Hwang Cheng Tsu Hsu (by her litigation representative Hsu Ann Mei Amy) v Oversea-Chinese Banking Corp Ltd

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 25 May 2010
• Neutral Citation: [2010] SGHC 160
• Plaintiff Counsel: Michael Khoo SC (counsel instructed), Josephine Low with Andrew Ee Chong Nam (Andrew Ee & Co)
• Docket Number: Suit No 610 of 2008
• Date: 25 May 2010
• Hearing Date: 01 February 2010,29 January 2010,11 February 2010,25 January 2010
• Subject Matter: Banking
• Published date: 09 June 2010
• Citation: [2010] SGHC 160
• Defendant Counsel: Adrian Wong Soon Peng, Jansen Chow (Rajah & Tann LLP)
• Court: High Court (Singapore)
• Year: 2010

Lai Siu Chiu J: Introduction

This dispute between the defendant Overseas-Chinese Banking Corporation Limited (“the Bank”) and its customer, Hwang Cheng Tsu Hsu, also known as Nellie Hwang (“the plaintiff”), arose when the Bank refused to allow the plaintiff to close her accounts with the Bank and withdraw her funds therefrom. The plaintiff has since passed away (on 11 May 2010). The plaintiff had visited the Bank at its main branch at No. 65, Chulia Street, OCBC Centre (“the Bank’s premises”) on 13 May 2008, accompanied by her adopted daughter Amy Hsu (“Amy”), to close her fixed deposit accounts but her instructions were not complied with. The plaintiff had been a customer of the Bank since 1989 and its private banking customer since December 2005.

Background

The plaintiff formally adopted Amy in 1967 when she was 48 years of age and when Amy was two years old. The plaintiff retired from teaching after the adoption in order to take care of and bring up Amy. The plaintiff was widowed in 1987 and in 1999 purchased an apartment at No, 11 Tanjong Rhu #02-02, Singapore (“the Waterside”) where she resided until her death. Amy lived with the plaintiff until she moved out after her marriage in 2007.

On or about 5 November 1999, the plaintiff executed a Will in which she provided for several beneficiaries (“the 1999 Will’). She also executed a codicil to her 1999 Will on 22 October 2007 (“the October Codicil”). Dr Teo Sek Khee (“Dr Teo”), a consultant and head of the geriatic unit at Raffles Hospital, was a witness to the execution of the October Codicil. In her third affidavit filed on 18 December 2008, Amy testified that the 1999 Will and the October Codicil were unfair to her and were not in accordance with the plaintiff’s instructions.

The plaintiff executed a power of attorney on 19 August 2004 (“the 2004 Power of Attorney”) appointing her nephew Michael Hwang (“Michael”) and her niece, Frances Hwang (“Frances”) as her attorneys. This power of attorney was purportedly revoked by a Deed of Revocation dated 28 May 2008. A fresh power of attorney was purportedly executed by the plaintiff on 29 May 2008 giving Amy the power to inter alia institute legal proceedings on the plaintiff’s behalf, and to do all acts that were necessary or expedient to manage the plaintiff’s property (“the 2008 Power of Attorney”).

According to Dr Teo, in March 2008 Amy informed him that the plaintiff wanted to change her will and requested Dr Teo to confirm that the plaintiff was competent to do so. Dr Teo testified that he did not so confirm as he was concerned that the discomfort caused by her constipation problem (for which she was warded at Raffles Hospital) might have clouded the plaintiff’s cognitive functions. Nevertheless, the plaintiff executed a new will on 24 March 2008 (“the March 2008 Will”). At trial, it was revealed that the March 2008 Will was changed twice, once in May 2008 and again in August 2008 (“the August 2008 Will”). Amy revealed that she was appointed the sole executrix and was also the sole beneficiary under the August 2008 Will.

The plaintiff’s medical history

The plaintiff had been seeing a doctor at Tan Tock Seng Hospital for memory disorder since the year 2000. The plaintiff then consulted Dr Teo on 26 May 2003 for xerodermatitis (dry skin). Subsequently, Dr Teo attended to the plaintiff several times. Frances would usually bring the plaintiff for her appointments with Dr Teo. In June 2003 Frances initiated discussions about getting a carer or nurse to help the plaintiff with her medication as Dr Teo discovered that the plaintiff sometimes forgot to take her prescriptions.

On or about 7 February 2008, the plaintiff sustained a fall at home. She suffered a hip fracture and was hospitalized at Raffles Hospital where she underwent hip replacement surgery. Ms Chen Ching Ling (‘Ching Ling’), who was the plaintiff’s then relationship manager (“RM”) in the private banking division of the Bank informed Ms Lim Sar Lee, (‘Sar Lee’), the Bank’s (group) regional marketing manager that Amy had telephoned and had told Ching Ling that the plaintiff had sustained a fall and was hospitalised. Amy claimed that the plaintiff had difficulty issuing her own cheque to pay for the hospital bill and asked Ching Ling to help clear the plaintiff’s cheque. In mid-February 2008, Ching Ling and Sar Lee visited the plaintiff in Raffles Hospital. Sar Lee requested the plaintiff to sign her signature on a piece of paper which the plaintiff did. The plaintiff’s signature was consistent with the specimen signature kept in the Bank’s records. No cheques were signed by the plaintiff in Sar Lee’s presence during that hospital visit.

According to Amy, at the hospital, Sar Lee and Ching Ling had suggested that the plaintiff should open a joint account with Amy so that Amy could help the plaintiff to operate the joint account. Amy claimed that she and the plaintiff agreed to this suggestion. Sar Lee’s evidence on the other hand was that neither she nor Ching Ling had made any suggestion to the plaintiff or Amy to open a joint account during that visit. Ching Ling left the employment of the Bank on 30 April 2008 and Chua Eng Leong (‘Eng Leong’) took over her role as the plaintiff’s RM with effect from 1 May 2008.

On or about 16 February 2005, Dr Teo diagnosed the plaintiff as suffering from mild Alzheimer’s dementia. He also gave evidence that the plaintiff could not recall her hip surgery when he attended to her on 4 March 2008. He further testified that Amy was overheard shouting at the plaintiff for about two to three minutes in the hospital ward. In his report dated 17 June 2009, Dr Teo noted that the plaintiff’s dementia had worsened between 2003 and 2007 while under his care and her condition deteriorated further between 2007 and 2008 with problems of her personal grooming and poor nutrition becoming apparent.

The plaintiff was attended to by several doctors aside from Dr Teo from March to May 2008, namely a psychiatrist Dr Lim Hsin Loh (“Dr Lim”); a clinical psychologist Dr Zena Kang (“Dr Kang”); and a specialist in geriatic medicine Dr Sitoh Yih Yiow (“Dr Sitoh”). The plaintiff was examined by Dr Lim on 28 March 2008. In the examination, the plaintiff was found to have deficits in recent memory and orientation. After five minutes, the plaintiff could not recall a name or an address that had been given to her. Neither could she recall three simple items (a clock, a book, a chair) after the same interval. However, the plaintiff’s memory for past events was good as she could tell Dr Lim her life history. The plaintiff told Dr Lim that she owned two properties, one at Mandarin Gardens and the other at the Waterside. Dr Lim believed that the plaintiff’s recent memory deficiency was serious enough to warrant a further medical examination. Hence he referred her to Dr Kang, a clinical psychologist, for assessment of the plaintiff’s mental state and cognitive functioning.

Dr Kang examined the plaintiff on 1 and 3 April 2008. She gave evidence that the two sessions basically involved the administration of one test. When Dr Kang asked the plaintiff how old her daughter was, the plaintiff replied that she was not allowed to reveal a woman’s age. Dr Kang conducted a brief neuropsychological test called the Mini Mental State Exam (‘MMSE’) to assess the plaintiff’s mental status and cognitive function. She testified that the MMSE was not intended for a diagnostic purpose and was not sufficient to determine whether one has dementia but was merely indicative of the level of cognitive impairment. In conducting the MMSE, Dr Kang had asked the plaintiff what was the date, day, month and year on that day. The plaintiff was unable to answer and explained that every day was the same to her. When asked to repeat the three objects (an apple, a clock and a table) immediately after Dr Kang had told the plaintiff what they were, the plaintiff was only able to repeat apple and clock on the first try. The plaintiff made three attempts before she was able to recall all three objects. After an interval of less than five minutes, Dr Kang asked the plaintiff if she could remember the three items mentioned a few minutes earlier; the plaintiff could not.

The plaintiff did better at the Wechsler Adult Intelligence Scale test. This test assesses a person’s thinking and reasoning skills. When asked what was the similarity between an ‘egg’ and a ‘seed’, the plaintiff replied that they are both the ‘beginning of life’. The plaintiff also answered that ‘republic’ and ‘monarchy’ were similar in that both were ‘forms of government’. Dr Kang concluded in her report that the plaintiff’s deficits were mainly in her short term memory which had an impact on her ability to learn new information. There was no impairment in her speech, language and reasoning skills. Dr Kang opined that the plaintiff’s previous diagnosis of dementia was of a mild form.

Dr Sitoh saw the plaintiff between 8 April 2008 and 28 July 2009. On the plaintiff’s first visit, Dr Sitoh made a general assessment of her health. Although the assessment covered both the physical and mental aspects of her health, Dr Sitoh cautioned that his report on that assessment was not intended to reflect the plaintiff’s mental competence in anyway as he was not requested to assess her decision-making capacity at that time. Dr Sitoh’s assessment of 8 April 2008 found that the plaintiff required some physical assistance with bathing and toileting, probably attributable to the hip replacement surgery the plaintiff had undergone earlier. The plaintiff was unable to name the year (2008) and the then Prime Minister. She could not complete the Clock Drawing Test as she was unable to recall the time to be represented.

On 12 May 2008, Dr Lim examined the plaintiff for the second time. As with the first examination, it is not disputed that Dr Lim examined her for the purpose of...