Mungprasert Komkay v. Lam Chu Ming and Another

DCCJ 1607/2016

[2018] HKDC 873

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1607 OF 2016

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Before:  His Honour Judge Kent Yee in Court

Date of Hearing:  29 June 2018

Date of Judgment:  29 June 2018

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J U D G M E N T

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1.The plaintiff brought this action to claim beneficial interest in a property known as Flat 15, 18th Floor, Heng Tai House, Fu Heng Estate, 6 Chung Nga Road, Tai Po, New Territories (“the Property”), which is a public housing unit. At present, the 1st defendant, who is the elder son of the plaintiff, and the late husband of the plaintiff, the late Mr Lam Tak, are the registered owners of the Property.

2.According to the plaintiff, the 1st defendant has gone missing since 2008.  He has never responded to these proceedings and has not filed any notice of intention to defend.

3.Pursuant to an order made by a deputy judge dated 3 May 2018, the notice of this trial hearing was given by way of an advertisement posted in a local Chinese newspaper.  The 1st defendant is absent this morning despite the advertisement.

4.The late Mr Lam passed away in 2006.  On 24 July 2017, a Master made an order that Mr Lam Chu-yuen (“CY Lam”), who is the younger son of the plaintiff, be appointed to represent the late Mr Lam in these proceedings.  CY Lam attended this hearing and testified.

5.The plaintiff’s case is unchallenged and to a large extent supported by documentary evidence and the evidence of CY Lam.  In her pleading, her claim is based on resulting trust and constructive trust.  Mr Wong, counsel for the plaintiff, confirms with this court that the plaintiff no longer relies on the plea of resulting trust.  The plaintiff will solely rely on an agreement allegedly made between the parties in respect of the beneficial interest of the Property at the time of the acquisition of the Property.

6.The following is the material evidence of the plaintiff which is accepted by this court.  The plaintiff is a Thai by nationality.  In 1979, she married the late Mr Lam in Hong Kong.  Out of the wedlock, the 1st defendant and CY Lam were born.  Since 1990, she and her family have resided at the Property.

7.In or about 2000, the Property became available for sale to her family at a selling price of HK$198,700.  The plaintiff had all along been working and accumulated some wealth by that time.  She decided to purchase the Property for her family and for her retirement.  Since she could not read and write Chinese or English, for the sake of convenience, she invited the late Mr Lam and the 1st defendant to be the registered owners of the Property so that she could be spared the trouble of executing legal documents relating to the Property.

8.Against this background, she entered into an agreement with the late Mr Lam and the 1st defendant in the following terms:

(1) She would be the sole beneficial owner of the Property and she should be solely responsible for mortgage payments and all other outgoing payments in respect of the Property.

(2) The late Mr Lam and the 1st defendant would only be paper owners of the Property without any beneficial interest therein.  They were only the trustees of the plaintiff, holding the Property on behalf of her.

(3) The late Mr Lam and the 1st defendant should unconditionally transfer their respective legal title to the Property to the plaintiff upon her request.

9.Pursuant to this agreement, the plaintiff purchased the Property and the Property is registered in the name of the late Mr Lam and the 1st defendant as joint tenants accordingly.  Indeed, the plaintiff paid all the mortgage repayments in the sum of around $1,500 per month.  Such payments are evidenced by the deposit slips showing that the plaintiff paid such sums to the bank account of the 1st defendant.  Further, the bankbook of the 1st defendant shows that such sums deposited by the plaintiff were actually withdrawn for the purpose of mortgage repayment and his bank account served no other purposes.

10.In her witness statement, the plaintiff also related to this court the financial difficulties in which the 1st defendant has found himself.  She also tells this court about the loan she extended to the 1st defendant.  I do not think this is relevant.

11.The 1st defendant has never asserted any beneficial interest in the Property.  He has never contested the claim of the plaintiff.  Coupled with the fact that there is cogent evidence of the plaintiff’s payment of the mortgage loan, on the balance of probabilities, I accept the plaintiff’s allegation that there was such an agreement among the parties as to the beneficial interest of the Property. On the issue of the alleged agreement, I make it clear that I do not really have to rely on the evidence of CY Lam, although in his witness statement he asserted that there was such an agreement.  He does not explain how he came to know about such an agreement. I can hardly attach any weight to his assertion.

12.On the evidence accepted by this court, I accept that there was a common intention between the parties as to the beneficial interest of the Property.  The case of a constructive trust is borne out by evidence.  Accordingly, I accept the claim of the plaintiff and shall make the declarations sought by the plaintiff:

(1) I make a declaration to the effect that the plaintiff is the sole beneficial owner having all the equitable interest in respect of the Property, whereas the defendants merely hold the legal title of the Property on trust for the plaintiff.

(2) I make an order that the defendants shall transfer their legal title to the Property to the plaintiff within 28 days unconditionally, failing which the Registrar of the District Court shall sign and/or execute all necessary conveyancing documents on behalf of the defendants to carry out the effects of the order.

(Discussion re costs)

13.Costs should follow the event.  Mr Wong only asks for costs against the 1st defendant since the 2nd defendant, represented by CY Lam, has all along adopted a reasonable approach to this matter and, in a way, assisted the case of the plaintiff.

14.In the premises, I make an order that the 1st defendant should pay the plaintiff her costs of the action including all costs previously reserved.  And I make no costs order in relation to the plaintiff and CY Lam.

15.I also order that the plaintiff’s costs be taxed in accordance with the Legal Aid Regulations.  For the avoidance of doubt, I grant certificate for counsel.

16.Lastly, I thank Mr Wong for his assistance in this matter.

Mr Paul Wong, instructed by Boase, Cohen & Collins, assigned by DLA, for the plaintiff

The 1st defendant was not represented and did not appear

The 2nd defendant appeared in person