Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Cheng Lap Kai v Secretary For Justice

Judgment Cited authorities 12 Cited in 2 Precedent Map Related
Vincent
Judgment Date06 February 2013
Year2013
Citation[2013] 2 HKLRD 406
Judgement NumberHCMP879/2012
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCMP879/2012 CHENG LAP KAI v. SECRETARY FOR JUSTICE

HCMP 879/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 879 OF 2012

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

IN THE MATTER of the Estate of Chen Soo King (陳素琼) late of Room 129, 1st Floor, Block E, Tsui Yeung House, Tsui Ping North Estate, Tsui Ping Road, Kwun Tong, Kowloon, Hong Kong, widow, deceased, died on the 28th day of November 2010

and

IN THE MATTER of Order 85 Rule 2 of The Rules of the High Court (Chapter 4A, Laws of Hong Kong) and Intestates’ Estate Ordinance, Cap. 73

BETWEEN
CHENG LAP KAI (程立佳) Applicant

and
SECRETARY FOR JUSTICE Respondent
--------------------------

Before : Deputy High Court Judge B Chu in Chambers

Date of Hearing : 23 January 2013

Date of Judgment : 6 February 2013

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

J U D G M E N T

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

Introduction

1. The applicant Mr Cheng is seeking a declaration that certain assets of the estate of the deceased (“Deceased”) had been given to him by by way of donatio mortis causa.

2. The Secretary of Justice is the respondent in this application since should Mr Cheng fail in his application, the estate of the Deceased would vest in the Government of Hong Kong as bona vacantia. The Secretary of Justice takes a neutral stance in the present application, apart from appearing to cross examine Mr Cheng and to make submissions.

3. Originally Mr Cheng was also seeking a declaration that he was the sole beneficiary of the estate of the Deceased but this part of his claim had been abandoned.

Factual Background

4. Mr Cheng was the one and only witness in this application and the factual background essentially came from his 3 affirmations, his supporting documents and photographs, and his oral evidence during the hearing.

5. Mr Cheng was born in Hong Kong in December 1951, and is now 61 years of age.

6. According to Mr Cheng, when he was 21 years old, he was told by his father that he was in fact an adopted child. Mr Cheng Senior and his former wife, who was the sister of Mr Cheng’s natural mother adopted him when he was about 2 years old. Later, in about 1955/1956, his adoptive parents separated after an argument and he was left in the care of his adoptive father.

7. Mr Cheng Senior married the Deceased in May 1959 in Hong Kong according to Chinese customary rites and ceremonies. No children were born out of this marriage.

8. After his adoptive father married the Deceased, Mr Cheng lived together with them and they brought him up as their only son and reciprocally, he said he also treated them as his own father and mother in all aspects. At the time of Mr Cheng’s marriage in 1974, on his marriage certificate[1], his father was stated to be Mr Cheng Senior and the Deceased was one of the witnesses who signed on his marriage certificate.

9. After his wife gave birth to a son later in 1974, Mr Cheng and his family moved away from his adoptive parents due to lack of space in their flat, but continued to visit them regularly. Then in 1975, they moved back to live with his adoptive father and the Deceased when they moved to a more spacious flat on Nathan Road (“the Nathan Road Flat”).

10. When his adoptive father passed away in December 1980, on the death certificate, Mr Cheng was stated to be the son of the deceased being present at the death[2].

11. Mr Cheng Senior died intestate. The Deceased applied for the letters of administration of his estate as his lawful widow. In the affirmation of the Deceased made at the time of her application for letters of administration[3], the Deceased had stated therein that Mr Cheng was adopted at the age of 2 years by Mr Cheng Senior. Further, according to that affirmation, Mr Cheng Senior had no issue or child who predeceased him, and left no wife other than the Deceased.

12. After the death of Mr Cheng Senior, Mr Cheng and his wife and son continued to live with the Deceased at the Nathan Road Flat until mid 1985 when the Deceased decided to sell the Nathan Road Flat. After sale, according to Mr Cheng, the Deceased gave him HK$100,000 for him to buy his own flat. The Deceased then rented a suite at her friend’s flat until 1995 when she was allocated a public housing unit in Kwun Tong (“Kwun Tong Flat”).

13. According to Mr Cheng, throughout those few years when his family was living with the Deceased after the death of his adoptive father, he would pay household contribution/maintenance to the Deceased, but after he bought his own flat, he paid her less as he needed to pay for the mortgage of his own flat and to maintain his own family.

14. Since 1985, the Deceased had lived alone. Mr Cheng said he would visit her about once a week or every two weeks, and would give her sums every month, about HK$1,000 per month. Mr Cheng had produced an individual tax return for 1996/1997 to show that he had applied for dependant parent allowance for supporting the Deceased[4].

15. In about June 2000, the Deceased apparently had an accidental fall and suffered a fractured leg. Thereafter she applied for elderly service with the United Christian Hospital (“Hospital”) and provided the name of Mr Cheng as her son to be the contact person.[5]

16. There was very little information provided by Mr Cheng as to how the Deceased led her life for the next 10 years. According to what Mr Cheng said during the hearing, the Deceased preferred to live alone, and she liked to play mahjong, and one of her mahjong friends was living in a flat in Mei Foo Sun Chuen (“Mei Foo Flat”). The Deceased and her friend used to buy shares together through the Mei Foo branch of a securities company which I shall simply call Christfund, and further the Deceased had used the Mei Foo Flat as her address for Christfund to send her securities statements, and the Mei Foo Flat was also registered as the address of the Deceased for some shares she held[6]?

17. In about September 2010, the Deceased was apparently complaining of stomach problems, and Mr Cheng accompanied her to the Hospital for a follow up consultation.

18. The Deceased was later diagnosed with gall bladder cancer in October and died on 28 November 2010 in the Hospital at the age of 82 years[7].

19. She died intestate. There was no evidence that the Deceased was married to anyone else during her lifetime, other than Mr Cheng Senior. Further, according to Mr Cheng, the Deceased had no parents, no children, no siblings and no relatives, apart from him.

20. The Deceased’s estate consisted of cash in her savings accounts at Bank of China (“BOC”) and Bank of Communications (“BOCOM”), shares in public listed companies in Hong Kong and some cash, jewellery and valuables in a safe deposit box at Bank of East Asia (BEA Box”).

21. It is Mr Cheng’s case is that between September 2010 and her death, the Deceased had gifted to him all her above assets by way of donatio mortis causa (“DMC”). I will go into his evidence on these alleged gifts later on in this judgment.

The Law on DMC

22. It is a well-established principle that there is no equity to perfect an imperfect gift and equity does not assist a volunteer. An incomplete gift is therefore invalid[8]. A DMC is, however an exception to this well-established principle. It is now also well-established that there are 3 essential requirements for an effectual or valid DMC, as laid down in the case of Cain v Moon[9].

23. In the case of Official Administrator v Luk Hoi Tong Co Ltd[10], A Cheung J (as he then was) quoted the following passage from Hayton and Marshall[11] on the doctrine of DMC and the 3 requirements:-

“Cases of donatio mortis causa sometimes provide an exception to the rule that equity will not perfect an imperfect gift. A donatio mortis causa must comply with the following essential requirements:

(i) The donor must have made the gift in contemplation though not necessarily in expectation of death.

(ii) He must have delivered the subject-matter of the gift to the donee or transferred to him the means or part of the means of getting at that subject-matter, e.g. delivering a key, like car keys, or a key to a box containing essential indicia of title, intending to part with dominion over the property to which the key relates.

(iii) The circumstances must have been such as to establish that the gift was to be absolute and complete only on the donor’s death so as to be revocable before then. A condition to this effect need not be expressed and will normally be implied from the fact that the gift was made when the donor was ill.”

24. As for the 2nd requirement for the donor to “part with dominion” over the subject matter, Cheung CJHC has referred to the following explanation in the case of In re Craven’s Estate[12]. In that case, Farwell J had said as follows[13]:-

“I have considered what was the reason for imposing as a condition of a valid donatio that the donor must part with dominion over the subject-matter thereof and the answer seems to me to be that the subject-matter of the donatio must be some definite property, and, to ensure that, the donor must put it out of his power between the date of the donation and the date of the death to alter the subject-matter of the gift and substitute other chattels or property for it. Otherwise, so long as the subject-matter of the gift remained in the dominion of the donor, the donor might at any time between the donatio and the gift deal with it as he or she pleased. Take for instance the case of a box. The donor says to the donee: “This box contains certain valuables which are to be yours in the event of my death from the operation which I am going to undergo in a few days, but I propose to retain the box and the key of the box.” If that was the position it would be open to the donor...

To continue reading

Request your trial
2 cases
  • Tang Wai Lam, The Sole Executor Of The Estate Of Siu Mak Cheung, Deceased v Chung Wai Sing
    • Hong Kong
    • High Court (Hong Kong)
    • 17 June 2015
    ...15 ER 476, at 479. 63. This passage has been followed in Hong Kong by DHCJ Bebe Chu (as she then was) in Re Estate of Chen Soo King [2013] 2 HKLRD 406 at paragraph 64. As to what constitutes parting with dominion, I have been referred to Vallee v. Birchwood [2014] 2 WLR 543, which refers to......
  • Hui Yin Yee v Secretary For Justice
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 19 September 2018
    ...on the Law of Trust and Equitable Remedies (11th Ed))” 20. As for the burden of proof, this Court has in Re Estate of Chen Soo King [2013] 2 HKLRD 406 cited the following passage of Lord Chelmsford in Cosnahan v Grice (1862) 15 Moo PC 215[2] “28. Lord Chelmsford has said in the case of Cosn......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT