Zhang Rui Hua and Another v. Wang Lan and Another
Read the full judgment text of CACV 208/2013 on BabelCite. This Court of Appeal judgment was delivered on 8 January 2016.
1. At the conclusion of the hearing of this appeal, we allowed the appeal of the defendants from the judgment of Chung J given on 18 September 2013, and ordered a retrial of the probate action below concerning the validity of the purported last Will of the deceased, Po Yu (“the deceased”) dated 2 February 2005 (“the Will”). We now give our reasons.
Cited by 4 cases · Cites 5 cases
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CACV 208/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 208 OF 2013 (ON APPEAL FROM HCAP 13/2010) ________________ BETWEEN
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______________________________ REASONS FOR JUDGMENT ______________________________ Hon Cheung CJHC: 1.At the conclusion of the hearing of this appeal, we allowed the appeal of the defendants from the judgment of Chung J given on 18 September 2013, and ordered a retrial of the probate action below concerning the validity of the purported last Will of the deceased, Po Yu (“the deceased”) dated 2 February 2005 (“the Will”). We now give our reasons. The facts 2.As there will be a retrial, I shall be brief with the facts, and unless otherwise required, I shall refrain from making comments on the facts and assertions of the parties. 3.The deceased came from the Mainland but became a Hong Kong resident in December 2000. He was a businessman doing business on the Mainland. His business and personal affairs were such that he had to travel regularly among and stay in Hong Kong, Shenzhen and Yuxi City, Yunnan. Towards his later years, he suffered from ill health; in particular, he suffered from heart diseases, from which he eventually died on 24 March 2005 in Shenzhen at the age of 50. 4.The deceased’s personal life would appear to be less than straightforward. His mother is Madam Zhang Rui Hua, the 1st plaintiff in the probate action. He is also survived by his widow, Madam Wang Lan, the 1st defendant, whom he married in 1980. They had no children but according to Madam Wang, there is an adopted daughter, Ms Pu Juan, the 2nd defendant. Her status as a lawfully adopted child of the deceased is disputed, and it formed part of the counterclaim eventually dismissed after trial by the judge. 5.On the other hand, the deceased would appear to have formed a relationship with a Madam Ma in Shenzhen. That relationship produced an infant son, Pu Chuan Yao, the 2nd plaintiff, suing by his uncle (a younger brother of the deceased), Mr Pu Jun, as his next friend. Indeed the plaintiffs asked for a declaration that the 2nd plaintiff is the infant son of the deceased, which was disputed by the defendants. 6.To complete the story, the deceased would also seem to have formed another cohabitation relationship with a Madam Yeung in Hong Kong. Madam Yeung was not a party to the probate action below. 7.Apart from the disputed status of the 2nd plaintiff and that of the 2nd defendant as the deceased’s infant son and lawfully adopted daughter respectively which, if established, would entitle each of them to a beneficial share in the estate of the deceased if he had died intestate, the probate action raised also this overriding issue, that is, whether the Will is a valid and last will of the deceased. Under the Will, the deceased left everything to the two plaintiffs and specifically disinherited his wife Madam Wang. Nothing was left to Madam Ma or Madam Yeung either. The Will is said to have been made by the deceased during his last visit to Yuxi City at the office of his younger brother, Pu Jun. The computer‑printed Will was prepared with the help of a Mr Yang, a colleague of Pu Jun who typed out the deceased’s handwritten draft for him to execute. Execution of the Will was done in the presence of the brother, Mr Yang and the deceased’s long time employee/driver and friend, a Mr Han. Mr Yang and Mr Han also signed the Will as attesting witnesses. After execution, a copy of the Will was made at the office and given by the deceased to Pu Jun for safekeeping. The deceased is said to have kept the original Will in a small safe which he kept in his residence in Yuxi. 8.The deceased left Yuxi for Hong Kong afterwards. As mentioned, he passed away in Shenzhen less than two months later. He never had a chance to return to Yuxi. The relevance of this is that the original Will could not be found after the death of the deceased. According to the plaintiffs, Madam Wang had caused her brother‑in‑law (the natural father of the 2nd defendant) to change the lock to the living room of the residence of the deceased in Yuxi and nobody could gain access to the deceased’s residence (or the safe) after his death. The safe had since gone missing, and so had the original Will of the deceased. 9.According to the plaintiffs, the deceased’s marital relationship with Madam Wang was bad, and in fact they had been formally separated since 1999. They were not on good terms and that explained why she was disinherited by the deceased in his Will. All this was denied by Madam Wang. 10.Given those facts, not surprisingly, disputes soon arose between the two sides regarding succession to the deceased’s estate. There were proceedings on the Mainland and proceedings in Hong Kong. The non‑contentious probate proceedings 11.It is now necessary to detail the initial non‑contentious probate proceedings in Hong Kong which, ultimately, led to the commencement of the probate action below. Madam Wang, as widow of the deceased obtained estate duty clearance in Hong Kong in 2005, with a view to obtaining letters of administration of the deceased’s estate. Apparently she was ignorant of the existence of the Will. By HCAG008461/07, she applied formally for the grant of letters of administration of the deceased’s estate (as an intestate estate). She named herself and Pu Juan as the only persons entitled to share in the deceased’s estate as his widow and lawfully adopted daughter respectively. The application was filed on 20 August 2007. A few months back, that is, on 22 May 2007, Madam Zhang, the deceased’s mother, through her son, Pu Jun, instructed a firm of solicitors (Gary KW Tam & Co) to enter a caveat in respect of the estate of the deceased under HCCA 001198/07. As a caveat is only valid for six months[1], a further caveat was entered on behalf of Madam Zhang on 21 November 2007[2] and a third one was entered on 19 May 2008[3]. 12.This eventually prompted Madam Wang, the intending administratrix, to serve a warning to caveator dated 20 June 2008 on Madam Zhang through her solicitors. Pursuant to rule 44(7) of the Non‑Contentious Probate Rules[4], the warning required Madam Zhang:
13.Madam Zhang duly entered an appearance through her solicitors on 2 July 2008, pursuant to either rule 44(9) or (10) of the Rules. The appearance stated:
14.Significantly, the existence of the Will and Madam Zhang’s interest in the estate as one of the two named beneficiaries under the Will (rather than as the mother of the deceased as such) were not mentioned in the appearance at all. Moreover, it was specifically stated that the deceased died without leaving any issue surviving him, when the Will clearly stated that the 2nd plaintiff, the other beneficiary named in it, is the deceased’s son. These discrepancies obviously do not sit well with the plaintiffs’ case on the existence of the Will and that the plaintiffs, as mother and son of the deceased, are the only two beneficiaries named under it (collectively “the Discrepancies”). The probate action 15.All this eventually led to the commencement of the probate action, in which the plaintiffs alleged the existence and sought probate of the Will, and claimed for a declaration regarding the 2nd plaintiff’s status. The action was defended by the defendants, who counterclaimed for a grant of letters of administration in favour of Madam Wang and a declaration of status regarding the 2nd defendant. 16.Not surprisingly, the Discrepancies were made a subject of comment in Madam Wang’s witness statement dated 6 July 2011 (para 34):
The trial 17.The action came before the judge for trial, which lasted 5 days. At issue were the validity of the Will – that is, formal execution and testamentary capacity; the loss of the original Will and rebuttal of the presumption of revocation; and the respective statuses of the 2nd plaintiff and 2nd defendant (which would be relevant if a finding of intestacy was made). 18.Not surprisingly, Pu Jun was cross‑examined at some length on the Discrepancies at trial. His explanation in the witness box was:
19.The significance of the Discrepancies, bearing particularly in mind that according to the plaintiffs’ case, Pu Jun was an eyewitness to the making of the Will and played a significant part in it, was not lost on the defendants’ counsel at final submission. Counsel submitted (para 24):
20.To this, the plaintiffs’ counsel, in her written final submissions, replied simply that Pu Jun “gave a reasonable and credible explanation for his statement so as to prevent Wang Lan from disposing [of] the estate before it was too late” (para 124). The judgment below 21.The judge reserved judgment after trial. In a 14‑page judgment handed down 2 months later, the judge dealt with various issues and made findings. He found in favour of the formal execution of the Will as put forward by the plaintiffs, as well as the deceased’s testamentary capacity. He found that the Will had not been revoked by the deceased prior to his death despite its disappearance afterwards, and that the presumption of revocation had been rebutted. He also found that the 2nd plaintiff is indeed the infant son of the deceased. But in the sealed judgment, no declaration was made regarding his status. The judge ordered that the copy Will be admitted to probate, and dismissed Madam Zhang’s counterclaim for the grant of letters of administration. He found that the deceased had not “disowned” the 2nd defendant as his adopted daughter, but did not expressly say or find that the 2nd defendant is indeed his lawfully adopted daughter. In any event, no declaration was made in her favour and the entire counterclaim, as mentioned, was dismissed. 22.The judge recognised that the disputed issues were essentially issues of fact turning largely on the evidence of the witnesses. In paragraph 16 of his judgment, the judge said:
23.The judge dealt with the making of the Will in paragraphs 21 to 28 of his relatively short judgment. He rightly focused his attention on the evidence of Pu Jun, Yang and Han, who all claimed that they were present and personally witnessed the deceased’s execution of the Will. Indeed, Yang and Han were attesting witnesses. That was paragraph 21. 24.In paragraph 22, the judge noted the defence submission that these witnesses were untruthful because many parts of their evidence were (a) inherently implausible; and (b) contradicted by “indisputable evidence”. The judge did not elaborate on the “indisputable evidence”. 25.In paragraph 23, the judge dealt with the evidence of Mr Yang and explained why he did not accept a particular criticism made by the defence regarding his evidence. He did not mention the other criticisms made. 26.In paragraphs 24 to 26, the judge turned to the evidence of Mr Han and explained why he did not agree with the defendants’ submission regarding a certain discrepancy between his witness statement and the contents of the Will. He did not deal with the other points made against Mr Han’s evidence. 27.Then, rather surprisingly the judge devoted only one single paragraph to deal with Pu Jun’s evidence which, as explained, was of obvious importance:
28.Nowhere in his judgment can one find out what these “various parts” of Pu Jun’s evidence which the judge described as “not entirely satisfactory” were, despite the “see below” reference. 29.Rather, in paragraph 28, the judge simply concluded:
30.The judge went on to deal with testamentary capacity in paragraphs 29 to 33 of the judgment. The question of the missing original Will and the presumption of revocation were dealt with by the judge in paragraphs 34 to 41 of the judgment. The adoption of the 2nd defendant was, as mentioned, dealt with in part in paragraphs 42 and 43. 31.The judge summarised his conclusions in paragraphs 44 and 45 of the judgment. 32.Before he dealt with costs in the last paragraph of his judgment (paragraph 48), he devoted two paragraphs to deal with “other matters”:
The grounds of appeal 33.Understandably, the defendants felt aggrieved by the very brief manner in which the judge dealt with the various hotly contested factual issues, particularly those relating to the making of the Will. They appealed. A quick perusal of the very detailed written closing submissions of the parties at trial would reveal that many factual matters and details were canvassed during evidence, and various points and arguments were advanced in final submissions. This is not surprising given that the case essentially turned on the facts, and from the defendants’ perspective, they were not present on the occasion when the Will was allegedly made and all they could do was to put the plaintiffs, who were propounding the Will, to strict proof of due execution. The evidence of those who claimed to have witnessed the execution of the Will was therefore of particular importance. Indeed their evidence was vigorously tested at trial. 34.In short, in this appeal, the defendants sought to challenge, on two related bases, the judge’s findings of fact regarding the valid execution of the Will as claimed by the plaintiffs’ witnesses. First, the judge failed to deal with the contemporaneous documents, particularly the caveats and appearance to warning mentioned above, which would appear to contradict the plaintiffs’ case that the deceased had made the Will in the presence of Pu Jun, who, as mentioned, acted on behalf of his mother in giving instructions to the solicitors to enter the caveats and appearance to warning. Secondly, the judge failed to give adequate reasons for rejecting the defendants’ criticisms of the plaintiffs’ witnesses’ evidence and for preferring their evidence to that of the defendants. Overturning a finding of primary fact 35.Overturning a finding of primary fact on appeal is notoriously difficult, and an appeal on fact should only be entertained on narrow and well defined circumstances. This court (differently constituted) has recently given guidance on when that can be done: see, in particular, Lam VP’s detailed discussion of the relevant law and practice in paragraphs 11 to 29 of his judgment given in China Gold Finance Limited v CIL Holdings Limited, CACV 11/2015, 27 November 2015. Three days before, in Singh Harjit v Determination Business Limited trading as Muse Studio, CACV 68/2015, Kwan JA, giving the judgment of the court, also had this to say regarding an appeal on fact:
36.In the present appeal, the question becomes whether the judge was plainly wrong in finding for the making of the Will as contended for by the plaintiffs, in the sense that there was “a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence”, amounting to “a mistake in the judge’s evaluation of the evidence that [was] sufficiently material to undermine his conclusions”; or, in the words of Lam VP in China Gold, the question is whether the judge “has fallen in palpable errors which could give rise to grounds for intervention by the appellate court” (para 15). The duty to give reasons 37.As regards the duty to give reasons, the leading authority is no doubt the Court of Final Appeal’s decision in Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997‑1998) 1 HKCFAR 279. At p 290E/F to H, Li CJ explained the benefits of a duty to give reasons in these terms:
38.Li CJ then explained at pp 290J to 291G what constitutes adequate reasons:
39.In the subsequent case of Zhuo Cui Hao v Ting Fung Yee [1999] 3 HKC 634, Chan CJHC (as he then was) stressed a professional judge’s duty to analyse in his judgment the material points in evidence of the case and give reasons as to why he had reached a particular conclusion or decision (p 639C‑E):
My views 40.On the question of the judge’s handling of the caveats and appearance to warning, I take the view that the defendants’ criticisms were well made. Pu Jun claimed to have witnessed the making of the Will by his brother. That was in February 2005. Disputes soon arose between the two sides after the death of the deceased in March 2005. There were proceedings on the Mainland where the mother’s side claimed that Madam Wang’s side had stolen or caused to be stolen from the deceased’s safe a gold watch and certain documents. Yet, the missing original Will was not mentioned. As regards the deceased’s assets in Hong Kong, on behalf of his mother, Pu Jun instructed the solicitors to enter three caveats in relation to the estate of the deceased. That was obviously done as a precaution against Madam Wang’s obtaining representation of the estate. It is true that under the law, a caveator does not need to state his interest in the estate in a caveat. However, once a warning is served, the caveator is required to give particulars of any contrary interest (that is, interest contrary to that stated by the person serving the warning) which he may have in the estate of the deceased: rule 44(7). Apparently, the solicitors were fully aware of this requirement, as they did state on behalf of Madam Zhang her interest in the estate in the appearance to warning which has already been extracted. On the known facts, the solicitors’ instructions must have come from Pu Jun who acted on behalf of his mother throughout. 41.The lack of any mention of the Will and Madam Zhang’s interest in it in the appearance to warning was a glaring discrepancy in the plaintiffs’ case. The fact that the deceased left behind an infant son who was also named as a beneficiary in the Will was not mentioned either. As described, these matters were made the subject of vigorous cross‑examination and serious criticism in final submission. As also mentioned, the plaintiffs’ counsel had no choice but to face the point squarely in her very detailed and careful written final submissions. 42.It is, of course, not for the appellate court to decide on paper whether Pu Jun’s explanation should be believed, or more importantly, whether the Will was really made by the deceased as claimed. They were matters for the trial judge. 43.What one was entitled to expect from the trial judge was that he would deal with the Discrepancies in his judgment, and the explanations given by Pu Jun in the box regarding them, as well as the similar discrepancy between what was mentioned and not mentioned in the Mainland proceedings and in the probate action, in the overall assessment of the witnesses’ evidence and other available evidence, when deciding the factual issues concerning the making of the Will; and to explain his reasoning accordingly. 44.With respect, the judge rather inexplicably did not make one mention of the three caveats and the appearance to warning in his judgment. The nearest he came to such a mention was in paragraph 22 of his judgment where he said that the defence submitted that the plaintiffs’ witnesses were untruthful because many parts of their evidence were “contradicted by indisputable evidence”, and in paragraph 27 where the judge mentioned certain not entirely satisfactory aspects of Pu Jun’s evidence. Yet, as already pointed out, he did not elaborate on what indisputable evidence he had in mind, or what these various unsatisfactory aspects of evidence were. And in any event, he did not deal with them. In relation to the crucial evidence of Pu Jun who gave instructions to the solicitors regarding the caveats and appearance to warning, the judge only spent one short paragraph, before he decided in the following paragraph that his evidence together with that of Mr Yang and of Mr Han should be believed. 45.And even in the sort of “catch-all” paragraphs at the tail end of his judgment, that is paragraphs 46 and 47 already extracted, where the judge dealt with “other matters” and where he listed out, in paragraph 47, what these other matters were – matters which he said he had considered but did not see fit to specifically deal with in his judgment, there was no mention of the three caveats and the appearance to warning. 46.In those circumstances, one is, with respect, driven to the conclusion that the judge has either ignored or forgotten to take into account the Discrepancies, or he has failed to give adequate reasons for accepting the plaintiffs’ case on the making of the Will despite the Discrepancies. In either case, the judge has fallen into “palpable error” in relation to his findings of fact, by reason of which this court could and should interfere with his findings. 47.This being my view, I do not find it necessary or appropriate to deal with the other evidential matters also relied on to challenge the judge’s findings of fact or his reasons. The plaintiffs’ case on the making of the Will must be carefully examined at a retrial, and many of these matters will probably be fully tested in cross‑examination and argued in submissions. Of these matters, the less said the better it is. 48.The upshot of all this is that there has to be a retrial on the question of the making of the Will. The status of the 2nd plaintiff is not affected by the errors made by the judge regarding the evidence pertaining to the making of the Will. That finding was not really challenged on appeal. In fact, we were told the defendants had conceded the 2nd plaintiff’s status at trial. The order for retrial is therefore without prejudice to that finding although the judge did not see fit to make a declaration in favour of the 2nd plaintiff. Testamentary capacity as well as rebuttal of the presumption of revocation are two issues that depend to a large extent on the witnesses’ evidence. What has been discussed in this judgment may have had an impact on the overall assessment of the trial court on the credibility of the witnesses in question. The findings of the judge in relation to those two matters cannot safely be allowed to remain. In other words, there will also be a retrial on those two issues, that is, testamentary capacity and rebuttal of the presumption of revocation. As regards the status of the 2nd defendant, the judge, as mentioned, only dealt with one issue (“disowning”), and in any event, made no finding or declaration regarding the status of the 2nd defendant, except that he simply dismissed the entire counterclaim. That, in the circumstances, is quite unsatisfactory. The retrial will need to deal with the status of the 2nd defendant as an issue, absent any agreement to the contrary. Disposition 49.For those reasons, the appeal was allowed, the judge’s judgment was set aside, and a retrial was ordered, but without prejudice to the judge’s finding that the 2nd plaintiff is indeed the natural son of the deceased. We also ordered the costs below to be in the cause of the retrial. As for the costs of the appeal, costs should follow the event and I see no reason to order otherwise. The defendants had to come to court to seek redress, and the plaintiffs could have conceded the appeal but did not do so. I would award the costs of the appeal to the defendants to be taxed if not agreed. There will also be legal aid taxation of the costs below as well as the costs of the 1st defendant on appeal. Hon Cheung JA: 50.I agree with the Reasons for Judgment of the Chief Judge. Hon Chu JA: 51.I agree.
Ms Sheena MY Chan, instructed by Gary KW Tam & Co, for the plaintiffs Mr Victor CF Cheung, instructed by Tang, Lee & Co, for the 1st defendant The 2nd defendant was not represented and did not appear [1] Rule 44(4) of the Non‑Contentious Probate Rules, Cap 10A. [2] HCCA 002752/07 [3] HCCA 001296/08 [4] Rule 44(7) of the Non‑Contentious Probate Rules reads:
[5] English translation : “It is clearly stated in the document(s) filed in court by Zhang Rui Hua, the 1st plaintiff, in 2008 that Zhang Rui Hua, the 1st plaintiff, being the mother of Po Yu, namely, the deceased, was entitled to a share of his estate because he did not have any children. It is never mentioned in the document(s) that Po Yu had any will. Later, the matter took a dramatic turn. It is indeed puzzling that the 1st plaintiff suddenly changed her evidence in this case by saying that Po Yu did make a will, and the 2nd plaintiff was the illegitimate son of Po Yu. …” [6] English translation : “Talking about the will, we cannot find the original copy of the will -- the original one. In fact, it is clear to me and I know it well where the will is, and the fact that we would not be able to obtain the original copy. Based on my knowledge about the laws in the Mainland, the photocopy of a document of this kind would not be recognized. To be honest, at the beginning, at the beginning of this matter, I had never thought of involving the will because I thought it was only a photocopy, a photostatic copy which would not be effective at all. … Later, when Pu Chuan Yao was mentioned, many relevant actions had to be taken, and it became a must (for me) to come to Hong Kong. Therefore, the first thing to do was to, at least, avoid the estate being tampered by Wang Lan. So I took action by means of the document now shown to me, in order to have the estate frozen first. This is what I was thinking at that time. Then why I had to raise the matter of that will at a later stage? There was an occasion when I discussed with lawyer Tam as to what this matter was. (I asked) whether photostatic copy would be recognized by the laws of Hong Kong. As Tam replied in the positive, I therefore roughly related some of the existing facts in this matter to Tam. That was why I raised this matter, and why it was formally raised. That was the reason and that was how it happened.” |
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