Chan Wai Ming v. Xie Weiqin and Others
Read the full judgment text of CACV 467/2022 on BabelCite. This Court of Appeal judgment was delivered on 14 May 2025.
1. This is an appeal from the judgment of Wilson Chan J dated 28 October 2022 by which he dismissed Mr Chan Wai Ming, the plaintiff’s challenge against the validity of the will (‘the Will’) of Mr Chan Mau Chuk (‘the Deceased’) dated 5 February 2015 and gave judgment for the defendants on their counterclaim by ordering the Will to be pronounced in solemn form and probate of the Will be granted to the 1 st defendant who was named the executrix of the Will.
Cited by 3 cases · Cites 5 cases
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CACV 467/2022, [2025] HKCA 443 On Appeal From [2022] HKCFI 3327 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 467 OF 2022 (ON APPEAL FROM HCAP NO. 8 OF 2016) ________________________
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_______________ J U D G M E N T _______________ Hon Cheung JA (giving the Judgment of the Court) : I. The appeal 1.This is an appeal from the judgment of Wilson Chan J dated 28 October 2022 by which he dismissed Mr Chan Wai Ming, the plaintiff’s challenge against the validity of the will (‘the Will’) of Mr Chan Mau Chuk (‘the Deceased’) dated 5 February 2015 and gave judgment for the defendants on their counterclaim by ordering the Will to be pronounced in solemn form and probate of the Will be granted to the 1st defendant who was named the executrix of the Will. 2.The Will was in Chinese and was prepared by Mr Mak Yiu Cheung, Samson (‘Mr Mak’) and signed by the Deceased in the presence of Mr Mak and one Mr Lee Wai Keung (‘Mr Lee’). The provision of the Will is as follows :
II. Background 1) The families and the Will 3.The plaintiff is the son of the Deceased of his marriage to the plaintiff’s mother Madam Cheng Yee Yum (‘Madam Cheng’). Divorce proceedings of Madam Cheng and the Deceased began in 1996 and divorce was granted in 2001. Chan Chui Fong is the other daughter of the Deceased from that marriage. 4.The 1st defendant Xie Weiqin had been living with the Deceased since 1996. He regarded her as his wife although they were never married. She was recorded in the Deceased’s clan genealogy as his second wife and out of this union, the 2nd defendant Chan Chui Lam (daughter) and the 3rd defendant Chan Chun Ho (son) were born. 5.Unusually, the two families of the Deceased were not aware of the existence of the Will until after the funeral of the Deceased held on 15 and 16 May 2015 when Mr Mak told them about the Will and asked them to attend a solicitor’s office on 2 June 2015 to pronounce the Will. 6.The evidence on the execution of the Will came from Mr Mak and Mr Lee. The Judge narrated the events leading to the execution of the Will in Section C3 of his judgment. The plaintiff challenges the judgment, amongst other things, on the ground that it was substantially copied from the closing submissions of the defendants’ counsel. As will be discussed later, we accept this challenge and will not rely on the judgment in terms of its findings on facts and law. We have, however, read the witness statements and transcript of evidence of Mr Mak, Mr Lee and the extract of the transcript of evidence of the 1st defendant and we are satisfied that the narration of events is accurate and we will adopt it and supplement it by materials in this case. In so doing, we have excluded from those parts of the narration where the Judge had made comments on the evidence. 2) Execution of the Will and subsequent events 7.Mr Mak worked in a solicitor’s office as a clerk. He had about 20 years of experience working as a solicitor’s clerk. He had known the Deceased for over ten years and had previously done work for him. On 20 January 2015, the Deceased inquired with Mr Mak what information was required for making a will. 8.On 22 January 2015, the Deceased met with Mr Mak at a Chinese restaurant in Fanling. The Deceased asked Mr Mak to draft a will for him. Mr Mak suggested to him to find a solicitor to handle the matter, but the Deceased insisted that Mr Mak could draft the Will for him. Mr Mak found it difficult to refuse the Deceased and he therefore agreed to do so. 9.The Deceased then provided Mr Mak with his instructions which were hand-written on a sheet of A4 paper, including the addresses of the properties, the names and identity card numbers of the plaintiff, the plaintiff’s sister, the 2nd and 3rd defendants, the name and identity card number of the executrix, and how his estate was to be distributed. The Deceased also provided a hand-written declaration of trust that the Deceased’s sister was holding a property for him and a will of the Deceased’s mother made in 2008. 10.Mr Mak then said that he would need a few days, and the Deceased told him to prepare a draft for him first. They agreed to meet again on 28 January 2015. Mr Mak was at the time on sick leave from his employer. He prepared a draft will by using the precedents of some other wills that he had kept from his work for reference, and he prepared some handwritten rough drafts first. Mr Mak had previous experience in handling the making of a will by clients and had assisted in the execution of wills. 11.On 28 January 2015, Mr Mak provided a draft of the Will for the Deceased to confirm. Having checked the draft, the Deceased said that he had no problem. Before leaving, the Deceased told Mr Mak to stand by and he would give him a call. Mr Mak did not receive any remuneration for drafting the Will. 12.In the afternoon of 4 February 2015, Mr Mak received a call from the Deceased, asking him if the Will had been prepared, to which Mr Mak answered in the affirmative. The Deceased then told Mr Mak that he wished to execute the Will on 5 February 2015. Mr Mak told the Deceased that he needed another witness to witness his signature. The Deceased suggested to find Mr Lee as a witness. Mr Lee was a taxi driver who had in the past driven Mr Mak to meet the Deceased in the New Territories, and the three of them had dinner together two or three times before. Mr Mak called Mr Lee to see if he agreed to be a witness. Mr Lee agreed and asked Mr Mak when to meet the Deceased. 13.Mr Mak then called the Deceased and asked him when he would wish to execute the Will. The Deceased replied that it would have to be in the evening of 5 February 2015, as he would need to visit a bonesetter clinic in Luen Wo Market, Fanling at about 6 pm. The Deceased asked Mr Mak to pick him up there and they would go together to his office in Loi Tung Tsuen, Sha Tau Kok for the execution. Mr Mak then asked Mr Lee to meet him at his home in Yau Ma Tei at 6 pm and confirmed with the Deceased that he would meet him at the clinic at about 7 pm. 14.At about 6 pm, Mr Lee drove his taxi and picked up Mr Mak in Yau Ma Tei. They arrived at the clinic at about 7 pm. The Deceased then got on Mr Lee’s taxi. At that time, the Deceased was slightly limping as his right foot was bandaged. Both the Deceased and Mr Mak sat at the back and they chatted about the Deceased’s foot condition. The journey from the clinic to Loi Tung Tsuen took about ten minutes. 15.When they arrived at about 7:30 pm, Mr Lee dropped off the Deceased and Mr Mak first, and parked his taxi nearby. The Deceased and Mr Mak went into the Deceased’s office. Mr Mak gave the Deceased the materials that the Deceased had previously provided to him and also the Will to be executed. The Deceased then checked the documents himself for about 10 to 20 minutes. No question was asked by the Deceased. After checking, he said ‘okay’ and asked Mr Mak to show Mr Lee into the office. 16.After Mr Lee came in, the Deceased thanked him for helping him to witness the execution of the Will, and Mr Lee replied it was not a problem at all. The Deceased then signed his name on the Will in the presence of Mr Mak and Mr Lee. Mr Mak and Mr Lee signed on it as witnesses in the presence of the Deceased. 17.Thereafter, the Deceased asked Mr Lee to wait for them in the taxi. The Deceased then asked Mr Mak to keep the Will for him and Mr Mak should only inform his family members after his funeral about the Will and the Will must be pronounced at a solicitors’ firm. The Deceased then took back all the instructions and documents that he had given to Mr Mak before. After about ten minutes, Mr Mak left the office, rejoined Mr Lee in his taxi and left. 18.Both Mr Mak and Mr Lee considered that the Deceased was normal, conscious, and could conduct normal conversation when they met. 19.Mr Mak also dealt with the subsequent events. After he heard from a business acquaintance that the Deceased had died, he contacted the 1st defendant, attended the funeral, informed the Deceased’s family members that the Deceased had made the Will and pronounced the Will in the office of Chan & Chan, solicitors. 20.Mr Lee confirmed the journey to meet the Deceased and witnessed the Deceased signing the Will. 21.Earlier on the day of the Deceased’s execution of the Will, he had undergone a colonoscopy at a Shenzhen hospital at 3 pm. This came from the evidence of the 1st defendant. The colonoscopy finished at about 3:10 pm. A nurse informed the 1st Defendant that a tumour was found and biopsies were taken. A pathology report was given to the Deceased and the 1st Defendant (Exhibit D5), on which it was stated that the nature of the tumour was to be determined. The doctor informed them that it might be cancer. An updated pathology report included the finding that the tumour was malignant. 22.At about 3:25 pm, the 1st defendant paid for the medical expenses for the surgery. At about 4 pm, the 1st defendant and the Deceased left the hospital by car after the nurse permitted them to leave. The car was driven by the 1st defendant. 23.After they left the hospital, they first went to their home in Shenzhen because the Deceased wished to light incense to pray to his grandparents. During the journey, the Deceased talked to a friend on the telephone and told him he had cancer. As they arrived at their home, the Deceased lit incense and prayed for a blessing in Hokkien. 24.The 1st defendant and the Deceased then left at about 4:30 pm for Hong Kong. When crossing the border at Sha Tau Kok, the Deceased took out his identity document from his wallet and passed it to the immigration officer through the 1st defendant. When the officer called his name, the Deceased also raised his hand in response. 25.The 1st defendant and the Deceased then went to the bonesetter clinic because the Deceased had injured his leg earlier and needed to change the medication at the clinic. When they arrived at about 5:30 pm, the Deceased told her that he had something to do and would meet his friends, and the 1st defendant dropped him off and went home. The 1st defendant said that during the journey, the Deceased had talked with her. There was nothing which indicated to her that the Deceased was not of sound mind, and the 1st defendant felt that he behaved as usual. III. The proceedings 26.On 9 March 2016, the plaintiff commenced the present action against the defendants. The 2nd and 3rd defendants were at that time minors who have since come of the age. In the statement of claim, the plaintiff pleaded that the Will was invalid on the following grounds :
27.The plaintiff further put the defendants to strict proof of the due execution of the Will. 28.The trial before the Judge took 12 days. The Judge recorded that on day nine of the trial, the plaintiff put to Mr Lee during his cross-examination a positive case that the execution of the Will on 5 February 2015 had not happened. 29.The parties called a total of eight factual witnesses. The plaintiff called 1) the plaintiff himself, 2) Chan Chui Fong and 3) the Deceased’s sister. The defendants called 4) Mr Mak, 5) Mr Lee, 6) the 2nd defendant, 7) the 3rd defendant and 8) the 1st defendant. In respect of expert witnesses, the plaintiff called Dr Bertrand C H Leung (‘Dr Leung’), and the defendants called Dr Tang Wai Tak, Henry (‘Dr Tang’) on the Deceased’s health and mental condition from late January 2015 to 5 February 2015. IV. The Judge’s decision 30.The Judge accepted the defendants’ submission that the evidence of the plaintiff’s factual witnesses is self-serving and tailored to fit the plaintiff’s case. Their evidence is unreliable, incredible and often contradicted by incontrovertible evidence. Their evidence should be rejected or given very little weight. The Judge rejected the plaintiff’s submission that the evidence of Mr Mak, Mr Lee and the 1st defendant concerning the preparation and execution of the Will was a fabrication and involved a conspiracy among them. He found that the preparation and execution of the Will were as described by Mr Mak and Mr Lee. He also found that the 2nd and 3rd defendants gave straightforward and credible evidence during their cross‑examination. 31.The Judge found that the Will was duly executed by the Deceased. He found that the Deceased had the testamentary capacity to make the Will. He held that the plaintiff had adduced no sufficient cogent evidence to raise the issue of incapacity. He further held that the Will is rational upon its face and duly executed and there is a presumption of testamentary capacity. He held that the plaintiff’s main contention on testamentary capacity rests on the effect of anaesthesia caused by propofol administered to the Deceased during colonoscopy in the afternoon in the Shenzhen hospital on 5 February 2015. He held that this ground is not borne out by the factual and expert evidence. He further found that the Deceased had knowledge and approval of the content of the Will and rejected the plaintiff’s submission that the ‘Golden Rule’ should apply in the present case. V. Grounds of appeal 1) Copying and lack of independent adjudication 32.The plaintiff relies on three grounds of appeal. The third ground which was featured at the forefront of the plaintiff’s submission is that almost the entirety of the judgment was a near‑verbatim reproduction and adoption of the defendants’ arguments contained in the defendants’ closing submissions dated 16 August 2022 (‘Closing Submissions’) and the defendants’ speaking notes dated 23 August 2022 (‘Speaking Notes’). This included the Judge’s assessment of the general credibility of the factual witnesses (Section B), findings of facts (Section C), as well as legal analysis (Section D). The plaintiff produced a table containing a paragraph by paragraph comparison of the judgment and the Defendants’ Closing Submissions and the Speaking Notes. The defendants argued that as a result of the copying the Judge failed to apply and could not be reasonably seen to have applied an independent judicial mind in arriving at his judgment. 2) The Judge erred in finding the Deceased had testamentary capacity 33.The second ground of appeal is that the Judge erred in holding that the Deceased had the requisite testamentary capacity when executing the Will by reason of the following :
3) The Judge erred in finding the Deceased had knowledge and approval of the contents of the Will 34.The third ground of appeal is that the Judge erred in concluding that the Deceased knew and approved of the contents of the Will by reason of the following : (1) the Judge erred in applying the presumption that the Deceased knew and approved the contents of the Will because the Deceased was not of testamentary capacity : Judgment [137]; (2) for reasons set out above, the Judge made palpable errors in his assessment of the evidence in determining whether the Deceased knew and approved the contents of the Will : Judgment [138]; and (3) by reason of the above, the Judge ought to have held that the defendants failed to prove on a balance of probabilities that the Deceased knew and approved the contents of the Will. VI. The Law 35.Subject to one point, there is no dispute on the applicable law. 1) Propounding a will 36.The requirements for a valid will are that (1) there is due execution of the will; (2) the testator is of testamentary capacity; and (3) the testator knows and approves of the contents of the will. The proponent of a will carries the persuasive burden of satisfying these three elements on a balance of probabilities, while the person who challenges the validity of the will bears the evidential burden of putting the relevant ground of challenge in issue by way of cogent evidence. Ribeiro PJ in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 elaborated on the relevant principles.
2) Due execution 37.Section 5 of the Wills Ordinance (Cap. 30) provides :
3) Testamentary capacity (1) Banks v Goodfellow 38.The classic statement on testamentary capacity stated by Cockburn CJ in Banks v Goodfellow (1869) LR 5 QB 549 at page 565 (with the subparagraphs added by us for ease of reading) is as follows :
39.Lewison LJ in Simon v. Byford [2014] EWCA Civ 280 after referring to Banks v Goodfellow and the judgment of Peter Gibson LJ in Hoff v Atherton [2004] EWCA Civ 1554, elaborated on the meaning of testamentary capacity. It is not confined to actual understanding which would prove the requisite capacity but also covers potential to understand in situations where there is lack of evidence that the testator actually understands :
40.Banks v Goodfellow has been applied in Hong Kong in cases such as Re Estate of Au Kong Tim [2018] 2 HKLRD 864. See also Goss-Custard v Templeman [2020] WTLR 441 where Fancourt J referred to the view of Lewison LJ in Simon v Byford. The case was about the will of Lord Templeman who had sat in the Privy Council. (2) Rule in Parker v. Felgate 41.The rule in Parker v Felgate (1883) 8 PD 171 is an old rule where Sir James Hannen P. at page 173 directed the jury as follows :
42.This rule was recently reviewed by the English Court of Appeal in Perrins v Holland [2010] EWCA Civ 840, (2010) 13 ITELR 405, [2011] Ch 270 where Moore‑Bick LJ restated the rule by addressing the two situations where the testator has testamentary capacity on the one hand and the testator loses some capacity between the period of giving instructions and executing the will on the other hand :
43.Sir Andrew Morritt C explained the rationale of the rule as follows :
44.Mr Dawes SC and Mr Ng for the plaintiff argued that the rule in Parker v Felgate should not be applied in Hong Kong. He argued that the effect of the rule is to substantially water down the requirement of testamentary capacity, such that a will could be valid even if the testator did not possess the requisite testamentary capacity at the time of the execution of the will. 45.Mr Dawes referred to the criticism of the rule by Penelope Reed QC, in her article ‘Capacity and Want of Knowledge and Approval’, Chapter 7 page 178 of Current Issues in Succession Law, edited by Birke Häcker and Charles Mitchell (Oxford: Hart Publishing, 2016) where she stated, amongst other things, that :
46.Mr Dawes argued that the explanation by Sir Andrew Morritt C on the rationale of the rule is logically unsound. Whilst it must be right for the Court to uphold the wishes of a testator if at all possible, it is impossible for the Court to be sure that the will executed by a testator who lacks testamentary capacity reflects his wishes. He argued that the inherent illogicality of the rule is self-evident in Moore‑Bick LJ’s attempt to formulate the rule. Subparagraph (iii) presupposes the testator to have the requisite testamentary capacity, such that he would be able to confirm whether previous instructions continued to reflect his then present intentions. Further, by asking whether the testator ‘had sufficient mental capacity to carry out the juristic act which that involves’, subparagraph (iv) appears to recite the trite principle on testamentary capacity that the testator must have the requisite mental capacity to make a will at the time of its execution. It is difficult to understand how these requirements could be satisfied when a testator has no testamentary capacity at the time of the execution of the will. 47.We disagree with Mr Dawes. The rule in Parker v Felgate has withstood the test of time and remained good law and has been applied in recent decisions. In Perrins, Sir Andrew Morritt C at [13]‑[23] traced the historical origin of the rule and its application in subsequent cases. He referred to two of these cases where the rule was also applied in relation to the separate requirement of knowledge and approval. Penelope Reed QC who wrote the article was the counsel in Perrins where she advanced the argument (repeated in the article) that the rule is illogical. She failed. Sir Andrew Morritt C addressed this argument as follows :
48.He then went on to explain the rationale as quoted above. He emphasised at [54] that it is important to note that the rule does not displace the requirement for full testamentary capacity; it merely displaces the ordinary requirement that the deceased should have had such capacity at the time he executed the will. He explained :
49.The rule has also been applied by appellate courts in common law countries. In Perera v Perera [1901] AC 354, the Privy Council held at page 362 that the rule is ‘good law and good sense’. 50.In Faulkner v Faulkner (1920) 60 SCR 386, the Supreme Court of Canada held that Perera which endorsed the rule is ‘peculiarly applicable to the case before us’. 51.In Bailey v Bailey (1924) 34 CLR 558 at page 572, the High Court of Australia held :
52.In Loosley v Powell [2018] NZLR 618, the Court of Appeal of New Zealand at [22]‑[23] referred to the rule and the challenge mounted against the rule in Perrins. It held :
53.In In re Glynn [1990] 2 IR 326, McCarthy J of the Supreme Court of Ireland at page 340 held that the rule :
54.The UK Law Commission in its Consultation Paper 231: Making a Will (2017) at [2.89]‑[2.94] discussed the rule and the views (including those of Penelope Reed QC) that the rule is unfair or unprincipled. However, it recommended its retention :
55.In our view, the rule as restated in Perrins remains good persuasive authority. We agree with the rationale of the rule as articulated by Sir Andrew Morritt C and hold that the rule as restated applies in Hong Kong. We reject Mr Dawes’ argument that the rule is confined to situations where a lawyer has followed instructions and prepared the will for the testator’s execution. When Sir James Hannen P. directed the jury in Parker v Felgate, he referred to the testator giving instructions to a solicitor because that was what happened in that case but it does not mean that the rule is not applicable in the present situation where the instructions were given by the Deceased to Mr Mak who was not a solicitor. The crux of the matter is that of a testator executing a will the content of which is based on the instructions he has previously provided to the person who drafted the will. The Court in examining whether a testator has the testamentary capacity to execute the will and the knowledge and approval of the will is to take a holistic approach and evaluate all the relevant evidence to see whether an inference can be drawn that between the time of the testator giving his instructions to prepare the will when he is capable and the time when he executed it, the will continues to represent his intention. All that the rule does is to provide a common sense and practical approach to assist the Court in coming to the correct finding. The inbuilt safeguard of the rule is the requirements that the testator is capable when he previously gave the instruction and the will is prepared according to his instruction when he signed it. These requirements require the support of evidence and the criticism that the rule is illogical is not justified. The ‘illogical’ argument was refuted in Perrins. In any event, while logic may help, it does not always provide the right answer in a grey area. (3) Rational nature of the Will 56.If a will is rational upon its face and duly executed, there is a presumption of testamentary capacity: In re Key [2010] 1 WLR 2020 at [97]; Templeman at [16]. A will is irrational if it is couched in strange terms, written in strange manner and/or sounding to folly: Arbery v Ashe (1828) 162 ER 562 at 563. (4) Knowledge and approval 57.Lord Neuberger of Abbotsbury MR in Gill v Woodall [2011] Ch. 389 at [22] emphasised the fact that a testator had read the will and executed it must be given the full weight appropriate in the circumstances but those facts are not conclusive and they do not raise a presumption :
58.Lewison LJ in Simon v Byford emphasised that whereas testamentary capacity includes the ability to make choices, knowledge and approval is the ability to understand and approve choices that have already been made. Whether the testator has the requisite knowledge and approval is a holistic exercise based on the evaluation of all the evidence both factual and expert.
(5) Golden rule 59.The golden rule referred to by Templeman J in Kenward v Adams (1975) The Times, 29 November 1975 is that when a solicitor draws up a will for an aged or seriously ill testator, it should be witnessed or approved by a medical practitioner who ought to record his examination of the testator and his findings, and that an earlier will should be examined and any proposed alterations should be discussed with the testator. VII. Our view 1) Judicial copying and independent mind 60.This Court in three recent judgments have addressed the impact of judicial copying : Wong To Yick Wood Lock Ointment Limited v Singapore Medicine Co [2023] 3 HKLRD 311 at [14.1]‑[26], Lo Kai Shui v HSBC International Trustee Limited [2023] 6 HKC 411 at [12]‑[16] and Kwan Kwai Lin v Yeung On Ki [2025] HKCA 203 at [26]. As observed by Anderson Chow JA in Kwan Kwai Lin, the fundamental point is that a judge must bring an independent mind to his judicial function and be seen to do so. When considering the issue of judicial copying, the Court would look at the importance and quality of the judge’s own reasoning rather than the percentage of the copying. 61.The table produced by the plaintiff showed the judgment was almost wholly copied from the Defendants’ Closing Submission and Speaking Notes respectively. We are satisfied that the plaintiff succeeds on the first ground. Whilst, from reading the transcript of the evidence, we can see that the Judge was alert to the relevant issues and often steered the parties to stay on course to those issues, the extent of the copying from the successful party’s (i.e. the defendants) submissions is so substantial that it does give a reasonable person the impression that the Judge had not exercised an independent mind and that the unsuccessful party (i.e. the plaintiff) would have a sense of grievance that he did not receive a fair trial. In the circumstances, we will not rely on the judgment below in determining the merits of the case when considering the other grounds of appeal advanced by the plaintiff. 2) Re‑trial? 62.The issue then boils down to whether we should order a re‑trial as in Wong To Yick or we should take on the task of deciding the case afresh based on the material before us. (1) The arguments 63.Mr Dawes argued that the present case largely involves factual disputes which turn on the credibility of factual witnesses and it is appropriate to order a re‑trial before another judge. The factual disputes included 1) the circumstances of the preparation and execution of the Will; 2) the Deceased’s condition at the time of the execution of the Will; 3) the Deceased’s relationship with the parties; and 4) the Deceased’s intention in relation to his properties during his lifetime. These issues have a direct bearing on whether the defendants could discharge their burden of proving the validity of the Will. 1) and 2) go to the issues of due execution of the Will, as well as the Deceased’s testamentary capacity and knowledge and approval of the Will. 3) and 4) form the background context against which the inherent probability of the defendants’ case and the rationality of the Will are to be assessed. Arising from this, the evidence from Mr Mak and Mr Lee (being the witnesses of the execution of the Will) is directly relevant to issues 1) and 2). The evidence of the 1st defendant is relevant to issues 2) to 4). The evidence of the plaintiff is relevant to issues 3) to 4). In Wong To Yick, Yuen JA at [33] held that one of the witnesses’ credibility cannot be assessed by the Court of Appeal. By reading selected extracts of the transcript, such an exercise would be like ‘island‑hopping in a sea of evidence’. The findings against that witness were primary findings of fact, not findings made only by a process of inference. Such findings should properly be made by a trial judge assessing her evidence independently, not an appellate court. For this reason, an order for a re‑trial before another judge is unavoidable, and any other course would not accord with justice. Similar views are expressed in Kwan Kwai Lin at [51] where it was held that the assessment of a witness’s credibility is a matter that should be undertaken by a trial judge. It was not possible for the appeal court to determine the credibility of the defendant simply on the basis of the written materials before it (including the transcript of the evidence at the trial). A re‑trial was also ordered. 64.Ms Eu SC together with Mr Lin and Mr Kung for the defendants, however, argued that an order for a re‑trial should be a remedy of last resort. An appellate court should not order a re‑trial unless there is no alternative in order to achieve justice : Magner v Royal Bank of Scotland International Ltd (2020) 22 ITELR 863 at [14] and Wong To Yick at [29.1]. If the nature of the issues and the available evidence properly permit the appellate court to do so, it shall consider afresh the issues in the case without the benefit of the judge’s input : Kwan Kwai Lin at [31]. In this regard, if the factual disputes relate to expert opinions for which full transcripts of the experts’ oral testimony are available, or arise from interpretation of objective evidence, then a re‑trial may not be necessary : Wong To Yick at [29.1]‑[29.3]. Further, the appellate court should take into account and balance many factors, including the nature and apparent strength of the appellant’s case at first instance, the availability of witnesses for a re‑trial, and the passage of time since the events which would be the subject of evidence in a re‑trial and the likely effect of that on witnesses’ recollection : Magner at [15]. 65.Ms Eu argued that no re‑trial should be ordered as the Judge had exercised an independent mind. An example is that during the closing submissions of the parties, the Judge asked the plaintiff’s then counsel (not the plaintiff’s current team of counsel) whether he was, in fact, putting a positive case of forgery and not merely putting the defendants to strict proof of the validity of the Will. The discussion was reflected in [7] and [33] to [35] of the judgment. Much of these paragraphs was not copied from the Defendants’ Closing Submissions and Speaking Notes, and they reflected what the Judge and the plaintiff’s counsel had discussed earlier. Further, as shown from the transcript, the Judge was actively engaging in many material points made by the plaintiff’s counsel during his oral submissions. For example, the properties bequeathed by the Deceased, the Deceased’s first marriage, the proper name of the Deceased’s mother and why the Deceased did not leave anything for the 1st defendant in his Will. 66.Ms Eu further argued that the plaintiff’s proposal to order a re‑trial boils down to one point, which is to resolve the factual disputes in this case that the credibility of witnesses is of critical importance. However, she submitted that the plaintiff never had any positive case and the outcome does not turn on the credibility of his witnesses. There is ample evidence to prove the Will and the other contentions raised by the plaintiff in respect of the testamentary capacity of the Deceased and his knowledge and approval of the Will corroborated the validity of the Will : 1) the plaintiff’s contention is partially dependent on medical evidence and in addition, there is ample non‑expert evidence to show that the Deceased had testamentary capacity and knowledge of contents of the Will; 2) the most critical witness, Mr Mak, has passed away and will be unavailable to testify at a re‑trial. Mr Mak was the only witness who had personal knowledge of all the pertinent issues: the giving of the instructions by the Deceased, the drafting of the Will, the Deceased’s prior approval of its content, and the execution of the Will. Hence for those issues that turn on Mr Mak’s evidence, this Court should be in as good a position as a re‑trial judge, who equally could only act on the transcripts of Mr Mak’s testimony; 3) it is plain and obvious from the plaintiff’s cross‑examination of Mr Lee at trial that the plaintiff does not really have any case against his evidence; 4) as regards the testamentary capacity of the Deceased at the time of the execution, both experts have agreed that before the colonoscopy, the Deceased was of sound mind and understanding. It is therefore only a very narrow issue as to the effect of the propofol on the Deceased. Thus, the question relating to the expert opinions can be determined by this Court, as their reports and full transcripts of their testimonies are available. In these circumstances, a re‑trial would only be a huge waste of costs, time and judicial resources; 5) a re‑trial will cause serious and irreparable prejudice to the defendants in that (1) the demise of Mr Mak means that a pivotal part of the defendants’ case would be turned into hearsay and (2) the 1st defendant and Mr Lee would need to be cross‑examined in detail again on the events that happened more than a decade ago, which is inherently unfair to them. 67.Mr Dawes in reply submitted that this is clearly not an appropriate case for this Court to assess the matter afresh without the Judge’s input. 1) The defendants’ submissions plainly acknowledge the indisputable fact that the present dispute heavily turns on the credibility of factual witnesses. The clearest example is the defendants’ reliance on the 1st defendant, Mr Mak and Mr Lee in proving the testamentary capacity of the Deceased. 2) It is wrong to suggest that the outcome of the case does not turn on the credibility of the plaintiff’s witnesses. This is amply borne out by the fact that a substantial part of the judgment has been devoted to discussing the credibility of the plaintiff’s witnesses and analysing their evidence in the context of determining the issues in dispute. In any event, whether the plaintiff has any positive case is beside the point. The Court must still be satisfied with the defendants’ case on the Will in light of all the unusual features in this case and this inevitably involves the assessment of the credibility of the defendants’ witnesses. 3) It is incorrect to suggest that the plaintiff does not challenge the due execution of the Will or the Deceased’s knowledge and approval of the Will. There is no independent ground of appeal on the Judge’s factual findings on those issues only because it is not appropriate for the appellate court to take over the role of the trial judge as the primary assessor of evidence. For the same reason, the plaintiff’s previous withdrawal of his appeal (prior to adding the new ground of judicial copying) is merely a candid acknowledgement that the case heavily turns on the trial Judge’s assessment of the witnesses’ credibility and this Court will be reluctant to interfere with the Judge’s factual findings. 4) It is not right for the defendants to suggest that the plaintiff is seeking to have a second bite of the cherry to his unfair advantage. The plaintiff is only looking for a fair resolution of the dispute. As repeatedly acknowledged by this Court, extensive copying in the judgment would leave a reasonable person with a justified sense of grievance. 3) No re‑trial 68.We hold that there should not be a re‑trial of the action. We will decide the case afresh based on the materials before us. On the issue of execution of the Will, although the former counsel for the plaintiff had suggested on the ninth day of the trial that there was no execution of the Will, his Closing Speaking Notes before the Judge admitted that the plaintiff did not have a positive case and described the nature of the plaintiff’s evidence as being related only to the background and subsequent events. This is what he wrote :
69.This is not a one against one situation where the Court has to resolve conflict of evidence of the witnesses. Rather uniquely, the plaintiff and his witnesses are not privy to the preparation and execution of the Will. The evidence comes from Mr Mak and Mr Lee. Mr Mak had died after the trial and if there is a re‑trial, the Judge would have to read the transcript of his evidence, a task that we could perform as well. If there is a re‑trial, Mr Lee would have to recall matters that took place ten years ago. 70.In our view, the fact that the plaintiff does not have a positive case applies also to the issue of testamentary capacity and knowledge and approval of the contents of the Will. The factual evidence again is one sided and comes from the evidence of Mr Mak, Mr Lee and the 1st defendant. In respect of the expert evidence of Dr Leung and Dr Tang, their medical reports and their evidence are before us and if they have to give evidence afresh, they probably would have to rely on what was contained in their previous reports and their transcribed evidence. We are in as good a position as a trial judge to assess their evidence and make findings. 71.In respect of the evidence of the plaintiff and his witnesses, we have already referred to the concession that their evidence only related to the background facts and the events after the execution of the Will. In other words, their evidence is not germane to the three core issues of due execution, testamentary capacity and knowledge and approval. Although the Judge had found against the plaintiff and his witnesses on their credibility, in our view, their credibility or lack of it and their relationship with the Deceased have no effect on the core issues in this case, as the relevant evidence on these issues came from the defendants. 72.In respect of the issue of fairness, it is not the fault of either the plaintiff or the defendants that caused this Court not to rely on the judgment. The argument on fairness does not advance the plaintiff’s case. Further, whether the Court should order a re‑trial is a fact sensitive decision and the decisions in other cases do not assist. 4) Our findings 73.We will now proceed to examine and make findings on whether the plaintiff can successfully challenge the Will or whether the defendants are able to prove, on a balance of probabilities, that the Will is valid in respect of the three requirements. (1) Execution of the Will 74.We have read the witness statements and transcript of the evidence of Mr Mak, Mr Lee and the 1st defendant. We have also read Mr Mak’s answers to the interrogatories administered on him by the plaintiff. For two days, Mr Mak was subject to the most extensive and intensive cross‑examination with minutiae details which often are irrelevant to the issues. The topics covered in the questioning include : i) his legal knowledge and experience; ii) his relationship with the Deceased; iii) the telephone conversation between them on 20 January 2015; iv) their meeting on 22 January 2015; v) his preparation of the Will; vi) the telephone conversation between them on 4 February 2015; vii) execution of the Will on 5 February 2015; viii) the events after the execution; ix) the announcement of the Will on 2 June 2015; and x) his inability to produce documents related to the Will such as his draft, the precedents he used to prepare the Will and the computer notebook that he used. 75.However, it is clear that Mr Mak was not shaken at all by the long questioning that sought to cast doubt on his evidence on the preparation and execution of the Will. He was consistent about the events as described by him. He fully explained why he no longer had documents used in the preparation of the Will. He had properly explained why he used the office of Chan & Chan solicitors to announce the Will. The former counsel for the plaintiff disavowed any suggestion that the Will was fabricated to create work for the solicitors. Mr Lee was also cross‑examined with some details. It was suggested that the witness statement he made in respect of the description of the Deceased about him being conscious was identical to that of Mr Mak. He denied that this was agreed between them before they made their witness statements. He agreed that the words in his witness statement about his conversation with the Deceased might not be the exact words he told the lawyer who prepared his witness statement but the meaning was the same. He denied the suggestion that was put to him that his description of the events on 5 February 2015 did not happen, or that even if he did go to the Deceased’s office, the Deceased’s mental state was not good. Again, Mr Lee’s evidence was not in any way shaken and there was no proper basis for the plaintiff to suggest that the execution of the Will on 5 February 2015 did not happen. 76.The 1st defendant’s evidence about their return to Hong Kong after the Deceased’s colonoscopy corroborated Mr Mak’s and Mr Lee’s evidence that they picked up the Deceased at the bonesetter clinic before they went to his office. Her evidence on the mental state of the Deceased that day also corroborated Mr Mak’s and Mr Lee’s evidence. Her evidence was not in any way discredited. 77.We find that the defendants are able to prove on a balance of probabilities that there was due execution of the Will by the Deceased in the way described by Mr Mak and Mr Lee. We would go one step further and ask why did Mr Mak and how was it possible for him to make up a false case about the Deceased executing the Will? There was no evidence to suggest the properties that the Deceased bequeathed and names of the beneficiaries were known to Mr Mak other than from the instructions that were given to him by the Deceased. The trust properties are in fact supported by the exhibits produced in the hearing below and the name of the Deceased’s mother which was correctly written in the Will was confirmed by other evidence. There was not the slightest evidence that there was a conspiracy between Mr Mak, Mr Lee and the defendants to concoct a false case about the Will. On the contrary, from the medical history of the Deceased which we will elaborate later, one can infer that the Deceased must be concerned with his health and the need to put his affairs in order. In such circumstances, giving instructions to Mr Mak, a solicitor’s clerk who had handled his legal matters for many years was nothing extraordinary. As to why he chose Mr Mak and not a legally qualified solicitor to prepare the Will, this must be considered in the context of their relationship in the past. Further, from the evidence, one gets the impression that the Deceased was a headstrong man who chose to do things in his own way. Anyway, the content of the Will is normal. Each of his four children from his two relationships has a share of his estate. The plaintiff and his sister may be aggrieved that the Deceased gave the bulk of his estate to the 3rd defendant, his youngest son but the Deceased, by reason of freedom of testamentary disposition is entitled to give his estate to whoever he liked and in whatever proportion he liked. In In re Glynn, it was said ‘One man’s whimsy is another man’s logic’. The Deceased’s decision in the present case can hardly be described as whimsical at all. The plaintiff’s evidence shed no light on the issue of due execution of the Will. The plaintiff’s case that the Deceased had made no provisions for his illegitimate son does not advance his case any further. (2) Testamentary capacity i) The factual evidence 78.We have referred to Mr Mak and Lee’s evidence about their observation that the Deceased was normal at the time he executed the Will. They denied that he was in an unconscious state. Mr Dawes submitted that Mr Mak did not even ask the Deceased about his mental state. But, if according to Mr Mak, the Deceased was able to give him instructions to prepare the Will and he was in a conscious state of mind, there really was no reason for Mr Mak to ask this question at all. Likewise, when the Deceased signed the Will in the presence of Mr Mak and Mr Lee. The 1st defendant’s evidence also showed that there was nothing unusual about the Deceased after he finished the colonoscopy, returned to their home in the Mainland to pray to his grandparents, crossed the border to come back to Hong Kong, alighted at the bonesetter clinic and then returned home later that night. ii) The expert evidence 79.Dr Leung and Dr Tang had prepared separate medical reports and a joint medical report (the ‘Joint Report’) in which they narrated the Deceased’s medical condition and expressed their views on his health and mental condition. They also gave evidence at the trial. 80.Both doctors referred to the previous medical reports of the Deceased. The Deceased had altered bowel habit (tenesmus) since 12 January 2015 and attended hospitals in the Mainland on 12 January 2015, 29 January 2015 and 4 February 2015 when a colonoscopy was arranged to be performed the next day. The Deceased bought propofol for the surgery in accordance with the practice of the Mainland hospitals. On 5 February 2015 he had the colonoscopy. Dr Leung said that the symptoms must have troubled the Deceased to seek medical help because the surgery could barely go past the 5 cm rectal tumour and the surgery was incomplete as the investigation could not proceed beyond the sigmoid colon. On 6 February 2025, the Deceased went back to the Shenzhen hospital and the tumour was confirmed to be malignant. He then had treatment in Hong Kong. On 10 February 2015, he underwent a laparoscopic anterior resection in Hong Kong. On 14 March 2015, the Deceased experienced sudden occurrence of a wry mouth and could not speak. On 18 March 2015, the Deceased was admitted to a hospital in the Mainland where he was diagnosed to have suffered from a stroke. The Deceased’s general condition deteriorated after he had gastrointestinal bleeding and received his first chemotherapy in around mid April 2015. He also suffered from further ischemic damages to his brain around mid April 2015. On 21 April 2015, the Deceased returned to Hong Kong for treatment where he was diagnosed to have end‑stage renal failure on top of rectal cancer and haemorrhagic stroke. On 27 April 2015, the Deceased was discharged from Queen Mary Hospital in a critical condition with an estimated residual lifespan of about one week. He went back to the Mainland hospitals for treatment. On 8 May 2015, the Deceased died at his residence in Shenzhen, the Mainland at the age of 48. 81.Dr Leung in his report stated that he was unable to comment on the Deceased’s health and mental condition from late January 2015 to 5 February 2015. His focus was on the 24‑hour guideline given by the Hong Kong hospitals and the Medical Academy that patients should not sign legal documents within 24 hours after they received anaesthetic such as propofol. He said :
82.He referred to the documents on the amnestic effects of propofol and directions for use of propofol by its manufacturer, namely
83.He also referred to the notice affixed at the hospital where the Deceased had the colonoscopy and the form signed by him acknowledging that the hospital had reminded him not to undertake complex calculation or logical analysis on the same day of the operation. Dr Leung concluded :
84.Dr Tang stated that the colonoscopy started at 3 pm and finished at 3:10 pm due to the presence of a tumour at a short distance from the anus. The Deceased was prescribed with two vials of propofol 200 mg. He doubted that all of the 400 mg of propofol was used. He stated that propofol is an ultrashort anaesthetist drugs that faded away rapidly in one hour. Propofol was changed into inactive metabolites in liver and then excreted into kidneys. The Deceased had normal liver and renal functions all along. Rapid awakening within 10 to 15 minutes can occur. He referred to the propofol prescription in the Shenzhen hospital which showed that the chance of postoperative disturbance of consciousness was very very rare (1 in 10000). 85.Dr Tang stated that the Deceased must be mentally alert and conscious after 4 pm. It was because he went home to worship his grandparents. He crossed Hong Kong border independently. He went to a bonesetter clinic in Fanling at around 5:30 pm. He made a verbal instruction to the 1st defendant for her to leave. He left the bonesetter clinic on his own. He could recognize his own office at around 7 pm. He must be mentally alert at around 7 pm on 5 February 2015 at the time when he was making the Will. He remained alert all along in subsequent treatment. 86.In the Joint Report, both doctors agreed that the Deceased was of sound mind and understanding before the colonoscopy. They agreed that there was not enough material for them to comment on the Deceased’s mental capacity when he signed the Will. Both doctors agreed according to the information on propofol, it takes one to two hours for the patient to regain full recovery in consciousness. Recovery means safe to leave clinic or hospital. Dr Tang said it was not likely that the Deceased had forgotten that he had signed the Will while Dr Leung said that it was possible that he had forgotten. The experts disagree on whether to assess the Deceased’s capacity by adhering to the 24‑hour guideline or by adopting a shorter time frame in the light of the evidence adduced in this case. Dr Tang said that the 24‑hour guideline is a ‘very extremely conservative guideline’. Dr Leung said the 24‑hour guideline is a safe guideline. Some patients need less than 24 hours but clinically one cannot predict who will take longer. Patients sometimes can be ‘awake’ but yet still not fully ‘alert’. Dr Tang said it would be safe within three hours to sign a will. He said the operation ended at 3:10 pm and the Will was signed at 7 pm. The four‑hour lapse showed that the propofol did not significantly affect the Deceased. Dr Leung said he preferred 24 hours or longer to be safe to sign a will. He said :
87.Dr Leung said that less than four hours is far too short a time to be certain that the patient understood all the intricacies and significance of a will. The fact that there was no reasonable urgency for the Will to be signed on 5 February 2015 after the surgery and that the Deceased had been warned not to do anything involving accurate calculation and logical analysis for 24 hours, ‘makes it suspicious that he may not fully comprehend the significance of his action’. 88.In our view, Dr Leung’s evidence does not cast doubt that the Deceased was in a conscious state of mind when he signed the Will on the evening of 5 February 2015. By then, it was nearly four hours after the colonoscopy, and judging by the activities that the Deceased had undertaken since the colonoscopy, Dr Tang’s view that the effect of propofol had waned off and the Deceased was in a position to sign the Will is a reasonable one. By contrast, Dr Leung’s reliance on the 24-hour guideline must be understood in the context, as Dr Leung accepted, that the guideline applies to all day surgery. In other words, there is no differentiation in this guideline to the nature of the surgery and its duration. When it was put to Dr Leung that his view was that if someone signed a will (which is a momentous decision) when he had colonoscopy that morning and when there was no urgency to sign a document, that by itself showed that he did not have the mental capacity to sign the document, he agreed that it was his logical thinking but admitted that it was not a professional evaluation. Even accepting that the Deceased had received the full 400 mg propofol and not half of it as Dr Tang had suggested, our view is that it is a matter of common sense that a patient like the Deceased who came out from a surgery which lasted only ten minutes would regain his mental alertness and consciousness more quickly than someone who had undergone a surgery of a longer duration. The situation is exemplified in the present case by the description of the condition of the Deceased by Mr Mak, Mr Lee and the 1st defendant and the activities he had undertaken that day before he signed the Will. We accept Dr Tang’s evidence. 89.In our view, the Deceased had testamentary capacity when he executed the Will. The factual evidence showed that prior to the Deceased executing the Will, he had given instructions to Mr Mak on how to prepare the Will, he had read the draft will which was prepared according to his instructions and he instructed Mr Mak to prepare the Will for his execution. This clearly showed that the Deceased was testamentarily capable on these occasions. When Mr Mak brought the Will to him on 5 February 2015, before he signed it, he again read it to himself. There is no indication that he had changed his mind on the contents of the Will. He thanked Mr Lee for being his witness and after the execution, he instructed Mr Mak how to handle the Will by only disclosing it after his funeral. This showed that the Deceased fully understood what he was doing when he signed the Will and he had the testamentary capacity to do it. 90.Even if, for the purpose of argument, the Deceased’s mind was still affected by the propofol at the time of the execution, which we do not agree, this is an appropriate case to adopt the rule in Parker v Felgate. The matters that we have just described would provide a yes answer to the four questions posed by Moore‑Bick LJ in Perrins : 1) the evidence showed that when the Deceased gave instructions to Mr Mak, he had the ability to understand and give consideration to the relevant matters, in other words, he had testamentary capacity; 2) the Will gave effect to his instructions as Mr Mak had prepared the Will according to his written instructions; 3) the instructions continued to reflect his intentions as shown by his approval of the Will which he had read before he signed it (the difference of the two documents is that the latter contained the witness clause) , and 4) the evidence clearly showed that when he signed the Will, he plainly knew what he was doing and had sufficient mental capacity to do so. The evidence also shows that the content of the Will is the same as the draft will that he had read and approved a few days before he executed the Will. Further, as Ms Eu had submitted, between 5 February 2015 and the subsequent hospitalisation, the Deceased did not change his mind and revoke the Will. The present case was even stronger than the other cases that applied the rule where the testator was not competent when he signed the Will. 91.Mr Dawes submitted that the Deceased did not even remember he had made the Will. He referred to the reaction of the Deceased on 16 April 2015 when a friend Mr Cheng who visited him in hospital suggested that he should prepare a will. The plaintiff had secretly recorded the conversation and the transcript showed that the Deceased merely uttered a ‘eh’ sound in response to Mr Cheng’s advice. The plaintiff in his witness statement said that the Deceased shook his head in response to Mr Cheng’s advice. The 1st defendant’s evidence is that at that time the Deceased could hardly speak. As shown by the medical history of the Deceased above, his health condition had seriously deteriorated by April 2015. We do not regard that observation assists the plaintiff’s case. This evidence has no impact on the issue of testamentary capacity or the Deceased’s knowledge and approval of the Will which we will deal with next. 92.The Golden Rule clearly has no application in this case since Mr Mak who drafted the Will was not a legally qualified person and was not expected to know or observe this requirement. 3) Knowledge and approval of the content of the Will 93.Mr Dawes argued that this ground stands and falls together with the ground on testamentary capacity. If this Court accepts that ground and finds the Judge erred in holding that the Deceased had the requisite testamentary capacity at the time of the execution of the Will, it follows that the Judge 1) erred in applying the presumption that the Deceased knew and approved the contents of the Will on the basis that it was duly executed and the Deceased was of testamentary capacity; and 2) erred in finding that the defendants had proved on a balance of probabilities that the Deceased knew and approved the contents of the Will. 94.What we have said on testamentary capacity including the rule in Parker v Felgate applies equally to this topic. We are of the view that this requirement is satisfied as the Deceased had the ability to understand and approve and did understand and approve the choices that he had made by his instructions to Mr Mak and were reflected in the contents of the Will. We reject the challenge of the plaintiff on this ground. VIII. Conclusion 95.The Judge was correct in his decision and the appeal is dismissed with costs to the defendants. We will grant a certificate for two counsel.
Mr Victor Dawes, SC and Mr Jonathan Ng, instructed by Li & Partners, for the Plaintiff Ms Audrey Eu, SC, Mr Kenny Lin and Mr Jason Kung, instructed by Huen & Cheung, for the 1st, 2nd and 3rd Defendants | |||||||||||||||||||||||||||||||||||||||
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