CACV 147/2012
[2018] HKCA 514
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 147 OF 2012
(ON APPEAL FROM HCMP NO 2506/2009)
________________________
| | IN THE MATTER of the estate of TANG SUM ON alias TANG SAM ON (鄧心安), deceased |
| | and |
| | IN THE MATTER of an application under the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481 |
________________________
| BETWEEN |
| | TANG TIM CHUE（鄧添柱） | Applicant |
| | and | |
| | TANG KA HUNG ROBERT（鄧家雄） | 1st Respondent |
| | TANG MEI SZE（鄧美施） | 2nd Respondent |
________________________
Before: Hon Lam VP, Yuen and Kwan JJA in Court
Date of Hearing: 1 August 2018
Date of Judgment: 16 August 2018
________________________
J U D G M E N T
________________________
Hon Lam VP:
1. I respectfully agree with the judgment of Yuen JA and have nothing to add.
Hon Yuen JA:
2. This is the appeal of Tang Tim Chue (“TTC”) from a judgment of DHCJ Au-Yeung (now Au-Yeung J) given on 7 June 2012 (“the Judgment”) dismissing his application under the Inheritance (Provision for Family and Dependants) Ordinance Cap.481 (“the Ordinance”) for financial provision from the estate of his father Tang Sum On (“the Deceased”). The respondents in the application were Tang Ka Hung Robert (“Robert”) and Tang Mei Sze, the executors named in the Deceased’s Will, who are TTC’s half-siblings1.
Summons to adduce fresh evidence
3. On 21 July 2017, TTC issued a summons seeking to adduce fresh evidence, being the documents contained in a Bundle G. Apart from a letter from the court regarding directions (which was not relevant evidence in any event), the rest of the documents comprised of statements or documents regarding past events which were prepared after the Judgment by persons who had already given evidence before the judge, or persons for whom no explanation had been given for why they had not given evidence before the judge. As such, the fresh evidence does not comply with the first condition of Ladd v Marshall2 and TTC did not persist in his summons, which we would dismiss with costs.
Background
4. To understand this Judgment, it is necessary to set out some relevant family history.
5.1. The Deceased was an indigenous villager of San Wai, Ha Tsuen in Yuen Long. He was a grandson of Tang Chik Fook, a large land-owner. He was born to Tang Kang Cheung (“TKC”) and Madam Lau.
5.2. However as another of Tang Chik Fook’s sons Tang Kap Wing (“TKW”) had died without issue, the Deceased was posthumously adopted at a young age by TKW’s widow Madam Wong to be his successor. The Tang Kap Wing Tso (“the TKW Tso”) had some land registered in its own name, as well as interests in 6 entities, including a t’ong, another tso, a pawnshop etc3.
6. In 1951, in an arranged marriage, the Deceased married Madam Liu who bore him two children, a son TTC born in 1952 and a daughter. However the Deceased spent most of the time living with his concubine Madam So, rather than with Madam Liu and her children.
7. In 1953, the Deceased’s father TKC died.
8. In 1955 the Deceased started co-habiting with Madam Yip, who bore him two sons viz. Robert and Peter Tang Ka Wai, and two daughters.
9. Madam Liu’s household, as well as Madam Wong, were maintained by the TKW Tso.
“Light the lantern agreement”
10. The judge found4 that in 1963, an event occurred which has been referred to as the “light the lantern agreement”5. The lighting of lanterns is a ritual signifying recognition as descendants of a clan. The Deceased, seeking his wife Madam Liu’s acceptance of Robert and Peter as descendants of the Tang clan, promised that on his death, his personal estate would be divided into 4 equal shares, of which 2 shares would be given to her son (TTC) and 1 share to each of Madam Yip’s sons (Robert and Peter). On that basis, Madam Liu agreed that Robert and Peter could be recognized as descendants of the clan.
TTC’s departure for Canada and first marriage
11.1. In 1972, TTC went to Canada for further studies. The Deceased did not make any contributions to TTC’s expenses.
11.2. In 1976, TTC got married. The Deceased did not attend the wedding ceremony. According to Madam Liu, the Deceased refused to attend the wedding despite attempts from his natural and adoptive mothers, Madam Lau and Madam Wong, to persuade him to do so6.
The TKW Tso Action (HCA2125/1978)
12.1. Meanwhile the TKW Tso had been managed by Madam Wong and later, Madam Liu.
12.2. The Deceased wished to be appointed manager as he had been adopted as successor of TKW. This was the subject of discussion at a meeting of elders of the clan. However the Deceased failed to be appointed as manager of the TKW Tso. TTC was appointed additional manager, with Madam Wong and Madam Liu.
12.3. The Deceased then commenced HCA2125/1978 (“the TKW Tso Action”) against Madam Wong, Madam Liu and TTC (amongst others), for a declaration that he (the Deceased) was the sole successor to the TKW Tso. TTC returned to Hong Kong and, together with Madam Wong and Madam Liu, opposed the Deceased’s claim. In TTC’s Witness Statement, he pointed out that although the Deceased had been posthumously adopted as TKW’s son, he (the Deceased) had performed funeral rituals as the son of TKC, and “by performing the ritual as the eldest son of [TKC], the [Deceased] had in fact renounced his status of being an adopted son of [TKW]. He had resumed his capacity of being the eldest son of ... [TKC]”7.
12.4. The TKW Tso action commenced by the Deceased against TTC, among others, was clearly hostile litigation. In 1983, some 5 years after proceedings commenced, a consent order was made providing that certain lots would be conveyed by Madam Wong, Madam Liu and TTC to the Deceased, but it was declared that
- the Deceased was not an adopted son of TKW nor a member of TKW Tso,
- the Deceased, Robert and Peter had no claim to the property of TKW Tso, and
- TTC was the sole successor of the TKW Tso.
Deceased’s Will
13. On 27 September 1991, the Deceased made a will8 dividing his estate into 10 equal shares, of which 3 shares were given to each of Robert and Peter, and 2 shares to each of his daughters by Madam Yip. In not providing for TTC, the judge found that the Deceased “had breached his moral obligation under the ‘light the lantern agreement’” (emphasis added).9
Father’s (Deceased’s) Authorization?
14. Meanwhile TTC had sold some land of the TKW Tso to purchase a property in Canada for his family. He and his wife later divorced. He remarried in 1988 and started a new family. Apart from having to maintain his own family, he also had to support Madam Wong and Madam Liu.
15. Between 1988 and 1994, TTC ran a frozen seafood business in Hong Kong and a restaurant in Vancouver, Canada. He alleged that in 1994-5, his restaurant business failed and he lost money, whereupon he allegedly asked the Deceased for financial assistance.
16. TTC alleged as follows10:
“ In 1994, I returned to Hong Kong and sought assistance from my late father. I and my late father had had several meetings together with relatives and clansmen to discuss about the use of the lands owned by my late father. Since my late father had got about 300 to 400 plots of lands in New Territories of which some were squattered without rent income and some were unused, my late father then told me to collect rent from those squatters and to let out those unused lands. In return, my late father told me to keep the rent received from tenants for my own use and benefit and as the maintenance to meet my financial needs. I also used these monies to support my family and my natural mother”. (Emphasis added).
TTC referred to this as “the father’s authorization”.
17.1. Pausing there, it would be noted that on TTC’s own case as first articulated above, this authorization was restricted to rents from:
(a) squattered land, or
(b) previously unused land
(c) which were owned by the Deceased.
17.2. Yet in a subsequent affirmation11, TTC changed his case to say that the authorization covered not just lands owned by the Deceased but lands under the Deceased’s control which included lands (“the Lands”) in the following categories:
(a) wholly owned by the Deceased,
(b) held by the Deceased as tenants-in-common with his (the Deceased’s) brothers,
(c) wholly owned by Tang Lim Ming12, and
(d) partly owned by Tang Lim Ming.
17.3. TTC said that the Deceased’s brothers also received rent from lands in those categories without sharing or being accountable to others13.
18.1. In TTC’s affirmation filed on 20 July 2010, he listed the rents he received from tenants of the Lands from 1996 to 2006. The sums varied considerably from amounts as small as $7,500 in 2001 to $1,689,320 in 2004. He said that the Deceased
“ allowed me to collect the profits and rent from the Lands for my personal use at the material time so that I could have the means for:
a. the expenses to repair the ancestral home situate at 73 San Wai, Ha Tsuen, Yuen Long, New Territories and the ancestral tomb of TKW Tso; and
b. the maintenance of my family including my mother and my adopted grand-mother, the wife of TKW”14.
18.2. The issue whether the Deceased authorized TTC in 1995 to collect rent from lands owned or controlled by the Deceased for the purpose alleged will be discussed below.
The TL Tso Action (HCA12547/1999)
19.1. What is indisputable however is that in 1999, the father and son were in litigation again. This time, it was TTC who commenced proceedings on 4 August 1999 against the Deceased and two other managers of the Tang Leuk Tso (“the TL Tso”) in HCA12547/1999 (“TL Tso Action”).
19.2. This action concerned compensation paid for land of the TL Tso which had been resumed by the Government. TTC alleged that as the successor of TKW, he was entitled to about $542,000 compensation representing 23 shares which the TKW Tso had in the TL Tso. However he was only paid about $300,000 representing 13 shares, because the Deceased asserted that he (the Deceased) was entitled to 10 shares, as he alleged he had 40% in the TKW Tso.
19.3. TTC alleged the Deceased’s assertion above was wrongful15, in light of the Consent Order in the TKW Tso action. He therefore sued for the balance of $235,737.90.
19.4. This action was settled more than 3 years later by a Deed dated 21 January 2003 between TTC and the Deceased. Under the Deed, the Deceased agreed to pay $800,000 to TTC in consideration for TTC’s acknowledgement that the TKW Tso was entitled to only 13 shares in TL Tso, and the assignment of those 13 shares to the Deceased.
Madam Liu’s divorce proceedings (FCMC2250/2000)
20.1. While the TL Tso action was still proceeding, TTC’s mother Madam Liu also issued proceedings against the Deceased in 2000, first16 for a declaration that her marriage to the Deceased was valid, and then for divorce17. In the latter she made a claim for ancillary relief, and obtained an injunction restraining the Deceased from disposing of his assets (which injunction was later replaced by an undertaking from the Deceased).
20.2. Madam Liu’s claim for ancillary relief was heard in 2002. She claimed a sizeable lump sum. It is noteworthy that the submission made by the Deceased’s counsel, as summarized by the judge18 in his judgment19, was as follows:
“ there is no love lost between the Husband [Deceased] and his children by the Wife [Madam Liu]. It is alleged that the entire driving force behind these proceedings is their son [TTC] who, having squandered with the Wife [Madam Liu] the vast majority of their substantial inheritance20, now has to resort to living21 with the Wife [Madam Liu] and utilizing funds borrowed from G.E. Capital (HK) Ltd and secured against the very roof over her head”22.
20.3. It is fair to point out that the judge found “there is ... no evidence that he [TTC] was the driving force behind these proceedings or that he is to get any benefit directly out of them other than the fact that any award to his mother may release him of his financial support for her”23. However, despite the lack of evidence as pointed out by the judge, what is noteworthy is the attitude of the Deceased towards TTC which is relevant for the purposes of the present appeal, as will be discussed later.
20.4. The divorce proceedings concluded with the judge ordering the Deceased to pay Madam Liu a lump sum of $12 million and the bulk of the costs.
Deceased’s codicil
21. Two years after the divorce proceedings order, and a year after the TL Tso action was concluded, the Deceased made a codicil on 6 December 2004 in which he directed that Madam Liu, TTC and his daughter by Madam Liu “be excluded from attending my Memorial Service and/or Funeral Service and/or Burial Service at funeral home or at my place of burial and that their names be excluded from my Obituary”.
Deceased’s death
22. The Deceased died about a year later, on 7 November 2005.
Trespass action regarding Lot 1927 RP (HCA3/2006)
23.1. About a month after the Deceased’s death, on 2 December 2005, excavation work was commenced on a piece of land, viz the RP of Lot 1927 in DD124 (“Lot 1927 RP"). This was one of the lots which originally belonged to the TKW Tso, but which had been transferred to the Deceased pursuant to the Consent Order in the TKW Tso action.
23.2. The excavation work led to the executors of the Deceased’s estate commencing proceedings in HCA3/2006 against TTC and Lam Kuen (who claimed to be the tenant of Lot 1927 RP) for trespass (“the Trespass action”).
23.3. The defence of TTC and Lam Kuen was that the Deceased had authorized TTC to rent Lot 1927 RP to Lam Kuen and to collect the rent for the maintenance of TTC’s family, in other words, the alleged “father’s authorization”24.
23.4. The action was heard by Recorder Yuen SC. TTC, Lam Kuen and Lee Kwok Pang (who claimed to have rented land from TTC) gave viva voce evidence before the Recorder, who rejected the defence of authorization on the following grounds25:
(1) the Deceased and TTC had a poor relationship;
(2) the Deceased could have handled the leasing as he had 2-3 staff to look after his land;
(3) the evidence of TTC and Lam Kuen was inconsistent and self-contradictory, there being 4 versions of the alleged renewal in 200326;
(4) TTC and Lam Kuen were unreliable witnesses, producing a “Tenancy Agreement” at a very late stage, which in the words of the Recorder “has all the hallmarks of an afterthought”27.
23.5. Lam Kuen’s appeal28 from the Recorder’s Judgment was dismissed by this court29 on 31 March 2011.
Application under the Ordinance (HCMP2506/2009)
24.1. Meanwhile on 27 March 2008, TTC issued proceedings under the Ordinance in DCMP798/2008 (transferred to the High Court as HCMP2506/2009) for financial provision from the Deceased’s estate. These proceedings were opposed by the executors of the Deceased’s estate.
24.2. Both sides were legally represented at trial. They agreed to be bound by findings of facts in the actions set out above30, together with a probate action commenced by TTC in 2006 which was struck out a year later. (In fact, findings of fact were made only in Madam Liu’s divorce proceedings and the Trespass action).
24.3. The proceedings were heard before DHCJ Au-Yeung, who heard viva voce evidence from TTC, Lam Kuen, Lee Kwok Pang (all of whom had given evidence before Recorder Yuen in the Trespass action), Tang Chik Leung (an alleged tenant) and Madam Liu. For the executors, Robert gave viva voce evidence before the court.
DHCJ Au-Yeung’s Judgment
25. There is no challenge on appeal to the legal principles set out by the judge at §§10-19 of the Judgment and I shall not repeat them here. The disputes in this case were factual, and as the judge put it, “facts were heavily disputed” and “credibility of witnesses was critically important”31.
26. The primary issue of fact was whether TTC had proved that “immediately before the death of the deceased, he was being maintained, either wholly or substantially, by the deceased”32 (emphasis added), in the sense that the Deceased was making a substantial contribution in money or money’s worth towards TTC’s reasonable needs33.
27. TTC alleged that immediately before the Deceased’s death, the Deceased was maintaining him in the form of:
(1) providing him with free accommodation at 73 San Wai, Ha Tsuen, Yuen Long (“the ancestral home”), where he claims he has always resided, apart from the time when he was residing in Canada;
(2) permitting him to keep rents which he collected pursuant to the Deceased’s authorization, which he quantified at the hearing at $112,491 pm (about $1.35m pa).
28. In respect of TTC’s allegation that (1) the Deceased had provided him with free accommodation at the ancestral home, the judge found that:
- the Deceased was not the registered owner of, nor had a registered interest in, the ancestral home, so it could not be said that any accommodation at that location had been provided “by” the Deceased34;
- TTC had other residences35, and
- according to his own witness Tang Chik Leung, TTC only lived at the ancestral home in the recent 5-6 years36, which would be after the Deceased’s death.
29.1. In respect of TTC’s allegation that (2) the Deceased had allowed him to keep rents from the Lands pursuant to the alleged “father’s authorization”, the judge found that such authorization never existed for the following reasons37.
29.2. First, the relationship between the Deceased and TTC was not harmonious during virtually the whole period covered by the alleged authorization:
- since the TKW Tso action, the Deceased strongly resented TTC, which resentment was consistent and culminated in the codicil38;
- TTC never told Madam Liu about the alleged authorization, even though it was allegedly to provide for her maintenance39;
- between 1999 and 2003 in the TL Tso action, TTC was suing the Deceased for less than $236,000 only, even though on TTC’s case, the Deceased had already let him collect over $3m in rent40;
- in Madam Liu’s divorce proceedings, she said the Deceased had not maintained her, which contradicted TTC’s case that the collected rents were for him to maintain Madam Liu, among others; and
- for the reasons stated in the Recorder’s judgment concerning 1 lot of land, it was even less likely that the Deceased would have authorized TTC to collect the rent for 44 lots41.
29.3. Secondly, the judge analyzed42 the leases which TTC alleged he dealt with pursuant to the alleged “father’s authorization”. The analysis included the following points, which led the judge to conclude that TTC’s case was “totally unreliable”43:
- there was a piece of land for which the Deceased himself had signed a stamped tenancy agreement (prepared by solicitors) which overlapped in time with the lease allegedly granted by TTC pursuant to the Deceased’s authorization. TTC did not explain why there were two leases covering the same lot and (at least part of) the same period, and why the Deceased dealt with the lot himself when he had allegedly authorized TTC to do so44;
- there were also alleged renewals or new leases to Lam Kuen and his company Pak Yick Construction Engineering Co even though rents were not paid regularly and no proceedings were taken to collect arrears, which defied commercial sense and was inconsistent with the alleged instruction from the Deceased to TTC to turn the land into productive assets45;
- no accounts were ever kept by TTC46; and
- there was no pattern in the rent receipts allegedly issued by TTC47.
29.4. Thirdly, as for the viva voce witnesses:
- the judge rejected TTC’s evidence, finding that his evidence was full of inconsistencies, he avoided answering questions in cross-examination, and he did not appear to be credible48;
- the judge rejected Lam Kuen’s evidence, noting inconsistencies in his affirmations in different proceedings49;
- the judge also rejected Lee Kwok Pang’s evidence noting that the rent receipts he produced did not identify what land they had been issued for50;
- as for Tang Chik Leung, he could not identify the land he leased by reference to its lot number. Although he said there was a “lease book”, a copy of which was supposed to be kept by himself as tenant, it was not produced. The judge held that even if his evidence was believed, there was no proof that the land he leased belonged to the Deceased51;
- by contrast, the judge found Robert to be a truthful witness52.
29.5. Finally, in considering the situation just before the Deceased’s death in 2005, the judge found that if one took into account only those lots of which the Deceased was identified as registered owner, and excluded rents allegedly paid by Lam Kuen (and his company), TTC would only have received $31,180 in rents in 2004, and $44,513 in 200553. These relatively small sums could not support TTC’s case that he had been “wholly or substantially” maintained by the Deceased.
30. For the reasons set out above, the judge found that TTC had failed to prove that he was wholly or substantially maintained by the Deceased immediately before the latter’s death. That was sufficient to dispose of the claim, although the judge went on to consider the other issues on the assumption that she was wrong.
Appeal
31. TTC’s appeal seeks to overturn the judge’s finding of facts that he had failed to prove that he was wholly or substantially maintained by the Deceased immediately before the latter’s death. It is well-established that an appellate court should be very slow to interfere with findings of primary fact. As Bokhary PJ said in Ting Kwok Keung v Tam Dick Yuen54:
“ Where the judgment turns on an issue of fact, the Court of Appeal must have regard to the nature of that issue of fact. And it must have regard to the advantages enjoyed by a trial judge who received the evidence on such an issue at first-hand, in other words, in whose presence the whole of the evidence unfolded in its living state. Such advantages can be, as Lord Shaw of Dunfermline put it in Clarke v Edinburgh Tramways at p.36, ‘sometimes broad and sometimes subtle’. The question for the Court of Appeal is whether, even though it does not enjoy the advantages enjoyed by the trial judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong. The Court of Appeal should intervene if so satisfied. But if not so satisfied, the Court of Appeal should defer to the trial judge’s conclusion even if in some doubt as to its correctness”. (Emphasis added).
32. I will first deal with TTC’s attempt to refer this court to affirmations made by persons who had not given evidence before the judge. As these persons have not been tested in cross-examination, the judge was entitled not to take their affirmations into account55.
33.1. Coming now to the issues, first, in respect of the ancestral home, TTC submitted that it belonged to Tang Chik Fook, but it had “passed” to the Deceased who lived there with Madam Liu as their “matrimonial home”, TTC himself having been born there and having lived there except when he was in Canada. TTC says he has always performed ancestor worship at the ancestral tablets situated there. He says that the Deceased had a “right of occupation” and had asked him (TTC) to reside there and to look after it. In support of his submissions, he referred to the land search of San Wai Lot 61 in DD125, and to a copy of an electricity bill addressed to TKC for the period 30-11-2011 to 31-01-2012.
33.2. All these matters had been argued before the judge, and were set out in §43 of the Judgment. The judge was clearly aware of TTC’s case.
34.1. As far as the ownership of the land is concerned, the judge noted that the land was not owned solely by Tang Chik Fook56. That is clearly correct. The land search reveals that the original co-owners were Tang Chik Fook and Tang Tsak (Chok) Hing:
- As for the latter, ie Tang Tsak (Chok) Hing, successive managers of the Tang Chok Hing Tso have continuously been registered as owners of a half-interest in the land.
- As for the former, Tang Chik Fook himself had many descendants. There was no evidence that Tang Chik Fook’s interest had devolved to the Deceased solely.
34.2. Assuming the Deceased and TTC had occupied the ancestral home, under what right had they done so? It seems to me that the correct legal analysis (based on the evidence in this case) is that as successors of Tang Chik Fook57, they had been exercising a right to occupy co-owned property, although such a right of occupation is not exclusive of other co-owners. So analyzed, TTC’s occupation of the ancestral home (even if proven) was by virtue of his (non-exclusive) right to occupy co-owned property as a successor of Tang Chik Fook. The same analysis applied to TKC’s occupation and the Deceased’s occupation. This is entirely consistent with the presence of the ancestral tablets there.
34.3. The judge was therefore entitled on the evidence to say
“ Accordingly, even if TTC had been provided with accommodation at the ancestral home, it was not shown to be provided ‘by the deceased’ within the meaning of section 3(1)(vi)”58. (Emphasis added).
35. Further, in support of the judge’s rejection of TTC’s case, there was evidence that showed that immediately before the Deceased’s death in 2005 (which is the relevant period for the purposes of an application under the Ordinance), TTC had not lived at the ancestral home. His own witness Tang Chik Leung had testified that TTC did not live at the ancestral home previously, but only in the recent 5-6 years (2006-2007), ie after the Deceased’s death59.
36. For the reasons set out above, the judge’s finding of fact (that TTC has failed to prove that the ancestral home had been provided by the Deceased immediately before his death as accommodation for TTC) cannot be said to be plainly wrong.
37. Second, in respect of TTC’s allegation that the Deceased had authorized him to collect rents and keep them for maintaining his family, TTC has done no more in this court than repeat his case below, which the judge has rejected for the reasons summarized above60. He has not suggested how the judge has been plainly wrong in her rejection of his case.
38. In particular, in my view TTC’s allegation that in 1995 the relationship between him and the Deceased had improved, so much so that the Deceased had allowed him to keep rents from the Lands, flies in the face of the hostile litigation that he himself (TTC) had instigated against the Deceased in 1999 in the TL Tso action. TTC alleged that pursuant to the alleged “father’s authorization”, he had received in 1996-1998 a total of more than $2.8m61 in rent. If that were true, he would not have needed to instigate hostile litigation against the Deceased, running the risk of incurring the Deceased’s anger, for less than $250,000.
39.1. Further, Madam Liu’s divorce proceedings clearly displeased the Deceased. As noted earlier, the Deceased believed that TTC was the driving force behind Madam Liu’s institution of those proceedings. It matters not whether that belief was justified. The point is that it would have been unlikely for the Deceased to have continued his generosity to TTC when, as his (the Deceased’s) counsel put it, there was “no love lost” between them62.
39.2. And even if (for the sake of argument) the Deceased had in 1995 allowed TTC to collect rent to maintain his family and Madam Liu, there was no reason for the Deceased to continue to do so (without any reduction) after Madam Liu received a sizeable lump sum of $12 million from the Deceased in 2002 in the divorce proceedings.
40. Finally, the requirement under the Ordinance is for TTC to prove that he had been maintained by the Deceased immediately before the latter’s death. The Deceased’s codicil, executed less than a year before death, speaks volumes about the Deceased’s attitude towards TTC. To put it bluntly, the Deceased’s hostility came “straight from the horse’s mouth”63, and is completely contrary to the suggestion that the Deceased was at the same time providing him with financial maintenance.
Order
41. For the reasons set out above, I would dismiss this appeal with an order nisi that TTC pay the costs of the respondent executor to this appeal. This order would be made absolute automatically unless a summons (supported by affirmation) is issued within 14 days of the date of this Judgment for its variation. If no such summons is issued, the respondent executor will be at liberty to file with the court and serve TTC, within 21 days of the date of this Judgment, a summary bill of costs (no more than 3 pages). TTC will be at liberty to respond to the items or quantum in the bill by filing with the court a response (no more than 3 pages) within 14 days after he receives the bill. The court will then make a gross sum assessment of the costs of the appeal.
Hon Kwan JA:
42. I agree with the judgment of Yuen JA
| (M H Lam) | (Maria Yuen) | (Susan Kwan) |
Vice President
| Justice of Appeal
| Justice of Appeal
|
Applicant Mr Tang Tim Chue, appearing in person.
1st Respondent Mr Tang Ka Hung Robert, appearing in person.
2nd Respondent Ms Tang Mei Sze, acting in person, absent.
1 On appeal, the 2nd Respondent Tang Mei Sze did not appear.
2 [1954] 1 WLR 1489.
3 The income from these entities was set out in the Deceased’s affirmation in FCMC2250/2000 (see §20.1 below), filed 4.5.2001, §2(c).
4 §§ 4 and 127, Judgment.
5 An action (HCMP1705/2012) by Madam Liu (and TTC before his bankruptcy) to enforce this agreement was dismissed by DHCJ Shieh SC on 15 May 2013 on the ground (among others) that in any event, it was statute-barred.
6 Liu Chuen Mui’s affirmation in FCMC2250/2000, filed 25.8.2010, §18.
7 TTC’s Witness Statement in HCA12547/1999 (see §19.1 below), filed 11.4.2001, §8.
8 The contents were not known to TTC until after the Deceased’s death.
9 §128, Judgment.
10 TTC’s Affirmation, filed 27.3.2008, §9.
11 TTC’s Affirmation, filed 20.7.2010, §§3-4.
12 Another name for Tang Chik Fook.
13 See fn.11.
14 She (Madam Wong) died in 1996: TTC Affirmation, filed 4.8.2009 §4.
15 SOC in HCA12547/1999, §9.
16 FCMP2/2000.
17 FCMC2250/2000.
18 HH Judge Bruno Chan.
19 Handed down on 2 September 2002.
20 From the TKW Tso.
21 At a flat in Yuen Long.
22 At p.55.
23 At p.59.
24 §16 above.
25 §28.
26 §§40-47.
27 §50.
28 CACV140/2010.
29 Cheung, Kwan and Lam JJA.
30 The TKW Tso action, the TL Tso action, Madam Liu’s validation of marriage proceedings, her divorce proceedings and the Trespass action before Recorder Yuen.
31 §20, Judgment.
32 Section 3(1)(vi) of the Ordinance.
33 Section 3(3) of the Ordinance.
34 §46, Judgment.
35 §§47-48, Judgment.
36 Since 2006-7.
37 §66, Judgment.
38 §57, Judgment.
39 §§65-66, Judgment.
40 §61, Judgment.
41 §56, Judgment.
42 §§67-85, Judgment.
43 §85, Judgment.
44 §74, Judgment.
45 §73, Judgment.
46 §82, Judgment.
47 §82, Judgment.
48 §22, Judgment.
49 In §86(ii) and §87 of the Judgment, the judge referred to Lam Kuen’s affirmation in “the Probate Action”, but as he did not file any affirmations in the Probate Action, that must have been an error, and should have been references to his affirmations in the Trespass action.
50 §90, Judgment.
51 §96, Judgment.
52 §25, Judgment.
53 §§101-102, Judgment.
54 [2002] 1 HKC 601.
55 §21, Judgment.
56 §46, Judgment.
57 As indeed was TKC, in whose name the electricity bill was issued.
58 §46, Judgment.
59 §50, Judgment.
60 §§29.1-29.5 above.
61 Table in §97, Judgment.
62 Bruno Chan DJ’s Judgment, 2.9.2002 p.55.
63 The Deceased’s testamentary fitness was affirmed by a medical certificate: §57, Judgment.