Leung Wai Ip v. Chan Ming Fai
Read the full judgment text of DCCJ 677/2014 on BabelCite. This District Court judgment was delivered on 9 May 2016.
1. The main issues in this case are, at the material time: what the parties’ common intention was; and what relationship was created and maintained between them.
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DCCJ677 of 2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 677 OF 2014 --------------------
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---------------------- JUDGMENT ---------------------- THE ISSUES 1.The main issues in this case are, at the material time: what the parties’ common intention was; and what relationship was created and maintained between them. BACKGROUND 2.By an assignment dated 25 August 1989, the plaintiff purchased a residential property, known as Flat No 6 on the 26th Floor of Block B, Kwong Lam Court, Nos 62 – 66 (No 62) Siu Lek Yuen Road, Shatin, New Territories, Hong Kong (“Property”), under the Home Ownership Scheme form the Hong Kong Housing Authority. The plaintiff financed his purchase of the Property by taking out a mortgage over the Property (“Mortgage”). In about 1991, the plaintiff migrated to Canada; since then, the defendant took possession of the Property. The plaintiff’s case is that, through the defendant’s elder brother, Mr Chan Ming Chung (陳明松, “Chan”), the plaintiff allowed the defendant took possession of the Property; in return, the defendant would pay the remaining Mortgage by monthly installments as rent, plus the management fee, electricity, water and gas charges and the rates relating to the Property[1]. By a letter dated 28 February 2011, the plaintiff requested the occupants of the Property to deliver vacant possession on or before 31 March 2011. Now the plaintiff claims for vacant possession of the Property and mesne profits against the defendant. 3.The defendant provides another version: The plaintiff and Chan were good friends. In about 1989, the plaintiff decided to migrate to Canada with his whole family for good, and the plaintiff intended to sell all his assets in Hong Kong, including the Property. Through the introduction of Chan, in or about 1991, the plaintiff orally promised to sell the Property to the defendant (“Promise”) for a notional consideration of HK$400,000; payable by way of the defendant’s settling the outstanding installments of interest and capital under the Mortgage, and the defendant would be responsible for the payment of premium to the Hong Kong Housing Authority when necessary upon request. Relying on the Promise, the defendant took exclusive possession and occupation of the Property, repaid the Mortgage in full and paid all the rates and utility bills and carried out renovation, maintenance and decoration works to the Property at his own costs. Hence the defendant counterclaims for a declaration and/or relief bases on constructive trust, resulting trust, proprietary estoppel by representation, and/or adverse possession. UNDISPUTED FACTS 4.It is agreed that:
DISPUTED FACT 5.The parties provided 2 conflicting versions. There are different scenarios as to how the defendant took possession of the Property, what the common intention of the parties was at the material time and what relationship had actually been created and maintained between them. 6.To cut a long story short, after considering all the evidence, including the viva voce evidence of the witnesses, I rule out the defendant’s version and accept the plaintiff’s on the balance. The Oral Promises 7.Both the defendant and Chan gave evidence that before the defendant took possession of the Property, they already had experience in buying and selling properties in Hong Kong. The defendant confirmed that he had purchased 2 other properties before; and Chan, had purchased 2 to 3 already. It is totally unconvincing on the way they handled the purchase of the Property with their experience in the conveyancing market. 8.According to the defendant, after he was told the selling price of the Property was HK$400,000, he had never tried to bargain the selling price nor made any proper evaluation about its market price; did not know when the restriction period would be lapsed; did not ask or even think about when the plaintiff would come back to Hong Kong to handle the formal transfer; did not know how that HK$400,000 was calculated; did not know how much he should pay for the monthly installments; did not ask why he should pay that HK$3,500 into the bank monthly; did not know how many monthly installments were outstanding when he took possession; and did not know the actual amount of the premium. 9.Chan was heavily involved in this transaction. Chan’s evidence, like the defendant’s, is totally unconvincing. He knew nothing about the restriction period; did not know whether the plaintiff would come back to transfer the title of the Property and did not know the amount of premium to be paid. 10.According to the defendant, he was required to pay HK$3,500 into the bank monthly, for about 9.5 year[3]. 11.Pursuant to the Promise, both the plaintiff and the defendant undertook that:
12.Accordingly, the defendant was required to make monthly payments for around 10 years and both parties were required to carry out certain actions in an indefinite future. 13.Before the plaintiff purchased the Property, he also had experience in the property market that he and his family had purchased certain industrial units in Hong Kong. It is totally unreasonable that there was not a single document to mention or record anything about the Promise, when all the concerned parties were experienced players in the market; in particular, the Promise involved detailed requirements to be carried out in the indefinite future. 14.According to the defendant, after he fully paid up the Mortgage, the title had yet to be transferred to him; hence he should be the one who wanted to protect his entitlement anxiously; or to press the plaintiff to transfer the title to him urgently. However, he had done nothing. 15.For Chan, despite he had certain communications with the plaintiff throughout the years (e.g. HB[4]114 – 115, 123, 131, 155 and 156); none of them mentioned anything about the Promise. Chan could not produce any record at all. 16.Under cross-examination, Chan explained that as he was a good friend of the plaintiff and he trusted the plaintiff, so there was no record for the Promise. I do not accept such explanation; even if Chan asked the plaintiff to prepare a written proof of the Promise, it could not mean that Chan distrusted the plaintiff in any sense. Alternatively, Chan could have prepared a record or a remainder of the Promise, and asked the plaintiff to confirm it; but again, Chan failed to do so. 17.Furthermore, even I accept Chan and the plaintiff were good friends and trusted each other; the defendant only came to know the plaintiff through Chan’s introduction[5] [HA29, §16(b)(iv)], it still does not made any sense that the defendant did not demand for any proof or protection for his entitlement. 18.All in all, the defendant (and Chan) did not act like a genuine purchaser. 19.I understand the Property was subject to the restriction period and there were conditions on alienation. However, I still find it is wholly unbelievable that there is not a single contemporaneous document to record or remind the parties on any details of the transaction[6], especially when the plaintiff, the defendant and Chan were experienced players in the conveyancing market; there were duties to be carried out in an indefinite future; and the defendant had agreed to pay/ had paid a substantial amount of money. Defendant’s Letter Dated 1 April 2011: 20.The only document allegedly contains some details of the Promise is shown at HB140 – 142. 21.On or about 17 November 2010, one Mr Leung (“Leung”) issued a letter to the occupiers of the Property, to ask such occupiers to move out form the Property. Leung also left his contact number to the occupiers [HB136 – 137]. 22.Leung turned out to be a clerk of Ho & Wong, Solicitors, who kept the title deeds of the Property after the Mortgage was fully discharged [HB126]. Leung then acted for the plaintiff to issue the said letter.[7] Eventually, on or about 1 April 2011, the defendant replied formally through his then solicitors, Chiu, Szeto & Cheng Solicitors. 23.It was mentioned in the letter (“Letter”) that:
24.The content of the Letter does not tally with the defendant’s version. In §2 of the Letter, defendant mentioned that he moved into the Property at about the end of 1989, and paid the mortgage installment since then. In §19 and 20 of the defendant’s witness statement, defendant’s version is “After taking vacant possession of the Property in or about September/ October 1991, my family and I quickly moved in. … Since July 1991 I gave HK$3,500 per month to Chan and Chan would deposit the money into (the plaintiff’s) said mortgage bank account. …” [HA104]. The time that the defendant moved into the Property is totally inconsistent. 25.In the Letter, the defendant requested the plaintiff if he would agree to carry out the formal transfer (陳明輝先生並委託我們向 貴行客戶發出要求: 貴行客戶在7天內回覆是否同意處理有關文件，將該單位正式轉到陳明輝先生的名下 …). This version contradicts with the defendant’s version that the plaintiff, through his father, had agreed to do so in the Promise [HA31 §16(c)(ix)]. 26.I also noted that the Letter is the only document that allegedly supports the defendant’s case; however, it was not initiated by the defendant or Chan. It was only issued in response to Leung’s letter dated 17 November 2010, and two other similar letters dated 28 February 2011 [HB136, 138 and 139]. 27.The defendant claims he had fully repaid the Mortgage, which was discharged on, or about 5 December 2001 [HA26, §11(b)]. The bank record shows that on 6 June 2001, the defendant made his last payment [HB49]. In any event, according to the defendant, he had already fully paid up the Mortgage and become the owner of the Property. However, throughout those 11 years, neither the defendant nor Chan had done anything to urge the plaintiff to transfer the title. The defendant only issued the Letter in response to Leung’s letter. I am of the view that the defendant’s (and Chan’s) action is totally illogical. The Amount Paid 28.The defendant provided 2 versions of the purchase price that he paid. In the Letter, the defendant’s version is that the purchase price was HK$400,000 (without any explanation or elaboration). In the Amended Defence and Counterclaim, the defendant’s version is “… the Plaintiff orally promised to sell the Property to the Defendant for a notional consideration of HK$400,000 … The said notional consideration of HK$400,000 is an estimated round-up figure representing the total amount of the then outstanding instalments of interest and capital to be repaid to the Bank under the Mortgage.” [HA25 and 26, §8 and 9]. 29.Further, the actual amount that had been paid by the defendant is very unclear. The defendant’s evidence directly contradicts with his payment record as shown in the bank passbook. 30.In the Letter, defendant mentioned that he became the “beneficial owner of the Property” (實質業權擁有人), or the “lawful owner” (合法業主), and paid the purchase price of HK$400,000. In his witness statement, he said “Since July 1999 I gave HK$3,500 per month to Chan and Chan would deposit the money into (the plaintiff’s) said mortgage bank account.” [HA104, §20]. In the Defence and Counterclaim, the defendant pleaded that he had paid HK$360,767.92 [BA26, §11(b)]. 31.A copy of the bank passbook of the Mortgage account is exhibited at HB34 – 49. According to it, there were regular monthly payment of HK$3,108.4 between 1 May 1990 and 1 July 1991. I accept such payments were made by the plaintiff, in the total sum of $49,734.4 (HK$3,108.4 x 16 installments = HK$49,734.40)[HB35 and 36]. 32.Under cross-examination, the defendant agreed that starting form 26 July 1991, he paid HK$3,500 into that bank account monthly [HB36]. The defendant’s pleaded figure does not support his Letter that the purchase price was HK$400,000, as there is HK$39,232.08 short[8]. 33.I accept the plaintiff’s submission that the defendant has mistakenly included all the mortgage repayments since 1989 were paid by him, then rounded it off to HK$400,000[9] and conveniently claimed that it was the agreed purchase price. The Defendant’s Evidence in General 34.Under cross-examination, the evidence of the defendant and Chan are markedly different, and there are a lot of discrepancies between their oral evidence and their respective witness statements. When the defendant and Chan were cornered, they always provided convenient explanations like “I trusted the plaintiff”, “we were good friends”, “I admit that I had made a mistake in the witness statement/ oral evidence” etc. 35.To sum up, I find neither the defendant nor Chan is a reliable witness, and I reject the defendant’s case accordingly. The Plaintiff’s Case 36.Even though I rejected the defendant’s version, it does not mean that I have to accept the plaintiff’s version automatically. However, after a careful consideration, on the balance, I accept the plaintiff’s version that through Chan, the plaintiff allowed the defendant to stay at the Property; in return, the defendant agreed to pay the remaining monthly installments of the Mortgage and other expenses of the Property; this was the reason for the plaintiff to allow the defendant to take possession of the Property. 37.It also makes sense that as the plaintiff relied on Chan’s assurance that Chan would personally evict the defendant from the Property when the plaintiff wanted to take it back,[10] and the plaintiff only agreed the defendant to stay at the Property temporarily for an indefinite period; so all the parties did not make any record concerning this arrangement. 38.Only one minor matter I would like to comment on the evidence of the plaintiff and Mr Leung Wai Kin (梁偉健, “PW2”). 39.PW2 is the younger brother of the plaintiff. According to the plaintiff, it was PW2 who asked Leung to prepare the letter shown as HB136. During that time, the plaintiff was in Canada, so it was PW2 to instruct the solicitors to issue that letter. 40.PW2’s oral evidence is that he did not instruct Leung to issue the letter and it was the plaintiff who asked Leung to go to the Property to see if the defendant had moved out. The plaintiff then instructed Leung to issue that letter. PW2 came to know about that letter only at a very late stage. 41.It is not disputed that the defendant had received the letter and Leung was a clerk to the plaintiff’s then solicitors. I do not consider such minor discrepancy will affect my assessment on the credibility of the evidence of the plaintiff and PW2. 42.On the whole, I accept the plaintiff’s version on the balance. THE DEFENDANT’S LEGAL ARGUMENTS 43.In the Amended Defence and Counterclaim [HB24 – 38], the defendant raised a number of legal arguments: that the plaintiff holds the Property on constructive trust for the benefit of the defendant solely; the plaintiff holds the Property on resulting trust for the defendant; it is inequitable for the plaintiff to go back on his unequivocal representation that the plaintiff would convey the Property to the defendant for a notional consideration of HK$400,000; or the defendant has dispossessed the plaintiff as paper title owner and has possessed the Property continuously for over 12 years, hence the plaintiff’s claim is now time barred and his rights had been extinguished, and the defendant has gained a possessory title adversely. 44.When one considers the defendant’s legal arguments carefully, one must find that they are either self-conflicting or self-defeating. I conclude that the defendant is just taking an opportunistic approach and tries to gain advantage whenever possible, without considering the internal conflicts of his arguments as a whole. 45.No matter how fancy the defendant’s arguments are, they must be supported by the particular factual matrix of this case. 46.I have already ruled that the plaintiff merely allowed the defendant to stay at the Property temporarily for an indefinite period; in return, the defendant agreed to pay the monthly installments of the Mortgage plus other expenses of the Property. In this regard, the defendant’s legal arguments on constructive trust, resulting trust and proprietary estoppel can never takeoff. 47.Alternatively, the defendant argues that the permission granted by the plaintiff to the defendant, be it named as lease, tenancy or license, is illegal and void under sections 17B and 27A[11] of the Housing Ordinance. I find this argument is a red herring, a non-issue. The parties are not arguing if the permission should be enforced or not. The main issue is, at the material time, what the parties’ intentions were and what relationship had been created and maintained. It is beyond the scope of this case to consider if the permission is void or unenforceable, or if any party had committed any criminal act. 48.I will only spend some time on the defendant’s argument on adverse possession. Adverse Possession 49.In the defendant’s Amended Defence and Counterclaim, the defendant claimed that he has wrongfully trespassed upon the Property since about July 1991 [HA33, §16 (h)]. 50.In Birkenhead Properties and Investments Ltd v Lam Kai-man & Another, HCMP1588/2012 (unrep., 12 January 2016), To J conveniently summarized the applicable legal principles at §7 – 13, in particular:
51.Applying these principles, I rule against the defendant’s argument in adverse possession. 52.I have ruled that the plaintiff allowed the defendant to stay at the Property; in return, the defendant would pay the monthly installments of the Mortgage and other expenses of the Property. The defendant simply failed to prove that he had the intention to possess or animus possidendi, and hence his argument for the adverse possession must fail. 53.The defendant precedes his argument on adverse possession in two alternative cases. As the writ was dated 24 February 2014, the defendant claims that: (1) the defendant has since 1991 been in exclusive possession and occupation of the Property, so the plaintiff was time-barred from seeking possession of it; alternatively (2) the defendant stopped paying the monthly installment since 6 June 2001, the plaintiff’s right of action for possession against the defendant is, again, time-barred. 54.Both of the defendant’s arguments are bound to fail. For case 1, my finding is that the defendant took possession of the Property with the plaintiff’s permission. For case 2, the defendant has never pleaded, nor provided any evidence, that his intention had ever changed since 6 June 2001. It follows that it is the defendant’s pleaded case that his intention remained the same all over the period, since 1991. In this regard, the defendant still fails to prove that he had the required intention to process the Property adversely. 55.The defendant simply cannot rely on a non-pleaded case to advance his argument. 56.Further, the plaintiff admitted in or about 2004, when he returned to Hong Kong from Canada, he asked Chan to tell the defendant to leave the Property since he wanted it back for his use [HA14, §3(7)]; as such revocation happened in 2004, there could not be any adverse possession for a continuous period of 12 years. 57.I rule the defendant’s argument on adverse possession fails. MESNE PROFIT 58.Mr Chong, counsel for the defendant, agrees that if the court rules liability in the plaintiff’s favor, he will concede to the quantum claimed by the plaintiff. 59.The plaintiff relies on the approach adopted by Chow J in 車漢泉對車瑞玲, HCA 2258/2006 (unrep, 5 July 2013) that the annual ratable value can be used to calculate the mesne profit (see in particular §36). The plaintiff also limits the claim for mesne profit from 19 June 2013 up to the trial [HB145], which amounts to HK$193,460[18]. I will make such order. CONCLUSION 60.I hereby order that judgment be entered for the plaintiff and the defendant’s counterclaim be dismissed that:
61.I thank for both counsels’ assistance.
[1] Words to the effect that “我細佬同你供樓當係交租畀你” [2] Pursuant to section 17B of the Housing Ordinance, Cap 283, “Void alienations, etc. … the purported mortgage, other charge, assignment or other alienation, together with any agreement so to mortgage, charge, assign or otherwise alienate, shall be void”. [3]The notional consideration was around HK$400,000, but the exact amount was not clear. If the defendant pays HK$3,500 monthly; a simple calculation shows that it will take about 114 installments, or around 9.5 years, to repay that HK$400,000 (HK$400,000/ HK$3,500 = 114.28 installments). [4] HA = Hearing Bundle A; HB = Hearing Bundle B. [5] The defendant met the plaintiff only twice before the negotiation regarding the sale and purchase of the Property [HA39 – 40, §1.1 – 1.7] [6] In fact, the defendant produced merely one letter concerning the terms of the alleged Premise at HB140 – 142. I will deal with it later. [7] There was a minor factual dispute on how Leung was instructed. I will deal with it later. [8] HK$400,000 – HK$360,767.92 = HK$39,232.08. [9] The exact figure is HK$410,502.32, namely HK$49,734.40 (by the plaintiff) plus HK$360,767.92 (by the defendant). [10] Chan mentioned to the plaintiff in words of such effect: “有咩事我 (Chan) 搞掂，我一力擔承，趕阿輝 (the defendant) 走” [HA13, §3(4)]. [11] Pursuant to 27A of the Housing Ordinance: Where (a) a person whether as lender, borrower or otherwise purports to create a mortgage of or otherwise charge land or to assign or otherwise alienate land or to enter into an agreement which relates to land; and (b) the purported mortgage or other charge or the purported assignment or other alienation or the purported agreement is void by virtue of section 17B, the person commits an offence is liable to a fine of $500000 and to imprisonment of 1 year. [12] (1979) 38 P and CR 452 [13] (1979) 38 P and CR 452 [14] [1990] 1 Ch 623 [15] [1990] 1 Ch 623 [16] [1990] 1 Ch 623 [17] (1979) 38 P and CR 452 at 476 [18] HK$5,690 x 34 months = HK$193,460. |
Cases cited in this judgment
Further hearings and rulings under DCCJ 677/2014