Koon Tung Ying v. Lau Chup Hei

CACV000080/1998

CACV 80/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 80 OF 1998

----------------------

Coram : Hon. Godfrey, Rogers, JJ.A. and Seagroatt, J. in court

Date of Hearing : 17 September 1998

Date of Judgment : 17 September 1998

----------------------

J U D G M E N T

----------------------

Godfrey, J.A. :

Introduction

1. This is an appeal from an order of His Honour Judge Hartmann (sitting as a Deputy Judge of the High Court) made on 17 February 1998. The judge dismissed the case of the plaintiff on an issue which had been ordered to be tried between the plaintiff and the defendant as to the destination of moneys payable under an insurance policy. The plaintiff now appeals.

The issue

2. The issue between the plaintiff and the defendant turned on the validity of a form under which the beneficiary nominated as the recipient of the insurance moneys was expressed to be the defendant, in substitution for the plaintiff.

The facts

3. The facts as found by the judge are, in brief, as follows.

4. In July 1992, one Chow Fung Lin ("Fanny Chow") took out a policy of life insurance with the National Mutual Insurance Company (Bermuda) Limited. One of the reasons why she chose that company was that an old acquaintance of hers, one Chan Mei Lan ("Chan") was employed as an insurance agent by that company. Chan assisted her in completing the necessary forms. The policy was on Fanny Chow's own life. She nominated the plaintiff, her mother, to be the beneficiary under the policy. (At the same time as she took out this policy on her own life, Fanny Chow employed the services of Chan to take out two other policies, one on the life of her mother, one on the life of her father. There were, therefore, three policies in respect of which Fanny Chow paid premiums to the insurance company.)

5. In or about November 1993, Fanny Chow was diagnosed to be suffering from cancer. Some 4 months later, on 5 April 1994, she died. She does not appear to have married, or to have had any children. She died intestate. She left her surviving both her parents and four siblings.

6. When Fanny Chow died, the plaintiff believed she was still the beneficiary under the policy on Fanny Chow's life. She requested payment of the proceeds, some US$200,000. But the plaintiff discovered that, on or about 15 December 1993, Fanny Chow had nominated another beneficiary, the defendant, in place of the plaintiff, having apparently employed the services of Chan to give effect to that change. The defendant had been known to Fanny Chow for a number of years. They had been some personal involvement between the two, into the details of which the judge did not go, and into which we do not need to go. But, at the time of Fanny Chow's death, she had been living with her business partner, one Toshiro Arai. The plaintiff found it impossible to accept that in these circumstances Fanny Chow had knowingly made the defendant the beneficiary under the life policy. The insurance company was thus faced with two competing claims, one from the plaintiff and one from the defendant, and it duly interpleaded.

The plaintiff's case

7. The judge described the plaintiff's case in the following words :-

"It is Madam Koon's case that one of these three forms was completed by the insurance agent, Chan, not to reflect the true intention of her daughter's wishes but rather to make it appear that her daughter had nominated Lau as the beneficiary of the policy drawn on her own life, a life which, to Chan's knowledge, was soon to end."

8. The plaintiff, represented most ably before us by Miss Lisa Remedios, submits that the judge went wrong here. True it is that the plaintiff's case was that the form as completed by the insurance agent, Chan, did not reflect Fanny Chan's true intention, but that, says Miss Remedios, is all that the plaintiff averred and pleaded and all that the plaintiff needed to prove. When the judge went on to add, as he did, that the form was completed in this way "to make it appear" that Fanny Chow had nominated the defendant as the beneficiary, he dragged in to the case an averment of fraud, or misrepresentation, or forgery which it was not necessary for the plaintiff to make in order to succeed. All the plaintiff needed in order to succeed, says Miss Remedios, was to prove what the intention of Fanny Chow was; and, on the evidence, she says, the judge should have held that Fanny Chow did not intend to substitute the defendant for the plaintiff as the beneficiary of the insurance policy in question.

Conclusion

9. I am wholly unable to accept this. The form indicates an intention to make the defendant the beneficiary under the policy. It is signed by Fanny Chow. It is true that it is, or may be, the case that the tick indicating that intention was placed on the form by Chan, the insurance agent, rather than by Fanny Chow. But that is nothing to the point. On the face of it, the nomination is valid. People are bound by the documents they sign : see, e.g., L'Estrange v. F. Graucob Ltd [1934] 2 K.B. 394.

10. The question in all these cases, and the only relevant question, is : Is there some vitiating factor which negates the effect of the party's signature on the document which is challenged?

11. If, for example, the signature was procured by fraud or misrepresentation, or by duress, or by undue influence, or if the signature was not the signature of the alleged signatory at all but a forgery, it is possible to challenge the validity of the document. So also (and this seems to be the nearest the plaintiff can get to the facts in the present case) if it can be proved that the mind of the signatory did not go with the document, because he or she thought it was a document of a different nature altogether from the document which he or she signed.

12. But no such case was made out. The judge here reviewed the evidence most carefully. He was quite unsatisfied there was anything at all proved by the plaintiff to vitiate the nomination. He accepted the evidence of Chan, the insurance agent, to the effect that the intention of Fanny Chow was indeed to change the nomination from the plaintiff mother to the defendant. As it seems to me, there is no possible ground on which we can properly interfere with his judgement.

The result

13. For these reasons, I would dismiss this appeal.

Rogers, J.A. :

14. I agree. I would add this. Having reviewed the Appellant's written arguments and considered the matter fully and carefully, I have to pay tribute to the full and careful judgment of the Court below which I can see no ground for disturbing.

Seagroatt, J. :

15. I agree and have nothing to add.

Representation:

Miss Lisa Remedios (M/s. Bough & Co.) for the Appellant/Plaintiff in the Issue

Mr. Walker Sham (M/s. Kwan & Kwan) for the Respondent/Defendant in the Issue

Remarks:
On appeal by the Appellant (Plaintiff in issue) to the Court of Final Appeal: Appeal dismissed. Please refer to the Appeal judgment FACV000024/1998.