KOON TUNG YING v. LAU CHUP HEI

FACV000024/1998

FACV No. 24 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 24 OF 1998 (CIVIL)

(ON APPEAL FROM CACV No. 80 OF 1998)

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Between:

KOON TUNG YING

Appellant

AND

LAU CHUP HEI

Respondent

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Court:

Chief Justice Li, Mr Justice Litton PJ, Mr Justice Ching PJ, Mr Justice Bokhary PJ and Sir Daryl Dawson NPJ

Date of Hearing: 9 June 1999

Date of Judgment: 11 June 1999

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J U D G M E N T

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Chief Justice Li :

1. I agree with the judgment of Mr Justice Ching PJ.

Mr Justice Litton PJ :

2. I agree with Mr Justice Ching PJ’s judgment.

Mr Justice Ching PJ :

3. In July, 1992, Chow Fung Lin, the deceased, effected a policy of insurance upon her own life through a friend, Chan Mei Lan, an employeeof the insurers. She nominated her mother, Koon Tung Ying, as the beneficiary. The policy contained a provision under the heading"Beneficiary" which provided that

"You may change the beneficiary. The change requires satisfactory written notice to us. After we record it, the change is effective from the date you signed the notice …." (Emphasis as in original).

Unfortunately, in November, 1993, she was diagnosed as suffering from terminal cancer. As recorded by the Judge at first instance,it was not disputed that she remained alert and able to communicate rationally with others until she fell into a coma. She died inApril, 1994, but before she became comatose she arranged an appointment with Chan Mei Lan at which she signed a document substitutinga male friend, Lau Chup Hei, as the beneficiary in place of her mother. Upon her death both Lau and the mother claimed to be entitledto the insurance monies. Very properly, the insurers acknowledged that they were liable to pay out those monies, paid it in to Courtand interpleaded between the two claimants after which they took no further part in the proceedings. Directions were given as tothe trial of the issues in which the mother was ordered to be the plaintiff with Lau as the defendant. The Judge at first instancegave judgment for Lau. The mother appealed unsuccessfully to the Court of Appeal and now appeals further to us. She was representedby two different counsel in each of the Courts below and her printed case was signed by yet another counsel but before us she representedherself.

4. The first ground of appeal in the printed Case was that

"There was no acceptance by the insurer of the Insured’s request to alter the beneficiary from the Appellant to the Respondentin accordance with the policy terms."

This is a question of fact. It does not appear to have been pleaded or argued in either of the Courts below. That is enough to disposeof the point but in addition there is the evidence of an assistant manager of the insurance company by way of an affirmation leadingto the application for an interpleader. Paragraph 5 of that affirmation states that on receipt of the form instructing the companyto substitute Lau as the beneficiary the company "registered" him as such. The form itself contains the words "Approvedby" followed by a signature over the printed words "Authorised Signature". A letter from the insurers to the motherdated 8 September, 1994, states that according to their records there was a change of beneficiary. "Beneficiary" is definedin the policy as meaning a person named in the records to receive the policy proceeds at the insured’s death. Chan Mei Lan, whoseevidence generally was accepted by the Judge, said that she had gone back to the deceased with a copy of the form saying that everythinghad been settled. This ground of appeal fails.

5. The fourth ground of appeal in the printed Case was that Lau is not entitled to enforce the contract of insurance. This is a misunderstandingof both the facts and the law. Lau has claimed to be entitled to the money but he is not enforcing the contract of insurance. Theinsurers are perfectly willing to pay and the dispute is between two persons each claiming to be entitled to the monies. This litigationis concerned with that dispute alone. In the circumstances of this case there is no question of Lau’s ability to sue the insurers.

6. The second ground of appeal in the printed Case was that

"There was no trust in favour of the Respondent which entitles him to the proceeds."

It is unnecessary to deal with any question as to a trust. The remarks made in relation to the fourth ground apply. The validity ofthe policy has not been attacked and it constitutes a contract between the deceased and the insurers that the insurance monies willbe paid to the nominated beneficiary. The Judge at first instance found that the substitution of Lau as the beneficiary was validlymade. It follows that if a Court were to order the insurers to pay the insurance monies to anyone other than Lau it would be orderingthem to act in breach of their contract with the deceased. It is to be remarked that if the points advanced against Lau in this groundand the fourth ground had any force they would apply equally against the mother. This ground also fails.

7. The third ground advanced in the printed Case was that

"The nomination of the Respondent was testamentary and breached the provisions of the Wills Ordinance."

The provision breached is said to be the lack of a second witness. Reference is then made to a number of authorities including Snell’s Equity (29th Edn.) at page 107. That passage states,

"Wills. Where a trust is intended to take effect only on the death of the owner of the property, and to be revocable until then, it mustbe created by a will or codicil duly executed by the owners in accordance with the Wills Act 1837. This statute applies to all formsof property."

It is sufficient to say that, passing over the question of whether or not this passage is applicable to Hong Kong, the deceased wasnever the owner of the insurance monies.

8. The mother has delivered to the members of this Court an affirmation by which she puts forward other arguments. They include an allegationof fraud against Chan Mei Lan, a lack of insurable interest as between the deceased and Lau (whatever that may mean), misrepresentationby Chan Mei Lan to her employers that Lau was a cousin of the deceased when in fact he was not and lack of verification of the deceased’ssignature on the relevant form. We can see nothing in these arguments any more than we can see any merit in the arguments advancedin her Case.

9. This appeal is dismissed with costs.

Mr Justice Bokhary PJ:

10. This is a sad case. I have no doubt that the appellant is a sincere woman who simply cannot bring herself to believe that her dyingdaughter would substitute the respondent for her as the beneficiary under the daughter’s policy of life insurance. The appellant’sattitude is understandable. By its nature, such a substitution is not an easy thing for anyone to fathom, let alone a mother to accept.But there was a background to the case which could account for the daughter wishing to benefit the respondent. More importantly therewas direct evidence – believed by the trial judge who received all the evidence at first-hand and sifted the same with care – pointingto the substitution having been made.

11. The judge found as a fact that the substitution had been made. And the Court of Appeal supported that finding. It is now before thisCourt as a concurrent finding of fact unaccompanied by any circumstances which enables us to disturb such a finding.

12. A number of counsel have, at various stages of this litigation, applied their minds on the appellant’s behalf to devising legal argumentsas to why, even if the daughter had indeed set about naming a new beneficiary, her effort to do so was ineffective in law. But noneof these arguments stand up to analysis.

13. In such circumstances, I am constrained to agree that, for the reasons given by Mr Justice Ching PJ, this appeal must be dismissedwith costs.

Sir Daryl Dawson NPJ :

14. I agree.

Chief Justice Li :

15. The Court, being unanimous, dismisses the appeal with costs.

 

 

(Andrew Li)

(Henry Litton)

(Charles Ching)

Chief Justice

Permanent Judge

Permanent Judge

 

 

(Kemal Bokhary)

(Sir Daryl Dawson)

Permanent Judge

Non-Permanent Judge

 

Representation:

Appellant, Ms Koon Tung Ying, in person, present

Mr Walker Sham (instructed by Messrs Kwan & Kwan) for the Respondent