CHEUNG TING KAU, VINCENT v. KOO SIU YING AND ANOTHER

HCAP 4/2011

[2025] HKCFI 1401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 4 OF 2011

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J U D G M E N T

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A.  INTRODUCTION

1.  This action concerns the estate of the late Mr Lim Por Yen (林百欣) (“Mr Lim”), the founder and controlling shareholder of the Lai Sun Group (麗新集團), a group of listed companies including Lai Sun Development, Lai Sun Garment, Lai Fung Holdings and Lai Sun Hotels.  Mr Lim died in Hong Kong on 18 February 2005 aged 90.

2.  By this action, the plaintiffs ask the Court to pronounce in solemn form a will made by Mr Lim dated 3 December 2004 (“2004 Will”).

3.  This action was originally commenced by Mr Cheung Ting Kau Vincent (“Vincent Cheung”), a senior solicitor who qualified in 1972.  At the time of the execution of the 2004 Will, Vincent Cheung was the senior partner of Messrs Vincent TK Cheung, Yap & Co.  Vincent Cheung was also the executor named in the 2004 Will.  Vincent Cheung passed away in July 2021, and the plaintiffs took up this probate action as the alternative executrices named in the 2004 Will and became substituted as the plaintiffs. See: Order of Master J Wong dated 27 August 2021.

4.  The defendants in this action are Koo Siu Ying (顧瑞英) (“Madam Koo”), who claims to be a concubine of Mr Lim, and Ling Meng Chu, Pearl (林明珠) (“Pearl Ling”), the daughter of Mr Lim and Madam Koo.  The plaintiffs have brought this action against Madam Koo and Pearl Ling because they each entered caveats against the 2004 Will.  Under the 2004 Will, Madam Koo and her children with Mr Lim, Pearl Ling and Ling Wai Kwan Eric (林偉鈞) (“Eric Ling”), were completely disinherited.

B. FACTUAL BACKGROUND

B1.  Mr Lim’s family and business

5.  Mr Lim was a well-known businessman.  He came to Hong Kong in 1931 and established Lai Sun Garment in 1947.  In 1987, he diversified into real estate with Lai Sun Development.  Other than his interests in the Lai Sun Group, Mr Lim also held numerous properties and other investments in his lifetime.

6.  Mr Lim is described by the witnesses as a strong-willed and hard-working person who was very much devoted to his business.  He worked long hours and on public holidays.  He also continued to go into Lai Sun Group’s offices in Cheung Sha Wan to sign documents in 2004, when he was already 89 years old.^[1]

7.  Mr Lim’s family was divided into four separate households:^[2]

(1)  Mr Lim had two children by his first wife, Madam Lai Yuen Fong (賴元芳) (“Madam Lai”), Lam Kin Ming (林建名) and a daughter, Lam Shuk Ying (林淑瑩).  Madam Lai passed away in 2013.

(2)  Mr Lim’s 2^nd marriage was with Madam U Po Chu (余寶珠) (“Madam U”).  They had a son, Lam Kin Ngok Peter (林建岳) (“Peter Lam”), and a daughter, Lam Shuk Yue Mabel (林淑如) (“Mabel Lam”).

(3)  Mr Lim had a relationship with Madam Koo (who claims to be a concubine). There were two children from the relationship, Pearl Ling and Eric Ling.

(4)  Mr Lim also had a relationship with a Madam Choy Yin Hong (蔡妍紅) (“Madam Choy”), a resident of Taiwan.  They had one daughter, Lam Shuk Ling (林淑玲).

(5)  Mr Lim also had an adopted son, Lam Kin Hong Matthew (林建康) (“Matthew Lam”).

8.  Peter Lam joined Lai Sun Group after completing his university studies and assisted Mr Lim on almost all aspects of the business.  It is his evidence (which appears undisputed) that he was chosen as the successor to Mr Lim’s business empire in 1993.^[3]

9.  Several of Mr Lim’s other children also participated in the operations of the Lai Sun Group.  Lam Kin Ming and Matthew Lam respectively oversaw the businesses of Crocodile Garments and Lai Fung Holdings, whereas Mabel Lam took on jobs in Crocodile Garments and Wing Fook Piecegoods Co Ltd, a cloth trading company established by Mr Lim.^[4]

10.  In addition to Mr Lim and his children, at the time of the preparation and execution of the 2004 Will, the following individuals were part of the senior management of the Lai Sun Group and/or Mr Lim's trusted assistants:

(1)  Mark Lee Po On (李寶安) (“Mark Lee”), who joined Lai Sun Group in 1987 and served as an executive director of a number of the listed companies within the Group.  He worked closely with Mr Lim until his death.  He left the Group to take up a position at TVB in 2007.^[5]

(2)  Ho Wing Tim (何榮添) (“TimHo”), who joined Lai Sun Group in 1989.  He assisted Mr Lim in business and personal financial matters and reported directly to Mr Lim.^[6]

(3)  Yew Yat Ming, who joined Lai Sun Group in 1991 and was an executive director of Lai Fung Holdings at the time of Mr Lim’s death.^[7]

(4)  Janet Lam, Mr Lim’s personal secretary.

B2.   Disputes with Madam Koo and Pearl Ling

11.  It is not disputed that Mr Lim fell out with Madam Koo and Pearl Ling in around 2001 or 2002.  Their disputes largely arose out of a property development project in Shanghai undertaken by Highfit Development Co Ltd (“Highfit”):^[8]

(1)  Highfit was a company incorporated in Hong Kong whose majority shareholders were Madam Koo and Pearl Ling.^[9] It held a 60% interest in Shanghai Huifa Property Company Ltd (“Huifa”) (with the other 40% held by a Chinese partner),^[10] which had acquired a plot of land at 41 Hengshan Road.

(2)  Between September 1994 and April 2001, Mr Lim made substantial loans totalling between HK$454 million^[11] to HK$570 million to Highfit to finance the development project and guaranteed loans extended by Hang Seng Bank to Highfit in excess of HK$150 million.^[12]

(3)  In 2001, Mr Lim made formal demands for repayment of his loans to Highfit and commenced proceedings in HCA 1942/2002 against Madam Koo and Highfit in May 2002 for recovery of the loans.

(4)  In the same month, Hang Seng Bank commenced proceedings against Highfit in HCA 1700/2002 for recovery of its loans. After Hang Seng Bank obtained summary judgment against Highfit in February 2002, it recovered against Mr Lim as guarantor and assigned the benefit of its judgment against Highfit to Mr Lim.

(5)  Madam Koo and Highfit’s defences to the two proceedings were that the monies personally advanced by Mr Lim and the loan from Hang Seng Bank which he guaranteed were intended as gifts to Madam Koo, and he never intended Madam Koo and/or Highfit to repay those sums.  This was denied by Mr Lim who contended that they were business arrangements and repayable with interest.

(6)  In February 2003, Mr Lim claimed against Huifa for the sum of RMB 18,000,000 and froze its bank accounts.^[13] In response, Madam Koo caused Huifa to claim against Mr Lim for outstanding management fees.^[14]

(7)  Mr Lim discontinued the proceedings against Huifa in August 2003.^[15]  The other proceedings however remained on foot at the time when Mr Lim made the 2004 Will.^[16]

(8)  Despite the many and varied matters raised by Madam Koo and Pearl Ling in the aforesaid proceedings, there is no suggestion that Mr Lim’s actions in the proceedings were not valid actions of his because, say, he had no capacity.

12.  In January 2003, Pearl Ling also commenced proceedings against Mr Lim for defamation in respect of statements which Mr Lim had made in a press conference in May 2002.^[17]  Pearl Ling claims in her witness statement that these proceedings were not actively pursued and were left dormant, but it is not disputed that these proceedings were not withdrawn and remained on foot until the time of Mr Lim’s passing.^[18]

13.  It is the defendants’ case in these proceedings that they had reconciled completely and that the above disputes were “in the past”.  This is disputed by the plaintiffs’ witnesses in their evidence.^[19]

B3.   Preparation and drafting of the 2004 Will

14.  In broad terms, the evidence as to the preparation and execution of the 2004 Will is as follows.

15.  In around mid-2004, Peter Lam became aware of enquiries by various bankers and businessmen as to Mr Lim’s succession plans upon his eventual retirement from the family business.  Prompted by these enquiries, Madam U initiated discussions with Peter Lam, Lam Kin Ming, Matthew Lam, Mark Lee and Tim Ho on the transition arrangements for Mr Lim’s business empire.^[20]

16.  In June or July 2004, Madam U met with Mark Lee and Tim Ho for lunch at Ho Choi Seafood Restaurant (好彩海鮮酒家) in Cheung Sha Wan and they discussed the issue of Mr Lim’s health.  At the meeting, Madam U asked Mark Lee and Tim Ho to initiate discussions with Lam Kin Ming, Peter Lam, and Matthew Lam to agree on a succession plan and a plan for distribution of Mr Lim’s assets upon his death.^[21]

17.  After the lunch meeting, Tim Ho compiled a list of Mr Lim’s assets and prepared a draft distribution proposal (“Distribution Proposal”)for discussion by the family.  The draft was extensively discussed between Madam U, Lam Kin Ming, Peter Lam, Matthew Lam, Tim Ho and Mark Lee and revised on many occasions.^[22]

18.  According to Madam U, throughout this period, she regularly kept Mr Lim updated on the latest developments regarding the discussions on the Distribution Proposal.  In particular, Mr Lim was very firm that Madam Koo and Pearl Ling were not to share in his estate as they owed him substantial sums of money and he was very displeased with them.^[23]

19.  The proposed arrangements were also discussed between Mr Lim and Mark Lee, Tim Ho and Peter Lam on a number of occasions:

(1)  According to Mark Lee, since August 2004, he and Tim Ho went to Mr Lim’s residence to discuss with him the arrangement for succession on many occasions.  At the time, they were still avoiding explicit use of the term “will”.[24]

(2)  According to Mark Lee and Tim Ho, on a visit to Mr Lim’s residence in August 2004, they asked Mr Lim for his views as to which of his sons should take over which of his businesses. Mr Lim replied that Lam Kin Ming should run the garment manufacturing and Crocodile Garments’ businesses, as he liked those businesses, whereas Peter Lam should take over the property and entertainment businesses as he was more outgoing and business-minded.[25]

(3)  According to Mark Lee, he visited Mr Lim on many occasions in November 2004 to personally explain drafts of the Distribution Proposal, to which Mr Lim indicated his understanding and agreement.[26]  He also stated that by that time, the fact that a will was being discussed had become more explicit.[27]  He would report to Mr Lim every time there was a change on the draft.[28]

(4)  One evening in late November after the Distribution Proposal was finalised, Peter Lam and Mark Lee paid a visit to Mr Lim at his residence in Kowloon Tong.  They brought along the final version of the Distribution Proposal and a box of Beef Chow Fun (乾炒牛河), which was Mr Lim’s favourite dish. While Mr Lim was eating, Peter Lam sat next to him and discussed with him the contents of the Distribution Proposal.[29]

(5)  According to Peter Lam, Mr Lim appeared to him as usual and listened with good attention. Mr Lim commented that the proposal was good (好好), and reminded Peter Lam that there should not be any disputes amongst the beneficiaries.[30]

20.  The finalised Distribution Proposal dated 29 November 2004 was signed by Madam U, Lam Kin Ming, Peter Lam and Matthew Lam on 3 December 2004.^[31]

21.  Under the Distribution Proposal, Mr Lim’s assets were to be divided amongst Peter Lam (PL), Madam U (YPC), Matthew Lam (KH) and Lam Kin Ming (KM).  Madam Koo, Pearl Ling and Eric Ling would not receive any part of Mr Lim’s estate.  Madam Lai, Mabel Lam, Lam Shuk Ying, Madam Choy and Lam Shuk Ling (who have not sought to be joined in these proceedings) were not beneficiaries either.

22.  In parallel to the ongoing family discussions regarding the distribution proposal, in September or October 2004, Mark Lee approached Vincent Cheung to make arrangements for the drafting of a will.  In turn, Vincent Cheung asked Agnes Fung (a partner of his firm) to handle the process.^[32]

23.  On 15 October 2004, Agnes Fung met with Mark Lee and Tim Ho at Lai Sun Group’s offices in Cheung Sha Wan to take instructions regarding Mr Lim’s will.  Mark Lee and Tim Ho provided her with details regarding Mr Lim’s assets and how those assets were to be distributed.^[33]

24.  On 21 October 2004, Agnes Fung sent the first draft of what later became the 2004 Will to Mark Lee and Tim Ho.  Over the course of the next several weeks, the draft underwent several revisions on the basis of instructions and documents which were provided to Agnes Fung by Mark Lee and Tim Ho, including drafts of the Distribution Proposal.  Agnes Fung also prepared a Chinese translation of the draft of the 2004 Will.^[34]

25.  The 2004 Will was finalised on 2 December 2004.^[35]  The 2004 Will as executed provided that:

(1)  Vincent Cheung was appointed sole executor, whereas Carol Chow and Agnes Fung were appointed as alternative executrices (clause 3);

(2)  Peter Lam, Lam Kin Ming, Matthew Lam and Madam U were granted specific legacies of assets as contemplated in the Distribution Proposal (clauses 5 to 8);

(3)  The residual estate (after paying off debts and administration expenses) was to be distributed amongst Lam Kin Ming (the first HK$200 million, and 33% of the remainder), Peter Lam (50% of the remainder), and Madam U and Matthew Lam jointly (17% of the remainder) (clauses 10 to 11).

(4)  Madam Lai was not entitled to share in Mr Lim’s estate as she was old and already well taken care of by Mr Lim before his death, and that her son Lam Kin Ming is a beneficiary under the will (clause 14(i));

(5)  Madam Koo, Pearl Ling and Eric Ling were not entitled to share in Mr Lim’s estate as Mr Lim’s relationship with them had “deteriorated badly”.  Specific reference was made to Pearl Ling’s claim for defamation against Mr Lim and Mr Lim’s ongoing litigation with Madam Koo and Pearl Ling (clause 14(ii)).

26.  In the 2004 Will, Pearl Ling and Eric Ling’s English names were stated as “Pearl Liang” and “Eric Liang” respectively, and Eric Ling’s Chinese name was stated as “林偉君” instead of “林偉鈞”.  However, it is clear from context and not in dispute that these were references to Pearl Ling and Eric Ling.

B4.   Execution of the 2004 Will

27.  The 2004 Will was executed by Mr Lim at his residence in Kowloon Tong on 3 December 2004.

28.  Vincent Cheung arrived at Mr Lim’s residence at around 10 in the morning.  Separately, Agnes Fung and two assistant solicitors from Vincent TK Cheung, Yap & Co who were to be the attesting witnesses for the 2004 Will, Connie So and Eva Wong, had also arrived.[36]

29.  According to Vincent Cheung, Mr Lim recognised Vincent Cheung immediately and greeted him despite having not met him for over a year.  Mr Lim was alert and responsive in conversation. When Vincent Cheung explained that he had come with a will (平安書) for him to sign, Mr Lim confirmed he knew what the document was.[37]

30.  Madam U, Lam Kin Ming, Peter Lam, Matthew Lam, Mark Lee, Tim Ho, and Fung Kwok Hung (Peter Lam’s personal assistant) were present that day.  Peter Lam explains that they attended as making a will was regarded as a big event for Mr Lim, who was a very traditional Chinese man.[38]

31.  Dr Michael Lin (“Dr Lin”) (a radiologist, who since 2001 looked after Mr Lim’s general condition and would refer Mr Lim to see other specialist doctors)[39] also briefly attended Mr Lim’s residence that day and brought along two other doctors.  Shortly after Vincent Cheung and Mark Lee arrived, and before the execution process began, Dr Lin indicated that he had to leave to attend to other matters.  The two doctors brought along by Dr Lin stayed behind.[40]

32.  It later transpired that the two other doctors were Dr Chan Pui Hong (“Dr Chan”) and Dr Tony Kwok (“Dr Kwok”).  Neither Vincent Cheung, Peter Lam nor Mark Lee knew the two doctors.[41]  How they came to be in attendance will be discussed in more detail below.

33.  According to Mark Lee, his understanding was that Dr Lin’s attendance was arranged by Peter Lam, and Dr Lin in turn arranged the attendance of the two other doctors.[42]  According to Vincent Cheung, he did not know who instructed Dr Chan and Dr Kwok or why they were instructed, and he believed that they were there just in case Mr Lim needed medical attention.[43]

34.  After Dr Lin left, the two doctors asked Mr Lim several questions.  Vincent Cheung’s recollection was that they asked Mr Lim no more than 10 questions, and while he could not recall the first few questions, he could recall that Mr Lim answered them correctly and without incident.  Mr Lim correctly answered his name and address and recognised those who were sat around the table.  He was also able to recall the dates of Mid-Autumn Festival and Lantern Festival (元宵) in the Chinese calendar, but he mistakenly stated that the current US President was “Clinton”.  When informed that the US President was in fact President Bush, Mr Lim stated that he had not been following the news for some time.[44]

35.  The two doctors left after asking these questions and did not stay to witness the execution of the 2004 Will.[45]

36.  In this respect, it is the evidence of Peter Lam and/or Mark Lee that:

(1)  Shortly before 3 December 2004, when making arrangements for the execution of the 2004 Will, Vincent Cheung asked Mark Lee if a doctor would be present.  Vincent Cheung did not mention the purpose of arranging a doctor to be present, and Mark Lee assumed that this was to look after Mr Lim’s medical condition.^[46]

(2)  Mark Lee then informed Peter Lam of this.^[47] Peter Lam then called Vincent Cheung and asked him what type of doctor he had in mind, and Vincent Cheung asked whether a doctor would be arranged on standby in case medical attendance was required.  Peter Lam brought up Dr Lin (because he knew Mr Lim had been seeing Dr Lin),^[48] and Vincent Cheung said Dr Lin would be suitable.^[49]

(3)  Peter Lam then called Dr Lin and asked him to attend on 3 December 2004, informing him that Mr Lim would execute a will and asked him to keep an eye on Mr Lim.^[50]

37.  Peter Lam denies that he asked Dr Lin to attend for the purpose of assessing Mr Lim’s mental capacity.  In particular, he made the point that if he had wanted to arrange a doctor to assess Mr Lim’s capacity, he would have arranged for a specialist to attend (instead of Dr Lin, whom he knew was a radiologist).^[51]  It is also the plaintiffs’ case that Peter Lam (or indeed Dr Lin) would not have arranged for Dr Chan or Dr Kwok (who were both only general practitioners) to come if the purpose was to assess Mr Lim’s capacity to execute the 2004 Will.

38.  As Peter Lam did not arrange for Dr Chan and Dr Kwok to be present, on the day on 3 December 2004, he did not know who they were, and Mr Lim did not want them present.^[52]  The evidence of Peter Lam and Mark Lee is that when the two doctors began asking questions, they felt that Mr Lim was becoming impatient with them after a few questions, and thus the two doctors were asked to leave.^[53]

39.  Vincent Cheung then proceeded to explain the 2004 Will to Mr Lim.  While Vincent Cheung did not recite every word of the 2004 Will to Mr Lim, he went through it paragraph by paragraph in Cantonese explaining each paragraph in detail to him.  Vincent Cheung also provided Mr Lim with the Chinese translation of the Will for him to read while following his explanation.^[54]

40.  According to Vincent Cheung, the process took 15 to 20 minutes.  Mr Lim mostly listened attentively to the process.  Vincent Cheung found Mr Lim to be in good spirits, observant, attentive and alert throughout the entire process and believed that Mr Lim understood everything said to him.  He believed that Mr Lim fully understood that he was leaving his estate to Madam U, Peter Lam, Lam Kin Ming and Matthew Lam, and that Madam Koo, Pearl Ling and Eric Ling were not beneficiaries under the 2004 Will.  Mr Lim did not ask any nonsensical questions or give him any cause to believe that he did not comprehend what he was doing.^[55]

41.  Mark Lee gave a similar account.  When Vincent Cheung was explaining the contents of the will to Mr Lim, Mr Lim listened attentively, and had nodded to indicate his understanding, but did not say much.  He believed that Mr Lim was already well-aware of the contents because he (Mark Lee) had discussed the contents of the Distribution Proposal with him many times.^[56]

42.  At the end, when Vincent Cheung asked Mr Lim to sign the 2004 Will, Mr Lim asked whether he should sign on the English document or the Chinese translation, and whether he should use his English or Chinese signature.  Vincent Cheung told him to sign both documents, and use whichever signature he wished to use.^[57]

43.  Ultimately, Mr Lim signed both his English and Chinese signatures on the English language version of the 2004 Will, which were attested to by Connie So and Eva Wong.^[58]  Mr Lim also signed on the Chinese translation although these signatures were not attested.

B5.   Previous wills and testamentary scripts by Mr Lim

44.  It appears from the evidence that Mr Lim had executed several testamentary scripts prior to the 2004 Will:

(1)  There is a typed English document dated 23 September 1967 (“1967 Will”) under which the entire estate was to be sold and was to be divided into 12 equal shares to be held on the following trusts until all his infant children attained the age of 21 years:

(a)  1 share for Madam Lai, 1.5 share for Madam U, and 0.5 share for Madam Koo until their respective remarriages or deaths upon which such shares would pass to what was called the “ching sheung” trust (paragraph (d) below);

(b)  3 shares for Lam Kin Ming, 2 shares for Peter Lam, and 1 share for Eric Ling; and

(c)  0.5 share for each of Lam Shuk Ying, Mabel Lam and Pearl Ling;

(d)  The remaining 1.5 shares to be held in a “ching sheung” (蒸嘗) trust to be applied towards ancestral worship, education and maintenance expenses, and charitable purposes.

(2)  There is a Chinese manuscript document on Lai Sun Garment letterhead dated 2 February 1973 (“1973 Will”) under which the estate was to be divided into 12 equal shares and distributed as follows:

(a)  1 share each for Madam Lai and Lam Kin Ming, and a 0.5 share for Lam Shuk Ying;

(b)  1.5 shares for Madam U, 2.5 shares for Peter Lam and a 0.5 share for Mabel Lam;

(c)  0.5 share for each of Madam Koo, Eric Ling and Pearl Ling;

(d)  0.25 share for Madam Choy and 0.5 share for Lam Shuk Ling;

(e)  0.5 share for Lim Por Him;

(f)  The remaining 2.25 shares were to be used to set up a trust fund with income to be applied for charitable purposes and for the provision of financial assistance to relatives and friends.

(3)  There is a further Chinese manuscript document on Lai Sun Garment letterhead dated 20 January 1974 (“1974 Codicil”) which revoked the gift to Madam Choy and stated that Lam Kin Ming was not to be distributed with Lai Sun shares because he had already been given a substantial number of such shares.

(4)  There is also a typed Chinese document described as a “Declaration” (聲明書) dated 18 May 1993 under which Mr Lim granted 15% of his assets plus all his shares in Lucky Omen Ltd to Peter Lam after his death (“1993 Declaration”). The 1993 Declaration was prepared by Vincent Cheung on instructions given through Mark Lee, and was witnessed by Vincent Cheung and Tim Ho.^[59]

(5)  It is Peter Lam’s evidence that he was deciding at the time whether to stay on within the Lai Sun Group (where he had been working for more than 15 years by the time) or to start his own business.  The 1993 Declaration was executed by Mr Lim to assure Peter Lam of his position as Mr Lim’s heir and successor in the Lai Sun Group.^[60]

45.  The 1967 Will, the 1973 Will and the 1974 Codicil were discovered in Mr Lim’s safe deposit box kept with Bank of East Asia which was opened by Vincent Cheung upon Mr Lim’s death.^[61]  As to the 1993 Declaration, it is Peter Lam and Mark Lee’s evidence that it was well known within the senior management of the Lai Sun Group.^[62]

46.  It should however be stated that the plaintiffs (being only executrices of the 2004 Will) do not have any interest in relation to the 1967 Will or the 1973 Will and the 1974 Codicil.  Accordingly, the plaintiffs take no position as to their validity (which is a matter that forms part of the defendants’ counterclaims, apparently as an alternative to intestacy).

B6.   Mr Lim’s health condition in 2004

47.  Mr Lim was born on 1914.  He was 90 years old in 2004.

48.  There is no dispute that Mr Lim’s health gradually deteriorated in the last year of his life.  The medical evidence regarding Mr Lim’s condition will be considered in more detail below. At this juncture, it is sufficient to note the following important events.

49.  Mr Lim was diagnosed with prostate cancer in 2001.  He was referred by Dr Lin to Dr Wong Kwok Kee (“Dr KK Wong”), an urologist, who treated Mr Lim with hormone therapy and chemotherapy.  As a result of his diagnosis, Mr Lim also had to receive repeated blood transfusions.^[63]  In this connection, he had been seeing Dr KK Wong from 2001 up to his death in 2005.^[64]

50.  On 1 June 2004, Mr Lim was admitted to Hong Kong Adventist Hospital (“HKAH”) for a coronary stenting procedure.^[65]

51.  Shortly after his discharge from hospital, Mr Lim slipped and fell, sustaining a fracture in his left forearm.  On 7 or 8 June 2004, a plaster cast was applied.  He was readmitted to HKAH on 10 June 2004 due to a sudden change of his mental condition.^[66] 

52.  On 15 June 2004, Mr Lim was transferred to the Hong Kong Sanatorium and Hospital (“HKSH”).  Mr Lim was discharged from HKSH on 17 June 2004.  In the discharge summary for Mr Lim’s stay at HKSH, it was recorded that he was admitted for recuperation “after acute delirium”.^[67]

53.  On 2 August 2004, Mr Lim attended the outpatient clinic of Dr Jason Fong (“Dr Fong”) for a consultation.  Dr Fong first saw Mr Lim during his stay in HKSH in June 2004 (see paragraph 52 above).^[68]  Dr Fong administered a Mini-Mental State Examination (“MMSE”) on Mr Lim for which he gave Mr Lim a score of 8 out of 30.  Dr Fong’s evidence is that he considered that Mr Lim had moderate to severe Alzheimer’s Disease.  He prescribed a drug for treating Alzheimer’s Disease, and also a sedative to help Mr Lim sleep better.^[69]

54.  On 2 September 2004, Mr Lim was admitted to HKSH again to treat a pulmonary edema (fluid in lungs) resulting from his blood transfusion.^[70]  Mr Lim was discharged on 11 September 2004.^[71]

55.  Mr Lim executed the 2004 Will on 3 December 2004 as described above.

56.  During this period, Mr Lim was repeatedly admitted to HKSH for blood transfusions on 8-9, 12-13 November and 13-15 December 2004, and 17-19 January 2005.^[72]

57.  Mr Lim’s health sharply deteriorated on 20 January 2005, when Mr Lim choked while feeding at about 1 pm.  He was admitted to Hong Kong Baptist Hospital (“HKBH”)that afternoon where he was diagnosed with suspected aspiration pneumonia.^[73]

58.  On 31 January 2005, Mr Lim was transferred to Queen Mary Hospital where he was admitted directly to the intensive care unit.^[74]  Mr Lim eventually passed away on 18 February 2005.  Mr Lim’s cause of death was recorded as gangrene of the bowel and septic shock.

C. THE ISSUES AND OUTLINE OF THE PARTIES’ RESPECTIVE CASES

59.  The defendants ask the Court to pronounce against the 2004 Will on the following bases:

(1)  The defendants aver that Mr Lim, affected by moderate to severe dementia, was not of sound mind, memory and understanding and did not have testamentary capacity at the time of execution of the 2004 Will.^[75]

(2)  The defendants allege that the 2004 Will was obtained by the undue influence of Madam U and Peter Lam.^[76]

(3)  The defendants further allege that Mr Lim did not know and approve of the contents of the 2004 Will at the time of its execution.^[77]

60.  By the Counterclaim,^[78]the defendants as their primary position ask that the Court pronounce the 1973 Will and the 1974 Codicil in solemn form.  The plaintiffs, being only executrices of the 2004 Will, take no position on the validity of these previous wills.

61.  The plaintiffs’ case, in gist, is as follows:

(1)  The 2004 Will was duly executed, having been witnessed by a number of persons including Vincent Cheung and the attesting witnesses, all of whom were practising solicitors.[79] Many family members were also present at the execution.

(2)  Mr Lim was of sound mind, memory and understanding at the time of the execution of the Will.[80]

(3)  The 2004 Will was not obtained by undue influence of Madam U and/or Peter Lam.[81]

(4)  Mr Lim knew and approved of the contents of the 2004 Will, which was drafted on his instructions, was explained to him immediately before it was executed and to which Mr Lim indicated his agreement.[82]

D.  BURDEN AND STANDARD OF PROOF

62.  The principles regarding the burden and standard of proof in probate disputes have been set out by Ribeiro PJ in Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387, §§171-178:

(1)  A person who propounds a will has the legal or persuasive burden of satisfying the court that it is the will of the deceased.

(2)  The standard of proof is the balance of probabilities.  The proponent of the will is required to show on the preponderance of the evidence that it is the will of the deceased.

(3)  This means that the proponent of the will has the burden of proving on a balance of probabilities that (a) there was due execution of the will, (b) the testator was of testamentary capacity and (c) the testator knew and approved of the contents of the will.

(4)  Where a person disputes the validity of a will on the grounds that there is want of due execution, or of testamentary capacity, or of the requisite knowledge and approval, that person bears an evidential burden of putting the relevant ground of challenge in issue.  If the evidence adduced by him or otherwise arising in the case is of a sufficient cogency to raise such an issue, the court, when assessing the evidence as a whole at the end of the case, decides whether the proponent of the will has discharged the persuasive burden in relation to the relevant fact in issue on the balance of probabilities.

(5)  On the other hand, where a person seeks to challenge a will on the grounds that the testator was induced to make the will by fraud or by undue influence, such person bears the persuasive burden of establishing the fraud or undue influence.  This is because these pleas presuppose execution of the will by the testator.  The allegation is that such execution was procured by acts of fraud or undue influence.

(6)  The person propounding the will has no burden of disproving fraud or undue influence, although he is obviously likely in practice to adduce whatever evidence may be available to counter those allegations.  Where those issues are raised (assuming that the court is satisfied as to due execution, testamentary capacity and knowledge and approval), the court asks itself at the end of the day whether, having regard to all the evidence adduced, the person opposing the grant has satisfied the court that it is more likely than not that the testator was induced to make the will by fraud or undue influence, as the case may be.

E.  LAW ON TESTAMENTARY CAPACITY

63.  The test for testamentary capacity is well-established.  The locus classicus is Banks v Goodfellow (1870) LR 5 QB 549, where Cockburn CJ held at 564-565 that:

“The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice, or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead … than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law. …

… to the due exercise of a power thus involving moral responsibility, the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition. It is essential … that a testator (1) shall understand the nature of the act and its effects; (2) shall understand the extent of the property of which he is disposing; (3) shall be able to comprehend and appreciate the claims to which he ought to give effect; and, (4) with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.” (emphasis and numbering added)

64.  Before addressing each of the four criteria in greater detail, several preliminary points regarding this test should be noted:

(1)  First, the Banks v Goodfellow criteria do not require actual understanding but only the ability to understand.  As stated by Lewison LJ in Simon v Byford [2014] WTLR 1097 at §§39-40:

“… it is important to emphasise that at this stage what we are dealing with is capacity, in other words with potential. … testamentary capacity must not be conflated with knowledge and approval of the contents of the will. The latter requires actual knowledge and approval. But the former ‘requires proof of the capacity to understand certain important matters…

In other words, capacity depends on the potential to understand.  It is not to be equated with a test of memory…”

(2)  Second, the question of testamentary capacity is a practical question to be assessed holistically by reference to the whole of the evidence (not merely the medical evidence), and with the application of “judicial common sense”: Re Estate of Lau Heung [2020] 2 HKC 19, §19 (Lam VP, as he then was).

(3)  In other words, while medical evidence is of course relevant, relevant evidence may often come from factual witnesses (for example, who speak of their dealings with the deceased), and sometimes such evidence may override the medical evidence of the experts.  In Simon v Byford, Supra at §17, Lewison LJ cited with approval the following passage from Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197:

“The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased’s assets, the deceased’s family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation.” (emphasis supplied)

(4)  Third, in assessing whether the testator had testamentary capacity, the court may properly have regard to the rationality or irrationality of the dispositions in the will.  However, the focus of the inquiry must be on testamentary capacity, and not general questions of perceived morality.  This is because an irrational, unjust and unfair will must be upheld if the testator had capacity to make a rational and just one.  The court must not be “led astray by the drift of the evidence propelled by the underlying current of family rifts and sentiment and becomes lost at the sea of allegations and debates about morality and irrationality without a rudder”: Re Chiu Yau Chuen HCAP 9/2005 (unrep, 31/01/2012), §§76-79 (Poon J, as he then was).

(5)  Fourth and relatedly, the courts are mindful that many wills are made by people of advanced years, and that “slowness, illness, feebleness and eccentricity will sometimes be apparent – more so than in most persons of a younger age.  But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will… Nor will partial unsoundness of mind, which does not operate on the relevant capacities to appreciate the extent of and dispose of the estate, necessarily deprive the testator of testamentary capacity if it is shown that the will was signed during a lucid interval”: Re Estate of Griffith (1995) 217 ALR 284, 295 (Kirby P, as he then was).

(6)  Fifth, a person who lacks capacity due to defects in memory and comprehension may nonetheless acquire sufficient testamentary capacity if assisted by way of reminder and explanation: Hoff v Atherton [2005] WTLR 99, §§35 (Peter Gibson LJ), 58 (Chadwick LJ).

F.   CREDIBILITY OF FACTUAL WITNESSES

65.  This case largely depends on the credibility of the witnesses.  As set out in Law Ka Yan Thompson v Ho Kang Wing[2020] HKCFI 513 at §65, the following matters are to be considered in assessing credibility:

(1)  The totality of the evidence;

(2)  A lie does not necessarily prove the opposite of the lie, even though, depending on the subject matter and its significance in the case, it may indicate a consciousness on the part of the witness that the truth would not have assisted his case, or may amount to evidence that is corroborative of other evidence;

(3)  Inherent probabilities aided by contemporaneous documents or records that are not disputed or undisputable, circumstantial evidence tending to support one account rather than the other, and overall impression of the character or motivation of the witnesses; and

(4)  The intrinsic value of their evidence upon considering the totality of their evidence against the chronology of events, the available documentary evidence and the inferences based on inherent probabilities and/or undisputed facts.

F1.   The plaintiffs’ witnesses

66.  The plaintiffs’ witnesses have given inconsistent evidence, particularly in relation to the execution of the 2004 Will on 3 December 2004.  Dr Chan, whose evidence I find credible as explained below, contradicts all the plaintiffs’ witnesses who attended the occasion. It is also of note that none of the other factual witnesses called by the plaintiffs spoke about dementia in their witness statements, except Dr Fong, and Yew Yat Ming who denied Mr Lim had dementia.^[83]

F1.1  Dr Chan Pui Hong

67.  It is Dr Chan’s evidence that, before he was brought by Dr Lin to Mr Lim’s residence on 3 December 2004, he knew nothing about his attendance there.  When he was there, Dr Chan observed a mental examination on Mr Lim by Dr Kwok, whom Dr Chan thought was a geriatrician.  Unfortunately Dr Kwok has since passed away, and there is no evidence coming from him in the witness box in this case.  In any event, Dr Chan says Dr Kwok gave a negative indication after administering the examination on Mr Lim, despite pressure by other persons who were present.  Mr Lim then received an injection of vitamin B12 from Dr Kwok.  Dr Chan says that, before he left the house, and upon Dr Lin putting pressure on him, he wrote a statement and gave it to Dr Lin but which he did not sign.  Sometime later, shortly before Mr Lim’s death, Dr Lin again put pressure on him to make a second statement, which he signed this time.

68.  Dr Chan is unrelated to the family, and has no vested interest in the litigation.  He had no contact with the plaintiffs’ legal team before giving evidence under subpoena.  He can be taken as an independent witness.  I find Dr Chan to be a truthful and honest witness and have no hesitation in accepting his evidence.

F1.2  Dr Jason Fong

69.  In the witness box, Dr Fong says he had informed Dr Lin of the 2 August 2004 MMSE test result; and had discussed the issue of testamentary capacity with Dr Lin in the latter half of 2004.  Dr Fong accepts that a score of 8 out of 30 was indicative of severe dementia, but explains that he had moderated his assessment to take into account other factors, so that his “overall assessment” was that Mr Lim only had “moderate to severe Alzheimer’s” as of 2 August 2004.

70.  According to Dr Fong, Dr Lin indicated in their discussion that Mr Lim was to make a will, and Dr Fong then made it clear that Dr Lin would have to get someone to certify Mr Lim’s testamentary capacity.  I accept Dr Fong’s evidence and find it inconceivable that Dr Lin would not have informed Peter Lam or other members of the family about this.  It is of note that the plaintiffs commented in closing that “Dr Fong’s evidence was entirely credible”.

71.  In his first witness statement, Dr Fong referred to his consultations with Mr Lim, prescribing Reminyl in August 2004, which was later changed to Aricept and Ebixa.^[84] Under cross-examination, Dr Fong accepts that the medications would be switched when there was no improvement.

72.  On later occasions (19 August, 23 September, 14 October and 21 November 2004), Dr Fong wanted to perform the MMSE again on Mr Lim but was unable to do so, essentially because Mr Lim was uncooperative in that he was covering up a memory deficit, or was not in a suitable physical or mental condition.  One such occasion was the home visit around 21 November, when Dr Fong did not conduct any MMSE because Mr Lim was “physically not fit, and mentally not alert enough to repeat another test”.

F1.3  Dr Michael Lin

73.  Dr Lin, on his own admission, has been a friend of Peter Lam for decades.  He also was in contact with Madam U, and was closely associated with the Lim family, continuing in his role as their “medical concierge” (effectively a middleman or coordinator) even after Mr Lim’s death.

74.  Dr Lin explains that, in his role as “concierge”, he did not have much knowledge about Mr Lim’s treatments or medication, claiming that these were matters for the referred specialists such as Dr Fong or Dr KK Wong.  In relation to Dr Fong’s evidence that Mr Lim was referred by Dr Lin for “evaluation of his mental condition”,^[85] Dr Lin avoids suggesting in evidence that Mr Lim had mental issues, saying instead it was for “sleeping and behavioural disorder”, though he confirms that he was the person who decided Mr Lim needed a neurologist.  Moreover, Dr Lin repeatedly stated that he did not know Mr Lim was taking Alzheimer’s medication.  I find this improbable.  As I pointed out when Dr Lin was under cross-examination, in order to recommend the appropriate specialist doctors, he surely would have to know about Mr Lim’s condition.  The same applies to the types of medications he was taking.  I also note that Dr Lin regularly visited Mr Lim, who was consistently listed in the medical records as being under the care of or attended to by Dr Lin.^[86]

75.  Dr Lin denies relaying information from Dr Fong to the Lim family, explaining that he would leave this to the referred doctor.  This is in contradiction with Dr Fong who testified that he had told Dr Lin but not any family member about Mr Lim’s mental condition, because Dr Lin was the contact point and knew the family well.  Dr Lin says he cannot recall Dr Fong telling him about the result of the 2 August 2004 MMSE test and did not know what an MMSE test was until “years later”.  This is contrary to Dr Fong’s evidence. As for Dr Lin’s denial that Dr Fong had kept him updated about Mr Lim’s visits to Dr Fong, it is again contradicted by Dr Fong’s evidence.  I find Dr Lin’s evidence on these matters clearly incredible, as it is inconceivable that Dr Lin would not have known about these matters in his role.  Moreover, Dr Lin said he did not know much about psychiatry or neurology, but he gave detailed views on why Dr Fong’s assessment was unreliable.  I find Dr Lin knew much more than he claimed.

76.  I also find Dr Lin had lied on his discovery affidavit and had failed to give proper discovery.  In contrast to the “mile high” pile of medical documents he received regarding Mr Lim,^[87] Dr Lin gave discovery only to less than 100 pages of documents unrelated to Mr Lim’s mental condition, and not a single medical record between June and December 2004, except one irrelevant medical report dated 9 July 2004.  In his discovery affidavit, there was no mention of the typed sheet of paper Dr Lin said he received from Dr Chan, or the two statements Dr Chan said he had given to Dr Lin, all of which were clearly within the scope of the discovery order.^[88]  Dr Lin did not give any credible explanation apart from asserting he had never seen the discovery order.  This cannot be true as he swore an affidavit pursuant to the order.

77.  As for the events on 3 December 2004, Dr Lin says he did not know that a will was being signed.  This contradicts Dr Fong’s evidence of telling Dr Lin about the need to certify Mr Lim’s capacity, which Dr Lin said he could not remember.  It also contradicts Peter Lam’s evidence that Peter Lam himself told Dr Lin his father would sign a will that morning.^[89]  I do not find Dr Lin’s evidence on this issue credible.

78.  Similarly, Dr Lin denies that he had asked Dr Kwok to perform the mental examination.  However, he is the person who brought Dr Kwok along, and Dr Kwok had with him a list of questions for the examination.^[90]  Dr Kwok would not have brought the list and would not have started to conduct the examination if no one had told him to do so.  I find it inconceivable that it was anyone other than Dr Lin.

79.  Dr Lin insisted that he had left before the mental examination took place.^[91]  This is not credible given Dr Chan’s clear evidence that Dr Lin was present until after the end of the mental examination.  Moreover, Vincent Cheung stated in the further and better particulars (“FBPs”) that Dr Lin was present at the execution.^[92] No amendment was made to these FBPs and it remains the plaintiff’s pleaded case that Dr Lin was present. 

80.  In short, I find Dr Linto be a dishonest witness.  In particular, I find his account of the events on 3 December 2004 entirely incredible.  He was evasive, giving long rambling answers or responded with his own questions.  He was also extremely defensive, suggesting at one stage that he would sue the defendants’ counsel for defamation.  Further, when the defendants’ solicitors asked for the names of the other two doctors, Dr Lin tried to extract payment of HK$200,000 of his own fees for compliance with the third party discovery order in addition to his solicitors’ fees, and a verification fee to ‘verify’ the names of the two doctors at HK$25,000 per hour.  His explanation was effectively that the HK$200,000 was only a starting point for negotiation.  By contrast, he had no qualms about helping the second family and then subsequently Vincent Cheung, to retrieve Mr Lim’s medical records, in 2006 and again in 2012.^[93]  I regret to note that Dr Lin’s behaviour in this matter was entirely unbecoming of a professional doctor. 

F1.4  Peter Lam

81.  I find Peter Lam to be an unsatisfactory witness, whose evidence is evasive and unreliable.  He is the head of the Lai Sun Group and was well acquainted with Vincent Cheung, though he says he was not as close to Vincent Cheung as his father was.  He is moreover the person funding this action.

82.  It is Peter Lam’s evidence that he visited Mr Lim “whenever [he] had time” to make sure that he was “aware of up-to-date information about [Mr Lim’s] health”, such information coming “[c]ertainly from the doctors”.  Despite this, he did not notice any mental problems with Mr Lim in June or August 2004, including the delirious episode in June, which the experts agree would have been obvious to those around Mr Lim.^[94] Peter Lam maintains that he had not been made aware, until a very late stage, of Dr Fong’s assessment of Mr Lim’s mental condition or the result of the MMSE.  Repeatedly pressed, Peter Lam clarifies that it was only after Mr Lim’s death that he was made aware of these matters.  Just as I found it inconceivable for Dr Lin not to have known of Mr Lim’s mental problems, I find it equally inconceivable that Dr Lin, who was well known to Peter Lam, would not have told Peter Lam of the same.  I find that Peter Lam has not been frank about his knowledge of Mr Lim’s mental condition.

83.  Initially, Peter Lam said in evidence that he had “nothing to do with the drafting of [the Distribution Proposal]; it was already presented to [Peter Lam] by Mark Lee and [Peter Lam] simply took it to discuss with [Mr Lim] about it”.  He said he was “not personally involved in any discussions about which assets [he was] going to inherit from [his] father”.  When it was put to him that what he said contradicted Mark Lee’s first statement,^[95] Peter Lam was unable to give any coherent explanation as to why he denied taking part in the discussions.

84.  While Mark Lee stated in his witness statement that he had consulted Peter Lam about Mr Lim’s succession plan and that Peter Lam suggested him to speak to Madam U,^[96] Peter Lam in evidence denies making such a suggestion, or having knowledge about when and how Mark Lee and Tim Ho would speak to Madam U.  I find such a denial to be an attempt by Peter Lam to distance himself, as it is inconceivable that he would not have directed his subordinates Mark Lee and Tim Ho on how to handle such an important matter.  Both Madam U and Peter Lam obviously had a central role in the discussions as to how to distribute Mr Lim’s assets from the outset.

85.  In relation to the beef noodle dinner, Peter Lam’s evidence is that, prior to this dinner, he had never spoken to his father about the exclusion of the third family.  During the dinner, he says he spoke to his father about Highfit and also about Wisdoman.  This is inconsistent with his own witness statement, which stated that Mr Lim’s “only comment was that the proposal was good「好好」.  He reminded that there should not be any dispute among us”.^[97]  Peter Lam also says for the first time in evidence that he had brought the Distribution Proposal and a draft of the 2004 Will to the beef noodle dinner.  This is inconsistent with his evidence that he had never seen any of the seven drafts of the will prior to the final version.  Moreover, when it was put to him that none of what he said was mentioned in his statement, he backtracked by saying that the Distribution Proposal was part of the draft will.  Peter Lam’s evidence on the beef noodle dinner is highly unreliable.

86.  As for the execution of the 2004 Will, Peter Lam’s evidence is unsatisfactory in the following respects:

(1)  In relation to the doctors’ attendance, Peter Lam suddenly remembered in his supplemental statement, 20 years after the events, that Vincent Cheung had asked Mark Lee whether a doctor would be arranged, and later told Peter Lam on the phone that Dr Lin would be suitable.^[98]  This is inconsistent with Vincent Cheung’s witness statement^[99] that he did not know about Mr Lim’s medical problems,^[100] giving the impression that he only just happened to know that Dr Lin was Mr Lim’s family doctor.  Peter Lam also contradicted himself by saying “Vincent Cheung didn’t find it necessary for the presence of a doctor and he didn’t make a request to me”.

(2)  Peter Lam denies knowing about the need to certify Mr Lim’s capacity.  This sits uncomfortably with Dr Fong’s evidence that he had told Dr Lin about such a need for the purpose of making a will, as it is improbable that Dr Lin would not have told Peter Lam.

(3)  Most importantly, by saying in his supplemental statement that the doctors simply started to ask questions without prompting,^[101] Peter Lam sought to conceal Dr Kwok’s mental examination and his view that Mr Lim had failed it, and about Dr Lin being present throughout the whole process and did not leave early.^[102]  It is inconceivable that Peter Lam could have forgotten such striking matters.  His failure to tell the truth about the events on 3 December 2004 can only have been deliberate. 

F1.5  Mark Lee

87.  Mark Lee is a central figure in this case.  He is not part of the Lim family, but he is a close associate of Madam U and Peter Lam, and was entrusted by them to coordinate the preparation and execution of the 2004 Will.^[103]  His assistance in matters relating to Peter Lam’s divorce from 1994 to 1995 marks the high degree of trust held in him by Peter Lam.^[104] 

88.  Mark Lee stated in evidence that he “did put down all the important events at the time in [his first witness statement]”.  However, his version expanded from his first witness statement in 2014, which was in relatively neutral terms, to his much longer supplemental statement in 2021, and a further supplemental statement in 2024.  In the witness box, he did not give direct answers in cross-examination, but offered long rambling monologues further expanding his version.  He explained that he thought the case would settle and he would not have to give evidence in Court, or that he preferred to prepare succinct documents.^[105]  In my view, a sophisticated person like Mark Lee would have been well aware of the need to give a full and complete account of the important events in a witness statement for the Court. 

89.  An example of Mark Lee’s expanding version relates to his discussions with Mr Lim in the final months of his life:

(1)  In his first witness statement, there were only 3 references to discussions with Mr Lim: (i) the occasion in August 2004 when Mr Lim said Lam Kin Ming should run the garment businesses and Peter Lam should run the property development and entertainment businesses; (ii) the beef noodle dinner in November 2004; and (iii) the day of execution.^[106]

(2)  About 7 years later, Mark Lee mentioned in his supplemental statement that “between August and November 2004” he had discussed with Mr Lim “his succession plan and arrangements relating to his will” in the context of a discussion on Wisdoman.^[107] Mark Lee also stated in the context of discussing events from “June to August 2004” that he and Tim Ho had “[s]ince August 2004” gone to Mr Lim’s residence to ask him about his thoughts on succession.^[108]  He also said that in “November 2004”, he went to Mr Lim’s residence “multiple times” to explain to him the Distribution Proposal.^[109]  I find this version very different from Mark Lee’s first witness statement, presenting significantly more communication with Mr Lim.

(3)  When pressed in cross-examination on whether and how he took instructions from Mr Lim, Mark Lee says he saw Mr Lim “almost every week” from August to October 2004, and discussed business, personnel matters, lifestyle and distribution of assets, so that the “major things” for distribution had already been settled before Mark Lee spoke to Agnes Fung.  He further says that in around November 2004, he actually saw Mr Lim “two times a week, three times a week”.  He even says that “whenever there’s a change” to the draft will, Mr Lim would be informed.  Given the many changes across the various drafts of the will, I find this unrealistic and a clear exaggeration.

90.  On the important matter of choosing an executor, Mark Lee’s evidence is internally inconsistent and incredible:

(1)  In his first witness statement, Mark Lee stated that he consulted with Peter Lam and they both thought Vincent Cheung would be a suitable choice of executor; there was no suggestion that Mr Lim had been consulted.^[110]

(2)  In his 2021 supplemental statement, Mark Lee said he asked Mr Lim “which lawyer he would want to engage if he were to have some documents prepared for his succession”, and Mr Lim said he was “better acquainted” with Vincent Cheung.^[111] This was not mentioned in his first statement, and in any event Mr Lim did not say anything about the choice of executor even on this version.

(3)  Mark Lee only says in oral evidence for the first time that he had asked Mr Lim “if you have to make some documents and executor has to be found, is Cheung Ting Kau okay?”, to which Mr Lim said yes.  Mark Lee’s explanation for the discrepancy was that he did not know the technical difference between an executor and somebody preparing the will.  I find this implausible for a sophisticated businessman like him.  In §13 of his original witness statement, Mark Lee referred to having to choose an executor, so he plainly understood the difference.  Even Peter Lam accepts, after being pressed in cross-examination, that he did not actually ask Mr Lim about the choice of executor, as he felt it was not necessary.

91.  I also find Mark Lee’s evidence to be unreliable on the events leading up to and on 3 December 2004:

(1)  In his first witness statement, Mark Lee stated that Dr Lin left before the 2004 Will was signed, and the other two doctors asked certain questions but also left before it was signed.  After the doctors had left, Vincent Cheung reviewed contents of the will with Mr Lim, who signed it without any questions.^[112]

(2)  In his 2021 supplemental statement, Mark Lee said he remembered various other details, including Mr Lim being “quite energised”.  He also said that Mr Lim was able to point at him and say that he was the one who helped Mr Lim with the “calculations”.^[113] However, this is not corroborated by any of the other attendees, and did not feature at all in his first statement.

(3)  It was in his 2^nd supplemental statement in 2024 that Mark Lee said, for the first time, it was Vincent Cheung who asked for a doctor to be present, to “watch over” Mr Lim.^[114]  Mark Lee also said Vincent Cheung had told Mr Lim if he “did not feel well, he would not have to worry, as there were doctors present”.  This is at odds with Vincent Cheung’s statement.

(4)  Most important of all, Dr Chan’s evidence about the mental examination puts it beyond doubt that Mark Lee was concealing the truth of what happened on 3 December 2004.

F1.6  Agnes Fung

92.  Agnes Fung’s evidence is that she did not take any instructions from Mr Lim directly in drafting the 2004 Will, as she only spoke to Mark Lee and Tim Ho and never sought to go behind the instructions given by them.  She portrayed herself as merely a ‘drafter’ of the will, whereas Vincent Cheung would be responsible for other matters.  She admits that she made no effort to find out whether Mr Lim had made any previous wills, and did not know whether there was anyone being disinherited.

93.  It is significant that Agnes Fung accepts she did not make any enquiries about Mr Lim’s health, and did not know that he had been assessed as having moderate to severe dementia.  She agrees that this would have been a hugely important matter for her to have known, and would have caused her to “consider the whole position” and “investigate further”.  However, she was unable to explain meaningfully why she did not make any relevant enquiries, other than to say that “Mr Lim is still the client… we will have to get Mr Lim’s instructions as to what he wants to do next”.

94.  Admitting that she had never discussed the Golden Rule with Vincent Cheung, Agnes Fung cannot deny she did not comply with it.  A seasoned solicitor like her, who had drafted quite a few wills before the 2004 Will, could not have been unaware of the Golden Rule, and she does not contend otherwise.  Her excuses for non-compliance were essentially that Mr Lim was a special client because of his stature and was well known to Vincent Cheung.  These are not acceptable excuses.  Her failure to satisfy any of the requirements and obligations of the Golden Rule impacts negatively upon her credibility.

95.  On the importance of keeping an accurate and full attendance note, Agnes Fung says that “whatever attendance note would just say ‘execution done’”.  This clearly cannot be right.  After the execution of the 2004 Will, she did not make any enquiries as to whether anyone in the firm had made an attendance note; and did not ask Vincent Cheung about his attendance note which was subsequently “lost”, and which she herself never saw. 

96.  As for the events of 3 December 2004, Agnes Fung says that there appeared to be only two doctors present when the mental examination was carried out, and contends that Dr Lin had left earlier, so that Dr Chan could not have given any statement to Dr Lin there and then.  Agnes Fung’s evidence on the execution of the 2004 Will is inconsistent with that of Dr Chan.  I find her account of what happened unreliable and cannot be accepted.

F1.7  Other witnesses

97.  The evidence of other witnesses called by the plaintiffs can be summarised as follows.

98.  Tim Ho assisted Mark Lee on the issue of distribution of Mr Lim’s assets.  He says he did not know anything about Mr Lim’s health issues, or about his mental health.  When asked in re-examination whether he thought Mr Lim had mental health problems in the second half of 2004, he said “唔清楚”.^[115]  He says he cannot recall anything about the doctors asking questions or leaving on 3 December 2004.  While he denies telling Eric Ling that he could not visit Mr Lim in hospital or that the “Committee” had decided to disinherit Eric Ling, those answers reflect someone trying to distance himself from the family dispute which was “none of [his] business”.  I find Tim Ho to be a guarded witness, trying to stay out of the dispute by claiming not to remember much of the relevant events.

99.  Mabel Lam did not seem to know much about Mr Lim’s health condition.  Although she lived in the same house, she did not speak much to her father,^[116] nor to her mother Madam U about her father’s health.  She did not have much involvement in the inheritance issues, and did not even know she had been disinherited in the 2004 Will.  She did however comment that Madam U was “very strict” with her children.  I find Mabel Lam to be a generally credible witness.

100.  Janet Lam admits in cross-examination that there was a difference between Mr Lim’s condition before and after June 2004.  Before the coronary stenting operation in June 2004, he had done many more activities; whereas after the operation he did not go back to the office for a long time, spending most of the time reading newspapers when he was in the office, and conducting daily activities such as “seeing the doctors, or calling his driver for car”.^[117]  She says that after June 2004 he was a bit different (“爭啲”), and “relatively frail”.  Janet Lam gave a number of examples of Mr Lim handling documents to show that he was of sound mind.  She admitted that, when preparing her witness statement, she was asked to go through Mr Lim’s files to find examples of documents written or dealt with by him after June 2004.  These documents show little more than that Mr Lim could sign his own name and write some numbers in Chinese, but they were all that she could find.  I do not find these documents supportive of the plaintiffs’ case at all.  Overall, I find Janet Lam to be a slightly guarded witness especially when it came to matters relating to Mr Lim’s health.

101.  Katty Lam stated in her witness statement that it was Peter Lam who referred Dr Lin to Mr Lim,^[118] but her recollections about Mr Lim’s activities and mental condition were expressed in relatively vague terms.^[119]  She was also unable to remember anything much about the relevant events when cross-examined.  I do not find her evidence of much assistance.

102.  Yew Yat Ming is still employed in senior management at Lai Fung Holdings.  In his witness statement, in particular §§6, 8-9, Yew made it clear that Mr Lim was a very different person before and after the stenting operation in June 2004.  His oral evidence is not consistent with this, in particular, he repeatedly tries to resile from his statement that the dinner gatherings between Mr Lim and his staff had “ceased” after the stenting operation.  He also says that Mr Lim could remember 10 mobile numbers of his Mainland colleagues, when this was never mentioned in his witness statement, and I find it to be a matter he had made up.

103.  As to the Zenbo transaction, Yew’s evidence departed significantly from his witness statement.  He says Mr Lim accepted the buyers’ suggestion subject to the addition of a penalty clause Mr Lim imposed himself.  In contrast, he stated in §11 of his statement that Mr Lim simply agreed with the buyers’ suggestion and signed.  Yew gave evidence about a conversation with Mr Lim regarding the Zenbo transaction, saying that Mr Lim asked questions about the payment terms, and reminded Yew to “deal with the old buyer properly so that there would not be any other dispute”.  However, none of this was mentioned in his witness statement.  I find it implausible that 20 years after the events Yew could have suddenly remembered this.

104.  Given Mr Lim’s mental condition at the time, one would have expected some details to emerge as to how Mr Lim received assistance from others around him.  Instead, the evidence given by Yew is “actually more in the opposite direction”, indicating an even greater cognitive challenge than initially presented.  As pointed out by Prof Düzel, it is inconceivable that someone with even mild Alzheimer’s disease could have done what Yew described of Mr Lim, let alone moderate to severe Alzheimer’s disease.  I do not find Yew to be a credible witness.

F1.8  Hearsay material

105.  The plaintiffs also adduced hearsay material from three witnesses.

106.  Vincent Cheung changed his account in relation to the events of 3 December 2004 as to when Dr Lin left.^[120]  He refrained from disclosing the presence of Dr Chan and Dr Kwok until his witness statement in 2014, and did not mention them at all in his FBPs.^[121]  Although he gave evidence of a mental examination occurring,^[122] he refrained from saying anything about the result of the examination or what Dr Kwok said about the result, which we now know from Dr Chan’s evidence.  I find that Vincent Cheung was concealing what actually occurred on 3 December 2004.

107.  In his witness statement, Vincent Cheung said he had not seen Mr Lim for over a year and was not aware of his hospitalisations and cancer treatment.^[123]  Moreover, there was no explanation by him as to the lack of efforts to comply with the Golden Rule or solicitors’ obligations in relation to execution of a will by an aged testator.

108.  Mr Lim/Lai Sun was a longstanding client of Vincent Cheung’s firm.^[124]  He must have known that Peter Lam was Mr Lim’s chosen successor and was in control of the Lai Sun Group.  It would be important for him to remain on good terms with Peter Lam, who stood to benefit significantly under the 2004 Will, more so than under the previous wills under which the residuary estate had been divided amongst many more beneficiaries.  Peter Lam did not deny that he was friends with Vincent Cheung, merely saying that they were not as close as his father was to Vincent Cheung.  I find that Vincent Cheung was not in any sense an independent or disinterested witness, and that his interests and the interests of Peter Lam were aligned in seeking to uphold the 2004 Will.

109.  Madam U Po Chu’s witness statement made no mention of the doctors or the mental examination, and instead stated that the execution on 3 December proceeded “smoothly”,^[125] in contradiction of Dr Chan’s evidence.  In relation to the lunch with Mark Lee and Tim Ho in mid-2004 at Ho Choi Restaurant, Madam U stated that she had expressly told Mark Lee at the lunch that Mr Lim would not leave anything to Pearl Ling.  However, this is not corroborated by either Mark Lee or Tim Ho.  Madam U also made no mention at all of Mr Lim’s dementia or Alzheimer’s disease.  It is inconceivable that, having lived with him throughout the relevant period, she would not have known.  I find Madam U’s evidence to be untrue. 

110.  As Peter Lam said, Madam U did not like Madam Koo, Pearl Ling or Eric Ling, and she prevented Madam Koo from communicating with Mr Lim after September 2004.  Given that Madam U’s statement goes to highly contentious matters regarding the preparation of the 2004 Will and the extent of communications with Mr Lim about its contents, it cannot be accepted without cross-examination and must be given no weight in any event.

111.  Lam Kin Ming’s witness statement should similarly be accorded little weight in the absence of cross-examination.  It deals with contentious matters, such as the execution of the 2004 Will, the funeral and the exclusion of Eric Ling from visiting Mr Lim.  It also was provided belatedly in discovery, and was never exchanged as a witness statement.

F2.  The defendants’ witnesses

112.  Although the defendants were cross-examined at length, their evidence is at best of peripheral relevance.  It is only relevant to the issues of (i) irrationality of exclusion, in particular, whether there was a reconciliation with Mr Lim, which is only one part of the defendants’ case on testamentary capacity; (ii) Mr Lim’s mental condition in the 2000s to a limited extent, bearing in mind that the defendants had not seen Mr Lim after late 2003, and in the case of Eric Ling, after June 2004; and (iii) undue influence.

G.  EXPERT EVIDENCE

113.  The parties each called a psychiatric expert and a neurological expert to give evidence.

114.  As accepted by the defendants, the experts are attempting to conduct a retrospective assessment of capacity based on limited materials and without ever seeing Mr Lim.  On the other hand, not even the plaintiffs’ experts positively opine that Mr Lim had testamentary capacity.

115.  Prof Jacoby, called by the plaintiffs, takes the view that there is insufficient medical evidence to form a firm opinion on Mr Lim’s testamentary capacity, and that it would depend on the non-medical evidence, which is a matter for this Court.^[126]  He remains of the same view under cross-examination in light of the evidence now available.  Prof Jacoby emphasised that he was “not trying to argue that [Mr Lim] did have testamentary capacity”, and that he was simply saying “on the evidence that [he had] seen, [he] could not say that [Mr Lim] did or did not have testamentary capacity…”. Dr Woo, also called by the plaintiffs, opined that there was insufficient evidence to determine whether Mr Lim possessed testamentary capacity when he executed the 2004 Will.^[127]  He maintains this view under cross-examination, stating “I’m not saying that he can, right, I’m still at the point that eventually, at the end of the day, I say I don’t know, right”.  Given that the persuasive burden lies on the plaintiffs to prove testamentary capacity, the expert evidence adduced by them is not enough for them to succeed.

116.  The defendants’ experts take the view that Mr Lim had severe dementia at the material time and did not have testamentary capacity.  Prof Burns opined that on the balance of probabilities, Mr Lim lacked testamentary capacity on 3 December 2004, because of his severe dementia.^[128]  He takes the evidence of Dr Fong and Dr Chan as strengthening his view.  Prof Düzel likewise took the view that Mr Lim did not have testamentary capacity on 3 December 2004, because of his severe dementia.^[129]  Both Prof Burns and Prof Düzel maintain their views under cross-examination.

117.  The following general observations can further be made on the reliability of the expert evidence:

(1)  Prof Jacoby and Prof Burns are both well-respected experts in psychiatry.  I find that they gave evidence in good faith to assist the Court.  As Prof Jacoby stated, they agreed on the principles, and the real question was the Court’s application of those principles to the facts of the particular case.  This large measure of agreement is also reflected in the table at §14.6 of Prof Burns’ Report.  The difference between them lied principally on the significance to be attached to the result of Dr Fong’s assessment on 2 August 2004, and the fact that he was unable to administer the MMSE on Mr Lim on multiple subsequent occasions.  As will be discussed in sections H2 and H3 below, these matters plainly are relevant to the question of capacity, and they support a finding of lack of testamentary capacity.

(2)  Dr Woo adopted a fairly neutral stance in his Report and accepted that, on the basis of Dr Fong’s diagnosis on 2 August 2004,Mr Lim had moderate to severe Alzheimer’s disease and may not have had capacity to execute a complex will on 3 December 2004.^[130]  

(3)  However, Dr Woo changed his view completely in his Joint Report with Prof Düzel.  The defendants’ criticism that Dr Woo did so without justification is in my view valid and justified.  Dr Woo attacked Dr Fong’s conduct of the MMSE and clock-face drawing tests, the accuracy of which he had accepted in his first Report.  In his attack, he made use of additional medical records which did not concern the assessment on 2 August 2004.  His attack was not supported by evidence, for instance, speculating that Dr Fong had not made sure Mr Lim could hear his questions.  I find this to be unfair towards Dr Fong, as Dr Woo himself agreed that Dr Fong was an eminent neurologist and had the added advantage of seeing the patient in person many times.

(4)  In his oral evidence, Dr Woo places great weight on the fact that Mr Lim had signed a consent form for the stenting operation in June 2004.  This was not readily apparent in his reports. For reasons explained in section H4 below, the consent forms cannot bear the weight Dr Woo now put on them.

(5)  Prof Düzel’s neurological expertise and understanding in dementia, Alzheimer’s disease and memory loss were superior to Dr Woo, as Dr Woo graciously accepted.  Prof Düzel’s evidence was careful and supported by sound and cogent reasoning.  He explained convincingly the effect of the delirious episode, and Mr Lim’s co-morbidities, on his underlying dementia, both in terms of whether it could return to “baseline” (ie the pre-delirium state) after the resolution of the delirium, and how the course of progression would be affected.  How an expert deals with his weakest points under cross-examination is a telling indicator of his reliability.  In this respect, Prof Düzel was fair and balanced, readily accepted the limitations of his opinions,^[131] and was also willing to clarify or correct his opinion to the extent they were not expressed clearly or correctly in his reports.  I accept Prof Düzel’s evidence.

118.  The plaintiffs repeatedly criticised the defendants’ expert evidence, especially that of Prof Düzel, for being mere “theoretical possibilities”, dependant on the individual patient.  I find such criticism unwarranted.  First, Prof Düzel’s evidence is adduced to dispel the theory put forward by Dr Woo for the plaintiffs, which itself is based on the general progressive rate of dementia (see: paragraph 121 below).  Second, the points advanced by Prof Düzel are well reasoned, supported by the objective medical records as explained cogently by him in his reports and in the witness box.  They are based on his extensive experience as both a research and clinical neurologist who has headed a memory clinic for over a decade and sees up to 10 patients per month in the course of that work.^[132]  His expertise was clearly superior to that of Dr Woo^[133]. In any event, as pointed out already, the legal burden falls on the plaintiffs to disprove matters raised by the defendants on a balance of probabilities.  Merely asserting that the experts only raised possibilities and that their application to each patient depends on individual circumstances does not take the plaintiffs’ case anywhere.  To hold otherwise would be to improperly reverse the burden, when the plaintiffs have fallen short of discharging that burden.

H.  TESTAMENTARY CAPACITY

H1.   Mr Lim’s medical condition by June 2004

119.  The medical records obtained by the defendants show Mr Lim as an elderly and infirm man who was already suffering a host of physical conditions (such as prostate cancer and coronary heart disease), long before June 2004.  After June 2004, Mr Lim’s mental condition took a significant turn for the worse.

120.  In June 2004, Mr Lim was admitted to hospital a number of times.  He was referred by his family physician Dr Lin to a neurologist, Dr Fong, for evaluation of his mental condition,^[134] because he was “confused” at the hospital.  As reflected in the contemporaneous medical records, Mr Lim was exhibiting visible signs of mental disorder or confusion necessitating the referral:

(1)  On 10 June 2004, according to HKAH’s Admission Interview, Mr Lim was “discovered to be dull; slow response, drowsy”.^[135]  At around the same time, Dr YS Lo recorded that Mr Lim had “2d[ays] h[istory] of ↑ weakness, confusion & disorientation”; and that he was “very lethargic and unable to communicate effectively”.^[136]

(2)  On the same day, a CT brain scan was done on Mr Lim.^[137]  The CT scan report noted the existence of periventricular hyperintensity consistent with chronic deep white matter ischaemia.  As Prof Düzel explains, this means that there was stiffening of the small arteries (ie small vessel disease) in the brain, causing structural changes to the white matter surrounding the ventricles (holes in the brain), leading to reduced blood flow in these regions (ischaemia).  Although Prof Düzel accepts that this is not diagnostic of Alzheimer’s, nevertheless it often appears together, and is consistent, with the clinical picture of Alzheimer’s in a patient particularly of Mr Lim’s age.

(3)  Dr Fong first saw Mr Lim at HKAH on 10 June.  He noted in the Consultation Record that Mr Lim was suffering from “generalised malaise, [reduction] in alertness for [2 out of 7 days] + disrupted sleep pattern”, and taking into account the CT scan, he said that the clinical picture was “suggestive of metabolic or [infective] encephalopathy”.

(4)  On 12 June 2004, Mr Lim was recorded as feeling “alert and orientated” but “claimed had bad memory”.^[138]  The fact that a patient remains conscious and alert does not exclude dementia, as Prof Düzel explained in the Joint Report; the diagnosis of dementia requires the person to be alert and conscious.^[139]

(5)  On 14 June 2004, Mr Lim complained of left upper chest pain and was “asking about his sons”, “alert awaked. however bit confuse, keeps on mumbling”; and “[k]eeps on asking for his son. for discharge. try to get out of bed for few times. Unable to recognise date”.^[140]

(6)  Dr Fong said he saw Mr Lim on a daily basis during this period.  On the morning of 14 June, he asked some screening questions to assess Mr Lim’s mental state, but Mr Lim was unable to perform any of the tasks asked of him.  Dr Fong noted in his own handwriting that Mr Lim had “poor attention span” and was “unable to construct clock face or perform serial 7 calculations”, and was affected by “nocturnal hallucinations”.  He observed that Mr Lim had “[a]cute delirium” and also made a preliminary assessment of “? early Dementia?”.^[141]

(7)  Various other medical records between 10 and 14 June 2004 noted a “change of mental status” in Mr Lim.^[142]

(8)  On 15 June 2004, Mr Lim woke up at 05:00 asking people to renovate his office and mumbling.^[143]

(9)  On the same day, Mr Lim was discharged from HKAH, and transferred to HKSH.  The HKAH’s discharge form, presumably signed upon Mr Lim’s discharge, was not signed by Mr Lim himself but by Lester Lam.^[144]  Dr Fong saw Mr Lim in HKSH for “mental study”,^[145] but because Mr Lim’s physical condition was generally not good at the time, he did not conduct any tests of mental condition.^[146]  Upon discharge on 17 June 2004, it was recorded by Dr KK Wong that Mr Lim had suffered “acute delirium”.^[147]

H1.1  Progression of dementia

121.  One key point made by the plaintiffs is that in the normal course of dementia, a patient’s condition would not be expected to worsen as rapidly as what seems to have happened to Mr Lim, given that the evidence before June 2004 suggests no worse than mild or moderate Alzheimer’s.  Acknowledging that there are “no definitive means to determine the rate of decline”, Dr Woo says that generally an average annual change of 2 to 4 points in the MMSE is noted in patients with probable Alzheimer’s disease.  On this basis, he extrapolates that Mr Lim’s dementia must have begun in 1999 or 2000 if he had severe dementia by August 2004.^[148]

122.  However, I agree with the defendants that the plaintiffs’ argument breaks down for the following reasons.

123.  First, it is well established that the typical Alzheimer’s disease pathology may not be applicable for patients in Mr Lim’s age range:

(1)  According to Prof Düzel’s experience, people in this age range who have clinically normal Alzheimer’s disease do not only have the typical Alzheimer’s pathology, but also additional different pathology that one would find in other neurodegenerative diseases.  In particular, even if the dementia is caused by Alzheimer’s rather than cerebrovascular causes, at Mr Lim’s age the dementia usually comes with vascular complications and/or microvascular changes.  This is supported by the findings of the CT scan referred to at paragraph 120(2) above.

(2)  Support for this can be found in the McKhann and Dolan papers referred to in the reports.^[149]  In essence, the Dolan paper found that the relationship between dementia and Alzheimer’s disease pathology in the oldest subjects is somewhat different than in younger persons.  This is illustrated by Figure 2 of the paper, which plots the composite Alzheimer’s disease score (representing the level of Alzheimer’s pathology present) against the dementia rate (which represents the prevalence of dementia, ie how frequently dementia occurs amongst the age group in question).  The graph shows that at a given level of pathology (especially in cases of lower pathology), the occurrence of dementia is more likely at the higher age range (90-102) as compared to the lower age range (70-89).^[150]  Atherosclerosis (ie the thickening or hardening of the arteries) is put forward in the paper as an important aetiology of dementia at the higher age group.  Thus, the advent of dementia in the older age group may require less pathology related to Alzheimer’s disease as in the younger age group.^[151]  This corroborates the findings of the CT scan, which clearly showed that Mr Lim had small vessel disease in the brain, as Prof Düzel mentioned in both his written^[152] and oral evidence.

124.  Second, the effect of Mr Lim’s physical illness (ie prostate cancer, anaemia requiring blood transfusions, coronary heart disease requiring the stenting operation, and the fall and fracture of the arm), together with the undisputed episode of delirium in June 2004, was likely to accelerate the course of his underlying dementia, in the light of the various co-morbidities which were suffered by him:

(1)  The experts agreed that the delirious episode occurred against a background of underlying dementia.^[153]  There is no real dispute by the experts that a physical illness, causing delirium, can have the effect of ‘catapulting’ or worsening the underlying dementia.  Prof Jacoby and Prof Burns both agree with this proposition in their evidence, as did Prof Düzel.  There is no reason to doubt Prof Düzel’s view that the probable cause of the delirium was the pre-existing Alzheimer’s disease plus a trigger in the form of an infection and a fractured arm.

(2)  While accepting that a physical illness with delirium could catapult the underlying dementia, Dr Woo says it depended on the severity of the precipitating physical event.  He considers it necessary for the physical illness to be a very severe metabolic illness causing a significant loss of neurons, such as cardiac arrest or aspirational pneumonia.  In the absence of a physical illness of such severity, Dr Woo opined that Mr Lim would have returned to his “premorbid state” (ie the “baseline”), and that the delirium was a “self-limited reversible illness” which did not aggravate his dementia at all.^[154]

(3)  However, as Prof Düzel explains, this is too limited a view.  Alzheimer’s disease generates toxic proteins (amyloid and tau) which attack the neurons in the brain.  Thus, if the patient already has other physical conditions which make the neurons more vulnerable to attack (such as inflammation, anaemia, metabolic dysfunction), so that those neurons are unable to resist the attack and die faster, then that would render the patient unable to return to the premorbid state and would lead to a more rapid progression in his dementia.

(4)  In Mr Lim’s case, the relevant co-morbidities included vascular insufficiency in the brain (as shown in the CT scan), prostate cancer, hypertension, inflammation (not necessarily of the brain itself, but of other parts of the body) and anaemia.  These conditions would make neurons in the brain more vulnerable to attack, and also disrupt the blood-brain barrier which further exacerbates the vulnerability.^[155]

(5)  In particular, around the period of November and December 2004, Mr Lim’s levels of haemoglobin on various occasions fell well below the normal level of around 8 g/dl, dropping on some occasions to 6.7 g/dl^[156] and even 5.5 g/dl,^[157] necessitating repeated transfusions.  The existence of such anaemia would have affected the supply of oxygen to the brain, and would have left Mr Lim more vulnerable to dementia, with less reserve capacity and ability to cope with the dementia.  Dr Woo in his report referred to Mr Lim’s haemoglobin level of 8-9 g/dl on 3 December 2004 and said “[t]his level of anemia should not significantly impair his mental function”.^[158]  However, (i)there was clearly some cherry-picking of figures of haemoglobin levels by him, omitting for example the significantly lower 5.5 g/dl recorded on 9 November 2004; and (ii)the pertinent question, as Prof Düzel observes, is not whether the anaemia itself affects mental function, but rather how it contributes to the impact of Alzheimer’s disease and dementia, which is not apparently considered by Dr Woo.

(6)  As Prof Düzel summarised in his report at §85(g): “Alzheimer’s Disease is a progressive disorder and the speed of progression depends on the overall general health of the individual.  The late Mr Lim was a multimorbid patient, notably suffering from coronary heart disease, prostate cancer with metastases, pulmonary problems, and severe anaemia with the need for regular blood transfusions.  Hence, Mr Lim was prone to showing a rapid progression of the disease.  In addition, it seems likely that there was an acute accelerating incident in early June 2004.”

(7)  When the above paragraph was put to Dr Woo in cross-examination, he agreed with most of it, even agreeing generally with the proposition that Mr Lim was “prone to showing a rapid progression of the disease”.  He only disagreed with whether the acute accelerating incident in early June was sufficient to generate the rapid progression.

125.  Third, given Mr Lim’s various medical complications and co-morbidities, and the accelerating effect of the delirium on the underlying dementia, I find that Prof Düzel was justified to take the view that it was likely that Mr Lim was not undergoing a normal progression of dementia, but an abnormal or atypical course.  As to how quick the abnormal rate of decline would be in terms of likelihood, it is something on which Prof Düzel fairly accepts he cannot express a view, because it depends on the circumstances.  Nevertheless, Prof Düzel is justified in his view that as a result of his co-morbidities and the episode of delirium, Mr Lim would not be able to recover to the original ‘baseline’, and would have an atypical and accelerated course of progression of dementia, as opposed to the “natural” course.

H1.2  Prescription of Reminyl by 17 June

126.  The HKSH’s discharge records on 17 June 2004 show that Mr Lim had already been prescribed with Reminyl at a dosage of 4 mg twice a day.^[159]  There is no dispute that Reminyl is a drug indicated to treat Alzheimer’s disease.  It is generally for mild Alzheimer’s disease onwards, but there is no upper limit of severity.

127.  Dr Fong initially said in evidence that he was the one who had prescribed Reminyl on 17 June 2004, but later acknowledged the possibility that it was some other doctor, because he subsequently prescribed Reminyl at a lower dosage which would be unlikely if he had made the June prescription.

128.  If it was Dr Fong who had prescribed Reminyl on 17 June, it would have meant that he was fairly confident of the existence of Alzheimer’s, as the drug is indicated for Alzheimer’s and not other degenerative brain conditions.  Prof Düzel said it would at least indicate Dr Fong strongly suspected Mr Lim had Alzheimer’s disease.  This is particularly so given the drug has side effects and is not an acute or emergency medication, and therefore some caution would have been applied before prescribing it to someone in Mr Lim’s position.  It is even possible that Reminyl may have been begun earlier than June 2004, given the lack of medical records before then. 

H2.   Consultation with Dr Fong on 2 August 2004

129.  Mr Lim consulted Dr Fong on 2 August 2004.  After administering both an MMSE and a clock-face drawing test, Dr Fong took into account Mr Lim’s daily functioning to reach an “overall assessment” that he had moderate to severe Alzheimer’s disease.  Dr Fong prescribed Mr Lim with Reminyl at 4 mg per day for 1 week, later increasing to twice a day for 3 weeks.^[160]

H2.1  Clinical impression

130.  Dr Fong says in evidence that his clinical impression of Mr Lim on 2 August 2004 was that he had “early or mild Alzheimer’s disease” or “mild to moderate Alzheimer’s disease”.  This is not to be found in Dr Fong’s contemporaneous notes or witness statements.  But assuming this was Dr Fong’s initial impression, by the time he administered the MMSE and clock-face drawing test, his overall assessment, taking those tests into account, was that Mr Lim had moderate to severe dementia.  As Prof Düzel explained, the clinical impression is merely the first step of the diagnosis.  It informs the clinical assessments that are to be undertaken.  The outcome of the assessment is checked against the clinical impression and leads to modification or correction of the clinical impression if needed, resulting in a clinical opinion.

131.  When asked in re-examination whether his clinical impression had changed in any significant way between August 2004 to January 2005, Dr Fong said that he did not change his “opinion”. The plaintiffs seek to argue that Dr Fong did not change his clinical impression on Mr Lim until January 2005.  But Dr Fong was careful in his choice of wording, and did not say whether he did or did not change his clinical impression.  The “opinion” he referred to was the opinion that Mr Lim had moderate to severe Alzheimer’s disease.  This is how he used the term “opinion” in the rest of his evidence,^[161] and how the term was understood by Prof Düzel.  Dr Fong’s prescription in November 2004 of Ebixa, which is for moderate to severe Alzheimer’s, is inconsistent with his clinical impression not changing until January 2005.

132.  In any event, irrespective of Dr Fong’s clinical impression, his overall assessment was one of moderate to severe Alzheimer’s, which I accept to be correct.

H2.2  MMSE

133.  The MMSE is in my view highly relevant to the issue of testamentary capacity:

(1)  Prof Burns explains that, back in 2004, the MMSE was a very good measure of the degree of cognitive impairment that the person had at the time of examination.  The assessment of cognitive function is an important part of the assessment of testamentary capacity.  It was similarly accepted by both Prof Jacoby and Dr Woo that such an assessment would be relevant to the assessment of testamentary capacity.

(2)  A single score on the MMSE itself is not diagnostic of dementia, in the sense that it does not indicate what is the cause of the cognitive impairment.  But such limitation is not pertinent in this case, because there is no dispute that Mr Lim was suffering from dementia in the relevant period of time, the only question was the severity of cognitive impairment.  A single MMSE score does give a measure of severity, at the point in time when the examination is conducted.^[162]

(3)  As the authors in Frost, Lawson and Jacoby, Testamentary Capacity state at §§14.11-14.13, the MMSE is “more valid in dementia due to Alzheimer’s disease than with other dementias”, and MMSE scores “may be used as an approximate estimate of severity in individual patients for whom there is enough other clinical evidence to confirm a diagnosis of dementia, especially Alzheimer’s disease”.  In contentious probate cases, the ‘floor effect’ of the MMSE (ie where a score at the lower end of the scale may not discriminate adequately between highly impaired cases) is “less important, since it is unlikely that anyone scoring lower than 10/30 would have testamentary capacity”.

134.  The MMSE was carried out some time after the June hospital admission, when Mr Lim’s overall condition was “better than when he was in hospital at HKSH”.^[163]  This indicates that it would have been a much better reflection of Mr Lim’s cognitive state than if it had been carried out when he was still hospitalised.^[164]

135.  The plaintiffs have spent much effort in an attempt to undermine the conduct of the MMSE and its result.  In particular, Dr Woo raised numerous issues in the Joint Report, despite accepting the result of the MMSE in his original report.  In considering these issues, it is to be borne in mind that the MMSE was not done with a view to being minutely scrutinised in this manner 20 years later.  I agree that the plaintiffs’ attacks are unwarranted.  As submitted by the defendants:

(1)  Compared to the experts who could only conduct an ex post facto assessment or reconstruction, Dr Fong was in the best position to assess Mr Lim’smental condition in August 2004.  As Dr Woo himself said, Dr Fong was an “eminent neurologist” who saw Mr Lim regularly and had “the added advantage of seeing Mr Lim in person not once, many times, good days, bad days… I can’t be better than him, I can’t say I can be better”.  There is no suggestion that Dr Fong acted incompetently or negligently.

(2)  Performing an MMSE, as the experts stated, is often an art, and much depends on the skill and experience of the practitioner administering the test.  General practitioners would often be able to do these tests, but specialist practitioners would be more experienced in performing them.

(3)  Dr Fong was very experienced in performing the MMSE, having done it many times.  He agrees that it would involve making sure the patient could hear what he was saying and that the conditions are right so as to give the patient his best chance.  His professional judgement in conducting the MMSE should be accorded due weight, particularly in comparison to the experts trying to reconstruct ex post facto.

(4)  The document at [CB6/358/1239] is not a contemporaneous document.  It only came into existence after 2010, and is a list of questions used by Dr Fong now.^[165]  This means (i) Dr Fong might not have precisely followed the same list of questions when he performed the test in 2004,^[166] and (ii) it is not surprising that there are some variations as compared to the questions in the pro forma questionnaire which came later.

(5)  Dr Fong says “normally [he] would ask all the questions in the questionnaire, but [he] could have modified it based on the patient’s response”.  Sometimes he would move onto another question if the patient could not concentrate or could not answer the question at all.  He would sometimes also ask questions that were outside the MMSE, in order to motivate the patient to continue with the rest of the testing.

(6)  Dr Fong agrees that “in order to get a score out of 30, [he] would always have asked all the questions or something very similar to those questions”.  He explains that the questions would sometimes be varied according to the patient’s response.

(7)  Although Dr Fong says that he “might have skipped some of the questions” when “the patient is not having attention to the questions or has lost attention”, he then agrees that normally, he “wouldn’t have scored [the patient] out of 30 unless [he] had counted when [the patient] answered and what he didn’t”.  When it was suggested to him that he “wouldn’t have scored [the patient] in the way [he] did unless [he] had actually been through all the questions with [the patient]”, Dr Fong said “[y]es, that makes sense”, and that he tried his best to administer the full test to Mr Lim.  He also clarifies that “if the patient is not responding or not giving…the answers”, implying that he had already asked the question, then he would “quickly jump to the other questions and not to insist on…the same question”.

(8)  When the Court asked Dr Fong to clarify whether he had skipped certain questions, Dr Fong explained that some of the questions may have been asked by him “in a different way, to assess the same content”, by which he meant asking Mr Lim to repeat, for example, a different sentence to the one on the score sheet.  Dr Fong confirmed as follows:

COURT: I see.  So in your recollection, you have asked -- even taking into account a possibility you might not have asked all the questions on the list, as far as you can recollect, you have asked all the alternative questions which would have given a potential score of 30, is that the gist of your evidence?

A: Yes.  I think that’s right.

(9)  In any event, there are variations even among the so-called “questions” of the MMSE.  For example, in Dr Fong’s questionnaire, Q1 does not include “season”,^[167] whereas in the sample MMSE exhibited to Prof Burns’ report, it does include “season”.^[168]  And in this case Mr Lim was in fact asked by Dr Fong to name the season.

136.  Taking Dr Fong’s evidence as a whole, I accept that he did ask all the questions or in his professional judgment alternatives of the questions, which is what he in the end confirmed when asked by the Court.  The plaintiffs’ contrary assertion that Dr Fong “skipped” questions entirely, in the sense that he did not ask a particular question or an alternative question at all, is unlikely:

(1)  It would make no sense for him to score Mr Lim 8 out of 30 if he had skipped some questions altogether.  As an experienced neurologist who had done many of these tests, Dr Fong would not have scored the test in this way if he had skipped questions, but would instead have reduced the total or would at least have made some notation of what had been skipped.

(2)  There is no evidential basis to suggest that Dr Fong would always note down every question he asked in his notes.  It is unrealistic to dissect Dr Fong’s rough notes in this manner when it was never Dr Fong’s position that those notes were comprehensive and complete in nature, and when evidently he would not have expected those notes to be examined in minute detail in legal proceedings two decades later.

(3)  Dr Fong’s first witness statement, which was much closer in time to the events in question when his memory was fresher, contains no suggestion that he had skipped any of the questions entirely.^[169]  Such possibility was only raised for the first time in Dr Fong’s 2024 supplemental statement, which was prompted^[170] by Dr Fong being shown the expert reports, including no doubt the Joint Report of Dr Woo and Prof Düzel, in which Dr Woo mounts an attack on every possible aspect of the MMSE.  The contents of Dr Fong’s supplemental statement were made in response to Dr Woo’s criticisms in the Joint Report.  I find it ironic that Dr Woo now referred to Dr Fong’s supplemental statement to support his own unwarranted criticisms of the MMSE.

137.  Other criticisms made by Dr Woo in the Joint Report were never raised in his first report.  They were speculative and nothing more than making excuses for Mr Lim’s poor performance:

(1)  Dr Woo suggested that Dr Fong had not ascertained whether Mr Lim could hear the MMSE questions properly.^[171]  This is without any evidential basis.  As an experienced neurologist, it is unlikely that Dr Fong would not have checked whether his patient could hear his questions.  Although Mr Lim might have had hearing difficulties generally, the evidence is that he wore a hearing aid^[172] and there is nothing to suggest that he could not hear the MMSE properly.

(2)  Dr Woo also said that Dr Fong had not obtained an adequate history, suggesting that there was no information about Mr Lim’s “memory, reasoning or financial ability at work or at his usual activities”, or his “visuospatial ability, language or personality”.^[173]  Dr Woo then said Dr Fong may not have established “a good rapport” with Mr Lim.^[174]  These criticisms are unfair.  There was a history taken, some of which was recorded at the beginning of Dr Fong’s contemporaneous notes.^[175]  The patient was well known to Dr Fong and he had been seeing him every day just a month or so before.  Dr Fong also says that he has taken into account Mr Lim’s “daily functioning” in reaching his overall assessment of his mental condition.  As Dr Fong well knew how to administer an MMSE, he would have known of the need to ensure the conditions were right to give the patient his best chance.  After all, he had very properly decided to defer the assessment when he saw Mr Lim in June, as Mr Lim had not been in an appropriate mental state to do the test.  The fact that the history recorded in the notes was relatively brief, does not give cause for any real criticism.

(3)  When these matters were put to Dr Woo, he said that he was “just looking for reasons why the 8 out of 30 is not in line with the rest of the clinical picture”.  I find this to be the wrong approach.

138.  As to the individual questions of the MMSE, particularly in relation to Questions 4 and 6, even if the MMSE score should have been higher, it would certainly have remained well within the category of moderate to severe dementia.^[176]

H2.3  Clock-face drawing test

139.  The clock-face drawing test is a test of executive function and visuospatial ability.^[177]  Having said that the clock-face drawing test is a test of executive function, Prof Jacoby elaborated on execution function and explained that it is “the psychological ability to integrate a variety of cognitive abilities in order to carry out goal-directed activity”; and it is responsible for “planning, initiating, correctly sequencing, and carrying through various cognitive skills”; and it “corrects errors and adjusts responses according to circumstances”.^[178]  Prof Düzel said that the clock-face drawing test screens “a number of cognitive domains including language comprehension, planning, visuospatial abilities, spatial attention, motor execution, numerical knowledge, abstract thinking (semantic instruction)”.^[179]

140.  Dr Woo contended that the clock-face drawing test was not a “specific test of executive function”.^[180]  This is contrary to the view of Prof Jacoby,^[181] and a large body of work which, as explained by Prof Düzel, indicates that the test can indeed be used to assess executive function.^[182]

141.  The assessment of the above functions and abilities is clearly relevant to the limbs of the Banks v Goodfellow test.  While Prof Jacoby in his 2^nd Report does not accept that one can draw a “direct connection” between performance on the clock-face drawing test and testamentary capacity,^[183] it does not mean the functions which are assessed by the clock-face drawing test are not relevant to the issue of testamentary capacity, nor does Prof Jacoby say so.

142.  Prof Jacoby and Prof Burns both agreed that the result of the clock-face drawing test was, in their clinical experience, “typical” of a person with established Alzheimer’s disease.^[184]  Prof Jacoby added the qualification in his 2^nd Report that he has “encountered clock-face errors early in Alzheimer’s disease, especially in patients of high intelligence”,^[185] but this was not in his view the “typical” scenario, and he did not suggest that it was anything more than a possibility.

143.  As for the result of the test:

(1)  There were errors on the clock-face: (i) Mr Lim’s first attempt at drawing the clock-face was far too small (in the bottom left); (ii) the numbers were not distributed correctly and were positioned poorly; and (iii) Mr Lim was completely unable to draw the hands of the clock, but instead wrote the time in digits.^[186]

(2)  Prof Düzel explained that Mr Lim’s performance revealed a conceptual impairment in understanding what it meant to draw the time on a clock-face.  The failure to draw the hands of the clock, writing the time in digits instead pointed towards the existence of a marked impairment in executive function in terms of planning, judgment, decision making.^[187]  There was no challenge in cross-examination to Prof Düzel’s evidence on the clock-face drawing test.

(3)  Given the errors identified above, Dr Fong gave “a maximum score of 5 out of 10” on the clock-face drawing test.  He compared the result of the clock-face drawing test with the MMSE “to give a better picture of mental condition”,^[188] and said the score “was consistent with what Mr Lim had scored on the MMSE”.^[189]  As the MMSE score assessed by Dr Fong was indicative of severe dementia, the clock-face was at the very least compatible with moderate to severe Alzheimer’s disease, which Prof Düzel confirmed in evidence.

144.  Dr Woo also made strong criticisms of the clock-face drawing test:

(1)  He raised the possibility that Mr Lim may not have heard the instruction.^[190]  This is devoid of evidential basis.  If Mr Lim had not heard the instruction properly, it is inconceivable how he would have proceeded to draw the clock-face on two attempts, put in all the numbers, and write down the time in digits.

(2)  Dr Woo suggested that Mr Lim had “kept the instruction in his mind and he achieved the goal of indicating the time.  At most he had misinterpreted the instruction; he did not have lack of insight”.^[191]  But this does not assist the plaintiffs, as it still indicated a lack of execution function.  As Prof Düzel explained, while Mr Lim understood the basic instructions of the task, the test clearly indicated that he was unable to execute the task correctly.^[192]  Prof Düzel’s view was unchallenged in cross-examination.

(3)  Dr Woo further suggested that the test could have been indicative only of “impaired concentration or frustration tolerance”, because it followed immediately after the MMSE.^[193]  This criticism is unwarranted, as Prof Düzel explained that these kinds of tests are designed to be simple so as not to pose heavy demands on maintained concentration.  If Mr Lim only had mild dementia or cognitive impairment, there would not have been any so-called ‘frustration’, which therefore is indicative of more severe cognitive impairment, as reflected also in the MMSE score.^[194]

H2.4  Overall assessment

145.  Overall, while Dr Fong accepted that the score on the MMSE indicated severe Alzheimer’s, he moderated the diagnosis to take into account all the other factors (including the clock-face drawing test and his daily functioning), reaching an assessment of moderate to severe Alzheimer’s disease.^[195]  This overall assessment was not based on the standard tests alone, but already took into account the clinical impression.  It accords with Prof Düzel’s explanation on the process of first forming a clinical impression, then administering the tests, and then forming an opinion taking everything into account.  Prof Düzel also supports the view that Mr Lim had moderate to severe Alzheimer’s at that time.

146.  There has been a faint suggestion that Mr Lim’s delirium may not have resolved completely by 2 August 2004, and could have affected the reliability of the tests.  However, as Dr Fong chose to postpone the test until after Mr Lim ended his stay in hospital in June 2004 (when his delirious episode occurred),^[196] it is unlikely that Dr Fong would have gone ahead with the tests on 2 August if he had any serious concerns that there was residual delirium which could materially affect the reliability of the tests.  Indeed, Dr Fong mentioned nothing about residual delirium in his contemporaneous notes or either of his two witness statements. 

147.  Dr Fong was a specialist neurologist who had seen Mr Lim repeatedly, observed him over the relevant period and conducted the assessments in the exercise of his professional judgment.  There is no suggestion that he was an unqualified or incompetent or negligent practitioner.^[197]  In those circumstances, Dr Fong’s judgment should be accorded considerable weight.

H3.   Mental condition of Mr Lim between August and December 2004

148.  It is not in dispute that Alzheimer’s disease is usually a “steady, irreversible and progressive deterioration”.^[198]  The neurological experts agree that it is unlikely that Mr Lim’s mental condition on 3 December 2004 could have been materially better than on 2 August 2004.^[199]  On the contrary, given Mr Lim’s particular circumstances, including the delirious episode and the co-morbidities he suffered, the progression of dementia in fact would have likely been atypical, and more rapid than would otherwise be normally the case. 

149.  The medical records since August 2004 indeed demonstrate a worsening, and certainly no improvement, in Mr Lim’s mental condition.  In particular:

19 August 2004

(1)  Dr Fong saw Mr Lim for consultation and noted that he “can’t recall meals contents, attempt to cover up memory deficit, slow memory”.^[200]

(2)  Although Dr Fong says that this phenomenon would generally occur in people with “early or moderate Alzheimer’s disease”, whereas those with severe dementia “might” just have blank or empty thoughts, on the evidence of other experts I find this to be case-specific and would likely to vary from patient to patient.

(3)  Prof Jacoby agrees that even those with moderate to severe dementia could sometimes conceal their cognitive impairment, provided that the patient has no language impairment, and he sees no evidence of impairment of language in Mr Lim.  Prof Burns also says that in his experience he has seen people with quite severe dementia who still had intact language.

(4)  Despite being pressed in cross-examination, Prof Burns declines to say it was unlikely that someone with severe dementia would be able to cover up his memory deficit.  Instead he maintains that it would vary from case to case.  He also said that whether dementia is observable to people around the patient depends on the particular symptoms, and loss of memory is something which could be covered up, unlike other types of dementias which may lead to extreme behaviours.

(5)  On this occasion, Dr Fong was not able to perform the MMSE again because he said Mr Lim was not cooperative, in that he was covering up a memory deficit.  He continued to prescribe Reminyl at 4 mg twice a day, the same dosage as before.

23 September 2004

(6)  Dr Fong saw Mr Lim for consultation, but was again unable to perform the MMSE.  Dr Fong explained that he asked a screening question about the day of the week, which is one of the questions on the MMSE, but Mr Lim gave an incorrect answer as far as Dr Fong recalled.  Therefore, Dr Fong did not think it sensible to complete the MMSE.

(7)  In his notes,^[201] Dr Fong had marked “Thursday x”, which he said referred to the fact that Mr Lim had given a wrong answer.  It transpired that 23 September 2004 was indeed a Thursday; but this was not raised by the plaintiffs with Dr Fong in re-examination.  His recollection of Mr Lim giving an incorrect answer remained consistent with “Thursday x” as it may refer to the fact that Mr Lim did not manage to answer “Thursday”.

(8)  In contrast with the consultation on 2 August, Mr Lim had at least been able to answer the day of the week correctly (“Monday”).^[202]

(9)  Dr Fong continued to prescribe Reminyl at 4 mg twice a day.

14 October 2004

(10)  Dr Fong saw Mr Lim for consultation.  Again, he could not perform the MMSE, because Mr Lim had “day time malaise”, as he was feeling tired because of his insomnia.  Dr Fong did not consider Mr Lim to be in a physically good condition to do the MMSE, as he was troubled by insomnia, and his attention span would be shortened.

150.  8-9 November 2004

(1)  Mr Lim consulted Dr Fong when he was admitted to HKSH for anaemia and blood transfusions.^[203]

(2)  Dr Fong switched Mr Lim’s dementia medication from Reminyl to Ebixa at 5 mg twice a day for 3 weeks.  He also prescribed Aricept.^[204]

(3)  Dr Fong, Prof Burns, Dr Woo and Prof Düzel^[205] all agreed that Ebixa is usually indicated for moderate to severe Alzheimer’s disease. The fact that Dr Fong chose to prescribe Ebixa indicates that he regarded Mr Lim as suffering from at least moderate to severe Alzheimer’s.

(4)  At the very least, the switching of medications indicates that there was no improvement in Mr Lim’s mental condition.  That is what Dr Fong stated as the reason for the switch.  Dr Woo also agreed.^[206]

(5)  More importantly, the neurological experts agreed that Alzheimer’s medications are not generally used to improve cognition but to slow progression.^[207] If the patient’s condition remained steady, with no further progression, this itself would not likely be a reason to change the medication.  The switch of medication thus indicated a worsening in Mr Lim’s condition.  This is consistent with the medical evidence considered above, and not inconsistent with the explanation given by Dr Fong, who did not exclude the possibility that the condition had worsened.^[208]  It is consistent with Prof Düzel’s opinion.^[209]  It is also consistent with the broader context, that there was an assessment in August and Alzheimer’s medication was prescribed, the medication was changed, and a drug was initiated which was indicated for moderate to severe Alzheimer’s.

(6)  Indeed, Prof Düzel pointed out that a change of drugs is usually motivated by a clinical worry, and is not something which a doctor would do light-heartedly.  If Mr Lim’s condition simply stayed the same, it is difficult to see why the medication would have been changed.

21 November 2004

(7)  Dr Fong had a home visit with Mr Lim on this date, and possibly also on other occasions.  When asked why in “none of these visits do you seem to do another MMSE”, Dr Fong said Mr Lim was “physically not fit, and mentally not alert enough to repeat another test”.

November to December 2004

(8)  Dr KK Wong’s notes from November to December 2004 also record a deterioration in Mr Lim’s general health and an increase in dementia.^[210]  Dr KK Wong, though an urologist, was an experienced doctor who had been treating Mr Lim since 2001^[211] and thus would have had some familiarity with Mr Lim and his medical condition and history.

151.  The medical evidence therefore indicates that on each occasion after 2 August when Dr Fong saw Mr Lim, he was unable to perform the MMSE.  Mr Lim’s medication was switched to Ebixa which was for moderate to severe Alzheimer’s disease.  Moreover, there were observations by Mr Lim’s longstanding doctor that his dementia had increased.  All these are consistent with the opinion of Prof Burns and Prof Düzel that Mr Lim was suffering from “severe dementia” on 3 December 2004.

152.  The plaintiffs argue that because no tests were administered on any of the occasions after 2 August 2004, nothing is revealed about Mr Lim’s mental condition.  Without the test being administered, one cannot discern what actual domains in the brain were impaired.  However, I find the fact that Mr Lim was unable or not in a position, in Dr Fong’s professional view, to do the MMSE is not a point in the plaintiffs’ favour. On the contrary, it suggests that Mr Lim was cognitively so impaired that Dr Fong did not think he was able to undergo the testing at all.

(1)  Prof Düzel explained in cross-examination that Dr Fong’s evidence indicates Mr Lim’s attentional impairment was so pronounced that he was unable to perform the tests.  In other words, there was an inability to attend, ie reduced attention rather than just a disinterest or refusal to attend.  Considering Dr Fong’s evidence on the MMSE attempts in context, I find it consistent with Mr Lim not being mentally alert enough to do the test, and at least not inconsistent with attentional impairment in terms of an inability to attend.

(2)  As Prof Jacoby acknowledges in cross-examination, the fact that Dr Fong was not able in his judgment to do an MMSE, because of the physical and/or mental state of the patient, is important in terms of assessment of capacity, though subsequently in re-examination he sought to downplay its importance.

(3)  As Prof Burns pointed out, if a person could not take part or complete the MMSE or Abbreviated Mental Test Score (“AMTS”) on a series of occasions because of inattention or similar reasons, it could indicate a significant degree of cognitive impairment.^[212]

(4)  Given that Dr Fong had deferred the MMSE in June when Mr Lim was not in a fit mental state to perform the MMSE, his subsequent decisions to defer the MMSE on multiple occasions would likely have reflected a judgment on his part that Mr Lim’s mental condition was not such as would enable him to meaningfully do the MMSE.^[213]

(5)  In any event, the plaintiffs’ argument does not detract from the general common sense proposition that it must be relevant if the patient cannot even begin to do the test.

H4.  Consent forms

153.  As for the consent forms signed by Mr Lim, it was a matter Dr Woo referred to heavily in his oral evidence.  When it was put to him that the additional medical records provided to the neurological experts for the purposes of their Joint Report showed worsening dementia, Dr Woo countered by relying on the consent form for the stenting procedure.  When it was again put to him that in light of all the evidence now available, it looked extremely unlikely that Mr Lim had capacity, Dr Woo still relied on the same consent form to justify why he could not say Mr Lim had no testamentary capacity.  However, in my view the consent forms cannot provide an adequate basis to support Dr Woo’s view that Mr Lim only had mild dementia.

154.  First, there is no direct evidence on the circumstances in which Mr Lim signed the consent forms, whether his family members were present, and/or to what extent Mr Lim actually showed any signs of understanding or engagement with the contents of the consent forms.  Although the doctors in question were reputable and would have been familiar with the need to explain the procedure, this point only goes so far and does not provide an adequate basis for the Court to infer that Mr Lim necessarily understood the explanation before signing the consent forms.  Still less are the experts in a proper position to comment on these matters of fact.

155.  Second, the following points are to be made on the two consent forms relied on by the plaintiffs:

(1)  The first consent form was for the coronary stenting procedure on 3 June 2004.  This was before the delirium in June 2004.  While Dr Woo explained at length as to what a coronary stent involves, it is not at all clear whether all those details would have been explained by Dr YS Lo to Mr Lim.  In any event, this consent form preceded the episode of delirium, which would have set Mr Lim’s dementia on an abnormal and more rapid course of progression for the reasons explained above.

(2)  The second consent form was for a plaster cast to Mr Lim’s left forearm, which was a much less complex decision than the stent,^[214] as Dr Woo himself acknowledged this in his original Report.^[215]

(3)  Given that Mr Lim was dependent on continuous care, for example, from private nurses, the fact that he signed consent forms does not provide reliable insight into his capacity to consent.^[216]

156.  Third, Dr Woo disregarded various other admission forms and other documents which were signed by Mr Lim’s family members rather than him.^[217]  Dr Woo explained that the admission forms were less complicated than, and did not bear the same significance as, the consent forms.  However, I find the admission forms also relevant, as they contain provisions for “Medical and Surgical Consent”.^[218]

H5.  Factual evidence as toMr Lim’s activities prior to execution of the 2004 Will

157.  In support of their case on testamentary capacity, the plaintiffs seek to rely heavily on factual evidence from their witnesses of Mr Lim’s personal and business activities from June to December 2004.  However, on closer analysis, I find that their evidence does not shed light on whether Mr Lim had capacity to make a will on 3 December 2004.

158.  There are inherent problems in relying on the evidence of laypeople in relation to mental condition or testamentary capacity.  As compared to doctors, it is more difficult for solicitors to detect mental illness, and even more so for laypersons: Frost, Lawson and Jacoby, §15.01^[219] This difficulty is exacerbated where the person in question conducts his daily living and activities with much support and assistance, for instance, from private nurses as Mr Lim did, because in those cases the signs of dementia is less likely to be picked up by a layperson.^[220]

159.  In any event, even on the plaintiffs’ own evidence, there was a clear turning point in Mr Lim’s mental condition in June 2004, supporting the argument that the delirious episode in June 2004 ‘catapulted’ Mr Lim’s underlying dementia into a more rapid progression. The following are the main examples pointed out by the defendants.

160.  In relation to Janet Lam:

(1)  She accepted that there was a contrast between Mr Lim’s condition before and after June 2004.  As is apparent from her witness statement, before June 2004 he would make telephone calls, meet staff to receive reports and attend public functions; whereas after the coronary stenting operation, he did not go back to the office for a long time, spent most of the time reading newspapers on the occasions when he was in the office, and conducted simple daily activities such as “seeing the doctors, or calling his driver for car”.^[221]  She acknowledged that after June 2004 he was a bit different (“爭啲”), and “relatively frail”.

(2)  As Prof Jacoby agreed in cross-examination, if a person performed the same simple activity repeatedly for many years, such as calling his driver for a car, it would take less cognitive effort than doing it ad hoc or doing more complicated activities.  So even if Mr Lim was able to do simple activities such as calling his driver, that does not support the plaintiffs’ case to any real extent.

161.  In relation to Yew Yat Ming:

(1)  Yew’s statement also points to a contrast before and after June 2004.  Prior to June 2004, Mr Lim had dinner with Yew and his closest staff “almost every night”, would “receive verbal reports from his staff on the daily routine of business while having the meal”, and also “liked to test the staff on their business knowledge and awareness of news”.^[222]  But after the stenting operation in June 2004, they “met less than before as the dinner gatherings had ceased when his health deteriorated”, and after he later broke his arm in June, Yew “seldom met him since then and only paid one or two visits to his house at Kowloon Tong… [and] tried to avoid talking with him on business in order not to give him pressure”.^[223]

(2)  In evidence, Yew sought to backtrack on his statement and downplay the change in Mr Lim’s condition after June 2004.  As explained in paragraphs 102 to 104 above, his evidence was not credible.

162.  In relation to Mark Lee:

(1)  In his first witness statement, Mark Lee stated that “[f]rom 1997 to early 2004” he had frequent meetings or communications with Mr Lim about areas of business, and about the debt restructuring; and “[d]uring the first half of 2004” Mr Lim was still going to work at the office, and would sign cheques etc.^[224] However, after his heart operation in June 2004, Mark Lee said Mr Lim did not go to the office as much, and when Tim Ho and Mark Lee visited Mr Lim, they would “avoid troubling Mr Lim with mundane business matters”.^[225]  Tim Ho gave a similar description in his first statement.^[226]

(2)  It was only in Mark Lee’s supplemental statement that he started saying Mr Lim was “exceptionally energised” after his stenting operation and that he was “back in the game” (“回勇”).^[227]  None of such contrived description had been mentioned in Mark Lee’s earlier statement.

163.  As already mentioned in paragraph 100 above, the documentary evidence adduced by the plaintiffs shows little more than that Mr Lim could sign his own name, and write some numbers in Chinese.  Overall, I find the factual evidence which the plaintiffs rely upon does not advance their case at all. 

H6.  Complexity of the estate and the 2004 Will

164.  The neurological experts agree that even a person with mild to moderate dementia may be incapable of making a complex will.^[228]  The question of capacity is therefore to be considered against the complexity of the transaction and the surrounding circumstances.  Where the will is complex, or where the family circumstances are complex, or the calls upon the testator’s bounty are subtle, a greater degree of understanding on the testator’s part will be required than where the will and the circumstances are simple. 

165.  Mr Lim’s estate and assets are in my view complex.  This is directly relevant to the second limb of the Banks v Goodfellow test.  I agree with the defendants’ submission that:

(1)  It is necessary for the testator to be able to differentiate between his assets to a sufficient degree to satisfy the Court that he is substantially aware of what he does and does not own, and its general value.

(2)  Mr Lim’s estate contains many assets of different types and vastly different values – for example, shares in different companies; sums of money owed by various family members or individuals or companies, pieces of land, car park spaces, apartments, factory units, securities, bank balances, sole proprietorship businesses, in Hong Kong and abroad.  This is apparent from the Distribution Proposal,^[229] which contains 29 different items, as well as the list of ‘Miscellaneous Assets’ which lists 7 further assets.^[230]

(3)  The most important assets were held indirectly through corporate structures, rather than straightforwardly held by Mr Lim in his own name.  For example, at the time of execution, Mr Lim held through Lai Sun Garment his interest in Crocodile Garments,^[231] part but not the whole of his interest in Lai Fung Holdings,^[232] part but not the whole of his interest in Lai Sun Development (“LSD”),^[233] whereas his interest in eSun Holdings Limited (formerly Lai Sun Hotels) was held through Lai Sun Garment and its shareholding in LSD.^[234]

(4)  Adding to the complexity is the fact that there were restructuring transactions taking place at the time when the distribution of assets was being considered.  For example, (i) LSD was undergoing a debt restructuring involving a settlement with eSun Holdings Limited, which would result in a substantial dilution of Lai Sun Garment’s shareholding in LSD,^[235] thus affecting the size and value of Mr Lim’s indirect interest in LSD through Lai Sun Garment; and (ii) the Wisdoman transaction was in progress, as a result of which Mr Lim was to transfer away his own shareholding in Lai Sun Garment via Wisdoman to Peter Lam and Madam U.  These “moving parts” increased the complexity of Mr Lim’s estate at the material time.

166.  Another aspect of complexity is Mr Lim’s family situation.  This relates to the third limb of the Banks v Goodfellowtest, as the existence of complicated family relationships would, in general, make it relatively more difficult to comprehend and appreciate the claims upon the testator’s bounty.

(1)  Mr Lim’s family is not a simple family consisting of one spouse and issue, but consists of four branches with four different women.  There is additional complexity even within each branch.  For example, the second family includes the two natural born children, Peter Lam, who was Mr Lim’s chosen successor in the group, and Mabel Lam, who did not seem to have much of a relationship with Mr Lim at all, as well as the adopted son Matthew Lam, who was effectively entrusted with overseeing the Mainland property investments of Lai Fung Holdings.^[236] Within the third family, Mr Lim once had disputes with Madam Koo and their daughter Pearl Ling, but all along had a good relationship with their son Eric Ling.

(2)  There were also other family members who had taken care of Mr Lim, for example, Katty Lam, who was his niece and who might have a moral claim to his bounty.  This all illustrates the complexity of Mr Lim’s family circumstances which would affect the degree of capacity required.

167.  The complexity in the terms of the 2004 Will itself is also highly pertinent.  This is essentially a view shared by all of the experts.^[237]  In this regard:

(1)  The experts accept that there may be some cases where a testator can understand a simple will, for instance “I leave all my worldly goods to my two children”, but would not have capacity to understand a more complex will.[238]

(2)  The 2004 Will is 14 pages long in English with a dense 6-page Chinese translation. It is in my view extraordinarily complex, and differed significantly from Mr Lim’s previous wills.  It contained complex language and long sentences, and provided for at least 43 specific dispositions of many different types of assets to various beneficiaries, as well as the distribution of the residuary estate, which included at least 7 further assets.

(3)  The dispositions were not straightforwardly made to a single beneficiary.  The Wisdoman shares, for example, were given to Peter Lam and Madam U, with Peter Lam receiving the voting shares and Madam U receiving the same number of non-voting shares, with Peter Lam alone receiving all the monies owed by Lai Sun Garment.[239] The sums owed by Lai Sun Textiles were given to Peter Lam and Lam Kin Ming in unequal shares (20% and 80% respectively).[240]  The monies owed by Perfecta,[241] the business of Wah Hing[242] and the shares in Sing Fook[243] were to be split between Peter Lam and Lam Kin Ming.

(4)  The distribution of the residuary estate was more complicated.[244]  The first HK$200 million was to be given to Lam Kin Ming; and the rest was to be divided in the irregular proportions of 50%, 17% and 33% respectively among Peter Lam, Madam U and Matthew Lam jointly, and Lam Kin Ming.  The HK$200 million was to fund a general offer by Crocodile for its shares, but this was not clear on the face of the will, adding further complexity.

(5)  The 2004 Will also contained clauses providing for forfeiture of dispositions to a beneficiary if he attempted to challenge the will; and for the exclusion of Madam Lai, Madam Koo, Pearl “Liang” (which was a mistake) and Eric “Liang” (likewise a mistake, as was his Chinese name “林偉君”).[245]  These clauses were unprecedented in Mr Lim’s previous wills.

(6)  All in all, I find the 2004 Will much more complex than the previous wills, which had essentially only divided up the residuary estate in shares of 12.  The executor was changed; and the way in which the assets were to be distributed had also changed significantly from the previous wills. 

(7)  The issue is whether Mr Lim had capacity to understand the whole of the 2004 Will, its nature and its effects as a whole, including all the terms and dispositions contained therein.  The defendants say that the exclusion of Madam Koo, Pearl Ling and, in particular, Eric Ling was irrational and would not have been done if Mr Lim had the requisite capacity, since Madam Koo and Pearl Ling had reconciled with him some time before his death, and Eric Ling always had a good relationship with him.  But this is only one part of the defendants’ case. More importantly, it is for the plaintiffs to satisfy the Court that Mr Lim was able to understand the whole of the will, but I find that he was not able to do so.

168.  As for the evidence from the cross-examination of the experts, the following aspects are to be highlighted:

(1)  Prof Jacoby acknowledges that in his view, understanding a will of this complexity, when it was explained for the first time for 15 to 20 minutes (if Vincent Cheung’s evidence on this is true), even for a person who had normal cognitive facilities, would be a “tall order”.  Explaining it to an elderly testator with cognitive impairment would be, in his understated words, “potentially difficult for him to understand”.

(2)  In re-examination, Prof Jacoby states that if the assets or business were familiar to Mr Lim, and the contents of the will had been explained to him previously, and “if his cognitive state was not grossly impaired”, then he would probably “in normal circumstances” have had the capacity to understand it.  However, the multiple qualifications within this statement renders it largely meaningless.

(3)  In cross-examination, Prof Burns was pressed as to whether the complexity of the will would be affected if its contents, as stated in the Distribution Proposal, had been explained to Mr Lim. Even assuming that was the case, Prof Burns points out that the mere fact Mr Lim said “good” does not mean he actually understood the contents, and that “if Mr Lim had – and I think he had some cognitive impairment, it would have been easier for him to agree with something that was given to him, rather than to perhaps interrogate some of the figures”.  This is discussed further in paragraph 171(3) below, in relation to the Beef Chow Fun dinner.

(4)  Dr Woo accepted that the will was complex.  His view seemed to be that, if Mr Lim could understand the stenting procedure for the purposes of the consent form, which Dr Woo says would have been complex to Mr Lim, then he could have understood the will.  But it does not follow that the will is not complex, and Dr Woo made no suggestion in his reports that it was not.  He merely asserted that Mr Lim only had mild dementia and could therefore make a complex will.^[246]

(5)  Prof Düzel stated that, given the complexity of the will, there was sufficient medical evidence to show that Mr Lim did not possess testamentary capacity to execute the will on 3 December 2004.

H7.  No instructions taken fromMr Lim prior to execution

169.  I find Mr Lim was not consulted on the distribution of his assets or even on the choice of executor.

170.  Vincent Cheung said he had not seen Mr Lim “for over a year” prior to 3 December 2004;^[247] and Agnes Fung had not met with or communicated with Mr Lim until she attended his residence on 3 December 2004.^[248] There is no suggestion that Mr Lim ever communicated with anyone from Vincent Cheung’s firm about the 2004 Will.  Nor is there any suggestion that Mr Lim actually saw any drafts of the 2004 Will, until he saw the final version and signed it on 3 December 2004. 

171.  In the first round of witness statements in 2014, the only suggestion from the plaintiffs’ witnesses of any communications with Mr Lim about the will or the distribution of his assets prior to 3 December 2004 was as follows:

(1)  According to Mark Lee and Tim Ho’s original statements, they had a discussion with Mr Lim in August 2004.  Even if true, the discussion was in the most general and simplistic terms, and made no mention of wills or distribution of assets.  They only stated they “gently” asked Mr Lim about his views on his sons’ work and who would be suitable to run his businesses, reassuring him that his sons were all diligent and capable.  Mr Lim’s reply was that Lam Kin Ming should manage the garment businesses and Peter Lam the property development and entertainment businesses.^[249]

(2)  Madam U made generalised statements about reporting “everyone’s consensus” to Mr Lim, and explaining to him the “successor arrangement and distribution of assets”.^[250] Such statements could not be tested in cross-examination, and Madam U was not reliable for the reasons explained above.  In any event, these statements are far too generalised to support a finding of capacity.

(3)  In Peter Lam and Mark Lee’s original statements, they referred to the Beef Chow Fun dinner, in which Peter Lam was said to have explained the Distribution Proposal to Mr Lim while he was eating his favourite beef chow fun.  All Mr Lim said in response was “good” and “there should not be any dispute”.^[251]  Even if true, it does not indicate any capacity to understand on Mr Lim’s part, as the fact that a testator passively approves something presented to him is not a good indicator of his cognitive function and understanding: Frost, Lawson and Jacoby, §6.20.  There is no evidence that Mr Lim could understand all of the 29 items in the Distribution Proposal in isolation, let alone understand and integrate the proportions and percentages across the items.^[252]  Moreover, the fact that Mr Lim said there should not be any dispute, yet purportedly approved the Distribution Proposal which would have excluded the third family and thus very likely to lead to disputes, itself indicates a lack of understanding.

172.  In his witness statement, Vincent Cheung said that Mark Lee had asked him to be executor.^[253] Mark Lee agreed with this in his first statement, and said that he had discussed it with Peter Lam,^[254] but there was no suggestion that Mark Lee had consulted Mr Lim.  If he had done so, it would be surely have been mentioned.

173.  All the evidence as at 2014 indicated that the various drafts of the will were never shown to, let alone approved by, Mr Lim.  The will and the distribution of his assets was negotiated between Madam U, Peter Lam, Lam Kin Ming and Matthew Lam (the four proposed beneficiaries), with Mark Lee and Tim Ho dealing with Agnes Fung, and the results of the negotiations then reflected in the drafts.

174.  By the time of the 2021 supplemental statements, Mark Lee’s version of events had become very different, presenting significantly more communication with Mr Lim.  I find the reason for this is the plaintiffs’ becoming aware that their evidence hitherto was not sufficient.  By 2024 when the plaintiffs filed further supplemental statements and their witnesses gave evidence in Court, the memory of Mark Lee had grown again, with even more frequent communication with Mr Lim, while Peter Lam also gave evidence on matters in relation to communication with Mr Lim which was not mentioned in his statements. 

175.  In assessing the credibility of their evidence as to what happened, it is important to bear firmly in mind the fact that these witnesses were untruthful about what happened on 3 December 2004.  The contrast between the initial version of events in their 2014 witness statements, their subsequent statements, and finally what they said in the witness box, makes clear that they have been untruthful on other matters as well. 

176.  Looking closely at how the version of events put forward by Mark Lee and Peter Lam changed and grew by the time they gave evidence, what Mark Lee said belatedly about his frequent communications with Mr Lim on the distribution of assets is but one area where he told untruth to bolster the plaintiffs’ case.

(1)  In his supplemental statement, Mark Lee stated that “[s]ince August 2004”, he and Tim Ho had gone to Mr Lim’s residence and started asking him “more directly about his thoughts on his succession and handover of responsibilities” (even though this was in a section covering only the period “June to August 2004”).^[255] This is not only absent from his first witness statement, but was also not corroborated in Tim Ho’s witness statements.

(2)  In oral evidence, Mark Lee makes further additions to his version by saying he saw Mr Lim “almost every week” from August to October 2004, to discuss matters including the distribution of assets.  When pressed in cross-examination, he says for the first time that by the “end of August”, he spoke to Mr Lim to obtain “tips” or “directions” about the distribution of assets, none of which was in any of his 3 witness statements.

(3)  The above is inconsistent with Mr Lim’s MMSE score in August, the diagnosis of moderate to severe Alzheimer’s by Dr Fong, or the evidence of the plaintiffs’ other factual witnesses which showed that his mental condition was significantly worse after June 2004.

(4)  Mark Lee also says in evidence that “whenever there was a change, we would inform the boss… And I have to reiterate, whenever there’s a change, we would certainly inform the boss”.  This is a clear exaggeration.  There were a huge number of changes across the various drafts of the 2004 Will, both significant and minor ones. It is unrealistic that Mr Lim would have been consulted about every single one of those changes.  Mark Lee later backtracked by saying that for the minor changes, he would “save them together and talk about them in one go”.  But this then contradicts §5.3(vii) of his supplemental statement, where he stated that “[f]or each revision of the draft, I would report to Mr Lim Por Yen…”.

(5)  Mark Lee also says that he had spoken to Mr Lim about the forfeiture provision in the will (clause 13).  I find it inconceivable that Mark Lee can now remember whether he had spoken to Mr Lim on this specific issue, some 20 years later, when none of his witness statements mention it at all.  I find that Mark Lee would say anything which would in his view bolster the plaintiffs’ case.

(6)  Having stated in §5.3(vi) of his supplemental statement that he had gone to Mr Lim’s residence “multiple times to explain to him in person the draft ‘Asset Distribution Table’ [ie Distribution Proposal]” in November 2004,^[256] Mark Lee went yet further in his oral evidence and says that, by November 2004, he was seeing Mr Lim “two times a week, three times a week”.  He also says that the discussions mentioned in §5.3(vi) of the supplemental statement actually happened not just in November but also at the end of August and in September and October.  I find that, if it were true that Mark Lee had spoken to Mr Lim multiple times about the Distribution Proposal, it could not possibly have been omitted from his original statement as a matter of obvious importance.

(7)  In his supplemental statement, Mark Lee stated that when discussing with Mr Lim about the distribution of assets in November 2004, Mr Lim specifically mentioned that Madam Koo, Pearl Ling and Eric Ling could be “ignored” because Madam Koo and Pearl Ling owed a lot of money on ‘G Building’, and Eric Ling defrauded him of a lot of money 10 years ago.^[257]  Again, if this were true, a matter of such crucial importance in explaining why the third family might be excluded from the will, it would surely have been mentioned in his first statement.  In any event, the plaintiffs never put to Eric Ling that he had defrauded his father, and it is inconsistent with the fact that Eric Ling continued investing Mr Lim’s monies well after 1994.

177.  The evidence on the Beef Chow Fun dinner in late November 2004 was another problematic area for the plaintiffs.  There is no credible evidence to indicate that Mr Lim showed any capacity at the dinner to understand and approve the proposed distribution of assets, or that he did so understand.  As Mark Lee sat some distance away,^[258] and Madam U did not participate in the discussion either,^[259] what occurred at that dinner essentially turns on the evidence of Peter Lam.  However, as has been demonstrated above, Peter Lam’s evidence is unreliable and should be rejected.  In particular:

(1)  In his witness statement, Peter Lam said he and Mark Lee went to Mr Lim’s residence, bringing a box of Beef Chow Funs.  While Mr Lim was eating at table, Peter Lam discussed with him the contents of the Distribution Proposal.  Mr Lim’s “only comment was that the proposal was good 「好好」.  He reminded that there should not be any dispute among us”.^[260]

(2)  In oral evidence, Peter Lam’s account changed, in both subtle and obvious ways, to bolster the idea that Mr Lim did understand and approve the distribution of his assets at this dinner.  See paragraph 85 above.

(3)  Explaining the contents of the Distribution Proposal to Mr Lim was only an assertion by Peter Lam.  He confirmed that he did not show any documents to his father, and his father did not read any documents.

(4)  Even on his own version, Peter Lam did not explain to his father all the intended dispositions which were eventually to make their way into the will.  He cannot recall whether he explained the provisions about the residuary estate to his father.  Although he initially said that he had explained clause 13 (the forfeiture clause) to Mr Lim, he quickly backtracked and said that he only explained the Distribution Proposal.  He also did not say he had specifically discussed the exclusion of the third family with Mr Lim on this occasion.  Indeed, prior to the Beef Chow Fun dinner, he had never actually spoken to Mr Lim about why he excluded the third family.   

(5)  Peter Lam says in oral evidence for the first time that he had told his father about the Wisdoman transaction, specifically that the transaction was “already in progress” but did not explain anything more.  He says he asked his father whether there was someone else who needed to be taken care of, and his father said no.  He also says that he had asked his father how he should handle the Highfit case, and his father just told him to “proceed”.  None of these matters were mentioned in his witness statement, which stated that his father’s only comment was the Distribution Proposal was good. 

(6)  Peter Lam also said in his witness statement that Mr Lim “appeared to [him] as usual”.  But his comments on Mr Lim’s mental condition are incredible and cannot not be believed.  After all, under cross-examination Peter Lam strenuously denies being aware that his father had any mental health issues in June or August 2004.  This cannot be true, as both Prof Jacoby^[261] and Prof Burns^[262] consider that Mr Lim’s delirious episode in June 2004 would have been obvious to those around him.  As explained in section F above, it is inconceivable that Peter Lam did not notice even the delirious episode.  It only goes to show that Peter Lam’s evidence on his knowledge of Mr Lim’s mental condition is unreliable and should not be accepted.

178.  Tellingly, Tim Ho said in his evidence that he had given a list to Mark Lee containing a proposed distribution of Mr Lim’s assets to Madam U and Matthew Lam, so as to make sure the distribution of assets was “acceptable to them”, as “them” meant Madam U and Matthew Lam, but not Mr Lim.

179.  I find no credible evidence that Mr Lim had given instructions relating to the distribution of his assets at any time prior to 3 December 2004, nor is there any credible evidence that he had capacity to do so.  Mr Lim was never consulted about the distribution of assets.  There was merely a negotiation between the four beneficiaries, Madam U, Lam Kin Ming, Peter Lam and Matthew Lam about the distribution of the assets.  I find that the third family was excluded because the beneficiaries, in particular Madam U wanted it to be so.

H8.  Circumstances of execution of the 2004 Will

180.  Coming to the events on 3 December 2004, they offer the strongest indication that Mr Lim did not have testamentary capacity to make the 2004 Will.

181.  First, the only persons present on the day of the execution were (i) all beneficiaries under the 2004 Will (Peter Lam, Lam Kin Ming, Madam U and Matthew Lam); (ii) persons closely associated with these beneficiaries (Mark Lee, Tim Ho and Peter Lam’s personal assistant Fung Kwok Hung); (iii) the solicitors from Vincent Cheung’s firm (whose engagement was approved by Peter Lam^[263]); and (iv) Dr Lin together with the two other doctors whom he brought along.  The third family was excluded from the execution, just as they were excluded from the preparation of the will.  I find this to be an attempt to hide the process from the scrutiny of “outsiders”.

182.  I also find that the execution of the 2004 Will on 3 December 2004 was merely a formal occasion,^[264] as it had already been decided it was to take place.  This is how, for example, Peter Lam expressed it in his witness statement (“it was decided that the 2004 Will would be executed on 3 December 2004”^[265]).  In fact, he was the person who asked Mark Lee to arrange the meeting for the execution.

183.  Second, the only reasonable inference relating to Dr Lin’s presence is that he was asked by a member of the family, most likely Madam U or Peter Lam, to attend the residence on 3 December 2004 and to procure the certification of Mr Lim’s testamentary capacity, whether by Dr Lin himself or another doctor brought along by him.

(1)  Dr Lin admits that he was friends with Peter Lam and had contact with him, and also with Madam U.  In his witness statement, Dr Lin stated that the requests for his attendance on Mr Lim would come “from his family (often from Madam Po Chu U)”.^[266]

(2)  Dr Lin had told Dr Fong in the latter half of 2004 that Mr Lim would be making a will, and Dr Fong told Dr Lin that he should get someone to certify Mr Lim’s testamentary capacity.  Dr Lin’s evidence that he did not recall such conversation is incredible.  I find Dr Lin must have known that Mr Lim would execute a will, and that there was a need to have his capacity certified.  He must have been charged with procuring the certification of Mr Lim’s testamentary capacity on the date of execution, by members of the family, most likely Madam U or Peter Lam, or through their intermediaries.

(3)  Peter Lam and Mark Lee’s latest evidence about the doctors’ attendance cannot be accepted.  In their 2024 supplemental statements, they both stated in effect that Vincent Cheung asked for a doctor to be present in case medical attendance was required, and that Peter Lam asked Vincent Cheung if Dr Lin was suitable to which Vincent Cheung said yes.^[267]  As explained in section F above, this contradicts the tenor of Vincent Cheung’s statement.

(4)  I find that Peter Lam and Mark Lee have not been truthful about how Dr Lin came to attend.  From their lies, I draw the inference that the reason for their lies is to hide the fact that Dr Lin was asked to attend for the specific purpose of causing certification of Mr Lim’s testamentary capacity, and was not asked by Vincent Cheung to attend to keep an eye on him in case medical attendance was required.

184.  Third, despite the efforts of the plaintiffs and their witnesses to conceal the truth, I find that Dr Kwok did perform a form of mental examination on Mr Lim, and that he considered Mr Lim to have failed the examination and refused to certify his capacity.

(1)  From the outset, the plaintiffs and their witnesses tried to hide the fact that a mental examination took place.  Vincent Cheung in his witness statement only referred to the two doctors having “asked Mr Lim a few questions”.^[268] Mark Lee merely said in his witness statement^[269] and supplemental statement^[270] that the doctors asked some questions; and even in his 2^nd supplemental statement, he was still saying that the doctors only performed “some simple check-ups”.^[271]  Peter Lam, in his original statement, likewise did not mention any of the doctors.  Even in his supplemental statement, Peter Lam merely said the doctors started asking questions “without any prompting”.^[272]  Agnes Fung did not mention anything about the doctors in her witness statement at all.  It was only under cross-examination that Agnes Fung and Peter Lam admit belatedly in their evidence that a mental examination took place.

(2)  Dr Kwok must have been instructed to administer the mental examination by Dr Lin, likely on behalf of the family.  Dr Lin’s denial of this is incredible.  He was the person who had brought Dr Kwok along to Mr Lim’s residence, and Dr Kwok said he had prepared a printed list of questions for the examination.^[273] It is inconceivable that he would have prepared the list, had he not been instructed (by Dr Lin) that he needed to conduct the test.^[274]  Dr Kwok must also have known that the examination was for the purpose of assessing Mr Lim’s capacity to make a will, as he must have been told by Dr Lin (who knew from Dr Fong) about the purpose of the examination, or at least he would have found out when he arrived at Mr Lim’s residence on 3 December and the people present discussed the fact that Mr Lim was about to make a will.

(3)  There is some uncertainty as to which test was administered by Dr Kwok.  In his own affirmation, Dr Kwok said it was the AMTS.^[275]  But Dr Chan says in evidence that it was probably the MMSE, which is consistent with the reference in his affirmation to the question “what is 100 minus 7”.^[276] Dr Chan also says that Dr Kwok asked “probably 21 standard questions”, which is more than the number of questions in either test, and may possibly indicate that Dr Kwok asked more than just the questions from a single test.

(4)  Both the MMSE or AMTS are tests of cognitive function.  While it is fair to say that the MMSE tests more aspects than the AMTS, both tests nevertheless do test for memory, orientation, attention, concentration and the expressive aspect of language, which are relevant to capacity to make a will.  Regardless of whether it was the MMSE or AMTS, the test conducted by Dr Kwok was relevant to and form part of the assessment of Mr Lim’s testamentary capacity.

(5)  The test was carried out in Mr Lim’s residence, an environment familiar to him.  Dr Kwok was someone who had previously consulted with Mr Lim on 1 December 2004,^[277] and would not have been a stranger to him.

(6)  I find Dr Kwok had concluded that Mr Lim failed the mental examination.  On Dr Chan’s evidence which I accept, Dr Kwok said “唔得” (“cannot”) repeatedly after he finished administering the examination, and despite coming under some pressure from others present (who asked Dr Kwok “得唔得?” (“whether he can or cannot?”), and “得啦，咁都唔得?” (“surely it’s fine, how can it not be fine?”)), Dr Kwok refused to change his view.  Dr Chan said he believed Dr Kwok’s comment on Mr Lim’s performance.  Thus, the only sensible inference is that Dr Kwok believed Mr Lim had failed the mental examination.  Mr Lim was not certified to have testamentary capacity, and no certificate was produced.

(7)  What ‘failure’ means depends on what test was administered. But given that Dr Kwok was so insistent (in the face of contrary pressure) that Mr Lim “唔得”, it can only be inferred that he did very poorly in the examination.  If it was the MMSE as Dr Chan recalled, then the ‘failure’ may refer to a score below 10, which is a generally accepted cut-off below which there would almost invariably be no testamentary capacity.^[278] If it was the AMTS, the score would also likely have been a low one.

185.  Fourth, as for the questions asked by Dr Kwok and Mr Lim’s answers:

(1)  Dr Chan, the only person present on 3 December 2004 who gave credible evidence, could not recall Mr Lim’s answers.  What Dr Kwok said in his affirmation implied that he asked the questions in the AMTS.^[279]

(2)  In the Answers to Interrogatories, Vincent Cheung gave an account of the questions and Mr Lim’s answers.^[280]  But Vincent Cheung’s evidence is highly unreliable in key respects, such as changing his version as to when Dr Lin left the residence.  His evidence is not accepted, as he has not given a truthful account.

(3)  Vincent Cheung’s Answers to Interrogatories in any event do not purport to be a full list of Mr Lim’s answers.  There is no documentary evidence of such a list.  Further, what Vincent Cheung said in his witness statement and Answers to Interrogatories is inconsistent with Dr Chan’s evidence to the effect that, after administering the test, Dr Kwok said Mr Lim failed the test and he did not certify capacity. At best, what Vincent Cheung said is highly selective and hence unreliable.

186.  Fifth, as for the plaintiffs’ attacks on the conduct of the test, I accept the defendants’ submission that they ring hollow, and do not give rise to any points in favour of the plaintiffs.

(1)  The mental examination must have been arranged by or with the concurrence of the family members (eg Madam U and/or Peter Lam).  It is a matter of significance that instead of a specialist, a GP was asked to do the test.  I find the reason for this is that they thought it would be easier to obtain certification.^[281]

(2)  The Golden Rule was not complied with.  While the attempt to have a doctor certify Mr Lim’s capacity failed, there was no attempt to discuss earlier wills with Mr Lim or to take instructions from him in the absence of beneficiaries or those who may influence him.  In fact, no instructions were taken from Mr Lim by the solicitors at all.  Vincent Cheung and his colleagues must have been aware of the importance to do so.  The Golden Rule was already well established and had been referred to in a number of authorities in this jurisdiction by then.

(3)  I find the truth to be that there was no intention from the start to comply with the Golden Rule by seriously putting Mr Lim through an assessment of capacity, as it would have made the execution of the will much harder.  So when Mr Lim was unable to pass the test which had been arranged for him, the plaintiffs turned around to attack its adequacy. The plaintiffs’ criticisms are disingenuous and ironic, and do not weigh in the plaintiffs’ favour at all.

(4)  Even Prof Jacoby acknowledged in cross-examination that, just because Dr Kwok did not go any further in his assessment after administering the MMSE or AMTS, one cannot discount his opinion that Mr Lim was not in a fit state to make a will.  This follows from the undisputed proposition that the results of such tests would be relevant to the assessment of testamentary capacity.  Indeed, if Dr Kwok had said that Mr Lim ‘passed’ the test, then the plaintiffs would not be making any criticism of the way the test was conducted.

187.  Sixth, in the absence of contemporaneous documents, the plaintiffs have been able to raise criticisms about the events of 3 December 2004. However, the absence of documentation is not a point against the defendants but rather against the plaintiffs, not least because the burden rests on the plaintiffs to prove capacity.  Therefore, the following gaps in the documentary record work against rather than in favour of the plaintiffs.

(1)  Dr Chan gave evidence that, immediately after the mental examination was completed, he was moved into a side room and was essentially pressured by at least two persons standing behind him, including Dr Lin, to write a paragraph about Mr Lim’s mental condition (“1^st Statement”).  Although Dr Chan gave an unsigned statement to Dr Lin, that document has not been disclosed, and was not even mentioned in Dr Lin’s discovery affidavit.

(2)  Dr Chan also said that in the period after 3 December 2004 and before Mr Lim’s death, Dr Lin kept calling him and asking him to write another statement.  Eventually, Dr Lin threatened legal consequences, whereupon Dr Chan went to his office and made another statement (“2^nd Statement”), this time more conservative than the 1^st Statement.  The 2^nd Statement has not been disclosed either, and was not mentioned in Dr Lin’s discovery affidavit.

(3)  Dr Lin himself mentioned that sometime after 3 December, Dr Chan had given him a “one page typed paper about the attendance of Mr Lim with no signature”.^[282] I find it incredible he would remember that it was “typed” and “with no signature”.  In any event, even this document was never mentioned in Dr Lin’s discovery affidavit.

(4)  I accept Dr Chan’s evidence and find that Dr Lin was lying.  It is inconceivable that Dr Lin could have possibly forgotten the fact that he had intimidated Dr Chan into writing the 1^st Statement and thereafter the 2^nd Statement.  As these are matters which Dr Lin could not have forgotten about, the fact that Dr Lin refused to disclose even the existence of such documents in his discovery affidavit points strongly to the documents having been suppressed.^[283]  It is also telling that when asked about the two statements in 2019, Dr Lin’s solicitors did not deny their existence, but sought to deflect the question by redirecting it at Dr Chan.^[284]

(5)  Despite the presence of four solicitors from Vincent Cheung’s firm on the day of execution, no attendance note from the plaintiffs has been produced.  Then some 4 years after the commencement of litigation, Vincent Cheung revealed by a solicitors’ letter dated 11 March 2015^[285] that he had made an attendance note, but it was “lost” in an “office move”.^[286]

(6)  The implications of the missing documents in terms of adverse inference are addressed in paragraph 193 below.

188.  Seventh, seen against Dr Chan’s credible account of events, all of the plaintiffs’ main witnesses in relation to the occasion on 3 December 2004, including Peter Lam, Mark Lee, Vincent Cheung and Agnes Fung, cannot have been telling the truth.  They all must have known that Dr Kwok had conducted a mental examination and had said that Mr Lim had failed the examination, but none of them said a word about this.  On the contrary:

(1)  Every one of them painted a picture that Mr Lim was fine and that his mental condition was normal.  Vincent Cheung said in his statement that Mr Lim was “alert” or “attentive” or “responsive” on 3 December 2004.^[287]  Agnes Fung maintains that Mr Lim understood and had capacity and that he knew what was going on.  Peter Lam said that his father “fully understood what he was doing and did not behave any differently compared with my interactions with him on previous occasions”.^[288] Mark Lee said that that Mr Lim was “energised”^[289] and that he believed “there was no problem with Mr Lim Por Yen’s mental state”.^[290]

(2)  Further, they all presented a false picture of how and why the examination concluded.  Peter Lam, in his supplemental statement, said that Mr Lim was able to answer the questions without much issue, but that after a few questions he started becoming impatient, and Vincent Cheung asked the doctors to leave.^[291] Mark Lee made similar statements in his 2^nd supplemental statement.^[292]  Agnes Fung gives evidence to similar effect, and says that there was “no big commotion” when the doctors left.  This was contrary to Dr Chan’s evidence that the examination was completed with Dr Kwok repeatedly saying “cannot” despite being pressured to change his view.  Yet none of the witnesses said a word about this.

(3)  I find the refusal of the plaintiffs’ witnesses to tell the truth about Mr Lim’s mental condition, and about what happened during and after the mental examination, a deliberate cover-up.

189.  Their evidence about when Dr Lin left the residence was also untrue:

(1)  It was twice mentioned in the FBPs dated 23 April 2012 that Dr Lin was present at the time of execution of the 2004 Will.^[293]  The FBPs were never amended.  Thus, it remains the plaintiffs’ pleaded case that Dr Lin was still present at the time of execution.

(2)  This then changed in the witness statements.  Vincent Cheung said Dr Lin had left because of other commitments before Mr Lim came into the living room and Vincent Cheung greeted him.^[294] Mark Lee said in his first witness statement that Dr Lin had left before the will was signed, without specifying whether he had left before the two doctors asked questions;^[295] and in his supplemental and 2^nd supplemental statements, he said that Dr Lin left before anything substantive happened.^[296]  In his own witness statement, Dr Lin also said that he had left shortly after arriving and greeting Mr Lim.^[297]

(3)  This was also the version given in evidence by Peter Lam, Mark Lee, Agnes Fung and Dr Lin who further says that he did not even know a will was being executed by Mr Lim. 

(4)  I find this incredible even without Dr Chan’s evidence.  It is inconceivable that Dr Lin would have attended Mr Lim’s residence and then left so quickly, when, according to Peter Lam himself,^[298] the purpose of Dr Lin’s attendance was related to the execution of the 2004 Will.  Moreover, Peter Lam stated he was the one who contacted Dr Lin to ask him to attend,^[299] yet he also says in evidence that Dr Lin did not tell him that he would have to leave early.  I find it all implausible.  Dr Chan’s credible evidence put beyond doubt that it is untrue.

190.  Eighth, in light of the complexity of Mr Lim’s estate, family situation and the terms of the will, I find it inadequate to explain the 2004 Will to Mr Lim for “15 to 20 minutes” prior to execution,^[300] as Vincent Cheung said he did.

(1)  Given what happened on 3 December 2004 is now apparent, and that the evidence from the persons present was not truthful, there is real doubt as to whether Vincent Cheung actually “explained” the will to Mr Lim for 15 to 20 minutes.  With Dr Kwok concluding that Mr Lim had failed the mental examination, and declining to certify his capacity, it would seem a surprising thing to do.

(2)  However, even if one assumes that Vincent Cheung did so, it was still inadequate to prove capacity for the reasons given at paragraph (4) below. 

(3)  There was no independent solicitor who explained the will to Mr Lim.  Vincent Cheung could not in any sense be described as independent, for the reasons explained in paragraph 108 above.

(4)  Vincent Cheung said “Although I did not recite every word of the will to him, I went through it paragraph by paragraph explaining in detail each paragraph to him”.^[301] I find it difficult to see how this will, in 6 dense pages of Chinese translation and containing some 43 dispositions, could be meaningfully explained “in detail” within 15 to 20 minutes.  It is all the more difficult for a testator of Mr Lim’s age and condition, let alone with significant cognitive impairment, to have understood such an explanation.  On Vincent Cheung’s version, Mr Lim was not even explicitly asked whether he understood the will, and was not given the opportunity to have it read and explained to him one more time, making the explanation all the more inadequate.

(5)  Indeed, as mentioned in paragraph 168 above, Prof Jacoby agrees that even for a person who had normal cognitive facilities, it would be a “tall order” for him to understand the 2004 Will after a 15-20 minute explanation.  Explaining it to an elderly testator with cognitive impairment would be “potentially difficult for him to understand”.

(6)  This is particularly inadequate in circumstances where Mr Lim himself had not given any instructions to the solicitors for preparation of the 2004 Will; he had not seen any drafts of the will before seeing the final version on 3 December 2004; and the contents of the 2004 Will had never been explained to Mr Lim before 3 December 2004.

191.  On the basis of all the matters above, I find the evidence that Mr Lim had no testamentary capacity to execute the 2004 Will on 3 December 2004 is overwhelming.  There is ample basis to support the factual findings on a balance of probabilities that Mr Lim had no testamentary capacity, rather than his having testamentary capacity.

192.  The authorities have established that the medical evidence of a practitioner who assesses capacity, having met a testator, should be given considerable weight when determining whether that testator had testamentary capacity: Hughes v Pritchard [2022] Ch 339, §89.  With Dr Kwok passing away, Dr Chan’s evidence is the “next best thing” and should be accorded great weight.

193.  As to the drawing of adverse inferences where there had been destruction of documents, the relevant principles had been discussed by the English Court of Appeal in a case cited by the plaintiffs, namely, Malhotra v Dhawan [1997] 8 Med LR 319.  In that case the plaintiff, a qualified accountant, carried out work for the defendant’s accountant firm and claimed remuneration for them, but the defendant had already destroyed some of the relevant client files.  Morritt LJ made the following points:

(1)  It was noted that the plaintiff (Mr Malhotra) placed reliance on the principle expressed in the Latin maxim omnia praesumuntur contra spoliatorem (or “all things are presumed against the wrongdoer”) (and the well-known case of Armory v Delamirie (1722) 1 Stra 505 being an example of its application). Importantly, it was accepted that “the true principle was not as extensive as the maxim would suggest for not everything is to be presumed against the destroyer.”: 321 (col 2).

(2)  He referred to the trial judge’s statement of principle that where one party is responsible for the unavailability of relevant evidence, the Court should not be slow to make such inferences or assumptions against that party’s interests as are consistent with other available evidence: 322 (col 1).

(3)  He identified at 322 (col 2) certain limits to the principle:

(a)  First, if it is found that the destruction of the evidence was carried out deliberately so to as hinder the proof of the plaintiff’s claim, then such finding will obviously reflect on the credibility of the destroyer.  In such circumstances it would enable the court to disregard the evidence of the destroyer in the application of the principle.

(b)  Second, if the court has difficulty in deciding which party’s evidence to accept, then it would be legitimate to resolve that doubt by the application of the presumption.

(c)  But, thirdly, if the judge forms a clear view, having borne in mind all the difficulties which may arise from the unavailability of material documents, as to which side is telling the truth, the application of the presumption does not require the judge to accept evidence he does not believe or to reject evidence he finds to be truthful.

194.  In the context of the present case, the Court is clearly entitled to disregard the evidence of Vincent Cheung as to the exchange between Dr Kwok and Mr Lim (see paragraph 185(2) above), and to make such inferences against the plaintiffs’ interests as are consistent with other available evidence, namely, that Mr Lim was suffering from “severe dementia” and lacked “testamentary capacity” to make the 2004 Will.

H9.  Factual findings relevant to testamentary capacity

195.  To sum up on the issue of testamentary capacity, for the reasons set out above, I make the following factual findings contended for by the defendants:

(1)  Mr Lim was an elderly and infirm man who was suffering various medical conditions (including coronary heart disease, hypertension, prostate cancer, anaemia, fracture of the arm, pulmonary oedema, pneumonia and other conditions),^[302] and who spent much of his last months in and out of hospital receiving treatment.

(2)  By June 2004, Mr Lim was already suffering from dementia and taking Reminyl, an Alzheimer’s medication. As a result of his physical conditions (in particular, his fall and arm fracture on 7 June), Mr Lim suffered an episode of delirium in that month. This delirious episode, combined with his co-morbidities, is more likely than not to have ‘catapulted’ his underlying dementia into a worsened state (instead of returning to ‘baseline’), and caused the progression of his dementia to be accelerated.

(3)  During the month of June, Mr Lim was in hospital, suffering from delirium and was not in a fit state to do an MMSE.  On 2 August 2004, when Mr Lim recovered, Dr Fong assessed his mental condition at his clinic.  Dr Fong administered an MMSE to Mr Lim.  He also administered the clock-face drawing test on Mr Lim, who was unable to do it properly.  Although the MMSE score itself would have indicated severe Alzheimer’s, Dr Fong took into account other factors such as the clock-face drawing test and his clinical impression and reached the overall conclusion that Mr Lim had moderate to severe Alzheimer’s disease.  Although the plaintiffs seek to undermine Dr Fong’s conduct of the assessments (in particular the MMSE), it is entirely unrealistic to subject the assessments to minute scrutiny 20 years later, and in any event the criticisms are largely unwarranted.  What is important is that an eminent and experienced neurologist brought Mr Lim into his clinic specifically to assess his mental condition, and having administered his assessment (which did not consist solely of the MMSE), came to a considered view and diagnosed Mr Lim with moderate to severe Alzheimer’s.

(4)  Thereafter, Dr Fong wanted to administer the MMSE on Mr Lim again, but there was no subsequent occasion (in August, September, October or November) when Mr Lim was in a proper condition to do it.  Further, Dr Fong decided to change Mr Lim’s Alzheimer’s medication to Ebixa, a drug indicated for moderate to severe Alzheimer’s disease.  This all indicated a worsening in his dementia and mental condition, rather than an improvement.  Mr Lim’s longstanding urologist Dr KK Wong also noted a deterioration in his general health and increase in dementia in November to December 2004.

(5)  Despite the denials by the plaintiffs’ witnesses, Dr Lin (Mr Lim’s family doctor) clearly did know about Mr Lim’s mental condition at the relevant time, including the result of the MMSE on 2 August 2004.  He clearly informed the family (Peter Lam and presumably Madam U) about the same.

(6)  Meanwhile, earlier in around July 2004, upon Madam U’s direction and with the coordination of Mark Lee and Tim Ho, Madam U, Lam Kin Ming, Peter Lam and Matthew Lam began to negotiate amongst themselves as to how Mr Lim’s estate should be distributed upon his death.

(7)  Mark Lee consulted Peter Lam about the choice of executor.  Mr Lim was not consulted.  Mark Lee and Peter Lam agreed that Vincent Cheung should be chosen.

(8)  In August, Mark Lee started to have discussions with Vincent Cheung about the preparation of Mr Lim’s will. From October onwards, Agnes Fung had meetings with Mark Lee and Tim Ho regarding the 2004 Will.  The changes in the drafts of the 2004 Will reflected the negotiations between Madam U, Lam Kin Ming, Peter Lam and Matthew Lam, without consultation with or approval by Mr Lim.

(9)  Mr Lim never communicated with or gave instructions to anyone from Vincent Cheung’s firm regarding the 2004 Will.  Mr Lim never saw any drafts of the 2004 Will before 3 December 2004, and none of them were signed or initialled by him.  Contrary to what Mark Lee said, Mr Lim was never kept updated about the distribution or the various drafts of the 2004 Will from August to November 2004.  Mr Lim did not have capacity to understand and did not give any meaningful instructions about the Distribution Proposal at the ‘beef noodle dinner’ in late November 2004.

(10)  In the latter half of 2004, Dr Lin told Dr Fong at least one time that Mr Lim would be making a will, and Dr Fong said a doctor would be needed to perform a mental test or certify his testamentary capacity.  Dr Fong said he was not asked to certify Mr Lim’s testamentary capacity.  He suggested that this was because Dr Lin was aware that if an expert is required, it would usually be a psychiatrist.

(11)  Dr Lin was asked by a member of the family, most likely Madam U or Peter Lam, to attend Mr Lim’s residence on 3 December 2004.  Contrary to Dr Lin’s explanation, the purpose was to certify Mr Lim’s testamentary capacity for the execution of a will.

(12)  On 3 December 2004, Dr Lin attended the residence with two other doctors, Dr Kwok (whose clinic was next to Dr Lin’s), and Dr Chan (a junior doctor of 5 years’ qualification looking for a job, who had been introduced to Dr Lin shortly before then).  Dr Lin chose to bring along Dr Kwok who was a GP (or as Dr Chan described, a geriatrician), as opposed to finding a specialist.  Dr Lin did not tell Dr Chan any details about the attendance, and Dr Chan was simply picked up by a van at an MTR station, with Dr Lin inside.  The van carried them to Mr Lim’s residence, a detached house.

(13)  Dr Kwok performed a mental examination on Mr Lim in the living room of his residence (consisting of an MMSE and/or AMTS).  Dr Kwok was instructed by Dr Lin (likely on behalf of the family) to perform the examination.  He must have known (from Dr Lin, and/or from discussions amongst those present on 3 December) that the examination was for the purpose of ascertaining the capacity of Mr Lim to execute a will.

(14)  In the examination, Dr Kwok asked Mr Lim a number of questions.  After the examination was completed, Dr Kwok said “唔得” (“cannot”) repeatedly.  There were at least two other persons present who repeatedly asked Dr Kwok, “得唔得?”, and “得啦，咁都唔得?”; but Dr Kwok did not change his answer.  Dr Chan said he believed Dr Kwok’s comment on Mr Lim’s performance.  Dr Kwok did not certify Mr Lim’s capacity, nor did any of the other doctors.  It is to be inferred that, Dr Kwok, having administered the test, was of the view that Mr Lim had failed it, and that Mr Lim’s mental condition was such that he did not have capacity to execute a will.

(15)  By this time, Mr Lim’s dementia would have worsened since August, and had become severe.

(16)  Contrary to what Dr Lin said, he had not left before the mental examination was administered by Dr Kwok.  In fact, Dr Lin was present in the residence throughout.  After the failed mental examination, Dr Chan was asked to move to another room, and was asked by Dr Lin to write a statement about Mr Lim’s condition.  There were two people standing behind him, one of whom was Dr Lin.  Dr Chan felt pressure and perhaps some intimidation, as he did not feel he could leave the house without writing the statement.

(17)  Dr Chan wrote a paragraph to describe Mr Lim’s condition (which he said may not have been entirely true), but he did not sign it because he did not want to take medical responsibility for it.  He gave the statement to Dr Lin, who said “good, that’s good”.  Dr Chan did not keep any copies.  He then left the house and was driven away in one of the Lim family’s cars.

(18)  Despite all of the above, Mr Lim executed the 2004 Will on that occasion.  The plaintiffs assert that prior to the execution, the will was explained by Vincent Cheung to Mr Lim within 15 to 20 minutes prior to execution, although Dr Chan did not see the explanation or the execution of the 2004 Will.  Even if true, such limited explanation was inadequate.  Madam U, Lam Kin Ming, Peter Lam and Matthew Lam, but notably not Mr Lim, also signed the Distribution Proposal, according to them on the same occasion.

(19)  In the period after 3 December, Dr Lin phoned Dr Chan from time to time, requesting him to write another statement as the first one had not been signed.  When Mr Lim was nearing death,^[303] Dr Lin contacted Dr Chan again and in a stronger tone, asked him to write another statement and threatened him with legal consequences if he did not do so.  Therefore, Dr Chan went to Dr Lin’s office and wrote another statement, which was more cautious and more conservative than his first statement.  He gave the statement to Dr Lin and did not keep a copy.

(20)  The two statements of Dr Chan have not been disclosed by the plaintiffs, or by Dr Lin in response to the third party discovery order against him (an order which Dr Lin said he had never seen before he gave evidence).  I find it likely that Dr Lin has destroyed and suppressed the two statements to avoid them coming to light.

196.  I further find that there is a clear and admitted failure to comply with the Golden Rule.^[304] There are two main aspects to the Golden Rule: (i) the making of the will should be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination and findings; and (ii) earlier wills should be considered and discussed with the testator, and instructions should be taken from him in the absence of anyone who may stand to benefit or who may influence him.  Insofar as (i) is concerned, there was an attempt to comply with it by having Dr Kwok assess and certify Mr Lim’s capacity, but that attempt failed because Mr Lim did not pass the mental examination administered by Dr Kwok and he did not certify Mr Lim’s capacity.  But there is no evidence as to any attempt to comply with (ii) at all.

197.  In any event, in a case such as the present, where there is a lack of relevant and reliable evidence, where not even the plaintiffs’ experts are able to positively opine that Mr Lim did have testamentary capacity and the defendants’ experts opine that there was no testamentary capacity, and where there was an admitted failure by the plaintiffs to comply with the Golden Rule, the burden of proof becomes important.  It is the plaintiffs who have the persuasive burden of proving testamentary capacity, knowledge and approval on the balance of probabilities. On the present facts, I find that the plaintiffs have not discharged their burden.

H10.  Banks v Goodfellow test

198.  Applying the limbs of the Banks v Goodfellow test, I find Mr Lim clearly could not have had testamentary capacity to make the 2004 Will.

199.  On the first limb, I find that Mr Lim could not understand the nature of the act of making the 2004 Will and its effects.  Given the severity of Mr Lim’s dementia by 3 December 2004, the complexity of the 2004 Will, and the lack of adequate explanation, especially in circumstances where Mr Lim had never given instructions and never seen the will before, Mr Lim could not have understood its nature and effects. 

200.  On the second limb, I find that Mr Lim could not understand the extent of the property which he was disposing.  His estate was very complex and consisted of many different assets, of many different types.  His family situation was also complex, with multiple competing branches of the family.  Given the severity of his dementia, he could not have understood the complexity of his estate by the time he executed the will.  Even if the will had been explained to him over 15 to 20 minutes, that would not have been adequate to enable Mr Lim to understand what property he had and was disposing of.

201.  In this regard, Prof Jacoby said in his 1^st Report that Mr Lim would probably have understood he was head of the Lai Sun Group and that this comprised a number of different companies with assets in Hong Kong and the PRC.^[305] That would surely not have been possible if Mr Lim had severe dementia; but even if it was, such knowledge would plainly be insufficient.  After all, Mr Lim has assets outside the Lai Sun Group.  Besides, there is nothing to suggest he was able to differentiate between his assets to a sufficient degree to satisfy the Court that he is substantially aware of what he did and did not own and its general value.

202.  On the third limb, I find that Mr Lim was unable to comprehend and appreciate the claims to which he ought to give effect, and did not have the ability to decide between the competing claims, or to inform himself of the claims.

203.  On the fourth limb, there is no dispute that Mr Lim did suffer from a disorder of mind, namely dementia probably due to Alzheimer’s disease.  His dementia was at least moderate to severe by 2 August 2004, and I find that it worsened to severe dementia by 3 December 2004.  I also find that Mr Lim would not have made the dispositions in the 2004 Will if his mind had been sound.

204.  In any event, the plaintiffs have not discharged their persuasive burden of proving testamentary capacity. The Court cannot be satisfied that the 2004 Will did have capacity on the balance of probabilities, in the light of the manifest evidential inadequacies and the plaintiffs’ failure to put forward proper reliable or satisfactory evidence to show he did have capacity.  Thus, on the basis of the burden alone, the plaintiffs would fail on the issue of testamentary capacity as well.

I.   KNOWLEDGE AND APPROVAL

205.  As Mr Lim did not have testamentary capacity, that is the end of the matter and there is, strictly speaking, no need for this Court to consider whether there was knowledge and approval.  Nevertheless, I also find that the plaintiffs fail on knowledge and approval.

206.  The plaintiffs do not dispute that the second rule of Barry v Butlin is engaged, namely, if a party prepares a will under which he takes a benefit, it is a circumstance that ought generally to excite the suspicion of the Court.  As A Cheung J (as he then was) explained in Re Estate of Yip Keung, HCAP 15/2004 (unrep, 19/12/2007), §72, the triggering event which arouses the suspicion of the Court must be circumstances attending or relevant to the preparation and execution of the will itself.  But once its suspicion is aroused, the Court would look at the entire evidence (including matters not attending or relevant to preparation and execution) with the appropriate degree of vigilance and jealousy, in order to determine whether the testator knew and approved of the contents of the actual will.

207.  In Devas v Mackay [2009] EWHC 1951 (Ch), §§74-75, Deputy Judge Asplin QC (as she then was) held that the following circumstances (among others) excited the suspicion of the Court: the will was executed without professional advice; there were spelling mistakes in it; it contained a radical change in dispositions without rational explanation; the will was executed at a time when the isolation of the deceased from her friends and family increased; the evidence suggested the deceased would not have been able to understand the content of the will; the disinherited children and daughter in law were not informed when the deceased was dying by the defendant and his mother and associates, who were obstructive after her death; and the defendant had failed to produce records of the deceased’s care at the time and claimed (without foundation) that they had been “shredded”.

208.  In my view, the facts of this case excite the suspicion of the Court to the highest possible degree.  This overlaps to a significant extent with the matters already mentioned above.  As the defendants submitted:

(1)  The 2004 Will was radically different from the previous wills.  The assets were dealt with in an entirely different manner, namely by specific dispositions in part rather than merely the division of the residuary estate; the executor was different; the beneficiaries were different; and an entire branch of Mr Lim’s family was excluded.

(2)  Mr Lim had never seen any drafts of the will before the date of execution.  He had never communicated with anybody from Vincent Cheung’s firm about the will, nor given any instructions to them.  Such instructions only came from Mark Lee (who was plainly answerable to Peter Lam as the person effectively in charge of Lai Sun Group) assisted by Tim Ho.  According to Vincent Cheung, Mr Lim had not even seen him in the past year before 3 December.  Agnes Fung had never seen Mr Lim before 3 December 2004.^[306]

(3)  Mr Lim did not even choose his own executor.  Peter Lam and Mark Lee did.

(4)  Even on the plaintiffs’ own case, it was Madam U and Peter Lam who initiated the preparation of the 2004 Will.  It is clear, that the 2004 Will was the product of negotiations and jockeying between the beneficiaries (Madam U, Peter Lam, Lam Kin Ming and Matthew Lam), with no involvement of Mr Lim.  Mark Lee’s evidence was that Madam U chose the “main characters” (ie the four of them) to discuss the distribution of Mr Lim’s assets and come up with a “rough cut” of the proposed distribution, before there was any consultation with Mr Lim.^[307]

(5)  The evidence of the plaintiffs’ witnesses (in particular, Peter Lam and Mark Lee) as to Mr Lim’s knowledge of the dispositions was incredible.  For example, Mark Lee’s evidence that he had constantly updated Mr Lim was incredible and at odds with his original statement.  Peter Lam’s evidence as to the Beef Chow Fun dinner also shifted significantly from his witness statements and was unreliable.

(6)  Even if the Distribution Proposal had been explained to Mr Lim, he was merely presented with a proposal and asked to agree, as opposed to being asked open-ended questions.  In other words, this is not evidence of Mr Lim’s unprompted testamentary intentions, and in such circumstances more stringent proof of intention would be required.

(7)  There is no dispute that Mr Lim did suffer from dementia.  But almost none of the plaintiffs’ witnesses even mentioned it in their statements.^[308]  Peter Lam’s evidence that he did not know Mr Lim had any mental problems even in June (when Mr Lim had delirium which would have been obvious to those around him), and that he did not know Mr Lim suffered dementia until after his death is incredible.

(8)  The circumstances of execution on 3 December 2004 are highly suspect, including: (i) only those benefitting from the will and persons associated with them were present, and the third family were excluded; (ii) Dr Kwok carried out the mental examination and took the view that Mr Lim had failed it; (iii) Dr Lin and the plaintiffs’ other witnesses obviously lied about and covered up his presence during the mental examination; (iv) Dr Chan was pressured and intimidated to write the two statements by Dr Lin and others; (v) there was no certificate of capacity; (vi) the will was allegedly explained within 15 to 20 minutes with no repetition and no questions from Mr Lim; (vii) the will contained various mistakes (such as the fact that Wisdoman owned the Lai Sun Garment shares, and the mistakes in Pearl Ling and Eric Ling’s names); and (viii) the will was signed wrongly by Mr Lim.

(9)  The absence of contemporaneous documents regarding the preparation and execution of the 2004 Will, and in particular the disappearance of Vincent Cheung’s attendance note and the two statements from Dr Chan which were handed to Dr Lin, must clearly also factor into the suspicious circumstances.

(10)  The same applies to the fact that the plaintiffs had all along resisted calling the doctors to give evidence, and even opposed the inclusion of the doctors’ affidavits as evidence before this Court, until after the start of trial.  This clearly indicated an expectation, since proven, that the doctors’ evidence would not assist the plaintiffs’ case.

(11)  The exclusion of Madam Koo and Pearl Ling was clearly irrational in light of their reconciliation with Mr Lim; and the exclusion of Eric Ling, all the more so when there had never been a falling out between them.

209.  In light of all of the above, there were highly suspicious circumstances arousing the suspicion of the Court.  The plaintiffs have fallen short of adducing affirmative proof of knowledge and approval to dispel the suspicion.  I find that there was no knowledge and approval of the 2004 Will.

J.   UNDUE INFLUENCE

210.  As I find the 2004 Will invalid by reason of lack of testamentary capacity and knowledge and approval, that is the end of the matter and there is no need to consider undue influence.  I shall only discuss this topic briefly for the sake of completeness.

211.  There is no dispute between the parties that the proper approach to testamentary undue influence is that set out in Re Estate of Edwards [2007] WTLR 1387 at §47 (Lewison J, as he then was), applied by Poon J (as he then was) in LiChi Loy v Li Lai Lan Candice [2008] 5 HKLRD 74 at §83:

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

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

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

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

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

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

…

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

212.  I agree with the submissions of the plaintiffs that in this case, there is no basis for any finding that Madam U and Peter Lam had coerced or pressured Mr Lim into making the 2004 Will.  There is no evidence that Mr Lim was ill treated by them in any way – not even evidence that they had talked to Mr Lim in such a manner that he was induced to execute the 2004 Will for quietness’s sake (being one of the “subtle” ways in which it is said that undue influence may be exerted).

213.  The defendants’ case of undue influence must therefore be rejected.

K.  DEFENDANTS’ COUNTERCLAIM

214.  By the Counterclaim,^[309] the defendants ask as their primary position, the Court to pronounce the 1973 Will^[310] and the 1974 Codicil^[311] in solemn form.^[312]  The plaintiffs, being only executrices of the 2004 Will, take no position on the validity of these previous wills.

215.  Insofar as due execution is concerned:

(1)  The 1973 Will and the 1974 Codicil are on their face testamentary in nature and executed in accordance with the formalities under section 5 of the Wills Ordinance (Cap 30), as it stood when the documents were executed.  

(2)  The 1973 Will and the 1974 Codicil, being Chinese documents, were both executed by Mr Lim.  It follows that due execution is satisfied: Nina Kung, Supra §175.

216.  As for testamentary capacity, where the will is duly executed and appears rational on its face, the Court will presume capacity.  The evidential burden lies on the objector to raise a real doubt about capacity: Nina Kung, §176.  In respect of the 1973 Will and the 1974 Codicil, no doubt about capacity has been raised.

217.  Similarly, in relation to knowledge and approval, that is rebuttably presumed by proof of due execution and testamentary capacity: Nina Kung, §206.  In respect of the 1973 Will and the 1974 Codicil, nothing has been raised to rebut the presumption.

218.  As for the 1993 Declaration,^[313] it does not give rise to any issues as it has no bearing on the above analysis:

(1)  Neither the plaintiffs nor the defendants have pleaded reliance on the 1993 Declaration in this probate action.  Neither party seeks to propound it as a will.

(2)  Notices under Order 15, rule 13A of the Rules of the High Court were served by Vincent Cheung on the beneficiaries (including Peter Lam) in 2013, pursuant to leave granted by Master Levy on 21 February 2013;^[314] and in any event, the beneficiaries undoubtedly knew of the existence of this probate action.  However, neither Peter Lam nor any other beneficiary applied to join this probate action to contend that the 1993 Declaration should be pronounced as a will.  The beneficiaries (including Peter Lam) would be bound by the judgment in this probate action anyway, because it is an action in rem.  This has been made clear by the CFA in Li Cheong v Lee Kwai Tai(2020) 23 HKCFAR 116, §42 (Fok PJ).

(3)  In any event, it is doubtful that the 1993 Declaration embodied testamentary intention: Williams on Wills, §10.4.  For example, Peter Lam confirms in evidence that he did not think the document was a will.  His evidence was that its purpose was merely to provide an assurance to him that he would be successor to the business.^[315]

219.  The 1973 Will clearly revoked the 1967 Will: section 13(1)(b) Wills Ordinance.  The 1973 Will states that it is Mr Lim’s “last will”, it post-dates the 1967 Will, and provides for a distribution of assets which is obviously inconsistent with the 1967 Will (as the shares of the residuary estate and the residuary beneficiaries are both different).  The mere fact that the 1973 Will does not contain an express revocation clause does not change this conclusion: Williams on Wills, §§18.8-18.10.

L.  CONCLUSION

220.  For all the reasons set out above, I dismiss the plaintiffs’ claims, and pronounce in solemn form the 1973 Will and the 1974 Codicil as the true last Will and Codicil of Mr Lim.

221.  I order that the costs of these proceedings (including all costs reserved, if any) be paid by the plaintiffs to the defendants, such costs are to be taxed if not agreed with a Certificate for two counsel.

222.  The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same.

223.  Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.

HCAP 4/2011

[2021] HKCFI 1540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 4 OF 2011

____________

____________

____________

_______________________

REASONS FOR DECISION

_______________________

1.  This is the hearing of the application by the Defendants by summons issued on 19 June 2020 (“the Application”) for leave to change their psychiatry expert from Professor Felice Lieh-Mak (“Prof Lieh-Mak”) to Professor Alistair Burns (“Prof Burns”) and to file and serve the expert report of Professor Burns dated 11 June 2020.

2.  The main ground for the Defendants’ Application is that they have come to notice that Prof Lieh-Mak’s evidence was rejected in two decisions, i.e. Daimler AG v Leiduck[1] and Lau Kin Wing Ken v Deng Yiujiao[2], and her evidence was “strongly criticised” by Recorder Lisa Wong SC (as she then was) in Daimler.^[3]   It is said that if they had known about such criticisms, they would not have instructed Prof Lieh-Mak, and that they would be “greatly prejudiced” if they cannot change their expert now.^[4]  The Defendants also claim that they have lost their confidence in Prof Lieh-Mak as their expert witness.

3.  In the hearing on 27 May 2021, I allowed the Application and ordered the Defendants to pay the costs of and occasioned by the Application on indemnity basis.  I now give my reasons.

Legal principles

4.  There is no dispute that since the parties were given leave to adduce the evidence of specified experts and that reports have been exchanged, leave of the court is required for the Defendants now to seek to change their expert.

5.  The legal principles regarding change of expert were summarized by Bharwaney J in Law Chung Fai v Lam Ming Kuen[5]:

“9. The principles that have to be applied in determining an application to change an expert witness may be summarised as follows:

(a)The court’s discretion, whether or not to allow a party to change his expert, is exercised within the ambit of the court’s management powers. These powers must be exercised in the light of the underlying objectives of the recent civil justice reform, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

(b)In the exercise of its powers of case management, the court recognises that the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties.

(c)Expert shopping is undesirable and, whenever possible, the court will use its powers to prevent it. It can lead to potential unfairness between those who can afford to shop around for the opinions of more than one expert and those who cannot. Expert shopping is not conducive to cost effectiveness of the proceedings and the expeditious disposal of a case.

(d)The disclosure of the original expert’s report, and the waiver of the privilege that would normally be attached to it, would usually be imposed as a condition for granting permission to call a substitute expert. However, the disclosure of the original expert’s report per se does not guarantee that the court would permit a substitute expert to be called.

(e)To curtail expert shopping, the court may refuse to grant leave if the only reason for calling a substitute expert is that his opinion is more favourable to the party calling him than the opinion of the original expert.

(f)However, if the court is satisfied that the just resolution of a dispute requires leave to be granted for a substitute expert to be called, it should not refuse leave simply because the opinion of the substitute expert is more favourable than that of the original expert.

(g)In every case, the court should examine the grounds put forward by the substitute expert and make a preliminary assessment of the cogency of those grounds as compared with those set out in the report of the original expert and the report of the expert engaged by the other side. If the court is satisfied that there are relevant matters canvassed by the substitute expert which may be important to the just resolution of the dispute which was omitted from the reports of the original expert, or which was outside the expertise of the original expert, a prima facie case would be made up for the admission of the substitute expert report in the interests of the just resolution of the dispute.

(h)In every case, however, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the change of experts. All these matters have to be considered and weighed in the light of and against the underlying objectives of the civil justice reform: to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.

(i)It is not possible to lay down definitive and exhaustive guidelines to cover and cater for every possible situation that may arise and which prompts an application by a party to change his expert.

(j)Ultimately, the court strives to do justice between the parties and, in cases where the court permits the parties to call expert evidence, the court strives to ensure a level playing field with fair access to proper experts for all parties.”

6.  In determining such kind of application, it is permissible for the court to take into account the consideration that a party should not be required to reply on an expert on whom a party has lost confidence.  However, the court must be entitled to scrutinise this alleged loss of confidence, and also take into account other countervailing factors.[6]

7.  In Edwards-Tubb v JD Wetherspoon Plc, Hughes LJ said the following:[7]

“ … I certainly accept that there may be perfectly good reasons for a party to wish to instruct a second expert. Those reasons may not always be that the report of the first expert is disappointingly favourable to the other side, and even when that is the reason the first expert is not necessarily right. That means that it will often, perhaps normally, be proper to allow a party the option, at his own expense, of seeking a second opinion. It would not usually be right simply to deny him permission to rely on expert B and thus force him to rely on expert A, in whom he has, for whatever reason, lost confidence …”

8.  In Choy Yuen On, David v Lam Kin Chung[8], K Yeung J considered the said principle in Edwards-Tubb and held that it was “entirely consistent” with the summary in Law Chung Fai.  The learned judge went on to summarize the position as follows:[9]

“The Court, when faced with an application to replace an expert, should be alive to the possibility of expert shopping and the undesirable consequences which such conduct can lead to. But on the other hand, the Court should not as a rule simply shut its door to any application for change of experts, but should consider all the circumstances in ways as explained in those cases to see whether good reasons have been shown. The onus of showing good reasons is on the applying party. Ultimately, what the court strives to do is to do justice between the parties.”

9.  Edwards-Tubb was followed in Hort v Charles Trent Ltd[10]. After citing the principles in Edwards-Tubb[11], Eady J considered that “it would not usually be right” to deny a party an opportunity to change his expert when the application to change an expert would just “allow [that party] the opportunity to put his case more effectively, or at least to present it as he wishes”.[12]  It was also pointed out that the court should avoid placing emphasis on discipline “for discipline’s sake” while letting the overriding object to slip out of view.[13]

10.  The possibility of the court in obtaining greater assistance from a specialist than from a generalist has been considered by the court in a similar application in Law Chung Fai, in which Bharwarney J said:[14]

“[in assessing the value of the replacement expert], one must not lose sight of the fact that the purpose of expert evidence is to assist the court on areas of specialist knowledge and expertise that is outside the scope of common knowledge and experience. As a general statement, it can be said that the court is likely to obtain greater assistance from the specialist than from a generalist. When an application is made to change an expert on the ground that the new expert has greater knowledge and experience in a particular area, the issue takes on a different dimension and the question the court has to ask is whether his greater expertise and knowledge is required by the court to resolve any particular issue or issues that have arisen. The question then is not just whether or not the opinion of the specialist is more favourable but whether his greater expertise is required to assist the court to determine the case. The answer to that question depends on the issues raised: are they central or peripheral to the determination of the case; and, if peripheral, the greater assistance the specialist may provide to the court on the issue(s) must be balanced against other considerations such as proportionality, added costs and expenses, disruption to trial dates.”

11.  Ultimately, the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties and other case management considerations.

Discussions

12.  With these principles in mind, I turn to the facts of the present case.

13.  The present action concerns the validity of the alleged will (“the Will”) of the late Mr Lim Por Yen (“the Deceased”) dated 3 December 2004.  As one of the main issues in this case is whether the Deceased had the testamentary capacity at the time when the Will was executed, expert evidence on the then mental state of the Deceased is of vital importance in this action.

14.  By the order of Master Hui dated 10 October 2013 (“Master Hui Order”), the parties were given leave to adduce expert evidence in the fields of psychiatry and neurology respectively. The number of expert witnesses in each field was limited to 1 for each party.

15.  Master Hui Order sets out the experts identified by the parties:

(i)   Neurology expert: Dr Edmund Woo for the Plaintiff and Dr Yu Yuk Ling (“Dr Yu”) for the Defendants; and

(ii)  Psychiatry expert: Professor Robin Jacoby (“Prof Jacoby”) for the Plaintiff and Prof Lieh-Mak for the Defendants.

16.  By letter dated 27 February 2015, the Defendants indicated that they would be filing the reports of Prof Lieh-Mak and Professor Emrah Duezel (as opposed to the initially proposed Dr Yu).  Prior to the proposed change of expert, Dr Yu had not been instructed and had not produced any report.  On 12 March 2015, the parties exchanged expert reports under the Plaintiff’s protest of the Defendants’ change of neurology expert.  Eventually, the Plaintiff gave up his opposition and did not object to the Defendants seeking leave to change their expert.

17.  Mr Man, SC, counsel for the Plaintiff, objects the Application on the ground that the Defendants have not put forward any good reason for the replacement of, this time, their psychiatry expert.  His arguments can be summarised as follows:

(i)    There can be no question that Prof Lieh-Mak is an experienced and well-qualified academic and practitioner in the field of old age psychiatry, and would be fully competent to assist the court on the issues of psychiatry as an expert witness. Prof Lieh-Mak was chosen by the Defendants as their psychiatry expert because of her credentials, and they must have carefully considered her suitability and competence in making such decision.

(ii)   The mere fact that Prof Lieh-Mak’s evidence was rejected or even criticised in some previous cases can hardly be a good reason for changing expert.  For an expert witness as experienced as Prof Lieh-Mak, there are bound to be cases where the court did not accept her evidence.  This could be due to a variety of reasons, without impugning the expertise or professionalism of the expert, and must depend on the circumstances and the evidence of each case.  Indeed, Prof Lieh-Mak has frequently given expert evidence in the courts in the past 10 years as an expert, and her evidence has been repeatedly accepted by the courts, including after the decisions in Daimler and Lau Kin Wing Ken.

(iii)  There is no suggestion from the Defendants that they now question Prof Lieh-Mak’s qualifications or expertise, or the correctness of any part of her reports or evidence, whether the reasoning or her conclusion.  Indeed, the Defendants are quick to emphasise that Prof Lieh-Mak’s evidence fully supports their case.

(iv)  It is not open to the Defendants to argue that Prof Burns would offer greater assistance to the court than Prof Lieh-Mak because he is a “specialist” whereas Prof Lieh-Mak is only a “generalist”, as: (a) there is no evidence to show that Prof Lieh-Mak is not qualified to give expert opinion on the specific issue in this case; (b) the Defendants have only raised such point in the submissions and not in the affirmations, and as a result it is not fair to the Plaintiff as he has not been forewarned as to the necessity of adducing evidence on such specific issue; and (c) Recorder Wong’s observation about Prof Lieh-Mak as a “generalist” has to be read in the context of the facts and issues canvassed in Daimler.

(v)   Despite the criticism of the judge of the evidence of an expert in the trial of liability, Mimmie Chan J in Chang Pui Yin v Bank of Singapore Ltd[15] placed emphasis on the availability of the other side’s expert evidence who can assist the court in refusing the application for the change of expert for the trial on quantum.  The same principle can apply here.

(vi)  The Defendants have dragged their feet in making the Application.  Further, the Plaintiff will be prejudiced if the Application is allowed, and the whole process of the joint meeting and joint report will have to be repeated again.

18.  These are powerful arguments opposing the Application.  In considering the credibility of the evidence given by a particular expert, the court, in general, would ignore the comments made by the courts in other proceedings about the evidence given by such expert.  As submitted by Mr Man, there may be a lot of different and case-specific reasons as to why the courts rejected the evidence of a particular expert.  Further, the Defendants had certainly taken into account Prof Lieh-Mak’s qualification and experience in choosing her as their expert in the first place, and there has been considerable unexplained delay in the making of the Application.

19.  Despite the able submissions of Mr Man, I, rather reluctantly, decide to exercise the discretion in allowing the change of expert.

20.  First, this is not a case of expert shopping.  There is no issue that Prof Lieh-Mak had given a favourable report in support of the Defendants’ case.  As compared with Prof Burns’ views, Prof Lieh-Mak’s opinions may even be considered as more assertive and definite.

21.  Second, the qualification of the expert and the experience of the expert in dealing with a particular class of patients, elderly persons in the context of the present case, may be relevant for the court in assessing the credibility of his expert evidence.  This actually happened in one mental health case that I handled recently, in which an attack was lodged against the evidence of a particular expert who might not have experience in old age psychiatry or in dealing with elderly patients.  It suffices for me to say that this may be one of the factors considered by the court in assessing the reliability of expert evidence.

22.  It is right for the Plaintiff to say that the Defendants have not expressly mentioned the possible benefit with the assistance of a more specialized expert in the supporting affirmations.  However, the 2^nd Defendant did refer to the judgment of Recorder Wong in Daimler as the basis of the Application.  In the said judgment[16], Professor Lieh-Mak was described as a “generalist” and that “dementia is admittedly not her specialty”.  Professor Lieh-Mak’s curriculum vitae “does not reveal any specialised research or publication on dementia.  She saw only around 30 elderly patients in the previous three years with just 1 or 2 of them suffering from DLB [dementia with Lewy-bodies] (who were all at a very late stage of the condition)”.  The learned judge had expressly relied on the lack of specialist experience as a reason not to accept Prof Lieh-Mak’s evidence.  In such case, the Plaintiff should have known that the relevant qualification and experience of the substitute expert and the possible impact of such factor would be a key issue in the Application.

23.  The present case is also different from Chang Pui Yin v Bank of Singapore Ltd^[17].  The “only reason” for the applicant to replace the expert in that case was to obtain a better opinion or an opinion which was more favourable to the applicant, whereas in the present case, the real issue is whether Prof Burns would be more qualified or has more experience in old age psychiatry so that he would be in a better position to give the expert opinion on the mental condition of the Deceased when he executed the Will.

24.  Third, the court cannot ignore the Defendants’ allegation of loss of confidence in Prof Lieh-Mak as an expert, at least in a case concerning an elderly testator.  I have no idea as to whether it was indeed the dicta of Recorder Wong which caused such loss of confidence, but the lack of expertise of Prof Lieh-Mak in old age psychiatry may be a real concern to the Defendants. In my judgment, for the just resolution of the dispute, the Defendants should not be debarred from putting their house in order by engaging a more qualified and experienced expert in the field of old age psychiatry to give evidence on their behalf on an important, if not the most important, issue in this case.

25.  Fourthly, there is no serious prejudice to the Defendants by the changing of expert.  It is true that lack of prejudice is not by itself a good reason to justify the change of expert.  However, the trouble of doing another round of joint-meeting and joint-report is quite minimal in the overall scheme of events.  At most, it takes a few months to complete the whole process which would have a negligible impact in the overall progress of the case.  In fact, both Prof Jacoby and Prof Burns are experts in old age psychiatry in the United Kingdom, and their professional acquaintance and relationship (as outlined in the proposed Prof Burns’ report) may facilitate the crystallization of issues and minimize unnecessary arguments between them.

26.  Nevertheless, I must put a marker here that there has been considerable delay in the progress of the case.  For reasons unknown to me, the parties have allowed this case to drag on for a long period of time.  I do not need to remind the parties that it is highly undesirable for cases to be delayed for so long.  I hope that there will not be further applications for change of experts on the ground that they are not available to testify in court due to reasons relating to passage of time.

27.  This is an indulgence of court given to the Defendants.  Considering that it was the Defendants who chose Prof Lieh-Mak as their expert in the first place and there had been considerable unexplained delay in the making of the Application, the Defendants should pay for the all costs of and occasioned by the Application to the Plaintiff on an indemnity basis.  I therefore so ordered.  For the costs already incurred, I made a summary assessment in the sum of $500,000.  For the future costs, I made an order, with the consent of the parties, for interim payment of such costs in the sum of $200,000.

HCAP 4/2011

[2018] HKCFI 637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 4 OF 2011

____________

____________

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D E C I S I O N

______________

INTRODUCTION

1.  The only application which requires the court’s determination concerns the defendants’ summons seeking interrogatories to be answered by the plaintiff.  It is opposed by the plaintiff.

BACKGROUND

2.  The background relevant to this action has been summarized in my earlier decision of 11 December 2015 (defendants’ earlier application for discovery of documents).  The relevant passages are quoted below to facilitate comprehension of this decision:

“3. The plaintiff commenced this action in February 2011 (claiming to be the executor of a will dated 3 December 2004 of the late Mr Lim (‘the dec’d’ and ‘the 2004 will’)) against the defendants, respectively the dec’d’s concubine and daughter, who have earlier entered caveats against the 2004 will. He seeks the 2004 will to be pronounced in solemn form.

4. The defendants deny the claim on the following grounds:

(1) the dec’d lacked testamentary capacity at the time of the 2004 will;

(2) the dec’d was acting under the undue influence of his other concubine (‘Mdm U’) and his son (‘Peter Lam’);

(3) the dec’d did not know or approve of the contents of the 2004 will (he having in late 2003 expressed a wish inconsistent with the 2004 will);

(4) the dec’d’s signature on the 2004 will was different from his other signatures;

(5) the righteousness of the 2004 will is not admitted by reason of the above matters.

Further, the defendants counterclaim based on a Chinese will dated 2 February 1973, a Chinese codicil dated 20 January 1974 and/or an English will dated 23 September 1967.

5. Among the matters averred to in the defence pleading are:

(a) (as has in effect been so stated in the 2004 will) a gift of the dec’d’s ‘A’ shares in a Wisdoman Ltd (‘Wisdoman’) to Peter Lam;

(b) (as has in effect been so stated in the 2004 will) a gift of the dec’d’s Wisdoman ‘B’ shares to Mdm U;

(c) Wisdoman was the owner of about 484 million shares in Lai Sun Garment (International) Ltd (‘Lai Sun’), a company publicly listed in Hong Kong;

(d) inconsistent with the said testamentary gifts:

(1) on 8 December 2004 (a few days after the 2004 will) the dec’d purportedly transferred all his interest in Lai Sun to Wisdoman;

(2) on 14 December 2004 the dec’d purportedly transferred all of his Wisdoman shares to Mdm U and Peter Lam.”

In short, what lies at the heart of the dispute which this action seeks to resolve (at least insofar as the 2004 will is concerned) is the validity and enforceability of the 2004 will.

3.  Further, the defendants have served on the plaintiff a set of interrogatories dated 12 December 2014 (“the Dec 2014 interrogatories”).  The plaintiff has answered them on oath in his answers dated 20 January 2015 (“the Jan 2015 answers”).

4.  As the plaintiff relies on the Jan 2015 answers in his opposition to parts of this application, the Jan 2015 answers will be referred to below when necessary.

THIS APPLICATION

5.  It appears most convenient to discuss the interrogatories involved in this application in the order in which they have been set out on 21 August 2017 (“the Aug 2017 interrogatories”).

6.  The relevant legal principles are trite, and are largely governed by the discretion conferred by, and to be exercised in accordance with, the provisions of RHC Ord 26 rr 1 (especially r 1(1)), and 4 to 5.

(a)   Interrogatory (1)

7.  This in gist relates to the transfer of the Lai Sun shares to Wisdoman (“Wisdoman share transfer”).  Two interrogatories are put forth.

8.  The first interrogatory asks the plaintiff when he became aware of the Wisdoman share transfer.  The defendants contend that this is (and the other interrogatories are) necessary for disposing fairly of this action, or for saving costs.

9.  The second interrogatory asks for particulars of any communication between the plaintiff and others concerning the Wisdoman share transfer before the dec’d’s death.

10.  Here I agree with the plaintiff that the parties’ respective pleaded case does not allege that the plaintiff was in any event connected with the Wisdoman share transfer.  In an intended derivative or representative action brought by the 2^nd defendant herein (“Mdm Ling”) on behalf of the dec’d’s estate, the draft statement of claim avers that the Wisdoman share transfer was procured by Mdm U and Peter Lam.

11.  For this reason, I also agree with the plaintiff this interrogatory is unnecessary (see para 2 above).

(b)   Interrogatory (2)

12.  This interrogatory asks the plaintiff whether he became aware of the transfer of the shares of Wisdoman after the Wisdoman share transfer and before the commencement of this action.

13.  Similar to what has been stated in relation to interrogatory (1), I do not consider this interrogatory to be relevant.  I also agree with the plaintiff this is even more so with regard to the period after the dec’d’s death.

(c)   Interrogatory (3)

14.  This asks the plaintiff whether he became aware of any asset (property or shares) belonging to Wisdoman after the Wisdoman share transfer and before the commencement of this action.

15.  The same reason as para 13 above also applies here.

(d)   Interrogatory (4)

16.  This refers to 5 companies the shareholders of which were the dec’d and Peter Lam (together with another for 1 out of the 5 companies).

17.  It asks the plaintiff whether he was aware of:

(a)  the dissolution of the above companies (and if so, the particulars relating to such dissolution);

(b)  any post-dissolution transfer of interests held by the dec’d to the plaintiff (and if so, the particulars relating to such transfer);

(c)  the dec’d was advised about his legal rights before the dissolution;

(d)  the identity of the legal advisor appointed to act for the dec’d in respect of the Wisdoman share transfer.

18.  I agree with the plaintiff this interrogatory is irrelevant to the issues raised by the pleadings in this action (see para 2 above).

(e)   Interrogatory (5)

19.  This refers to 3 companies the shareholders and/or directors of which were the dec’d, Mdm U and/or Peter Lam (sometimes with other people).

20.  It asks the plaintiff information similar to those asked by interrogatory (4) (above).  Further, it asks:

(1)   whether the plaintiff knew two of the 3 companies resolved to destroy its own books and account upon their dissolution;

(2)   whether the plaintiff has copies of the filed accounts, management accounts and/or minutes (probably referring to the minutes of meetings) of the 3 companies;

(3)   whether the plaintiff knew of the distribution of assets by the 3 companies before their dissolution;

(4)   whether the plaintiff knew of payments made to Mdm U and/or Peter Lam (or companies connected to them) by the 3 companies before their dissolution;

(5)   whether the plaintiff knew of the whereabouts of the sale proceeds from the sale of Star House by one of the 3 companies.

21.  For reasons similar to para 13 and 18 above, this interrogatory is irrelevant.

(f)    Interrogatory (6)

22.  This refers to 3 companies the shareholders of which were the dec’d and/or Mdm U (sometimes together with others).  It asks whether the plaintiff knew:

(a)   the whereabouts of the dec’d’s shareholdings in the 3 companies when the time of the dec’d’s death;

(b)   the 3 companies were solvent at the time when they were liquidated and the particulars of any distribution to the plaintiff (as the executor appointed by the 2004 will) at the time of liquidation.

23.  For reasons similar to para 13 and 18 above, this interrogatory is irrelevant.

(g)   Interrogatory (7)

24.  In essence, this asks the plaintiff about any disposition or transfer of properties belonging to the dec’d’s estate to any person, and the particulars relating to such disposition or transfer, after the plaintiff’s appointment as the executor.

25.  As the plaintiff correctly contends, this can at most be relevant to the administration (proper or otherwise) of the dec’d’s estate.  It is irrelevant to the issues in this action.

(h)   Interrogatory (8)

26.  This asks the plaintiff whether he was aware of the medical practitioner who has been instructed to certify the dec’d’s testamentary capacity and the identity of such medical practitioner and the date of such instruction.

27.  While the plaintiff admits this to be a relevant interrogatory, the plaintiff argues correctly that this information has already been disclosed in:

(1)   the Jan 2015 answers;

(2)   the plaintiff’s witness statement dated 6 November 2014 (para 25 and 28 thereof).

It is therefore unnecessary.

CONCLUSION

28.  By reason of the above matters, I agree with the plaintiff that the defendants’ summons should be dismissed with a direction that the related interrogatories be withdrawn.

OTHER MATTERS

29.  The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the decision and its easier comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

COSTS ORDER NISI

30.  There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of the defendants’ summons be paid by the defendants to the plaintiff.

31.  I consider summary assessment of costs to be appropriate.  The above costs shall thus be so assessed.  For this purpose:

(a)   the plaintiff be at liberty to lodge with court and serve a statement of costs within 14 days from today;

(b)   the defendants be at liberty to lodge with court and serve a statement of objections within 14 days thereafter.

HCAP 4/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 4 OF 2011

____________

____________

_______________

DECISION

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1. This court handed down a composite decision on 18 February 2016 (“the Decision”) whereby both Mr Cheung’s application for a grant of administration ad colligenda bona (made in another set of proceedings HCEA 25/2013) and the application of Madam Koo and Madam Ling (“K & L”) for the appointment of administrators pendent lite (“APL”) were dismissed.

2. K & L now apply leave to appeal against my dismissal of their APL application by their summons dated 3 March 2016, which was amended with leave given at the hearing. The Amended Schedule to their amended summons contains an amended draft notice of appeal comprising 16 grounds.

3. Before I deal with the substantive application, I shall first remind myself of the undisputed principles applicable.

4. To obtain leave to appeal from an interlocutory order, K & L have to show that either their appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard: section 14AA(4) of the High Court Ordinance, Cap. 4.

5. Reasonable prospect of success involves the notion that the prospects of success must be “reasonable” and therefore more than “fanciful” without having to be “probable”: SMSE v KL [2009] 4 HKLRD 125 at §17 per Le Pichon JA.

6. Section 40 of the Probate and Administrative Ordinance, Cap. 10 (“the PAO”) endows this court with a discretion to appoint an APL who would be subject to the immediate control of the court and act under its direction. In Hung Jin Mui v Tang Chui Yuk Angela and Anor., unreported, HCAP 4/1997, 11.2.1998, Le Pichon J (as she then was) explained that this discretion is to be exercised out of necessity or expediency with reference to the actual circumstances of the case bearing in mind the assets comprised in the estate.

7. K & L are now seeking to appeal against the exercise of discretion by this court under the said provision. Whilst Mr Ho SC, together with Mr Chan, for K & L accepts the well-established principle that an appellate court will not lightly interfere with the exercise of discretion, it is apposite to refer to the two recent authorities helpfully cited to me by Mr Man SC with Mr Lam appearing for Mr Cheung. 

8. First, in Re China Medical Technologies Inc., unreported, HCMP576/2016, when considering whether leave to appeal should be granted in respect of an order made under section 221 of the Companies Ordinance, Barma JA had this to say,  

“It is well established that the exercise of the powers under section 221 is a matter for the court’s discretion. As such, the liquidators face a substantial hurdle in seeking to overcome the judge’s exercise of his discretion. It is not enough to suggest that the judge assigned inappropriate weight to one (or several factors) in the balancing exercise that led him to exercise his discretion as he did. It is trite that questions of the weight to be given to particular factors in that process are for the judge hearing the application to determine, and an appellate court will not interfere simply because it might take a different view from the judge as to the weight to be assigned to any given factor. Absent a relevant error of law, or a demonstrated misunderstanding of the evidence, or it being shown that the judge failed to have regard to relevant factors or took into account irrelevant matters, the court will only intervene in the exercise of discretion if it is satisfied that the judge’s decision was plainly wrong

9. Further, even though the conclusions in the Decision were made without cross-examination on evidence, still an appellate court should only interfere where it is clear that an error of principle has been made or that the result falls outside the range of potentially ‘right’ answers: AmTrust Europe v Trust Risk Group [2016] 1 All ER (Comm) 325 per Beatson LJ at §33. The exercise carried out by the judge is an evaluative one, sometimes with a ‘predictive’ element, and with more than one possible answer where the documentary evidence contains a sharp clash of evidence about the facts.

10. Beatson LJ went on to discuss the role of an appellate court, which appears to have elements of a ‘rationing of appellate resources’ rationale. Such elements are likely to be relevant where the first instance decision is interlocutory and not conclusive as to the merits, which are to be determined at a later substantive hearing.

Discussion about this application

11. I shall adopt the same abbreviations used in the Decision here. I shall also refer to the background facts set out in the Decision and shall not repeat any of them here.

12. Mr Man makes an apt categorisation of all the grounds set out in the amended draft notice of appeal. Absent any challenge to its correctness, it would be helpful for me to set it out as follow.

13. Grounds 1 and 11 to 13 relate to the allegations of K & L that Mr Cheung lacks neutrality in his dealings against K & L. Ground 2 relate to the inadequacy of the Undertaking. Ground 3, 4 and 7 cast doubt on the overall approach adopted by this court in dismissing the various complaints of K & L about Mr Cheung. Grounds 5 and 6 relate to the alleged failure of this court to take into account the way Mr Cheung handled the ACB Application. Grounds 8 to 10 relate to the allegedly void or voidable transfer of the Wisdoman shares by the Deceased in his lifetime to Peter Lam and Grounds 14 to 15 relate to the alleged delay of Mr Cheung in his prosecution of the present action.

14. Ground 16 is only a general allegation that this court has wrongfully exercised the discretion by erring in law and principle, by failing to take into account of relevant considerations and by taking into account of irrelevant considerations in my decision.

15. In both his written and oral submissions, Mr Ho does not really go through each and every grounds of the intended appeal. I do not propose to deal with all such grounds myself and I shall only focus on those fully developed by Mr Ho in this application.

16. Whilst being well aware of the threshold of this application, Mr Ho essentially repeats the same submissions including his sharp criticisms of Mr Cheung’s conduct of the probate action and his management of the Estate thus far with the same admirable eloquence and skill as he did on the last occasion. I believe I have dealt with his arguments and the authorities he cited sufficiently in the Decision and in any event, it is not appropriate for me to give any additional reasons here.

17. Mr Man notes that as shown in the Decision, I have referred to a number of relevant authorities and taken into account the applicable principles. I have considered all the grounds advanced by K & L but I am unable to accept that it is either necessary or expedient that an appointment of an administrator pendent lite is warranted in the particular circumstances of this matter. Hence I refused to exercise my discretion under section 40 of the PAO. Mr Man submits that the appellate court can hardly find my exercise of the discretion to be plainly wrong on the established principles.

18. Mr Ho however highlights that it is the case that the Court of Appeal has adequate grounds to interfere by reason of a wrong approach adopted by this court. He submits that the intended appeal involves an important principle of law, i.e. the duty of neutrality of Mr Cheung in his administration of the Estate. Mr Ho submits that this court did not turn its mind to and did not decide on the question as to whether this court can still be confident that leaving the management of the Estate to Mr Cheung with his avowedly partisan position would not occasion any prejudice or loss to K & L so that no appointment of an administrator pendent lite is warranted.

19. Mr Ho submits that this court’s erroneous approach taken was a result of the failure of this court to appreciate and distinguish the two different and conflicting roles of Mr Cheung. On the one hand, Mr Cheung is the executor under the 2004 Will seeking to propound the same in the probate action. On the other hand, He has the de facto control and management of the Estate pending the outcome of the probate action. 

20. To underscore to this court the duty of neutrality of an executor and trustee under the 2004 Will, he refers again to the dictum of Lam J (as he then was) in HSBC International Trustee Limited v Tam Mei Kam, unreported, HCMP 716/2004, 11.10. 2004 citing the principles expounded by Lightman J in Alsop Wilkinson v Neary [1996] 1 WLR 1220 and a passage in Lewin on Trusts, 17^th Edn., §21-96. Such dictum can be found in the Decision.

21. Mr Ho further refers to this court two authorities for the first time to illustrate the importance of an administrator pendent lite to act impartially in preserving the estate and not to favour one class of potential beneficiaries over another.

22. In Re Rondahl (2005) 226 ALR 475, Mrs Henderson, the surviving spouse of a testatrix, Mr Rondahl, was named as the sole executor and effectively the sole beneficiary under a will made in 1993. The beneficiaries of the earlier wills together with the executors appointed thereunder started an action to revoke the 1993 will on the ground that Mr Rondahl did not have the testamentary capacity to make the 1993 will. In the course of the action, Mrs Henderson applied successfully for an appointment of Mr Hart as per her proposal as an administrator pendent lite to hold certain shares of Mr Rondahl pending the determination of the action. Mrs Henderson wanted to sell those shares whilst the opposing camp wanted to retain them for the sake of the family business. By an order, Mr Hart could not deal with such shares without the court’s approval.

23. When considering the duty of such an administrator pendent lite appointed, Anderson J said this,

“It is also clear that the person appointed as administrator should be totally dissociated from the litigation and is not to be seen to act in the role of an agent for any party: see Tomkinson v Hersey (1983) 34 SASR 181 (§121).

What is clear is that the administrator must at all times act in an impartial manner and not favour any of the potential beneficiaries when there is a dispute as to their entitlement. The important point is that the disputing parties are only potential beneficiaries, and, until their dispute is finalised there is no ability to predict how many of them and in what proportions they will have a capacity to exercise voting rights in relation to the shares (§124).”

24. It should be noted that in Re Rondahl, there was no dispute as to the suitability of Mr Hart to act as an administrator pendent lite and he was independent of the parties to the action. The necessity or expediency of his appointment, which is the bone of contention here, was not in issue there at all.

25. Next, Mr Ho refers to Tomkinson v Hersey for the proposition that it is in generally undesirable that a person actively concerned in litigation concerning a disputed will should be appointed as administrator pendent lite. The dispute there again was not whether an administrator pendent lite should be appointed. It was about who should be appointed.

26. There, Cox J considered the suitability of Mr Tomkinson to act as an administrator pendent lite pending an action commenced by him. In the action, Mr Tomkinson sought to prove in solemn form of a will whereby a testatrix appointed him to be one of her executors and bequeathed to him substantial benefits. This was an important factor which Cox J took into account when he refused to find Mr Tomkinson to be a proper person to be appointed as administrator pendent lite.

27. I cannot accept that whenever an executor not being one of the beneficiaries in an estate seeks to propound a will in an action and wishes to take an active role therein, he has to step down and be replaced by an independent administrator pendent lite appointed by the court merely by reason of any challenge to the validity of the contested will.

28. Here, Mr Cheung is not a beneficiary under the 2004 Will. It is not suggested that he has any financial interest in conflict with those of K & L in the Estate. I cannot accept that his mere participation of the probate action should suffice to disentitle him to manage the Estate in accordance with the 2004 Will.

29. Returning to the two different and conflicting roles of Mr Cheung, I should point out that it is the submission of Mr Ho that Mr Cheung owes a duty of neutrality in each of the two roles he plays and he discharges neither of them. He submits that the breach of duty of neutrality in the former role must reflect badly on his fitness and appropriateness for the purpose of the management of the Estate pending the determination of the probate action. The breach does not merely give rise to a question of costs as contended by Mr Man and apparently accepted by this court.

30. Mr Man never shies away from the fact that Mr Cheung does not take a neutral stance in the probate action. Mr Cheung should and could, in his submission, not do so. To Mr Cheung, K & L are mere strangers to the 2004 Will and he is not obliged to take care of their alleged potential interest in the Estate. He submits that the issue of the duty of neutrality only arose in the context of whether a pre-emptive costs order should be granted in HSBC International Trustee Limited.

31. I note that Mr Ho now accepts that a partisan role taken by an executor and trustee in a dispute among beneficiaries alone does not necessarily justify his replacement by an administrator pendent lite without any ado. It follows that K & L must adduce further evidence to show that Mr Cheung should invariably be adversely affected by his partisan approach in the probate action in his management of the Estate and hence he has to be replaced so as to protect the Estate.

32. In the Decision, this court finds that in the particular circumstances of this matter, the decision of Mr Cheung not to abide by his usual duty to remain neutral in the probate action and instead to defend the integrity of the 2004 Will and his own professionalism with full vigour cannot be held against his suitability to continue his administration of the Estate.

33. On the other hand, Mr Ho is unable to persuade me on the evidence that Mr Cheung has ever acted in breach of his duty of neutrality in managing the Estate with or without being affected by his partisan stance taken in the probate action. There is no allegation that he has shown favourism towards any particular potential beneficiaries in a dispute as to their entitlement. I have already explained that Mr Cheung does not have a duty to treat all the debtors of the Estate equally.  In the absence of any valid complaint of his lack of neutrality in his administration of the Estate endangering or causing loss to the Estate or any potential beneficiaries, I fail to see why Mr Cheung has to be replaced by an administrator pendent lite.

34. Therefore, I am not convinced that I erred in law in that I misunderstood the different duties of neutrality owed by Mr Cheung and hence adopted a wrong approach to my exercise of the discretion under section 40 of the PAO. I am not persuaded that this main ground of appeal has any reasonable prospect of success.

35. Now I continue to deal with some other minor points raised by Mr Ho. With respect of the adequacy of the Undertaking, I did not say and do not think that it is a complete answer to the purported concern of K & L. However, I am entitled to accept the offer of the Undertaking given by Mr Cheung, which to a certain extent can allay the purported concern.

36. I agree that dissipation of assets can be achieved by inaction too. Mr Man submits in appropriates cases with cogent evidence K & L can apply in the probate action for a mandatory injunction to compel Mr Cheung to act in his administration of the Estate to avoid dissipation. The same applies when a particular part of the Estate calls for management. I agree with him.

37. K & L are dissatisfied with my refusal to find the existence of an intended collusive sale of the Properties in the ACB Application. They now complain that this court has refused to allow cross-examination of Mr Cheung and as a result they were deprived of the chance to establish his dishonesty.

38. I find no merit in this compliant. The application for a cross-examination of Mr Cheung was made in HCEA 25/2013 and not in this probate action. I did not find cross-examination necessary to dispose of the ACB Application and there is no appeal against this decision. Nor did they ever apply to cross-examine Mr Cheung for the purpose of the APL Application.

39. In regard to the Wisdoman shares, it is submitted that this court erred in its dealing with the issue of limitation relating to a possible claim against Peter Lam and Madam U for the recovery of those shares.  

40. The limitation issue arose when K & L complained that Mr Cheung had failed to consider whether any claim relating to the Wisdoman shares might be time-barred: see §29 of the Skeleton Submissions of K & L filed for the APL Application. This court did not accept the validity of this complaint because the lack of mental capacity was only raised by K & L very late in the probate action. When it was raised, such a claim should already be time-barred and Mr Cheung should not be blamed for letting the claim be time-barred. Whether such a claim may nevertheless survive the limitation issue is quite another matter.

41. Mr Ho points out that K & L might not have the locus to set aside the transfer of the Wisdoman shares and so this court is wrong to say that there is no reason why they did not take steps to do so when such a claim could be made without any limitation issues.

42. I made the observation in response to the submission that K & L had taken out an application for specific discovery to find out more about the circumstances of the Wisdoman shares with a view to a challenge to the validity of the transfer. The application was said to be heard on 24 November 2015 before another judge. With or without the locus to sue in their personal capacities to challenge the validity of the transfer, I took the view that they should have acted before any limitation issue might arise and it is not open to them now to blame Mr Cheung.

43. Lastly, as rightly pointed out by Mr Man, there is no complaint about my finding of their inexcusable delay in the APL Application, which seriously tilted my discretion against the grant of their application.

44. As noted above, there are other points in the amended draft notice of appeal. I believe the Decision can sufficiently dispose of all of them and I do not find any of them to be meritorious.

Conclusion

45. For the reasons given, I am not satisfied that I have exercised my discretion in an erroneous manner and that there is a reasonable chance that the Court of Appeal would disturb the same. K & L have failed to meet the threshold and their application must be refused. I dismiss their amended summons accordingly.

46. There is no reason why costs should not follow the event. I make an order nisi that K & L should pay Mr Cheung his costs of and occasioned by this application, to be taxed if not agreed with certificate for two counsel. 

47. Last but not least, I thank all counsel involved for their assistance in this matter.

HCAP 4/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 4 OF 2011

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D E C I S I O N

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Introduction

1.  There are two applications for the discovery of documents, taken out by the defendants against non-parties (relying on s 42(1), High Court Ordinance (Cap 4) and RHC Ord 24 r 7A(2)).

2.  Similar applications have been taken out by the defendants earlier.  They led to a decision dated 11 December 2015 (respectively “the earlier discovery applications” and “the Dec 2015 decision”).  The same abbreviations used in the Dec 2015 decision will be used below.  Mdm U and Peter Lam were two of the opposing parties in one of the earlier discovery applications.  They will be called “the opposing parties” below for convenience.

3.  In gist, one application seeks Mdm U to: 

(a)  disclose by affidavit whether she has had documents concerning the medical treatment, and/or the health condition, of the dec’d from July 2004 to the time of his death (February 2005);

(b)  produce the above documents.

4.  The other application seeks Peter Lam to:

(1)  disclose by affidavit whether he has had documents concerning the preparation of the 2004 will (including instructions, distribution list or distribution proposal, notes, attendance note and communications);

(2)  disclose by affidavit whether he had had documents similar to those summarized in para 3(a) above (the proper period seems to be that mentioned in para 3(a) above);

(3)  disclose by affidavit whether he had had documents recording the circumstances about the execution of the 2004 will (on 3 December 2004) (“the 3 Dec 2004 documents”);

(4)  produce the above documents.

(collectively “the requested documents”)

5.  The opposing parties resist the above applications essentially on the following grounds:

(a)  res judicata (only in relation to the part of the applications seeking disclosure);

(b)  lack of necessity.

Background

6.  The background leading to the earlier discovery applications has been summarized in the Dec 2015 decision.  The part of the background relevant to the present applications is quoted below:

“3. The plaintiff commenced this action in February 2011 (claiming to be the executor of a will dated 3 December 2004 of the late Mr Lim (‘the dec’d’ and ‘the 2004 will’)) against the defendants, respectively the dec’d’s concubine and daughter, who have earlier entered caveats against the 2004 will. He seeks the 2004 will to be pronounced in solemn form.

4. The defendants deny the claim on the following grounds:

(1) the dec’d lacked testamentary capacity at the time of the 2004 will;

(2) the dec’d was acting under the undue influence of his other concubine (‘Mdm U’) and his son (‘Peter Lam’);

(3) the dec’d did not know or approve of the contents of the 2004 will (he having in late 2003 expressed a wish inconsistent with the 2004 will);

(4) the dec’d’s signature on the 2004 will was different from his other signatures;

(5) the righteousness of the 2004 will is not admitted by reason of the above matters.

Further, the defendants counterclaim based on a Chinese will dated 2 February 1973, a Chinese codicil dated 20 January 1974 and/or an English will dated 23 September 1967.”

7.  As stated in the above quote, Mdm U and Peter Lam were two of the dec’d’s close relatives.  More importantly for present purposes, they are also two of the beneficiaries named in the 2004 will.

Res judicata

8.  Reliance is placed in this connection on the following part of the Dec 2015 decision:

“The summons seeks in gist:

(a) the opposing parties to each file an affidavit stating whether they have (or have had) possession, custody or power the requested documents;

(b) the opposing parties to produce the ‘transfer’ documents for inspection and permit copies to be taken.

As the opposing parties correctly point out, s 42(1), Cap 4 only empowers the court to order a non-party to disclose and produce the requested documents (para 28(1) above). For this reason, as between the defendants and the opposing parties, no order will be made as regards the relief summarized in sub-para (a) above.” (para 41 thereof)

(“the quoted part of the 2015 decision”)

9.  Based on the above, the opposing parties contend that:

“… it is no longer open to [the defendants] to contend for the grant of the order sought”.

This is because (so it is contended):

“The Court [has] already given a decision on a previous occasion involving the same parties on the same question of jurisdiction from which there was no appeal, the principle of res judicata applies”. (para 4, opposing parties’ written submissions)

10.  In order to properly determine this objection, it is necessary to examine in some details what in law constitutes res judicata.  Spencer Bower & Handley: Res Judicata (2009) 4^th Ed made the following observations:

“The issue estoppel created by a dismissal is limited to ‘the actual ground upon which the existence of the right was negatived.’ If this cannot be determined the dismissal will only decide that relief was refused. The availability of the court’s reasons and the diminished role of the civil jury make it possible in most cases to determine the actual basis of a dismissal. An important question is involved. As Lord Cranworth LC explained [Moss v Anglo-Egyptian Navigation Co (1865) 1 Ch App 108, 115; paras 8.17, 8.26], it was necessary:

‘… to show that the question raised in the second suit had been adjudicated upon in the first … this is not … a technical rule at all, but is one of substance, and unless it is strictly adhered to plaintiffs who have a clear title to relief on account of the breach of an agreement may, by failing to prove a breach, lose all right to complain of future breaches’.”

(para 2.28 thereof);

“A decision will create an issue estoppel if it determined an issue in a cause of action as an essential step in its reasoning. … ”

((para 8.01 thereof);

“A fuller statement in the judgment of Dixon J in Blair v Curran [(1939) 62 CLR 464, 531-533] merits quotation:

‘A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion … in [issue estoppel], for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is … necessarily decided by the prior judgment, decrees or order.

Nothing but what is legally indispensable to the conclusion is thus finally … precluded.

… Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation.’ ”

(para 8.02 thereof)

(all emphases above are supplied)

11.  Of the quoted part of the 2015 decision relied upon as founding the estoppel, the first thing to note is that it has not stated that the related parts of the earlier application had been dismissed. Rather, it merely stated that no order had been made thereon.

12.  It cannot be correct that when “no order made” is on an application, this is legally the same as a “dismissal” of such an application.  The language used, which is easily comprehensible, is different; the intended consequence cannot be the same.  The former order effectively means the court has declined to determine the application (whether such an outcome can give rise to a locus to appeal by its applicant alone, or the applicant as well as the respondent, is a moot point which need not be dealt with at present).

13.  But assuming (in favour of the opposing parties) that such an order tantamount to a dismissal, the quoted part of the 2015 decision did not state whether the “dismissal” was based on a lack of jurisdiction, or only as an exercise of the discretionary powers conferred by the statute.

14.  There were two sentences in the quoted part of the 2015 decision (after a summary was given about the nature of the earlier application).  The first sentence simply gave a summary of the purport of s 42(1), High Court Ordinance (Cap 4).  The second sentence recorded the court’s agreement with the purport so summarized, and stated that no order would be made.

15.  Two other provisions are also important to the court’s jurisdiction in this regard.  First, s 43(1), Cap 4 has conferred further powers to the rules committee:

“The power to make rules of court under section 54 shall include power to make rules of court as to the circumstances in which an order under section 41 or 42 can be made; and any such rules may include such incidental, supplementary and consequential provisions as the Rules Committee may consider necessary or expedient.” (emphasis supplied)

Thus, the rules which can be enacted are not limited to the powers specified by s 42(1), Cap 4, but can also cover incidental, supplementary and consequential powers. Secondly, RHC Ord 24 r 7A(5) provides (among other things):

“An order under section … 42(1) for the disclosure of documents … shall require the person against whom the order is made to make an affidavit stating whether any documents specified or described in the order are, or at any time have been, in his possession, custody or power and, if not then in his possession, custody or power, when he parted with them and what has become of them.” (emphasis supplied)

16.  Any dismissal of the related parts of the earlier application, if founded on the lack of jurisdiction, would (at least) have to be based on either of the following:

(1)  Ord 24 r 7A(5) is ultra vires because its provisions have exceeded s 43(1), Cap 4;

(2)  While Ord 24 r 7A(5) may not have exceeded the ambit of s 43(1), Cap 4, the latter provision is somehow inconsistent, and thus cannot stand together, with s 42(1), Cap 4.

17.  There is no indication the quoted part of the 2015 decision had intended to declare either or both of the above provisions to be ineffective (let alone in fact doing so).  That kind of decision, which obviously can have important repercussions, cannot properly be made without detailed and considered analysis, and with accompanying reasons.

18.  A further look at the background leading to the quoted part of the 2015 decision will show why no reason had been given in it.

19.  The opposing parties’ written submissions relied exclusively on s 42(1), Cap 4 and a concession made by counsel in Liu Hing Sang v Estate of Li Kwan, deceased and another HCPI 665/2009 (31 August 2012), para 20 and 21.  Those paragraphs of the decision recorded:

“Initially at the Hearing, Mr A Cheung submitted that [the non-party] should further state on affidavit whether any of the Non-existent Documents has been but is no longer in their possession, custody or power, and if so, when they have parted with such document and what has become of it.

But, unlike the provision for inter partes specific discovery under Order 24 rule 7 of the RHC, section 42 of the HCO for non-party discovery provides that the court has power to order a non-party who appears to be likely to have had in his possession, custody or power any documents which are relevant to an issue arising or likely to arise out of that claim ‘to disclose whether those documents are in his possession, custody or power’ only. In the circumstances, Mr [Cheung] concedes there is no basis for the 2^nd defendant to pursue the request in the above paragraph.” (emphasis supplied)

(See also para 2(a) and 4, opposing parties’ written submissions dated 23 November 2015).  No detailed analysis has been advanced in support; neither s 43(1), Cap 4 nor Ord 24 r 7A(5) has been mentioned.

20.  On the other hand, the defendants did not put forth any submissions for use during the earlier discovery application (be it written or verbal) in this regard.  During the present hearing, they said they did not consider the disclosure part of the earlier application to be of crucial importance.

21.  There was therefore a lack of thorough discussion by the parties regarding a jurisdictional issue which can have impact beyond the present action.  The outcome of the earlier application (“no order made”) was brought about by such a background.

22.  By reason of the above matters, I conclude that no issue estoppel has arisen between the defendants and the opposing parties.

23.  To avoid doubt, by reason of the provisions of s 43(1), Cap 4 and Ord 24 r 7A(5), I conclude that there is jurisdiction to make the disclosure sought in the above applications.  Insofar as it is necessary to do so, I also conclude that the concession made in the Liu Hing Sang decision has been wrongly made.

Necessity for discovery

24.  The opposing parties sensibly do not argue against the relevance of the requested documents.

25.  Instead, they rely on Ord 24 r 8(2) which provides:

“No order for the disclosure of documents shall be made under section 41 or 42 … unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.” (emphasis supplied)

26.  While the opposing parties have not filed evidence stating that they never had possession of the requested documents, their written submissions made the contention below:

“… it is highly improbable that [the opposing parties] would have … anything relevant to the issues which cannot be obtained from the persons or entities against whom orders for discovery have already been made (reference was then made to ‘the hospital’ and ‘the attending physicians’)” (para 11 thereof).

27.  Further, the opposing parties submitted in effect that the present applications are premature; the defendants should have waited until the completion of the discovery of documents against other persons or entities (such as the medical professionals) and then decide if there is a genuine need to seek further documents from the opposing parties (para 12, the opposing parties’ written submissions).

28.  As regards the probability of the opposing parties having possession of the requested documents, I agree with the defendants:

(a)  in relation to documents concerning the preparation of the 2004 will, the opposing parties were intimately involved in that process, and were involved in the preparation of some (and signed at least one or two) of those documents;

(b)  in relation to the documents concerning the dec’d’s medical history, part of the medical treatment was carried out in Mdm U’s residence and Peter Lam appeared to have paid for some of the medical reports;

(c)  in relation to the 3 Dec 2004 documents (concerning the execution of the 2004 will), Peter Lam was present on that occasion.

29.  As stated above, the opposing parties have not argued that the requested documents are not relevant.  For reasons similar to those given in the Dec 2015 decision (para 14(a) and (b) and 15 thereof), I am satisfied that they may shed light on the issues summarized at para 4(1) to (3), Dec 2015 decision (see also Hunt v Anderson (1865-69) LR 1 P&D 476, 480-1).

30.  As regards necessity for the requested documents, the plaintiff has only disclosed a limited quantity of documents, and claimed that other documents had been lost.  A claim of lost records has also been made by one medical practitioner and the dec’d’s senior colleagues at work.  The opposing parties’ submissions (summarized at para 27 above) have overlooked the handicap from which the defendants must have suffered as a result of these claims.

31.  In light of the above, I am satisfied my discretion should be exercised in the defendants’ favour.

Conclusion

32.  There will be an order in terms of the present applications, subject to the time limits mentioned in the paragraphs above.

Other matters

33.  The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the decision and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

Costs order

34.  The defendants accept that the costs of the non-party disclosure applications are to be paid by them to the opposing parties, to be taxed if not agreed.

HCEA 25/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

EX-PARTE APPLICATION NO. 25 OF 2013

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HCAP 4/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 4 OF 2011

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DECISION

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1.  This is a composite decision whereby I shall dispose of two applications in two separate proceedings arising from the estate (“the Estate”) of the late Mr Lim Por Yen (“the Deceased”) involving the same parties. First, there is an application of Mr Cheung by his summons for a grant of administration ad colligenda bona (“the ACB Summons”). Madam Koo and Madam Ling (“K & L”) oppose this application. The ACB Summons was taken out in the ex-parte proceedings under HCEA 25/2013. Before the substantive hearing of the ACB Summons on 30 July 2015, I handed down a decision in respect of an application of Mr Cheung made in the cause of the ACB Summons on 22 May 2015 (“the Previous Decision”), which is kept confidential to the parties.

2.  The other one is an application of K & L by their summons dated 30 October 2014 amended at the outset of the substantive hearing by consent for the appointment of administrators pendent lite (“the Amended APL Summons”) in the probate proceedings under HCAP 4/2011 commenced by Mr Cheung against K & L.

3.  Mr Cheung is the sole executor named in the alleged last will of the Deceased dated 3 December 2004 (“the 2004 Will”). The ACB Summons was taken out after the probate action was commenced. This court heard the ACB Summons first and I also find it logical to dispose of it before I deal with the Amended APL Summons.

The ACB Summons (HCEA 25/2013)

4.  It is worthy of note that in the beginning, Mr Cheung attempted to make his ACB application on an ex-parte basis in March 2013. It was supported by his first affirmation dated 5 March 2013. By a letter dated 7 March 2013, Deputy Registrar J Wong directed that the ACB application should be made inter-parte. Despite Mr Cheung’s invitation to reconsider the direction by letter dated 7 May 2013, Deputy Registrar insisted that Mr Cheung had to make his ACB application by taking out an inter-parte summons.

5.  The parties then exchanged in some correspondence. At long last, the ACB Summons was issued on 16 January 2014. The ACB Application is confined to certain lots of land (wholly or partially) owned by the Deceased set out in the Schedule to the ACB Summons with the sole purpose of effecting a sale thereof pending the full grant of representation of the Estate. It is expressly stated in the ACB Summons that there be no distribution of the sale proceeds of such properties. There is no detail of the intended sale given.

6.  The properties in question (collectively “the Properties”) comprise the following lots of land in Demarcation District No.185, Pai Tau Hang, Shatin, New Territories:

(i) Lot 57;

(ii) Lot 58 R.P.;

(iii) Lot 318 Section B;

(iv) Lot 320;

(v) Lot 329 Section A;

(vi) Lot 329 Section B Subsection 1;

(vii) Lot 394 R.P.;

(viii) Lot 318 Section A Subsection 1 R.P.; and

(ix) Lot 319 Section A R.P.

7.  With the exception of two pieces of land, namely, Lot 318 Section A Subsection 1 R.P. and Lot 319 Section A R.P. of which the Deceased was the sole beneficial owner, the Deceased held ¾ interest in the Properties with one Mr Cheng Wai Chee (“Mr Cheng”) holding the remaining ¼ interest as tenants in common. The Deceased’s interests in the Properties were the subject of a specific bequest under the 2004 Will to Mr Lam Kin Ngok Peter (“Peter Lam”).

8.  For present purposes, it is not necessary to give a detailed description of the Properties. Suffice it to say that they are agricultural lots situated on a sloping site with wild vegetation to the east of the Ten Thousand Buddhas’ Monastery (“the Monastery”) on the north side of Shatin. It is also close to the Po Fuk Ancestral Hall Columbarium on the west side and the Shatin Station on the East Rail MTR Line is only 5 minutes’ walk away. 

9.  Before I render my analysis of the evidence filed for the ACB Summons, I shall first set out the relevant legal principles. Both parties refer to the same authorities. It suffices for me to refer to two of them.

10.  A grant of ACB is commonly known to be a preservation grant. The following passage[1] in Williams, Mortimer & Sunnucks: Executors, Administrators & Probate (20^th edn.,2013) summaries the nature and purpose of an ACB grant:

“The court has a general power to make a limited grant of administration in order to preserve assets of the deceased within the jurisdiction without waiting until those entitled to a grant have applied. Such grants are grants ad colligenda bona defuncti, usually known as ad colligenda grants.

Such a grant is often useful where the person entitled to a full grant is abroad or temporary incapacitated and where some urgent step needs to be taken (e.g. the removal of valuables from an empty house or more commonly the sale of a house which is in danger of deteriorating or being vandalised and so losing value or stocks and shares). Application may be made for a limited grant to allow the deceased’s business to be run or for any urgent purpose. It is also common where the full facts or details to allow a full grant to issue cannot be immediately ascertained. However, ad colligenda grants should not be viewed as simply an expedient means of achieving a quick sale of property. Their purpose is to preserve the estate. (emphasis added)”

11.  A. Cheung JA (as the Chief Judge then was) in Re Ho Wai Man [2006] 4 HKLRD 421 at §34 had this to say about the nature of an ad colligenda grant:

“Circumstances may be such that the estate of the deceased may suffer in the meantime pending a full grant which may take time, if nothing is done and is allowed to be done to get in and preserve the asset in question. That is the true purpose of a grant ad colligenda bona. It depends on the need of the estate, not on the identity of the applicant.”

12.  In summary, for an order for a grant ad colligenda bona, Mr Cheung has to meet the threshold to satisfy this court that there is a genuine need to preserve the estate of the Deceased and that the preservation grant sought can serve such a purpose.

Evidence in support of the ACB Application

13.  The broad ground of the ACB application is that the Estate is jeopardized by its potential liability arising from the landslide problems affecting the Properties and its vicinity. Mr Cheung reckons that a sale is the complete solution to the landslide problems and the risk of wastage of the Deceased’s interests in the Properties.

14.  Mr Cheung in his affirmation sets out the two questions relevant to his application. First, whether the Properties are dangerous or otherwise may cause risk to property or people, or would otherwise require costly remedial or maintenance works so as to justify their disposal out of the Estate and if so, what the fair market value of the Deceased’s interests in the Properties is and how the sale should be conducted.

15.  The evidence adduced by Mr Cheung purportedly suggestive of the landslide problems can be summarised as follows.

16.  Mr Cheung first produced a letter issued by Philip So & Associates Ltd (“PS”) which is a firm of civil and geotechnical engineers dated 16 June 2011 (“PS Letter”). In the PS Letter, PS disclosed that PS had completed a natural terrain hazard study of the Properties (“the Study”). The major findings in the Study, as summarised in his 1^st affirmation, included:

(1) 472 boulders and/or boulder groups on the Properties have been identified and about 20% of them were found to be unstable and classified to be “High Risk”. They are being supported by unstable mechanisms and their unstable mechanisms and their base soils can be eroded due to heavy rainstorms. Should a landslide occur, the estate will be subject to potential liability.

(2) Mitigation measures are essential to ensure the safety of nearby residents and they can cost up to HK$37.25 million. Annual inspection and maintenance works are necessary and can cost up to about HK$200,000.

17.  On that basis, Mr Cheung is of the view that the Deceased’s interests in the Properties would be devalued and hence a grant of ACB is necessary to preserve the value of the estate for the purpose of a sale of the Properties.

18.  Subsequently, Mr Cheung obtained a valuation report in respect of the Properties compiled by Knight Frank Petty Limited (“Knight Frank”) dated 11 January 2013. The open market value of the Properties was assessed at HK$40 million as at 12 November 2012. In this valuation, Knight Frank gave due allowance for the estimated costs for boulder stabilization works of HK$37,250,000 and the subsequent annual expense of HK$120,000 for the inspection and maintenance cost and the risk factor. Since the Deceased has only ¾ share of the beneficial interests in certain lots of the Properties, only ¾ share of such costs was deducted from the valuation of such lots.   

19.  Mr Cheung alleges that he was approached by JJ Creative Consultant Limited (“JJ Creative”), through its solicitors Messrs. Cheung Tong & Rosa (“CTR”) by a letter dated 21 February 2013 whereby JJ  Creative expressed an interest in the Properties and offered a purchase price of HK$40 million (“the Offer”) to acquire the Properties on an “as is” basis without any mention of the remedial works and related costs.

20.  Mr Cheung contends that being the executor under the 2004 Will, he is the most suitable candidate to take the ACB grant and to conduct a sale of the Properties on behalf of the Estate.

21.  Prior to the Offer, Peter Lam by his letter dated 14 January 2013 indicated his awareness of the advice received by Mr Cheung in regard to landslide hazards and showed his support of this ACB application.

22.  Upon receipt of the expert evidence of K & L by way of an expert report of Mr Hart of GeoRisk Solutions Limited dated 19 August 2014, Mr Cheung attempted to instruct PS to make a reply thereto. Allegedly PS refused to do so over the phone. His reason given was that due to the lapse of time it was difficult for him to handle this matter again. By the letter of his solicitors dated 29 December 2014, Mr Cheung made it clear that he would not rely on the evidence of PS in this application.   

23.  Finally, pursuant to an unless order granted by Master J Wong dated 16 December 2014, Mr Cheung filed an expert report of Mr Henry Chan of Henry Chan & Partners Consultant Engineering Ltd. dated 5 February 2015. He also filed an updated valuation report prepared by Knight Frank.

24.  The expert evidence of Mr Chan in gist is that whilst full scale mitigation measure is not necessary, fatal landslides would still occur if the boulders within the Properties are to be exposed to long-term weathering or in case of hill fire and hence hazard mitigation measures albeit less extensive are warranted. His estimate of such mitigation works stands at HK$13.3 million, substantially less than the estimate of PS.

25.  K & L have not filed any evidence in reply to Mr Chan’s report. Neither Mr Hart nor Mr Chan is required to be cross-examined on their respective reports. Mr Fawls appearing for K & L in this application refers to the 4^th Affirmation of Ling Meng Chu Pearl dated 25 March 2015 for her comments on Mr Chan’s report after hearing from Mr Hart in his written submission. I agree with Ms Wong S.C. (with Mr Lam) appearing for Mr Cheung that I should not take into account her comments. First, the affirmation was filed only for the Amended APL Summons and in addition this is not the proper way to adduce expert evidence of Mr Hart.

26.  Both Ms Wong and Mr Fawls have made an excellent summary of the expert geotechnical evidence of Mr Hart and Mr Chan in their respective written submissions. Mr Fawls has annexed to his written submission a schedule containing an illustrative table of comparison of their evidence and the evidence of PS, on which I place no weight. Ms Wong takes no issue with the contents of the table and I annex the said schedule to this Decision with the objected reference to the 4^th Affirmation of Ling Meng Chu Pearl omitted.

27.  Here I need only highlight the salient findings of the geotechnical experts. Both of them agree that there are boulder groups within the Properties and these boulders alone are not likely to pose major hazards. Mr Chan also accepts that there is no history of landslides within the Properties. However, Mr Chan places heavy reliance on the alleged hillside instability of the surrounding areas of the Properties. This causes the major divergence in their respective conclusions.

28.  Mr Chan has identified 32 previous natural terrain landslides and 13 past recorded landslides within the vicinity of the Properties (none within the Properties). He particularly relies on the fatal landslide near the Monastery in 1997 (“the 1997 Landslide”). The government made an investigation into the 1997 Landslide and a GEO report was produced by the Geotechnical Engineering Office of the Civil Engineering Department. In the GEO report, according to Mr Chan, it was concluded that the 1997 Landslide was due to the collapse of the cut slopes and hillside above. The collapse which was caused by the water pressure built up during heavy rainstorm. Mr Chan concludes that the entire hillside could be susceptible to failure and hazard mitigation measures should be a must. I should add that just a few pages of the GEO report are annexed to the report of Mr Chan and I do not even have its findings and conclusions.

29.  Mr Hart disagrees. Whilst he agrees that 10 landslides including the 1997 Landslide took place in the vicinity of the Properties, most of them in or about 1997, he points out that they took place within areas of anthropogenic disturbance where human intervention such as the modification of a slope could be detected and hence they were not natural terrain landslides. The same applies to the 1997 Landslide.

30.  Mr Hart further draws a distinction between the landslide susceptibility within the Properties and that of its surrounding areas. His assessment is by reference to natural terrain landslides only. His conclusion is that the landslide susceptibility within the Properties to be low or very low according to the Australian Geomechanics Society.

31.  On the other hand, Mr Chan points out that there can be found physical evidence of erosion within the Properties and he has also identified 2 channels outside the Properties which could probably lead to landslides. In such an event, the debris would cause blockages to the vicinity of the Properties and pose a life-endangering risk.

32.  Mr Chan adopts the Design Event Approach and identifies the type of potential natural terrain hazards. He concludes that in terms of susceptibility, the Properties fall within Class C which is defined in the following terms:

“The natural terrain is moderately susceptible to the type of failure under consideration, with a notional annual probability of occurrence within the order of 1/10 to 1/100. For example: there are records of occasional recent failures in the catchment and its relevant vicinity.”

33.  Lastly, Mr Hart highlights the fact that the Building Authority has never issued a dangerous hillside order under section 27A of the Buildings Ordinance, Cap. 123(“the BO”). He opines that this shows there is no natural hazards within the Properties and this supports his conclusion that no hazard mitigation works has to be carried out.

34.  Both sides have filed their valuation evidence in regard to the market price of the Deceased’s interests in the Properties. There is not much difference in their valuation of the gross value of the Properties and it is the necessity of remedial costs that sets the parties apart.  

Analysis

35.  This court has understandable difficulties in making definitive findings on the conflicting evidence of Mr Chan and Mr Hart without their expert evidence being tested by cross-examination. The exercise is rendered more difficult by the non-response to the evidence of Mr Chan on the part of K & L. Ms Wong refers this court to the following passage in Hodgkinson & James: Expert Evidence: Law & Practice (4^th edn., 2015) at §42-006 (p.364):

“Significant difficulties may be presented where the parties put in their own expert reports which are in conflict but then do not call the experts at trial (because, for example, they cannot afford the fees charged by the experts). Such a situation may call for a “careful, balanced analysis” and a legitimate consideration (but not the only consideration) may be the way in which the respective expert reports are argued.”

36.  In addition to her attacks on the analysis and conclusions of Mr Hart, Ms Wong suggests to this court an attractive approach. She submits that analogous to applications for appointment of an interim receiver or provisional liquidator, in this application this court is not obliged to finally resolve any disputes of facts or expert evidence. This court is not concerned with whether Mr Chan or Mr Hart is more credible or reliable. The prime concern should be whether there is a need to preserve the Properties if a prima facie case has been made out. She submits that this court should only refuse a sale if this court can be convinced that there is no real risk whatsoever.

37.  Whilst I should certainly conduct a careful and balanced analysis of the expert evidence and pay attention to the way in which the respective reports of Mr Chan and Mr Harts are argued, I should also bear in mind the primary purpose of their expert evidence in the context of the ACB application.

38.  The burden is on Mr Cheung to satisfy this court on the balance of probabilities that (1) there is a real risk of landslide hazards within the Properties and (2) an urgent sale of the Properties is necessary and able to preserve the value of the Properties and hence the Estate. At the forefront of my mind is whether there is a pressing need to preserve the Estate.

39.  A sale of a property per se has nothing to do with the preservation of the value of the property. This court has to be convinced that there is a genuine need to preserve the value of the Properties on an urgent basis. In other words, the value of the Properties is likely to be diminished soon. Mr Cheung’s case is that the value of the Properties would suffer loss because of their potential liabilities arising from the land hazards.

40.  It should be noted that Mr Hart also accepts that there is a low or very low landslide susceptibility of the Properties. He cannot altogether rule out the risk of landslides.  Mr Chan says the susceptibility is moderate. It is not really necessary for me to make a definite characterisation of the risk. I am simply not satisfied on the evidence that the risk, be it moderate or low, will give rise to immediate or imminent potential liabilities and hence an urgent sale is warranted to preserve the Estate.

41.  In my view, in this application, there should be cogent evidence to persuade this court that the alleged risk is of such a menacing nature and presents an immediate and imminent danger that prompt rectifying measures are called for. 

42.  Nothing in the Mr Chan’s evidence can convince this court that there is such an imminent risk. All the previous landslides in the vicinity of the Properties took place more than a decade ago and were only minor in nature except the 1997 Landslide. 

43.  Unfortunately, Mr Hart has not had the chance to deal with the 1997 Landslide in greater detail as it turned out to be relied upon by Mr Chan subsequently. However, I am inclined to agree with him that human intervention was likely to be one of the main causes though a full copy of the GEO report should shed light on this. According to Mr Chan, the collapse of the cut slopes above the Monastery did lead to the 1997 Landslide.

44.  It is remarkable that there is no history of any landslide within the Property. To persuade this court that there is now a real risk that a landslide would take place in the near future affecting the Properties, there has to be solid evidence of recent changes of circumstances or geotechnical conditions. Mr Chan fails to identify any of such changes.  

45.  I think Mr Hart has made a valid point about the lack of a dangerous hillside order issued in respect of the Properties. Mr Chan only had this to say in the executive summary of his report:

“I also do not agree the hillside can be considered as not dangerous based on no Dangerous Hillside Order has been issued by Buildings Department (BD). Firstly, DH order issued by BD is to Registered Slope Features. This portion of hillside is mainly natural and therefore not registered. Secondly, it is fundamentally wrong to draw a conclusion to a slope feature is not liable to become dangerous based on no DH Order has been given. I cannot see the rationale in this.”

46.  I am unable to accept his explanation without any further elaboration in his report. Section 27A(1) of the BO reads:

“Where in the opinion of the Building Authority any natural, formed or man-made land, or any earth-retaining structure, has due to any cause been rendered so dangerous or liable to become so dangerous that it will collapse, or be likely to collapse, either totally or partially, and thereby will cause, or will be likely to cause, a risk of injury to any person or damage to any property, the Building Authority may by order in writing served on the owner of the land or structure, or on the person who under the terms of a Government lease is under an obligation to maintain the land or structure, declare the land or structure to be dangerous or liable to become dangerous.”

47.  I could find no reference to registered slope features in the BO at all. I am not convinced that a dangerous hillside order can only be issued in respect of registered slope features given the express wide ambit of the provision. I see no reason why the Properties (and its vicinity) being natural hillside cannot be the subject matter of a dangerous hillside order.

48.  Of course, the lack of a dangerous hillside order alone is no conclusive evidence of the safety of the Properties. Yet, it lends support to the expert opinion of Mr Hart in my view.

49.  Ms Wong submits that Mr Hart’s reliance on the lack of a dangerous hillside order is misplaced and based on an erroneous assumption that the relevant authorities are in possession of perfect information. 

50.  I cannot agree to this submission. The authorities should have been made alert to all the alleged land hazards in the district in the course of their investigation into the 1997 Landslide. It is not suggested that there has been any substantial changes of circumstances since the event which would escape the attention of the authorities.

51.  I also see no reason why Mr Cheung has not made any report to the authorities in regard to the alleged land hazards in the vicinity of the Properties. This is particularly so when it is his case that it is the surrounding areas which renders the Properties unsafe. He should have provided all the information including the expert advice he has obtained to the authorities so that dangerous hillside orders would be issued to such owners to ensure completion of mitigation works.  I would have thought that it would be a far more economical and effective way to eradicate any land hazards in the vicinity of the Properties.

52.  Whilst I am not convinced of any imminent land hazards by the evidence of Mr Chan, I should point out that the dilatory approach taken by Mr Cheung in respect of the alleged land hazards in the Properties is alarming and does not sit comfortably with Mr Cheung’s allegation of imminent risk of landslides.

53.  According to Mr Cheung, Peter Lam first raised with him the safety issue of the Properties in early 2011 after the Study was undertaken on the instructions of Peter Lam. Mr Cheung first made the ACB application in March 2013 and waited until January 2014 to issue the ACB Summons. He explained that he required the fund of the beneficiaries including Peter Lam. I do not accept the delay to be reasonable.  

54.  Up till now, no mitigation works whatsoever has been done to minimize the alleged land hazards. Should there be any imminent land hazards endangering life and causing financial loss, it is hard to imagine a responsible landowner can allow such a delay.  

55.  Therefore, I am fortified in my conclusion that there is no immediate or imminent landslide risk jeopardising the safety of the Properties at all. Notwithstanding this Decision, should Mr Cheung and Peter Lam be still of the view that there is, they are surely not precluded from taking immediate steps to mitigate such landslide hazards. 

56.  Even if I am satisfied that there are such landslide risks likely to give rise to liabilities and cause loss to the Estate, I am not persuaded that a sale by auction is effective to preserve the Estate for the following reasons.

57.  The position of Mr Cheung is premised on the assumption that the intending purchasers agree to the scale of landslide hazard mitigation measures to be undertaken and its costs assessed by his experts.  It is clear that there can be no certainty of such an agreement. It is thus difficult for the reserve price to be fixed.

58.  The intending purchasers who have acted knowledgeably and prudently having made proper investigation into the alleged geotechnical issues may share the same view of Mr Hart incidentally. They might be willing to buy the Properties at a price without factoring in any remedial costs. In such an event, the Estate would only suffer loss if the Properties are sold to them at a reserve price which does factor in the substantial remedial costs.

59.  On the other hand, the intending purchasers may have an even dimmer view of the geotechnical conditions of the Properties and expect higher costs of mitigation works. In such an event, the reserve price would not be attractive to them. Of course, the reserve price can be adjusted afterwards but further reduction of the reserve price would only be a loss to the Estate.   

60.  More importantly, I cannot lose sight of the fact that the Deceased only had partial interests in the majority of the Properties. This presents a complication in the proposed sale by auction. There is no evidence that Mr Cheng, the co-owner, is willing to sell his interests together with those of the Deceased by way of the same auction too. There is no basis to assume that those intending purchasers could too succeed in acquiring the interests of Mr Cheng and thereafter carry out the mitigation works in one go. An auction to sell the interests of the Deceased in the Properties alone does not appear to be an effectual exercise. 

61.  I accept the cogent submission of Mr Fawls that another insuperable difficulty of Mr Cheung’s suggestion is that he has provided no details of the proposed auction at all in his evidence. Until and unless this court is sufficiently satisfied that a fair auction with the interests of the Estate fully safeguarded is viable, no order for sale by auction should be lightly granted.

62.  In light of the foregoing analysis, it is not necessary for me to go any further into the parties’ valuation evidence.

63.  I should make it clear that in arriving at the foregoing conclusions, I have not taken into account the written submission of Mr Fawls on the lack of merits of Mr Cheung’s case in the probate action. Mr Fawls himself accepts that this court should not be concerned with the merits of Mr Cheung’s case but nevertheless he wants this court to take note of some obvious weaknesses. I refuse to do so.

64.  I should also mention that Mr Fawls painstakingly conducts a forensic analysis of the evidence of Mr Cheung highlighting its changes and development to suit his purposes. The central theme of his criticisms is that there is bad faith on the part of Mr Cheung in the ACB application, which was funded by, among other beneficiaries of the Estate, Peter Lam on his own admission. Mr Fawls submits that the real purpose of the ACB application is to materialise a collusive sale of the Deceased’s interests in the Properties to JJ Creative at an undervalue. Mr Fawls maintains that JJ Creative is a company related to Peter Lam.

65.  In the Previous Decision, I explained why I refused the application of K & L for cross-examining Mr Cheung for the purpose of this ACB application.  In gist, I was, and still am, of the view that on the established principles, Mr Cheung’s conduct has little bearing on the key issue as to whether this court should order a sale of the Properties by way of auction.  This court is concerned with the need of the Estate and not the applicant and expert evidence is determinative of the issue as to whether the Properties are subject to an imminent risk of land hazards and hence any preservation is required. If the expert evidence is compelling enough to show an imminent risk, whether or not Mr Cheung acts in bad faith is irrelevant.

66.  In arriving at the foregoing conclusions, I do not need to refer to the changes in the evidence adduced by Mr Cheung. I have not considered whether the proposed sale to JJ Creative was a collusive sale as alleged by K & L.  

67.  For completeness and for the sake of the APL application, having studied the relevant evidence and heard the submissions, I would give my view on this serious allegation of collusion.

68.  When Mr Cheung first made the ACB application on an ex-parte basis, he relied on the Offer given by JJ Creative. JJ Creative was found out to be a BVI company and its sole director is one Mr John Tse. Mr John Tse is one of the representatives of Peter Lam. Peter Lam, among other beneficiaries under the 2004 Will funded the Study, the instruction of PS, Knight Frank and indeed the ACB application. K & L are understandably suspicious about the Offer in the circumstances.  

69.  In his affirmation, Mr Cheung explained how he received the Offer from JJ Creative in the following terms:

“(1) Given the partial nature of the Deceased’s interests in most of the Subject Lots, I thought it prudent to make some preliminary inquires in the market to see if there would be any interested buyer(s) for such partial interests.

(2) For this purpose, I sought the assistance of Mr John Tse who was another representative of Mr Peter Lam in dealing with me on various matters of the Estate.

(3) When we received the offer from JJ Creative, I assumed that this was an offer from an independent party prompted by the inquiries made by Mr Tse. Given the limited purpose of this offer as explained above, I did not see the need to and I did not look into who were behind JJ Creative.

(4) However, it turned out that the sole director of JJ Creative, Mr Tse Kin On, was in fact Mr Tse himself. My solicitors and I only came to realise this when the Respondents’ solicitors, Messrs Stephenson Harwood raised the issue in their letter dated 5 February 2014 which also asked whether there is any previous knowledge of or dealing between me and/or Peter Lam and JJ Creative and/or Mr Tse.”  

70.  Mr Cheung further confirmed that he had had no previous dealings with JJ Creative and he came across it for the first time through Mr Tse.

71.  His explanation is not inherently improbable and is not contradicted by contrary evidence. He may appear to be less than prudent in that, among other matters, he did not find out more about the people behind JJ Creative but I cannot accept that he actually knew that Mr Tse was its sole director. There is no evidence that JJ Creative has anything to do with Peter Lam as well.

72.  In the premises, I accept Mr Cheung’s explanation. I do not accept the serious allegation that he himself intended a collusive sale in his ACB application so that the Properties could be sold to a related company of Peter Lam at gross undervalue.

73.  In summary, I conclude that there is no imminent risk of any loss/liabilities befalling the Estate and hence there is no need of preservation. In any event, I do not think a sale of the Properties by auction is the solution. The ACB Summons falls to be dismissed.

The Amended APL Summons (HCAP 4/2011)

Background Facts

74.  The APL application is made by K & L represented by Mr Ho S.C. together with Mr Fawls in the probate action. Mr Cheung represented by Mr Man S.C. together with Mr Lam opposes this application. 

75.  In a nutshell, the complaint of K& L is that Mr Cheung has all along taken a partisan approach in those matters relating to the Estate and obviously sided with the beneficiaries under the 2004 Will, in particular Peter Lam. They have lost all confidence in him to manage the Estate and someone independent should be appointed in his stead. They propose two partners of Deloitte Touche Tohmatsu, namely, Mr Lai Kar Yan Derek and Mr Guy Donald Norman to conduct the administration of the Estate as administrators pendent lite.

76.  Before dealing with their allegations, it is necessary to outline the major issues in the probate action at the outset.

77.  The subject matter of the probate action is the 2004 Will. Mr Cheung being the sole executor thereunder brought the proceedings for an order that the 2004 Will be pronounced in its solemn form. The 2004 Will was made on 3 December 2004 and not long afterwards, the Deceased passed away on 18 February 2005.

78.  Madam Koo, the first defendant, is the Deceased’s second concubine and Madam Ling, the second defendant, is her daughter with the Deceased. Madam Koo had another child, namely, Mr Eric Ling, with the Deceased. 

79.  Madam Koo, Mr Eric Ling Madam Ling are expressly disinherited under the 2004 Will. They used to be the beneficiaries under the earlier wills of the Deceased made in 1967 and 1973.

80.  Madam Koo and Madam Ling are unable to accept the validity of the 2004 Will and their sudden and complete disinheritance thereunder. They defend the probate action on four main grounds:

(1) the Deceased lacked testamentary capacity;

(2) the Deceased was under the undue influence of his first concubine Madam U and her son with the Deceased, namely, Peter Lam;

(3) the Deceased neither knew nor approve the contents of the 2004 Will; 

(4) the 2004 Will was not duly executed and it bore a purported signature of the Deceased which appeared to be markedly different from his usual signatures.

81.  K & L further mount a counterclaim on the basis of a Chinese will of the Deceased dated 2 February 1973, a Chinese codicil dated 20 January 1974 and/or his English will dated 23 September 1967.

82.  The trial of the probate action will be held quite some time away and the parties are still busy with certain interlocutory disputes. Among them are a recent application of K & L to amend their pleadings and their application for specific discovery. I note that additional parties have been joined in the probate proceedings after the hearing of this application. It means that, regrettably, the probate action is likely to be further protracted. 

Relevant Principles

83.  Section 40 of the Probate and Administration Ordinance, Cap.10 provides,

“(1) Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling, or revoking any grant are pending the court may, subject to section 25, appoint an administrator of the estate of the deceased.

(2) An administrator so appointed shall have all the rights and powers of a general administrator, other than the right of distributing the residue of the estate.

(3) Every such administrator shall be subject to the immediate control of the court and act under its direction.”

84.  Both Mr Ho and Mr Man agree that this court has the discretion to appoint administrators pendent lite when it is necessary and expedient to do so. Le Pichon J (as she then was) had this to say about the requirements of necessity and expediency in Hung Jin Mui v Tang Chui Yuk Angela and Anor., unreported, HCAP 4/1997, 11.2.1998:

“The leading textbooks on the subject have little to say. Some refer to necessity, others to expediency. In my judgment, whether one uses the term “necessity” or “expediency”, I do not think that the court would make an order without regard to or wholly divorced from the actual circumstances of the case, namely the assets comprised in the estate and whether they warrant the appointment of an administrator pendente lite. It is apparent from a proper reading of the passage quoted from Bellew v. Bellew that an appointment is not an automatic consequence of a bona fide suit pending, regardless of the condition or nature of the estate; rather such an appointment would be made by reference to and if warranted by the particular facts. It follows that the nature of the assets comprised in this estate is of critical importance.”

85.  After considering the assets as disclosed in the evidence, Le Pichon J identified two usual concerns with the principles laid down by Lord Greene in Re Bevan [1948] 1 All ER 271 in mind. First, the court should see whether there is a likelihood of dissipation or jeopardy of assets (which was not a consideration in that case given the undertaking by the defendant) and secondly whether there is a need to collect the “fruit of the estate”.  

86.  Mr Ho impresses upon this court that those two usual concerns in an application for administrators pendent lite are not meant to be exhaustive. I agree and his submission can be supported by the following dictum of DHCJ Mr Horace Wong SC in Re Yien Chi Ren [2009] 5 HKLRD 413 at §16,

“Whether one uses the term “necessity” or “expediency”, the court would only make an order of appointment having regard to the actual circumstances of the case. Obviously the actual circumstances of each case vary—in some cases the principal concern may be that pending resolution of the probate dispute, it is necessary to protect the estate by collecting, managing or safeguarding the assets; in other cases there may be other concerns, for example, the necessity of taking legal action against third parties in order to protect the estate while the probate dispute awaits its resolution.”

87.  Mr Ho goes on to highlight to this court one of the advantages of the appointment of an administrator pendent lite is that, as pointed out by A Cheung J (as the Chief Judge then was) in Chinachem Charitable Foundation Limited v Chan Chun Chuen, unreported, HCAP 8/2007, 10.12.2007 (at §10) when dealing with an uncontested application for an appointment of administrators pendent lite, itcan ensure that controversial decisions are not taken without reference to the administrator pendent lite and conversely, difficult decisions that need to be taken after due consultation with the administrator pendent lit, without fear of subsequent criticisms.Where necessary, directions on these decisions may be sought by the administrator pendent lite from the court.

88.  Mr Man refers to Horrell v Witts (1865-69) LR 1 P & D 103 where Sir J P Wilde refused to appoint an administrator pendente lite to manage a deceased’s partnership business in farming. The facts of that case are very different from the present case. Sir J P Wilde merely said that since there were surviving partners, it was not necessary to make the appointment but if there was an extreme case in which property held in partnership was at risk, the court might interfere.

89.  On the other hand, since there are serious criticisms about the approach and stance thus far taken by Mr Cheung in dealing with matters relating to the Estate, it is imperative to find out what duty he has in his role as the executor under the 2004 Will in the present circumstances.

90.  Mr Ho helpfully refers this court to the decision of Lam J (as he then was) in HSBC International Trustee Limited v Tam Mei Kam, unreported, HCMP 716/2004, 11.10.2004. There, the Judge dealt with an application for a Beddoe order of the plaintiff bank for the purpose of its defence in an action wherein the validity of the will under which the plaintiff bank was appointed to be the executor and the trustee in respect of the estate of the deceased was under challenge. The judge had this to say (at §9),

“The position of executor and trustee under the Will is different. Faced with a challenge to the validity of the Will, the principles set out in Alsop Wilkinson v Neary [1996] 1 WLR 1220 come into play. Lightman J (as he then was) examined the position of a trustee in three different kinds of dispute. In my judgment, insofar as the position of the Applicant in the capacity as executor and trustee under the Will is concerned, the dispute with the Respondent is a trust dispute under the classification of Lightman J, viz. a dispute as to the settlement on which the trustee hold the subject matter of the settlement. His Lordship said the following as regard the duty of a trustee in this sort of dispute,

“I do not think that the view expressed by Kekewich J in the Ideal Bedding case that in a case of trust dispute … a trustee has a duty to defend the trust is correct or in accordance with modern authority. In a case where the dispute is between rival claimants to a beneficial interest in the subject matter of the trust, rather the duty of the trustee is to remain neutral and (in the absence of any court direction to the contrary …) offer to submit to the court’s directions, leaving it to the rivals to fight their battles. If this stance is adopted, in respect of the costs necessarily and properly incurred, for example in serving a defence agreeing to submit to the court’s direction and in making discovery, the trustee will be entitled to an indemnity and lien. If the trustee does actively defend the trust and succeeds, for example in challenging a claim by the settlor to set aside for undue influence, he may be entitled to his costs out of the trust, for he has preserved the interests of the beneficiaries under the trust … But if he fails, then in particular in the case of hostile litigation, although in an exceptional case the court may consider that the trustee should have his costs … ordinarily the trustee will not be entitled to any indemnity, for he has incurred expenditure and liabilities in an unsuccessful effort to prefer one class of beneficiaries (e.g. the express beneficiaries specified in the trust instrument) over another (e.g. the trustees in bankruptcy or creditors) and so has acted unreasonably and otherwise than for the benefit of the trust estate…””

91.  Applying the principles laid down by Lightman J, the judge held (at §11) that the plaintiff bank was in a similar position as the trustee under the settlement in Alsop Wilkinson v Neary [1996] 1 WLR 1220 and should remain neutral and let the rival claimants to fight their own battles. The judge continued to add this (at §29),

“As far as its capacity as executor and trustee under the Will is concerned, the Applicant should abide by the principle of neutrality set out in the judgment of Lightman J. In this connection, I am reinforced by the commentary at Para.62-36 of Williams, Mortimer & Sunnucks, Executors. Administrators and Probate, 18^th Edn.,

“In general an executor has a duty to protect the estate in proceedings adverse to the estate, but where there is dispute between the persons entitled, whether contentious or non-contentious, his duty is to remain neutral.”

See also Lewin on Trusts, 17^th Edn., Para. 21-96.”

92.  The foregoing dictum of Lightman J in Alsop Wilkinson v Neary [1996] 1 WLR 1220 cited by the judge should suffice for present purposes.

93.  Insofar as K & L’s allegations about the conducts of Mr Cheung are concerned, the following observations of A Cheung J (as the Chief Judge then was) in the Chinachem Charitable Foundation Limited v Chan Chun Chuen case is apposite (at §12):

“… I should emphasis that I give little weight to various factual allegations against individual people that are found in the supporting evidence or those allegations that are disputed by the plaintiff in its evidence in response. They remain mere allegations. Many of them are, in any event, either irrelevant or immaterial to my present consideration.”

94.  The Chief Judge made similar observations in Lai Wai Pang v Kwok Li Shuk Han, unreported, HCAP 13/2000, 16.5.2003 where he sat as Deputy High Court Judge and refused to appoint an administrator pendente lite.  He said this (at §9(4)),

“I do not consider that the Defendant’s suspicions regarding the character and conduct of the Plaintiff, as raised in the defence and counterclaim, are of themselves sufficient to found the court’s exercise of discretion under O.29 r.(3) or section 40 of the Probate and Administration Ordinance. These are allegations which have yet to be tested and decided at trial. But nonetheless this is a relevant factor that I take into account.”

95.  With these principles in mind, I now assess the validity of the grounds advanced on behalf of K & L in turn. Before my assessment, I should mention that Mr Cheung made an express offer to undertake in his 4^th Affirmation that he will not dispose of or deal with the assets of the Estate without the approval of the court (“the Undertaking”). K & L are still not happy with the Undertaking. They opine that Mr Cheung’s partisan approach in the administration of the Estate would inevitably cause loss to the Estate despite the Undertaking.

Discussion

The ACB application and Mr Cheung’s failure to protect and control the Estate

96.  K & L relies heavily on the ACB application to show that Mr Cheung acted with a patent lack of neutrality and independence. They allege that Mr Cheung made the application in cohort with Peter Lam so as to effect a collusive sale of the Properties to his nominee. He even had to rely on a new expert in Mr Chan to formulate a different case of landslide hazards in order to succeed in his conspiracy with Peter Lam. The new expert evidence showed that the Properties were worth at least HK$25 million more than he had originally claimed by the use of the PS Letter. They say but for their intervention, the Properties would have already been sold to JJ Creative at an undervalue.

97.  I have already rejected any allegation of bad faith and collusion on the part of Mr Cheung in the ACB application. He is a solicitor by profession and I cannot accept the validity of such a grave allegation against him on paper. He has explained that before the grant he did not want to utilize the assets of the Estate to pay for the application. Therefore, he turned to the beneficiaries under the 2004 Will for financial support in his ACB application. I accept his explanation and find nothing untoward about this. I also do not accept that this is an indication of his inability or difficulty to control the Estate as contended by K & L.

98.  Mr Cheung’s reliance on the beneficiaries for funds does not mean that he has to compromise his independence and follow the instructions of the beneficiaries unquestioningly.

99.  Admittedly, the way he handled the ACB application left much to be desired. For instance, he should have disclosed at the ex-parte stage that, contrary to what he said in his supporting affirmation, the Study was not commissioned by him. He should also have found out more from Mr Tse or otherwise about JJ Creative and the Offer. I should reiterate that there is no evidence that JJ Creative is in any way connected with Peter Lam.

100.  However, despite all the unsatisfactory aspects of his handling of the ACB application, I am unable to accept that he did not work independently and he merely paid heed to the instruction of the beneficiaries. He received the PS Letter and was unsurprisingly persuaded by the expert advice therein. He further received the valuation report of Knight Frank. I can well understand why he accepted the professionalism of the experts and did not doubt the validity of their evidence although these experts were commissioned by Peter Lam. He proceeded with the ACB application originally on an ex parte basis.  Though I think he should have made an inter parte application instead, I do not accept that he deliberately did so to avoid any opposing party so that he could easily mislead the court with the expert evidence to obtain an order for sale.

101.  I see no evidential basis in the allegation that Mr Cheung would side with Peter Lam or any person to dissipate the assets of the Estate. The Undertaking in any event can dispel any such suspicion.

 Potentially invalid inter vivos gift to Madam U and Peter Lam

102.  This complaint of K & L requires some explanations. Under the 2004 Will, the Deceased purportedly bequeathed all of his shares in Wisdoman Limited (“Wisdoman”) to Peter Lam and Madam U.  Wisdoman holds many of the assets of the Deceased. For example, it holds the Deceased’s 480 million shares in Lai Sun Garment (International) Ltd which are of substantial value.

103.  Despite this testamentary disposition, at the same time, the Deceased also gave all his shares in Wisdoman to Peter Lam and Madam U by way of an inter vivos gift. This begs the question as to why the Deceased made such a gift if he had already intended to bequeath all the shares in Wisdoman to them under the 2004 Will.

104.  K & L also complains that whilst Mr Cheung should appreciate the difficulties in proving the testamentary capacity of the Deceased, he should also doubt the validity of the gift for want of the necessary mental capacity. It follows that he should have considered a claim to be made against Peter Lam and Madam U to recover the Wisdoman shares transferred to them as an invalid gift. Now the claim may be time-barred and they say urgent steps are now needed to be taken by administrators pendente lite to preserve such a claim. They also say that the inaction of Mr Cheung in pursuing the claim against Peter Lam and Madam U is indicative of his alliance with them, particularly given his aggressive conduct in some litigations against Highfit Development Company Limited (“Highfit”).

105.  I see no merit in this complaint at all. If Mr Cheung is expected to remain neutral in the probate action, he cannot possibly take the position that the Deceased did not have the testamentary capacity at the material time and hence did not have the mental capacity to make the gift. He could not be expected to make a claim against Peter Lam and Madam U on that basis.

106.  Further, K & L only raised the allegation of lack of testamentary capacity in their defence filed belatedly in this probate action. Any claim to recover the gift of Wisdoman shares on the basis of lack of mental capacity should already be time-barred. I fail to see how Mr Cheung can be blamed for allowing the limitation period of such a claim to expire to the advantage of Peter Lam and Madam U. There is also no reason why K & L did not take steps to set aside the gift themselves when a claim could be made without any limitation issues. Lastly, I do not understand how an administrator pendete lite can overcome the limitation issue.

Outstanding loans due to the Estate from Lai Sun Garment and eSun Holdings

107.  K & L complains that Mr Cheung has done nothing to recover the substantial loans extended to Lai Sun Garment and eSun Holdings (“the Loans”) and again any claim to recover the Loans are liable to be time-barred. His inaction is alleged to be a prime example of his preferential treatment of debtors of the Estate.

108.  According to the most recent annual report of Lai Sum Garment, as at July 2013, a total of HK$226,745,000 was owed to the Deceased. And in regard to the loan to eSun Holdings, as at July 2013, the total indebtedness stood at HK$234,515,000.

109.  It is noteworthy that the Loans are interest bearing and substantial amount of interest has accrued over the years. There is no suggestion whatsoever that the two companies are unable and/or unwilling to repay the Loans. The two companies regularly give written acknowledgements of the Loans and there should be no issue of time bar. In my view, it is merely a commercial decision not to call in the Loans and it makes perfect sense in the circumstances. I cannot understand how the assets of the Estate are dissipated or jeopardized as a result. 

110.  Moreover, as rightly pointed out by Mr Man, the Deceased specifically bequeathed the Loans to Peter Lam under the 2004 Will. There is no basis for Mr Cheung to call in the Loans at all.    

Merits of the defence of K& L in the probate action

111.  On the established principles, it is inappropriate for me to express any view of the merits of the parties’ respective case in this application: Re Yien Chi Ren at §8. Though Mr Ho accepts that this court here is not concerned with the merits of the issues in the probate action, he makes a detailed submission on all the allegations of the defence and their apparent strength with reference to some documentary evidence by way of background.

112.  I should make it clear that I do not take into account the merits of the parties’ allegations in the probate action in this exercise and I refrain from forming any view on such untested affidavit evidence. I can only accept that there are genuine disputes between the parties.

Mr Cheung’s non-neutral role in the probate action

113.  The core complaint of K & L is the lack of neutrality of Mr Cheung. They suspect that in addition to the ACB application, Mr Cheung’s legal costs in respect of the probate action are also funded by the beneficiaries including Peter Lam. As a result, he has failed in his duty to remain neutral in the probate action and he acts only at the bidding of the beneficiaries under the 2004 Will. They say this can sufficiently justify an appointment of administrator pendete lite to replace him in the administration of the Estate. On this issue, they pray in aid the HSBC International Trustee Limited decision.

114.  Mr Cheung does not defend his partisan position in the probate action but he insists on his independent judgment exercised in his conduct of the probate action despite the funding of the beneficiaries. Mr Man submits that the executor is free to take whatever role in a hostile litigation between beneficiaries if he is prepared to take the risk on his position on costs without the protection of an appropriate Beddoe order.

115.  I agree with Mr Man. On a proper analysis of the HSBC International Trustee Limited case and the relevant dictum of Lightman J in Alsop Wilkinson v Neary, Mr Cheung’s duty to remain neutral arises in a dispute between rival claimants to a beneficial interest in the subject matter of the trust such as this probate action wherein the validity of the 2004 Will is under challenge.

116.  However, there are situations where an executor or a trustee understandably feels that he cannot remain neutral. Lam J in HSBC International Trustee Limited also examined the position of a partisan trustee and said this (at §13),

“In this connection, the following observations of Park J in Breadner v Granville-Grossman (unreported) 17 July 2000 in respect of the position of a partisan trustee are apposite,

“…I do not mean to be critical of them for being partisan.  I can entirely understand why they thought it right to be partisan.  My point, however, is that there is another side of the coin.  If the trustees decide that they are going to take a position which is adverse to [one of the beneficiaries] and are going to argue strenously for it, that may be an entirely proper and sensible thing for them to do, but they must surely accept that there might be costs consequences if they are unsuccessful.”

After referring to Alsop Wilkinson v Neary, His Lordship continued,

“It seems to me that the thrust of what Lightman J says is that, if the trustees decide not to be neutral but to take sides in a dispute between beneficiaries, they must accept that, if the side which they support loses, they will be at risk of being subjected to an order for costs.””

117.  In the probate action, I am not aware of any pre-emptive costs order granted to Mr Cheung defining the scope of his participation. Even if Mr Cheung has decided not to abide by his usual duty to remain neutral in the probate action to defend the integrity of the 2004 Will and his own professionalism, he merely exposes himself to the risk of adverse costs consequences. It does not per se reflect badly on his ability to administer the Estate let alone provide justification to replace him with administrators pendete lite. 

Mr Cheung’s conduct in the probate action

118.  K & L have made trenchant criticisms of Mr Cheung’s conduct in the probate action. Some concern the merits of his evidence and some concern the delay in the proceedings.

119.  For the former, I cannot accept any of the allegations on affidavit and/or documentary evidence at this stage. 

120.  With respect to the accusations of causing extraordinary delay in the probate action by Mr Cheung, Mr Cheung in his 4^th Affirmation explained the delay. I agree with him that the Estate is very substantial and it would take a lot of time to deal with the Estate Duty Office. For the probate action, he set out a chronology of events by way of a table.

121.  I am convinced that both parties have contributed to the delay. I agree with Mr Man too that K & L could have taken steps to expedite the commencement of the probate action under the Non-Contentious Probate Rules.  I do not think Mr Cheung has deliberately caused any delay and I see no reason why he did so. In any event, as pointed out by Mr Man, there is no suggestion that the delay has caused any risk of the dissipation of the Estate. I cannot accept that it is a valid ground for the appointment of administrators pendente lite.

122.  I do not find any merit in their complaint of delay at all.

The Highfit proceedings

123.  K & L refer extensively to the legal actions commenced in the name of the Estate against Highfit and Madam Koo under HCA 1700 of 2002, HCA 1942 of 2002 and HCA 1700 of 2006. They say that no independent person seeking to maintain neutrality between the parties to the probate action would have proceeded with these actions with such vigor, particularly in light of Mr Cheung’s inaction against other debtors of the Estate. They even allege that these actions are an improper collateral attack on them and are an abuse of process.

124.  K & L are obviously very much troubled by all these actions against Highfit and Madam Koo personally. They were both shareholders and directors of Highfit. I do not find it necessary to set out what Cheung has done in those proceedings. Suffice it to say that the Deceased himself actively pursued two of those actions in his lifetime against K & L to recover both his person loan extended to Highfit (more than HK$570 million) and his payments made to Hang Seng Bank for the settlement of the indebtedness of Highfit to the bank as its guarantor (more than HK$150 million). The Estate has already become a judgment creditor of Highfit in the action whereby Hang Seng Bank succeeded in its claim against Highfit on a summary judgment application. Hang Seng Bank assigned the benefit of the judgment to the Estate upon its payment of the judgment sum.

125.  The remaining action was started in 2006 to set aside an allegedly dubious sale of Highfit’s entire interest in its valuable property project in Shanghai to Highfit Holding Limited. Mr Cheung explains that it was commenced to avoid limitation issues only.

126.  I am not convinced that these actions are an abuse of process and have anything to do with the probate action. I fails to see the relevance of these actions in the present application at all.

127.  I am not persuaded that Mr Cheung’s allegedly aggressive conduct of these actions can provide any justification for an appointment of administrators pendete lite.

128.  In the first place, it should be noted that Mr Cheung has the duty to remain neutral in the probate action which is a dispute between the beneficiaries under the 2004 Will and K & L qua potential beneficiaries of the Estate under the earlier testamentary scripts or intestacy. It does not mean that Mr Cheung must take a neutral position in recovery actions commenced in the name of the Estate against them qua debtors of the Estate.

129.  Nor Mr Cheung has a duty to deal with all the debtors of the Estate in the same manner. He is entitled to take into account the liquidity of the individual debtors and to treat them differently for the best interest of the Estate.

130.  I again see no merit in this complaint. 

Close connection between Mr Cheung and Peter Lam and Lai Sun Group

131.  K & L point out that Mr Cheung has provided his legal service to the Deceased and Lai Sun Group for many years. Hence, they fear that his professional independence and objectivity would be compromised in his administration of the Estate especially in respect of the Loans.

132.  I see no basis of such a concern. The good working relationship with the Deceased and Lai Sun Group can only assist Mr Cheung in his administration of the Estate. I cannot see any conflict in his dealings with the Loans at all. K & L fail to show how the administration of the Estate by Mr Cheung has ever been hindered because of the close connection.  

Other matters

133.  As explained, I am unable to find any merit in K & L’s major complaints about Mr Cheung. There are other minor complaints about him which I have not expressly dealt with here. I do not think they are valid and relevant.

134.  I should add that even if there is any merit in their complaints, the delay in this application is inexcusable and can strongly influence my exercise of the discretion to refuse this application.

135.  For the reasons given above, I do not find it necessary to consider the costs of the proposed administrators pendete lite. In any event, given the size of the Estate, I do not think it is a significant factor in the balance. 

136.  All in all, I am not satisfied that K & L have shown on the evidence that it is necessary or expedient to appoint administrators pendent lite to administer the Estate. Mr Cheung has never disposed of or distributed any assets of the Estate and he has offered the Undertaking. In all the circumstances, I should not exercise my discretion to accede to their application.

137.  Lastly, for completeness, I should mention that Mr Cheung has also taken out a summons to expunge certain parts of Madam Ling’s evidence in her 4^th affirmation on the ground that they also contain new allegations rather than strictly evidence in reply. Since K & L do not object to the inclusion of the 6^th Affirmation of Mr Cheung made in reply to such new allegations, Mr Cheung did not proceed with his application.

Dispositions and Orders

138.  I dismiss both the ACB Summons and the Amended APL Summons (upon accepting the Undertaking).

139.  Given my findings that the ACB application is not made in bad faith and is intended to protect the Estate albeit on thin evidence, I make an order nisi that the costs of both sides be paid out of the Estate including all costs previously reserved, to be taxed if not agreed, with a certificate for two counsel.

140.  As regards the costs of the Amended APL Summons, there is no reason why it should not follow the event. Indeed, I find the application to be an opportunistic move. I make an order nisi that K & L should pay Mr Cheung his costs of the application including all costs reserved, to be taxed if not agreed, with a certificate for two counsel. 

141.  It remains for me to thank all counsel involved for their quality submissions (both written and oral) and invaluable assistance.

[1] §24-47

HCAP 4/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 4 OF 2011

_________________________

_________________________

_________________________

D E C I S I O N
_________________________

Introduction

1. There are three applications for the discovery of documents (all taken out by the defendants):

(a) (two of the said applications) specific discovery of documents against the plaintiff;

(b) discovery of documents against non-parties.

2. To understand how the said applications came to be made, a few words need to be spent on the background leading to them (and to this probate action).

Background

3. The plaintiff commenced this action in February 2011 (claiming to be the executor of a will dated 3 December 2004 of the late Mr Lim (“the dec’d” and “the 2004 will”)) against the defendants, respectively the dec’d’s concubine and daughter, who have earlier entered caveats against the 2004 will.  He seeks the 2004 will to be pronounced in solemn form.

4. The defendants deny the claim on the following grounds:

(1) the dec’d lacked testamentary capacity at the time of the 2004 will;

(2) the dec’d was acting under the undue influence of his other concubine (“Mdm U”) and his son (“Peter Lam”);

(3) the dec’d did not know or approve of the contents of the 2004 will (he having in late 2003 expressed a wish inconsistent with the 2004 will);

(4) the dec’d’s signature on the 2004 will was different from his other signatures;

(5) the righteousness of the 2004 will is not admitted by reason of the above matters.

Further, the defendants counterclaim based on a Chinese will dated 2 February 1973, a Chinese codicil dated 20 January 1974 and/or an English will dated 23 September 1967.

5. Among the matters averred to in the defence pleading are:

(a) (as has in effect been so stated in the 2004 will) a gift of  the dec’d’s “A” shares in a Wisdoman Ltd (“Wisdoman”) to Peter Lam;

(b) (as has in effect been so stated in the 2004 will) a gift of the dec’d’s Wisdoman “B” shares to Mdm U;

(c) Wisdoman was the owner of about 484 million shares in Lai Sun Garment (International) Ltd (“Lai Sun”), a company publicly listed in Hong Kong;

(d) inconsistent with the said testamentary gifts:

(1) on 8 December 2004 (a few days after the 2004 will) the dec’d purportedly transferred all his interest in Lai Sun to Wisdoman;

(2) on 14 December 2004 the dec’d purportedly transferred all of his Wisdoman shares to Mdm U and Peter Lam.

6. Further to the said averments (and related thereto), in an affidavit filed in support of the defendants’ applications, it was deposed that:

(1) on 6 December 2004, the Securities and Futures Commission (“SFC”) granted a waiver to Peter Lam, Mdm U and Wisdoman from having to make a general offer for the shares of Lai Sun (as a result of the transfers summarized in para 5(d) above) (“the SFC waiver”);

(2) in an announcement dated 16 December 2004, Lai Sun stated that the transfers of the Wisdoman shares were purely a family arrangement between the dec’d and his family members (“the said family arrangement”).

7. In another affidavit filed in support of the defendants’ applications, it was deposed that the plaintiff, a practising solicitor, prepared attendance notes concerning the events of 3 December 2004 (when the 2004 will was executed) (“the plaintiff’s attendance notes”), but the plaintiff’s attendance notes had been lost.

The Specific Discovery Applications

8. The specific discovery applications against the plaintiff concern the following documents:

(a) those relating to the application for, and granting of, the SFC waiver;

(b) those relating to the transfers summarized in para 5(d) above;

(c) those relating to the said family arrangement;

(d) the plaintiff’s attendance notes.

(the documents set out in sub-para (a) to (c) are collectively called “the ‘transfer’ documents” below)

9. The relevant legal principles are settled; in short, the documents sought by the applicant:

(1) must exist;

(2) are or have been in the respondent’s possession, custody or power;

(3) relate to the matters in issue in the action; that is, they are relevant to the same;

(4) are necessary to dispose fairly of the matter or to save costs.

10. The application relating to the plaintiff’s attendance notes can be dealt with briefly.  The plaintiff has deposed that the same had earlier been lost. The application therefore does not satisfy para 9(1) above.

11. I turn now to deal with the “transfer” documents.

12. It cannot be disputed the “transfer” documents must exist (the said family arrangement will be discussed further in para 19 to 20 below).  The transfers of shares (publicly-listed shares in one instance) of such substantial value (in terms of tens of millions of dollars) are highly likely to be documented (even more so when one of the transfers involved a regulatory body).  That Lai Sun appears to be a fairly sizeable publicly-listed company (para 20(c) below) is also important here.

13. The plaintiff also accepts he has possession of at least some of the “transfer” documents.  As regards the others of the “transfer” documents, the plaintiff has not denied that they exist, or are within his possession, custody or power (see also para 20 and 26 below). 

14. The defendants argue that the “transfer” documents are relevant to this action (in the discovery of document sense):

(a) the testamentary capacity of, and undue influence of Mdm U and Peter Lam over, the dec’d are two of the main issues, and will be hotly disputed;

(b) the time proximity, and the “overlapped” subject-matter, between the 2004 will and the transfers summarized in para 5(d) above reasonably gives rise to a need for investigating the underlying background;

(c) some of the “transfer” documents may bear the dec’d’s signature, and can be made use of for handwriting comparison.

15. Further, the defendants contend that the requested documents may shed light on, for example, who initiated the transfers summarized in para 5(d) above, and the involvement (or lack of involvement) of the concerned individuals in the process leading to the actual transfers.  These matters are relevant to the issues set out in para 4(1) and (2) and 14(a) to (c) above.

16. The plaintiff opposes this application on the grounds of lack of relevance and necessity.  However, his skeleton submissions have not set out separate reasons in support of the alleged lack of necessity (in addition to those in support of the alleged lack of relevance). 

17. In relation to the lack of relevance, the plaintiff submits:

(1) a mere possibility that the “transfer” documents bear the dec’d’s signature is inadequate;

(2) even if there be such documents, they have not been properly identified in the related summons;

(3) the time proximity between the 2004 will and the transfers summarized in para 5(d) above is irrelevant because, first, this factual phenomenon is undisputed, and secondly, the defendants have already been able to advance a case based on this.

18. The objections summarized in para 17(1) and (2) above concern para 14(c) above, but not the other matters in para 14 above.  As regards para 17(3) above, I agree with the defendants that “relevance” as defined in The Compagnie Financiere Et Commerciale Du Pacifique v The Peruvian Guano Company (1882) 11 QB 55, 63, only requires:

“… information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary … ”.

In conclusion, by reason of the matters set out in para 14 (especially para 14(a) and (b)) and 15 above, I am satisfied that relevance of the “transfer” document has been established (for the same reason, necessity has also been established). 

19. In relation to the said family arrangement, the plaintiff also argues that the defendants have not discharged the burden of showing a prima facie case the related documents must exist, and are, or have been, in the plaintiff’s possession, custody or power.

20. It cannot be validly disputed that the burden can be discharged by primary, as well as secondary, facts.  In this application, the burden has been discharged by drawing an inference of the “transfer” documents’ existence based on the following undisputed circumstances:

(a) as stated above, the share transfers involved properties of quite substantial value;

(b) the SFC waiver shows that at least one regulatory body has been involved in, and has examined, the share transfers;

(c) Lai Sun appears to be a fairly sizeable publicly-listed company.  There are documents which show that its board of directors (which reportedly has been notified of the said family arrangement) consisted of more than a few individuals.

Further to sub-para (a) to (c) above, the affirmation filed on behalf of Mdm U and Peter Lam has used careful language in relation to documents relating to the said family arrangement (instead of simply and directly denying that any such documents exist):

“… the term [the said family arrangement] was used to explain the nature of the arrangement … rather than a reference to any document called ‘family arrangement’ or a deed of family arrangement”;

“… the Defendants are unable to show that the Plaintiff has such documents in his possession, custody and power”

(para 26 and 27, Kaung affirmation dated 6 July 2015).

Similar to that noted in para 13 above, the plaintiff himself has not denied having possession, custody or power of the documents relating to the said family arrangement.

The Non-party Disclosure

21. The documents sought are the same as those set out in para 8(a) to (c) above; namely, the “transfer” documents.

22. The respondents to this application are Mdm U, Peter Lam, Lai Sun, Wisdoman and the SFC.  The defendants and the SFC have been able to reach agreement about the part of this application concerning the SFC.  Only the part of this application concerning the other 4 respondents (collectively “the opposing parties”) is discussed below.

23. The plaintiff’s objections summarized in para 12 and 16 above have in effect been repeated by the opposing parties (see also para 25 to 27 below).

24. In addition, the opposing parties:

(1) emphasis that this is a non-party disclosure of documents, and relies on the related legal principles (s 42(1), High Court Ordinance (Cap 4); RHC Ord 24 r 7A(2) and (3));

(2) contend that the requested documents have not been identified with sufficient particularity, which renders this application oppressive,

as additional grounds of objection (respectively “the non-party ground” and “oppression ground”).

25. Because the following grounds of the opposing parties’ objection have in effect been discussed in some of the earlier paragraphs above, they will not be repeated; in short:

(a) there is insufficient evidence the requested documents exist (see para 12 and 19 to 20 above);

(b) there is insufficient evidence the requested documents are, and/or have been, in their possession, custody or power (see para 13 and 20 above (see also para 26 below));

(c) the requested documents are not relevant (see para 14 to 15 and 17 to 18 above);

(d) the requested documents are not necessary (see para 14 to 15 and 17 to 18 above).

26. In addition, in relation to para 25(a) and (b) above, as the court has observed in relation to the non-party in Tullett Prebon (Hong Kong) Limited v Chan Yeung Fong Nick and Others HCA 2197/2009 (9 June 2011) (para 89 thereof), the opposing parties do not expressly deny that the requested documents exist, or are within their possession, custody or power.

27. Ord 24 r 7A(6)(b) imposes a requirement in addition to the grounds prayed in aid by the plaintiff in the specific discovery application (para 25 above).  The relevant parts of that provision are:

“No person shall be compelled by virtue of such an order to produce any documents which he could not be compelled to produce … if he had been served with a writ of subpoena duces tecum to produce the documents at the trial”.

Despite the above “requirement”, the court in the Tullett Prebon decision held in essence that the Peruvian Guano test is nonetheless still applicable, and in that sense does not constitute an additional ingredient (para 74 and 76 thereof).  This seems to have been accepted by the opposing parties (albeit with qualifications) (para 8, opposing parties’ skeleton submissions).

28. In relation to the non-party ground, the opposing parties submit:

(1) s 42, Cap 4 only empowers the court to order a non-party to disclose and produce the requested documents, but not to compel the non-party to state on oath the whereabouts of those documents;

(2) the requested documents must be sufficiently identified.  Even though the Peruvian Guano test is applicable, it is improper to request for a class of documents, some members of which are relevant but the others may not be.

(para 28(1) above will be dealt with in the latter part of this decision)

29. The submission at para 28(2) above is similar to that raised by the non-party in the Tullett Prebon decision.  Suffice it to say, even without regard to authorities, there appears no justification for a total prohibition for a non-party disclosure application to seek a class of documents (the Tullett Prebon decision came to the same conclusion having reviewed the authorities: para 79, 82 and 83 thereof).

30. What is important in this regard is:

“In determining relevance of a document in a class of documents, each document must be read in the context as a member of the class of documents and not just in isolation. A document considered as irrelevant when viewed individually may nevertheless be regarded as relevant if viewed as a member of the class of documents. So long as each document thus read, individually or as a member of the class, meet the Peruvian Guano test, then it is immaterial that some of the documents in the event do not support the case of the [applicant] or adversely affect the case of his opponent” (the Tullett Prebon decision, para 83).

31. Finally, in relation to discretion, the factors which the court will have to take into account include those set out in SMSE v KL (No 2) HCMC 2/2006 (9 April 2009), para 63 (quoted in the Tullett Prebon decision (para 85 thereof)):

(a) the importance of the information to the issues in the main proceedings;

(b) whether appropriate steps to obtain the information within the proceedings have been taken before the non-party disclosure application was made;

(c) whether adverse inference can be drawn from the failure of the party within the proceedings to supply the information;

(d) the nature of the relationship, if any, between the parties to the main proceedings and the non-party respondent;

(e) whether the editing of documents is necessary or appropriate to protect private information if non-party disclosure is ordered.

Having included these further matters in my consideration, I conclude that the discretion should be exercised in the defendants’ favour. The reasons appear below.

32. Despite this application seeks three classes of documents (that is, the “transfer” documents (para 8(a) to (c) above)), they have been sufficiently identified:

(1) all three classes of document effectively refer to the same share transfer transaction (para 5(d) and 6(1) above);

(2) the concerned events were about a discrete transaction (para 5(d) above; see also the Tullett Prebon decision, para 92 to 93);

(3) those events took place within a relatively short time span (probably beginning from sometime around the time of the 2004 will (the date of which was 3 December 2004) to the end of 2004 (the SFC waiver was dated 6 December 2004 whereas the Lai Sun announcement was dated 16 December 2004));

(4) because the share transfers (and the related SFC waiver and Lai Sun announcement) do not appear to be opposed at the time, the number of concerned documents should not be so burdensome as to constitute oppression.

33. Relevance of the “transfer” documents has already been discussed (para 25(c) above).  Similar to the court’s observation in the Tullett Prebon decision (para 93 thereof), the issues raised in this action also revolve within a narrow compass.  Bearing these in mind, there is no substance in the oppression ground.

34. In relation to the matter set out in para 31(a) above (importance of the requested information), the “transfer” documents may shed light on the individual(s) who instigated and/or controlled and/or dominated the share transfers (and the related SFC waiver and Lai Sun announcement).  Any such information is highly important to the issues raised by the pleadings (para 4(1) to 4(3) above).

35. In relation to the matter set out in para 31(b) above (discovery within the proceedings), it is true the defendants have not sought the “transfer” documents from the plaintiff beforehand.  But, similar to the Tullett Prebon decision (para 91 thereof), because of the circumstances discussed below, this matter should not be given as heavy weight as those circumstances.

36. In relation to the matter set out in para 31(c) above (supply of information within the proceedings), the plaintiff has adopted a more active approach in his opposition to discovery than that commonly adopted by someone in his position in other legal proceedings.  Besides the plaintiff’s attendance notes (where he adduced a positive case of the document having been lost), the plaintiff has in effect put the defendants to strict proof on practically all points in the specific discovery application.

37. It is true the opposing parties have not been sued (hence the need for a non-party disclosure application) (para 31(d) above (relationship of parties)).  But, as the defendants correctly point out, this does not mean the opposing parties have no interest in the outcome of this action.  On the contrary, as beneficiaries named in the 2004 will, the opposing parties’ financial interests will obviously be affected by the outcome of this action (it is quite conceivably they do not wish the defendants to succeed (which will mean the 2004 will becoming invalid)).  To this extent, this is similar to what was concluded in the Tullett Prebon decision (para 91 thereof).

38. The defendants also rely on the following passages in Tristram and Coote’s Probate Practice (2015) 31^st Ed:

“The traditional approach to disclosure in probate claims is that the court exercises a wider latitude in ordering disclosure in these claims than is exercised in other proceedings. This is because of the peculiar nature of the enquiry in probate claims. This approach, whilst still valid in principle, must now be regarded as subject to the overriding objective and to the court’s responsibility to manage cases and costs in a way that is proportionate to the amount of money involved” (para 36.09 thereof).

By reason of the matters set out above, I consider ordering the disclosure is consistent with the underlying objectives of the Rules of the High Court (Cap 4A), taking into account (among other things) the value of the dec’d’s estate (see para 12 above) and the likely quantity of the requested documents (see para 32 above).

39. Nothing has been raised regarding para 31(e) above (editing disclosed documents).  I do not find anything of importance either.

40. The opposing parties also argue that there may be “overlaps” of the “transfer” documents in that (i) one or more of the respondents (including the SFC) may have possession, custody or power of the same, and/or (ii) one or more of the same may cover one or more of the categories set out in the schedule to the summons.  The opposing parties have adduced no evidence concerning the details of these possible “overlaps”, nor have they argued that they would make the disclosure oppressive.  On the contrary, the “overlaps” would tend to reduce the quantity of the documents which need to be disclosed.  To permit the opposing parties to argue that, because of the possible “overlaps”, the defendants have failed to show the disclosure is necessary vis-à-vis each of them, would tend to make the non-party disclosure provisions unduly ineffective (an applicant who seeks non-party disclosure usually has no precise (or detailed) information as to which of a number of non-party is likely to have (or have had) the requested documents).

41. The summons seeks in gist:

(a) the opposing parties to each file an affidavit stating whether they have (or have had) possession, custody or power the requested documents;

(b) the opposing parties to produce the “transfer” documents for inspection and permit copies to be taken.

As the opposing parties correctly point out, s 42(1), Cap 4 only empowers the court to order a non-party to disclose and produce the requested documents (para 28(1) above).  For this reason, as between the defendants and the opposing parties, no order will be made as regards the relief summarized in sub-para (a) above.

42. Among the documents set out in the schedule to the summons, the documents “with … any other person” are also requested.  The defendants sensibly accept that those words should be deleted (on the ground the phrase may make the extent of the disclosure ambiguous and thus oppressive).

Conclusion

43. In relation to the specific discovery applications between the plaintiff and the defendants:

(1) an order will be made in terms of the application relating to the documents concerning the share transfers, the SFC waiver and the said family arrangement (subject to the same deletion mentioned in para 42 above);

(2) the application relating to the plaintiff’s attendance notes is dismissed.

44. In relation to the non-party disclosure application, an order will be made in terms of the summons subject to para 41 to 42 above.

Other Matters

45. The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the decision and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

Costs Order Nisi

46. The costs of the specific discovery applications against the plaintiff are to be paid by the defendants to the plaintiff, to be taxed if not agreed.

47. Similarly, the costs of the non-party disclosure application are to be paid by the defendants to the respective respondents, to be taxed if not agreed.