Suen Shu Tai v. Tam Fung Tai
Read the full judgment text of FACV 9/2015 on BabelCite. This Court of Final Appeal judgment was delivered on 5 November 2015 before Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Fok PJ and Lord Millett NPJ.
Property law – resulting trust – presumption of advancement – transfer of properties from mother to daughter – concurrent findings of fact – appeal – whether Court of Final Appeal will disturb concurrent findings of fact – assignment of properties in 1999 allegedly to defeat husband's threatened claims – whether assignments represented a gift – whether resulting trust properly pleaded – whether estoppel by deed available – whether Chinese customary law argument should be considered – whether clean hands doctrine applies – appeal held wholly without merit – the Court of Final Appeal does not, save in rare and exceptional cases, review concurrent findings of fact – the Recorder's acceptance of the Plaintiff's version, that the 1999 transfers were a device to prevent Tam Yuk Lam from reclaiming the properties for his concubine, was upheld by the Court of Appeal – the Plaintiff and Defendant had four children; the Plaintiff had three sons – the Defendant had been on Comprehensive Social Security Assistance since July 1984 – the Properties consisted of a shop in Che Cheung Building and a flat in Ha Heung Road, both in Kowloon – the Plaintiff continued to live in the flat and pay its outgoings after the transfers – the Defendant sold the flat in August 2010 for HK$2,988,000, with proceeds held by the firm of Messrs George YC Mok and Co as stakeholders – the Recorder made detailed credibility findings, finding the Plaintiff credible and the Defendant evasive – the resulting trust was sufficiently pleaded in the Statement of Claim – the Chinese customary law argument was raised for the first time on final appeal and was immaterial since both parties regarded Tam's threat as genuine – estoppel by deed could not apply because both parties accepted the stated consideration was never paid and the Defendant's own case was that the transfers were a gift – the clean hands argument was raised for the first time and was not entertained – the Court reserved detailed consideration of the modern scope of the presumption of advancement for another occasion – appeal dismissed with costs to be taxed in accordance with the Legal Aid Regulations – Mr George Chu instructed by Joseph Li & Co appeared for the Defendant/Appellant – Ms Josephine Tjia instructed by Tsangs appeared for the Plaintiff/Respondent.
Legal issues: Whether concurrent findings of fact should be disturbed on final appeal · Whether the resulting trust was properly pleaded · Whether Chinese customary law undermined the Plaintiff's claim · Whether estoppel by deed bound the Plaintiff to the recitals in the Assignments · Whether the clean hands doctrine barred the Plaintiff's claim
Outcome: Appeal dismissed with costs; the Defendant's appeal was held to be wholly without merit and concurrent findings of fact were not disturbed.
Cited by 7 cases · Cites 4 cases
|
FACV No 9 of 2015 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FINAL APPEAL NO 9 OF 2015 (CIVIL) (ON APPEAL FROM CACV NO. 187 of 2013) _____________________
_____________________
_____________________________ REASONS FOR JUDGMENT _____________________________ Chief Justice Ma (giving the Reasons of the Court): 1.The present appeal was brought by the Defendant against the Judgment of the Court of Appeal[1] dismissing her appeal from the First Instance judgment of Recorder Horace Wong SC.[2] Leave to appeal to this Court was granted by the Court of Appeal[3] under the former s 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance Cap 484 on the basis that the subject matter of the appeal concerned property over the value of $1 million; in other words, an appeal under the previous “as of right” provision in that Ordinance.[4] 2.After hearing counsel for the Defendant appellant,[5] we dismissed the appeal with costs,[6] stating that the Reasons for Judgment would be handed down in due course. The appeal was wholly without merit. 3.The Plaintiff respondent is the mother of the Defendant, her daughter. At the time of the trial before the learned Recorder, she was aged 85. The case concerned the transfer of some properties by the Plaintiff to the Defendant in 1999. As we shall presently see, the determination of the factual disputes between the parties by the Recorder on the evidence before him was critical to the outcome of the litigation. The Court of Appeal upheld the trial judge’s findings of fact, so that there were concurrent findings of fact before this Court. As the parties were reminded, the Court does not, save in rare and exceptional cases, review concurrent findings of fact. It is no part of the Court of Final Appeal’s function to debate “yet again the factual findings made at first instance and previously reviewed by the Court of Appeal” in the hope on the part of an appellant of finally obtaining favourable findings.[7] This was decisive in our dismissing the Defendant’s appeal. We shall briefly explain why the Court arrived at this conclusion. 4.The dispute between the parties concerned two properties (“the properties”): a shop located in Che Cheung Building in Kowloon (“the shop”) and a flat located in Ha Heung Road, also in Kowloon (“the flat”). These properties were at one stage owned by the Plaintiff’s husband, Tam Yuk Lam (“Tam”), together with another property in Manning Theatre Building (“the Manning Theatre Building property”). The Plaintiff and Tam had four children (three sons and their daughter, the Defendant), all born in the Mainland where the Plaintiff once lived. In 1982, the Plaintiff and the Defendant settled in Hong Kong, the three sons remaining in the Mainland. At the time, Tam was already living in Hong Kong and had taken a concubine, a Madam Lou Nui[8], with whom he had three children. 5.After the flat was purchased by Tam in 1986, the Plaintiff began to live there, with Tam staying there every other day. The Defendant, who by this time had married, did not live in the flat. She married in 1984 and had three children of her own. In 1995, she divorced her husband. From July 1984, she began to live on Comprehensive Social Security Assistance (“CSSA”). 6.In August 1997, having suffered a stroke in 1994, Tam divided his properties between the Plaintiff and Lou Nui. The shop and the flat were transferred to the Plaintiff while the Manning Theatre Building property was transferred to Lou Nui. 7.In relation to the transfer of the properties to the Defendant in 1999, according to land search records, the shop was assigned by the Plaintiff to the Defendant on 22 September 1999 and the flat was assigned to the Defendant on 5 October 1999. The Assignments were prepared by an executive in the offices of Messrs George YC Mok and Co. (“GYCM”). The parties advanced at trial different versions of the circumstances surrounding these Assignments :-
8.The Assignments of the properties showed on their face a purchase by the Defendant of the Plaintiff’s interest in them. The consideration for the shop was said to be $300,000, the consideration for the flat, $500,000. The Plaintiff also signed receipts for these amounts. It was common ground that the Plaintiff did not receive these (or any) amounts from the Defendant, evidently so because on both sides’ cases, the Assignments did not intend and were never intended to reflect the true arrangements between them. This is a point of some importance as it effectively disposed of one of the Defendant’s arguments sought to be raised in this appeal, namely, that the Plaintiff was estopped by deed from denying the contents of the two Assignments. 9.Subsequent to these transfers, the Plaintiff continued to live in the flat, paying the various expenses associated with the flat such as rates and telephone bills. She also (as the Recorder eventually found) paid the Defendant the rental income of the two properties less $1,000 for herself. From 2003 to 2009, the Plaintiff lived intermittently in the flat, dividing her time between Hong Kong and the Mainland (where her sons lived). She lived in Huidong from June 2007 to June 2009. When she returned to Hong Kong, she found that the locks to the door in the flat had been changed. In August 2010, the Defendant sold the flat to a third party, Land Crown International Limited, for $2,988,000, with an additional $1,328,000 as “decoration and removal expenses”. 10.The trial judge heard evidence[10] from 4 witnesses: the Plaintiff, the Defendant, and a conveyancing executive and solicitor from GYCM who had handled the assignment of the properties. In a 48-page judgment, the Recorder analyzed the evidence, assessed the credibility of the witnesses and concluded that the Plaintiff’s intention in making the Assignments was merely to avoid Tam’s threatened actions (accepting the Plaintiff’s version) but not to make a gift of the properties to the Defendant (rejecting the Defendant’s version). The legal effect was that the properties were held by the Defendant on resulting trust for the Plaintiff. Apart from making declarations to this effect, the Recorder also ordered the Defendant to provide an account of her dealings with the properties and that there should be the liberty to apply in relation to both the declarations and the order for an account.[11] 11.In his judgment, Recorder Wong SC gave detailed reasons for his conclusions. It is not necessary to go through them in detail; they are amply set out in the written judgment. He found the Plaintiff to be a credible witness but doubted the credibility of the Defendant and found her to be evasive. Wewould only by way of example highlight some of the reasoning:-
12.The Court of Appeal could not fault the Recorder’s analysis of the evidence. This is conveniently summarized in one paragraph in Cheung JA’s judgment (with whom the other Judges agreed) :-
13.There being concurrent findings of fact along these lines, the Judge and the Court of Appeal were fully entitled to reach the legal conclusion they did, namely, that despite the Assignments, the Defendant held the properties on resulting trust for the Plaintiff. 14.Despite recognizing this difficulty, Mr Chu sought first to maintain before us that the analysis and assessment of the evidence by the Recorder was faulty and that his erroneous approach had been perpetuated by the Court of Appeal. This was hopeless and amounted to no more than a third attempt by the Defendant to seek to persuade a court to try the case again. 15.Various attempts were made in the Appellant’s written Case and in the oral submissions before us to raise legal issues to undermine the decisions of the lower courts. They were all, in ourview, equally hopeless (with some points all but abandoned when Mr Chu made his submissions before us). Weneed only deal with them briefly:-
16.Finally, weshould just briefly mention the presumption of advancement. Both the Judge and the Court of Appeal discussed this doctrine at some length before coming to the view that in any event the presumption, even if it applied, was displaced by the evidence before the court. Interesting though the question may be, in particular whether a modern view should be taken of the presumption to include transfers from mother to daughter (this presumption, if it applies, is of course usually relevant only for evidential purposes), a detailed consideration was and is simply not called for in the present case. We would reserve a detailed consideration of this doctrine for another occasion. 17.For these reasons, the appeal was dismissed.
Mr George Chu, instructed by Joseph Li & Co, assigned by Director of Legal Aid, for the Defendant / Appellant Ms Josephine Tjia, instructed by Tsangs, assigned by Director of Legal Aid, for the Plaintiff / Respondent [1] Dated 4 July 2014 (Cheung & Chu JJA and Mimmie Chan J). [2] Dated 15 August 2013. [3] On 29 December 2014. [4] Section 22(1)(a) of the Ordinance was repealed by s 8(1) of the Administration of Justice (Miscellaneous Provisions) Ordinance 2014. Although the repeal of the provision took effect as from 24 December 2014, it only applied to final judgments of the Court of Appeal after that date: see s 7 of the 2014 Ordinance. [5] Mr George Chu. Ms Josephine Tjia appeared for the Plaintiff respondent. Though not called upon to make oral submissions, we have taken into account the Respondent’s Case drafted by her. [6] As both parties were legally aided, we also made an order that the costs of the plaintiff and the defendant should be taxed in accordance with the Legal Aid Regulations. [7] See Sky Heart Ltd v Lee Hysan Co Ltd (1997-98) 1 HKCFAR 318, 333I-338D; Chinachem Charitable Foundation Ltd v Chan Chun Chuen (2011) 14 HKCFAR 798, at para 57. [8] Lou Nui has been referred to throughout the proceedingsas a concubine. If this was indeed her status, this must have been attained before 7 October 1971 : see ss 2 and 5(1) of the Marriage Reform Ordinance Cap 178. [9] The evidence showed that the shop was leased out. The Plaintiff lived in only a part of the flat. The other parts were rented out. [10] In a trial lasting 4 days. [11] The reason was that, as we have seen, subsequent to the Assignments, in August 2010 the Defendant sold the flat to a third party. The proceeds of sale are held by GYCM as stakeholders pending the outcome of the present case. [12] Adopting the figure of $8,000 (which Defendant said she was receiving by way of CSSA every month) and taking into account the figure of $4,316,000 alone (the consideration for the sale of the flat in 2010), this purchase price represented about 45 years in CSSA payments. [13] The Statement of Claim pleads a constructive trust but it is clear that what was meant was a resulting trust. [14] Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663, at para 21 referring to Wing Hang Bank Ltd v Crystal Jet International Limited [2005] 2 HKLRD 795. [15] The principles of Flywin Co Ltd v Strong and Associates Ltd (2002) 5 HKCFAR 356 therefore apply. [16] See para 7(2) above. [17] See, among many authorities, Booth v Turle (1873) LR 16 Eq 182. |
Cases cited in this judgment
Other judgments that cite this case