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Wang Din Shin v Nina Kung

Judgment Cited authorities 38 Cited in Precedent Map Related
Vincent
Judgment Date28 June 2004
Subject MatterCivil Appeal
Judgement NumberCACV460/2002
CourtCourt of Appeal (Hong Kong)
CACV000460/2002 WANG DIN SHIN v. NINA KUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 460 OF 2002

(ON APPEAL FROM HCAP 8 OF 1999)

__________________

BETWEEN
WANG DIN SHIN Respondent
AND
NINA KUNG alias NINA T.H. WANG Appellant

____________________

Coram: Hon Yeung JA, Yuen JA & Waung J in Court

Dates of Hearing: 29 - 30 September, 2 - 3, 6 - 10, 13 - 17, 20 - 24, 27 - 31 October, 1, 3 - 5 November 2003

Date of Judgment: 28 June 2004

_________________

J U D G M E N T

_________________

Hon Yeung JA:

Introduction

1. This case concerns the genuineness or falsity of "Wang Teh Huei" (王德輝) -the questioned signature of the man so named- written with a broad-nib calligraphic fountain pen in liquid ink in each of the four homemade documents, "A", "B", "C", and "D" (collectively referred to as "the 1990 documents").

2. Wang Teh Huei (Wang)'s Wife - Nina Kung Ru Xin (the Wife)- said Wang had duly executed "the 1990 documents" as his last will ("A", "B", and "C" were testamentary in nature). Wang's 93-year-old father -Wang Din Shin (the Father)- said they were forgeries.

3. If the Wife were right, probate of Wang's estate should be granted to her upon his death. Otherwise, the Father would be entitled to such grant by virtue of an earlier will made in 1968 ("the 1968 Will").

4. As the propounder of "the 1990 documents," the Wife had the burden to prove - on a balance of probability - that Wang had duly executed them so that the court could pronounce them, as his last will in solemn form. If she failed, the Father succeeded, as the due execution of "the 1968 Will" was not disputed.

5. In discharging her burden, the Wife was bound to satisfy the conscience of the court that Wang did execute "the 1990 documents" (i.e. Wang signed them). The Father did not have the burden to prove Wang did not.

6. The approach of the court was inquisitorial in nature, as the court must give effect to the true intention of Wang and not be bound by the wishes of the parties.

7. If the Father wished to establish that "the 1990 documents" were forged, he had to adduce strong and cogent evidence, as the standard of proof should commensurate with the gravity of the allegation and the seriousness of the consequences. (See the judgments of Lord Nicholls of Birkenhead in In re H (Minor) [1996] AC 563 at p. 587, of Bokhary JA (as he then was) in Aktieselskabet Dansk Skibsfinansiering v Wheelock Marden & Co Ltd & Ors [1994] 2 HKC 264 at p. 270 and of the Court of Final Appeal in HKSAR v Lee Ming Tee FACC 1 of 2003 at p. 14)

8. If "the 1990 documents" were forged, obviously they could not have been duly executed, although the reverse was not necessary true as technically it involved a different burden and/or standard of proof.

9. The simplicity of the issue did not lead to a short and guileless trial. The resourcefulness of the parties or the ingenuity of counsel or both resulted in a record-breaking 172-day trial, which took place before Yam J (the judge) over the 14-month period between 6 August 2001 and 15 October 2002. On the relevant issues, Mr. Edward Chan SC leading Mr. Albert Tsang and Mr. Victor Luk for the Father; Mr. Martin Lee SC leading Mr. R. Sujanani and Mr. Erik Shum for the Wife.

10. Unparalleled in the legal history of Hong Kong, the trial was a chimera, with a fire-breathing mouth that had devoured a significant part of our judicial capacity and a serpent's tail in the form of a 600-page judgment.

11. In the judgment handed down on 21 November 2002, the judge found the questioned signatures of Wang to be forgeries.

12. The judge gave judgment for the Father with costs and granted him a decree of probate for "the 1968 Will" in solemn form. The Wife appealed against the judgment (CACV 460 of 2002-the main appeal) and the costs order (CACV 67 of 2003-the costs appeal).

13. Due to time constraints, the parties agreed to adjourn the costs appeal.

Background Facts

14. The background facts are set out only in such details as to explain how the issues arose.

15. Wang, a multi-billionaire and the head of "Chinachem" (a family business started by the Father and substantially expanded into a property development conglomerate by Wang with the assistance of the Wife), was kidnapped in 1983.

16. He was released after the payment of $75 million ransom.

17. On 10 April 1990 Wang was kidnapped again and had not been seen or heard of since (subject to the Wife's assertion to the contrary).

18. One month preceding the second kidnap, on 10 March 1990, Wang was injured in a riding accident at the Jockey Club Clubhouse at Beas River, Fanling. He stayed in a hospital for two days before discharging himself against medical advice.

19. On 22 September 1999, the judge (in separated but related proceedings) granted leave to the Father to swear to Wang's death to have occurred on or since 10 April 1990, despite objection from the Wife who had insisted that Wang was still alive.

20. In an obvious attempt to defeat the Father's application to swear to Wang's death, the Wife claimed to have spoken to Wang twice since his kidnap (on 23 April 1990 and 14 December 1996). She also claimed that on 2 September 1996, she had seen Wang's photograph supposedly taken after the second kidnap. The judge rejected her assertions and she accepted the decision.

21. Wang first made a will in 1960 ("The 1960 Will") by Messrs. P C Woo, solicitors, bequeathing his entire estate to the Father and the Wife in equal shares. The Wife was to hold her half share on trust for any children of the family also in equal shares.

22. When "the 1960 Will" was made, Wang was 26, and the Wife 24 years old. They did not have children and Wang was not aware of his infertility.

23. The Father kept "the 1960 Will".

24. In March 1968, Wang made "the 1968 Will," revoking "the 1960 Will" and bequeathing his entire estate to the Father. By that time, Wang was aware of his physiological defects and the resulting infertility.

25. Mr. Donald Cheung of Messrs. F Zimmern, solicitors prepared "the 1968 Will." His firm kept a copy in a wax-sealed envelope.

26. Both "the 1960 Will" and "the 1968 Will" were written in English and executed by Wang in English.

27. Wang made "the 1968 Will" to sever the Wife completely from his estate because he believed the Wife had an adulterous relationship with another man. The Father was aware of the existence of "the 1968 Will," but the Wife was not until about February 1985 at the earliest.

28. There was positive evidence that Wang was still concerned about the Wife's "unfaithfulness" in 1974.

29. "The 1968 Will" was kept in a safety deposit box rented by Wang from a branch of the then Bank of Canton ("the Bank") on 12 February 1968 with a P.O. Box address of Ping Hing Hong -a company acquired by Wang from the Father also on 12 February 1968. That branch of the Bank was close to Wang's office.

30. The Father paid the rental for the safety deposit box initially. Wang then paid it. There was a period from 1982 to 1991 when the rental was not paid. The Father only paid the entire outstanding rental in cash on 16 July 1990.

31. Wang only authorized Yih Lee Kwong (Yih) - his trusted cousin and colleague - to have access to the safety deposit box. The Bank issued two keys, but only one was found in Wang's belongings after his 2nd kidnap. It appeared that the Father was given the other key, but he was unable to locate it.

32. Wang told the Father in 1968 about "the 1968 Will" inside the safety deposit box. Wang also expressly instructed Yih not to open the safety deposit box except at the Father's request.

33. When the safety deposit box was finally opened on 22 April 1997 in the presence of representatives of the Inland Revenue Department, "the 1968 Will" was found inside with other items, including the revocation of the Power of Attorney granted to the Wife, a Power of Attorney granted to Yih, photographs of Wang's girlfriends with negatives, receipt from the private detective who obtained evidence of the Wife's "infidelity," and some banking documents (all relating to or arising out of the Wife's "infidelity").

34. The Bank's records indicated that, between February 1968 and April 1997, the safety deposit box was opened only once, on 22 October 1975. If the Bank's records were accurate, Wang could only have deposited the documents in the safety deposit box on 22 October 1975 as they came into existence after the safety deposit box was rented.

35. However, the evidence (on the number of times that the safety deposit box had been opened) was not entirely satisfactory due to changes in the ownership of the Bank.

36. In February 1985, Wang and the Wife had a dispute with Mr. Donald Cheung, who then suggested the return of "the 1968 Will" to Wang. A meeting was proposed for such purpose but the meeting did not take place.

37. Messrs. Deacons, acting for Mr. Donald Cheung of Messrs. F Zimmern, eventually returned the copy of "the 1968 Will" in 1991.

38. If the Wife were aware of the existence of "the 1968 Will", the earliest would be the occasion in February 1985. There was, however, no clear indication that she was aware of the contents of "the 1968 Will" until after the opening of the safety deposit box in April 1997.

39. In September 1999, the Father sought probate of "the 1968 Will". The Wife objected and counterclaimed for probate of Wang's estate to be granted to her. The Wife claimed that "the 1990 documents" were Wang's last valid will and she was thereby made the sole beneficiary of his estate. The suggestion was that "the 1968 Will" had been revoked by "the 1990 documents".

40. The Wife first lodged the sealed envelope containing "the 1990 documents" on 16 January 1998, nine months after the safety deposit box was...

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