IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 78 OF 1999
(ON APPEAL FROM HCA 8483 OF 1997)
|TSUI CHEUNG HING
Also known as CHUI CHEUNG HING
|TSUI HING LAN
Coram: Hon. Nazareth, V.-P., Leong, J.A. and Keith, J. in Court
Date of hearing: 28 May 1999
Date of delivery of judgment: 28 May 1999
J U D G M E N T
1. This is an appeal against the judgment of Yam, J on 20th January 1999 dismissing a claim by the plaintiff to set aside a Deed of Gift in respect of two properties in Yuen Long New Territories. The Deed was executed by the plaintiff on 18th July 1992 in favour of the defendant. The plaintiff has filed detailed grounds of appeal, but these can be briefly summed up as follows:
"1. The Judge had not considered his alternative plea of undue influence; and
2. The evidence does not support the Judge's findings."
2. The plaintiff's case is that he signed the Deed in the honest but mistaken belief that it was for making a property search. He never intended to give the properties to the defendant. Alternatively, the plaintiff says that because the defendant had been taking care of him he reposed his trust and confidence in the defendant and the Deed was procured by the defendant's undue influence on him.
3. In view of the nature of the claim and the grounds of appeal, it is necessary for me to set out the evidence in some details. The plaintiff's evidence is this. He is the eldest son of the family and he has two younger brothers, Tsui Mou-fat and Tsui Ping-fat. The defendant Tsui Hing-lan is the daughter of Tsui Ping-fat. The plaintiff has been blind since 1962 but he is able to do the daily chores and go around the village without assistance. He considers himself a rather strong and not easily persuaded person. In 1996, because Tsui Ping-fat was responsible for taking care of ancestral burial grounds, the plaintiff gave the title documents of the two properties to Tsui Ping-fat so that the latter could collect rent for that purpose. Later the plaintiff learnt that Tsui Ping-fat attempted to transfer the properties to his own name but failed to do so because no transfer could be made without the plaintiff's signature. As a result, they were not on good terms. The plaintiff used to be assisted by his daughters who visited him once a fortnight to buy food for him. But in 1992, the defendant occasionally came and bought food for him. Sometime in that year, the defendant and her husband took the plaintiff to what he assumed to be a solicitors' office and there the defendant told him to sign a piece of paper for making a property search to see if Tsui Ping-fat had secretly transferred the properties to someone else. On the instruction of a person in the office, he signed on a document which he believed was for property search. The defendant told him that person was a solicitor. The plaintiff says he was never explained of the contents of that document but he signed it nevertheless. Thereafter he heard no more of the two properties.
4. In 1998, his nephew Tsui Chi-kin suggested to him to make a property search because Tsui Chi-kin suspected the defendant have done something with the properties. The plaintiff did so. He then realised that what he signed in 1992 was a Deed of Gift giving the two properties to the defendant. His assertion is that the two properties belong to the family and could only be inherited by a male member of the family and there could be no reason that he could have passed the two properties to the defendant, a female member of the family. The plaintiff says that he made a will on 25th July 1997 leaving the two properties to his nephew Tsui Chi-kin and he could not have signed the Deed in 1992 to give the two properties to the defendant.
5. In his evidence in cross examination, the plaintiff denied that the defendant had ever taken care of him not to say in 1992. He told the Judge that the defendant's assistance to him, if any, was limited to four occasions when she visited him in 1994 and bought food and collected public assistance for him. He agreed that when he signed the Deed he understood what the solicitor said to him in punti and on that occasion, the defendant had told him the two properties were transferred to her name but his response was that they could not be transferred to a woman. He admitted that when he made his will in July 1997, it was explained to him in punti by his solicitor and he understood it before he signed.
6. The defendant's case is that the plaintiff of his own free will transferred the properties to her and signed the Deed fully understanding it to be a Deed of Gift of the properties to her. The defendant's version of what transpired is this. Since she was a small child she had been on good terms with her uncle, the plaintiff. After the plaintiff became blind, his daughters took care of him but they ceased to do so in 1991/92. She then took over the task and visited him weekly to buy food for him and collect for him his public assistance. Despite his handicap, the plaintiff was able to go...