Ah Pin Say Nai v. Tam Mee Ling (譚美玲) also known as Mee Ling Tam, The Administratrix of the Estate of Kwok Leung Lam also known as Kwok Leung Lam also known as Lam, Kwok Leung (林國良), Deceased

HCMP 1240/2017

[2019] HKCFI 2856

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1240 OF 2017

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JUDGMENT

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1.These proceedings concern the estate of Lam Kwok Leung, who deceased intestate in Toronto, Canada (“the Deceased”). The defendant (“Tam”) is his surviving widow, who has already obtained grant of administration of the estate of the Deceased first in Toronto and then in Hong Kong. The plaintiff (“APSN”) is the niece of the Deceased. She commenced these proceedings seeking determination by the court of whether she could rely on the Intestates’ Estates Ordinance, Cap 73 (“IEO”) to claim entitlement to share in the estate of her uncle, and whether she could seek an account from Tam. The answer depends whether the Deceased died domiciled in Hong Kong.

Background

2.Lam Woo was a prominent businessman and philanthropist in Hong Kong. His eldest son gave birth to two sons, namely, the Deceased and Lam Kwok Chue (“LKC”).  LKC predeceased the Deceased in 1990.  APSN and her sister are the daughters of LKC.  The Deceased was their natural uncle.

3.The Deceased was born in 1932.  He possessed qualification and practice in architecture before he joined the civil service in Hong Kong in 1967.

4.The Deceased was married to Jennie Tsat Ling Chan (“Jennie”) in Hong Kong in the latter half of the 1960s.  They had no children.

5.Between 1975 and 1982, the Deceased and Jennie acquired three residential properties in Hong Kong.  Briefly, they are situated at Carble Garden (“the Carble Garden Property”), Chi Fu Fa Yuen (“the Chi Fu Fa Yuen Property”) and Baguio Villa (“the Baguio Villa Property”) in the chronological order of their acquisitions.  The first two of these properties have always been rented out, while the Baguio Villa Property was the matrimonial home of the couple.  The couple had resided at the Baguio Villa Property since their marriage until they emigrated to Canada as mentioned below.

6.The Deceased retired from civil service in October 1990.

7.In April 1991, the Deceased and Jennie emigrated to Ontario, Canada. They became naturalized and were granted Canadian citizenship in June 1995.

8.In Canada, the Deceased and Jennie owned two properties.  For the present purpose, it suffices to call them “the Florence Avenue Property” and “the Flaming Roseway Property”.  The former was acquired in 1990 and therefore in anticipation of the emigration.  It also became the matrimonial home of the couple since their emigration there.  The latter has always been let for rental income.

9.Since their emigration, the Deceased and Jennie would still visit Hong Kong and return to Toronto.

10.In July 2006, Jennie passed away and was buried in Toronto.

11.After the passing of Jennie, the Deceased continued to reside at the Florence Avenue Property, but would visit Hong Kong from time to time as before.

12.Tam was a pupil in the primary school where Jennie used to teach in the late 1960s.  Many years later, Tam obtained her university degree in Hong Kong and became a teacher as well.  Apart from a few years in the early 1990s when she studied in Toronto, Tam taught in Hong Kong until her early retirement in 2007.

13.According to Tam, she and Jennie had no contact since she had left the school until sometime in the 1990s when Jennie initiated the resumption of contact with her old class at the school.  They got to meet during gatherings in the early 2000s when Jennie visited Hong Kong from Canada.

14.In August 2008, Tam emigrated to Toronto.  Whilst there is dispute as to when the relationship between the Deceased and Tam commenced, they were definitely together in late 2008 after Tam’s own emigration to Toronto.

15.On 12 November 2009, the Deceased and Tam formalized their marriage in Hong Kong.  They returned to Toronto on 1 December 2009.

16.In March and April 2010, the Deceased had been hospitalized.  On 4 May 2010, the Deceased passed away in the hospital in Toronto prior to his scheduled heart procedure on the day.

17.In July 2010, Tam applied and was granted administration of the estate of the Deceased without a will in Canada.  Tam has subsequently obtained grant of administration of the estate of Deceased in Hong Kong as well.

18.APSN challenges the grant, and has commenced proceedings against Tam^[1].

19.On 29 May 2017, APSN commenced the present proceedings pursuant to section 56 of the Probate and Administration Ordinance, Cap 10 for the following reliefs:

(1)  Determination by the court of the following questions:

(a)   Whether the succession to the estate of the Deceased^[2] should be governed by the intestacy rules in Hong Kong; and

(b)   Tam, being the surviving wife of the Deceased, should be entitled to ½ of the residuary estate only, and the other ½ should be held on statutory trust for APSN and her sister pursuant to sections 4(4)(b)(ii), 5(1)(a) and 5(3) of the IEO;

(2)  Order of account with all relevant documents exhibited from Tam of all the assets of the Deceased’s estate^[3] that have come to her hands and of her dealings therewith since 4 May 2010 to date;

(3)  Further or other relief;

(4)  Costs.

20.Question (1)(a) above depends on whether the Deceased was domiciled in Hong Kong as at the date of his death, 4 May 2010, which also determines question (1)(b).  Section 4(4) of the IEO provides:

“If the intestate leaves no issue but does leave a husband or wife and one or more of the following, namely a parent, a brother or sister of the whole blood, or issue of a brother or sister of the whole blood, the surviving husband or wife shall take the personal chattels absolutely and, in addition, the residuary estate of the intestate shall stand charged with the payment of a net sum of $1,000,000, free of death duties (if any) and costs, to the surviving husband or wife with interest on that sum from the date of death at the rate determined from time to time by the Chief Justice for the purpose of section 49(1)(b) of the High Court Ordinance (Cap 4) until paid or appropriated and, subject to providing for that sum and interest, the residuary estate shall be held –

(a) as to one half, in trust for the surviving husband or wife absolutely; and

(b) as to the other half –

…

(ii) where the intestate leaves no parent, on the statutory trusts for the brothers and sisters of the whole blood of the intestate.”

And section 5 provides:

“(1) Where under this Ordinance the residuary estate of an intestate, or any part thereof, is directed to be held on the statutory trusts for the issue of the intestate, the same shall be held upon the following trusts, namely –

(a) in trust, in equal shares if more than one, for all or any of the children or child of the intestate, living at the death of the intestate, who attain full age or marry before attaining full age, and for all or any of the issue living at the death of the intestate who attain full or marry before attaining full age of any child of the intestate who predeceases the intestate, such issue to take through all degrees, according to their stocks, in equal shares if more than one, the share which their parent would have taken if living at the death of the intestate, but no issue shall take whose parent is living at the death of the intestate and is so capable of taking;

…

(3) Where under this Ordinance the residuary estate of an intestate or any part thereof is directed to be held on the statutory trusts for any class of relatives of the intestate, other than issue of the intestate, the same shall be held on trusts corresponding to the statutory trusts for the issue of the intestate (other than the provision for bringing any money or property into account) as if such trusts (other than as aforesaid) were repeated with the substitution of references to the members or member of that class for references to the children or child of the intestate.”

21.APSN is entitled to proceed to question (2) above only if question (1) is answered in the positive.

22.There is no dispute that the Deceased’s domicile of origin is Hong Kong.  The same applies to Jennie and Tam.  The key dispute is whether the Deceased has changed his domicile to Toronto, Canada by and since his emigration there.

The principles

23.The Domicile Ordinance, Cap 596 (“DO”) came into effect on 1 March 2009 to consolidate and reform the law for determining the domicile of individuals.

24.Pursuant to section 9 of the DO, where an individual is domiciled in a country or territory, he continues to be so domiciled until he acquires another domicile.

25.According to section 5(2) of the DO, an adult acquires a new domicile if he is present in a place and intends to make a home there for an indefinite period.

26.Domicile is not mere residence, though residence is a factor relevant to the manifestation of intention as to domicile.  Domicile is not right of abode, as the latter does not depend on his domicile: see W v C [2013] 2 HKLRD 602 at §21.  A person may have more than one place or country of residence, but must have one and only one domicile: see sections 3(1) and (2) of the DO.

27.No individual has at the same time and for the same purpose more than one domicile: section 5(2) of the DO.

28.The issue of domicile before the court of Hong Kong shall be determined in accordance with the Hong Kong law: section 3(3) of the DO.

29.Section 13 provides that the domicile an individual had at a time before the commencement of the DO shall be determined as if the DO had not been enacted.

30.Section 14(1) provides that the domicile an individual has at a time on or after the DO came into effect shall be determined as the DO had always been in force.  For the purpose of such determination, the DO (other than section 13) shall apply in place of the common law rules to the extent that those rules are inconsistent with the DO (other than section 13).  Amongst others, they include the rule on the acquisition of the domicile of choice based on residence and intention of permanent residence (section 14(3)(d)) and the rule that the standard of proof required to prove that an individual’s domicile of choice is more onerous than that required to prove a change from a domicile of choice to another (section 14(3)(g)).

31.Whilst Leading Counsel for the parties tendered different cases as reference for the approach and factors in the consideration of the issue of domicile, they accepted that their difference should be subtle.  Cases decided prior to the coming into effect of the DO still have guidance value, though viewed with caution and now subject to the express provisions of the DO mentioned above: see Conflict of Laws in Hong Kong (3rd ed) at §7-014.

32.Of the pre-DO cases, in Wong Zhong Lan Xiang v Frank Wong [2003] 4 HKC 609, Cheung JA said (at §87):

“…

In the light of these cases, the law…may be stated as follows: (1) The domicile of origin adheres – unless displaced by satisfactory evidence of the acquisition and continuance of a domicile of choice; (2) a domicile of choice is acquired only if it be affirmatively shown that the propositus is resident within a territory subject to a distinct legal system with the intention, formed independently of external pressures, of residing there indefinitely.  If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, e.g. the end of his job, the intention required by the law is lacking; but if he has in mind only a vague possibility, such as making a fortune (a modern example might be winning a football pool), or some sentiment about dying in the land of his fathers, such a state of mind is consistent with the intention required by the law.  But no clear line can be drawn: the ultimate decision is each case is one of fact – of the weight to be attached to the various factors and future contingencies in the contemplation of the propositus, their importance to him, and the probability, in his assessment, of the contingencies he has in contemplation being transformed into actualities; (3) It follows that, though a man has left the territory of his domicile of origin with intention of never returning, though he be resident in a new territory, yet if his mind be not made up or evidence be lacking or unsatisfactory as to what is his state of mind, his domicile of origin adheres.  And, if he has acquired but abandoned a domicile of choice either because he no longer resides in the territory or because he no longer intends to reside there indefinitely, the domicile of origin revives until such time as by a combination of residence and intention he acquires a new domicile of choice.”

33.In determining the intention for the purpose of section 5(2) of the DO, W v C (above), a post-DO case, set out (at §20) the factors to be taken into consideration:

“(i) length of residence (ii) condition of resident: Purchased property? Leased property? Furnished lodgings? Hotels? (iii) Marriage with a local partner (iv) whereabouts of the family (v) business interest (vi) whereabouts of personal belongings (vii) whereabouts of the family (v) business interest (vi) whereabouts of personal belongings (vii) whereabouts of the person’s property and investments (viii) the fact of naturalization (ix) decision made as to the nationality of the children (x) education of the children (xi) memberships of clubs or religious associations (xii) place of work (xiii) relation between a man and his family.”

34.The above factors are not exhaustive.  Nor is any of them conclusive. Instead, the factors guide the consideration of whether an individual has formed an intention of making a place his home indefinitely.  The relevance of the factors and their respective weight vary depending on the circumstances of the case: see LCYP v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798 at §34; Dicey, Morris & Collins, The Conflict of Laws (15th ed) Vol 1 at §§6-048 – 6-049.

35.However, Leading Counsel for APSN submitted that some are more significant factors than the others in the consideration, such as the conduct of the individual that had to do with legal formality.  No authority was tendered in support of that as a matter of principle.  Further, such factors could well exist in both the domiciles of origin and choice of an individual, and it would in practical terms still be a matter of attaching the appropriate weight to them in all the circumstances.  I shall come to the consideration of such factors later.

36.When there is available the full history of a person’s life, it would be wrong to view various stages in his life in isolation.  Events subsequent to a particular date during a person’s lifetime inevitably throw light on that person’s intention at the particular time.  The whole picture available must be considered: see Wong Zhong Lan Xiang (above) at §50.

37.He who alleges a change of domicile bears the burden of establishing that by evidence.  Section 12 of the DO provides that any fact that needs to be proved for the purposes of the Ordinance shall be proved on the balance of probabilities.  Such express provision in the DO, as categorized under the preamble of the Ordinance mentioned above, modifies the application of any common law presumption in favour of the continuation of an existing domicile (predating the coming into effect of the DO).  In my view, unless in a situation where it is impossible to rule on the balance of probabilities, notwithstanding the evidence adduced by the parties, the court need not resort to determine the case by reference to mere burden of proof.

38.In the present case, the question before this court is whether the Deceased had demonstrated the requisite intention to change his Hong Kong domicile by making Toronto, Canada, his home for an indefinite period by the time of his death (4 May 2010).  The parties have adduced evidence in respect of various factors and the circumstances.

39.After the close of the first round of affidavit evidence in October 2017, the parties appeared before another court in December 2017 and obtained, amongst others, the specific direction that these proceedings shall be heard wholly on affidavit evidence without cross examination, unless otherwise directed.  Initiated by APSN, there was subsequently another round of affidavit evidence that closed in October 2018.  In view of the factual dispute raised by the parties, this court specifically asked the parties to re-consider, but Leading Counsel for both parties confirmed that they would proceed on the basis of affidavit evidence only.

Emigration in 1991

40.The Deceased and Jennie emigrated to Toronto in 1991.  APSN pointed out that such move was motivated by the concern about the future after 1997 that prevailed in Hong Kong at the time.

41.Whilst motive at the relevant time is not an irrelevant circumstance, it is not intention.  The requisite intention is one for a change of domicile: see Morris, The Conflict of Laws (9^th ed) at §3-016.  That the emigration was motivated by the concern suggested by APSN, assuming it was true, per se does not provide the answer as to any intention to make Toronto home for an indefinite period.  What the Deceased and Jennie did with regard to and after the emigration equally, if not more, cast light on their true intention: see Wong Zhong Lan Xiang (above).

42.The Deceased and Jennie had no child.  In that sense, the emigration was effectively that of the Deceased and his only immediate family.  Only APSN (and her sister) has come forward to claim entitlement to the Deceased’s estate.  APSN apparently also resides in Canada, though it is unknown since when.  There is no suggestion of any other close family of the Deceased in Hong Kong.

43.Both the Deceased and Jennie were retired by the time of the emigration.  There is no evidence of any plan for any trade or business venture of theirs in Toronto.

44.Both sides referred to the Deceased’s connections with Hong Kong and Toronto respectively after emigration. There can be no dispute that since their emigration, the Deceased’s connections with the two places co-existed in the form of physical presence, activities and location of assets.  The question, as relevant to ascertaining his intention in doing so, is the nature of such state of affairs.  Was he merely maintaining connection or retaining root in Hong Kong or taking root in Toronto?

In Toronto

45.With the naturalization and Canadian citizenship of the Deceased and Jennie came the benefits and obligations of a Canadian citizen[4]. The Deceased held a social insurance card, and enjoyed the social benefits.  He paid taxes as a Canadian citizen and a resident of Ontario.  In doing so, he declared the rental income from his two properties in Hong Kong mentioned above as his foreign income, and claimed tax credit for such foreign taxes payable to the Hong Kong revenue authority.  As a Canadian citizen, he had been summoned to serve as a juror in the Ontario Court.

46.The Deceased held a health card that entitled him to medical benefits.  The Deceased arranged his medical care in Ontario, where he consulted two doctors on a regular basis.  The last medical procedure that he was scheduled to undergo immediately prior to his death in the hospital there mentioned above on 4 May 2010.

47.The Deceased was known to be a keen photographer.  He was an active member, and was elected as the president of the Chinese Canadian Photographic Society of Toronto between 1994 and 1998.  As such, he participated in the activities and exhibitions as well as judged in various photography competitions.  He was frequently reported in publications[5] and newspapers[6] and identified as a Canadian or Ontarian.  In 2002, the Deceased founded the Canadian Group of Imaging Artists.

48.In connection with his hobby, the Deceased kept two rooms of the Florence Avenue Property full of hi-tech computers and equipment for photograph editing.  The newest major addition was a custom-built computer that he commissioned in March 2010, two months before his passing.  This was contrasted with the computer at the Baguio Villa Property, which was said to be outdated.  The objective fact deposed to was that there was not even internet connection.  The arrangement in respect of the Baguio Villa Property will be further discussed below.

49.The Deceased was a Christian.  He was an active member of the local church in Toronto, and acted as a member of the committee advising on its relocation.

50.The Florence Avenue Property was acquired and has since been occupied as their matrimonial home in Toronto.  For places outside of Toronto, the Deceased also provided the Florence Avenue Property address and telephone number there as his contact details.  This applied to the British architecture institute and the Hong Kong tax authorities.  There is no evidence of change after Jennie passed away in 2006.

51.The evidence does not suggest that the Deceased demonstrated his intention to return to Hong Kong for good since the passing of Jennie.  Instead, the Deceased acquired not just for Jennie but also himself a burial ground with a tombstone commissioned for their joint grave at a cemetery in Toronto.  Jennie was buried there.

52.Like Jennie, Tam emigrated to Toronto in August 2008.  According to her, she took an early retirement in 2007 after 20 years of teaching career in Hong Kong.  She had been suffering from high myopia and lost her right eye vision after a series of unsuccessful operations on her retina.  She decided to retire for better life and medical treatment in Canada.

53.As mentioned, there is dispute as to whether the relationship between the Deceased and Tam started earlier than 2008.  According to her, she had not met Jennie after primary school until the 1990s.  She first met the Deceased together with Jennie in 2002, and subsequently on two occasions in 2006.  The relationship between her and the Deceased started after the passing of Jennie and in late 2008.  APSN put together what she said to have understood from Jennie, and suspected that it was Tam who was in an extra-marital relationship with the Deceased before then.

54.Had the Deceased and Tam been together much earlier than Jennie’s death, it might be considered to be odd for the Deceased to decide to arrange for the joint grave of himself and Jennie particularly when he made the arrangement only after Jennie had passed away.  However, assuming what APSN alleged was true, so that the relationship between the Deceased and Tam started as an extra-marital one earlier than 2008, one would have expected the Deceased to visit Hong Kong and/or Tam to visit Toronto more often after the passing of Jennie.  That did not happen.  Further, if the relationship had been existing well before the passing of Jennie, then Tam’s emigration must have been known by the Deceased.  In that case, this would only serve to suggest more of the Deceased’s determination to settle in Toronto when Tam effectively emigrated to be near him, if not to actually join him, after the passing of Jennie.

55.In any event, it would not be unnatural to expect that the intention of one’s partner would play an important part in the formation of an individual’s intention behind the emigration.  It was expected to be the case with Jennie.  It was also, if not more, expected to the case with Tam, once the Deceased and Tam became together as a couple, even though they emigrated to Toronto at different points of time.  The undisputed fact was that weeks before his death in 2010, the Deceased acquired a two-grave lot in the cemetery in Toronto, this time for himself and Tam.

56.After their marriage in 2009, the Deceased and Tam retained the Florence Avenue Property as their matrimonial home until the Deceased’s passing.  According to Tam, not long before his death, the Deceased was still contemplating refurbishing the Florence Avenue Property and buying a new television and a custom made television stand for their home there.  He also suggested to replace his then car with a new one with a specific model identified.

In Hong Kong

57.After their emigration, the Deceased and Jennie visited Hong Kong from time to time.  APSN alleged that they came frequently and stayed for 3 to 4 months each time.  The same could not be verified by travel records of the time.  However, as mentioned, the Deceased did not decide to move back to Hong Kong after the passing of Jennie in 2006.  On the contrary, the available travel records of the Deceased between 2006 (ie, the year Jennie passed away) and 2010 (right before he passed away) suggested that he still spent about 80% of his time in Toronto and 20% of his time in Hong Kong during those years.  The pattern was that he would visit Hong Kong once or twice a year for different durations.  In terms of timing, those visits could relate to specific purposes, such as handling the estate of Jennie, travel to Mainland China for his photography hobby and marriage with Tam.  In any event, be it with Jennie or Tam or on his own, the Deceased returned to Toronto after each visit.

58.During the period between 2004 and 2006, the Deceased renewed his Hong Kong Identity Card.  He certainly had and was entitled to do so.  The card was not one that he would be expected to give up, even if he was minded to take root in Toronto.  As mentioned, the Deceased and Jennie did visit Hong Kong and Mainland China for different purposes from time to time after his emigration. One would have expected his Hong Kong Identity Card to be of use for such purpose.  So was his keeping his residence in Hong Kong, which will be discussed below.

59.When Jennie passed away, the Deceased came to Hong Kong for obtaining probate as the executor named in her will made back in 1997 in Hong Kong.  The probate recited Jennie as domiciled in Hong Kong.  It was argued on behalf of APSN that much significance should be attached to such declaration, which must be taken to have been made after the responsible solicitors have checked to ensure that the declaration was not false.  On the contrary, it was submitted on behalf of Tam that not much weight should be attached to that, in the absence of the verifying affidavit and information about the circumstances surrounding the preparation of the application for probate by the solicitors acting for the Deceased then. In particular, it was pointed out that it remained unclear as to whether or not the Deceased himself had any understanding of the concept and significance of domicile when he endorsed the application in those terms to be lodged by his solicitors.

60.Objectively, it is clear that the probate application should be a straight forward one, because the Deceased was also the sole beneficiary under Jennie’s will[7] and the estate was not complex.  In these circumstances, it is indeed unclear whether the Deceased himself was required to cast any thought on the significance of the domicile of Jennie in the application prepared by his solicitors.  In that sense, it was different from the application by Tam for grant of administration of the estate of the Deceased in 2011, which was after the grant that she has already obtained in respect of the estate of the Deceased in Toronto.  It followed from that that the Deceased was consciously recited as domiciled in Ontario, Canada for the purpose of the grant in Hong Kong.

61.The marriage of the Deceased and Tam took place in 2009 in Hong Kong.  The Deceased took Tam as his wife well knowing her emigration in 2008 and intention to settle in Toronto.  APSN is not in a position to say much about such intention of Tam.  Tam explained that that was to save her mother in her late seventies from travelling long-haul to Toronto.  APSN was not in a position to say much about that either.  She was not even invited to the occasion. However, it was argued on behalf of APSN that there was no reason why the marriage could not be registered in Canada and celebrated in Hong Kong.

62.How realistic it was to expect the registration and celebration of the marriage between the Deceased and Tam in the circumstances then was not actually explored in detail in the evidence.  The fact was that the mother did not just celebrate but was the witness to the formality.  Further, there was nothing to suggest that the Deceased and Tam consciously chose to formalize their marriage in Hong Kong with the issue of domicile in mind or because either of them had somehow changed his or her or the other’s mind to become returning to Hong Kong as their home after marriage.  The giving of the Baguio Villa Property and the home of Tam’s mother as their respective addresses for the purpose of the marriage registration should perhaps be viewed in the light of that.  The fact was also that the couple left Hong Kong after marriage.

63.The Baguio Villa Property has always been kept.  The Deceased engaged a foreign domestic helper to look after the property.  Tam gave an account of her understanding, from the Deceased and the goddaughter who was involved in making the arrangement, that the arrangement was so made as the Deceased and Jennie would stay there whenever they came to visit Hong Kong instead of a hotel.  In this respect, the emphasis of APSN was on what it took for the Deceased to be eligible for employing a foreign domestic helper.  It was pointed that any intended employer was required by law to declare that he or she was a “bona fide resident in Hong Kong” to the Immigration Department[8]. It was argued that the Deceased must have made such declaration to make the arrangement possible, and hence a conscious indication of his intention.

64.Assuming the abovementioned declaration was also part of the employer’s criteria at the relevant time, I did not have full argument as to whether the Deceased would necessarily be making a false declaration, when he did have the right of abode in Hong Kong but would only spend some time of a year in Hong Kong and, whenever he did, would stay at the property.  Where the employer is required to be away from home and abroad for various reasons for most time of the year, it is unclear whether he would therefore be disqualified from declaring that he is a bona fide resident in Hong Kong for the purpose of employing a foreign domestic helper.  Further, of all the criteria (and this being placed as the last of the nine of them) that need to be met, there is no basis for suggesting that such criterion was the primary concern of the Deceased and that he made the declaration of meeting all the criteria conscious of the implication of this particular one.

65.Amongst the factors discussed above, the Deceased’s renewal of his Identity Card in 2004-2006, his application for probate of the estate of Jennie in 2006, his application for employing the foreign domestic helper and his registration of marriage with Tam in Hong Kong in 2009 were those that Leading Counsel for APSN referred to as conduct that had to do with legal formality, and therefore more significant than other factors in the consideration.  As mentioned, I consider that at the end of the day, the weight to be given to such factors should still be what is appropriate in the circumstances.  Factors involving legal formality of various degrees also existed in Toronto.  Further, it is immediately apparent how these factors of such character must be more indicative of the Deceased’s intention than factors such as the repeated arrangements for the very daily life and burial of these individuals in Toronto.

66.The parties also referred to the chattels in the Baguio Villa Property.  This could be neither here nor there, as this was a matter of personal choice as to what condition the property should be kept in and how furnished it should be for the purpose of accommodating them during their visit to Hong Kong.  However, Tam managed to point out specific items in this respect that may be said to have special meaning to the daily life of the couple.

67.First, it was pointed out that Jennie enjoyed playing her baby grand piano and owned a collection of soft toys dear to her[9]. Those had already been moved from the Baguio Villa Property and always kept at the Florence Avenue Property since their emigration.  Second, as mentioned, there was also a significant discrepancy in the computer installation in the Baguio Villa Property and that in the Florence Avenue Property.  Essentially, all the investment in this respect went to the installation at the latter, including a substantial part of it in connection with his hobby in photography.  The computer at the Baguio Villa Property was outdated and did not even have internet connection.  Third, also as mentioned, the Deceased had concrete plan to acquire new household electrical appliance and motor vehicle for the Canadian home after his marriage with Tam.  No car was kept for use in Hong Kong.  These were chattels that had either personal meaning or significance to the Deceased, Jennie and Tam respectively or connection with their practising hobbies.  They existed in and were planned for the life in Toronto, not in Hong Kong.  These, Tam suggested, showed that the Baguio Villa Property was effectively kept as a holiday home for their visit in Hong Kong.

68.APSN also referred to the various assets of the Deceased and Jennie kept in Hong Kong. They consisted of various categories.  There are the three residential properties, of which the Carble Garden Property and the Chi Fu Fa Yuen Property have always been let out for rental income.  APSN approached connecting the location of these properties to the Deceased’s intention to retain the Hong Kong domicile by reference to first, the fact that they have been retained and second, their financial values as opposed to those properties of the Deceased in Toronto.  On behalf of Tam, it was argued that such approach defies logic.

69.The first part of APSN’s approach mentioned above seems to suggest that the Deceased and Jennie should be expected to have sold these properties in Hong Kong, if they had determined to settle permanently in Toronto.  Yet if one considers their circumstances at and after their emigration, the logic proposed by APSN did not necessarily follow.

70.First, the couple were retirees with, according to the estate documents, not insignificant financial wealth, apart from the landed properties, even as at the death of their respective death.  There is no basis for expecting them to have to liquidate their assets for the purpose of emigration or life thereafter.  Insofar as cash in bank was concerned, a vast majority was kept as time deposit.

71.Second, the intention behind retaining the Baguio Villa Property was discussed above.  The Carble Garden Property and Chi Fu Fa Yuen Property had always been investments whereby the couple obtained rental income.  If anything, one would not be surprised at the retention of those investments in a property market like Hong Kong.  There is no evidence that the value of or return from those properties had been far from solid by the time of their emigration or their death.

72.The above also helps to show that the second part of APSN’s approach to the factor of the location of the landed properties is less indicative than as suggested. Indeed, the number and value of the landed properties in Toronto was less than those in Hong Kong.  However, such comparison could be meaningless, when the structure of the investment portfolio could well be explained by the difference in the timing of acquisition and profitability of those properties.

73.Both sides referred to the establishment by the Deceased of trust in respect of his assets.  This happened in both Hong Kong and Canada.

74.The last but equally significant indicia in the case of the Deceased as a Christian is that unlike his active membership and commitment to the local church in Toronto, the Deceased did not have any church membership in Hong Kong.

Other consideration

75.Much was said about Tam’s dealings with the estate of the Deceased, which, APSN says, afford inferences aagainst Tam.

76.First, there is no dispute that at one point, Tam had offered to transfer to APSN 30,000 shares in Chun Shun Land Investment Company Limited (“Chun Shun”) or alternatively a sum of HK$1,500,000 out of the estate of the Deceased.  Had Tam truly believed that the estate of the Deceased was not subject to distribution under the IEO, and therefore APSN should have no entitlement to any part of it, Tam, it was argued, would not have made such offer at her initiative.  As to that, Tam explained that the Deceased had mentioned during his lifetime that he was minded to transfer such shares to APSN as a gift after his demise.  Though he had subsequently changed his mind upon the argument with APSN in 2009, Tam managed to persuade him to stick to the original idea.  It was out of execution of the Deceased’s known intention that Tam made the offer to APSN.

77.Second, there is also no dispute that Tam had at one point assigned to herself the three properties in Hong Kong after the passing of the Deceased.  This formed the subject matter of HCA 1547/2016.  Tam explained the slip and that realizing the problem upon advice by Senior Counsel, she immediately agreed to rectify the situation.  Hence the resolution of that by way of consent.

78.Third, Tam was said to have failed and refused to give a full account of the moveable assets of the Deceased, which would be relevant to the determination of the questions before the court.  The assets consisted of those of Jennie and inherited by the Deceased upon her passing.  The assets of the Deceased were disclosed in the administration documents filed in Canada and in Hong Kong, which Tam affirmed.  Effectively, APSN suggested that Tam has withheld other assets from the disclosure.

79.Account of the assets of the Deceased is part of the relief sought by APSN in these proceedings.  Her entitlement to such relief is premised solely on the applicability of the IEO to the administration of the estate of the Deceased. This is the very question to be decided by this court.

80.Fourth, APSN also alleged that the Deceased had at one stage made a will that appointed her as an executrix, which he kept in the safe deposit box in Hong Kong.  According to Tam, she had not seen such a document.  In any event, even assuming that the alleged will existed and had not been destroyed by the Deceased afterwards, it would appear that such will made by the Deceased would be revoked upon his marriage to Tam in 2009: see section 14 of the Wills Ordinance, Cap 30.

81.Fifth, it was also argued on behalf of APSN that the way Tam applied for the grant of administration of the estate of the Deceased in Toronto suggested that the Deceased died domiciled in Hong Kong instead of Toronto.  For such purpose, and with leave of the court, APSN has adduced and relied on the Toronto legal expert opinion of Ms Allison Minard dated 10 April 2017. In her opinion, Ms Minard explained that under Ontario law, for the grant of administration of the estate of a person who died domiciled in Toronto, the applicant is required to declare to the Toronto authority all the deceased’s movable assets outside Toronto.  In the present case, Tam was said to have not done so.  As there was said to be no legitimate reason for her not to have done so, Ms Minard opined that this could only be explained by the fact that the Deceased was not considered to be domiciled in Toronto.

82.Despite leave to do so, Tam has adduced no contrary legal expert opinion in this respect.  I do not think Tam has to do so, because there are fundamental problems in seeking to rely on the legal expert opinion mentioned above for the purpose of APSN’s contention.  First, the issue of domicile shall be determined in these proceedings in accordance with the law of Hong Kong: section 3(3) of the DO.  Second, the opinion was premised on the alleged fact that there was no legitimate reason for Tam to knowingly not disclose the movable assets of the Deceased in Hong Kong. However, whether or not that was the fact is a matter for this court to find and not a matter of legal expert opinion.  Third, even assuming that Tam did not have legitimate reason for such failure on her part, that could well mean legal consequence such as breach of the relevant law and, once realized, the need to seek leave to rectify from the authority.  Tam might have failed to disclose such assets as a matter of fact.  But that, in my view, does not afford the inference that the legal expert drew, which was not a matter of expert opinion but a matter for this court.

83.Last, there are various minor factual disputes between the parties, such as the history of teaching career of Jennie and the occupation history of the three properties in Hong Kong, which, in my view, have no significant bearing on the determination of the questions.

Conclusion

84.Tam has chosen to discharge her burden of establishing the facts in support of her contention by the evidence that she adduced.  Notwithstanding the criticism about her alleged lack of full disclosure or essentially credibility for such purpose, this court, as requested by the parties, will determine the dispute in the absence of cross examination on her affidavits that APSN also did not seek.  The notion of viewing the evidence of a partisan party with skepticism suggested on behalf of APSN applies to both sides.

85.APSN apparently sought to compete with Tam in respect of the extent to which they respectively understand and manage to tell the true intention of the Deceased.  Their evidence in respect of what they allegedly understood from the Deceased has to be assessed against the available documentary evidence.  However, the consideration in respect of the period since the passing of Jennie may be different in the way that as opposed to APSN, Tam and the Deceased were together as a couple and Tam was indeed in a position to tell such intention of the Deceased from her actual interaction with him.  She is definitely in a position to tell such intention as a matter of theirs since they had been together until the passing of the Deceased.  On the contrary, the reliability of what APSN put together as her belief and understanding of the Deceased became questionable at least towards the late stage of his life.  As APSN confessed, there was an argument between her and the Deceased in late 2009, and she was not invited to his wedding.

86.The whole basket of factors considered, including those not specifically discussed above, and given their due weight, I am convinced by the evidence that Tam has sufficiently discharged her burden of establishing the factual indicia of the intention of the Deceased to make Toronto, Canada his home indefinitely.  In addition to the emigration and naturalization, the Deceased has objectively chosen to and indeed integrated into the Toronto society as a citizen as well as to rest in peace there when the time came.  If there were any doubt about that, there should be no further doubt when he developed the relationship with Tam well knowing her emigration to Toronto for retirement as well.  The intention to stay there until resting in peace there remained, albeit that now it would be with Tam.

87.In the circumstances, I find that the Deceased died domiciled in Toronto, Canada.  I therefore answer questions 1(a) and (b) as per the originating summons[10] in the negative.  It follows that APSN is not entitled to the account sought under question 2 as per the originating summons[11].

88.In view of the above result, I make a nisi order that APSN personally shall pay Tam her costs of these proceedings, including any costs reserved, to be taxed on a trustee basis, if not agreed, with certificate for two counsel.  In the absence of application within 14 days to vary, this nisi costs order shall become absolute without further order.

Mr Victor Dawes SC, Ms Teresa Wu instructed by Hugill & Ip for the Plaintiff

Mr Jason Pow SC, Mr Thomas Wong instructed by Keith Lam Lau & Chan for the Defendant