Yip Sau Ching v. Yip Che Shing and Others

CACV 116 /2025, [2026] HKCA 1443

On appeal from [2025] HKCFI 657

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 116 OF 2025

(ON APPEAL FROM HCAP NO 31 OF 2018)

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BETWEEN

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(By Original Action)

AND BETWEEN

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(By Counterclaim)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.This is an appeal against the judgment of H Au-Yeung J handed down on 11 February 2025 (“Judgment”)[1] after a trial that lasted 18 days. By the Judgment, the judge ordered that the will dated 12 March 2012 (“March 2012 Will”) executed by the late Ip Chan Kee (“Father”) be pronounced in solemn form, that the caveat entered by the 1^st defendant Yip Che Shing (“Shing”) on 13 November 2017 do cease to have effect, that a grant of probate of the March 2012 Will be made to the plaintiff Yip Sau Ching (“Ching”), and that the counterclaim of Shing and the other defendants be dismissed.

2.The Father had five daughters and two sons, Ching being the eldest daughter and Shing the eldest son.  The seven children have split into two camps.  Ching, Yip Sau Ling (“Ling”) and their younger brother Ip Chi Pang Tommy (“Pang”) are in one camp (collectively “the plaintiffs”).  Shing and his three sisters in Canada – Yip Sau Yuen Maida (“Yuen”), Ip Sau Wai (“Wai”) and Ip Sau Mee Judy (“Mee”) – form the other camp (collectively “the defendants”).

3.The defendants challenged the March 2012 Will and an earlier will made by Father on 20 February 2012 (“February 2012 Will”) (collectively “the Wills”) on four grounds: (1) Father did not have testamentary capacity; (2) he did not know and approve of the contents of the Wills at the time of execution; (3) he did not have the testamentary intentions (animus testandi); and (4) he executed the Wills as a result of the fraudulent calumny of Pang against Shing.  The judge held against the defendants on each of the grounds.

4.The defendants brought this appeal to renew their challenge of the validity of the March 2012 Will only on the ground of fraudulent calumny.  They argued that the judge should have found that the representations made by Pang to Father (“Representations”) – it is undisputed that the Representations were made – were false in that Shing did not make the demands and threat as alleged in the Representations, and that Pang knew the Representations were untrue; the judge erred in finding that the Representations were not about Shing’s character; and the judge should have found that Pang made the Representations with the specific purpose of inducing Father to alter his testamentary dispositions and the March 2012 Will was made because of the fraudulent calumny.  The defendants sought an order that the appeal be allowed to declare for Father’s intestacy, alternatively there be a retrial of this action.

5.The above challenges are against findings and inferences of fact of the trial judge.  The appellate process is not designed to give litigants a platform for repeating unsuccessful submissions on the evidence and factual aspects, hoping that the appellate judges might be persuaded to come to a different view.  Having sat through the entire case, the insight of the trial judge may well be far deeper than that of the appeal court, whose view of the case is much more limited, often shaped or narrowed by the focused challenges on appeal to particular issues or aspects of the evidence.

6.The rationale of the legal requirement of appellate restraint on issues of fact is not just the advantages which the trial judge has in assessing the credibility of witnesses.  It is the trial judge who is assigned the task of determining the facts, not the appeal court. The reopening of questions of fact for redetermination on appeal would expose parties to great cost and divert judicial resources for what would often be negligible benefit in terms of factual accuracy.  The trial on the merits should be the “main event” rather than a “tryout on the road”[2]. 

7.In this case, the judge sat through a trial of 18 days.  His ultimate judgment reflects his total familiarity with the evidence.  The insight he gained from the experience of seeing how the contest unfolded would be far deeper than the members of this court.  Even reading the transcripts at length cannot give the appeal court the same immersion in the atmosphere of the trial[3]. It is also important to bear in mind that findings of fact by the trial judge are inherently incomplete statements of the impression made upon him[4].

8.The threshold for the appeal court to interfere with a finding of fact is that the trial judge must be shown to be “plainly wrong”.  This phrase directs the appeal court to consider whether it was permissible for the judge to make the findings of fact in the face of the evidence as a whole.  For the appeal court to intervene, it is necessary to identify palpable errors of the judge of such nature that are sufficiently material to undermine his conclusion.  Mistakes which could engage appellate intervention are those situations where there was no evidence to support the conclusion, or where the conclusion was based on a misunderstanding of the evidence, or where the conclusion was one which no reasonable judge could have reached.  The assertions that the finding is against the weight of the evidence or that the judge should have reached some other conclusion had he taken into consideration certain points advanced in the closing submissions below are not mistakes to justify appellate intervention[5].

9.To succeed on appeal, the defendants have to meet the heavy burden of showing that despite the advantages enjoyed by the trial judge but not by this court (which only examined extracts of the transcript of proceedings without a “panoramic vista of the evidence as a whole” and was not immersed in the “drift and conduct of the case” like the trial judge), this court can nevertheless be satisfied that the conclusion of fact reached by the trial judge was not one that was reasonably open to him on the evidence[6].

Background

10.We will first relate the relevant background matters, taken from the Judgment and other evidence not in dispute or findings no longer in dispute in this appeal.

11.The Father was a traditional man and biased towards his sons[7]. He was an authoritative person, used to be respected and obeyed by all his children, and his decisions were never questioned[8].

12.The Father married Lee Luen Cheung (“Mother”) in 1945.  The family had humble beginnings.  They moved to Hong Kong from the Mainland in the 1950s to 1960s and started a business making wooden boxes.  From about 1971, the family resided in a flat in Shanghai Street, Kowloon (“Shanghai Street Flat”), which was owned by Father, until 1990 when Father and Mother emigrated to Canada with Yuen, Wai and Mee.  These three daughters have since settled in Canada.  Some or all of the remaining four children would appear to have also made arrangements to emigrate to Canada but did not settle there.  Shing, who married Fan Kong Hai (“Fan”) in 1980, did not actually move to Canada and continued to live in Hong Kong as he had established his own business with a factory in the Mainland.  It is not clear when Ching moved back from Canada to Hong Kong.  At all material times, Ching, Shing, Ling and Pang have been living in Hong Kong.

13.Shing was a successful businessman and the most capable child of the family.  Father was proud of Shing getting into the University of Hong Kong and later starting his own business.  Pang worked in Shing’s company from 1997 until 2017, thus Shing was Pang’s boss all along.

14.In late 2007, Father and Mother returned to Hong Kong for good, as Mother’s health had deteriorated.  Initially, they lived with Shing and his family at Shing’s home in Hong Lok Yuen (“Shing’s House”). They left after a few months and went to live in the Shanghai Street Flat.  Shing had supported them financially with monthly allowances both in Canada and Hong Kong.  Shing and Fan hired a domestic helper to look after the parents in early 2008.  When the contract of the first helper expired, Shing engaged another foreign helper called Aimah in 2010 to look after the parents.

15.In 2007/2008, Ching and Shing were involved in acrimonious litigation.  Their case was eventually settled in June 2010.

16.By about mid-2011, it was decided by the family that Mother should be admitted to a care home.  Ling looked for a suitable home, but a place at the desired care home was not yet available[9].  Shing later had a viewing of a care home in Kwai Shing with Ling[10].

17.It was around 2011 that the relationship of Father and Shing turned sour[11]. Father had quarrelled with Shing whenever they met in mid-2011 to the end of 2011[12]. The defendants’ medical expert, Dr Chung See Yuen (“Dr Chung”), accepted that on the basis of Shing’s own evidence, there were reasons for Father’s ill-feeling towards Shing[13]. Shing admitted that he had criticised and reprimanded Father in late 2011 for mistreating Mother.  The judge found it more likely than not that this sort of arguments between Father and Shing had taken place more than once, as recalled by Father in the recorded family gatherings in 2012[14].  In relation to Father’s attitude towards Mother, the judge agreed with the analysis of the plaintiffs’ medical expert, Dr Choi Wing Kit (“Dr Choi”), that even if the Father did show fluctuating mood and treatment of Mother, he was at most suffering from carer’s stress[15].

18.Aimah left the Shanghai Street Flat in late 2011. She was to take a holiday in her home country between 6 and 12 December 2011.  She did not return to Hong Kong to work.  During her absence, Shing and Fan arranged their own domestic helper called Snooky to go to the Shanghai Street Flat to look after the parents for a period.  On 16 December 2011, Shing and Fan brought Mother to live in Shing’s House.

19.There was dispute of the circumstances in which Aimah left the employment and how Mother came to live with Shing’s family.  The judge did not make a finding whether Aimah was driven away by some harsh words of Shing and if Mother was brought to stay with Shing against her wishes, as alleged by the plaintiffs.  The judge did find that Father was “very unhappy” about Shing’s act in taking Mother away from the Shanghai Street Flat and was unwilling to be separated from Mother, as appeared from the 2012 Audio Recordings.  He found that Father was frustrated and had no choice but to accede to Shing’s suggestion of taking away Mother, as he could not take care of her without any domestic helper at the material time[16].

20.Father lived in the Shanghai Street Flat on his own until Aimah returned to work for him in early 2013.

21.At the end of 2011, Father told Pang that he wanted to sell his house in Canada.  In January 2012, Pang accompanied Father to go to Canada for this purpose.  On 18 January 2012, Father executed a power of attorney in favour of Mee for handling the sale of his house.

22.On 7 February 2012, Ling applied for a place in the desired care home on Mother’s behalf, having received notification there was vacancy.  Eventually, Mother did not move to the care home and continued to live in Shing’s House until she passed away on 3 January 2015.

23.On Father’s instructions, Pang opened a bank account with Hang Seng Bank on 11 February 2012 (“$2M Account”) designated for payment of Mother’s expenses and Father deposited HK$2 million into the account shortly afterwards.  Shing had spent much money on Mother since he brought her to live in his house[17]. Shing and Fan sought reimbursement from Pang for at least some if not all of the expenses paid for Mother for the year 2012.  No further claim was made from 2013 onwards when Fan was too busy to claim reimbursements[18].

24.In mid-February 2012, Father asked Pang if Pang was free those two days and said he wanted to make a will because he did not want Shing to “snatch” his estate.  Father also said he had decided to make a will at the solicitors’ firm in which Tony Lee (“Lee”; related to Ling’s family by marriage) worked[19].

25.On 17 February 2012, Father called Lee who was working as a clerk to Messrs Tam, Pun & Yipp, and made an appointment to make a will.  On 20 February 2012, Father executed the February 2012 Will, appointing Pang as the executor and leaving his residuary estate to him.

26.On 7 March 2012, there was a family gathering at the Shanghai Street Flat attended by Father, Ching, Ling and Ling’s husband Wan. Parts of the conversations among them were recorded by Wan (“March 2012 Recording”).

27.On 9 March 2012, Father called Lee again for an appointment to make a new will.  On 12 March 2012, Father executed the March 2012 Will, in which he appointed Ching as the executrix and left his residuary estate to Ching, Ling and Pang in equal shares.  The judge accepted the evidence of Pang, Ching and Ling that Father told them of a change of mind regarding the named beneficiaries in that the names of Ching and Ling should be added as Father thought that Pang might not be able to withstand the pressure possibly applied by Shing if Pang were the sole beneficiary of Father’s estate[20].

28.The Wills were prepared by Messrs Tam, Pun & Yipp and were witnessed by a partner Paul Yau and a clerk Chu Lap Kei.  Father was 89 years old at the time.

29.The judge did not think any emphasis should be placed on the fact that Yuen, Wai and Mee were not named as beneficiaries in the Wills, as it was evident that Father was indifferent as to whether these daughters should have a share in his estate, and that he had left it to Pang to decide[21]. Father had mentioned to Pang that Pang had the liberty to decide whether any part of the estate should be distributed among the daughters in Canada[22]. Father decided not to leave anything to Shing.

30.There was another family gathering on 4 April 2012, attended by Father, Ching, Ling, Wan and Ching’s husband Lau and discussions were again recorded (“April 2012 Recording”).

31.Father stated in the 2012 Audio Recordings that Shing wanted to “get rid”[23] of them.  He was speaking figuratively[24].  It is undisputed that Shing’s relationship with Father had turned sour before the execution of the March 2012 Will[25].

32.On 24 April 2012, Father signed an agreement for sale and purchase of a flat in a new development at Park Summit (“Park Summit Property”).  It was because of his unwillingness of being separated from Mother that he had decided to purchase this property which is accessible by lift, so that he and Mother could live together again[26].  Completion of the purchase took place on 25 January 2013.  Eventually, Father did not move to the Park Summit Property and chose to remain in the Shanghai Street Flat, as one of his hobbies was to go to “yum cha” with his friends on a daily basis[27].

33.Father signed a new employment contract with Aimah in November 2012.  He had cataract surgery on 24 January 2013.  He was still making records of stock prices in 2015 to 2017.  He lived in the Shanghai Street Flat with Aimah until he was admitted to hospital on 7 August 2017.

34.Mother passed away on 3 January 2015.  Father passed away on 1 October 2017, aged 94.  He was hospitalised in the last two months of his life.  On the day Father passed away, Shing went to the Shanghai Street Flat and, in the presence of Pang, took away among other things the title deeds of the Shanghai Street Flat and the Park Summit Property.  The judge rejected Shing’s evidence he had instructions from Father in September 2017 that the two properties were to be divided equally among the seven children[28].  Shing entered a caveat on 13 November 2017.  Pang ceased to work for Shing in 2017. He closed the $2M Account in December 2017 and transferred the closing balance to his own account.  This probate action was commenced on 2 August 2018.  In 2018, Shing’s company brought proceedings against Pang alleging breaches of duties as an employee. 

The witnesses

35.The seven children all gave evidence at the trial, as well as Fan and other factual witnesses.

36.The judge considered that the children were all generally incredible and unreliable witnesses[29]. He found their testimony contradictory and inconsistent in part.  Ching bore personal grudges against Shing, so much so that she did not visit the Mother at Shing’s House during the last three years of Mother’s life, even though Ching knew from Ling that Shing had indicated he welcomed her visit of their mother[30]. She went so far as to not admit the blood relationship between Father and Shing in her witness statement, although she did not maintain this in her oral evidence[31]. Yuen, Wai and Mee also disliked Shing very much for various reasons up to at least 2016, as demonstrated by a lot of their messages in contemporaneous WhatsApp group chats, in which they gave very bad comments on Shing’s character in the past and he was portrayed as vengeful, scheming and domineering[32]. Some of the siblings appeared to have regarded Shing to have a violent temper[33].

37.The judge made these remarks which applied to all family members of the Yip family:

“… even though I have found that many of the witnesses are, generally speaking, incredible and unreliable, that does not necessarily mean that I should reject their evidence entirely. Much depends on the circumstances in relation to a particular issue. But of course, I would bear in mind that I should be very careful before I accept any part of their evidence. This reminder to myself is also applicable to those witnesses whose evidence should be considered cautiously.”[34]

38.The two camps each called one medical expert in psychiatry to give an opinion on Father’s mental state, cognitive functions and general condition at the material time.  The expert witnesses did not have opportunity to examine Father before his passing.  The judge rejected the evidence of the defendants’ expert, Dr Chung, that Father was suffering from delusion in 2012, and his view that Father’s learning and memory had been impaired was “totally misconceived”[35]. He accepted the evidence and analysis of the plaintiffs’ expert, Dr Choi, that Father was at most suffering from very mild cognitive decline (age-associated memory impairment) when he executed the Wills[36]. He held that the defendants have not discharged the evidential burden of proof of want of testamentary capacity.  Indeed, up to the period of Father’s demise in 2017, his medical records did not identify any mental or cognitive problem at all[37].

39.The judge had “considered the entirety of the 2012 Audio Recordings”[38].

Findings in the Judgment

40.The judge made these findings that at the material time of the execution of the Wills: Father did understand the nature of his act and its effect; he did understand the extent of the property of which he was disposing; he was able to comprehend and appreciate the claims to which he ought to give effect; there was no disorder of his mind which poisoned his affections, perverted his sense of right, nor prevented the exercise of his natural faculties, and no insane delusion which influenced his will in disposing of his property and brought about a disposal of it which, if the mind had been sound, would not have been made[39]. Hence, Father’s testamentary capacity is established.

41.The judge was satisfied on the evidence that Father understood what was in the March 2012 Will when he executed it, and what its effects would be.  Knowledge and approval on the part of Father is established[40].

42.The judge also held that the plaintiffs have proved animus testandi on Father’s part[41].

43.In respect of fraudulent calumny, the judge confined himself to the Representations as pleaded in the re-amended defence and counterclaim at §7B[42], which were as follows:

(1)  “Signatory Representation”

Pang represented to Father that Shing wanted to be added as a signatory and thereby obtain control over the bank account in Pang’s name designated by Father for the maintenance of Mother and in which Father had deposited a sum of about HK$2 million for such purpose.

(2)  “Give-Over Representation”

Pang represented to Father that Shing made numerous requests and/or pestered Pang to give over the sum of approximately HK$2 million set aside by Father for Mother’s maintenance to Shing.

(3)  “Threat Representation”

Pang represented to Father that Shing had threatened him unless he gave over the HK$2 million set aside by Father for Mother’s maintenance to Shing, Shing would no longer treat him as a brother[43].

44.As mentioned, it is undisputed that Pang did make the Representations to Father.  Shing denied that he had made the demands and threat to Pang as alleged in the Representations and hence the Representations were false.  The judge held that although he found both Pang and Shing were incredible witnesses, he concluded it is more likely than not and more inherently probable that Shing had indeed made the demands and threat to Pang and hence the Representations were true[44].

45.Shing alleged he did not have knowledge about the $2M Account in 2011/2012, and so could not have made the demands and threat to Pang prior to the making of the Wills.  The judge rejected his evidence.  He accepted Ling’s evidence that she had told Shing in 2011 when they ran into each other in Woosung Street that Father would deposit HK$2 million into a bank account to be opened by Pang under Pang’s name[45]. He held that it is more likely than not that by mid-2011, when it was decided that Mother should be admitted to a care home, Father had already decided to open a bank account in Pang’s name so that Father could deposit HK$2 million into this account and that the account was not opened there and then only because a place at the desired care home was not yet available[46].  He found that Shing made the demands and threat as alleged in the Representations before February 2012, or even in 2011[47].

46.The judge went on to consider if the Representations were about Shing’s character of “being greedy and putting himself above the Mother’s well-being”[48]. The judge held even though it is evident from the 2012 Audio Recordings that Father viewed Shing as a very greedy person, that does not necessarily mean that the nature of the Representations should be considered in such light[49].

47.The judge found that Pang made the Representations for the purpose of asking for Father’s instructions[50]. There is no evidence Pang knew in January 2012 that Father was going to make a will[51]. As Pang did not know Father was going to make a will by the time of Shing’s demands and threat, Pang could not have the specific purpose of inducing Father to alter his testamentary dispositions[52].

48.The judge found there were other possible reasons why Father decided to disinherit Shing in the Wills.  The defendants failed to prove on the balance of probabilities that the March 2012 Will was made because of the alleged fraudulent calumny against Shing[53].

49.The judge therefore rejected the ground of fraudulent calumny.

Fraudulent calumny

50.As this appears to be the first time the appeal court in this jurisdiction considers a claim of fraudulent calumny[54], it is appropriate that we mention the law even though there is no dispute on appeal regarding the legal principles.

51.A helpful starting point is the judgment of Lewison J in Edwards v Edwards [2007] WTLR 1387 at §47, in which he discussed the approach for avoiding a testamentary disposition on the grounds of coercion (undue influence) and fraud (fraudulent calumny).  As these two grounds were mentioned together, it would be better to give a quotation of the entire paragraph to follow the submissions made below on the legal approach:

“(i) In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence.

(ii) Whether undue influence has procured the execution of a will is therefore a question of fact.

(iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition.

(iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud.

(v) Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment discretion or wishes, is enough to amount to coercion in this sense.

(vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’ sake to do anything. A ‘drip drip’ approach may be highly effective in sapping the will.

(vii) There is a separate ground for avoiding a testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is ‘fraudulent calumny’. The basic idea is that if A poisons the testator’s mind against B, who would otherwise be a natural beneficiary of the testator’s bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside.

(viii) The essence of fraudulent calumny is that the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false. In my judgment if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone.

(ix)  The question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes.  The question, in the end, is whether in making his dispositions, the testator has acted as a free agent.”

52.What was said in Edwards v Edwards regarding fraudulent calumny was distilled into six elements or requirements by Mr Jonathan Klein, sitting as a Deputy Judge of the Chancery Division, in Re Hayward, Kunicki v Hayward [2016] EWHC 3199 (Ch) at §122.  To succeed on this plea, the party who asserted this must satisfy the following to a sufficient degree: (1) there has been a false representation; (2) it was made to the testator; (3) it was about the character of an existing or potential beneficiary; (4) it was made for the purpose of inducing the testator to alter his testamentary dispositions; (5) the representor made it knowing it to be untrue or being reckless as to its truth; and (6) the disputed will was made only because of the fraudulent calumny.

53.Regarding the burden of proof, the burden of proving fraudulent calumny lies on the party who asserts it.  As to the standard of proof, bearing in mind that this involves an allegation of fraud and the challenge is to vitiate a testamentary disposition, the strength of the evidence needed to establish on a preponderance of probability that the elements are proved must be commensurate with the gravity of the allegation[55]. The court should not accept too readily a challenge of this nature.  The words of Lord Neuberger MR in Gill v Woodall at §§16 and 17 are particularly apposite:

“16. … Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs.

17.  Further, such disputes will almost always arise when the desires, personality and state of mind of the central character, namely the testatrix herself, cannot be examined other than in a second hand way, and where much of the useful potential second hand evidence will often be partisan, and will be unavailable or far less reliable due to the passage of time.  As Scarman J put it graphically in In the Estate of Fuld, decd (No 3) [1968] P 675, 714E: ‘When all is dark, it is dangerous for a court to claim that it can see the light.’  That observation applies with almost equal force when all is murky and uncertain.”

54.There is need for the court to approach the evidence with caution in this kind of situation.

55.The judge rejected the defendants’ submissions[56] that as regards element (4) in Re Hayward, it is not necessary to prove that Pang made the Representations specifically for the purpose of inducing Father to alter his testamentary dispositions and all that is needed is to prove that the Representations were material and Pang had the intention to deceive, because there is a rebuttable presumption of fact at common law that the representor intended the representee to act in reliance on the Representations[57].  Reliance was placed on Edwards v Edwards at §47(ix) that “The question, in the end, is whether in making his dispositions, the testator has acted as a free agent.”  It was contended that no specific purpose has to be established so long as the testator’s mind had been poisoned because that means he was no longer a free agent[58].

56.A similar argument was considered in St Clair v King & Anr [2022] EWHC 40 (Ch) at §§146 to 148.  His Honour Judge Cawson QC did not find it necessary to decide the question but expressed his views obiter that in light of the approach in the older authorities[59], he would have been inclined to proceed on the basis of a stricter test, requiring it to be established that the relevant representation had been made for the purpose of inducing the testator to alter the testamentary disposition and not for something else.  The stricter approach requiring the case to be made out on the basis of affirmative evidence rather than the application of a presumption is justified on the basis that a court ought to be slow to upset a duly executed will, similar to the stricter approach historically taken by courts of probate for a challenge to a will on a case of undue influence (at §§149, 150). 

57.The judge agreed with the above.  We agree also that the stricter test should be applicable.  It is necessary for the defendants to establish that the alleged fraudulent Representations were made for the purpose of inducing Father to alter his testamentary dispositions.  As for the statement in Edwards v Edwards at §47(ix) regarding free agent, we think the judge is correct in regarding this to be said in the context of undue influence rather than fraudulent calumny[60]. We reject the contention it is not necessary to show that Pang made the Representations for the purpose of inducing Father to alter his testamentary dispositions and it would suffice to show that Father was not acting as a free agent[61].

58.In respect of element (6) in Re Hayward, there was a question whether it is correct to say it is necessary to show that the disputed will was made “only” because of the fraudulent calumny.  The judge referred to St Clair v King & Anr at §151 which quoted Morgan J in Christodoulides v Marcou [2017] EWHC 2632 (Ch) at §59 and adopted the approach that the use of the word “only” should not be understood as requiring a finding that there must have been no other reason operating in conjunction with the effect of the fraud for the testator to change his or her intentions.  This was how Morgan J explained how the question should be resolved:

“The question for the court is one of causation or inducement. The calumny must induce the change in the testator’s intentions. The challenger must prove that on the balance of probabilities. If it is possible that the calumny did induce the change, but the court is not persuaded on the balance of probabilities that it did induce the change, the challenge will fail. If there are other possibilities or other explanations and those other explanations persuade the court to find on the balance of probabilities that the calumny did not induce the change, the claim will fail. Conversely, although the court is given other possible explanations, if the court is nonetheless satisfied that on the balance of probabilities that the calumny did induce the will, then the claim succeeds. That is what is meant by the references to consistent and inconsistent hypotheses in re Edwards, which is itself based on Craig v Lamoureux [1920] AC 349. …”

59.Thus, element (6) in Re Hayward should be stated as: “The fraudulent calumny induced the testator to make the disputed will.”  We agree with the judge this should be the correct statement of the law.

60.On appeal, Mr Jonathan Chang, SC[62] submitted on behalf of the plaintiffs that the defendants are required to prove the alleged calumny induced the change in Father’s intentions and it is “not sufficient to show that the circumstances attending the execution of a will are consistent with the hypothesis of its having been obtained by influence.  It must be shown that they are inconsistent with a contrary hypothesis.” In support of this proposition, he cited Edwards v Edwards at §47(iii).  If the reference to consistent and inconsistent hypotheses is understood in the sense as explained in Christodoulides v Marcou, we have no problem with it.  We do not agree there must be no other possible explanations for the testator to change his testamentary dispositions for the claim of fraudulent calumny to succeed.

61.We turn to consider the challenges against the findings of fact.  As six elements are required to establish a claim of fraudulent calumny and the burden of proof of each is on the defendants, they would need to succeed on each of the findings against them for their appeal to be allowed.

Did Shing make the demands and threat to Pang as alleged in the Representations

62.Mr Kenneth Chan[63] submitted on behalf of the defendants the judge was plainly wrong in finding that Shing had made the demands and threat to Pang and no reasonable judge would have made such finding.  His arguments may be summarised as follows:

(1) Shing’s case is that he could not have made the demands and threat to Pang as he did not have knowledge about the $2M Account.  The judge erred in finding that Shing had acquired knowledge from Ling when they ran into each other in Woosung Street that Father would deposit HK$2 million into an account to be opened in Pang’s name.  In assessing the conflicting evidence, the judge should have undertaken a holistic exercise by considering all the circumstances of the case.  Instead, he just asked whether Ling’s version of event is inherently more probable than Shing’s version[64]. He had decided this issue solely on inherent probability, which is merely one of the factors to be taken into account in assessing the credibility of witnesses[65] [66].  He had adopted the wrong approach.

(2) The judge was wrong in accepting Ling’s evidence on this, which is not supported by contemporaneous documents.  Ling gave the convenient excuse of lapse of memory and expanded her evidence in cross-examination that Shing had requested to add another person as the account holder, which was not contained in all her witness statements[67] [68].  The judge failed to direct himself that Ling might be advancing her own interest in telling lies[69].  He had found that Ling is not a credible witness generally but gave no weight to this finding in assessing her credibility regarding the Woosung Street incident, or had given excessive weight to inherent probability[70].

(3) The judge failed to find Ching and Pang had told a lie that between mid to end of 2011, Father had decided to open the $2M Account and that HK$2 million was deposited soon after the decision.  This was shown to be false by the discovery obtained by the defendants in May 2022 from the bank of the account opening documents, which showed that the $2M Account was opened on 11 February 2012.  In the witness statement made by Ling on 3 November 2022, she mentioned for the first time the incident of meeting Shing in an unnamed street (said to be Woosung Street only in her oral evidence) and stated that this should have happened before Shing took Mother away from the Shanghai Street Flat in December 2011.  Pang also changed his evidence in his statement of 3 November 2022 that Shing’s demands and threat were made not long after Father’s decision to open the account, which is different from his first statement that the demands and threat were made after the account was opened[71].

(4) In accepting Ling’s evidence in this regard, the judge took into account irrelevant matters and failed to take into account relevant matters.  He misunderstood Shing’s evidence that the “passbook incident” (during which Father threw the passbook of an account in the joint names of Mother and Father onto a table at the Shanghai Street Flat in a heated argument with Shing) took place in late 2016 instead of late 2011[72]. Shing referred to 2016 as the time he underwent shoulder surgery[73]. Besides, Shing’s knowledge of the joint names account is irrelevant to the question whether Ling was telling the truth about how she had informed Shing about the $2M Account[74]. The judge failed to take into account that the plaintiffs’ evidence regarding the circumstances leading to the opening of the $2M Account is unsatisfactory (the lies mentioned in (3) above), which should have a bearing on the veracity of the Woosung Street incident as they relate to the same thing[75].

(5) The judge should have rejected Pang’s evidence regarding the demands and threat, which is not supported by contemporaneous documents.  As Pang had mixed up the time of the opening of the $2M Account, there should be a “lurking doubt” on his evidence about when the demands and threat were made.  The judge did not find specifically when the demands and threat were made[76].  It is irrational for the judge to accept Pang’s explanation to his odd response (that he reacted to the demands and threat as if the account had already been opened[77])[78]. He failed to take into account the possible motive of Pang in advancing his own interest[79]. He failed to attach weight to his general finding that Pang is an incredible and unreliable witness generally[80] [81].

(6) The judge erred in failing to attach weight to the finding that Shing had treated Pang well all along[82] and the undisputed evidence that Shing is a “wealthy philanthropist who has made a lot of donations to different organisations” and a filial son to his parents[83].  Whether Shing is greedy or not must be relevant to determine this issue[84].  The alleged threats and demand of Shing were out of character, and the fact remains that Shing did not disown Pang as his brother[85].  There is no basis to find that Shing would make a threat to Pang as a result of the latter’s refusal to succumb to Shing’s demands.  The 2012 Audio Recordings contained merely the comments of Father and the plaintiffs’ camp that Shing had other requests for possession and control of his parents’ assets[86] and do not provide support for the finding.

63.We are not persuaded that the defendants have met the high threshold for the appeal court to overturn the findings of fact that Shing did make the demands and threat and that the Representations were false.

64.The judge gave his analysis and reasoning on this issue at §§146 to 163 of the Judgment.  Most of the points that are material to the defendants’ case and perceived by them as favourable have been raised before the judge, who decided to take a different view or attach little or no weight to them.  Examples are the matters complained of in (2), (3), (4), (5) and (6) above.  They were not overlooked by the judge, who is entitled to accept or reject submissions on the evidence according to the insight he gained as the contest unfolded.  That other judges might be persuaded to reach a different view is beside the point.  These are not palpable errors that would warrant appellate intervention.

65.The judge is entitled to find on the evidence why Shing wanted to have control of the fund set aside by Father for Mother’s maintenance.  Shing and Fan had claimed reimbursement in 2012 even for petty sums such as parking fees[87]. Shing would want direct control of the funds to avoid the necessity of seeking Pang’s approval for reimbursement.  Besides, as the elder brother and boss, it might appear odd from Shing’s perspective to have to seek Pang’s approval regularly[88]. Pang had asked questions when reimbursements were sought and Shing found this rather troublesome, although he accepted that it was not wrong for Pang to raise questions[89]. In light of the above, the judge did not think it material to consider whether or not Shing was greedy[90]. He is entitled not to attach weight to the matters urged upon him that Shing is a wealthy philanthropist and filial son.  Given his finding that it was more likely than not that Shing had made the demands for control over the HK$2 million, this led him to find it is also inherently more probable that Shing made the Threat Representation when Pang did not succumb to the demands[91].  The judge had addressed the contention it was out of character[92] for Shing to threaten to disown Pang as his brother given that he had treated Pang well all along and did not think it would affect his view[93].  We see nothing to criticise about the judge’s reasoning. 

66.We do not agree with Mr Chan that in resolving the conflicting evidence, the judge decided the dispute solely on inherent probability instead of taking a holistic view of the evidence.  This is not a fair and proper reading of the Judgment.  We have no reason to think that the judge had not applied the relevant principles on assessing the credibility of witnesses, which he set out in full in §29 of the Judgment.  He also mentioned specifically in §60 that even though he found most of the witnesses on both sides incredible and unreliable generally, that does not mean he should reject their evidence entirely, as much would depend on the circumstances in relation to a particular issue and he would approach their evidence with caution before accepting any part of it.  That was what he set out to do in the subsequent parts of the Judgment.  The fact that he attached greater importance to inherent probability in assessing credibility, given the generally unsatisfactory nature of the evidence of the Yip family members, does not mean that he had failed to have regard to all relevant circumstances.  The defendants’ complaint in this regard is unfounded.

67.The judge was alive to the inconsistency in the evidence of the plaintiffs’ witnesses of the time when the $2M Account was opened[94]. In their first witness statements, the plaintiffs’ witnesses apparently thought that the account was opened much earlier, until they were shown to be wrong by the specific discovery obtained by the defendants’ solicitors from the bank.  The judge did not think that should affect his conclusion as to when the demands and threat were made.  He regarded the error as innocuous, it was just Pang having mixed up the time when the account was decided to be opened, which was probably by mid-2011, when the family decided that Mother should be sent to a care home and Father intended to set aside HK$2 million for her maintenance.  He accepted Pang’s explanation that on one occasion when Shing made the demand, Pang responded as if the account had already been opened.  These findings are open to the judge and fully supported by his reasons.

68.As for the finding that Shing did have knowledge of the $2M Account because of the Woosung Street encounter with Ling, the judge accepted Ling’s evidence and rejected Shing’s denial of knowledge.  Shing claimed that he only knew there was a joint name account from which money would be withdrawn to pay Mother’s expenses and he had this knowledge when Father threw a bank passbook onto a table during a heated argument in November 2011 and he noticed that the bank balance was around HK$2.2 million[95].  Shing made a Freudian slip under cross-examination, indicating that the “passbook incident” happened shortly after his shoulder surgery in late 2016[96], not in late 2011 as he had claimed.  The judge did not misunderstand his evidence.  The judge reasoned that if that was the case, the “passbook incident” could not have been Shing’s source of knowledge of any bank account as claimed[97]. There are cogent reasons for not accepting Shing’s evidence in this regard.  The judge has seriously considered whether Ling’s evidence should be accepted, given his previous comments on her credibility generally and despite the defendants’ various attacks on her evidence on the Woosung Street encounter[98]. There is no basis to interfere with his assessment.

69.For all the above reasons, we uphold the finding that the defendants failed to discharge the burden of proving that the Representations were false.  It follows that we reject the contention Pang knew that the Representations were false[99]. This is sufficient to dismiss the appeal.

Whether the Representations were about Shing’s character[100]

70.We will deal with this succinctly and explain why we do not agree with the judge.

71.The judge took the view that once Shing made the demands that he be added as a signatory and the HK$2 million in the account be handed over to him, failing which he would no longer treat Pang as a brother, it was incumbent on Pang to convey these messages to Father whether Shing’s demands should be acceded to.  The nature of the Representations was to relay the demands to Father and seek his instructions.  Hence, the judge did not think the Representations were about Shing’s character[101].

72.We think the judge has taken an unduly restricted view.  The substance of the Representations was that Shing wanted the money set aside for Mother’s maintenance be handed over to him and threatened to disown his brother if his demands were not met.  The purport of the Representations plainly speaks of Shing’s character.

Whether Pang made the Representations with the specific purpose of inducing Father to alter his testamentary dispositions

73.The defendants’ case is that Father must have actually told or implied to Pang that he was going to make a will in Pang’s favour in early January 2012.  Pang knew what Father had in mind and made the Representations in a “very narrow window of time” between shortly after 11 February 2012 (when the $2M Account was opened) and shortly before 17 February 2012 (when Father telephoned Lee to make an appointment to make a will)[102].

74.The judge rejected the defendants’ case for the reasons in §171 of the Judgment.  The judge had found earlier that Shing had made the demands before February 2012 or even in 2011.  He declined to infer that Pang knew in January 2012 that Father was going to make a will.  If Father had indeed told or implied to Pang that he was to make a will in Pang’s favour, there was no need for Pang to say anything to induce him to alter his testamentary dispositions.  The Representations were made to seek Father’s instructions whether Shing’s demands should be acceded to.  The fact that Father had mentioned that he intended to provide capital for Pang to start his own business and had made no inter vivos provision as yet did not indicate that he was to make a will in Pang’s favour, as Father was still quite healthy at the time.  It was far-fetched to suggest the reason why Pang was so cold to Yuen, Wai and Mee when Father and Pang went to Canada in January 2012 had anything to do with Father’s intention to make a will.

75.Mr Chan advanced these arguments to challenge the above finding:

(1) The judge wrongly assumed that when Father told or implied to Pang he was going to make a will in Pang’s favour, Pang would understand that to mean the entire estate would be left to him.  There is no finding and no evidence on what was actually said or implied by Father.  There is no fallacy in the defendants’ case that Pang might find it necessary to make the Representations to induce Father to alter his testamentary dispositions[103].

(2) The judge was wrong to focus on when Shing made the demands to Pang instead of when Pang made the Representations to Father[104].

(3) The judge should have inferred that Pang knew Father was going to make a will when he made the Representations to Father, as it was inherently likely this was done in the “very narrow window of time”[105].  He failed to take into account Pang’s evidence that Father had indicated to him in late 2011 that Father was to assist him financially in starting a business[106], that Ching and Ling also mentioned Father had said in February 2012 he intended to make some financial arrangement to assist Pang[107], that Pang had accompanied Father to Canada in January 2012 to sell his house, and there was a very close relationship between them.

(4) The making of the February 2012 Will could be rightly regarded as the financial arrangement intended by Father to assist Pang, rather than making an inter vivos provision to him.  This was probably because a valuable part of Father’s assets was the shares in the Stock Exchange of Hong Kong Ltd and Father had indicated at the family gathering in March 2012 that nothing should be done with those shares[108]. It is not improbable for Father to intend to provide for Pang only after Father’s demise[109].

(5) The judge erred in ruling that the Representations were made for the purpose of seeking Father’s instructions to the demands[110].

(6) The judge failed to take into account Pang’s admission that when he closed the $2M Account in December 2017, he transferred the closing balance of HK$371,403.71 to his own bank account[111], which amounted to a misappropriation of trust money.  It is more probable that Pang coveted Father’s money and had the motive to induce Father to alter his testamentary dispositions[112].

76.We are satisfied that the above contentions, singly or cumulatively, are wholly insufficient to meet the high threshold for the appeal court to interfere with a finding of fact of the primary judge.

77.The judge had considered the timeline suggested by the defendants and rejected the hypothesis that the Representations were made in the “very narrow window of time”.  No palpable error of significance to undermine the judge’s conclusion was identified.  The speculative theories advanced by Mr Chan do not assist his case.  We see no basis to interfere with his findings that Pang did not know Father was going to make a will at all material times, whether at the time of Shing’s demands or in January 2012.  Mr Chang made a further valid point that after the February 2012 Will, Pang’s conversations with Father could not have been for the specific purpose of inducing Father to alter his testamentary dispositions, as Pang benefited most from this will and would not have any motive to induce Father to replace it with the March 2012 Will.

78.The judge is plainly right to hold that the defendants failed to discharge the burden of proving the specific purpose required for fraudulent calumny.

Whether the March 2012 Will was induced by fraudulent calumny

79.Strictly speaking, this does not arise if the challenger of the will fails to establish a false representation to the testator.  The judge considered this element nonetheless and held that there are other possible reasons why Father decided to disinherit Shing[113]. He took into account Father’s personality, the dynamics of Father’s relationship with Shing, that Father must have felt his dignity affronted by their arguments and Shing’s criticism and reprimand of him in late 2011 for having mistreated Mother.  He had regard to the 2012 Audio Recordings, in which Father’s unhappiness and frustration of Mother being taking away by Shing on 16 December 2011 was evident.  He did not accept Shing’s evidence that Father only had “a little complaint”[114] on Shing’s taking Mother away and found that Shing tried to tone down Father’s disagreement and strong reaction.

80.Mr Chan advanced these arguments to support his contention that the above finding was in error:

(1) He referred to the evidence of the medical experts that it is “quite natural (or simply put, reasonable) for a person (with or without any mental disorder or impairment) to believe in things said by those who are close or share similar beliefs with him”[115].

(2) In the 2012 Audio Recordings, Father showed his strong hatred towards Shing and regarded him as very greedy and unscrupulous and putting himself above Mother’s interests[116]. The inducement is very obvious judging from Father’s deep-rooted hatred of Shing in the recordings.  The Wills were induced by the Representations, the effect of which was that Shing coveted the HK$2 million set aside by Father for Mother’s maintenance[117]. Further, the judge did not give any or due weight to Pang’s evidence that he did not try to disabuse Father that Shing was not coveting the HK$2 million[118].

(3) The judge suggested a possible reason why Father wanted to disinherit Shing was his taking Mother away.  He failed to take into account Pang changed his evidence in that Pang initially suggested Father’s decision was because of his separation from Mother, but later Pang admitted in cross-examination this was not correct[119].

(4) Applying the law in St Clair v King at §§149 and 150, the defendants have discharged the requirement of proving causation or inducement.  Even if there were other reasons why Father might have been unhappy with Shing, the question is whether on the balance of probabilities the Representations did have an effect on Father’s disposition in the making of the will and hence the will did not represent the true testamentary wishes of Father had no Representations been made to him[120].

81.The challenge is against the finding there are other possible reasons why Father decided to disinherit Shing and the conclusion that the defendants failed to prove that the alleged calumny induced the change in testamentary disposition.  The defendants face the same difficulties as before in meeting the high threshold required for such a challenge.  The judge arrived at the conclusion on an evaluation of the possibilities and explanations, attaching such weight or no weight to the matters under consideration as he saw fit.  Unless he is shown to be plainly wrong, had misunderstood the evidence, or had disregarded material evidence, there is no basis for the appeal court to interfere with his weighing exercise.

82.The judge formed the view on his consideration of the entirety of the 2012 Audio Recordings (of which this court has only selected extracts) that Father hated Shing for a number of reasons other than the Representations, including Shing’s act of taking Mother away.  Mr Chang drew to our attention that Father also disapproved of Shing strongly and criticised him harshly for arranging Mother’s disability allowance to be wired to him directly[121], and was angry with Shing for seeking reimbursement of Mother’s expenses from Pang[122]. As for Pang’s change of evidence resiling from his suggestion that Father disinherited Shing because of the separation from Mother, we do not think this is sufficient to undermine the judge’s conclusion, which, as mentioned earlier, is based on his assessment of the relationship between Father and Shing, supported by the contemporaneous 2012 Audio Recordings that the judge had considered in full, and guided by the general principle that evidence to upset a duly executed will should be approached with caution.

83.We are not persuaded there is any valid ground to interfere with the judge’s finding and conclusion on this issue.

Conclusion

84.For the above reasons, we uphold the judge’s ruling that the claim of fraudulent calumny is not established.  The appeal is dismissed with costs to the plaintiffs.

Mr Jonathan Chang SC and Ms Esther Mak, instructed by Sit, Fung, Kwong & Shum, for the Plaintiff (by Original Action) and the Defendants (by Counterclaim) (Respondents)

Mr Kenneth C L Chan, Mr Herbert Leung and Mr Patrick Chiu, instructed by Kelvin Cheung & Co, for the Defendants (by Original Action) and the Plaintiffs (by Counterclaim) (Appellants)