Tsui Cheung Hing v. Tsui Hing Lan

HCA 8483/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 8483 OF 1997

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Coram : Hon Yam J in Court

Dates of Trial : 18-20 January 1999

Date of Judgment : 20 January 1999

Date of Reasons for Judgment : 29 January 1999

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REASONS FOR JUDGMENT

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1. The Plaintiff in this action is trying to set aside the Deed of Gift he had executed on 18 July 1992 in favour of the Defendant. This was in respect of two lots of properties ("the Properties") in Tai Wo Tsun, Yuen Long.

2. The Defendant is the niece of the Plaintiff. The Plaintiff inherited the Properties in 1951 from his father, being the eldest son of the family. The Defendant's father Tsui Ping Fat is the Plaintiff's younger brother.

3. The Plaintiff alleged that the Defendant fraudulently misrepresented to him that the document he was to sign at a solicitors' office was only for the purpose of conducting a search in order to find out whether the Defendant's father or anyone else had surreptitiously obtained the Properties.

4. The Defendant's case is that it was the Plaintiff's own initiative to make the gift to her. It was because on three respective occasions in or about the end of 1991and early 1992, the Plaintiff told her to the effect that :-

(a) He was old.

(b) His son Kwai Choi was not filial in that he had gone to the United Kingdom and had not contacted him for several ten years.

(c) Kwai Choi did not come back to Hong Kong to look after him.

(d) When Kwai Choi came back in 1986 and 1988, Kwai Choi only asked him to convey the Properties to him (Kwai Choi).

(e) He therefore expelled Kwai Choi and ordered Kwai Choi not to come back.

(f) His relationship with her father had not been good because the Properties could not be changed into the name of her father.

(g) Since her father had shouldered the responsibility of ancestor's burial, her father should be the one to succeed to the Properties.

(h) The Properties were conveyed to him since he was the eldest son.

(i) Since she had been nice and caring to him, he would transfer the Properties to her.

(j) In so doing, the Properties would be given back to them (meaning Defendant and her father).

(k) She should take the title deeds to solicitors for the purpose of conveying the Properties to her.

(l) Her father should be asked to come along so that her father knew that he would have the Properties back.

5. After hearing the evidence from all the witnesses from both sides, I would accept the Defendant's version rather than the Plaintiff's for the following reasons :-

(1) The Plaintiff said he knew that the Properties could not be taken away from him without his signature. If as he alleged that the Defendant told him the document to be signed was for the purpose of conducting search on the Properties to see if Tsui Ping Fat had changed the ownership, why should he do so knowing full well that no one could take away his Properties without his signature. There was simply no need to conduct a check on the Properties at all.

(2) Mr Tsoi Kin Wing, the solicitors' clerk, said he had clearly interpreted the content of the Deed to the Plaintiff in punti and the Plaintiff replied in punti that he understood and nodded his head. Mr Tsoi and his firm was unknown to the Defendant. She just chose Mr Tsoi's solicitors' firm, M/s Raymond Chan & Co., by picking it up from a commercial building in Yuen Long. If the Defendant misrepresented to the Plaintiff that what he was signing was only a document for the purpose of conducting a land search, it could hardly be done without the assistance of Mr Tsoi. In any event, there was no reason why Mr Tsoi would turn a blind eye to the Defendant's misrepresentation.

(3) It is common ground that the Plaintiff was not in good talking terms with the Defendant's father. There was no reason for the Defendant to invite her father to go along to the solicitors' office. If it was a scheme of fraudulent misrepresentation, it would only jeopardize such a scheme by inviting her father to go along. The presence of Tsui Ping Fat did not arouse the Plaintiff's suspicion at all. The only reason why she had invited her father to come along was because the Plaintiff had asked her to do so.

(4) The Plaintiff admittedly knew that the Defendant's father Tsui Ping Fat was at the solicitors' office. It had never occurred to the Plaintiff that Tsui Ping Fat would try to deprive him of the Properties. If the whole purpose of going to the solicitors, as alleged by the Plaintiff, was to find out whether Tsui Ping Fat had obtained his Properties, there was simply no reason why Tsui Ping Fat should be there when the Plaintiff was signing a document only for the purpose of conducting the search to see whether Tsui Ping Fat had deprived the Plaintiff of his Properties.

(5) It is also common ground that after the visit to the solicitors' office, everyone, including the Plaintiff and Tsui Ping Fat, went along to have tea together after they have not talked to each other for over 30 years. This is only consistent with the Defendant's version that the Properties were there and then given back to the Defendant and her father, that is, "their side of the family". It is simply illogical that the two of them suddenly sat the same table and had tea together when moments ago the Plaintiff was trying to find out whether the other one had wronged him.

(6) There is no reason why the Defendant should have told the Plaintiff that he was about to immigrate to the United States of America in June 1997 for good. The Defendant did so simply because she must tell the Plaintiff that she could not go on looking after him by buying food for him from time to time. I accept the Defendant's version that it was because of her cessation to attend to the Plaintiff that the Plaintiff was very upset by her departure. So much so the Plaintiff changed his mind and wanted to give the Properties to another person instead of the Defendant.

(7) The Defendant said the Plaintiff could speak Cantonese with Hakka accent and the Plaintiff could understand Cantonese. This is also supported by three other independent witnesses that the Plaintiff can speak and understand Cantonese, namely :-

(a) Mr Tsoi Kin Wing, the aforesaid solicitors' clerk;

(b) SDPC 1762, the one who took a statement from the Plaintiff; and

(c) DPC 5513, the second police officer who took a supplementary statement from the Plaintiff.

All the aforesaid three persons could not speak Hakka at all.

(8) On 9 February 1998, the Plaintiff made a will in favour of Tsui Chi Kin. It was clearly stated therein that the solicitor, one Mr Leung Chun Kuen, interpreted and read over the will to the Plaintiff in Cantonese and the Plaintiff understood the same. Tsui Chi Kin said he attended the aforesaid execution and the solicitor communicated with the Plaintiff, being the testator, through Tsui Chi Kin himself in Hakka. However, Mr Leung did not state that to be the case in his affirmation nor in the will itself. If Mr Leung could speak Hakka, he would use Hakka to explain to the Plaintiff and stated the same in the interpretation clause. If he could not, it would be very dangerous and unprofessional for him to allow the sole beneficiary to explain the will to the testator.

(9) The Plaintiff admitted that he had been listening to the local radio in Cantonese for ten odd years and he could understand the news broadcast in Cantonese. The Plaintiff was born in Hong Kong and had worked in Hong Kong before he became blind in 1967.

6. Accordingly, it is clear to my mind that from the circumstances of the present case, the Plaintiff clearly knew the nature and the effect of the Deed and he gave the Properties to the Defendant out of his own free will. The Defendant had not misled the Plaintiff as alleged by him at all. The Plaintiff's case has to be dismissed with costs to the Defendant.

Representation:

Mr Anthony P.W. Cheung, inst'd by M/s Tommy Lai & Co., for the Plaintiff

Mr Francis Yip, inst'd by M/s Johnnie Yam, Jacky Lee & Co., for the Defendant

Remarks: