Tse Mui v. Liu Suet Fun

HCMP000582/1979

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

Coram: Liu, J. in Court.

Date of Judgment: 3rd February, 1981

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

JUDGMENT

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

1. The plaintiff and the defendant are both concubines of Mr. HO Sum, deceased who died on the 30th September 1977. During the plaintiff's cohabitation with the deceased, a daughter was born on the 12th February 1957.

2. In 1965, the deceased in formed the plaintiff that he was in financial difficulty and asked the plaintiff to fend for herself. There was no reason for the plaintiff to entertain any doubt as to the deceased's position, and in fact she told the court that she believed it. Thereupon she took up employment.

3. When relationship was uneventful, the deceased was by no means generous. Only a sum of $5 to $10 a month for food was being given by the deceased to the plaintiff. The last payment from the deceased came some 16 years ago when her daughter was about 7. She is now, I am told, 23.

4. According to the plaintiff, after 1965 she returned occasionally to the home of the deceased for half a day in a week whenever she had leave as a domestic help. She told the court that after two more years, i.e. in or about 1967 only the daughter was sent home on occasions of Chinese festivities. The net result must therefore be that for about 14 years before the death of the deceased the plaintiff had received no maintenance or support and that for about 12 years before his death there was hardly any relationship on a personal level between the deceased and the plaintiff save for the occasions on which the daughter was sent to his home.

5. At the date of the deceased's death, he was the registered owner of a flat, subject-matter in these proceedings. The flat is 410 square feet in area. Current market rental has been assessed to be in the region of $1,900 per month, and in to-day's active property market its current market value with vacant possession is, I am told, $260,000.

6. The plaintiff comes within the definition of a dependant. She is entitled to apply under the Ordinance. The question is: whether in all the circumstances her application ought to be acceded to. What falls to be decided can shortly be put thus: "Was the nil provision made by the deceased in his last will dated 8th February 1973 reasonable or unreasonable having regard to the circumstances at the time of his death?".

7. As between the deceased and the plaintiff, there was a long separation. For at least about 12 years, there was hardly any relationship which may properly be described as close or harmonious. As a matter of fact, there was scarcely any contact at all. The plaintiff had not been maintained by the deceased for some 14 years before he died; nor did the plaintiff require or sought any maintenance from him. They had drifted apart.

8. There have been some disputes as to whether the flat in question belonged either wholly or in part to the deceased beneficially. Even on the assumption that the deceased owned the whole flat at the time of his death, it was but a small estate of a single domestic tenement which was and still is being occupied by members of his family. The deceased had no other known assets, and in fact none has been alleged.

9. Having regard to all these matters, the nil provision made in the will of the deceased cannot possibly be said to be unreasonable. In the circumstances, even on the assumption that the flat wholly belonged to the deceased at the time of his death, it was only to be expected in this case that the deceased would make no provision for the plaintiff in his said will. The deceased would not have been sensible otherwise.

10. It was maintained by the defendant that the purchase price of the flat was to the extent of $140,000 on mortgage and as to the balance from the defendant and her sons and daughter. Much was sought to be made on the $14,000 now said to have been initially borrowed from the younger sister of the deceased. Apart from such $14,000, as to the rest of the purchase price there was hardly any direct evidence to challenge the assertions of the defendant as corroborated by the viva voce evidence of her elder son that it came from herself, her daughter and her three sons.

11. As to the allegation that the $14,000 came from a friend, now said to have come from a younger sister, but was subsequently superseded by a bank mortgage, there was considerable cross-examination on that subject. It was further alleged that the deceased was not a man with regular employment and was unproductive for a long spell before his death. But the deceased's friend, Mr. Chan, was called and he testified to certain activities of the deceased at least during part of his life. I am not prepared to accept the deceased as a man not gainfully engaged, legally or otherwise, but the crux of the matter is not whether he had any income but whether he did contribute. The deceased's sister was an unimpressive witness. The explanation for the flat becoming vested in the deceased as registered owner seemed strained. However, the defendant and her son come forward and repeated their version on the sanction of an oath. There is no direct evidence to the contrary. On that latter issue, I feel constrained to give some credence to the evidence of the defendant and that of her son's. On the balance of probabilities, I would be prepared to find that the defendant has just succeeded in establishing the contributions made as alleged, but this case does not call for such a determination.

12. In the circumstances, it remains for me to say that the plaintiff's application must be dismissed with costs to the defendant, such costs to be taxed in accordance with Legal Aid Regulations. I also order the plaintiff's own costs to be taxed in accordance with Legal Aid (Scale of Fees) Regulations.

Representation:

Mr. K.F. Wu instructed by Michael Jenkins & Au assigned by Director of Legal Aid for Plaintiff.

Mr. Bryan Chau instructed by Peter C. Wong & Co. assigned by Director of Legal Aid for Defendant.