  By the 2003 will, he left his estate to the defendant alone, and should she pre-decease him or did not survive him by 30 days, to their son Man Ho.  Clause 7 of the 2003 will stated: 

“For avoidance of doubt, I hereby declare that I do not wish to make any provision for [the 9 Children] in this Will.”

7. The plaintiffs challenged the 2003 will on the basis the testator lacked testamentary capacity when he executed it and that he did not know or approve of its contents.  After a trial which lasted 34 days, Poon J in a detailed (101 page long) judgment dismissed the plaintiffs’ claim and made an order on the defendant’s counterclaim propounding the 2003 will in solemn form.

8. The plaintiffs appealed to the Court of Appeal(Kwan, Lam JJA and McWalters J).  On 18 June 2013 the Court of Appeal dismissed their appeal.  On 18 September 2013 the Court of Appeal refused leave to appeal to this court. The plaintiffs now apply for leave to appeal.

9. Mr Neville Sarony SC for the plaintiffs submitted that the following questions of great general and public importance are involved:

“(1) Is testamentary capacity established without consideration of the 4th element in Banks v Goodfellow, namely that ‘no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which if the mind had been sound, would not have been made' (p.565)? Or,

(2) Does the failure to consider the 4th element,

(a) vitiate the Court’s judgment? And/or

(b) constitute a miscarriage of justice?

(3) Is evidence of signs or symptoms of a mental disorder a pre­ requisite to consideration of the 4th element of Banks v Goodfollow; or is such ‘disorder of the mind’ evidenced as in Boughton v Knight, namely that there is a point at which such repulsion and aversion to one or more of the testator’s children must be held to have proceeded from some mental defect in himself, and hence evidence unsoundness of mind (p.69)? Which ought to lead, in turn, to a close consideration of what is claimed to lie at the root of the aversion?

(4) Is it correct as stated in Sharp v Adam that the 4th element ‘is concerned as much with mood as with cognition’ ([93], p.23)?”

10. These questions are based on the premise that the judge had failed to consider the 4^thelement in Banks v Goodfellow.  But that is a false premise.  The judge, in his detailed, careful and sympathetic judgment, dealt with the evidence fully, and looked at every facet of the evidence asking if it indicated any unsoundness of mind.  Nor did he take the view that the rationality of the will is not a relevant consideration.  The complaint that the judge had failed to consider the 4^th element was rejected by the Court of Appeal.  Kwan JA who gave the lead judgment dealt with this complaint fully in her judgment. 

11. Mr Sarony SC for the plaintiff recognized that he could not challenge such clear findings of fact.  He relied on the supposed unreasonableness of the testator disinheriting all his children as evidence of unsoundness of mind.

12. The learned judge dealt at length with the alleged irrationality of the will, and the disinheriting of all his children in his judgment.  He noted that:

“186. The defendant was more than a wife or companion. She helped him in managing his finances. Of all the women in his life, the defendant alone shared joint and investment accounts with him …”

13. He accepted the evidence of the defendant, Ms Chan and Ms Lam, that the testator instructed the defendant: 

“32. … to take care of Ms Chan, Ms Lam and their children … and to decide if and how to provide for the 9 children if they behaved themselves and did not cause trouble.”.

14. The Court of Appeal, after a careful review agreed with the learned judge’s conclusion.

15. This is a classic concurrent findings case.  As the Appeal Committee, citing Lord Thankerton in Srimati Bibhabati Devi v Kumar Ramendra Narayan Roy[2] stated in Chinachem Charitable Foundation Ltd v Chan Chun Chuen:[3]

“… the Court should not embark on a review of concurrent findings unless there is a reasonable basis for thinking that there has been a miscarriage of justice or a critical violation of some principle of law or procedure, in other words, unless there is good reason to believe that the review will lead to reversal of the findings made below.”

16. There was no basis upon which leave to appeal could be granted.