Wright Sally Jane v. San Cook

HCAP 26/2012
[2018] HKCFI 124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 26 OF 2012

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Before: Hon Lisa Wong J in Court

Dates of Hearing: 1 and 3 August 2017

Date of Judgment: 26 January 2018

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J U D G M E N T

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The dispute

1.This action is concerned with the rights to administer and inherit the estate (“Estate”) of the late Madam WRIGHT Yoke Kuan (néeCHEONG Yoke Kuan張玉群) (“Deceased”) who died intestate domiciled in Hong Kong on 27 October 2006.

2.The Deceased was predeceased by her husband, Mr Stanley George Alfred WRIGHT (“Mr Wright”) who passed away on 15 September 1990.

3.The question before the court is whether the Deceased left any issue, so that the Estate falls to be administered and inherited by her issue in accordance with rule 21(1)(ii)[1] of the Non-Contentious Probate Rules (Cap 10A) and ss 4(5)[2] and 5(1)(a)[3] of the Intestate Estates Ordinance (Cap 73) respectively. 

4.More particularly, each of the plaintiff Ms Sally Jane Wright (“Sally”) and the defendant Mrs Susan Cook (“Susan”) initially claimed, but denied the other’s claim, to be the Deceased’s sole surviving lawful and natural daughter. 

5.On the first day of the trial on 1 August 2017, Susan, through her counsel Mr Enzo W H Chow, conceded Sally’s claim to be a daughter of the Deceased and as such entitled to administer and inherit the Estate.[4]

6.With Susan’s concession, the issue that remains for determination is whether Susan was also the Deceased’s daughter so as to entitle her to share in the administration and distribution of the Estate with Sally.

Summary and evaluation of Susan’s evidence

7.In short, by paragraphs 6 to 9 of her first witness statement dated 18 September 2015 which she adopts as her evidence in chief, Susan testifies that:

(1) She was borne to the Deceased as Chong Poh Yoke.

(2) She was married under that name.

(3) She changed her name from Chong Poh Yoke to Susan Cook upon acquiring British citizenship on her marriage to Mr Colin Edward Cook (“Colin”),[5] though she has no formal paper to prove such change of name.

8.The burden of proving her relationship with the Deceased rests on Susan.

9.Mr Paul HM Leung, counsel for Sally, has in his closing submissions criticised Susan for having failed to explain a number of matters, for example, why the Deceased had delayed for nearly 18 years before she registered the birth of Chong Poh Yoke; how Susan came to possess the birth certificate of Chong Poh Yoke; why Susan has not approached the Malaysian authorities to verify that she is Chong Poh Yoke with reference to the thumbprints of Chong Poh Yoke in their records; the formalities surrounding her change of name from Chong Poh Yoke to Susan Cook etc.

10.With no disrespect to counsel, in order not to diffuse the focus of this judgment, I do not propose to deal with the points that Mr Leung seeks to make by raising these queries.  I believe it is sufficient just to reiterate that the civil standard of proof is that of balance of probabilities, which I believe Susan has more than satisfied on the undisputed / indisputable documentary evidence adduced by her.

11.In this regard, Susan seeks to prove her relationship with the Deceased largely by production of a number of official papers.  As I see it, those documents speak for themselves. However, insofar as I also have had regard to Susan’s testimony, I find Susan to be a truthful witness.  She gives evidence in a direct and forthcoming manner.  She is unshaken in cross-examination. 

12.In particular, I decline Mr Leung’s invitation to draw any adverse inference against Susan from the abandonment of her defence to Sally’s claim.  When asked about this in cross-examination, Susan has made it clear that she stands by what she has said about the circumstances of Sally’s birth; that she no longer wishes to contest Sally’s claim to the Estate because they had grown up as sisters and both as the Deceased’s daughters regardless of how Sally came to the family; and that she has always intended to share the Estate with Sally though she was goaded into doing the opposite because she is hurt by Sally’s rejection of her.  Mr Leung did not cross-examine Susan on such answer.

13.Nor am I impressed by Mr Leung’s points that Susan does not know much Chinese and cannot now write or even recognise the name Chong Poh Yoke in Chinese characters.[6] Susan has not lived in the Chinese-speaking world ever since her husband Colin (who was a British Royal Air Force aircraftman) was posted back from Singapore to the United Kingdom in 1970.  She would have no occasion to use her name in Chinese.  Indeed, none of the identification and other official documents relating to Chong Poh Yoke contains the Chinese version of the name.

14.Mention is also made of the fact that the Deceased and Mr Wright did not attend Susan and Colin’s wedding, which they would not miss if Susan were their daughter.  I accept Susan’s explanation for the absence of the Deceased and Mr Wright that the Deceased did not approve of her choice of husband.  In any event, a fact of this nature carries little weight against the documentary evidence that Susan places before the court.

15.Before I deal with the documents adduced by Susan one by one, I have the following general and preliminary observations about them:

(1) Sally does not dispute their authenticity. 

(2) The only question about these documents is that of relevance, that is, whether they relate to Susan.

(3) The fact that Susan is (and has always been) in possession of the originals of the birth and marriage certificates mentioned in paragraphs 16, 21 and 24 below and has produced them in court for my inspection strongly suggests that she is the person to whom, or in whose respect, these documents were issued.  Mr Leung certainly has not suggested to Susan any reason why she would otherwise have these official papers.

(4) Susan says she has at her home in Australia the original of the identity card mentioned in paragraph 20 below.  I have no reason to doubt her.  Afterall, she has been able to produce a photocopy, the authenticity of which Sally does not dispute.

16.On these notes, I turn to the documents.  In a chronological order, Susan discloses first an original Malaysian birth certificate numbered 518810 showing that a female child by the name of Chong Poh Yoke was reported by Cheong Yoke Kuan to be borne to her and Chong Kim Heng (who was described as having deceased) on 10 March 1948 in Port Swettenham (now Port Klang in Penang, Malaysia).[7]

17.It is common ground that Cheong Yoke Kuan was the name by which the Deceased was known before her marriage to Mr Wright.  Indeed, Cheong Yoke Kuan was identified in Chong Poh Yoke’s birth certificate by an identity card (“I/C”) number which is the same as the NRIC number appearing below Cheong Yoke Kuan’s name in the certificate of her marriage to Mr Wright, which was 2988294.

18.Hence, it is clear that the Deceased did have a daughter, to whom she gave the name of Chong Poh Yoke.

19.As said earlier, it is Susan’s case that she is Chong Poh Yoke, borne to the Deceased and Chong Kim Heng whom Susan believes to be the Deceased’s first husband.

20.In support, Susan produces a photocopy of a Malaysian identity card issued to Chong Poh Yoke on 16 January 1967, which Susan says is her old Malaysian identity card.  Given the age of the photograph on the front of this identity card, I am unable to recognise the young lady depicted therein as the witness before me.  However, I do note that Chong Poh Yoke to whom this identity card was issued has the same birthday as Chong Poh Yoke in whose respect the birth certificate mentioned in paragraph 16 above was issued, i.e. 10 March 1948.  I am inclined to think that Chong Poh Yoke to whom / in whose respect the said identity card / birth certificate were issued are the same person.

21.Susan also produces an English marriage certificate recording that Chong Poh Yoke was married to Colin Edward Cook on 6 April 1969 in Singapore according to the rites and ceremonies of the Church of England, which Susan says is her marriage certificate.  Two matters are worthy of note.

22.First, the name of the father of the bride Chong Poh Yoke is stated to be Chong Kim Heng, deceased, which is the same name as that of the father of the girl borne to the Deceased as shown in the birth certificate mentioned in paragraph 16 above.  I have no difficulty in finding that the lady by the name of Chong Poh Yoke who married Colin Edward Cook is the same Chong Poh Yoke who was borne to the Deceased and Chong Kim Heng.

23.Second, the bridegroom is described as a leading aircraftman of the British Royal Air Force.  More precisely, he is identified with the number “Q4279668” which I presume was his officer number with the RAF.  The significance of this number will become apparent in a moment.

24.Next, Susan produces an English birth certificate numbered DS287009 recording that a male child given the name of Stephen Christopher Cook (“Stephen”) was reported by Colin Edward Cook to be borne to him and Susan Cook on 3 December 1970.  For present purpose, two particulars of Stephen’s birth certificate stand out.

25.First, the mother Susan Cook’s place of birth and maiden name are given as Malaya and Cheong Pok Yoke. 

26.According to Susan, the name Cheong Poh Yoke on Stephen’s birth certificate is simply a different transliteration of Chong Poh Yoke and refers to her.  I accept Susan’s evidence. 

27.It is not uncommon for the name of a Chinese person to be transliterated into English in more ways than one in different papers, especially in the old days. 

28.Anyway, any doubt is in my view removed by the fact that the description “Q4279668 Senior Aircraftman Royal Air Force” was entered in the box for the father’s occupation.  This is the same officer number used to identify the bridegroom in the marriage certificate of Colin Edward Cook and Chong Poh Yoke.  In other words, Susan Cook whose maiden name is Cheong Poh Yoke as referred to in Stephen’s birth certificate is the same person who was borne to and given the name Chong Poh Yoke by the Deceased and who married Colin Edward Cook in that name.

29.To reinforce this, there was also a copy of an Australian passport issued to Susan Cook for the period from 27 October 1998 and 27 October 2008.[8]  The date and place of birth of Susan Cook to whom this passport was issued are stated to be 10 March 1948 and Port Swettenham, which are the date and place of birth of Chong Poh Yoke.  Although the black and white photocopy in the hearing bundle is somewhat dark, I do recognise from the photograph that the holder of this passport is the witness before me. 

30.The inference from the above evidence that Susan Cook is the Deceased’s daughter by the name of Chong Poh Yoke is, to my mind, overwhelming.

31.Such inference is not in any way detracted by Sally’s evidence to the contrary.

Sally’s objection to Susan’s evidence

32.Before I deal with Sally’s evidence, for the sake of completeness, I should mention that by his written opening submissions, Mr Leung invites me to expunge paragraphs 6 to 9 of Susan’s first witness statement because Susan had not pleaded that Chong Poh Yoke was, or changed her name to, Susan Cook.  According to counsel, such contention, if true, would be a material fact that has to be expressly pleaded.

33.The defence and counterclaim filed on behalf of Susan on 16 November 2012 contains 7 paragraphs. The only positive averment regarding Susan’s status is that contained in paragraphs 2(b) and (c), which is that Susan was the only lawful and natural daughter of the Deceased and consequently is the only person entitled to the Estate.

34.Order 18 rule 7(1) of the Rules of the High Court (4A) requires that:

“every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.” (emphasis added)

35.In my view, insofar as Susan’s claim to administer and inherit the Estate is concerned, the only material fact is that she was the Deceased’s daughter, which has been expressly pleaded in paragraph 2(b) of the defence and counterclaim.

36.The facts that the birth certificate showing that a child by the name Chong Poh Yoke was borne to the Deceased on 10 March 1948 and that Susan is that child as Chong Poh Yoke is her maiden name which she changed to Susan Cook after she was married are just subordinate facts sustaining, or the evidence proving, Susan’s allegation that she was the Deceased’s daughter.  See Hong Kong Civil Procedure 2018, Volume 1, paragraph 18/7/5.

37.In any event, Sally should know that it is Susan’s case that she is Chong Poh Yoke and how Susan is going to prove that from the following pre-action correspondence and disclosure:

(1) Copies of the birth certificate and marriage certificate of Chong Poh Yoke were provided to Sally’s solicitors by Susan’s former solicitors’ letter dated 21 December 2007.

(2) By Sally’s solicitors’ letter dated 4 February 2008 to Susan’s former solicitors, Sally asked for proof that Chong Poh Yoke and Susan Cook refer to the same person.

(3) A copy of Stephen’s birth certificate was then provided by Susan’s former solicitors’ letter dated 23 June 2008 to Sally’s solicitors.

(4) Copies of Chong Poh Yoke’s birth and marriage certificates and Stephen’s birth certificate were provided again to Sally’s solicitors by Susan’s solicitors’ letter dated 17 June 2011 together with the explanation that Chong Poh Yoke and Susan Cook refer to the same person, that is the defendant Susan.

38.There is therefore nothing in the complaint regarding the inclusion of paragraphs 3 to 6 in Susan’s first witness statement.  That this is so is apparent from Mr Leung’s invitation to Susan to amend paragraphs 2(b) and (c) of the defence and counterclaim by adding an express plea that Chong Poh Yoke was, or changed her name to, Susan Cook.  Although I do not see any real necessity for such a course, for the avoidance of any further argument in case this matter should go further, I have given Susan leave to do so and she has since done so.

Sally’s contrary evidence

39.Turning then to Sally’s evidence, according to Sally, Susan was only a very casual acquaintance of the family.  Sally first met Susan at a Christmas party held by her parents at their house some 40 years ago.  Susan was one of many of Sally’s parents’ friends and colleagues who were present.  Since that first meeting, Sally had over the years only seen Susan a few times when Susan came to visit her parents.  Sally never enquired with her parents about Susan’s relationship with them or how she was involved in their life.  Susan suddenly re-appeared in 2003 when she telephoned Sally before Sally headed back to Hong Kong to visit the Deceased who had been hospitalized.  The reason for the call was that Susan wanted to visit the Deceased in Hong Kong but could not find accommodation in Hong Kong and wanted to ask if Sally’s mother-in-law could put her up.

40.I reject Sally’s evidence, which I find to be inherently implausible, internally contradictory and inconsistent with contemporaneous documents. 

41.To rebut Sally’s evidence, Susan has disclosed the following handwritten letter dated 17 December 1997 from Sally (whose family had by then moved to the UK for a short while) to Susan and Colin (who were living in Australia):

“Dear Sue & Colin

Thank you for your Christmas cards, pins, diary and the crystal ball which we received yesterday. Also thank you for the money, you shouldn’t have sent it! We are not going to spend it all.

We managed to get rid of the lice eggs in Carissa’s hair. It took quite a while for the eggs to die. The weather here is getting (sic) and it gets dark at 4:30 p.m.

I am sending you the sponsorship for migration to Australia form 40 and other explanatory notes and notes about the points system.  You have to fill in the form 40 in black biro and send it back to us not folded.  I have sent you an envelope big enough for the form. You do not have to send back forms: 958iS, 961i and 958iR as I have taken photocopies.  The Australian govt sure knows how to make money.  They charge you for the forms and they charge £525.00 for when you lodge in the application form and processing it takes about 10 months.  We need good character from the police in England and Hong Kong and certified true copies from Justice of Peace, magistrate, solicitor and notary public.  Please advise after you have read the form & notes.  I was offered a full-time permanent job last Tues as a mailsorter in a factory called National Group.  I don’t know whether it was luck or coincidence.  I was working in a fruit factory on Monday finishing at 2:45 p.m. instead of 4:30 p.m. and was told we were not needed the next day. The staff agency was going to send me to a vegetable factory.  I refused to go, so on Tues morning at 7:45 they called me to fill in at National, so I went there and was offered a permanent job that morning.  Anyway I have to stay with the stall agency for 6 weeks before I go on National’s pay book.

Mum called last Monday but I didn’t tell her about applying for emigration to Australia because I don’t want to upset her.  She started crying.  I told (sic) not to waste her money on crying and I ask her to take care of herself and Sis Ah Choo, not to give Ah Choo to (sic) fatty food because of her health and her legs are bent and her fingers gone septic.

I had a word with my old man about Colin’s creaking bones and arthritis.  My old man suggest marrow bones (pig’s) for soup with ginger and pepper corns (about 10) and eat plenty of spinach and green leafy veggies.  As for arthritis try to keep warm at night and winter and eat all ginger in the food, that should ease it a bit.  Sue, you should get some gel from the doctor or chemist for mouth ideer.

I have to keep my letter short I could go on.  Have a nice Christmas and all the best for the coming year.  Take care.

Love

Sally, Carissa & Ah Kin”[9]

42.The content and tone of this letter speaks volume.  It could not be an exchange between strangers or mere casual acquaintances.  The senders and the recipients were patently close to each other.

(1) Prior to the letter, Susan and Colin had sent Sally and her family Christmas cards and presents. 

(2) They had even sent Sally money.

(3) Susan and Colin were going to sponsor Sally and her family’s application to migrate to Australia where Susan and Colin had resettled for many years.

(4) Sally knew that Colin suffered from arthritis and suggested some conventional remedy for it.

(5) Sally felt comfortable enough with Susan and Colin to talk about a variety of personal subjects such as her daughter’s hair lice, her job hunting and that she was withholding her plan to migrate to Australia from the Deceased.

43.To downplay this letter, Sally claims that:

(1) She had had no contact with Susan for years.  Then, out of the blue, Susan telephoned her long distance from Australia.  To stress how distant they had been, according to Sally, Susan should not even have her telephone number and she wondered how Susan got it.

(2) Despite having lost contact for a long time and despite not having been close to begin with, Susan talked to Sally over the phone about 2 things.  First, Susan tried to impress upon Sally how happy she and her family would be in Australia and persuaded Sally (who was reluctant) to apply to migrate to Australia.  Second, Susan talked about her husband Colin’s arthritis and asked Sally for her recommendations.

(3) This was the only time the two ladies had talked for years.  After this telephone conversation, Susan sent Sally and her family the Christmas cards and presents and money to enable Sally to apply to migrate to Australia.  Again, according to Sally, Susan should not have her address in the UK and she wondered how Susan got it.

(4) Sally used part of the money sent to her by Susan to obtain the application form for migration to Australia, though Sally repeatedly disclaims any real intention to move to Australia, having just settled down in the UK.

44.The situation described by Sally is so ludicrous that it just has to be stated in order to be dismissed.

45.With regard to Sally’s application to migrate to Australia:

(1) Although it was not pursued to the end, it at least got to the stage where Susan wrote to the Australia Asia Migration Services to identify herself as Sally’s sponsor and prepared resumes for Sally and her husband and daughter on information provided by Sally. 

(2) Copies of the letter and the resumes have been disclosed by Susan. 

(3) I am unable to accept Sally’s disclaimer of these documents, especially the resumes.

(4) First, no notice of non-admission has been served in respect of these documents on Sally’s behalf under Order 27 rule 4 of the Rules of the High Court (Cap 4A).

(5) Second, the information contained therein, many items of which Sally confirms to be correct, could only have come from her.

46.Why would Susan take upon herself the burden of sponsoring Sally’s application for migration to Australia if she were just a casual acquaintance of Sally?

47.Sally’s description of her relationship and interaction with Susan is also much discredited by the family photographs disclosed by Susan.  Although Sally often claims not to recall the times and places these photographs were taken, I accept the explanations indorsed on them by or on behalf of Susan.  They depict meetings and gatherings of Susan and Sally and their respective families from time to time over the years in the 1970’s, 1980’s and 1990’s in different parts of the world.  

48.As in the case of her said handwritten letter, Sally’s attempt to downplay these photographs borders on the absurd. 

49.For example, one of the photographs shows Sally’s daughter playing with what appeared to be a kangaroo.  According to Susan’s notes, it was taken in August 1995 when Sally and her daughter visited Susan and her family in Australia.  In answer to my question as to why Sally looked Susan up in Australia when they were supposedly very distant from each other and had had no contact whatsoever, Sally came up with the story that 2 to 3 years before this picture was taken, she had her pocket picked in Hong Kong.  She bumped into Susan on her way home and told Susan about the unfortunate incident and how she had no money on her because of it.  Susan who happened to be visiting Hong Kong lent Sally a few hundred dollars.  Sally had to repay Susan in 1995 when she travelled to Australia.  I naturally wondered why Sally had to wait 2 to 3 years to go all the way to Australia to return a few hundred dollars to Susan.  Why did she not repay Susan while she was still in Hong Kong?  Sally’s answer is that at the time, because her pocket was picked, she had no money whatsoever, apparently not even at home or in her bank account.  Sally even claims to have tried to borrow from the Deceased to repay Susan but the Deceased told her that she had no money either!

50.I find Sally unbelievable and I do not believe her.

Conclusion and orders

51.For the above stated reasons, I rule that Susan was also the Deceased’s daughter and as such entitled to share in the administration and distribution of the Estate with Sally.

52.Letters of administration of the Estate should be granted to Susan and Sally jointly.

53.I also make an order nisi that Susan should pay Sally the costs of her claim while Sally should pay Susan the costs of her counterclaim.  Both sets of costs should be taxed on a party and party basis if not agreed.

Mr Paul H M Leung, instructed by Cheung & Yip, for the plaintiff

Mr Enzo W H Chow, instructed by Jackson Ho & Co, for the defendant