ZENG LIFAN v JIANG MANLUO

HCAP 12/2014

[2019] HKCFI 144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 12 OF 2014

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JUDGMENT

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A. INTRODUCTION

1.  Zeng Yixiang, also known as Zeng Yiqiang (the “Deceased”), died intestate on 9 February 2011 while holidaying in Haikou, Hainan Province, without leaving a will. He died at the relatively youthful age of 48 from kidney failure caused by complications from diabetes. At the time of his death, he was living in Shenzhen.

2.  The 2^nd plaintiff (“Madam Jiang”) is the Deceased’s former wife. They were married on 12 February 1991 but divorced on 14 August 2001. Madam Jiang has a younger sister, Madam Jiang Jie (“Jie”), who also gave evidence at the trial for the plaintiffs.

3.  The 1^st plaintiff (the “Son”), was born on 20 February 1999 and adopted by the Deceased and Madam Jiang when he was just a few months old. Pursuant to the terms of the divorce, Madam Jiang had custody of the Son, and at the time of the Deceased’s death, she was living together with him in Hangzhou, Zhejiang Province. The Son was 12 years old when the Deceased died and 19 years old by the time of the trial.

4.  The 1^st Defendant (the “Father”) and the 2^nd Defendant (the “Mother”) are the Deceased’s parents, and the 3^rd Defendant (the “Sister”) is the Deceased’s elder sister. The Father and the Mother live in Zhuzhou, Hunan Province, and the Sister lives in Shenzhen. The Deceased had another elder sister, Ms Zeng Yongli (“Yongli”), who also lives in Zhuzhou. The Sister and Yongli both gave evidence for the defendants at the trial.

5.  The Deceased died a wealthy man, and had considerable assets in Mainland China, Hong Kong and Macau at the time of his death. The Deceased’s estate in Hong Kong alone, consisting solely of cash and publicly listed shares, are valued, I am told by Mr Clark Wang, counsel for plaintiffs, at some HK$60 million at the time of the trial. As explained below, it is the inheritance of this estate in Hong Kong that has given rise to the present dispute.

6.  On 10 April 2014, the plaintiffs commenced the present action seeking declarations that the Deceased died domiciled in Hong Kong and that the Son had been legally adopted by Madam Jiang and the Deceased in accordance with Mainland Chinese law. The significance of Hong Kong domicile is that Hong Kong law would govern the succession of the Deceased’s moveable estate, and by reason of section 4(5) of the Intestates’ Estates Ordinance (the “IEO”), the Son would be the only person beneficially entitled to the estate. As the Son has not yet attained the age of 21, Madam Jiang as his adoptive mother would be entitled to a grant of letters of administration of the Deceased’s estate with the highest priority.

7.  The defendants initially disputed that the Son had been validly adopted by the Deceased under Mainland Chinese law. This was later withdrawn by amendment to their defences, leaving only the issue of the Deceased’s domicile at the time of his death. In short, the defendants’ position is that the Deceased had all along been domiciled in Mainland China up to the time of his death, and as his estate in Hong Kong consists entirely of moveable assets, the IEO has no application. Rather, Article 10 of the Inheritance Law of the People’s Republic of China (中華人民共和國繼承法) (the “Inheritance Law”) applies, which provides that the estate of an intestate person shall be inherited first in order amongst the spouse, children and parents. It follows that the Deceased’s estate in Hong Kong should be divided among the Mother, the Father, and the Son in equal shares.

8.  As a matter of background, by the time of the trial, probate proceedings had already been concluded in Macau and Mainland China. In the Macau proceedings, the court held that the applicable law of succession of the Deceased’s estate in Macau was Mainland Chinese law as the Deceased was habitually resident in Mainland China at the time of his death, and in accordance with that law, the estate in Macau would be succeeded by the Mother, the Father and the Son in equal shares. Similarly, in Mainland China, the Shenzhen Nanshan District People’s Court awarded the Deceased’s estate to the Mother, the Father and the Son in equal shares on the basis that Mainland Chinese law applied to the distribution of the estate as the Deceased was resident in Shenzhen at the time of his death.

9.  As the applicable law to the succession of the Deceased’s estate in Hong Kong is to be determined in accordance with Hong Kong conflict of law rules, and no question of domicile has featured in the proceedings in Macau or Mainland China, I am not bound by the findings or outcomes of those proceedings. As mentioned above, under Hong Kong conflict of law rules, succession of movables of an intestate is governed by the law of his domicile at the time of his death (see eg Conflict of Laws in Hong Kong at §27R-010). Hence, if this court were to find that the Deceased was domiciled in Hong Kong, his estate in Hong Kong would be distributed in accordance with the IEO with the result that the Son would be entitled to the entirety of the estate. On the other hand, if the Deceased were domiciled in Mainland China, his estate in Hong Kong would be distributed in accordance with the laws of succession of Mainland China. It is not in serious dispute that in the latter circumstances Article 10 of the Inheritance Law would apply, and the Son, the Mother and the Father would be entitled to the estate in equal shares.

10.  Hence, the parties’ dispute on domicile is concerned primarily with whether the Deceased’s estate in Hong Kong should be inherited solely by the Son, or by the Mother, the Father and the Son in equal shares. There is an inescapable sadness that, compounding the grief of elderly parents losing their son, and a teenage son losing his father, they should be embroiled in years of litigation over what has been left behind. However, notwithstanding the court’s invitation to the parties to find an amicable resolution to the dispute, none has been reached. 

B.   THE LAW ON DOMICILE

The Domicile Ordinance

11.  The starting point is the Domicile Ordinance (Cap 596) (the “DO”). For completeness, I set out in full the relevant provisions:

Section 3 - General Rules

   (1)   Every individual has a domicile.

   (2)   No individual has, at the same time and for the same purpose, more than one domicile.

   (3)   Where the domicile of an individual is in issue before any court in Hong Kong, that court shall determine the issue in accordance with the law of Hong Kong.

Section 5 - Domicile of adults

   (1)   On becoming an adult, an individual retains (subject to subsection (2)) the domicile that he had immediately before he becomes an adult.

   (2)   Subject to sections 6, 7 and 8, an adult acquires a new domicile in a country or territory if—

(a)  he is present there; and

(b)  he intends to make a home there for an indefinite period.

Section 9 - Continuity of domicile

Where an individual is domiciled in a country or territory as determined in accordance with this Ordinance, he continues to be so domiciled until he acquires another domicile, whether under section 4, 5, 8 or 10.

Section 12 - Standard of Proof

Any fact that needs to be proved for the purposes of this Ordinance shall be proved on a balance of probabilities.

Section 14 - Domicile on or after commencement date

   (1)   The domicile that an individual has at a time on or after the commencement date of this Ordinance shall be determined as if this Ordinance (other than section 13) had always been in force. 

   (2)   For the purposes of a determination under subsection (1), this Ordinance (other than section 13) applies in place of –

(a)   the rules of common law for determining the domicile of an individual to the extent that those rules are inconsistent with this Ordinance (other than section 13) …

…

   (3)   For the purposes of subsection (2)(a), the rules of common law for determining the domicile of an individual include (without limitation) –

(a)   the rule that a domicile of origin is given to every individual at birth by operation of law;

…

(d)   the rule on the acquisition of the domicile of choice based on residence and intention of permanent residence;

…

(g)   the rule that the standard of proof required to prove that an individual’s domicile changes from a domicile of origin to a domicile of choice is more onerous than that required to prove a change from a domicile of choice to another.

   (4)   Except as provided in this section, nothing in this Ordinance affects any rules of common law.

Section 5(2)(a) - Presence

12.  The DO was enacted following the recommendations of Report of the Law Reform Commission of Hong Kong on the Rules for Determining Domicile published in April 2005 (the “LRC Report”). In §§4.87-4.89, the authors commented:

“As to the act required to acquire a domicile of choice, different jurisdictions have different requirements. There are three categories: “presence” in the country concerned (Australia, New Zealand, South Africa and the English and Scottish Commissions); “residence” in the country concerned (India, Ireland, Malaysia, Singapore and the United Kingdom); and having a “principal home” in the country concerned (Manitoba). Hong Kong adopts the requirement of “residence” and it may be that the appropriateness of changing to “presence” or “principal home” should be considered.

Of the three options, we are of the view that presence in the country concerned can best bring out the essence of the act required to acquire a domicile…

Moreover, the word “presence” better enshrines the existing law where a person who arrives in a country with the requisite intention will acquire a domicile there immediately upon arrival. The person domiciled in country A… can obtain a domicile in country B upon arrival in the latter country, provided he has the required intention, even though he passes away immediately after landing.”

13.  The recommendations in this part of the LRC Report were accepted and reflected by use of the words “he is present there” in section 5(2)(a) and the express rejection of the common law rule of “residence” in section 14(3)(d) of the DO.

14.  Mr Wang also referred me to a decision of the Full Court of the Family Court of Australia In the Marriage of Ferrier-Watson and Mcelrath 26 Fam LR 169, where the wife sought inter alia to dismiss divorce proceedings brought by the husband in Australia on the grounds that he was domiciled in Fiji and not Australia. As the husband was neither an Australian citizen nor had he been ordinarily resident in Australia one year before the divorce proceedings, he was required to prove that he had an Australian domicile at the time of issue of the proceedings.

15.  The trial judge found that the husband had proved an Australian domicile on the grounds that he had formed the requisite intention to make his home permanently in Australia when he arrived there to start a new life with his new girlfriend and her son. This was so, notwithstanding that he had been ordinarily resident in Fiji, that he did not have permanent residency in Australia and was only in the process of acquiring that status, that he only took a lease on his residence in Australia after his arrival in Australia, and that the girlfriend’s son did not arrive in Australia until several months thereafter. The wife appealed this aspect of the judge’s decision, and in dismissing this ground of appeal (but allowing the appeal on other grounds), the Full Court held inter alia:

“77. …[Section 10 of the Domicile Act 1982][1] focuses attention on the intention to make one’s home indefinitely in the country in which the domicile of choice is said to have been acquired. That provision does not in terms require proof that the home to be made existed at the time the necessary intent was formed, or that that home had existed for any stipulated length of time, or for long enough to be described by the term “residence”.

78.   Absence of conditions in those last-mentioned terms accords with the experience of the many people who came to this country after the second World War. Many left behind family members in war-ravaged countries, and came here to begin new lives. Many would have said what were feared to be final goodbyes when setting off for these shores but, on the appellant’s contentions… many people who were in that situation would deny them the description of an Australian domicile of choice on their arrival in this country.

79.   On the appellant’s primary argument, this would only occur when “residence” was first established, irrespective of how fixed and determined the goal of a life here was upon the immigrant’s arrival. We think that these considerations point to a fundamental flaw in the appellant’s attack on the test of what is necessary to establish a domicile of choice….

…

82.   … Residence for some period in a place or state can be an outward manifestation of a sufficient appearance of regarding that state as providing a permanent home. In our view, the references to residence in the authoritative decisions to which we are taken were made in the context of the necessary proof of the required intention…

83.   …residence in a country should be understood as the best, or very good, evidence of the required intention, but it is not the only means of proving or establishing it. It can be inferred among other things from the nature of the departure from another country, and the circumstances of the arrival in what is intended to be a new one.”

(original emphasis)

16.  In the light of the adoption of the presence test in section 5(2)(a) of the DO following the approach in, amongst other places, Australia, the Full Court’s observations in Ferrier-Watson apply equally to the interpretation of that section, and I would respectfully agree with them as a matter of Hong Kong law.

Section 5(2)(b) - Intention to Make a Home

17.  As explained in Ferrier-Watson, residence is an important but not the only outward manifestation of a person’s intention to make a place his home. In Y v W [2012] 2 HKC 455 at §36, her Honour Judge Bebe Chu (as she then was) conveniently set out a list of factors to be considered in ascertaining intention for the purposes of section 5(2)(b):

   (1)   Length of residence;

   (2)   Condition of residence: Purchased property? Leased property? Furnished lodgings? Hotels?

   (3)   Marriage with a local partner;

   (4)   Whereabouts of the family;

   (5)   Business interest;

   (6)   Whereabouts of personal belongings;

   (7)   Whereabouts of the person’s property and investments;

   (8)   The fact of naturalisation;

   (9)   Decision made as to the nationality of the children;

   (10)   Education of the children;

   (11)   Memberships of clubs or religious associations;

   (12)   Place of work;

   (13)   Relation between a man and his family.

18.  This list is neither exhaustive nor conclusive and should not be mechanically applied - the relevance and weight to be attached to each factor will vary from case to case. The question of a person’s intention or his domicile is invariably one of fact having regard to all the circumstances (see eg LCYP v YEK[2015] 4 HKLRD 798 at §34).

19.  I would add this - where a person is said to have acquired a new domicile, but a home has not yet been made there (in other words, he is not yet resident there), it seems to me that the intention required for section 5(2)(b) must, save in exceptional circumstances, be an intention to make a home there presently. Put another way, to acquire a new domicile at a particular place under section 5(2), a person must intend to make a home there presently for an indefinite period, as opposed to making a home there at some point in the future, whether such future is definite or indefinite.

20.  The point can best be illustrated by taking an example from two ends of the spectrum:

   (1)   On one end is the example cited by the Full Court in Ferrier‑Watson - the immigrant leaving a war-torn country to start a new life in Australia plainly had an intention to make a home in Australia presently for an indefinite period, and once he set foot on Australian soil, he satisfied both the requirements of intention and presence. It is immaterial that he dies before making or completing his intended home, as it is clear that when he was present in Australia, even if for a minimal period, he intended to make Australia his home at that moment in time, and as a result, he acquires an Australian domicile.

   (2)   On the other end of the spectrum, if a visitor domiciled in Australia came to Hong Kong, enjoyed his visit and decided that he would make Hong Kong his home someday in the future, irrespective of how fixed or definite his intention to do so, it cannot be said that, at that moment, he acquired a new domicile here. The result must be the same even if he decided to make Hong Kong his home upon the occurrence of some future event, say, when he retired in 5 years’ time. His domicile would remain Australian and would change to Hong Kong only when he intended to make a home in Hong Kong then and there, and having such an intention, he was physically present in Hong Kong.

21.  It is also relevant here that section 3(2) of the DO precludes an individual from having more than one domicile at the same time and for the same purpose. Although section 5(2)(b) uses the phrase “intends to make a home” (in ordinary language, one can be said to have a home in more than one place), this must be read together with section 3(2), with the effect that a person cannot have more than one “home” at the same time within the meaning of section 5(2)(b). As we have seen above, section 10 of the Domicile Act 1982 in Australia, for example, uses the term “his home”. In the light of section 3(2), I do not think that any difference was intended by the use of the term “a home” in section 5(2)(b) as opposed to “his home”.

22.  Most real-life situations are likely to fall somewhere in between the two ends of the spectrum above, and the position may not always be clear-cut. However, that does not detract from the proper test for intention in determining when a person has acquired a new domicile: whether, on a balance of probabilities, the person intended to make a home there (in the sense of there being only one home) at that moment in time and for an indefinite period.

C.   FACTS OF THE PRESENT CASE

Matters not in serious dispute

23.  I begin by setting out the matters which are relatively uncontroversial or not in serious dispute between the parties, using as a convenient guide the list of factors in Y v W cited above. This will also set the scene for the matters which are in dispute between the parties.

24.  The Deceased was born in Zhuzhou and lived the entirety of his life in Mainland China. Although he made numerous visits to Hong Kong, including in 2005 to 2006 when he studied for an Executive MBA (EMBA) degree at the Hong Kong University of Science and Technology (“HKUST”) (classes were offered both in Hong Kong and Shenzhen), he never lived in Hong Kong. In the 7 or 8 years before he died, he lived in Shenzhen, although he travelled frequently to other places such as Shanghai, Hangzhou, Hunan, Hong Kong and Macau.

25.  On or about 25 May 2007, the Deceased applied on behalf of himself and the Son as a dependent for residence in Hong Kong under the Capital Investment Entrant Scheme (“CIES”). CIES is an immigration program for attracting foreign nationals (including Mainland Chinese nationals who have a right of permanent residence abroad) to emigrate to Hong Kong. A successful applicant is entitled initially to extendable visas of 2 years and subsequently to permanent resident status after being habitually resident in Hong Kong for a period of 7 years.

26.  The CIES applications were approved on 18 August 2009, and the Deceased and the Son obtained Hong Kong non-permanent identity cards (HKID) on 15 October 2009 and 25 February 2010 respectively. In the period from 18 August 2009 to his death on 9 February 2011, the Deceased visited Hong Kong a total of 30 times, mostly leaving on the same day and occasionally staying for one or two nights in Hong Kong. With a few exceptions, the Deceased crossed the border by car at one of the control points between Hong Kong and Shenzhen.

27.  Prior to applying for residence in Hong Kong under CIES, the Deceased was granted a right of residence in the African Republic of Guinea-Bissau and in Macau in 2005 and 2006 respectively. Although the Deceased owned at least one landed property in Macau, which formed part of his estate in Macau, it is unclear from the evidence how much time the Deceased actually spent in Macau. In any event, it is not suggested by any of the parties that the Deceased ever resided in Macau or, for that matter, Guinea Bissau.

28.  There is no dispute that the Deceased never owned, purchased or leased any property in Hong Kong, although it is the plaintiffs’ case that the Deceased had considered doing so and viewed a number of flats in Hong Kong (discussed further below). On the other hand, the Deceased owned at the time of his death at least seven landed properties in Mainland China and, as mentioned above, one in Macau. Five of the Mainland Chinese properties were situated in Zhuzhou, and two in Shenzhen, including a property known as Rm B1401, Tower 10, Citic Red Tree Bay Flower City, Shenzhen (the “Red Tree Bay Property”), which the Deceased acquired in October 2005 and was living in at the time of his death.

29.  Although it is the plaintiff’s case that the Deceased had acquired the Red Tree Bay Property for investment purposes, it is clear that he subsequently spent considerable time and expense decorating and furnishing it, and after the decorations were completed shortly before the lunar new year of 2009, he moved into the property and lived there until his death. The Deceased regularly hosted family and friends at the property and had a dedicated bedroom for the Son for when he stayed with him in Shenzhen during school holidays.

30.  In addition to the properties he owned when he died, the Deceased previously owned another villa in Chengdu, which he sold in December 2009.

31.  The Deceased also owned a number of motor vehicles in Mainland China at the time of his death, including a Jeep Wrangler in Hunan and a new BMW SUV in Shenzhen which he purchased only in August 2010 as a replacement for an older vehicle.

32.  There is no dispute that the Deceased had no family in Hong Kong. He made friends with some of his classmates at HKUST who lived in Hong Kong and with whom he maintained contact after he graduated. One such person was Mr Jackson Lam (also known as Lin Zhisheng) (“Mr Lam”), who was the deputy course director of the EMBA programme at the time and who gave evidence on behalf of the plaintiffs at the trial. The Deceased was a member of the Shenzhen branch of the Lions Club, and through the club, he is said to have made some connections with members of the Hong Kong branch.

33.  The Deceased had at different points in time interests in various businesses and companies in Mainland China, including a Shanghai-based company known as 上海普天友通信息科技有限公司 (“Shanghai Putian”). The Deceased joined Shanghai Putian as an employee in Shanghai in 2002 and was transferred to Shenzhen in 2003 or 2004 to manage its Shenzhen branch. He subsequently became a director and vice president of the company as well as a significant indirect shareholder. It is not in dispute that in 2007 to 2008, the Deceased sold his interest in Shanghai Putian and resigned from the company.

34.  As to his interests and positions in other businesses and companies in Mainland China, by the time the Deceased received his HKID in October 2009, he had resigned from his positions and disposed of his interests, save for an investment he made in June 2009 of some RMB 3.5 million in a cybercafé in Zhuzhou. According to Yongli, the Deceased also invested RMB 5 million in a Buddhist vegetarian restaurant in Shenzhen in June or July 2010. This is disputed, however, by the plaintiffs.

35.  In any event, from around 2008, the Deceased did transfer a significant amount of his liquid assets, including the proceeds of sale of some of his Mainland Chinese business interests, to a number of financial institutions in Hong Kong and invested the same in publicly listed shares on the Hong Kong Stock Exchange.

The Plaintiffs’ Case

36.  As mentioned above, the Deceased was living in Shenzhen at the time of his death. However, the plaintiff’s case is that the Deceased was nonetheless domiciled in Hong Kong by reason that:

   (1)   He had the requisite intention to make Hong Kong his home for an indefinite period of time, such intention having been formed at the latest when his CIES application was approved in August 2009 and such intention continued thereafter;

   (2)   Such intention, coupled with his presence in Hong Kong on various occasions, including in particular on 15 October 2009 when he came to obtain his HKID card, resulted in the Deceased acquiring a new domicile by choice in Hong Kong at the latest by 15 October 2009;

   (3)   Although the “execution” of the Deceased’s plan to make Hong Kong home was delayed because the Son was not yet ready to go to school in Hong Kong, there had been no change in the Deceased’s intention; and

   (4)   Since 15 October 2009, there was no further change of domicile, whether back to Mainland China or to anywhere else.

Late Evidence of the Son

37.  On behalf of the plaintiffs, Madam Jiang, Jie and Mr Lam filed witness statements and gave evidence in the first part of the trial. I say first part of the trial because on the last day of evidence, the plaintiffs applied for leave to file a late witness statement of the Son and to tender him as a witness. The application was likely to have been prompted by queries I raised with Mr Wang on the absence of evidence from the Son concerning the Deceased’s alleged preparations for the Son’s schooling in Hong Kong, a matter upon which the plaintiffs relied heavily at the trial. The application was opposed by Mr Karl Keung, counsel for the defendants. After hearing the parties, I allowed the application, albeit with some reluctance, and gave consequential directions. Additional dates were also allocated immediately before oral closing submissions to allow for the additional evidence to be heard.

38.  The principles for the admission of late evidence since the Civil Justice Reform, whether in the form of new documentary evidence or the calling of a new witness, are now well established, and I do not repeat them here. There can be no dispute that the application was made at the eleventh hour. The reason given by Madam Jiang in support of the application was that she and the Deceased had for many years kept as a secret from the Son the fact that he had been adopted, and it was not until July 2017 that she finally revealed this fact to him as it was specifically mentioned in the probate proceedings in Shenzhen. For this reason, she was previously reluctant to involve the Son as a witness in these proceedings. I was not overly impressed with the plaintiffs’ explanation given over 6 months had elapsed since July 2017. Further, although these proceedings were initially commenced by Madam Jiang on behalf of the Son as his next friend, the Son was substituted as the 1^st plaintiff in his own right on 17 October 2017. Therefore, the Son could readily have made an application to file a witness statement, weeks, if not months, before the commencement of the trial.

39.  That said, I can see the relevance of the Son’s evidence as to the Deceased’s intention prior to his death, particularly given the Deceased’s intention to emigrate to Hong Kong together with the Son. There is no dispute that the Deceased maintained a close relationship with the Son and spoke with him on a regular basis. The Son also spent time with the Deceased in Shenzhen during the Son’s school winter holidays before the lunar new year in 2011 and shortly before the Deceased’s death. I also took into account the fact that the court is asked to determine the Deceased’s intentions in his absence, and to enable the court to ensure a just resolution of the dispute, it should have as complete a picture as possible. Balanced against this of course is the inevitable delay, and the adverse effects of such delay on not only the parties but also on public resources, that would result from allowing the Son’s evidence at this stage. Taking into account all of the circumstances, including in particular the court’s duty to manage cases and the underlying objectives in RHC Order 1A, I allowed the application with costs of and occasioned by the application, including costs thrown away, to the defendants.   

Statements and discussions of the Deceased’s Intentions

40.  Much of the evidence from the witnesses were concerned with statements made or said to have been made by the Deceased as to his intention or otherwise to move to Hong Kong together with the Son.

41.  In relation to such statements or declarations, in Ross v Ross [1930] AC 1, Lord Buckmaster cautioned at 6-7:

“Declarations as to intention are rightly regarded in determining the question of a change of domicile, but they must be examined by considering the person to whom, the purposes for which, and the circumstances in which they are made and they must be further fortified and carried into effect by conduct and action consistent with the declared expression…”

42.  I bear also in mind, however, the comment from Slattery J of the Supreme Court of New South Wales in Re: Estate of the late Evelyn Mary Dempsey [2016] NSWSC 159 at §179, referred to me by Mr Wang:

“Intention in the main should be deduced from behaviour rather than a person’s own declaration, but ‘honest evidence of actual intention cannot be cast aside and treated as non-existent and some sound reason must be found for disbelieving it’: Fremlin v Fremlin (1913) 16 CLR 212 at 234…”

The two contemporaneous documents

43.  The plaintiffs rely in particular on two contemporaneous documents from the Deceased as declaring his intention or desire to emigrate to Hong Kong.

44.  The first is a handwritten agreement signed by the Deceased and Madam Jiang on 10 April 2007 (the “April 2007 Agreement”), which provided inter alia that:

“為了辦理曾力藩移民香港的手續需要，蔣蔓蘿配合曾毅祥 辦理香港當局所要求的兒子曾力藩跟隨父親移民之內容的有關移民申請.”

 (English translation: “In view of the need to go through the formalities for ZENG Lifan to immigrate to Hong Kong, JIANG Manluo will cooperate with ZENG Yixiang in getting the materials required by the Hong Kong authority in the relevant immigration application with regard to my son’s immigration with his father.”)

45.  The reason for the April 2007 Agreement is briefly as follows: as mentioned above, pursuant to the terms of the divorce, Madam Jiang had custody of the Son, and lived together with him in Hangzhou. The Deceased, however, wished to apply together with the Son as his dependent for residence in Hong Kong under CIES. Madam Jiang was initially reluctant to allow the Son to go with the Deceased to Hong Kong, but he eventually managed to persuade her to let him go. She therefore signed the April 2007 Agreement and made a similar declaration on the same day before a notary in Zhuzhou that inter alia:

“為了讓兒子曾力藩有一個較好的生活及學習環境，同意兒子曾力藩隨其父親曾毅祥定居香港生活”

(English translation: “In order to let my son ZENG Lifan have a better living and learning environment, (I) give (my) consent to my son ZENG Lifan’s settling in Hong Kong with his father ZENG Yixiang”)

46.  The second document is a letter dated 6 March 2008 (the “March 2008 Letter”) from the Deceased to the Director of Immigration in the course of his CIES application, where he stated inter alia:

“我希望能為我的小孩提供更好的教育環境，讓其能在香港接受教育，因此我還是會繼續補齊資料遞交受養人的申請，與此同時我會儘快補齊受養人(曾力藩)所欠缺的全部資料，以此證明! 敬請入境事務處能考慮我的個人問題審批我的申請⋯⋯”

(English Translation: “Hoping to provide an even better learning environment for my child and to enable him to receive education in Hong Kong, I will still continue by furnishing all the information required in order to submit the application for the dependant.  At the same time, I will, as soon as I can, furnish all the information of my dependant (ZENG Lifan) that is still lacking to serve as evidence!  I respectfully ask the Immigration Department to consider my personal difficulties in screening and approving my application …”)

47.  The March 2008 Letter was written in response to requisitions raised by the Director of Immigration concerning the Son’s birth certificate. The Deceased needed time to obtain further materials from Hangzhou and therefore requested the Director of Immigration to proceed first with his own application pending the provision of such materials for the Son. It was in this context that the Deceased wrote the passage above to assure the Immigration Department that he would be continuing with the Son’s application. Mr Wang placed substantial reliance on this document as it had been submitted to the Government at a time when no question of domicile could have been anticipated. However, as I commented to Mr Wang at the time, given that the letter was written to Director of Immigration for the purpose of the CIES applications, it is hardly surprising that the Deceased expressed his enthusiasm to move to Hong Kong with the Son.

48.  Although I accept that the two documents above are contemporaneous evidence of the Deceased’s intention or desire to emigrate to Hong Kong with the Son, it should be borne in mind that:

   (1)   The April 2007 Agreement predated the CIES applications (which were made on 25 May 2007), and the March 2008 Letter predated the approval of the applications (which was granted on 18 August 2009);

   (2)   Even if the Deceased had a desire to emigrate to Hong Kong on the dates of the two documents, he could not have had an intention to make Hong Kong as his home at that point in time. Although the Deceased’s acquisition of a Hong Kong domicile is not dependent upon him being granted a visa under CIES, it is not suggested that the Deceased intended to make Hong Kong home without first having been granted such a visa (for instance, as a refugee or illegal immigrant);

   (3)   Further, neither document gives any indication as to when the Deceased intended to move to Hong Kong with the Son in the event that their applications were approved. There is nothing in those documents to suggest that the Deceased intended to move to or make a home in Hong Kong with the Son immediately after their visas were granted.

49.  In addition to these two documents, the plaintiffs rely also on the Deceased’s discussions with Mr Lam, Madam Jiang, Jie and the Son, where the Deceased is said to have expressed his intention to move to Hong Kong. On the other hand, the evidence of the Sister and Yongli was that the Deceased told them that he preferred to remain in Shenzhen and that schooling in Hong Kong was just one of a number of options for the Son. While it is possible of course that only one side is telling the truth, it is also possible that the Deceased may himself have had conflicting intentions and desires, and may have expressed them differently to different people. It is in these circumstances that Lord Buckmaster’s guidance in Ross v Ross (supra) isparticularly instructive – declarations as to intentions must not only be viewed in context, “…but they must be further fortified and carried into effect by conduct and action consistent with the declared expression”. Hence, the Deceased’s conduct (which are relatively uncontroversial) must be given due weight in determining what his true intentions were.

Mr Lam’s Evidence

50.  According to Mr Lam, the Deceased discussed with him during and after completing the EMBA program his intention to move to Hong Kong with the Son. Later on, in approximately 2008 or 2009[2], the Deceased and the Son also visited Mr Lam and his family to seek his advice about potential educational arrangements for the Son in Hong Kong.

51.  He told the Deceased that as the Son would be entering into his 5^th year of primary school in September 2009, even if the Son’s visa were approved, it would be preferable to wait until he finished his primary school in Hangzhou (presumably, in 2011) before starting secondary school in Hong Kong, so that he could better adjust to a different educational system. Mr Lam suggested that the Deceased consider the American International School (“AIS”) and Yew Chung International School (“YCIS”) in Hong Kong as potential choices for secondary school. Mr Lam’s wife also gave the Son a sample test to assess his academic abilities, but found his knowledge and comprehension of English unimpressive. Mr Lam was of the view that even if the Son had applied for admission at AIS or YCIS at that time, he was unlikely to be accepted.

52.  Mr Lam also gave evidence that, in 2008, the Deceased sought his advice on investments. At the time, the Deceased had already sold his interest in Shanghai Putian and was prepared to invest the proceeds in Hong Kong and possibly to use the investment for the purpose of CIES. When the Deceased asked Mr Lam whether he should invest in property or shares, Mr Lam suggested that he could first invest in shares, and after he had made some profits, he could then invest in property. He also suggested that the Deceased could wait until the Son came to Hong Kong for secondary school, and then buy a property near the school in Kowloon Tong. In the meantime, the Deceased could stay in hotels or serviced apartments.

53.  Mr Lam told the court that he believed that the Deceased’s application for residence in Hong Kong was primarily for the sake of the Son’s education. He also told the court that the Deceased considered arranging for the Son to live and attend school in Hong Kong and be cared for by a Filipino helper, and possibly even Madam Jiang. He would then be able to travel for work and not be confined to Hong Kong. In my view, this is significant, as even if the Deceased intended for the Son to attend school in Hong Kong (discussed further below), it did not necessarily follow that he himself intended or needed to make Hong Kong his home. He could easily have continued living in Shenzhen and see the Son from time to time either in Hong Kong or in Shenzhen.

Madam Jiang’s Evidence

54.  Madam Jiang’s evidence was that the Deceased had long admired and aspired to live in Hong Kong, but it was not until the success of Shanghai Putian that he had the realistic means to do so. The Deceased’s enrolment in the EMBA at HKUST was also part of his plan to establish connections and to understand more about Hong Kong. It was at the EMBA course that the Deceased learned about the CIES program from his classmates. In or about April 2007, after much consideration and discussion with the Deceased, she agreed for the sake of the Son’s future to allow the Son to emigrate to Hong Kong with the Deceased. She also said that the Deceased was keen for her to emigrate with them together to Hong Kong, but she had reservations at the time about reuniting with the Deceased despite his repeated entreaties. Hence, the plan was that the Deceased and the Son would first settle in Hong Kong, and she could visit and later join them if she liked it there.

55.  She further explained that the Deceased cared greatly for the Son and sought to provide him with the best of everything, including the best education. For example, the Deceased spent a great deal of effort to ensure that the Son was admitted into the best primary school in Hangzhou, including making a substantial donation to the school. On Mr Lam’s advice, she and the Deceased decided to send the Son to Hong Kong after he graduated from primary school in 2011. She knew that the Deceased had considered and researched several secondary schools in Hong Kong, although she could not remember the names. According to her, if it were not for the Deceased’s death in February 2011, he would have taken the Son to live with him in Hong Kong in the summer of that year and the Son would have attended secondary school there.

Jie’s Evidence

56.  As mentioned above, Jie is Madam Jiang’s younger sister. She and her husband and daughter live in the same estate as Madam Jiang in Hangzhou. She has a close relationship with Madam Jiang and the Son, and according to her, she saw the Deceased when he came from time to time to Hangzhou. She also stayed with the Deceased on several occasions when she went to Shenzhen.

57.  She said she first learned in 2007 of the Deceased’s plan to emigrate to Hong Kong and to bring the Son to be educated there. Further, she recalled one occasion at the end of 2009 when the Deceased came to her apartment in Hangzhou where he again told her expressly that he wanted to take the Son to settle in Hong Kong. In the middle of 2010, she was also present in a conversation between the Deceased and Madam Jiang at a café in Hangzhou where the Deceased asked Madam Jiang to go to Hong Kong to stay with him and the Son as one family. In August 2010, she stayed at the Deceased’s home in Shenzhen, and one day, the Deceased “…had a very serious discussion with [her] for over two hours, when he told [her] about his plan to emigrate to Hong Kong”, which involved him moving with the Son to Hong Kong first, with Madam Jiang moving there later and living together as one family.

The Son’s Evidence

58.  The Son’s evidence was along the same lines as that of Madam Jiang and Jie, although he described in more detail conversations with the Deceased about the Deceased’s plan to emigrate to Hong Kong with him. He said that:

   (1)   The Deceased first mentioned to him around the fall of 2008 in Hangzhou the prospect of him studying in Hong Kong. The Deceased told him, however, that there was no rush as his English level was not yet good enough. Shortly thereafter, the Deceased arranged English lessons and tutoring for him, and Madam Jiang spent considerable time with him to improve his English;

   (2)   On 28 November 2009, the Deceased brought him to see Mr Lam and his wife, who gave him a sample English and mathematics test. This was the meeting also referred to by Mr Lam above. After the test, Mr Lam said his English was not yet up to the required standard. The Deceased was disappointed with his performance, and arranged for him to have more intensive tutoring and lessons in English;

   (3)   At the end of February 2010, the Deceased took him to get his HKID. The Deceased was very happy and told him about Hong Kong, what life in Hong Kong would be like and the need for him to learn Cantonese. The Deceased took him to Kowloon Tong to have a look at AIS and YCIS and explained to him that he would need to have interviews and take entrance examinations. When he asked him when he should apply, the Deceased replied that when his English was good enough, he would apply for him. The Deceased also mentioned that he would like to live in the Kowloon Tong area;

   (4)   He spent his summer holidays in 2010 with the Deceased at the Red Tree Bay Property in Shenzhen, and went together with the Deceased to see his friends in Hong Kong. On one occasion, the Deceased went to look at flats with an estate agent for several hours. The Deceased also gave him a book to read on identity as a Hong Kong person, entitled, “通識教育身份和身份認同” (“General Knowledge Education - Identity”);

   (5)   In the winter holidays that year, he accompanied the Deceased on several occasions to perform dialysis. The Deceased mentioned to him that he would obtain application forms for schools in Hong Kong after the lunar new year. The Deceased assured him that he would arrange everything and all that he had to do was perform well in the entrance examinations;

   (6)   For the lunar new year in 2011, he returned to Zhuzhou. The Deceased remained in Shenzhen and shortly afterwards went on holidays to Hainan. He did not see the Deceased again, but spoke to him regularly on the telephone up until the day he died. The Deceased told him he was enjoying his time in Hainan very much, and did not give any indication that he was feeling unwell;

   (7)   If not for the Deceased’s death, he firmly believed that he would have gone to school in Hong Kong later that year with the Deceased.

The Sister’s Evidence

59.  On behalf of the defendants, the Father, the Sister and Yongli filed witness statements, but only the Sister and Yongli gave evidence at the trial. The Father was apparently unable to attend due to old age and ill-health.

60.  The Sister’s credibility and character were the subject of stringent criticism by the plaintiffs due to the apparently false or misleading statements she had made in applications for probate in Macau and in Hong Kong: 

   (1)   On 14 September 2011, the Sister, who is a qualified lawyer in Mainland China, attended the Probate Registry in person and applied on behalf of the Father for grant of letters of administration of the estate in Hong Kong. The Sister made an affirmation stating inter alia that the Deceased was domiciled in Hong Kong, was divorced and had no issue, and that the only persons entitled to his estate were the Mother and the Father. The application was withdrawn on 14 January 2012 due to requisitions raised by the Registrar that the Deceased did not appear to have acquired a Hong Kong domicile at the time of his death;  

   (2)   On 10 October 2011, the Sister also made a declaration in Macau on behalf of the Father for a grant of representation for the Deceased’s estate in Macau. She declared, inter alia, that the Deceased was divorced, lived in Macau, did not leave a will, and did not have any issue, and therefore, the only persons entitled to the Deceased’s estate were the Mother and the Father. By reason of the declaration, the Sister was able to procure the transfer of the Deceased’s landed property in Macau to the Father and the Mother the next day. On the Son’s application, the Macau court subsequently set aside the declaration and transfer.

61.  It is clear that the statements made by the Sister in the Hong Kong and Macau probate proceedings were on their face incorrect or at least highly misleading. Whilst there can be no doubt that the Deceased’s family was well aware of the Son’s existence since he was adopted by the Deceased and Madam Jiang, the Sister explained that she made no mention of the Son in the Macau and Hong Kong probate proceedings due to her suspicions as to whether the Son had been lawfully adopted under Mainland Chinese law. Her suspicions were said to have arisen in part from a notarised birth certificate dated 28 July 2011 which seemed to suggest that the Deceased and Madam Jiang were the birth parents of the Son. Her suspicions were later dispelled in January 2012 when she received the adoption papers as part of the documents disclosed in the Macau probate proceedings.

62.  I agree with Mr Wang that, given the Sister’s qualifications and experience as a lawyer in Mainland China, the omission of any mention of the Son in both her Hong Kong affirmation and her Macau declaration was unlikely to have been inadvertent. It is not entirely clear whether her motive in doing so was necessarily an attempt to exclude the Son from the Deceased’s estate altogether. From the evidence, it is clear that there is a significant degree of mistrust between the Sister and Madam Jiang which is likely to have existed even before the Deceased’s death, and the Sister may have been attempting to exclude Madam Jiang, as the Son’s guardian, from obtaining control of the Deceased’s estate. In any event, I express my strong disapproval of the Sister’s conduct in this regard and have taken this matter into account when assessing her evidence.

63.  As to the Sister’s evidence, she said that the Deceased had spent several million RMB decorating and furnishing the Red Tree Bay Property, and he told her that he intended to live there in the long term and to retire there. She also mentioned that the reasons he applied to emigrate to Hong Kong was to facilitate his entry into Hong Kong without the need to obtain a visa. As the Deceased’s registration (hukou) was in Hunan, it was necessary for him to return to Hunan each time to obtain or renew his visa, which was inconvenient.

64.  As to the Son, the Sister agreed that the Deceased took great care in his education. However, she said that his ultimate goal was for the Son to study in the United States, and as to secondary school, Hong Kong, Shenzhen and Hangzhou were all options. She explained that the Deceased’s wish for the Son to study in the United States was supported by a letter written by the Son for the Deceased’s funeral service entitled, “致天堂爸爸的一封信” (A Letter to my Father in Heaven), where he wrote, “您放心吧、我一定不會辜負您對我的希望，我肯定可以在有朝一日考上世界第一學校哈佛”.  (English translation: “Don’t worry.  I surely will not disappoint you on your hopes for me.  One day I will definitely gain admission to the world’s number one university, Harvard.”)  The Sister also stated that the Son was never given any Cantonese lessons which showed that the Deceased had not definitively decided to send him to Hong Kong.

Yongli’s Evidence

65.  Yongli’s evidence was that the Deceased told her on a number of occasions that he enjoyed living in Shenzhen and the environment around the Red Tree Bay Property. He said that there was a very good community there and many wealthy people lived there. The Deceased believed in Buddhism, and during his charity work for the Lion’s Club in 2010, the Deceased met a revered Buddhist monk in 2010. He became his pupil through a pupillage ceremony at the Red Tree Bay Property, and therefore he believed the property to be blessed and wished to retire there.

66.  When Yongli asked him whether he would buy a property and move to Hong Kong, he said that he would not because Hong Kong was too crowded and the properties too small. He also said he applied for residence in Hong Kong for convenience only.

67.  I shall examine the implications of the conflict in the evidence of the plaintiffs and the defendants as to the Deceased’s expressions and discussions of his intentions further below.

The Deceased’s Health Condition

68.  One of the issues in dispute between the parties was the Deceased’s health in his final few years. The Deceased’s diabetes, which was undoubtedly serious and ultimately led to his demise, was likely to have had a significant impact on his intentions as the time.

69.  The Sister’s evidence was that the Deceased’s health began to deteriorate significantly from 2008 onwards as a result of complications from diabetes. She produced a series of medical and hospitalisation records of the Deceased from 2008 to 2010 from numerous Mainland Chinese hospitals which showed significant deterioration of his liver and kidney functions as well as very high blood pressure. Beginning in April 2010, the Deceased required dialysis on a regular basis due to kidney disease. He was hospitalised at the People’s Liberation Army Central Hospital in Beijing for 11 days from 17 September to 28 September 2010, and was further hospitalised from 30 September to 8 October 2010 at a hospital in Shenzhen. On 12 January 2011, he also underwent tests for a potential kidney transplant at another Mainland Chinese hospital.

70.  Yongli’s evidence was along similar lines as that of the Sister. She said that the Deceased had suffered from diabetes for a number of years, and the symptoms were painful. In October or November 2010, he telephoned her and asked for her support in having a kidney transplant. She said that he was keen about the transplant as he said he was suffering greatly. He also said that if he did not survive the operation, he wished to be buried in Zhuzhou. He asked her not to tell their parents, as it would be too much for them. She also spoke to him shortly before he died, and comforted him over the risks of the surgery.

71.  On the other hand, both Madam Jiang and the Son downplayed the Deceased’s health condition. Madam Jiang stated that, prior to 2010, “apart from the necessary medical precautions (mainly on the level of blood sugars) the Deceased lived a very normal life, only going to hospitals for regular check-ups”. She accepted that his condition did deteriorate “to a certain degree” in September 2010. However, after he was discharged from the hospital in Beijing, the Deceased consulted a professor she had arranged and decided to adopt a conservative treatment plan using a combination of Western and Chinese medicine. He was also against the idea of a kidney transplant. His condition “improved quickly” after adopting this combination treatment, and he was able to resume work and travel after his treatment in the Shenzhen hospital. His death was therefore wholly unexpected and came as a surprise.

72.  The Son told the court that the Deceased did not appear to be suffering very much from his illness, and although the Deceased had to perform dialysis beginning in 2010, he carried on life as normal, travelled and ate well, and played mah-jong until late into the night with his friends. However, as pointed out by the Sister, the Son’s evidence was contradicted by the eulogy he gave at the Deceased’s funeral, where he said, “爸爸其實你在我的心目中是十分頑強不甘落後的一個真正的男子漢, 如在最近的這幾年中, 你每天都要與死神和病魔展開一番爭鬥, 這樣你成天生不如死.”  (English translation: “Father, in fact in my heart, you were a real man, tenacious and not resigned to falling behind.  For example, in the recent few years, each day you had to fight against the god of death and the devil of sickness, and with that, throughout your entire day, your life was a living hell.”) (emphasis added).  

73.  Notwithstanding Madam Jiang and the Son’s attempt to downplay the Deceased’s condition, it is clear that the Deceased was not a well man towards the end of his life. Even in the absence of medical expert evidence, the fact that the Deceased needed regular dialyses, repeated hospitalisations and potentially a kidney transplant speak for themselves. On this aspect, I prefer the evidence of the Sister and Yongli as to the Deceased’s condition and feeling of suffering, which are consistent not only with the Deceased’s medical and hospitalisation records, but also with the eulogy at the Deceased’s funeral.

74.  It is interesting to note that although both Mr Lam and Madam Jiang suggested that one of the reasons why the Deceased wished to live in Hong Kong was the quality of the healthcare here, there is no evidence at all that he consulted any doctors or sought medical treatment for his diabetes or kidney disease in Hong Kong, with the exception of minor eye surgery in 2006 on the recommendation of Mr Lam. On the contrary, it can be seen from the medical records that the Deceased was seeking treatment from numerous hospitals in Beijing, Hunan and Shenzhen. The Deceased undoubtedly had the means to seek advice or treatment in Hong Kong (or indeed, anywhere else in the world) if he wished to do so. Whilst this is not in itself a conclusive factor, it nonetheless forms part of the overall picture as to whether the Deceased considered Hong Kong to be home at the relevant time. 

75.  Further, the Deceased’s deteriorating health condition from 2008 or 2009 onwards and the fact that he was having regular consultations and treatment from doctors and hospitals in Mainland China at least raise the question of whether the Deceased would have wanted to uproot his life in Mainland China to make a new home in Hong Kong, with all the effort and stress that entailed, not to mention having to adjust to a different healthcare system in Hong Kong.

76.  Further, Madam Jiang told the court of a discussion with the Deceased after his discharge from the hospital in Beijing in October 2010 that he wished to purchase a hillside villa in a scenic area near Hangzhou and spend time there to convalesce. The Deceased’s desire to have a home or at least a holiday home near Hangzhou appears to have been a recurring one. In Jie’s witness statement, she recalled that the Deceased inquired “…in about April 2010 the possibility of renting a small manor in Longwu Tea Village as a kind of holiday home, and taking his Jeep Wrangler that he used in Hunan to Hangzhou for the family to enjoy their leisure time there.”.

77.  In his closing submissions, Mr Wang sought to dismiss the significance of these discussions by submitting that the discussions were “casual”, “a short term measure” and “not pleaded”. Given that the discussions were raised by the plaintiffs’ own witnesses (it is not suggested that the defendants were ever part of those discussions), the pleading point is a non-starter. Irrespective of whether these were casual discussions or not, they nonetheless form part of the overall picture as to where the Deceased intended or considered to be home at the time.

The Deceased’s Relationship with his Family and Madam Jiang and Conflicts in the Evidence

78.  Considerable time was spent in the evidence and cross‑examination on the Deceased’s relationship with Madam Jiang on the one hand, and his relationship with his parents and two sisters on the other.

79.  As to the Deceased’s relationship with Madam Jiang, Madam Jiang told the court that her divorce from the Deceased in 2001 was only for financial reasons, namely, to insulate the Deceased and his family from a business dispute in which she was involved at the time in Zhuzhou. The Son was not told and was not even aware of the divorce. She then moved to Hangzhou with the Son, and the Deceased went to Shanghai to join Shanghai Putian. Despite the divorce, she said she maintained “a very close relationship” with the Deceased and that she and the Deceased regularly spent time together in Hangzhou with the Son as “one family”. He is also said to have confided in her everything about his life and his plans, and she also relied upon him financially and emotionally.

80.  Further, according to Madam Jiang, the Deceased wished very much to be reunited with her and proposed on numerous occasions to remarry her. However, although the divorce was driven by financial reasons and she continued “to care for him a lot”, she felt a “psychological scar” from the fact that he “so readily agreed to” it at the time. She was therefore “just not psychologically ready to remarry him yet…[but] deep in my heart I had this feeling that over time I would resolve to remarry him some day.”.

81.  The evidence of the Son and Jie was along the same lines. On the other hand, the Sister’s evidence was that although the Deceased maintained a good relationship with Madam Jiang for the sake of the Son, there was no possibility of them being reunited. Rather, the Deceased had a number of girlfriends after their divorce, some of whom he had brought to see his parents.

82.  As to the Deceased’s relationship with the Sister, both Madam Jiang and Jie told the court that he had an estranged relationship with her and they rarely saw each other even when they both lived in Shenzhen. Madam Jiang further said that the Deceased kept a distance even from his parents and Yongli. She suggested therefore that the Deceased would not have told the Sister or Yongli anything about his plans or intentions, including whether he intended to move to Hong Kong. Madam Jiang’s evidence was, not surprisingly, disputed by the Sister and Yongli, who maintained that they in fact had a good relationship with the Deceased.

83.  In my view, it is unnecessary to make any detailed findings as to the feelings or the state of affection between the Deceased and those around him. The only real relevance of this issue goes to what, if anything, the Deceased would have told to each of them about his intentions to move to Hong Kong, or otherwise. As mentioned above, however, I believe that the defendant’s conduct, looked at objectively, is a more reliable gauge of the Deceased’s true intentions.

84.  I would only note that while I believe that the Deceased and Madam Jiang remained on good terms after their divorce, I have some reservations as to whether the Deceased was anxiously seeking to reunite with Madam Jiang or that their relationship was as close as suggested by the plaintiffs. For instance, although the Deceased lived in Shenzhen and the Son regularly visited and stayed with him there, there is no evidence that Madam Jiang spent any, or any significant, time with the Deceased in Shenzhen. Further, it does not appear that the Deceased ever took Madam Jiang to visit Hong Kong, despite having taken the Son on numerous occasions. This does not sit well with the plaintiff’s evidence that the Deceased was keen to have her go with him and the Son to Hong Kong and live there together as one family.

85.  In cross-examination, Mr Keung suggested to Madam Jiang that when the Deceased died, he was in fact holidaying in Hainan with his girlfriend, to which Madam Jiang replied that she did not know. This was a somewhat surprising response if she maintained as close and as affectionate a relationship as she suggested. Moreover, when I asked her why the Deceased did not move to Hong Kong in the 15 months between October 2009 when he received his HKID and his death in February 2011, she replied that she was not clear about that. Again, this is surprising if, as she suggested, the Deceased spoke to her nearly every day and confided in her everything about his life and his intentions.

86.  On the other hand, although every family will have their disputes and disagreements, I do not believe that the relationship between the Deceased and his family members were as estranged or distant as suggested by Madam Jiang. There is no dispute that the Deceased regularly returned to Zhuzhou where his parents and Yongli lived. In particular, I was impressed with Yongli, who gave her evidence about her relationship with the Deceased in an open and candid manner, and was on several occasions overcome with grief over the memory of her lost brother.

87.  Undeniably, there are conflicts in the evidence between the witnesses for the plaintiff and those for the defendant as to what the Deceased is alleged to have said and to whom about his intentions at different points in time. Having heard the witnesses, and having taken into account the criticisms as to credibility on both sides, the picture that emerges is that the Deceased is likely to have expressed different views as to his intentions to different people, depending on the circumstances. I do not think, therefore, what the Deceased may have said on a particular occasion should be taken in isolation as indicative of his true intention. Rather, as I have already alluded to above, the Deceased’s expressions of intention must be considered together with and gauged by his actual conduct.

Whether the Deceased Intended to Make Hong Kong Home

88.  Like many wealthy individuals in Mainland China, the Deceased coveted and was eventually able to obtain a Hong Kong identity card which entitled him (and later, the Son) to remain and eventually obtain a right of abode in Hong Kong. It is clear, however, that having a Hong Kong identity card is not by itself indicative of domicile in Hong Kong. There is no dispute that he was present in Hong Kong on numerous occasions in the period between the date he obtained his HKID on 15 October 2009 and his death on 9 February 2011. Hence, the only question is one of intention during that period: whether the Deceased intended to make a home (in the sense of there being only one home) in Hong Kong for an indefinite period.

89.  In my judgment, the answer to the question is “No”.

90.  It is useful to begin the discussion with the Deceased’s intentions for the Son. As mentioned above, Mr Lam himself believed from his discussions with the Deceased that his application for residence in Hong Kong was mostly for the sake of the Son’s education.

91.  I have no difficulty accepting that the Deceased intended for the Son to attend a good secondary school in Hong Kong, and the two schools he had in mind were YCIS and AIS. However, even on the plaintiffs’ case, as a result of the visit by the Deceased and the Son to Mr Lam in Hong Kong, it was firmly decided that the Son would only apply for secondary school in Hong Kong after he finished his primary school in Hangzhou in 2011.

92.  There is some difference in the plaintiffs’ evidence as to the precise time of that meeting:

   (1)   As mentioned above, in Mr Lam’s witness statement, he said that the meeting took place approximately in 2008 or 2009, although in cross-examination, he said that it took place in “2007 or 2008”. In any event, from the discussion at that meeting, in particular, that the Son would be entering his 5^th year of primary school in September 2009, the meeting was likely to have taken place before September 2009;

   (2)   On the other hand, the Son said that although he can no longer remember clearly, the meeting should have been on 28 November 2009. He relied upon his entry and exit record into Hong Kong which showed that he entered and left Hong Kong on that day. His last entry prior to that date was on 29 July 2007 where he stayed until 1 August 2007;

   (3)   Having regard to Mr Lam’s evidence in cross-examination and the context of the conversation, it is more likely that the meeting took place in July 2007 rather than in November 2009. This would mean that the Son’s evidence that the Deceased first mentioned to him the prospect of studying in Hong Kong in the fall of 2008 would similarly have to be pushed back to an earlier date;

   (4)   However, I have no difficulty doing so given that the Son was very young at the time (around 8 or 9 years old) and unlikely to be able to remember clearly when that happened. Further, it is clear from the April 2007 Agreement that the Deceased was already seeking to persuade Madam Jiang to allow the Son to go to school in Hong Kong before then. It is likely therefore that the Deceased would have mentioned something to the Son before that time.

93.  In the circumstances, even before the Deceased obtained his HKID on 15 October 2009, it had already been decided that the Son would not be moving to Hong Kong to attend secondary school before the commencement of the academic year in 2011 (presumably, in August or September 2011), at the earliest. Even if the Deceased intended to move with the Son to Hong Kong later in 2011, that was merely an intention to make a home in Hong Kong sometime in the future. As I have explained above, that is insufficient to acquire a new domicile.

94.  Even if I were wrong and the meeting between the Deceased, the Son and Mr Lam took place on 28 November 2009, I do not think that prior to that meeting the Deceased had any firm intention for the Son to move to Hong Kong immediately. Plainly, the meeting with Mr Lam was an exploratory one to ascertain the options available to the Son to study in Hong Kong. Even if the Deceased had a strong interest for the Son to study here before the meeting, it was dependent on Mr Lam’s advice and the Son being admitted to a good or desirable school in Hong Kong. I do not find that the Deceased had reached any firm decision to move to or make a home immediately in Hong Kong with the Son prior to the meeting.

95.  Moreover, even if the Son had already completed his primary school education and was ready to attend secondary school in Hong Kong, admission to either YCIS or AIS was far from guaranteed. Indeed, the Deceased was all along aware that the Son’s English level was not yet up to the required standard. There is no evidence to suggest that the Deceased would have enrolled the Son in a less prestigious private school or a government school should he be rejected by AIS and YCIS, solely to enable them to move to Hong Kong immediately. As mentioned above, even on the Son’s evidence, the Deceased had told him that “there was no rush” and that he would apply to YCIS and AIS when his English was good enough.

96.  Hence, not only was the Deceased’s intention to move to Hong Kong with the Son to take place in the future when he completed his primary school, but it was also dependent or contingent upon him being admitted to what he considered a desirable or at least an acceptable school in Hong Kong. The Deceased’s intention to move to Hong Kong with the Son was not only a future but also a flexible intention, rather than a fixed or definitive one.

97.  I also note the point made by defendants that in the Son’s eulogy, there was no mention that the Deceased had an immediate intention to move with him to Hong Kong. There was also no mention of any aspiration on the part of the Deceased to have him attend school in Hong Kong. In cross-examination, the Son sought to explain that away by saying that being unable to go to Hong Kong was the Deceased’s greatest regret, and as the eulogy was a conversation between him and the Deceased, he did not wish to hurt him. I find the explanation unconvincing at best.

98.  Moreover, I agree that the eulogy suggests that the Deceased had a hope for him to attend Harvard University, which lends some support to the defendants’ evidence that the Deceased had also considered sending the Son to study in the United States. When cross-examined on this point, the Son gave the rather incredible response that he had “made up” (吹牛) the comment about Harvard University at the eulogy, and that the Deceased had never mentioned Harvard to him before. Not only do I think it unlikely that the Son would have “made up” something like that in those circumstances, but as the Son was only 12 years of age at the time, it is also unlikely he would have made such a remark unless it had been mentioned to him by the Deceased.

99.  I would point out here that my view of the Son’s credibility overall was negatively affected by his evidence in this respect as well as that on the Deceased’s health condition, as already explained above.

100.  Coming back to the Deceased, there is nothing to suggest that he had any immediate need or desire to move to and make Hong Kong home after he obtained his HKID in October 2009. As mentioned above, Madam Jiang was unable to give any answer as to why the Deceased did not do so. The Deceased lived comfortably in Shenzhen, which was only a short distance from Hong Kong, and with his HKID, he was easily able to make short trips to Hong Kong whenever he liked, whether to see his friends or to manage his investments. The nature of his investments in Hong Kong, being in publicly listed shares, did not require the Deceased to be physically in Hong Kong. In this day and age, such investments can easily be managed from anywhere in the world.

101.  This is precisely what the Deceased did after he obtained his identity card in October 2009 up until his death. He made no real effort actually to move to Hong Kong after he obtained his HKID, other than seeing some flats and making some inquiries as to schools for the Son. There was certainly nothing stopping him, but he chose not to do so. Mr Wang argues that he was merely “delayed”, but such delay was not a real delay in the sense that he was constrained by circumstances beyond his control. It was his choice to wait for the Son to be accepted into YCIS or AIS before moving to Hong Kong.

102.  In any event, even if the Son had moved and attended school in Hong Kong, it did not necessarily follow that the Deceased himself would live or make his home in Hong Kong. As mentioned above, in his discussions with Mr Lam, he considered having the Son being cared for by a Filipino helper or even Madam Jiang in Hong Kong so that he would not need to be present in Hong Kong all the time.

103.  There is no dispute that the Deceased expended considerable money and effort in decorating and furnishing the Red Tree Bay Property. Leaving aside the dispute as to whether he told the Sister or Yongli that he wished to remain or retire there, there is no evidence that he made any attempts to sell the property after October 2009 in preparation for a move to Hong Kong. It is more likely than not that he intended to keep the property as his home for the foreseeable future.

104.  Perhaps more tellingly is the fact that he replaced his car in Shenzhen with a new BMW SUV as late as in August 2010. Although this is not in itself conclusive of the Deceased’s intentions, it inevitably points away from an intention immediately to leave his home in Shenzhen and to make a new home in Hong Kong. Further, as mentioned above, he maintained another car, a Jeep Wrangler, in Hunan, and indicated as late as October 2010 that he would move it to Hangzhou, where he was considering acquiring a villa for his convalescence.

D.   CONCLUSION

105.  Having regard to all of the circumstances above, I find that plaintiffs have failed to prove on a balance of probabilities that the Deceased acquired a new domicile in Hong Kong under section 5(2) of the DO, whether on 15 October 2009 or at any time thereafter before his death. Although the defendants have not sought an express declaration from this court that the Deceased was in fact domiciled in Mainland China, that is the inevitable result of this judgment.

106.  I should mention that in paragraph (3) of the prayer of the statement of claim, the plaintiffs also seek a grant to two solicitors of letters of administration of the Deceased’s estate as Madam Jiang’s lawful attorney. I have not heard any argument from either Mr Wang or Mr Keung on that issue, which would in any event be impacted upon by my decision on the Deceased’s domicile. I therefore make no order on that paragraph.  Subject to that, the action is dismissed.

107.  There is no reason why costs should not follow the event. I note, however, the late abandonment by the defendants of their challenge to the validity of the Son’s adoption by the Deceased under Mainland Chinese law, and some of the evidence before the court, including two expert reports on Mainland Chinese law, are related solely to that issue. It is not entirely clear whether the costs occasioned by the abandonment have already been dealt with by previous orders. In the circumstances, I make an order on a nisi basis that the defendants are to have the costs of the action, to be taxed if not agreed.

108.  Last but not least, I thank both counsel for their assistance.

Mr Clark Wang, instructed by Hobson & Ma, for the plaintiffs

Mr Karl Keung, instructed by Francis Kong & Co, for the defendants