Wong Oi King and Another v. Lai Lok Yee Catherine and Another
Read the full judgment text of HCAP 1/2000 on BabelCite. This High Court CFI judgment was delivered on 16 August 2002.
1. This is a probate action. The 1st Plaintiff is the lawful widow of the late Mr Lai Ho Kai (the "Deceased") who passed away on 29 September 1996. He was a businessman running a rather well-known restaurant business together with another member of his family. The 2nd Plaintiff is the son of the 1st Plaintiff begotten under a previous marriage. The 1st and 2nd Defendants are the elder sister and eldest (surviving) brother of the Deceased respectively.
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HCAP000001/2000 HCAP 1/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PROBATE ACTION NO. 1 OF 2000 ____________
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____________ Coram: Deputy High Court Judge Andrew Cheung in Court Date of Hearing: 25-28 February, 1 & 6 March, 2-4 & 8 July 2002 Date of Handing Down Judgment: 16 August 2002 _______________ J U D G M E N T _______________ 1.This is a probate action. The 1st Plaintiff is the lawful widow of the late Mr Lai Ho Kai (the "Deceased") who passed away on 29 September 1996. He was a businessman running a rather well-known restaurant business together with another member of his family. The 2nd Plaintiff is the son of the 1st Plaintiff begotten under a previous marriage. The 1st and 2nd Defendants are the elder sister and eldest (surviving) brother of the Deceased respectively. Chinese document 2.The action concerns the validity of a document in Chinese as the last will and testament of the Deceased (the "Chinese document"). The Chinese document reads as follows:
3.The agreed English translation (with minor cosmetic amendments) is as follows:
Plaintiffs' case 4.The Plaintiffs' case is basically as follows. The 1st Plaintiff was and is a police detective. The 2nd Plaintiff was born on 18 April 1981. The 1st Plaintiff and her former husband divorced in June 1990. The 1st Plaintiff came to know the Deceased in late 1992 or early 1993, and they got married on 22 December 1993. Even before they got married, the 1st Plaintiff knew that the Deceased who was born in 1957 was not enjoying good health probably due to his heavy drinking problems. 5.According to the 1st Plaintiff, the Deceased enjoyed smoking and drinking. He was rather sociable, quite talkative and friendly, and enjoyed chatting with others. He was expressive and wrote a lot of notes and letters (even for non-business purpose). He was quite generous. He was of a rather open and outgoing character. He was careful sometimes. He highly respected the 2nd Defendant, his eldest (living) brother, but would feel the pressure whenever he was around. To him, the 2nd Defendant was a sort of father-figure, their parents having passed away whilst the Deceased was still young. The couple, together with the 2nd Plaintiff (whilst he was in Hong Kong), lived together with the 2nd Defendant in a house in Shatin. The Deceased told the 1st Plaintiff that he had not informed the 2nd Defendant (who was staying in Australia at the time) their marriage beforehand because he was afraid his elder brother might not like her, she being a divorcee with a teenage boy. 6.On the other hand, according to the 1st Plaintiff, the Deceased's relationship with the 1st Defendant, his only sister, had turned sour many years ago and there was no contact with her. The Deceased's relationship with his one other brother would also seem to be much more distant when compared with the 2nd Defendant so much so that the 1st Plaintiff had not even met him once during her marriage to the Deceased. 7.According to the 2nd Plaintiff, the Deceased was a gentleman, polite, caring, generous, well-educated, soft-spoken, of good table manners, and knew a bit about almost everything. He took care of everything and got everything under his control. He was a caring, devoted and considerate father, who planned for his future by sending him to boarding school in England. He arranged for a former classmate of his to be his guardian in England with whom he used to spend his shorter holidays. The 2nd Plaintiff said in evidence that initially the Deceased might have loved him because of his mother, but subsequently he liked and loved him as if he were his natural son, and on his part, he regarded the Deceased as though he were his natural father. 8.According to the 1st Plaintiff, the Deceased enjoyed chatting with her son, the 2nd Plaintiff, and in fact liked and loved him very much. He also had casual chats with her younger brother, Mr Wong Siu Wai ("Wong"), and his then girlfriend (subsequently his wife), Ms Xing Li Yu ("Xing"), quite often. In terms of closeness and importance to the Deceased, both Plaintiffs said that the Deceased would have ranked the 1st Plaintiff first, the 2nd Plaintiff second and (per the 1st Plaintiff) the 2nd Defendant third. The Deceased was sometimes worried about his own health and once planned to emigrate to the United Kingdom where he felt he could escape the pressure of living and working in Hong Kong. But he passed away before the plan could materialise. 9.After the marriage, through the efforts of the Deceased who had enjoyed boarding school as well as further education in the United Kingdom, the 2nd Plaintiff (who was then in his early teens) was sent to a boarding school in the United Kingdom for education. According to the evidence by the 1st and 2nd Plaintiffs, the Deceased was a caring stepfather to the 2nd Plaintiff. The two of them enjoyed a good relationship, and the Deceased was very much involved in the schooling, education, holidays, and daily activities of the 2nd Plaintiff whether in the United Kingdom or in Hong Kong during holidays. This is evidenced by the many letters written between the 2nd Plaintiff and the Deceased either alone or with the 1st Plaintiff jointly as parents. The Deceased called himself and the 2nd Plaintiff called him "father" or "daddy". According to the Plaintiffs' evidence, they liked each other and the affection was mutual. Presents and cash were sent on many occasions by the Deceased to the 2nd Plaintiff in the United Kingdom. The Deceased who according to the knowledge of the 1st Plaintiff used to earn about $70,000 per month from his family restaurant business was wholly responsible for financing the 2nd Plaintiff's education in the United Kingdom (apart from the government subsidy that came with the 1st Plaintiff's job). 10.As for the marital relationship between the 1st Plaintiff and the Deceased during their short marriage, it was apparently much affected by the Deceased's heavy drinking habit and the consequential odd sleeping and working hours. According to the evidence of the 1st Plaintiff, the Deceased used to consume half a bottle to a whole bottle of cognac every night, and he could not sleep without drinking. The 1st Plaintiff was understandably very concerned about the Deceased's health. But otherwise, the relationship would seem to have been reasonably good. 11.The 1st Plaintiff denied in cross-examination that her relationship with the Deceased was bad due to his various problems. She admitted that she had written an unsent letter to her son as well as other notes ventilating her frustrated feelings about the marriage. She denied that they evidenced the general situation of the marriage, and insisted that they only represented her feelings at the time of writing. She said there were many happy moments during their short marriage, and the general relationship was reasonably good, although there were of course good times and bad times, and the letter and notes were not representative of the general situation. 12.In 1996, there were three visits to The First People's Hospital of Fo Shan City in the Mainland for medical examination and checkup of the Deceased. They apparently took place in early and mid January and early February. On each occasion, the Deceased was accompanied by the 1st Plaintiff, her younger brother, Wong, and his then girlfriend, Xing. 13.It is the Plaintiffs' case that the Chinese document was made by the Deceased during the third visit to the hospital on 6 February 1996. According to the 1st Plaintiff, she was not present at the hospital at the time and in fact was not told about the making of the Chinese document afterwards by her husband, Wong or Xing, although the latter two signed the Chinese document as witnesses together with a duty doctor (Dr Wu Siu Wai) at the hospital. 14.According to the evidence given by Wong, soon after they arrived at the hospital on 6 February 1996, the Deceased felt unwell and lied on the table to take a rest. His condition improved after taking a pill. He then spoke with Xing and asked Xing to write out something for him. Xing borrowed paper and pen from the hospital doctors and wrote out something. Wong was smoking in the corridor outside and did not quite hear what went between the Deceased and Xing in relation to the writing. But after it was finished, the Deceased signed on the document and asked a doctor at the hospital as well as Xing and Wong to sign the document as witnesses. The Deceased told Wong that in the event of his death, the 2nd Plaintiff would have his "things" (apparently meaning his estate). Wong said Xing then said that was quite useless, but the Deceased simply ignored this. Wong said he did not realise that the Deceased was making a will and he was being asked to sign as a witness to a will. 15.Wong said he only had a brief look at the document before he signed and thought that it related to what the Deceased had told him. He could not recall the contents of the document itself except that it contained some ID card numbers. He did not know how the Deceased or Xing knew the ID card number of the 2nd Plaintiff that was put down on the document, but speculated that as the Deceased was of the habit of carrying with him pieces of paper of notes or information, he might have the ID card number of the 2nd Plaintiff with him at the time. 16.Wong said after everybody had signed, the Deceased folded the document and put it into his shirt pocket. He did not see the Deceased (or anyone else) put the document into any envelope. Wong said the Deceased then asked him and Xing not to mention the making of the document to the 1st Plaintiff. In his witness statement, Wong had said that this was because the Deceased did not want to cause undue concern to the 1st Plaintiff. But in the witness box, Wong said in fact the Deceased never explained why he did not want the 1st Plaintiff to know about the making of the document. In any event, he confirmed that the 1st Plaintiff was not present at the time as she had to deal with some hotel booking cancellation, and he did not tell the 1st Plaintiff or the 2nd Plaintiff about it (before the death of the Deceased). Thereafter, Wong said he had never seen the document again. The Deceased was apparently all right afterwards and Wong thought nothing of the matter any further. 17.The Deceased passed away at home on 29 September 1996 apparently as a result of a stroke. At first, the 1st Plaintiff did not realise that the Chinese document had been made constituting potentially the last will of the Deceased. According to 1st Plaintiff, during the discussion about the funeral service, and when the question of whether the Deceased left behind a son to perform the traditional funeral ritual of "擔花買水" for the Deceased, Wong first mentioned to her that the Deceased had signed a document recognising the 2nd Plaintiff as his son. She said this was related to the 2nd Defendant who however objected to the 2nd Plaintiff performing the ritual for the Deceased. Wong confirmed in his evidence that there were arguments during the funeral as to whether the 2nd Plaintiff should carry out the ritual as the son of the Deceased, and he had mentioned to the 1st Plaintiff about what the Deceased had said when the Chinese document was made, i.e. that the 2nd Plaintiff was to have the Deceased's things after his death. He mentioned to her about the existence of the Chinese document but not the detailed contents which he himself could not remember. He said in cross-examination that he had told her that in the document the Deceased left something to the 2nd Plaintiff in the event of his death. 18.The 2nd Plaintiff also confirmed the existence of arguments between him, his mother and Wong on the one side, and the 2nd Defendant on the other, relating to his status as the "son" of the Deceased to carry out the traditional funeral ritual and worship. He said the 2nd Defendant eventually backed down. He said on that occasion Wong had mentioned something like the Deceased loved him very much. And he said in evidence that subsequently after the funeral when Wong and Xing stayed at the Shatin residence to keep the 1st Plaintiff company, Wong said on an occasion that the Deceased had recognized him as his son; but his recollection at trial was very vague. He could not remember any document ever being mentioned by anybody. 19.The 1st Plaintiff said a month or so after the funeral service, she asked her younger brother who was staying with her to keep her company about the document again and according to her recollection, her younger brother confirmed to her that the Deceased had signed a document to recognise her son as his. Wong also said in evidence that apart from the funeral occasion, there were one or two other occasions in which he mentioned the Chinese document to the 1st Plaintiff but he could no longer recall the details. According to his understanding, the 1st Plaintiff had tried to locate the document but failed. 20.Anyhow, the 1st Plaintiff said in evidence that she consulted a solicitor recommended by the 2nd Defendant in about November 1996 about obtaining representation of the estate of the Deceased. She mentioned about the existence of the document in which the Deceased recognised the 2nd Plaintiff as his son to the solicitor. She said she was advised by the solicitor that such an informal recognition was ineffective in law because a formal adoption was required. 21.The 1st Plaintiff said she switched to her present solicitors in about December 1996. She also mentioned the existence of the document to the new solicitor in charge (a Mr William Cheung) who gave her similar advice. She said her new solicitor added that he could only give her a definite advice after having sight of the document. She was thus advised to look for the document as well as any will of the Deceased. She said she therefore made an effort to find the Chinese document or any will at home but could not find it. Her solicitors were also unsuccessful in locating any will after circulating through the Law Society an inquiry among solicitors in Hong Kong for any will of the Deceased. She said although there was a safe in her son's room at home used by his son as well as her late husband, it did not occur to her that her late husband could have put his will (if any) in his stepson's safe at home. After all, her late husband used to put his important things in the safe in the restaurant office. 22.The 1st Plaintiff said in evidence that some months later, she learned from Xing that the Chinese document which she had not been able to locate thus far mentioned about the 2nd Plaintiff inheriting the property of the Deceased as his natural son. Before that, the 1st Plaintiff did not realise that the Chinese document could be of much importance, for she had been advised by two solicitors already that the informal recognition by the Deceased of the 2nd Plaintiff as his son in the Chinese document was of no legal effect. 23.In evidence, the 1st Plaintiff said that it was only in late April or early May 1997 when she was asked by the 2nd Defendant to move out of the former matrimonial home that she came to discover the Chinese document. According to Wong, the relationship between the Plaintiffs and Wong on one hand and the 2nd Defendant on the other had become strained after the death of the Deceased. Letters written from Xing in the United Kingdom where she was working at the time in late 1996 and early 1997 to Wong mentioned about Wong needing to "protect" the Plaintiffs. 24.In any event, the 1st Plaintiff said in evidence that as she was asked to move out of the former matrimonial home, she wanted to retrieve the things placed by her son inside the safe in his room for him, as she did not want to carry the safe with her to her police quarters. So she obtained the key to the safe by post from the 2nd Plaintiff who was then studying in the United Kingdom and found an envelope on which the lock combination was written pursuant to what the 2nd Plaintiff had told her, she having failed to locate the other key to the safe kept by the Deceased. She found inside the safe a sealed envelope with Chinese characters handwritten on it apparently by the Deceased meaning "Important document: Please do not misplace". She suspected the document to be of importance and therefore immediately telephoned her solicitor who advised her either to open it to find out what it contained or bring it over to him. She chose the latter course. And in her presence, her solicitor (Mr William Cheung) opened the envelope and inside the Chinese document was found. 25.It may be added that according to the 1st Plaintiff, inside this safe used both by the 2nd Plaintiff and the Deceased, she found some collectors items such as banknotes and first-day covers, teen idol cards, medals, coins etc. She said it had never occurred to her before that her late husband would have put such an important document in a safe used jointly by the two. Had it not been the case that she was asked by the 2nd Defendant to move out of the former matrimonial home in 1997, and she was trying to retrieve the things from the safe for his son (as the safe which belonged to his son was going to be left behind), she would not have thought of opening the safe. 26.The 2nd Plaintiff's account about the discovery of the Chinese document inside the safe is by and large the same. He said that in the summer prior to the death of the Deceased when he was staying in Hong Kong for his holidays, he noticed the presence of the envelope with the Chinese characters written on it in the handwriting of the Deceased inside the safe. Because of what was written on it, he dared not touch the envelope and knew nothing about its contents. In the box, the 2nd Plaintiff could not recall or tell whether the envelope was sealed or not, although in his witness statement made in February 2002 he had said that the envelope was sealed. The 2nd Plaintiff also gave evidence on how he told his mother the combination number of the safe over the telephone. He said he had the number with him. He also said he had also written the number on an envelope kept at home, but he had forgotten about it and did not refer his mother to the envelope for the combination number. He said over the telephone he told her mother about the envelope inside the safe but he did not realize that it would contain such an important document. He confirmed that he posted the key to the safe from England to Hong Kong. He said another key was kept by the Deceased. He did not know whether his mother had access to the safe by herself or not, but did not think that was likely as she did not know the combination number. 27.It is convenient here to summarise what Mr William Cheung, the solicitor, said in evidence. He said he was informally approached by the 1st Plaintiff in around December 1996 through the introduction of a common friend in relation to obtaining probate. In the informal meetings, the 1st Plaintiff expressed concern about the independence of the family lawyer of her late husband given that he was very close to the 2nd Defendant, but was advised by Mr Cheung that as a close family lawyer he would be in the best position to take care of the probate matter and that there was no reason to doubt the integrity of the family lawyer. Nonetheless, the 1st Plaintiff eventually came back to him and formally instructed him to obtain probate for her. 28.According to Mr Cheung, the 1st Plaintiff told her that she was not aware of any will of the Deceased. The 1st Plaintiff also mentioned to him that whilst the Deceased was still alive, he had wanted to adopt formally the 2nd Plaintiff as his son but was advised by the family lawyer that the formalities were complicated as the 2nd Plaintiff was still an infant and it would be better to wait until he reached majority. Mr Cheung could also remember that the 1st Plaintiff had told him that the Deceased loved the 2nd Plaintiff very much and she had many letters written between the two to prove that. Mr Cheung said he could remember advising the 1st Plaintiff that as the 2nd Plaintiff was not the lawful son of the Deceased, he would not be able to share in the (intestate) estate of the Deceased, which would have to be distributed amongst the 1st Plaintiff and the Deceased's siblings. Mr Cheung could not remember the 1st Plaintiff ever mentioning to him the existence of any specific document made by the Deceased in which the Deceased recognised the 2nd Plaintiff as his own son. He said until he opened the envelope in question and found the Chinese document inside in May 1997, he had no idea that such a document existed. He could not remember the 1st Plaintiff ever telling him before that such a document was in existence. He said as he was told by the 1st Plaintiff that she was not aware of any will of the Deceased, he therefore as a matter of routine caused a notice to be circulated through the Law Society amongst the solicitors in Hong Kong searching for any will of the Deceased. He had also advised the 1st Plaintiff to look for any will of the Deceased amongst his personal belongings. But he had not specified the place, such as the safe of the Deceased, or where she should look for the will. 29.As regards the discovery of the Chinese document in May 1997, Mr Cheung's account basically agreed with the account given by the 1st Plaintiff in evidence, except that according to him, he did not tell the 1st Plaintiff over the telephone that it was up to her to decide whether to open the envelope herself or to bring the envelope over to his office for him to open. He said in evidence that when he was told of the discovery of the envelope with the characters written on it by the 1st Plaintiff over the telephone, he suspected that the envelope might contain a will, and in order to avoid any possible argument later, he asked the 1st Plaintiff to bring over the envelope to his office for him to open, which he did in the presence of his assistant solicitor who was careful enough to make an attendance note of the meeting. 30.It is the Plaintiffs' case that the Chinese document constitutes the last will of the Deceased under which the 2nd Plaintiff is named as the sole beneficiary of the estate of the Deceased. In the light of the opposition mounted by the Defendants to the Chinese document, the Plaintiffs ask the Court to decree probate of the Chinese document in solemn form of law, and order administration of the estate with the Chinese document annexed as the will of the Deceased (given that the Chinese document does not name an executor). Alternatively, the Plaintiffs ask the Court to pronounce that the Plaintiffs are interested in and entitled to share in the estate of the Deceased as his widow and stepson to the exclusion of the Defendants and his one other brother, Mr Lai Ho Bun Anthony, who has not been and has never sought to be joined as a party in this action. Xing and Dr Wu 31.There were three purported attesting witnesses to the Chinese document, namely, Wong, his wife (Xing) and Dr Wu of the hospital in Fo Shan City in the Mainland. Wong gave evidence but Xing and Dr Wu did not. 32.As mentioned above, at the material time, Xing was Wong's girlfriend and subsequently became his wife. The evidence is not entirely clear but apparently the couple have since divorced. In any event, according to the evidence, Xing has since late 1996 gone to the United Kingdom alone to work there; and according to the correspondence between her solicitors in the United Kingdom and those representing the 1st Plaintiff, apparently because of "apparent irregularities" in her passport application, Xing was (at the time of the correspondence) considered to be an illegal entrant in the United Kingdom, her case had been referred to the Home Office and a decision was still pending. According to her solicitors, if she were to leave the UK without first having regularized her status and been given "exceptional leave to remain in the UK", she would have virtually no chance of returning to the UK. In those circumstances, Xing refused to return to Hong Kong to give evidence on the making of the Chinese document. 33.As Xing was beyond the seas at the time of trial, her signed witness statement was admitted as evidence at trial. Her witness statement basically confirms the story about how the Chinese document was made by the Deceased and how she and Wong, as well as Dr Wu, came to sign the document as witnesses as per the case of the Plaintiffs. 34.As regards Dr Wu, he is apparently a doctor specializing in neurology in the Mainland. At all material times, he has been working as a neurologist at The First People's Hospital of Fo Shan City in the Mainland. He was not asked to come to Hong Kong to give evidence in February this year when the trial began. After the trial was adjourned part-heard, he was asked to come to Hong Kong to give evidence at the resumed hearing after the adjournment. However, apparently he had to go to Australia for a half year to one-year course in June. Therefore, he could not come to Court to give evidence. 35.However, at the request of the Plaintiffs and their lawyers, Dr Wu has provided a written account about the making of the Chinese document, which by and large supports the case of the Plaintiffs. In particular, according to Dr Wu's account, in the afternoon of 6 February 1996, the Deceased approached him and asked him to sign the Chinese document as a witness to his will. He explained that the Deceased was a patient at the hospital at the time and he said that he only met the Deceased for the first time on 3 February 1996 (see below). 36.The written account contained some obvious mistakes such as Dr Wu's reference to the Deceased having been admitted to the hospital on 3 February 1996. But according to a solicitor's clerk who went with Wong and the 2nd Plaintiff in February 2002 to the hospital to obtain the written account from Dr Wu, Dr Wu gave his account without the assistance of any file or documents to refresh his memory. He just gave his account from his recollection. He told the solicitor's clerk that this was the first time he was asked by a patient to sign as a witness to a patient's will and therefore he had a very distinct recollection of the events. According to Dr Wu's written account, there were other persons present and accompanying the Deceased when the Deceased approached him to sign his will as a witness. On the occasion when he gave his account to the solicitor's clerk, he was able to recognize Wong as one of those who were present back in 1996. 37.The Plaintiffs gave evidence about another meeting with Dr Wu in May 2002 in which Dr Wu explained to the mother and son why he could not come to Hong Kong to assist them to give evidence. He wrote down the reason on a piece of paper which was duly signed by him and chopped with the chop of the hospital. The 2nd Plaintiff who took part in both visits was able to recognize Dr Wu as the same Dr Wu who gave the written account back in February 2002. 38.The solicitor's clerk also gave evidence on the February visit to the hospital and how he came to find and speak to Dr Wu and eventually obtained his written statement from him. He was given Dr Wu's name card, and he had examined Dr Wu's doctor identification card issued by the hospital although Dr Wu did not agree to allow him to make a photocopy of his identification card. He accepted in evidence that he had omitted this part of his visit from his witness statement because he did not realize the importance of it. He simply thought that as he had failed to obtain a photocopy of the doctor identification card, he need not mention it in his statement. In any event, according to the solicitor's clerk, he was quite satisfied that the person whom he met with and obtained a statement from was the Dr Wu he was looking for at the hospital. He said that during his meeting with Dr Wu, there were other hospital staff around and there was nothing to suggest to him that this person whom he was meeting with was not the Dr Wu he was looking for. 39.During the May visit, Dr Wu, apparently after checking some records, corrected a date which he gave in his first statement, namely, the date when he first met the Deceased. According to his second statement, the date should have been 3 January 1996 instead of 3 February 1996. That accorded well with the case of the Plaintiffs. The 1st Plaintiff was not sure in evidence if Dr Wu had really examined or treated her late husband during any of the three visits that he paid to the hospital back in 1996, as the Deceased went to the hospital for a thorough examination and had been treated and examined by a number of medical personnel. Expert handwriting evidence 40.Both sides called handwriting experts to give evidence at trial. The Plaintiffs called Mr Shum Lau to give expert evidence relating to the signature or purported signature of the Deceased on the Chinese document as well as the seven Chinese characters ("重要文件勿乱放") written on the envelope in which the Chinese document was apparently contained, in order to establish the genuineness of the signature and the Deceased's authorship of the seven Chinese characters. Mr Lau is a member of the Royal Society of chemistry and a professionally qualified chemist (analytical). He is a retired scientific evidence officer of the government laboratory. His job involved the application of forensic science in criminal investigation. He retired from the government in 1978, having joined the government laboratory in 1949. He has more than 35 years experience in forensic science by self-study. He also has more than 35 years experience in document examination and handwriting comparison also by self-study. He has prepared many expert reports and appeared in courts as expert witness in document examination and handwriting comparison both in Hong Kong and in the South-east Asia. Despite a challenge to his expertise and sometimes less than orthodox method of carrying out document examination and handwriting comparison, from his experience, the contents of his reports and oral evidence through which he demonstrated his knowledge and learning (albeit through self-study) relating to the subject matter in question, I have no hesitation in accepting him as a handwriting expert in the present case. 41.According to his written reports as well as oral evidence, Mr Shum has examined the disputed Chinese document and the characters written on the envelope, and has compared the disputed signature and characters with the known genuine signatures and handwriting of the Deceased. He came to the conclusion that "the genuineness of the signature of the testator of the Will could most unlikely be disputed", and by that he meant that his conclusion was "confirmative" of the genuineness and authenticity of the signature and handwriting in question. 42.It is clear from the reports and evidence of Mr Shum that apart from comparing the known signatures and handwriting of the Deceased with the disputed ones, he also relied heavily on a rather unconventional method of examining the physical movements of the fingers, wrist and hand of the Deceased as deduced from the known signatures and handwriting of the Deceased in assessing the genuineness of the disputed signature and handwriting. Mr Shum also laid much emphasis on the penmanship of the Deceased in conducting his examination and comparison. 43.Further it would appear that in arriving at his conclusion, Mr Shum focused more on the similarities between the disputed signature and handwriting and the known genuine signatures and handwriting of the Deceased rather than the differences between the two. To some extent, this was because Mr Shum placed more emphasis on the physical movements as deduced by him rather than the similarities or differences. To Mr Shum, in relation to the differences, very often they could be explained as natural variations or minor inconsistencies of the physical movements; and it was therefore more important to look at the physical movements rather than the similarities or differences. According to Mr Shum, the disputed signature and handwriting fit in with the deduced physical movements of the Deceased. Mr Shum found in the material available to him that there were more than sufficient similarities in the signatures and handwriting in question to arrive at his conclusion. 44.Another noteworthy point is that in conducting his examination and comparison and in arriving at his conclusion, Mr Shum had to rely on a number of photocopy documents containing the genuine signatures of the Deceased. According to Mr Shum, he had requested for the originals but they were not available. He accepted that this was unsatisfactory, but nonetheless was able to come to his conclusion about the genuineness of the signature. He denied in cross-examination that he had too few samples of genuine signatures to work on. 45.The Defendants called Dr Giles, a handwriting expert from the United Kingdom, to give evidence. Dr Giles' expertise in document and handwriting examination cannot be doubted. She has extensive experience in the scientific examination of document and handwriting. She was formerly the head of the metropolitan police forensic science laboratory in London. Since 1989 she has been practising as an independent expert. Her laboratory is equipped to the highest standards for forensic document examination. She is an active member of the Forensic Science Society, the American Society of Questioned Document Examiners, and the equivalent society in Europe. She has served on the editorial boards of a number of international forensic document journals. She has contributed to scientific journals and forensic science textbooks. She has chaired the questioned documents discipline at an important international meeting of forensic scientists. She is a registered forensic practitioner for forensic examination in the United Kingdom. She has much experience in preparing expert reports and giving evidence in courts in many places including Hong Kong. 46.Her contribution to this case is limited to the examination of the genuineness of the signature or purported signature of the Deceased on the Chinese document. For the exercise, she has been supplied with and examined over 150 genuine signature specimens of the Deceased. She noted in her reports that the Deceased's usual signature was fluently written in a very individual style containing no identifiable character forms. It was, however, simple in construction and relatively short. According to Dr Giles, such a signature is to an extent vulnerable to simulation since it is easier to reproduce a simple short signature with a degree of accuracy than a longer signature containing complex structures. Through the use of sophisticated equipment, Dr Giles did not find any observable evidence of simulation from the Chinese document itself such as pencil guidelines, overwriting, retraces or hesitation. She could not find any impressions of handwriting being left on the Chinese document. 47.Dr Giles found that the questioned signature shows similarities to the undisputed signatures of the Deceased. However, the questioned signature also contains a number of features which are found only in a very small number of the undisputed signatures. Dr Giles said the questioned signature, therefore, combines unusual features of the undisputed signatures. However, according to Dr Giles, the shape and structure of the first element of the questioned signature falls outside the range of variations seen in this element of the undisputed sample signatures. 48.In conclusion, Dr Giles said:
49.In evidence, Dr Giles also criticised the most unorthodox approach of Mr Shum in placing emphasis on the supposed hand movements of the writer of the signatures. She criticised Mr Shum's use of photocopy signatures for comparison purpose, and the insufficiently small number of specimens he used for arriving at his conclusion. She emphasised the importance of looking at the differences, and not only the similarities, between the questioned signature or handwriting and the undisputed signatures or handwriting, and therefore disagreed with the approach of Mr Shum both in relation to the questioned signature as well as the seven handwritten Chinese characters found on the envelope, although Dr Giles did not herself carry out any handwriting examination in relation to the Chinese characters due to insufficient learning of the Chinese language and characters. Dr Giles rejected the distinction drawn by Mr Shum between signatures written by the Deceased over a dotted line and those which were not. She disagreed with the arbitrary selection and rejection by Mr Shum of specimen signatures based on such a distinction which according to her was unwarranted. To put it mildly, Dr Giles had great reservation regarding Mr Shum's expertise in the matter and his methodology. 2nd Defendant's evidence 50.Only the 2nd Defendant gave factual evidence at trial. The 2nd Defendant is the eldest living brother of the Deceased. The 1st Defendant is his younger sister whereas the Deceased was his youngest brother. The Deceased was eight years his junior. Because of the early death of their parents, the 2nd Defendant was in charge of the family business at a very young age and took care not only of the family business, but his younger brothers and sisters as well. In particular, he took care of the Deceased and they enjoyed a very close relationship. The 2nd Defendant confirmed that the Deceased went to boarding school in England in 1970, he returned on holidays to Hong Kong every year and he eventually returned to Hong Kong for good to help manage the family business in 1980. The two brothers were the only or major shareholders and directors of two companies owning the family restaurant business and premises and a land development company which in fact developed the estate comprising the family residence in Shatin. 51.The 2nd Defendant is single. Apart from the time the Deceased spent in England, the two brothers lived under the same roof even after the marriage of the Deceased with the 1st Plaintiff. Since the erection of the Shatin house, the two brothers lived together at the house. 52.In about 1981, the two brothers respectively made a will naming each other the executor and sole beneficiary, but if the beneficiary should predecease the testator, the 1st Defendant - their sister, would become the executrix and sole beneficiary. The wills were made by lawyers for them, and the making of the wills and the contents thereof were known to each other. The will made by the Deceased in 1981 was kept in the safe of the restaurant. (It should be noted that so far as the Deceased's will is concerned, it was revoked by his marriage to the 1st Plaintiff as a matter of law). 53.According to the evidence of the 2nd Defendant, the two brothers were close to each other personally and in terms of running the family business together. The 2nd Defendant said in the box that he believed that in the mind of the Deceased he ranked before the 1st Plaintiff in terms of importance and closeness to the Deceased. However, he did not accept that he was a sort of father-figure to the Deceased. 54.The 2nd Defendant emigrated to Australia in 1992 and because of his immigration requirements, from 1992 to 1996 he spent most of his time in Australia, leaving the Deceased with the task of managing the family business in Hong Kong alone. The 2nd Defendant only returned to Hong Kong for 2 to 3 months a year. 55.According to the 2nd Defendant, it was whilst he was in Australia that he was told by the Deceased about his intention to marry the 1st Plaintiff. The 2nd Defendant said he did not object to the proposed marriage but did ask the Deceased to postpone his intended wedding date as he could not return from Australia to Hong Kong to attend it. However, the Deceased did not want to delay the wedding because this would affect the 1st Plaintiff's then intending application for right of abode in the United Kingdom under the government scheme. The Deceased was a UK citizen and the marriage with him would enhance the 1st Plaintiff's application for citizenship. According to the 2nd Defendant, since the wedding was not postponed, he did not attend the wedding of the Deceased and the 1st Plaintiff in Hong Kong, but was only sent some wedding photographs in January 1993. 56.In cross-examination, he maintained that he had been consulted by the Deceased beforehand, notwithstanding that in a letter written by the Deceased to one of his many friends in the UK, the Deceased told his friend that his brother was not aware of his wedding until afterwards. 57.According to the 2nd Defendant, after their marriage, the couple wanted to let the 2nd Plaintiff use a guest room in the Shatin house which was then occupied by a relative who helped with the household chores. There were apparently some arguments amongst the people and eventually the couple were successful in getting the room for the 2nd Plaintiff's use. The 2nd Defendant denied that he sided with the relative in the quarrels or that he was against letting the 2nd Plaintiff use the room. He accepted however that whenever he returned from Australia, he would place his bigger suitcases in the guest room. He said in fact it was he who suggested to the Deceased that for the sake of harmony of the latter's family he (i.e. the Deceased) should let the 2nd Plaintiff use the guest room. 58.On the relationship between him and the two Plaintiffs at the time, the 2nd Defendant said as he was away from Hong Kong most of the time during those few years, he did not know the mother and son well. 59.As regards the room occupied by the 2nd Plaintiff, the 2nd Defendant was positive in his evidence throughout that there was no safe whatsoever inside that room. In fact there was no safe whatsoever inside the house. He said he was quite sure about this because he had had many occasions to enter and use the 2nd Plaintiff's room: He placed his bigger suitcases inside the room; he entered the room to check and close the windows when it rained and when the 2nd Plaintiff was staying in boarding school either in Hong Kong or in UK; and he went inside the room to take telephone calls as the room had an independent telephone line; and occasionally he used the room for typing. 60.Moreover, the 2nd Defendant mentioned two occasions in 1996 when he went inside the room to search for some papers in connection with the family restaurant business. At that time the Deceased and the 1st Plaintiff had gone to the UK for a trip, and he was temporarily managing the restaurant business and had to locate some documents. The Deceased told him to look for the documents inside the 2nd Plaintiff's room which he did. On that occasion, he did not notice the presence of any safe inside the room. He could not find the papers. After the Deceased and the 1st Plaintiff returned from their trip, he handed the matter back to the Deceased to handle. Unfortunately, several months later, the Deceased passed away suddenly and he had to handle the restaurant business as well as this particular matter again. Still he did not know where the papers were and once again he went inside the 2nd Plaintiff's room to search for the documents. He could not find the documents. In fact, according to the 2nd Defendant, there was no cabinet inside the room of the 2nd Plaintiff under which according to the evidence of both Plaintiffs the safe was placed. According to the 2nd Plaintiff's witness statement, on top of the cabinet, there was placed a television set. According to the 2nd Defendant, the television set was placed on the window bay. 61.As regards the funeral of the Deceased, the 2nd Defendant denied there was any argument over the status of the 2nd Plaintiff relating to the funeral ritual or whether the 2nd Plaintiff was eligible to perform the funeral ritual as the son of the Deceased. In fact, according to the 2nd Defendant, he was at that time more than happy that the 2nd Plaintiff was willing to perform the ritual as the son of the Deceased as otherwise someone else, i.e. a relative or even a stranger, might have to be asked to perform the ritual. 62.As regards the alleged Chinese will or document, the 2nd Defendant did not believe that it was made by the Deceased. He gave a number of reasons in the box. He said the Deceased was able to write fluent English and Chinese and there was no need for him to ask anybody to write out the document for him. He said that the Deceased was not in the habit of asking others to write things for him and rather he was fond of writing things by himself. 63.The 2nd Defendant also said that the Deceased was a very careful person. He would not simply rely on an informal note or document like the Chinese document as his will to govern the distribution of his estate. If he had wanted to make a will, he would have engaged a lawyer to do so. Moreover, he pointed out a mistake in the original Chinese document (writing "承認" as "承應"). He said the Deceased would have noticed this obvious mistake if he had been the person dictating the contents of the document to the person who wrote it out on his behalf. 64.The 2nd Defendant also found the time, location and circumstances under which the Chinese document was allegedly written to be highly suspicious. He referred to a fax sent to him by the Deceased soon after his trip to Fo Shan in February 1996 in which he did not make any mention whatsoever of his having felt unwell on 6 February at the hospital or the making of the Chinese document. 65.The 2nd Defendant said he had seen the signatures of the Deceased on countless occasions and the signature appearing on the Chinese document differed from the Deceased's usual signatures in that there was a hook at the beginning of the signature which did not appear in the Deceased's usual signatures. 66.The 2nd Defendant also said that the style or manner of writing appearing in the Chinese document did not look like that of the Deceased. He said the Deceased wrote in a simple and straighforward style; and if he had wanted to make a will, he would start off by calling the document a will, calling himself a testator and saying directly that he was leaving his estate after his death to the beneficiary. He would have put everything in simple terms. 67.The 2nd Defendant also found the Deceased's alleged request to Dr Wu, a total or near stranger to the Deceased, to act as one of his witnesses to be very strange. He said he would have expected the Deceased to have asked someone he knew to be his witness to the making of such an important document. 68.The 2nd Defendant also pointed out that in almost all cases, the Deceased signed documents of all sorts with a fountain pen which he carried with him all the time. Yet the signature on the Chinese document was written in a ball pen. 69.Finally, the 2nd Defendant said that if the Deceased had really made a will, he would no doubt have told him about it and he could not think of any reason why his brother would have wanted to conceal such an important thing from him given their close relationship. 70.According to the 2nd Defendant, he only first learned of the existence of the alleged will in May 1997 after his lawyers were informed by the lawyers of the 1st Plaintiff about the discovery of the alleged will. Prior to that nobody, including the 1st Plaintiff, the 2nd Plaintiff, Wong and Xing who had stayed in the Shatin house for different periods of time after the death of the Deceased to keep the 1st Plaintiff company, had ever mentioned to him about the existence of any alleged will or alleged document in which the Deceased recognized the 2nd Plaintiff as his own son. 71.According to the 2nd Defendant, back in November 1996, he had asked the 1st Plaintiff if she knew whether the Deceased had left a will and she said "no". He said that the 1st Plaintiff was apparently not satisfied with the solicitor (Mr Lam) who had been working for the family, saying that he was not helpful in telling her that the 2nd Plaintiff was not entitled to share in the estate of the Deceased but was only entitled to claim financial provision. According to the 2nd Defendant, the 1st Plaintiff said that in any event, she would see to it that the 2nd Plaintiff would be entitled to a share in the estate. The 2nd Defendant also said in evidence that the 1st Plaintiff had asked him about the estimated worth of the estate. He said he did not give her any reply as the worth would depend on the valuation of the properties comprising the estate, but in the box the 2nd Defendant was able to estimate the worth of the estate at no less than $45 million at the time of death. He was unable to put a figure on the estate as at the time of trial, given the change in economic circumstances since the demise of the Deceased. 72.As regards the moving out of the Plaintiff from the Shatin house in 1997, the 2nd Defendant denied that that had anything to do with him, save that he had asked the 1st Plaintiff to be responsible for the management fees of the Shatin house as she would be the only person living in the house after the death of the Deceased (and as the 2nd Defendant was planning to live elsewhere after the death of his very close brother). The 1st Plaintiff refused to pay and apparently she decided to move out. He said from his angle there was no bad blood between him and the 1st Plaintiff, or for that matter, between him and the 2nd Plaintiff; but he said during cross-examination that the reverse might not be true and the 1st Plaintiff might view him as an "eye-sore". He did not really elaborate why in the box. 73.The 2nd Defendant said that the story of the Chinese will having been discovered inside a safe in the 2nd Plaintiff's room was only disclosed by the Plaintiffs in 2000. By that time, all the remaining articles inside the 2nd Plaintiff's former room in the Shatin house had been removed and cleared. As I said the 2nd Defendant maintained adamantly in evidence that there was no safe inside the room. Factual findings 74.This case turns on the facts. The ultimate factual issue is whether the Chinese document was made by the Deceased in the circumstances described by the Plaintiffs' witnesses, or, in other words, whether it was a genuine document. This obviously turns on the credibility of the witnesses and in particular, the credibility of Wong relating to how the document came to be made by the Deceased, and the evidence of the 1st Plaintiff regarding how she came to discover the Chinese document in the safe of his son. The evidence of the other witnesses is, of course, also of great importance. Moreover, I need to take into account the written accounts of the circumstances relating to the making of the Chinese document given by Dr Wu or the person claiming to be Dr Wu and by Xing respectively by way of hearsay evidence. 75.Apart from that, I also have the competing handwriting expert evidence relating to the genuineness of the signature appearing on the Chinese document, and the genuineness of the 7 characters written on the envelope said to have contained the Chinese document. 76.I also have the evidence of Mr Cheung, the solicitor who opened the envelope containing the Chinese document, as well as the evidence of one of his clerks who went to the hospital in Fo Shan City to obtain the first statement from Dr Wu. Of course, on the side of the Defendants, I also have the oral evidence of the 2nd Defendant to consider. 77.Apart from the oral evidence, the credibility of the witnesses, their demeanour in Court, the experts' evidence, and the hearsay accounts, I also have the documentary evidence before me to consider. Amongst them, I have many letters written by various people during the material times shedding light to varying degrees on the inter-relationships of the people concerned. 78.Apart from all this, I also take into account the general circumstances of the case, the inherent possibilities or probabilities of things happening or not happening, and that of things and events happening in or at a particular way, manner and/or time. I consider things and events in isolation as well as in conjunction with other relevant circumstances and in an overall manner. I test possibilities, hypotheses and theories against one another to find out their inherent likelihood, consistencies and discrepancies, bearing in mind at all times the burden and standard of proof. 79.On the one hand, I test the logicality and inherent likelihood of the competing accounts. I look for discrepancies and consistencies; I look for similarities and differences. On the other, I bear in mind that human behaviour and events do not necessarily conform to or happen in a logical or rational manner all the time, particularly if they are judged with the benefit of hindsight and with the luxury of time and good counsel. Moreover, human memory is not infallible; in particular, when different people are asked to recollect the same events that happened several years ago, some of them might have a reason to have a better recollection of some of the events, and others might be likewise in relation to some others of these events. All this which is in fact basic and obvious I bear in mind. 80.I also try to look for any conclusive factor (bearing in mind the appropriate burden and standard of proof in the present case) for or against a factual account and in the absence of such a conclusive factor, I bear in mind that to every argument pointing towards a particular direction, there is very often a possible counter-possibility or explanation, the degree of likelihood of which varies. 81.The above is just a brief account of my mental process. It is by no means meant to be exhaustive, nor is it intended to be anything other than a very general statement. 82.Having gone through all the available and relevant evidence and admissible material before me, I have come to the conclusion and make as a finding of fact that the Chinese document was indeed made and discovered in the circumstances generally described by the Plaintiffs and their witnesses. 83.There are several good starting points, but I would simply choose the safe as the beginning of a brief account of my mental process (which is not necessarily given in any particular order). The safe is an important element in the Plaintiffs' case. It was in the safe that the Chinese document was found. If the safe did not exist, the whole case of the Plaintiffs - bearing in mind the burden and standard of proof - must collapse. The 2nd Defendant gave evidence on oath that there was no such safe inside the 2nd Plaintiff's room. This is a potentially conclusive factor against the whole of the Plaintiffs' case. The earliest independent (yet hearsay) reference to the safe can be found in the evidence of Mr Cheung, the solicitor. According to him on 6 May 1997, the 1st Plaintiff telephoned him telling him that she had found an envelope on which it was written the 7 characters inside a safe in her son's room. Mr Cheung was very definite about this part of his evidence and recollection. I have no difficulty in accepting this piece of evidence as well as generally the evidence of Mr Cheung. This therefore dated the first mentioning of the safe to May 1997. I am not concerned with the truth of the 1st Plaintiff's assertion to Mr Cheung. I am concerned with the fact that it was so asserted by the 1st Plaintiff in May 1997. 84.It is true that the Defendants' side did not learn about the existence of the safe or its relevance until 2000 after litigation was commenced. It was disclosed to the other side by way of further and better particulars of pleading. But that, in my judgment, is neither here nor there; the fact is that in as early as May 1997, the 1st Plaintiff had told her own solicitor that the Chinese document was found inside the safe. That was May 1997, when the 1st Plaintiff was admittedly just starting to move out of the Shatin house. The Defendants' side accepted that she did not completely move out of the Shatin house until July 1997. That was a time when both the 1st Plaintiff and the 2nd Defendant were staying in Hong Kong and had good access to the Shatin house. Although in the solicitor's letter written by Mr Cheung's firm to those representing the Defendants in mid-May 1997 informing the latter about the discovery of the Chinese document, it was merely mentioned that the Chinese document was found amongst the "papers and effects" of the Deceased, that had, according to Mr Cheung's evidence, nothing to do with the 1st Plaintiff. Mr Cheung's assistant solicitor simply drafted the letter in that way which, in my judgment, was a common enough way of describing where a will was found, and Mr Cheung simply approved and sent out the letter. The point of importance here is that back in May 1997 the 1st Plaintiff had no reason to think that her solicitor would not inform all relevant parties as to the exact location of the discovery of the Chinese document, i.e. the safe inside her son's room in the Shatin house; and if there was no such safe inside the 2nd Plaintiff's room at the time and if the Chinese document was a fake one, it would have been a very stupid move on the part of the 1st Plaintiff and her co-conspirators who had gone to such lengths to manufacture the Chinese document in question to assert that it was found in the safe in the first place. 85.Now this only goes towards suggesting that in earlier May 1997, more likely than not, there was indeed such a safe inside the room of the 2nd Plaintiff. It does not necessarily prove that it was there all the time, i.e. when the Deceased was still alive; but then, the Deceased had only passed away for less than 1 year. People's recollection and memory were still very fresh - if the safe had never been there and was only brought to the scene sometime before May 1997 as part of the conspiracy to prepare for the surfacing of the Chinese document, this could have been easily pointed out by others such as the 2nd Defendant who had been residing in the Shatin premises for a lengthy period of time. 86.Moreover, according to the 1st Plaintiff's account, when she moved out of the Shatin premises, she left behind the safe because it was too heavy to move and anyway, her quarters were much smaller than the Shatin premises, she had to abandon quite a number of possessions when she moved from the bigger house to her quarters, and she had no need for a safe in her police quarters. If the safe never existed, that (i.e. her having left the safe behind) would have been a very naive story. If the safe existed but was only a newly acquired safe brought into the son's room after the death of the Deceased as part of the conspiracy, this would equally be a very foolish move on her part. It would have been much easier for her to say as part of the conspiracy that she had moved the safe together with her and had since disposed of the safe. Of course, none of this is conclusive and as I mentioned at the beginning, there can be counter-theories or explanations. One obvious explanation is that she was taking a desperate risk in order to explain why the Chinese document was only found so late and was not found elsewhere. I have borne this in mind. 87.This leads me conveniently to the evidence of two witnesses, i.e. the 2nd Defendant and the 2nd Plaintiff. As for the 2nd Defendant, as I said, his evidence on the safe, if accepted, would totally destroy the Plaintiffs' case. But I do not accept his evidence. I find him to be less than truthful in several important areas. First, whether he had been consulted or notified beforehand about the marriage of the Deceased to the 1st Plaintiff. He said "yes" but a contemporaneous letter clearly suggested otherwise; and that was also confirmed by the 1st Plaintiff's evidence. In any event, he said he did not oppose the intended marriage. I find this piece of evidence rather strange given the personal background and the less than happy past of the 1st Plaintiff, and given my observation of the type of persons the 2nd Defendant is and the general social prejudices still prevalent in a predominantly Chinese society like Hong Kong (and of course one is concerned with Hong Kong in the early 90s). With no disrespect to the 1st Plaintiff, she was a divorced policewoman in her mid-30s with a young teenage boy at the time, and he (the Deceased) was a successful and wealthy bachelor in his prime, sociable and likeable with no shortage of friends of both sexes. I find it much more credible that the Deceased simply did not dare to tell his brother about his marriage until after it was contracted, as per the evidence of the 1st Plaintiff and as was clearly suggested in one of his letters to a friend in England written shortly after his marriage. And in any event, regardless of when he learned about it, I find that the 2nd Defendant never liked the (intended) marriage. 88.Again, I do not believe the 2nd Defendant when he said so far as he was concerned, there was no conflict or quarrel relating to the occupation of the guest room in the Shatin house by the 2nd Plaintiff. He tried to say that that was only a dispute between the 1st Plaintiff and his relative and that if he was not actually on the side of the Deceased in advising him to get the room for the 2nd Plaintiff, he was at the very least neutral in the quarrels. That was again contradicted by a contemporaneous letter written by the Deceased. 89.The 2nd Defendant said that there was no dispute during the funeral regarding whether the 2nd Plaintiff could be regarded as the son of the Deceased and could carry out the traditional funeral ritual. He said he was only too happy that the 2nd Plaintiff was agreeable to carry out the ritual as the son of the Deceased and he need not find a stranger to carry out the ritual. On this point, I very much prefer the evidence of the two Plaintiffs as well as Wong. To carry out the ritual was one thing; to carry out the ritual as the son of the Deceased which was something insisted on by the 1st Plaintiff and Wong during the funeral was quite another. I find it more probable than not that the 2nd Defendant would have wanted to object to such an assertion of status by somebody bearing a different surname. 90.I find the 2nd Defendant's denial of any strained relationship between him and the 1st Plaintiff after the death of the Deceased, leading eventually (as per the 1st Plaintiff's account) to the 1st Plaintiff's moving out of the Shatin premises, untrue. On the 2nd Defendant's own case, the immediate reason for the 1st Plaintiff's moving out of the Shatin premises was that he required the 1st Plaintiff as the only occupant of the Shatin premises at the time to be responsible for the management fees. I find this to be exceptionally mean in the circumstances: The Shatin premises were owned in the name of the family company of which the Deceased was a major shareholder and of course without the Chinese document (which had not yet surfaced), the 1st Plaintiff as the widow of the Deceased must be entitled to a substantial share in her late husband's (intestate) estate; and moreover, a huge sum of money (said to be over $6 million in evidence) was owing by one of the family companies to the Deceased. In the contemporaneous letters written by Xing to Wong, there were clear references to the distrust between the 1st Plaintiff and her relatives on the one side and the 2nd Defendant on the other. In all the circumstances, I do not accept the 2nd Defendant's evidence in this regard as truthful. 91.Regarding the safe, the 2nd Defendant gave various reasons for claiming some peculiar knowledge about the contents inside the room occupied by the 2nd Plaintiff. Now, the room had been the room of the 2nd Plaintiff for a period of time prior to the death of the Deceased. Moreover, the 2nd Defendant, because of his immigration needs, only spent 2 to 3 months in Hong Kong per year. The odds were against his having any particular knowledge of the contents inside the 2nd Plaintiff's room at the material time. Moreover, the Defendants' side did not learn about the story of the discovery of the Chinese document inside the safe in the 2nd Plaintiff's room until 2000, i.e. almost 4 years after the death of the Deceased. To say that the 2nd Defendant still has any good recollection of what was inside the room of the 2nd Plaintiff back in 1996/1997 is inherently unlikely, particularly when prior to the learning of the Plaintiffs' story in 2000, the 2nd Defendant had no good reason to retain any particular recollection of whether there was a small safe inside the room. 92.To counter all these obvious points, the 2nd Defendant went so far in his evidence as to mention the occasions he had to enter the room to check the windows when it rained to build up a case on why he should have some knowledge of the contents inside the room. He also quoted the incident about his needing to go into the room twice to find certain documents required for the restaurant business. On the first occasion, it took place whilst the Deceased was away and on the second occasion it was after the death of the Deceased. 93.I have great reservation regarding the truthfulness of this story but even if it were true, this does not necessarily mean that he should have a good recollection as to whether there was a safe inside the room. This was because by the nature of his story, the Deceased would have never told him (and did not do so) that the documents were placed inside a safe; so when he went into the 2nd Plaintiff's room, he would simply have been looking at the table, the bookshelf or drawers (if any). Even if he did notice the presence of the safe at the time, it must have been very natural for him to assume that the safe belonged to the 2nd Plaintiff (after all it was his room) and did not contain any documents belonging to the Deceased and in particular, the documents he was looking for. For after all, the Deceased never told him to open the safe and to find the documents there. In this regard, of course I bear in mind the counter argument that if he did notice a safe inside the room, he might have been alerted to the possibility of the documents being inside the safe and he would have asked his brother about it. The fact that he did not do so would tend to suggest that there was no safe or at least he did not notice any safe inside the room. I have borne this counter possibility in mind, but taking an overall view of the matter, I am of the view that either he did not go into the room on those two occasions as claimed or that if he did, he did not notice the presence of the safe or (if he did) has since forgotten about it. 94.As mentioned before, the 2nd Defendant also said he went into the 2nd Plaintiff's room to place his bigger suitcases there and from time to time he went inside to answer the telephone. In the context of the present case, it would not be surprising to me at all if during those occasions he failed to notice the presence of the safe, or if he did he has since forgotten about it. 95.After the 1st Plaintiff had moved out, according to her, she left behind the safe in the 1st Plaintiff's room, and the whole room had since been cleared. It is quite possible that the 2nd Defendant noticed the presence of the safe inside the room at that stage, for either he personally cleared the room which is likely because he did personally clear the room of the Deceased and the 1st Plaintiff after she had moved out and in fact found a torn letter inside the room, or he was told about the contents and asked about the disposal of them by those helping him to clear the room. But given the general credibility of the 2nd Defendant's evidence, I do not accept his evidence that he found no safe inside the room. In this regard, I have also borne in mind my earlier analysis of the story of the 1st Plaintiff which first surfaced in early May 1997 that she had found the Chinese document inside a safe in the 2nd Plaintiff's room. As I tried to analysis above, by then, more probable than not, a safe must have been there (regardless of whether it was there prior to the Deceased's death). Yet the 2nd Defendant claimed that he did not find any safe in the room after the 1st Plaintiff had moved out. Based on all this (and my acceptance of others' evidence), I do not accept his evidence. In my judgment, he was either lying in relation to this aspect of the case or he has simply forgotten about the safe as the significance of the safe did not emerge until 2000. 96.The other witness' evidence that I should deal with in this conjunction is the evidence of the 2nd Plaintiff. He was positive that there was this safe inside his room all the time, he used the safe together with his stepfather, he was given the combination lock number by his stepfather, he wrote the number on an envelope which has been produced as an exhibit, he also wrote the number on a piece of paper which he carried with him but has since been lost, and he kept his own things there while his stepfather kept his own collections inside the safe. 97.I find his evidence and account to be credible. Of all the witnesses (leaving aside the independent witnesses in this case) who have given evidence before me, I must say I find the 2nd Plaintiff's evidence and demeanour to be most impressive. He was straightforward, unpretentious and tried to answer questions as best as he could. I have no hesitation at all in accepting his evidence. No doubt there were some discrepancies between his oral evidence in Court and his written witness statement and between his evidence and the evidence given by his mother, such as whether the envelope containing the Chinese document was sealed when he saw it inside the safe back in the summer of 1996 before the death of the Deceased, such as the colour of the safe, and such as whether he managed to tell his mother the combination lock number by reading it from the slip of paper he carried with him or by asking his mother to look for the envelope amongst his possession in the Shatin premises on which the number was written. As I said, the witnesses were asked to recollect details of matters which happened several years back, the significance of many of which was not immediately apparent at the time and thus gave no good reason for leaving a distinct impression in one's memory. As Mr Ho, counsel for the Plaintiffs, very pragmatically observed as a seasoned practitioner in litigations, if the evidence of the mother and son had matched on every point of any significance, any counsel of competence acting for the other side would have turned around and said that their evidence must have been coached beforehand, thereby mounting the same challenge on credibility albeit via a different avenue. 98.My acceptance of the 2nd Plaintiff's evidence in its entirety does not, as I observed during final submission by counsel, necessarily take the Plaintiffs home. Nor would my rejection of the 2nd Defendant's evidence on the existence of the safe at the material time inside the 2nd Plaintiff's room automatically mean that the Chinese document was a genuine document of the Deceased. This latter point is obvious. That there was a safe does not necessarily mean that the Chinese document was kept inside the safe or more crucially that the Chinese document was a genuine document. As regards the first point, i.e. my acceptance of the 2nd Plaintiff's evidence, this does not necessarily mean that the Chinese document is genuine because according to the oral evidence of the 2nd Plaintiff, when he saw the envelope with those 7 characters written on it inside the safe in the summer of 1996, he did not notice whether the envelope had been sealed or not and he had no idea of what if any was contained inside the envelope. Therefore his evidence alone cannot exclude the possibility that the envelope that he saw then was containing something else that was placed by the Deceased inside the safe, which envelope was used subsequently by someone to contain the Chinese document. 99.But my acceptance of the 2nd Plaintiff's evidence does resolve one factual dispute between the parties at trial, namely, whether the 7 characters written on the envelope were indeed written by the Deceased. Given the nature of the 2nd Plaintiff's evidence and my acceptance of his evidence, the answer must be "yes". In this regard, so far as handwriting expert evidence is concerned, the Defendants' expert evidence only related to the genuineness of the signature on the Chinese document; it did not relate directly to the Chinese characters written on the envelope, although Dr Giles, the Defendants' expert, did comment unfavourably on the rather unconventional methodology adopted by Mr Shum, the Plaintiffs' expert, in examining the genuineness of the 7 Chinese characters. I share Dr Giles' doubt about the methodology of Mr Shum, but this is not crucial. In the light of the 2nd Plaintiff's evidence, the absence of any positive expert evidence against the genuineness of the 7 Chinese characters, the factual witnesses' evidence regarding the authorship of the 7 Chinese characters, and my own judgment on whether they were written by the Deceased, I am more than satisfied that they were the Deceased's genuine handwriting. 100.This conveniently leads me to the Plaintiffs' case on the circumstances under which the Deceased made the Chinese document. First, I find the making of the Chinese document totally unsurprising. From the oral evidence given by the two Plaintiffs and in particular, the evidence of the 2nd Plaintiff which I accept, from the documentary evidence before me including the many letters written between the 2nd Plaintiff and the Deceased together with the 1st Plaintiff, and from the general known circumstances of the case, particularly relating to the care and attention paid by the Deceased towards the 2nd Plaintiff's education and general upbringing as briefly described above, I have no doubt that the Deceased loved and liked the 2nd Plaintiff and genuinely treated and regarded him as his own son. I would say that what the Deceased had done for the 2nd Plaintiff as his stepfather and the degree of care and attention he had paid towards the 2nd Plaintiff's education and general upbringing surpassed what one would generally expect from a Hong Kong stepfather in a similar situation, and, I would venture to add, indeed what many natural fathers in a hectic society like Hong Kong would have done for their children. Of course, I bear in mind the general evidence that the Deceased was a very generous and sociable person, kind to his many friends and took an interest in almost everything, but that does not detract from the point under discussion, namely, that in making the Chinese document and making the 2nd Plaintiff his successor, the Deceased was not doing something out of character, unusual or totally unexpected. 101.Of course by doing so, he may have disappointed his own elder brother, i.e. the 2nd Defendant. That was put forward by the 2nd Defendant as one of the main reasons for not believing that the Deceased had made such a Chinese document. The 2nd Defendant said he ranked first in the mind of the Deceased even after his marriage. He pointed to the will made by the Deceased back in 1981 leaving everything to him as proof. He pointed to all the things he had done for the Deceased in the past, particularly when he was young and when their parents had passed away early, as justification for his belief. He pointed to the fact that they were close business associates on top of their close blood relationship, and expressed his view that in fact the Deceased owed to him a duty to tell him that he had made such a Chinese document (if that was really made by the Deceased) leaving his estate wholly or partly (depending on its construction) to somebody with a different surname. 102.In my judgment, very unfortunately the 2nd Defendant has over-estimated his importance in the mind of the Deceased. He has also over-estimated how much the Deceased liked him and enjoyed his presence or company. In this regard, I accept the 1st Plaintiff's assessment of the situation, i.e. that the Deceased felt the pressure whenever his elder brother (who was more a father-figure to him than a brother) was around. No doubt he greatly respected him, but to say that, therefore, there was no reason for him to treat the son of his own wife, whom (i.e. the son) he also personally liked and loved as if he were his own son, or leave his property to him after his demise, is going too far; and to say that there was no reason for the Deceased to hide the making of the Chinese document or the contents thereof from the 2nd Defendant is equally erroneous. Precisely because of the respect and perhaps fear of the Deceased towards the 2nd Defendant, precisely because of the apprehended objection of the 2nd Defendant to the contents of the Chinese document if made known to him, and precisely because of the less than perfect relationship between the 2nd Defendant and his wife and stepson, the Deceased, in my judgment, on a balance of probabilities, chose to conceal the making of the Chinese document and the contents thereof from his elder brother. The same had happened before, i.e. the marriage between the Deceased and the 1st Plaintiff; it happened again in relation to the Chinese document. The elder brother was presented with a fiat accompli - the younger brother had once again done something which he rightly apprehended was not to the liking of his elder brother whom he respected and loved and owed much in life to. 103.The health of the Deceased was a constant issue during the short marriage between the Deceased and the 1st Plaintiff, no doubt due to the Deceased's heavy drinking habit. The need for a will was obvious. The Deceased had made a will many years before; that had been revoked automatically by his marriage. It is not too clear whether he knew about this automatic revocation by law or not. In any event, with his marriage and new family, the need for a new will was patent. The need to provide for what should happen after his death was there. His suddenly feeling unwell during his third visit to the hospital in Fo Shan City was an occasion prompting him to do something. 104.In this regard, I only have the oral account of Wong. Having closely observed the demeanour of Wong whilst in the witness box and having carefully considered his evidence, I have come to the conclusion that essentially Wong was an honest and credible witness. Wong was not a person of great education. He was not particularly eager to give evidence at trial. He had no patience for repeated cross-examination by counsel on fine details. He described how the Chinese document came to be made during the third visit from his recollection. He described how he subsequently mentioned about the making of the Chinese document to his elder sister, the 1st Plaintiff. He told the Court that he did not realize that the Deceased was making a will at the time and he did not regard it as a will. He simply regarded it as a document made by the Deceased recognizing the 2nd Plaintiff as his own son. He was obviously a rather rough and unmeticulous person. But at the end of today, I have come to the conclusion that he was honest with his account of what had happened. In coming to that conclusion, I did not treat him as an independent witness. He is related to the two Plaintiffs and he was an obvious candidate for membership of any conspiracy relating to the Chinese document. There were discrepancies and inconsistencies between what he said in Court and what he had written in his witness statement and between what he said and what others said, either orally in Court or in their written accounts. I have borne them in mind, and to cut short the description of my mental process, I have come down on the side of innocent variations due to a lapse of memory on his part and/or on the part of those others concerned. 105.This is quite sufficient for me to reach my finding that the Chinese document was a genuine document of the Deceased. But I should also mention that in reaching such a conclusion, I have also considered the hearsay accounts given by Dr Wu and Xing. Of course, on account of their hearsay nature, I have placed very limited weight on these accounts. In relation to Dr Wu's account that was obtained from him by a solicitor's clerk, although Dr Wu has not given evidence before me, the clerk did. I have no doubt whatsoever that the clerk's evidence was true and reliable. Having seen him giving evidence in Court, I have no doubt that he was an intelligent person and knew well his task when he went to Fo Shan to locate and interview Dr Wu. I have no hesitation in accepting his evidence on his identification of Dr Wu as the very Dr Wu in question. I find nothing strange about Dr Wu's refusal to let the clerk have a photocopy of his official hospital identity card. I doubt whether any doctor in the employ of a local hospital would allow on the spot a solicitor's clerk to make a photocopy of his official hospital identity card. I find the possibility of there being another Dr Wu in the hospital to be extremely remote, and I find the possibility of somebody passing off as the real Dr Wu and giving a false account as a continuation of a conspiracy relating to the Chinese document most unlikely, given the general circumstances under which the clerk took the statement from Dr Wu. 106.I am, of course, very much alive to the various discrepancies between Dr Wu's account of how the document was executed and the accounts given by others, including when Dr Wu first came to know the Deceased, why Dr Wu as a neurologist would have any reason to treat the Deceased at all who was in the hospital to find out his heart and liver problems, when the Deceased was admitted to the hospital on the third occasion, and the exact sequence of events about the making of the Chinese document. 107.But I also bear in mind that Dr Wu was the "duty" doctor at the time, so he was presumably responsible for attending to patients that visited the hospital on that day regardless of their special illnesses. One of the purposes of the Deceased in going to the hospital on that third visit was to collect reports of examinations that had been previously done. If Dr Wu was on duty, there was no reason why he should not be responsible for attending to the Deceased and retrieving the reports from the hospital's various departments involved for the Deceased. 108.Moreover, the account given by Dr Wu was made up of answers given by Dr Wu to various written questions previously set by those representing the 1st Plaintiff for Dr Wu to answer. Those questions were all relevant questions but by the nature of things, Dr Wu was never asked to give a complete account of what had happened. So if the account given by Dr Wu eventually looked fragmented and incomplete, and there were events mentioned by others that were not mentioned by him in his statement, that would be understandable. Moreover, the clerk, as conscientiously as he might have been, only conducted an interview of the doctor in accordance with the several questions set by his principal. He did not carry out any examination, still less any cross-examination, of the doctor, he was never asked to do that and he was never expected to be capable of doing that. So as a matter of fairness, the statement thus obtained by him from Dr Wu must be viewed in that light. 109.Dr Wu gave a second statement to the two Plaintiffs when they visited him shortly prior to the resumption of the adjourned hearing. That statement only dealt with the reason why he could not come to Hong Kong to give evidence. The reason given was criticised by the Defendants as being a lame excuse. In my judgment, that may well have been an excuse put up by Dr Wu for not coming to Hong Kong to give evidence; but that is not necessarily indicative of guilt. I can well imagine why a Mainland doctor would seek to put forward excuses of all sorts to avoid coming to Hong Kong to give evidence. I have not come across too many people who really look forward to the opportunity and experience of going into the box and being cross-examined by learned counsel on matters in which they have no personal interests. 110.But as I say given the hearsay nature of Dr Wu's account, whilst I have given some weight to it in my total deliberation exercise, the weight given is limited. 111.In particular, I have borne in mind that there is a possibility of Dr Wu being personally known to Xing, for after all, it was Xing who introduced the Deceased to the hospital in the first place and she, according to the evidence, seems to have known many of the doctors in the hospital; and there is the possibility that Dr Wu may have been a member of the conspiracy (if any) for financial gain or otherwise. I have specifically borne that possibility in mind. 112.As regards Xing's very brief statement and her inability to come to Hong Kong to give evidence, again I have placed some but limited weight on it. It only serves a relatively minor corroborative purpose in the whole exercise. 113.As regards the criticisms over the Chinese document itself mounted persuasively by leading counsel for the Defendants during final submission, I wish to say specifically that I have borne each and every point in mind in my deliberation process. But at the end of the day, I have come to the conclusion that they were insufficient to tilt the balance in favour of the Defendants' case. None of these points is conclusive and they can only be described as pointers to a particular conclusion against which there are competing pointers and possibilities, and of course, on top of that, I do have the oral evidence given by the various witnesses. In no specific order, I will try to mention the more important ones of these points, but I must emphasize that I have taken all of them into account even though I may not mention them all here in order not to lengthen unnecessarily this judgment. 114.It is said that the Deceased was unlikely to have only mentioned the 2nd Plaintiff in the Chinese document thereby leaving out the 1st Plaintiff. In my judgment, the Deceased was only focusing on giving the 2nd Plaintiff a right to succession as if he were his own son in the Chinese document. I do not think that subjectively in his mind (as opposed to an objective construction of the Chinese document which may or may not bear the same result) he was leaving out the 1st Plaintiff, his wife; and moreover if he treated leaving his property to the 2nd Plaintiff as equivalent to leaving it to the 1st Plaintiff, I would not be surprised. 115.It is said that it was unlikely that the Deceased would have got the identity card number of the 2nd Plaintiff with him when the Chinese document was made. Wong said in evidence that the Deceased was in the habit of carrying pieces of paper with him containing information of all sorts. That was not challenged by the 2nd Defendant. Given the type of persons the Deceased was and his interest in many things including the 2nd Plaintiff's education, I find it not surprising that he knew or had ready access to the identity card number of the 2nd Plaintiff at the time. 116.It is said that the Deceased was a very careful person, yet he failed to notice that in the Chinese document allegedly written out for him by Xing, there was a mistake in relation to one of the Chinese characters. I find it not surprising at all. We all make mistakes, and in fact in the letters written by the Deceased that were put in evidence before me, there were obvious mistakes in terms of Chinese characters. 117.It is said that surprisingly the Chinese document did not contain the identity card numbers of the witnesses. But of course, in the Chinese document, the Deceased himself as well as his named successor, i.e. the 2nd Plaintiff, were obviously the more important persons. 118.It is said that the Deceased was unlikely to have asked Xing to write such an important document for him and left it as it was. And moreover, he would inevitably have formalized the Chinese document into a will prepared by lawyers after his return to Hong Kong. This is a possibility but I do not find this to be a conclusive factor in favour of the Defendants' case. There could be many reasons why he did not do so immediately after his return to Hong Kong, so for instance, if he was thinking then that after all his health was acceptable and there was no urgency to go to a lawyer's office to make a formal will (he was only 39 when he died), that would be a plausible explanation for his failure to turn the Chinese document into a formal will within 7 months after the making of it. 119.It has been correctly pointed out that the Chinese document did not appoint an executor; yet from his previous experience in making a will, the Deceased ought to have known that there was a need for the appointment of an executor. But to be fair, the will was made back in 1981, i.e. more than 11 years before. One wonders how much the Deceased could still recollect about the contents of his will other than the gist of it by the time he made the Chinese document, and how much he realized the need or importance of appointing an executor. 120.The Deceased's request to Dr Wu, a stranger living outside Hong Kong, to act as a witness was criticised as being unlikely. In my judgment, the request to Dr Wu to witness the Chinese document was clearly an attempt to get somebody independent from the 2nd Plaintiff (as to which both Wong and Xing were not) to be the witness of this document appointing the 2nd Plaintiff as the successor of the Deceased and giving him a right to succession. I do not exclude the possibility that in the Deceased's mind he entertained the thought of eventually formalizing the Chinese document by an English will made by solicitors in Hong Kong and properly attested to by independent witnesses easily available in Hong Kong. But that did not make his asking Dr Wu to be one of his 3 witnesses unbelievable or strange. 121.I find the Deceased's asking Xing to write out the Chinese document for him despite his fondness for writing things himself to be not surprising, given that he was not feeling well at the time. Since the document was written out by Xing, it reflected Xing's style of writing, i.e. a more formal style of writing as evidenced by her several letters written to Wong. I am, therefore, not surprised that the writing style of the Chinese document and the language used in it differed somewhat from the very colloquial style and language used by the Deceased in writing letters. In the Chinese document, the names of the witnesses appeared at the top half of the document. I do not find it to be particularly strange because Dr Wu's consent to act as a witness to the Chinese document may first have been obtained by Xing and the Deceased before Xing wrote out the Chinese document on behalf of the Deceased. After all, according to Xing's statement, it was Dr Wu from whom she borrowed pen and paper to write out the Chinese document. 122.As regards the Deceased's signing the Chinese document by a ball pen instead of his fountain pen, I would accept that normally the Deceased would use a fountain pen to write his signature. But taken at the highest, that was only a habit. I do not see why people cannot depart from their habits, and moreover if the conspirators went to such great lengths to manufacture this fake Chinese document and forge the signature of the Deceased, given the known habit of the Deceased in using a fountain pen to write his signature, it must have been the easiest thing on earth for the forger to use a fountain pen (instead of a ball pen) to forge the signature as part of the conspiracy. As I have said more than once in this judgment, to almost every argument, there can be one or more possible counter-arguments, of varying degrees of likelihood. My task here is to look at the evidence in its totality and come up with a finding based on the burden and standard of proof. 123.For reasons explained above, it is not surprising that in the contemporaneous fax written by the Deceased to his elder brother, he did not mention about the making of the Chinese will. As regards the failure to mention about his feeling unwell in the hospital, since he had recovered from it and perhaps in order not to cause any undue alarm to his elder brother, he did not mention it either. I find this to be a possible and indeed likely explanation for the fax and its contents. 124.It has been said that the Chinese document was folded in a particular way which suited well the envelope with the 7 Chinese characters written on it, which did not come into the picture until later. I think Mr Ho demonstrated it well, if not rather dramatically, during final submission, that the way the Chinese document was folded also suited the size of his shirt-pocket perfectly and that shows that Wong's account of what happened to the Chinese document immediately after it was made (i.e. the Deceased folded the Chinese document and put it in his shirt-pocket) is a credible one. 125.It was pointed out during final submission that Xing managed to write out the Chinese document without any amendment or draft and this makes the Plaintiffs' story unlikely. Judging from the several letters written by Xing to Wong which have been put in evidence, I would not find it surprising or inexplicable if Xing did not need to use drafts to help her write out the Chinese document or did not make any mistakes in writing out the Chinese document requiring amendment. Moreover, whilst Xing's statement did not mention any drafts or her writing out a clean copy after a draft had been dictated, it did not exclude such a possibility. Xing did not give evidence at trial and we simply do not have the opportunity of hearing what she may have got to say in cross-examination if such a specific question was put to her. Of course, I bear in mind that the burden is clearly on the side of the Plaintiffs to prove the genuineness of the Chinese document, but all I am trying to point out here is that such a possibility cannot be excluded simply because Xing did not mention any drafts in her signed witness statement. 126.At this juncture, it is convenient to mention the expert evidence of Dr Giles. Very fairly Dr Giles did not say that the signature must have been a forgery. She simply said that more likely than not it was a forgery given the discrepancies discovered by her. Her evidence was that given its simplicity, the usual signature of the Deceased was susceptible to simulation. That I totally accept and agree with. Throughout the trial and in my deliberation process, I have been very much alert to the possibility of forgery, fraud and conspiracy in the present case. 127.Finally, I should mention the evidence of the 1st Plaintiff. She gave evidence in a relatively straightforward manner, but she was emotional at times even after all these years and that from time to time clouded the clarity of her evidence. The fact that the examination of most factual witnesses was conducted in English, at the request of counsel, thereby necessitating interpretation, did not help the situation. Anyway, the 1st Plaintiff appeared slightly nervous throughout the time she was in the box. This could, on the one hand, be interpreted as a sign of her not telling the truth and having something to hide. But on the other hand, I also noticed that her nervousness was not only restricted to the time when she was asked or cross-examined about the more crucial parts of her case, such as the circumstances under which the will was discovered; it was indeed present throughout regardless of the content of her evidence. Having carefully considered the content of her evidence and her demeanour, not only in isolation but also in conjunction with all the other relevant evidence and material, I have come to the conclusion that she, like her brother and son, was also truthful and honest in the box. 128.She was cross-examined at great length about her relationship with her late husband. In particular, a letter to her son that had never been sent and that had been torn to pieces by her was relied on heavily in support of the Defendants' case that her marriage life with the Deceased was far from a happy one. I accept without hesitation her explanation that the letter only represented her momentary feelings at the time it was written (after an unhappy episode) and in general her relationship with her late husband was good and happy. As I said above, I am not surprised at all by the contents of the Chinese document, given the relationship between the Deceased and the two Plaintiffs. 129.Regarding her lack of knowledge of the Chinese document, Wong and Xing both said that the Deceased asked them specifically not to inform his wife about the making the Chinese document. I believe their evidence. As regards the 1st Plaintiff's belated discovery of the Chinese document, again I accept her evidence and explanation; in particular, during the initial period, she was overcome by grief and I would add that she was preoccupied by the funeral arrangement as well as the quarrels over the 2nd Plaintiff's status. I accept Wong's evidence that at this juncture and on one or two other occasions, he had mentioned to the 1st Plaintiff about the existence of a Chinese document made by the Deceased in which he recognized the 2nd Plaintiff as his own son. But as I said I also accept Wong's evidence that he did not realize the importance of the document. I also accept the 1st Plaintiff's evidence that at that stage she was quite unclear about this document and she did not realize the importance of the document either. She said Xing at a later stage (but prior to the discovery of the Chinese document) also told her over the telephone about the existence of this Chinese document recognizing the 2nd Plaintiff as the son of the Deceased and leaving property to him. 130.But by then, according to the 1st Plaintiff's evidence, she had consulted the family lawyer, Mr Lam, who told her that any such informal recognition was of no use because in order to constitute the 2nd Plaintiff as the son of the Deceased in the eyes of law, there had to be a formal adoption which never took place. That, in my judgment, sufficiently explained the lack of appreciation of the importance of the Chinese document during the initial months. Despite the service of a witness statement, Mr Lam was not called to give evidence to rebut the 1st Plaintiff's evidence in this regard. 131.Mr Cheung, the 1st Plaintiff's subsequent lawyer, did not recall anything of this sort. He told the Court that he only had a distinct recollection of what took place on 6 May 1997 when he suddenly received a call from the 1st Plaintiff about the discovery of an envelope inside the son's safe. I have considered the evidence of Mr Cheung carefully, including his answers given in-chief, during cross-examination and in response to questions from the bench. In my judgment, on a fair reading of his evidence as a whole, he was not definitely excluding the possibility of any mention by the 1st Plaintiff of a document recognizing the 2nd Plaintiff as the son of the Deceased, he was simply saying that he had no recollection of it. Furthermore, even assuming that the 1st Plaintiff had never mentioned the existence of the Chinese document to him, that would be understandable given the advice she had already obtained from Mr Lam, the previous solicitor, that any such document even if it existed was useless. Furthermore, she had not got hold of the Chinese document, and unless she could find it that would remain a totally useless document to her for all practical purposes. 132.As to her explanation for not opening the safe in the son's room earlier, I accept her evidence which was that it never occurred to her that her late husband would have placed such an important document, i.e. a will, in a safe jointly used by him and his teenage stepson. Like the 2nd Defendant, she obviously expected the Deceased to place anything or any document of any importance in the safe in the restaurant premises. And it was only when she had to vacate the Shatin premises that she felt the need to ask her son for the combination lock number and key to open the safe to empty the things for him, as she was not thinking of taking away the safe with her to her police quarters. As regards whether she was told over the phone by her son that there was an envelope on which it was written the 7 characters inside the safe, either one of them may have been mistaken about what had been said, which in my judgment is not surprising given the lapse of time. 133.As regards the 1st Plaintiff's evidence that Mr Cheung, the solicitor, had advised her over the telephone that she could either open the envelope herself or take the envelope to his office for opening, and Mr Cheung's different account that he only advised the widow to take the latter course, I think this can be easily explained by the lapse of recollection by the witnesses. In any event, if the widow's account was true, I find it nothing strange for her to choose the latter course. I find it nothing strange if she was suspecting that the envelope might contain something relevant to the probate matter, and after all she rang her probate lawyer in the first place immediately after the discovery of the envelope inside the safe. 134.Finally, I wish to say specifically that I have of course borne in mind the possible financial motives on the part of many to give false evidence at trial. The value of the estate of the Deceased was estimated by the 2nd Defendant to be over $45 million at the time of death. Regardless of the present value of the estate given the change in economic circumstances since 1996, no doubt the estate was and is very substantial. Throughout the trial and during my deliberation process, I was very much alert to this possibility and indeed all possible motives for lying. 135.I believe I have laboured sufficiently on what went through my mind in coming to my conclusion on the facts. Needless to say it is quite impossible, and I doubt whether it would be useful, for me to set out all the possibilities, arguments and counter-arguments that had gone through my mind before I came to the conclusion that I reached. The above only represents the more important points that went through my mind in the process. At the end of the day, I have reached the conclusion that the Chinese document was a genuine document made by the Deceased. It was discovered belatedly by the 1st Plaintiff for innocent reasons and under the circumstances described by her. Animo testandi 136.Having come to that conclusion, it only remains for me to mention and reject an argument raised by the Defendants that the Chinese document should not be admitted for probate because the terms of the Chinese document are of an equivocal character and it has not been proven to have been written animo testandi: Griffin v Ferard (1836) 1 Curt 33 at 34; Napper v Napper (1846) 10 Jur 342. 137.I reject this argument because in my judgment, the necessary testamentary intention appeared clearly from the Chinese document itself. Although the word "will" in English or Chinese was not specifically used, the 2nd Plaintiff was specifically called a "successor" or "heir" in the Chinese document. Under the document, the Deceased specifically recognized and declared that his stepson, the 2nd Plaintiff, was to become his "lawful successor" as from 6 February 1996 and he went on to describe his right to succession to be the same as that of a natural son's. Furthermore, after his death, his stepson, the 2nd Plaintiff, was to succeed to all his properties, which were to be distributed to him as if he were his natural son. 138.In my judgment, the Deceased was not so much recognizing the 2nd Plaintiff as his "natural son" as such. He continued to call the 2nd Plaintiff his "stepson" in the Chinese document. The reference to a natural son was made in relation to how his properties were to be distributed to the 2nd Plaintiff, his stepson, after his death. The more important point in the present context is that under the Chinese document, the Deceased was making provision for the distribution of his estate after his death. He was directing that the 2nd Plaintiff should share in his properties after his death and that the method of sharing was to be by reference to how a natural son of his (if he had one) were to share in his estate after his death. 139.In my judgment, he was not, by the Chinese document, trying to make an (invalid) adoption of the 2nd Plaintiff as his son, so as to enable him to share in his intestate estate upon his death in his capacity as an adopted son. Rather, he was naming the 2nd Plaintiff, his "stepson", as a beneficiary of his estate after his death, and this beneficiary's share in the estate was to be determined in accordance with how a natural son of his would have been entitled to share in his estate upon his intestate death. This is a fine but important distinction, and in my judgment, the Chinese document was clearly a will of the Deceased making testamentary provision for disposition of properties. The necessary intention was clearly there. As I said, I have no difficulty in rejecting this argument. Knowledge and approval 140.The second argument of the Defendants is that given the suspicious circumstances under which the Chinese document was made, the Court should adopt a highly vigilant and jealous approach towards proof of the Deceased's knowledge and approval of the contents of the document. See, for instance, Re the Estate of Ma Shiu-lim, deceased [1992] 2 HKLR 286, 291; Halsbury's Laws of England (4th ed) Vol 17 paras 906 and 907. I accept the general statements of law contained in these authorities but there are two good answers to the argument of the Defendants. First, given the nature of the Plaintiffs' case relating to the making of the Chinese document, knowledge and approval was never a live issue. This is not a case, for instance, of a dying testator making a will under suspicious circumstances, like the testator in Ma Shiu-lim, whose knowledge and approval of the purported will was therefore called into question. This is a case of a young testator who suddenly felt unwell for a short period of time whilst in hospital. He was conscious, he was alert, and his faculty had not been impaired. He dictated the document, and after it was made he kept the document. Indeed he kept it for more than half a year before he passed away. Knowledge and approval was not really in issue. 141.Secondly and in any event, even assuming that knowledge and approval were in issue, I believe I have demonstrated above that in fact I have adopted a jealous and vigilant approach towards the case of the Plaintiffs as a whole. I have considered all the points and suspicions raised by the known circumstances generally and by the Defendants in particular relating to the Plaintiffs' case. Many of them I have set out and dealt with expressly in this long judgment, and others I simply do not find the space or need to include here. But at the end of the day, it all boils down to the question of whether on a balance of probabilities, the Plaintiffs have satisfied me that this Chinese document was a genuine document made by the Deceased and whether he knew and approved of its contents. I have come to the conclusion that it was such a genuine document and the Deceased quite obviously knew and approved of its contents. Outcome 142.The upshot of all this is that I make an order decreeing probate of the Chinese document in solemn form of law. 143.This is not a proper occasion for the construction of the Chinese document to find out exactly what share the 2nd Plaintiff should have in the estate of the Deceased. I do not see fit to grant any declaration in this regard. All I need say is that the Chinese document covers the entire estate of the Deceased. In other words, the Deceased did not die intestate. His estate will therefore have to be distributed in accordance with the Chinese document as properly construed. 144.Since the Chinese document does not name an executor, letters of administration with the Chinese document annexed will have to be obtained. As to who should be granted the letters of administration, it would obviously depend on the proper construction of the Chinese document and thus the respective shares, if any, of the two Plaintiffs in the estate of the Deceased. Moreover, it is a matter between mother and son. It can be dealt with as a non-contentious matter. I need make no order relating to it. 145.Finally as regard costs, taking an overall view of the matter, I am of the view that the Defendants, as the Deceased's next-of-kins interested in intestacy, did no more than putting the Plaintiffs to strict proof of the Chinese document. Certainly they hired a handwriting expert to challenge the authenticity of the Chinese document, but given the circumstances of the present case, I would not say that that action on their part was totally unreasonable, particularly given that the expert views of Dr Giles were accepted by me (to the extent I indicated above). See generally my judgment in Wong Zhong Lan-xiang v Frank Wong HCAP 900002/1995 (18 April 2002) paras 98 to 102. 146.In those circumstances, I would make an order nisi that both the costs of the Plaintiffs and the costs of the Defendants be paid out of the estate of the Deceased, to be taxed if not agreed on a common fund basis. I give a certificate for two counsel. I further order that the costs of the 2nd Plaintiff be taxed in accordance with the Legal Aid Regulations (Cap 91). Unless any party applies to vary this costs order nisi within 14 days after the handing down of this judgment, it will become absolute upon the expiry of the 14-day period. 147.Lastly, I would like to thank counsel for their helpful assistance in this rather unusual case.
Representation: Mr B K Ho, instructed by Messrs S H Chan & Co, for the Plaintiffs Mr M K Wong SC and Mr James Cheng, instructed by Messrs Kwong & Lam, for the Defendants Remarks: Appeal to the Court of Appeal by 1st and 2nd Defendants. Appeal dismissed. Please refer to the appeal judgment of CACV000392/2002. |
Cases cited in this judgment
Further hearings and rulings under HCAP 1/2000