Chau Suk Wah, The Personal Representative of the Estate of Chan Jiu Fung, Deceased v. Chau Hau Tung
Read the full judgment text of HCA 151/2014 on BabelCite. This High Court CFI judgment was delivered on 31 July 2018.
1. Chau Yu (“ Father ”) passed away on 9 June 1997 at the age of 71. His widow Chan Jiu Fung passed away on 3 October 2015 at the age of 87. They both died intestate. Father and Chan Jiu Fung (collectively, “ Parents ”) had 5 children, 1 son Hau Tung (“ Son ”), and 4 daughters Shauk Yin (“ Anna ”), Shuk Man (“ Vicky ”), Suk Wah (“ Isabelle ”) and Shuk Ying (“ Angel ”) (collectively, “ Daughters ”). I shall refer to the Son and Daughters collectively as “ Siblings ”. The Son has a son Sheung Yee
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HCA 151/2014 [2018] HKCFI 1749 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE HIGH COURT ACTION NO 151 OF 2014 ________________________
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________________________ JUDGMENT ________________________ I. INTRODUCTION 1.Chau Yu (“Father”) passed away on 9 June 1997 at the age of 71. His widow Chan Jiu Fung passed away on 3 October 2015 at the age of 87. They both died intestate. Father and Chan Jiu Fung (collectively, “Parents”) had 5 children, 1 son Hau Tung (“Son”), and 4 daughters Shauk Yin (“Anna”), Shuk Man (“Vicky”), Suk Wah (“Isabelle”) and Shuk Ying (“Angel”) (collectively, “Daughters”). I shall refer to the Son and Daughters collectively as “Siblings”. The Son has a son Sheung Yee (“Grandson”) and a daughter. 2.Chan Jiu Fung suffered from mental incapacity within the meaning of the Mental Health Ordinance Cap 136 (“MHO”) since sometime between December 2006 and January 2008. On 14 October 2011, Isabelle was appointed as the committee to manage the estate of Chan Jiu Fung (“Committee”) in HCMH60/2011 (“MH Order”). On 24 January 2014, Chan Jiu Fung with Isabelle as her next friend commenced the present action against the Son. On 14 October 2015, letters of administration of the estate of Chan Jiu Fung, deceased (“Mother’s Estate”) were granted in favour of Isabelle as administratrix (“Mother’s LA”). On 22 January 2016, I ordered the present action to be carried on between Isabelle as personal representative of the Mother’s Estate as plaintiff and the Son as defendant. 3.In this Judgment, “Mother” refers to Chan Jiu Fung, Chan Jiu Fung as a mentally incapacitated person within the meaning of the MHO and/or the Mother’s Estate, whichever is appropriate, and “Plaintiff” refers to the plaintiff in the present action being the Mother by her next friend Isabelle and/or the Mother’s Estate by Isabelle as its personal representative, whichever is appropriate. In this Judgment, “B/xx” refer to the pagination in trial bundle B. 4.The following background information is extracted from the documentary evidence before this court:
5.The following are facts agreed or not disputed by the parties:
II. PARTIES’ RESPECTIVE CASE (a) Plaintiff’s case 6.The Plaintiff averred the Father’s medical/funeral expenses were paid by the Father’s Estate, and between August 2000 and September 2001 the Mother and Siblings agreed for each Sibling to be given $2,000,000.00 (“Per Capita Share”). There was no family meeting on 5 September 2001 (“5/9/01 Meeting”). In the morning of 6 September 2001, the Mother, Vicky, Anna and the Son attended the Bank Visit at the Branch. The Plaintiff claimed the Son requested Vicky and Anna not to raise any query during the Bank Visit and wait for the family meeting at the Home that evening (“6/9/01 Meeting”), and they acceded to such request (“Silence Request”). At the Branch, the Mother signed bank forms at the Office to effect the Transfers in the presence of the Son and Manager whilst Vicky and Anna waited outside. The Plaintiff alleged Vicky and Anna were not aware of the contents of such bank forms, and were not told of the amount of the Son Transfer. 7.The Plaintiff claimed that at the 6/9/01 Meeting the Son requested M&Ds to confirm the Grandson’s entitlement to a Per Capita Share ($2,000,000.00) out of the Sole Account Monies, but left abruptly when such request was refused. At such meeting, no one raised or approved giving extra sum of $5,087,012.04 (“Son Extra Sum”) or otherwise to the Son. So for the Son Transfer, $2,000,000.00 was gift to the Son, and $7,687,012.04 (“Claimed Sum”)[9] was entrusted by the Mother to the Son for safe-keeping and capital growth. It was said the Son refused to return the Claimed Sum or any part thereof to the Mother, and even alleged it was a voluntary gift by the Mother to him. 8.In the Plaintiff’s Answer to Interrogatories filed on 9 February 2015 (“Answer”), Isabelle claimed the purpose/circumstances of the Mother entrusting the Claimed Sum to the Son could not be specifically ascertained due to the Mother’s then mental incapacity, but at the time of the Son Transfer there was discussion of how the HSBC Deposits should be shared amongst the Siblings with consensus that each was to receive a Per Capita Share, and since the Claimed Sum was not a gift or loan to the Son, the reasonable inference was that the Mother entrusted it to the Son being a businessman for safe-keeping and capital growth. 9.On the 1st day of the trial, Mr Yau (and Mr Poon with him), counsel for the Plaintiff, conceded the Plaintiff would only seek recovery of $7,087,012.04 being the Claimed Sum less $600,000.00 (see footnote 7 above and paragraph below, “Reduced Sum”). The Plaintiff sought the following reliefs: (a) a declaration that the Son held the Reduced Sum and interest accrued thereon upon trust for the Mother absolutely, (b) an enquiry into what became of the Reduced Sum, (c) an account of what was due to the Mother, and (d) an order that the Son do pay to the Mother the amount(s) found due on taking the account. (b) Son’s case 10.The Son claimed the Mother and Siblings attended the 5/9/01 Meeting to discuss how the Sole Account Monies should be distributed with (a) the Mother agreeing for each of the Siblings and Grandson to receive a Per Capita Share and for the Son to receive the Son Extra Sum out of the Mother’s love/affection for him and in recognition of his having expended “a considerable amount to settle [the Father’s] medical expenses and funeral expenses, etc”, and (b) Angel agreeing to repay $600,000.00 (out of her Per Capita Share) to the Son. 11.The Son claimed when he, the Mother, Vicky and Anna attended the Bank Visit on 6 September 2001, they were greeted/served by the Manager. Pursuant to the Mother’s instructions, the Manager prepared 4 bank forms for the Transfers,[10] and the Mother signed them in the presence of the other three, but neither Vicky nor Anna raised objection/ query. The Son Transfer comprised gifts of $2,000,000.00 (Per Capita Share) and $5,087,012.04 (Son Extra Sum) to the Son, repayment of $600,000.00 by Angel, and gift of $2,000,000.00 (Per Capita Share) to the Grandson. 12.It was said that after the Transfers the Manager informed the Mother of the Sole Account Balance, and she agreed for the Son and Vicky to open a joint account to hold the same on trust for her. Pursuant to instructions by the Mother, Son and Vicky, the Manager prepared further bank forms for the purposes set out in paragraph 5(k)(i)-(iii) above, and gave the relevant forms to the Mother who signed them in the presence of the other three, but neither Vicky nor Anna raised objection/query. 13.The Son denied any part of the Claimed/Reduced Sum was held on trust for the Mother, and relied on the presumption of advancement.[11] But if he received the Son Transfer or Claimed/Reduced Sum not as gift from the Mother (which he denied), the Son claimed the Mother’s right to recover the same or to claim any relief as to recovery of the same was barred by laches.[12] (c) Issues 14.There were 3 issues. The first issue was whether the Reduced Sum transferred from the Sole Account to the Son was a gift by the Mother to the Grandson ($2,000,000.00) and to the Son ($5,087,012.04) as the Son alleged, or whether it was held by the Son on express or resulting trust for the Mother as the Plaintiff alleged. No material facts as to the circumstances in which the Reduced Sum was expressly entrusted to the Son for safe-keeping and capital growth were pleaded, but the Answer showed the Plaintiff’s primary case on express trust was based on inference to be drawn from the available circumstantial facts/evidence rather than actual expression of intention/trust by the Mother. The second issue was which presumption (resulting trust or advancement) should apply. The third issue was whether the Plaintiff was guilty of laches such that it would be inequitable for her to enforce her claim. III. PARENTS 15.The Father was a successful businessman in inter alia construction, stockbroking and investment. I accept (1) he was frugal and hardworking and so was able to amass a sizable estate when he passed away, (2) he had good relationship with the Mother, and (3) he looked after and provided for the Mother and family. But I find on balance even though the Father cared for the Daughters, he was a man of traditional values who preferred son to daughter, and who had more love/affection for the Son as his eldest and only son:[13]
In my view, the Son was a dutiful son in the sense of letting the Parents (and later the Mother) and Isabelle continue to live at the Home as before and free of charge notwithstanding the Father’s gift of such property to him (see paragraph 22 below), and he made or arranged to make upfront payments for the Father’s medical expenses[16] and funeral expenses,[17] administration expenses for the Father’s Estate including estate duty, additional duty and interest,[18] and legal fees for HCA2082/2004 against LHK.[19] Indeed, the Father’s inter vivos gift of the Home reflected his trust in the Son to look after the Parents and to let them (later the Mother after he had gone) live there as before. 16.The Mother was a traditional housewife who devoted her time and energy in providing a caring home for the Father and Siblings, and was in a state of melancholy after the Father died. Vicky kept her company, as did Anna when she was in Hong Kong. The Mother also visited Anna in the United States, and Anna took her to visit relatives there. I find the Mother eventually overcame her grief for the Father. As Isabelle said, the Mother enjoyed “多姿多彩” life by going/eating out with family members, going on leisure trips, having facial treatment and dressing well. 17.Despite the disharmony between the Daughters (especially Isabelle and Vicky) and Son, I find the Son enjoyed good relationship with the Mother. As seen in paragraph 15 above and paragraph 22 below, he let the Mother and Isabelle continue to live at the Home free of charge even though the Father gifted it to him. He helped the Mother open the Sole Account in her own name. I find in paragraph 46 below that he was not an authorised signatory of such account, but even if he were such (which I disagree), he left the HSBC Deposits untouched during 1997-2001 when he had not been reimbursed for payment of the Father’s not insignificant medical/funeral expenses (see Part VIII below). His conduct (if any) vis-à-vis the Sole Account was entirely transparent as the bank statements were sent to the Home (and Isabelle reviewed such bank statements to update the Mother about status of the Sole Account Monies). 18.I also accept in 2002-2004 the Son invited the Mother to attend his Kowloon Bay office on weekdays for minor “work” to “help” him in his business, and to return home after having lunch with the Son and/or his staff. This was the Son’s efforts to keep the Mother occupied so she would not idle/languish at home, and he also gave her nominal “wages” to let her have a sense of worth. In my view, this was a thoughtful act on the Son’s part, and certainly not conduct of a callous, uncaring and non-filial son as suggested by the Daughters. The Mother ceased to “work” for the Son in/about early 2004. 19.As seen in findings below, I find on balance that even though the Mother cared for the Daughters, the Mother as a traditional wife and mother would defer to the Father’s views, and she must have known the Father being a man of traditional values favoured the Son. IV. SIBLINGS 20.Anna, the eldest Daughter, emigrated to the United States in 1992 but visited the Parents (later the Mother) for 1-2 months a year during Chinese New Year and the summer. When she was in the United States she would have long distance chats with the Mother about 5-6 times/month and with the other Daughters also about 5-6 times/month. As she did not live in Hong Kong, Anna was not too involved in the Mother’s financial matters. But she was responsible for arranging the Father’s funeral. Anna returned to Hong Kong for good in 2008. 21.Vicky, the 2nd daughter, moved out of the Home when she married in 1979. She no longer worked after she had children of her own, and she often visited the Parents (later the Mother) to spend time with them. Vicky and Isabelle played an active role in family dealings before and after 6 September 2001. Vicky was a co-holder of the Joint Account, and the bank statements/correspondence for such account were sent not to the Son but to her home (“Vicky’s Home”). 22.Isabelle, the 3rd Daughter, was a working woman, and lived with the Parents (later with the Mother) at the Home. Although the Father made an inter vivos gift of the Home to the Son, the Mother and Isabelle continued to live there paying only utility charges, but not any rent, rates, government rent, management fees and/or repair charges. Isabelle paid the Mother’s living expenses (“Living Expenses”).[20] Isabelle sighted the Sole Account’s bank statements/correspondence sent to the Home. She did not attend the Bank Visit. Since 2004 Isabelle was the main person who gave instructions to various solicitors’ firms who acted for the Mother and/or Daughters to follow up on progress of HCA2082/2004 against LHK and administration of the Father’s Estate. She was appointed as the Committee in 2011, the Mother’s next friend in the present action in 2014 and the administratrix of the Mother’s Estate in 2015. She was also the main witness for the Plaintiff. 23.Angel, the youngest Daughter, attended university in Canada, but essentially lived with the Parents until her marriage in 1993. She knew the Mother’s monies were placed in fixed time deposits, but was not involved in the Mother’s financial matters. She claimed that as the youngest family member she usually had less to say. She did not attend the Bank Visit, claimed she never met or gave instructions to the solicitors who dealt with the Father’s Estate and/or the legal action against LHK, and had not read the solicitors’ correspondence. 24.The Daughters gave evidence as to an alleged family meeting at the Home attended by the Mother and Siblings in June/July 2001 (“6-7/01 Meeting”) and the alleged 6/9/01 Meeting. These alleged family meetings will be discussed in greater detail below, but suffice to state here I do not accept they took place as alleged, and I find the 5/9/01 Meeting and Bank Visit happened as the Son said, which went a long way to undermine the Plaintiff’s case of express or resulting trust. But more of this below. 25.The Son is the eldest Sibling who together with Grandson are the family’s “長子嫡孫”. He was engaged in manufacturing/selling sports goods. Apart from DHS, he had a company called “亞獅龍” in Mainland China, and in the 3rd quarter of 2005 he established a new factory in Nanjing. He also collected antique furniture as a hobby, and had a private museum known as “周園” in Nanjing with an area of “100畝” that housed a collection of antiques, art, and antique furniture. In light of the above and the various upfront payments he had made (see paragraph 15 above), I find that quite apart from the Father’s Estate and HSBC Deposits, the Son was independently well-off. 26.It was an understatement to say the Daughters (particularly Isabelle and Vicky) did not have a harmonious relationship with the Son. Even though the Daughters alleged they trusted the Son (see paragraphs 34 and 134 below), their evidence permeated with dissatisfaction, suspicion and distrust vis-à-vis the Son, and they went out to cast him in a poor light. Isabelle and Vicky claimed although the Son lived near the Home, he only visited occasionally at Chinese New Year and major festivals, but would leave quickly after dinner. Isabelle claimed the Son rarely attended family gatherings/functions, and when he did so he only said what he wanted to say but would not listen to the Daughters’ views. Anna described the Son as “火爆專制”. Indeed, Mr Yau’s written closing submissions described the Son’s general character as being concerned with himself and his own wishes, and oblivious to other people’s feelings, interest or welfare, which was borne out by the Son’s abrupt reaction to the Daughters’ objections at the alleged 6-7/01 and 6/9/01 Meetings, and by the Son’s perception of the Mother’s financial needs. 27.But considering the evidence as a whole, I am unconvinced the Son was the domineering, selfish and difficult creature painted by the Daughters. I have found the Son was the Father’s favoured child, and the Mother as a traditional wife and mother respected the Father’s views, so it was unsurprising that she too favoured the Son. On balance I prefer the Son’s evidence that if he was not on business trips to Mainland China (which were more frequent after he established a new factory in Nanjing in the 3rd quarter of 2005), South-east Asia and/or Europe, he would visit the Mother at the Home (which was just a few blocks from his residence) whenever he was free, especially in the morning when Isabelle was at work. In my view, this was consistent with his arrangements for the Mother to “work” at his office in 2002-2004 (see paragraph 18 above), which put him in regular contact with the Mother. Even though the Daughters had some misunderstanding and suspicion against him over the slow progress of estate duty clearance and/or administration of the Father’s Estate resulting in disharmony and lessened contact, I find on balance the Son remained on good terms and regular contact with the Mother. V. WITNESSES 28.All Siblings gave evidence with the Daughters as witnesses for the Plaintiff, and the Son as the only defence witness. 29.Mr Yau submitted that in evaluating witnesses’ credibility it is necessary to consider the totality of the evidence,[21] and that a lie does not necessarily prove the opposite of the lie even though, depending on the subject matter and its significance in the case, it may indicate a consciousness on the part of the witness that the truth would not have assisted his case, or may amount to evidence that is corroborative of other evidence.[22] Mr Wong (and Mr A Wong with him), counsel for the Son, added that the court should consider the inherent probabilities aided by contemporaneous documents/records that are not disputed or undisputable, circumstantial evidence tending to support one account rather than the other, and overall impression of the character/motivation of the witnesses.[23] I do not detect any material difference between Mr Yau and Mr Wong in the approach to be adopted. Thus, in assessing witnesses’ credibility, I bear in mind not only the demeanour of the witnesses in court, but also the intrinsic value of their evidence upon considering the totality of their evidence against the chronology of events, the available documentary evidence and the inferences based on inherent probabilities and/or undisputed facts.[24] 30.This case fell to be decided essentially on the facts, so questions of credibility/reliability loomed large. The court’s fact-finding task in the present action is not made easy because (a) the relevant key events took place 14-15 years ago, (b) nearly every important fact/event was in dispute, and (c) there were not many contemporaneous documents to assist in the task. In light of (b) above, this court was left with the unenviable task of deciding between two versions of events that were directly inconsistent. Some key aspects of the evidence were diametrically opposite, so they could not be explained on account of passage of time or witnesses’ hazy recollection, and it is sometimes necessary to find witness(es) had either told deliberate lies or deluded themselves into a state of denial of the other side’s case and belief in their own version of events. Also, some aspects of the evidence were incomplete, so it was not easy to make all findings of fact sit together. Where some anomalies still remained, I have made findings on the evidence considered as a whole. 31.Mr Yau submitted (a) it was improbable for the Daughters to concertedly concoct/fabricate the Plaintiff’s case (particularly the 6-7/01 and 6/9/01 Meetings) and to cover up the 5/9/01 Meeting when Anna and Angel were not too involved in the Mother’s monies, and (b) it was not plausible to manipulate Anna and Angel into repeating the same story put forward by Isabelle and Vicky. Mr Wong’s short reply was it did not make an improbable and unreliable story more probable and reliable by repeating it 4 times. 32.In my view, Isabelle and Vicky were the more forceful and dominating personalities among the Daughters, and (despite superficial allegation of trust in the Son) they held deep-seated resentment against the Son whom they saw as a greedy schemer out to cheat the Daughters of their just entitlements to the HSBC Deposits in equal shares with the Son either via inter vivos gift by the Mother or via inheritance under the Mother’s Estate. This was against a background of dissatisfaction over slow progress of estate duty clearance of the Father’s Estate prior to 6 September 2001 and discontent over their modest shares in the “family fortune” amassed by the Father,[25] and they became even more disgruntled when the Son took the lion’s share of the Sole Account Monies which Isabelle perceived as “family fortune” to be distributed to the Siblings (see paragraph 50 below). I have no doubt Isabelle and Vicky masterminded the present action (commenced after the Mother became mentally incapacitated and Isabelle was appointed the Committee even though the Mother allegedly raised complaint was early as in 2002-2003 and kept her wits for more than 5 years after the Transfers) with a view to “claw back” the Claimed/Reduced Sum so that the Daughters might eventually benefit as beneficiaries via the Mother’s Estate or at least prevent the Son and Grandson from enjoying the fruits of what they perceived as the Son’s greed. In my view, they were factual witnesses with a mission designed to bolster such stance and to repel the Son’s assertions. Their evidence was coloured by perfuse dislike towards the Son, and their partiality inevitably detracted from their objectivity and reliability as a whole. There was plainly a degree of reconstruction in their evidence, and Isabelle, who was the Plaintiff’s key witness, had an unhappy tendency of failing to distinguish where she was relying on actual recollection of what happened and where she was reconstructing events from belief and surmise. 33.In my view, the Son made an insightful observation when he said “…… 成件case呢十年嚟就係兩個人喺度搞鬼㗎之嘛, 一個叫做Vicky, 一個叫做Isa, 其餘嗰兩個妹冇嘢㗎, 咁我同我mother講冇用, 唔係佢主導”. In my view, Anna and Angel (perhaps also somewhat peeved if not as resentful as Isabelle and Vicky about the Son getting the lion’s share of the “family fortune”) fell into the category of loyal supporters of Isabelle and Vicky whose lead they were prepared by follow by leaving them to deal with the Son and run the present action. This was reflected by the Daughters’ statement evidence which I find to be largely based on a rehearsed script, but there were occasions under cross-examination when 1 or more of the Daughters forgot the script, used scripted responses inappropriately or had to answer questions on matters outside the script, which led to hopeless conflict, inconsistencies and contradictions that exposed the unreliability of their evidence. 34.Mr Yau next submitted that in considering the Daughters’ trusting attitude, ignorance and/or lack of suspicion as to what happened during the Bank Visit (eg waiting outside the Office when the Mother effected the Transfers inside), and M&Ds’ inactivity thereafter for recovery of the Claimed/Reduced Sum, this court should not judge the reasonableness of the Daughters’ then reactions by reference to what is known now. It was said one would not adopt a suspicious or questioning attitude towards people one trusted (who normally would include family members) “unless [one knows] pretty much the full picture of what that person has been up to”. Mr Yau reminded the Daughters testified that up to the time of the Bank Visit they did not suspect the Son of any wrongdoing, and Anna, Vicky and Isabelle testified the Son all along “managed” the Sole Account for the Mother. 35.The short answer to the above was that the Son did not invite this court to (and this court would not) apply present knowledge retrospectively to make findings of fact as to past events. As Mr Wong submitted, even on the Daughters’ evidence as to their perception of the Son’s general character/attitude (see paragraphs 27 and 32-33 above) and what they knew at the time,[26] it would have been natural/sensible for the Daughters to possess doubt/suspicion and to raise query (rather than to have unquestioning trust in the Son). I find the Daughters’ alleged trust in the Son quite improbable, and the reality was they never had any close or trusting relationship. I also disagree the Daughters trusted the Son because the Mother entrusted him to “manage” the Sole Account Monies on her behalf. After all, the HSBC Deposits were placed in fixed time deposits and regularly renewed on half-yearly or yearly basis without any element of investment or other use, so there was no “management” to speak of. 36.Mr Yau also submitted it was inherently improbable for the Mother to distribute and give away 95% of her liquid assets when she (a) was a widow of a rich man accustomed to reasonable living standard as befitted her station in life, (b) was only 73 in 2001 and expected a long life ahead, and (c) had her Living Expenses paid for by Isabelle because her monies were locked up in the HSBC Deposits. But the fact was the Mother, who had mental capacity at the time, did distribute the Sole Account Monies to the Siblings leaving only the Sole Account Balance for deposit into the Joint Account. If out of the Son Transfer the Mother entrusted the Claimed/Reduced Sum to the Son for safe-keeping and capital growth as alleged, the Daughters (on the Plaintiff’s case) failed to explain why the Son could not continue to “manage” such monies as fixed deposit under in the Sole Account as before, why such a precise/odd sum (such as the Claimed/Reduced Sum) and not the whole residue (inclusive of the Sole Account Balance) was entrusted to the Son, and why the Mother did not tell the Daughters (especially Isabelle who lived with her, who paid her Living Expenses, and who expected to be reimbursed) about the trust arrangement. These unanswered questions went to the heart of the Plaintiff’s case and spoke volumes as to the hollowness of her allegations. 37.It was common ground that how the Sole Account Monies were to be distributed was to be decided by the Mother. In my view, as a woman with traditional values who respected the Father’s views (and who must have known the Son was his favoured child), she agreed to a Per Capita Share ($2,000,000.00) for each of the Son and Grandson as “長子嫡孫”. Further, I do not believe the Mother was worried about her Living Expenses as befitted her station in life:
Further, the Mother, who must have known of the Father’s gift of the Home to the Son, was not shy of making inter vivos distribution. After all, she decided to gift the Per Capita Share to each Sibling (and also to the Grandson as I find below), and eventually to gift the Property to Isabelle. Bearing in mind the Son was the favoured child and the Mother’s wish for the Son to be reimbursed for various expenditures he previously made, there was nothing inherently strange or improbable for the Mother to gift the Son Extra Sum to the Son and Per Capita Shares to the Son and Grandson. 38.Having carefully considered the witnesses’ testimony against totality of the evidence including documentary evidence, I do not accept the Daughters were truthful, credible and/or reliable witnesses. Instead, they were poor unimpressive witnesses whose evidence was a tangled web of truths, half-truths, inconsistencies, exaggeration, evasion, dissembling, reconstruction and concoction. Cross-examination of the Daughters was a revealing process (especially when they had to face intensive questioning over various topics/documents) with relevant/important evidence[27] never raised previously in solicitors’ correspondence and/or statement evidence elicited. The Daughters (a) were concerned to argue the Plaintiff’s case, (b) gave confused and contradictory evidence, (c) exaggerated/crafted/ embroidered their evidence to support the Plaintiff’s case (and were not above making up evidence as they went along in response to perceived difficulty in answering questions in a manner consistent with the Plaintiff’s case), (d) made implausible assertions that defied belief, (e) refused to accept obvious propositions, and (f) were unable to sensibly explain certain matters in their own documents. Their testimony, which was internally and externally inconsistent in material respects, had the hallmarks of contradiction, improbability and partiality that vividly showed they had not been truthful over important matters. It was also open to interpretation whether the available contemporaneous documents were actually supportive of the Plaintiff’s case. On balance, I reject the Daughters’ evidence on the core matters, but where the probabilities favoured there being some element of truth underlying exaggeration and embellishment in their evidence, I have made findings accordingly. 39.In my view, the Son had always been clear, robust and consistent over major events, standing his ground when questioned repeatedly under searching cross-examination. I do not accept Mr Yau’s criticism that the Son was evasive by peppering his answers with assertions of inability to recall details. The substantial delay before trial was not caused by the Son, whom I accept had long since treated the matter as closed. In my view, he could not be blamed for not recalling some of the details. There were occasions when his recollection was faulty or he was unsure about dates or sequence of events, but they were not so alarming as to give rise to concern as to the quality of his evidence on critical matters. He was not shy about the Daughters’ ill-feeling towards him, particularly Isabelle and Vicky whom he saw as the ones who stirred up discord between him and the Mother, but I do not see the ill-tempered and aggressive personality that the Daughters alleged. I also do not find his frustration at the Daughters’ failure to accept what he saw as obvious truths argumentative, and his sometimes abrupt and closed manner was more of reaction to their blaming attitude than genuine antipathy towards them (particularly towards Anna and Angel). Further, the differences between his statement/affirmation evidence and his oral testimony were largely attributable to legitimate addition of corroborative detail in response to intensive cross-examination that did not give pause for concern. In my view, the Son’s evidence had signs of probability and probity. VI. SOLE ACCOUNT (a) Mother’s monies 40.The Daughters tried to downplay the Mother’s interest in her monies by saying that as a traditional wife and mother she (a) would defer to the Father’s views on financial matters out of respect for him, and (b) would be more interested in the cost of groceries than her bank savings balance. This was to be contrasted with their evidence (as discussed below) as to the Mother’s keen interest in and caution in spending her monies, and her alleged frustration at not having access to bank statements after the Transfers. On balance, I find the Mother was sensible with monies, and had her own clear and firm views when making major decisions in relation to the same. 41.It was said the Mother was cautious about spending her monies, and would discuss with the Siblings and seek others’ views about how she would spend her monies. An example given was Angel’s request in 1999 for a loan of $600,000.00 to buy a property. Angel made a long distance call to the Mother (who was then visiting Anna in the United States) to ask for a loan. The Mother did not immediately agree although in the end she decided to help Angel. Anna said she was next to the Mother when the Mother took the call, so the Mother told her about Angel’s request, and Anna informed the Mother that the Father had previously promised to help Angel buy a property. 42.In my view, the Mother telling Anna about her telephone conversation with Angel was nothing more than mere familial chat, and did not amount to any significant discussion about money matters. On balance, I do not accept it was discussion with Anna and/or later with Vicky that persuaded the Mother to agree to Angel’s request. Rather, as Angel said, the Mother considered buying a property which cost a lot of money to be a major life decision, so she felt Angel should not make any hurried decision, and she initially did not agree to the requested loan but asked Angel to wait for her return to Hong Kong so she could properly understand Angel’s plan in detail. This, in my view, showed the Mother had quite clear and firm views about how to spend her monies, and her decisions were considered ones after careful thought. But that said, I accept where the Mother’s major decisions about monies would affect the Siblings, she would let them know and/or even hear their views before ultimately making her own considered decisions. 43.When the Mother finally decided to lend money to Angel for her to buy her property, she did not have ready cash of $600,000.00. The Son was informed and he gave Angel a cheque for $600,000.00 to avoid disturbing the HSBC Deposits. (b) Sole Account 44.After the Father passed away, the Son recommended the Mother (and accompanied her to the Branch) to open the Sole Account in her sole name with bank statements sent to her address at the Home. The Son did not have sight of such bank statements. The BOC Deposits were then transferred to the Sole Account and placed on fixed time deposits to became the HSBC Deposits. Upon each maturity of the HSBC Deposits, they were renewed for a year (at early stage) or 4-6 months (at later stage). The HSBC Deposits were last renewed in September 2000 for a year to mature on 6 September 2001. 45.Vicky used to accompany the Mother to the Branch to renew the HSBC Deposits, but claimed the Son later suggested he would “manage” the Sole Account for the Mother. On balance I accept the Mother sometimes asked the Son to telephone the Branch and convey her instructions for the HSBC Deposits on her behalf. I note the Branch was the Son’s and DHS’ banker, and the Son was familiar with the Manager/staff there. After he so helped the Mother for a few times, the Branch saw him as a person who conveyed her banking instructions. There was little concern about such arrangement since such instructions were straightforward, ie renewal of the HSBC Deposits for half a year or a year without any withdrawal/transfer. In my view, this was how the Son helped the Mother with her banking without any “management” of the Sole Account Monies. 46.On balance, I disagree (a) the Son was an authorised signatory of the Sole Account and/or (b) the Mother let him operate the Sole Account to possibly help her with investment. Since the HSBC Deposits were simply renewed every now and then, there was no need for the Son to become an authorised signature or to “manage” the Sole Account. 47.Isabelle claimed to have assumed the Son was an authorised signatory of the Sole Account because (a) he could deal with the HSBC Deposits by telephoning HSBC (but she herself had not heard such calls), (b) every now and then the Mother told her the HSBC Deposits had been renewed, and (c) she had seen the renewal certificates. I have dealt with (a) above in paragraph 45 above, but I am unable to see how (b)-(c) above would demonstrate the Son was an authorised signatory. When pressed, Isabelle confessed she had never seen the Son sign cheques or make bank transfers out of the Sole Account. Had the Son been such authorised signatory (which I disagree), one would have thought he could deal with the Transfers without need for the Mother to personally sign the transfer slips. I find the alleged reasons for Isabelle’s surmise (ie (i) Isabelle had to produce her own identity card to carry out her own banking so (ii) the Mother would have to produce hers to effect the Transfers from the Sole Account) speculative. In my view, (ii) above would not necessarily follow from (i) above because the Son (if he were an authorised signatory) would produce his own identity card (if needed) to effect the Transfers and simply leave the Sole Account Balance in the Sole Account. Isabelle then went on to suggest the Son as alleged authorised signatory would have limited authority and could not transfer all monies away from the Sole Account. But this was again speculative since Isabelle did not articulate any factual basis for such assertion. Her insistence on the Son being an authorised signatory of the Sole Account with limited authority vividly demonstrated she was not shy of exaggerating and embellishing her evidence with a view to paint the Son in a poor light. 48.I further find it was specious for Isabelle to suggest the Son “managed” the HSBC Deposits for possible investment when she personally reviewed the Sole Account’s bank statements sent to the Home (and briefed the Mother about their contents), and therefore must have known the HSBC Deposits were simply renewed without use for investment at all. 49.Interestingly, in SWC’s letter dated 6 July 2006 to Vongs, the Daughters asked the Son to account for the Father’s Half Share which should be included in the Father’s Estate (see paragraph 215 below). In 2007, Isabelle’s Aff denied the HSBC Deposits belonged to the Mother, and asserted half of the HSBC Deposits (derived from the Father’s Half Share) belonged to the Father’s Estate,[28] which assertion did not sit well with the agreed facts in paragraph 5(c) above or Vicky’s/Angel’s understanding that the Sole Account Monies belonged to the Mother who had an absolute right to deal with such monies. When pressed, Isabelle conceded she knew the Sole Account Monies belonged to the Mother who was entitled to deal with the same as she wished, ie whether to distribute, how much to distribute, and distribute to whom. 50.Isabelle tried to explain away her stance in Isabelle’s Aff by saying her understanding at the time (as given to her by HTP or SWC in 2006) was the Father’s Half Share was dutiable, so it should be part of the Father’s Estate for distribution according to intestacy rules. This echoed Isabelle’s evidence that the Sole Account Monies were “family fortune” and (whilst respecting the Mother’s wishes) the Siblings expected such “happy monies” would eventually be distributed to them. In my view, Isabelle’s stance as reflected in Isabelle’s Aff clearly evidenced her attempt to “claw back” assets into the Father’s Estate for the benefit of the Daughters as beneficiaries when she must have known there was no legitimate basis to do so. The Daughters had been advised by HTP and SWC, and I do not believe she received erroneous explanation from them when Vicky (who relied on Isabelle to explain solicitors’ correspondence to her) knew the HSBC Deposits were the Mother’s monies for disposal at her discretion. VII. FATHER’S ESTATE 51.The Father passed away in 1997. The Son as the eldest Sibling took steps to secure estate duty clearance as he saw this as a chance for him to do something for the Parents (B/46). So shortly after the Father’s funeral, the Son instructed LHK (referred to him by long-standing legal advisor to the Father and Son) for such purpose (B/46-48). The Son made enquiries now and then, and LHK (who gave him copy correspondence for his information) assured him things were under control (B/48-49), so he told the Daughters estate duty clearance was handled by a solicitors’ firm, and reported to them on progress on various occasions as informed by LHK (B/49-50). Vicky also said the Son replied to queries that estate duty clearance was in progress. LHK did not tell the Son what other steps to take, but it transpired the safe-deposit boxes were opened with EDO’s assistance only in 2000 (B/49). In early January 2000, the Son met with Yiu Hon’s partner to discuss distribution of Yiu Hon’s assets, but there was not much success (B/47-48). 52.When the Son received EDO’s letter dated 13 January 2003 (see paragraph 4(c) above), he realised LHK had ignored EDO’s reminders (B/50) and had not done their job properly, which resulted in substantial delay and imposition of heavy fine. The Son immediately instructed new solicitors/accountants to take up the task (B/50), and proactive steps were taken to deal with LHK’s unfinished work and to negotiate with EDO to reduce the fine/penalty (B/50). In/about early February 2003, Isabelle passed to the Son EDO’s letter dated 13 January 2003 that demanded the Mother to pay estate duty ($660,000.00), and (after liaison with the Mother) the Son arranged to pay the same on 5 February 2003 (B/50-51 and 72-75). At the end of November 2003, the Son received certificates of assessment of estate duty. The amount of estate duty, additional duty and interest payable was eventually assessed as $8,096,668.30 (see paragraph 4(m) above, B/50). 53.At a family meeting held shortly thereafter, the Son showed such certificates of assessment to the Daughters (B/51) and asked them to contribute to the estate duty (whether part payments already made and/or balance payable to EDO), but they ignored such request, so he obtained bank loans to pay the estate duty, additional duty and interest (B/51-52 and 77-81). The Son’s Aff stated SWL explained the position to HTP and gave HTP the certificates of assessment and certificates of receipt of estate duty (see paragraph 4(f)-(j) above) that set out assets of the Father’s Estate and duty/interest paid (B/52-53). 54.The Son had no obligation to take up administration of the Father’s Estate, but through SWL he invited the Daughters to jointly administer the Father’s Estate with him. They declined such invitation (see paragraph 198 below) (B/56), so he applied for grant of the Father’s LA on his own after the Mother through HTP gave renunciation of administration. 55.After the Son was appointed administrator of the Father’s Estate, he sold some shares to repay the bank loans for payment of duty/ interest (B/59-60). There was some insinuation by the Plaintiff that the Son must have had his eye on the Sole Account Monies as he had already expended some monies for the Father and Father’s Estate and the Sole Account Monies were the only available cash in/about 2001. I disagree. Prior to 2003, although progress of estate duty clearance was slow, the Son had not yet paid any estate duty and was unaware of (or unaware of the full ramifications of) LHK’s poor handling of such task. In any event, the Son would have expected reimbursement of estate duty and administration expenses from the Father’s Estate which was understood to be sizeable. There was no need to (and I find the Son did not) look towards the Sole Account Monies for estate duty clearance and administration expenses. I will deal with the Father’s medical/funeral expenses in Part VIII below). 56.Both Isabelle and Vicky complained there was no real progress as to administration of the Father’s Estate. Isabelle’s Aff alleged the Son failed/refused to discharge his duty to diligently administer the Father’s Estate and to provide proper/accurate account (B/98-99). The Son also agreed the Daughters were anxious over distribution of the Father’s assets, repeatedly asked for progress, and made allegations disputing his honesty/integrity as administrator. 57.The Son decided to sue LHK for professional negligence even before he obtained the Father’s LA. So right after he obtained the Father’s LA on 27 August 2004, the Son as administrator commenced HCA2082/2004 against LHK on 9 September 2004 for damages caused by their delay in handling estate duty clearance of the Father’s Estate. 58.Thereafter, the Son rendered the 1st and 2nd Interim Accounts (B/54, B/62-64 and B/95). The 2nd Interim Account showed a negative balance, so whether there would be distribution to the beneficiaries of the Father’s Estate hinged on the success of HCA2082/2004. Isabelle’s Aff referred to SWC’s letter dated 6 July 2006 (see paragraph 49 above and paragraph 215 below) that raised queries over the 1st Interim Account, but claimed there was no substantive reply (B/100). The 2nd Interim Account was essentially the same as the 1st Interim Account except for increase in legal and counsel’s fees (see paragraph 4(o) above and B/100). Isabelle’s Aff raised query over various shares (B/100-101),[29] suggested the alleged gift of the Home by the Father to the Son was not bona fide (B/103-104), and complained 44.52% of the assessed duty was attributable to such gift which burdened the Father’s Estate for the Son’s benefit (B/104-105). So the Daughters objected to the Son’s treatment of the Home as a gift to him, and asked for proper account (B/105). 59.The Son disputed such allegations, and the Son’s Aff denied any delay/default in administrating the Father’s Estate. He claimed to have spent much time/effort with his solicitors in negotiating with the partner of Yiu Hon and in prosecuting HCA2082/2004 against LHK (B/60-61). The claim in HCA2082/2004 was vigorously contested by LHK/insurers, so senior counsel and counsel were engaged for the 9-day trial due to commence on 18 June 2007 with legal costs borne by the Son (B/61-62). Such claim was eventually settled by LHK’s payment of settlement sum of $5,961,876.20 and costs of $1,587.295.00. The Son accepted he had been busy with business travels in the 3rd quarter of 2005 (see paragraph 25 above) so his solicitors might have been unable to contact him for a short while, but then the Daughters also did not respond to his requests for contribution to payment of estate duty and legal expenses (B/61). 60.Isabelle’s Aff claimed the Daughters had no idea and were not informed of the Son’s dealings with Yiu Hon and what he had done with the Father’s half interest in such company in 1997-2007 (B/105). Isabelle claimed the Son was trying to shift responsibility to LHK for delay in the administration of the Father’s Estate, and complained the Daughters had not been informed of progress[30] so it was questionable whether the Son could charge all legal costs for HCA2082/2004 to the Father’s Estate (B/105). 61.On 19 October 2016, the Daughters commenced HCMP2139/2006 against the Son as administrator for accounts as to the administration of the Father’s Estate. The Son eventually rendered the Draft Final Account after assets/liabilities were ascertained and administration was completed (B/63). HCMP2139/2006 was finally concluded by the 4/11/10 Order (see paragraph 4(u) above) upon the Daughters confirming not to make claims in respect of the Home and BOC Deposits and eventual final distribution of the net assets of the Father’s Estate to all family members under intestacy rules. VIII. FATHER’S MEDICAL AND FUNERAL EXPENSES 62.I find on balance the Son and Mother had talked about expenditure for the Father or Father’s Estate. The Son did not know whether it was such conversation that led the Mother to decide to reimburse him, but he did not ask the Mother for monies from the HSBC Deposits upon their maturity. As alluded to in paragraph 55 above, it was suggested the Son had his eye on the HSBC Deposits because the Father’s Estate had little cash. In my view, the Son simply made the necessary payments at the material times with no thought then of recourse to the Sole Account Monies. After all, the Father’s medical/funeral expenses were incurred in 1989 and 1997 (ie some 11 years and 4 years before the Son Transfer). But that said, it was common ground between the parties that the Son should be reimbursed for such expenses that he had paid, and the essential issue was whether he had been reimbursed or fully reimbursed from the Father’s Estate. I find on balance the Son was not fully reimbursed from the Father’s Estate, and the Mother decided to gift such reimbursement to him from the Sole Account Monies. But more of this later. (a) Medical expenses 63.The Father had a bypass operation at Hong Kong Adventist Hospital (“HKAH”) in 1989[31] and further hospitalisation at Hong Kong Baptist Hospital (“HKBH”) in 1997 until he passed away. The Son kept some invoices/receipts, eg $220,000.00 by HKAH and $330,851.00 by HKBH. The latter sum ($330,851.00) was the debt item in paragraph 3(ii) in SWL’s letter to HTP dated 19 July 2004, and the 1st deduction item “Debt due to [the Son]” in the 1st and 2nd Interim Accounts and in the Draft Final Account. SWL’s letter to HTP dated 19 July 2004 explained that $330,851.00 paid to HKBH was the deductible amount for estate duty clearance since EDO did not allow the sum of $220,000.00 paid to HKAH in 1989 which was incurred some time before the Father passed away. So at the very least, the Father’s Estate had not reimbursed the Son for hospital charges of $220,000.00. 64.The Son paid all of the Father’s medical expenses in his last years including the 2 hospitalisations (B/46). Isabelle agreed as M&Ds did not pay the same. But Isabelle and Anna surmised the Father’s medical expenses were about $200,000.00 and the Son had received reimbursement from the Father’s Estate. Such surmise was necessarily wrong because the invoiced/receipted medical expenses were over $550,000.00. In the end, Isabelle conceded she had no idea as to the incurred amount. 65.On balance, I prefer the Son’s evidence that HKAH’s and HKBH’s charges of about $550,000.00 formed the largest item of the Father’s medical expenses, but the Father’s overall medical expenses were about $1,000,000.00 odd for which the Father’s Estate only reimbursed $330,851.00. The Son could not be criticised for not producing all invoices/receipts as they related to pre-1997 expenses, and on the Son’s case this matter was treated as closed upon the Son Transfer. There was no reason for him to keep meticulous/diligent records thereafter. (b) Funeral expenses 66.The Father was buried at “將軍澳華人永遠墳場” and “省善真堂亦都有一個龕位”. The Son paid the Father’s funeral and related expenses (B/46), but Anna and Isabelle claimed he had been reimbursed from the Father’s Estate because (a) it appeared from Anna’s conversations with the Mother that the latter intended the Son to recoup such payment from the Father’s Estate, and (b) there was an item for funeral expenses in the accounts (although Anna did not pay attention to the amount). 67.But reference to funeral expenses in the schedule of property annexed to the Father’s LA (B/10) only referred to a deduction of $50,000.00, and Isabelle agreed actual funeral expenses were more than that. Further, there was no deduction item for the Father’s funeral expenses in the 1st and 2nd Interim Accounts and/or in the Draft Final Account. The 1st deduction item therein being debt due to the Son in the sum of $330,851.00 were for HKBH’s charges in 1997 exclusive of the Father’s funeral expenses (see paragraph 63 above). In my view, deduction of $50,000.00 in the schedule of property annexed to the Father’s LA was nothing more than token expenses allowable under section 13(1) of the Estate Duty Ordinance Cap 111, but in reality the Son’s payment of the Father’s funeral expenses had not been reimbursed from the Father’s Estate. 68.On balance, I reject Anna’s assertions in paragraph 66 above. I do not believe when she read the deduction item for funeral expenses in the schedule of property she did not notice the amount, which obtuse assertion I find was to avoid facing up to the reality that there had not been any reimbursement for funeral expenses paid by the Son that well exceeded $50,000.00. Anna’s refusal to acknowledge such reality even at trial undermined the probity of her evidence. In particular, I reject her allegation that the Mother had indicated that the Son should seek recovery from the Father’s Estate, which further undermined her general veracity as to what the Mother had told her on other matters/occasions. 69.Isabelle claimed she had not seen any accounts and had no idea how much was spent on the Father’s funeral and related expenses, eg coffin, burial plot, “龕位” etc. Anna arranged the Father’s funeral,[32] and the Son paid cash/cheque for her to settle the funeral/related expenses. The Son could not remember the exact amount as it was quite some time ago, and he no longer had the relevant invoices/receipts as he thought the matter was closed after the Son Transfer. In my view, given the above in a familial context, the Son could not be blamed for not keeping meticulous record of all expenses concerning the Father’s funeral/related matters. As the Son said, he did not expect litigation more than 10 years later. 70.But it was clear from the Son’s evidence that the Father’s funeral/related expenses would be more than $200,000.00 odd as suggested by Anna (see footnote 32 above). The Son said the cost of burial plot was about $300,000.00-$350,000.00 odd, cost of “龕位” was at least $80,000.00-$100,000.00, cost of ceremonies and rites was more than $100,000.00, but the largest expenditure was the expensive green granite grave headstone ordered from Mainland China, the exact amount of which the Son could not remember, but “應該都幾十萬開頭㗎喇”. So, according to the Son, the total funeral/related expenses were over $2,000,000.00, and indeed there were many miscellaneous items that he could no longer recall but would have taken total expenses beyond such amount.[33] On balance, I prefer the Son’s evidence “嗰陣時應該都接近四百幾五百萬嗰頭㗎喇。即係有單冇單都成大堆, ……”. 71.Mr Yau submitted whilst the Mother agreed for the Son to be reimbursed for the Father’s funeral/related expenses, such reimbursement should only come from the Father’s Estate and it did not follow the Mother should pay for such expenses out of her own pocket, which explained why when renouncing her priority to obtain the grant for the Father’s Estate she required an undertaking from the Son to give account of the expenses incurred in the administration and to keep the supporting documents. But I have explained in paragraphs 65 and 67 above why the Son had not been fully reimbursed for the Father’s medical expenses and not reimbursed for the Father’s funeral/related expenses from the Father’s Estate, so when the Mother said she would “give it back” to the Son it would not have been from the Father’s Estate. I find the Mother decided to gift reimbursement of the Son’s incurred expenses which ought to have been (but was not) reimbursed by the Father’s Estate. IX. PROPERTY 72.According to land search made on 1 April 2016 (B/246-248), the Property was purchased in the Mother’s name in 1982. Vicky said the Father bought the Property for the Mother, and it was let for rental income. 73.Vicky claimed the keys were given to the Son for him to manage the Property, but “…… 我哥哥[Son]成日都唔搵人租嗰層樓, 我媽媽[Mother]就好勞氣, 咁佢就話「你成日都唔搵人睇嗰層樓」, 咁就問佢攞番條鎖匙, 就畀咗我哋[Isabelle and Vicky], 一早已經咗條鎖--嗰個單位嘅鎖匙我哋㗎喇”. That was in/about 1999. Vicky said at first they tried to let the Property, but it was difficult as it was dilapidated and required repairs. Vicky claimed quotation for renovation was obtained in/about 2000, and substantial renovation carried out thereafter took a year or almost a year. Vicky supervised such renovation which was completed in/about 2001 before the Transfers took place, and Isabelle paid the charges of about $100,000.00 odd. The Property was put up for letting via estate agency in 2001, and it was let in early 2002 with Vicky and Isabelle signing the lease as landlord (although Vicky was unsure whether they did so in their personal capacity or for the Mother). 74.Isabelle’s account was different. Isabelle claimed every now and then in 1998-2000 the Mother would mention gifting Isabelle the Property because she was grateful to Isabelle for living with and looking after her and for paying her Living Expenses. Isabelle claimed the last tenant used the Property (which had no fittings, water and electricity) as warehouse, which user was quite rough on the Property, but such tenant vacated the Property in early 2001. Isabelle said the Property, which was quite dilapidated and rundown, could not be let, and renovation was carried out in 2001 after the last tenant left (and she had relevant bills in her possession). Although progress of the renovation (which was quite extensive) depended on her finances, Isabelle said she spent about $100,000.00 odd which was not a large sum. Isabelle said the Property was let after completion of the renovation. 75.But it transpired the Mother (as donor using Vicky’s Home as her address)[34] gifted the Property to Vicky and Isabelle (as donee joint tenants using the Property as their address)[35] by a Deed of Gift dated 8 October 2002 (B/238-245) signed by inter alia Vicky and Isabelle. Isabelle had to work and needed Vicky’s help to deal with property-related matters, so the Property was gifted to Vicky (who would have no interest in the Property) and Isabelle as joint tenants 76.Isabelle insisted she contacted/met solicitors in relation to such gift in 2001 (and claimed to have relevant receipts to such effect). She had no impression of signing the Deed of Gift in the latter half of 2002, but instead had impression that the Mother already gifted the Property in early 2001. But the Deed of Gift was actually executed in October 2002 so Isabelle claimed she would have to check her renovation bills, and her evidence wavered uncertainly between renovation being carried out in 2001 (because the Property was already vacant after the last tenant left in early 2001) and in 2002-2003 (because the Property was only gifted to her in 2002). As for Vicky, when confronted with the Deed of Gift made more than a year after the Transfers in September 2001, she said “但係意識上, 佢係畀咗我哋好耐喇”. 77.It was obvious Vicky’s and Isabelle’s chronology/timeline of events concerning the Property was quite different. Isabelle admitted the Property was let up to early 2001, but Vicky sought to blame the Son for not letting the Property even before 1999. On balance, I reject Vicky’s account, and in any event the Son could not be blamed as both Vicky and Isabelle acknowledged the Property was quite rundown and not in fit state to be let (other than perhaps as a warehouse that did not require utilities/ furnishings) after the last tenant left. But after the renovation (as Isabelle said) that were not expensive, it could be let for commercial user to earn rental income. I disagree the Property was of little value. 78.Isabelle’s and Vicky’s different accounts suggested neither was reliable, and this was compounded by the objective fact that the Property was only gifted to Isabelle in 2002 (ie a year after the Transfers on 6 September 2001). Irrespective whether at an earlier stage the Mother had intimated intention to gift the Property to Isabelle, I am not persuaded Isabelle would carry out renovation without commitment of the Property to her by the Deed of Gift in 2002. Indeed, Isabelle was not quite certain whether the renovation was done out in 2001 or 2002-2003 (see paragraph 76 above), and even Vicky accepted it was just her “意識上” that the gift was made a long time ago (see paragraph 76 above). I find on balance the Mother only decided to gift the Property to Isabelle in 2002 for the Living Expenses, but accept the Mother might have mentioned before then her intention to repay Isabelle, who then looked towards the Property rather than HSBC Deposits for such purpose. X. 2000 79.There was no dispute that upon maturity in September 2000 the HSBC Deposits were renewed for a year to mature on 6 September 2001. 80.Isabelle claimed that in 2000 the Mother suggested repaying her Living Expenses from the HSBC Deposits, so during a family dinner in May-August 2000 after paying respects at the Father’s niche/shrine, the Mother told the Siblings (possibly except Anna in the United States) that upon maturity of the HSBC Deposits “攞番啲錢出嚟喇, …… 不如分咗啲錢佢喇” but without detailing the manner of distribution.[36] But Isabelle claimed there was no distribution in the end because the Son renewed the HSBC Deposits for another year. Isabelle said she did not press the matter because she did not wish the Mother’s Living Expenses to complicate ongoing administration of the Father’s Estate. 81.Vicky said possibly in August 2000 the Mother telephoned to tell her she wished to distribute the HSBC Deposits, but when the Mother telephoned to instruct the Branch she was told she could not cancel the HSBC Deposits[37] and was asked to contact the Son. Vicky further claimed the Mother and Isabelle went to the Branch, and when they were told to liaise with the Son, the Mother did contact the Son who asked her to renew the HSBC Deposits for another year without giving any reason. 82.Angel said in/about 2000 the other Daughters told her the Mother intended to distribute the HSBC Deposits to the Siblings, and because of the Mother’s such intention there was the 6-7/01 Meeting. 83.The above accounts by the 3 Daughters give pause for concern:
84.On balance, I reject the aforesaid accounts by the 3 Daughters, and prefer the Son’s evidence that there was no formal discussion about distribution of the HSBC Deposits before the 5/9/01 Meeting. He agreed there were some casual chats about such matter, but due to lapse of time he could not remember whether/what proposals were made. I further accept the Son had asked the Mother before renewal of the HSBC Deposits (being the Mother’s monies) in 2000, but she did not intimate the HSBC Deposits should not be renewed on maturity. In short, I find on balance the Mother had not made any decision in 2000 even though she did intimate gifting the Property (which after repairs could be let to earn rental income) for her Living Expenses, and (quite irrespective whether there was any expectation of eventual distribution in due course) the Mother did not in 2000 expressly intimate any intention to uplift or not renew the HSBC Deposits. XI. 6-7/01 MEETING 85.The Daughters knew the HSBC Deposits of about $17,000,000.00 were due to mature on 6 September 2001 (except Angel claimed she did not know). It was common ground there would be distribution of monies by the Mother upon the maturity of the HSBC Deposits, and a decision had to be made before 6 September 2001 as to the disposal of such monies. Indeed, Vicky thought the Mother wanted to distribute such monies because “……主要係想大家開心啲囉”. The parties agreed there was a family meeting before the Bank Visit on 6 September 2001, but disagreed as to when it took place and what was agreed. The Daughters said it was the 6-7/01 Meeting, and Son said it was 5/9/01 Meeting. 86.Anna used to visit Hong Kong and stay at the Home in May/ June each year for 2-3 months and leave before the start of her children’s school term in September. But after her children went to university, she could stay longer if needed. In 2001, she remained until mid-September as the Mother wanted all Siblings to be in Hong Kong for distribution of the Sole Account Monies. (a) 6-7/01 Meeting 87.The Daughters claimed the 6-7/01 Meeting attended by the Mother and Siblings took place at the Home in June/July 2001. Isabelle said it was after the family returned Home after paying their respects at the Father’s niche/shrine. Anna claimed she had no impression who called the 6-7/01 Meeting, but said the Mother told her a family meeting was required to discuss distribution of the Sole Account Monies and thought the Mother wanted to repay the Living Expenses to Isabelle. Vicky said it was the Mother who called such family meeting, and she understood the Mother wanted to distribute the Sole Account Monies upon maturity of the HSBC Deposits in September 2001. Angel said it was Vicky who asked her to attend such family meeting. 88.The Daughters said that right at the beginning of the 6-7/01 Meeting the Son suggested each of the Mother and Siblings was to receive $2,000,000.00 (Per Capita Share), the Grandson was to receive $2,000,000.00 (Per Capita Share), and the remaining $3,000.000.00 odd “係「阿公」嘅，…… 因為律師費嗰啲數未有” (according to Vicky and Angel) or for meeting administration expenses of the Father’s Estate (according to Isabelle). The Daughters claimed M&Ds were against distribution to the Grandson, and Vicky and Isabelle claimed the Son’s proposal to gift $2,000,000.00 to the Grandson was unfair. Isabelle said objections were raised, and Vicky said there was a lot of noise. The Son was displeased and abruptly left the Home after 10 minutes (according to Vicky) or 25-30 minutes (according to Angel), so the family meeting “不歡而散” (according to Isabelle). Vicky, Anna and Angel said throughout the 6-7/01 Meeting the Mother did not offer to gift any extra sum to the Son. In short, the Daughters claimed the 6-7/01 Meeting ended in discord with no agreement or consensus reached. 89.Angel testified she did not voice her disagreement to the Son’s proposal before he left except perhaps to observe “「有冇搞錯呀」或者係嗰啲諸如此類” (Isabelle and Vicky also agreed Angel did not raise objection), but she said (a) Anna raised objection to the Grandson having a Per Capita Share of $2,000,000.00,[38] (b) the Mother said “個孫係冇份嘅”, which was the only thing she said in the presence of all Siblings before the Son left, and (c) Vicky did not speak up before the Son left. Even though Isabelle testified M&Ds (including Isabelle herself) voiced their objection to such proposal, Isabelle’s statement evidence merely asserted she, Anna and Vicky raised objection without mention the Mother and Angel also did so. When pressed, Isabelle said the Son left before the Mother and Angel could say anything. Vicky said she voiced her objections, but the Mother had no time to react before the Son left. 90.The differing accounts by the Daughters as to what transpired at the 6-7/01 Meeting raised doubt as to their veracity. Whilst I give every allowance for lapse of time as such event allegedly took place more than 14 years before trial, I find it unconvincing Angel would recollect at trial the Mother said at the 6-7/01 Meeting the Grandson was not entitled to any distribution when such important oral expression of intention by the Mother (which contradicted the Son’s proposal and his present case) did not feature in her witness statement which carefully referred to such alleged family meeting. I also find Isabelle exaggerated and embellished her evidence by suggesting the Mother voiced her objection to the Grandson having a Per Capita Share at the 6-7/01 Meeting when her statement evidence specifically referred to objection raised by her, Anna and Vicky without mention as to the Mother and Angel, which problem was compounded by her poor attempt to retreat to the stance in her statement evidence when confronted with the same. (b) After the 6-7/01 Meeting 91.All of the Daughters’ witness statements were silent on any further discussion at the Home after the 6-7/01 Meeting. But a wealth of evidence came forth under cross-examination on discussions after the Son left. Vicky and Isabelle said M&Ds talked about the Son’s rudeness in refusing to engage in proper dialogue. But as seen below, such discussions were not merely about the Son’s bad manners. Isabelle and Vicky for the first time revealed that during the post-meeting discussions the Mother agreed each Sibling was to receive $2,000,000.00 (Per Capita Share), but the Grandson was not so entitled, which was contrary to the Son’s alleged proposal at the 6-7/01 Meeting. 92.When pressed as to why such post-meeting discussions did not feature in her statement evidence, Isabelle said “咁我畀口供嘅時間, 係問落去個時間我係記得咁多我就寫咁多落去囉”. When further pressed, she was constrained to agree that at the time when she made her witness statement (a) her solicitors had explained to her the issues in the present action one of which was why the Mother made the Son Transfer, (b) she knew/remembered there were post-meeting discussions among M&Ds, and (c) she realised the Mother’s oral expressions of her intentions as to the manner of distribution was important, but she claimed “我嗰陣時凈係掛住嗰一剎那嗰個嘅情景”. When further questioned, Isabelle claimed that since objection to the Grandson having a Per Capita Share had been raised at the 6-7/01 Meeting and “其實當時嘅爭議就係講緊媽咪嗰份嘅--嗰一份嘅錢, 嗰份嘅銀兩, 因為我哋而家係爭議緊媽咪嗰份銀兩喎, 唔係爭議緊每人分$2,000,000嗰個嘅同意程度喎”, it was unnecessary to mention the post-meeting discussions in her witness statement. 93.I find Isabelle’s explanations unpersuasive. As Mr Wong pointed out, if the Mother did orally state her intentions as Isabelle claimed, it would have been the most direct evidence of her intentions on how to deal with the Sole Account Monies made before the Bank Visit and Transfers[39] that would contradict the Son’s assertion of the Mother’s gift of the Reduced Sum to him (Son Extra Sum) and to the Grandson (Per Capita Share) without need to resort to circumstantial evidence as suggested in the Answer. On balance, I do not believe Isabelle’s account of what happened. 94.I also find it strange on Isabelle’s evidence there was no talk that evening about repayment of the Mother’s Living Expenses to her. She claimed the only topic for discussion was the manner of disposal of the HSBC Deposits upon maturity, but then it was her evidence that the Mother had said she would pay the Living Expenses from the HSBC Deposits upon maturity, which plainly brought the Living Expenses within such topic. Even Anna claimed to have thought the distribution of the monies was perhaps due to the Mother’s wish to repay the Living Expenses. In my view, such silence undermined Isabelle’s and Anna’s evidence in this respect, and suggested Isabelle was looking towards the Mother’s intimation of gifting the Property to her rather than towards the HSBC Deposits for the Living Expenses. 95.As for Vicky, she said the Mother sat at the dining table next to her, and “佢就話啲錢係分畀仔女嘅, 個孫係冇份嘅。…… 啲錢係爸爸辛苦賺番嚟, 應該分畀仔女” (ie the Mother expressly saying only the Siblings and not the Grandson would each receive $2,000,000.00). Vicky claimed she did not pay attention to whether Anna, Isabelle and/or Angel were at the dining table or whether they moved around, so she could not say whether they heard the Mother said so. Vicky agreed the Mother’s express oral statement of her intentions was important, but the Mother’s alleged conversation with Vicky did not feature in her statement evidence. Vicky claimed to remember such alleged conversation with Mother when she made her witness statement, but did not include it “因為我覺得好多嘢傾喎之後, 我同我媽咪, 我唔知邊一句寫落去喎”. 96.On balance, I reject Vicky’s explanation. Vicky accepted what the Mother said was important, and she knew the Mother’s intentions as to the HSBC Deposits was relevant as borne out by her careful inclusion in her witness statement what the Mother said to her after the Grandson allegedly telephoned her after the 6-7/01 Meeting (see paragraph 98 below). In my view, she could not have been at a loss to know whether she should or should not have included what the Mother allegedly said during the post-meeting discussions in her statement evidence. 97.In addition to the inherent weaknesses of Isabelle’s and Vicky’s own evidence, they did not sit well with the accounts by Angel and Anna. Angel said after the Son left M&Ds casually talked about the Son’s proposal of giving $2,000,000.00 to the Grandson but there was no detailed discussion. Anna also said the Mother did not explain how distribution should have been made (eg each Sibling was to receive $2,000,000.00), and she and Vicky left soon after the Son left. Angel and Anna did not say Vicky had any private conversation with the Mother, or they had left the dining table. Their silence as to the Mother’s overt expression of her intentions and the aforesaid analysis led inexorably to the conclusion that on the balance of probabilities the 6-7/01 Meeting and post-meeting discussions did not take place as alleged. (c) Aftermath 98.Vicky said that shortly after the 6-7/01 Meeting the Mother told her over the telephone “呀[Grandson]搵過我, 問我係唔係冇得分, 我同佢講話孫係無得分架, 你要錢問爸爸擺啦”. As I have rejected the existence of the 6-7/01 Meeting and post-meeting discussions, I am unable to accept such alleged telephone conversation between the Mother and Grandson. 99.The Daughters said there was no further discussions (whether among themselves or with the Mother/Son) or family meeting about distribution of the HSBC Deposits until 5-6 September 2001. But even on the Plaintiff’s case, the 6-7/01 Meeting ended in discord with no consensus reached. It appeared quite strange for the Mother and Siblings to attend the Bank Visit for distribution of the HSBC Deposits without at least the Mother letting the Siblings know her wishes/decision as to the manner of distribution, especially when the Daughters claimed the Mother would usually do so (see paragraphs 41-42 above). 100.Isabelle tried to fill this obvious lacuna by saying it was in the Mother’s character to tell the Son about this “因為佢乜嘢都講嘅”. But when pressed, she confirmed “我本人就實在係冇真人聽過” but “我聽聞應該佢係要--會講” without saying how she “聽聞”. Again, this did not feature in her statement evidence, and I see this as nothing more than unreliable embellishment to plug an evidential hole. In my view, this need for the Siblings to have some understanding of the Mother’s intentions as to the distribution of the HSBC Deposits before the Bank Visit and Transfers lent weight to the existence of the 5/9/01 Meeting. XII. 5/9/01 MEETING 101.The Son said that after the Father passed away the Daughters were all along anxious about distribution of assets which could not be done pending estate duty clearance, so upon transfer of the BOC Deposits to HSBC to become the HSBC Deposits of about $17,000,000.00, they urged the Mother to distribute such monies. As the HSBC Deposits were due to mature on 6 September 2001, there was need to talk about distribution of the Sole Account Monies, so the Son believed the Mother called the 5/9/01 Meeting for such purpose. He did not do so as the Sole Account Monies were not his. 102.The Son said during casual chat over dinner at the Home in July/August 2001 the Mother briefly mentioned distribution of the Sole Account Monies, but it was not any real discussion and she had not decided who would get how much.[40] Then about a month or so before the 5/9/01 Meeting, the Son had a telephone conversation with the Mother about distribution of the Sole Account Monies. He proposed for distribution in the manner set out in paragraph 106 below, and the Mother agreed. The Mother asked him the amount of the Father’s medical and funeral expenses he had previously paid. He had some but not all of the invoices, receipts and records,[41] so he gave an amount close to the Son Extra Sum (which explained why the Son Extra Sum was a rather precise amount with odd dollar and cents), and the Mother had no objection. The Son said it was in fact the Mother who at the material times asked him to pay the Father’s medical/funeral expenses (which he did as he felt responsible to the Mother), and who said he should be reimbursed for what he had spent.[42] 103.In my view, such telephone conversation was natural and logical. The Mother had in mind to distribute the Sole Account Monies and to reimburse the Son for his previous payment of various expenses, so she had to liaise with him first about such matter. I find on balance that although the Son proposed the manner of distribution, the Mother agreed and instructed the Son to proceed accordingly. So, as seen in paragraph 106 below, such proposal was put to the Daughters at the 5/9/01 Meeting for their views so the Mother could make final decision before maturity of the HSBC Deposits the following day. 104.Mr Yau submitted the Son’s evidence was specious as his telephone conversation with the Mother did not feature in his witness statement. First, I do not accept the Mother’s decision to distribute the Sole Account Monies were precipitated by the Daughters pressing the Mother for distribution (although I accept they expected and pushed for such distribution). I believe it was the Mother’s own considered intention to make distribution. Secondly, even though the Son did not specifically refer to his telephone conversation with the Mother about a month or so before the 5/9/01 Meeting, his witness statement was clear that he made the proposal at the 5/9/01 Meeting “as instructed by the Mother”, which suggested they had discussion/understanding over the proposal prior to such family meeting. 105.Mr Yau then submitted the Son’s evidence on the 5th and 6th days of trial was inherently inconsistent, but I see no material inconsistency in the above account which I accept. In any event, as explained in paragraph 103 above, whilst the Mother and Son had an understanding as to the proposal to be put forward at the 5/9/01 Meeting, the Mother only made her final decision after hearing from the Daughters at such family meeting. 106.The Son said after his telephone conversation with the Mother he had no further discussion with her about the intended distribution of the Sole Account Monies. The Mother told the Son several days before the family meeting it was finally scheduled for 5 September 2001. At the 5/9/01 Meeting (which lasted 20-30 minutes), the Son, as instructed by the Mother, took out a piece of paper that set out the following proposal for distribution, and made such proposal to all present:
107.The Son said Angel still owed $600,000.00 for the loan he had paid for her to buy her property, so it was to be repaid out of her Per Capita Share ($2,000,000.00). The Son admitted the Daughters were not happy with and objected to the Grandson getting $2,000,000.00, but claimed the Mother insisted: “媽媽講咗一句說話, 佢話長子嫡孫分一份, 喺9月5號晚”. The Son said the Mother had no reaction to the proposal for the Son Extra Sum as she already knew about it, and as for the Daughters, “我就聽唔到佢哋有乜嘅反應, 因為呢啲嘢係我去辦㗎嘛”. The Son said there was no proposal for reserving monies for “暫用「阿公」或者係遺產管理嘅法律費用”. 108.The Son’s pleaded case was that the Son Extra Sum was given to him “as a gift out of [the Mother’s] love and affection to the [Son] and in recognition of the fact that [the Son] had spent a considerable amount to settle [the Father’s] medical expenses and funeral expenses, etc” (my emphasis).[43] I see no departure from the Son’s pleaded case when he gave evidence that the Son Extra Sum was “reimbursement” of various expenses. Proper reimbursement should have been from the Father’s Estate for the Mother had no obligation to reimburse the Son for, say, the Father’s medical/funeral expenses even though she requested him to pay such expenses. So in reimbursing the Son for such expenses, the Mother was in fact gifting him her monies although from the Son’s perspective it was repayment of expenses he previously made/incurred. 109.Mr Yau also criticised the Son for expanding the class of reimbursement to include the Son’s payment of the portion of building renovation costs allocated to the Home, which the Mother (presumably as occupant) promised to repay even though the Son was the owner of the Home. But I note the Son’s pleadings and witness statement both used the word “etc” (see paragraphs 106(c) and 108 above) to show reimbursement was not confined to the Father’s medical and funeral expenses. The Son explained the Father’s medical/funeral expenses “嗰陣時應該都接近四百幾五百萬嗰頭㗎喇, 即係有單冇單都成大堆”, so they formed the bulk of the Son Extra Sum ($5,087,012.04). There was nothing sinister in the Son not specifically referring to minor renovation costs in his statement evidence. 110.Mr Yau next argued the manner of distribution in paragraph 106 above was puzzling because the Mother could have given away a larger sum to the Son instead of a Per Capita Share ($2,000,000.00) and the Son Extra Sum that was an odd sum. But in fact the Mother’s manner of distribution supported the Son’s case. The Per Capita Share made clear it was the same entitlement for each Sibling, and Son Extra Sum (ie the odd sum) was for expenses that the Son incurred for which the Mother decided to gift reimbursement. This also undermined the Plaintiff’s case because it was difficult to envisage any sensible reason why the Mother would entrust an odd sum ($7,087,012.04 being the Reduced Sum) to the Son for safe-keeping and capital growth, and then to leave another odd sum ($157,582.15 being the Sole Account Balance) in the Joint Account. 111.Mr Yau submitted that if the Mother had not finally decided on the manner of distribution until the 5/9/01 Meeting, it would be quite out of character for the Mother as someone who was in the habit of consulting her family members to come to such controversial decision (ie the Daughters objected and the Mother ended up giving away most of her liquid assets) at the 5/9/01 Meeting. But as explained above, this made the 5/9/01 Meeting more likely because she would have talked to the Siblings before making the Transfers (including the Son Transfer of over $9,000,000.00) the following day. Further, as the Mother spoke with Anna and Vicky when Angel asked for a loan to buy her property, I find it more likely that Angel was informed of the proposed deduction of $600,000.00 from her Per Capita Share for repayment to the Son before the Bank Visit. 112.Mr Yau further submitted that if the Son were to receive the Son Extra Sum as reimbursement of expenses he previously paid, there was no reason for Isabelle who had paid the Mother’s Living Expenses for years would not have asked for similar treatment. As I have found, Isabelle was looking towards the Property for the Living Expenses, which the Mother now and then intimated to her but had yet to make any decision. 113.The Son said at the time the Mother “佢話啲錢分晒佢囉, 咁咪即係你分晒喇, 咁咪即係差唔多要close咗佢㗎喇”. Although “佢就冇正式話close, 但係佢就將啲錢分晒佢”. Mr Yau submitted that if the Mother were minded to distribute everything, she would just give a Per Capita Share to each Daughter and then give the residue of the Sole Account Monies to the Son without need to reserve an odd sum (ie the Sole Account Balance) for deposit into the Joint Account. But as the Son pointed out, at the time of his telephone conversation with the Mother or even later at the 5/9/01 Meeting he did not know the exact amount of the Sole Account Monies for he had no access to the relevant bank statements. Even though it was the Mother’s intention to “分晒佢”, she did not make a bare gift to the Son, and instead she gifted the Son Extra Sum for reimbursement of various expenses previously paid by the Son (which would not be exactly the same as the residue of the Sole Account Monies). So after the Son received the Son Extra Sum at the Bank Visit, there was remaining the Sole Account Balance, and it was transferred to the Joint Account to be held by Vicky and the Son for the Mother. As the Son said, “咁你如果唔係, 嗰$150,000畀邊個? 畀佢又唔like, 畀佢又唔like, 畀佢又唔like, 咪開個joint account hold住佢囉, a trust, full-stop”. XIII. 5 SEPTEMBER 2001 114.I find on balance the 5/9/01 Meeting took place as the Son alleged. This conclusion went a long way to undermine the Daughters’ account of what happened on 5-6 September 2001. The Daughters said there were no further discussion on distribution of the Sole Account Monies after the 6-7/01 Meeting (but I disagree such family meeting took place as alleged). At this point it is useful to pause and remind that in this Judgment, discussion of the inherent probabilities/improbabilities of the Daughters’ evidence are subject to my findings of fact, and do not reflect acceptance of any aspect of their evidence that I reject in my findings. 115.Anna said the Son telephoned her in the morning of 5 September 2001 asking her to tell M&Ds to attend the Bank Visit the following day to deal with banking procedures for distribution of the Sole Account Monies and to be ready with the Daughters’ bank account details. Anna claimed she conveyed the Son’s message to the other Daughters, and arranged to meet Vicky at the Branch the following morning. Anna also told the Mother about the Son’s request, but the Mother did not say how distribution would be made. Nevertheless, Anna said she understood each Sibling was to receive $2,000,000.00, and the Mother would deal with the rest of the Sole Account Monies. 116.Isabelle said when she returned Home from work at/about 9-10pm on 5 September 2001, Anna told her the Son’s request. Isabelle understood the Bank Visit was for distribution of the Sole Account Monies since the HSBC Deposits would mature (and not to be renewed) on 6 September 2001. Isabelle (a) could not remember whether she/Anna confirmed with the Mother that (as Isabelle understood) each Sibling was to receive $2,000,000.00, (b) did not remind the Mother no one else should have a Per Capita Share “因為佢自己做嘅嘢佢會自知”, and (c) did not ask the Mother to reimburse the Living Expenses. Isabelle and Anna had casual chat, but there was no serious talk about the manner/amount of distribution and/or whether the Grandson was to have a Per Capita Share. 117.Angel said when Vicky telephoned to tell her she and Anna would accompany the Mother for the Bank Visit the following day, she understood she was to receive her Per Capita Share ($2,000,000.00) pursuant to the Mother’s distribution the following day which she assumed from what the Son said at the 6-7/01 Meeting, ie each Sibling was to receive $2,000,000.00. Angel claimed from her separate casual chats with her elder sisters at/about end of August or early September 2001 they all expected distribution of monies upon maturity of the HSBC Deposits, so to facilitate bank transfers for such purpose she had written down and given her bank account details to Anna and Isabelle. 118.Vicky said Anna informed the other Daughters about the Son’s telephone call, and she and Anna were to accompany the Mother on the Bank Visit. Vicky did not speak with the Mother after receipt of such message, but she understood $2,000,000.00 would be distributed to each Sibling upon maturity of the HSBC Deposits. 119.On balance, I reject the aforesaid accounts by the Daughters. First, such accounts rested on the vitality of the 6-7/01 Meeting. Given my rejection of such alleged family meeting, the Daughters’ evidence as to what happened on 5 September 2001 was seriously undermined. I find on balance it was at the end of the 5/9/01 Meeting that the Son asked the Daughters to attend the Bank Visit at 9am the following day with their bank account details to effect the Transfers. 120.Secondly, on the Plaintiff’s case, the Mother already intended to distribute the Sole Account Monies back in 2000, and she also intended to reimburse expenses incurred by some of the Siblings for the Parents, eg to repay Isabelle for the Living Expenses, and to repay the Son for the Father’s medical/funeral expenses. According to the Daughters, the 6-7/01 Meeting ended in discord with the Son insisting on distributing $2,000,000.00 to the Grandson and the Daughters objecting to the same. Such discord had not been resolved as there was no further discussion with the Son afterwards (save for Isabelle’s suggestion, which I have rejected, that the Mother must have told the Son her stance after the 6-7/01 Meeting). But the 4 above accounts by the Daughters strangely suggested they all assumed there would be distribution of a Per Capita Share ($2,000,000.00) to each of them. More importantly, I find it improbable the Son would risk everything by asking all Daughters to attend the Bank Visit to effect the Transfers when there was no opportunity for the Mother to make clear her intentions, and every reason to believe the Daughters would object to a Per Capita Share for the Grandson and to the Son Extra Sum for the Son under the Son Transfer. This seemed most unlikely given the Plaintiff’s case that the Mother would inform/consult her children on significant money matters. 121.Also, even on the Daughters’ evidence, they did not actually know whether the Mother had told the Son her disagreement for the Grandson to be given a Per Capita Share. I find it improbable that before the Bank Visit (a) none of the Daughters sought to confirm with the Mother whether each of them was to receive $2,000,000.00, whether the Grandson was not to receive $2,000,000.00, and what was to be done with the remaining Sole Account Monies of about $7,000,000.00 (ie about $17,000,000.00 – ($2,000,000.00 x 5)) and/or (b) neither the Mother nor Angel raised the matter of repayment of Angel’s loan of $600,000.00. It was also unconvincing that Anna did not seek to clarify with the Son when he called on 5 September 2001 and/or Isabelle and Anna (who lived with the Mother at the material time) did not clarify with the Mother whether or not she actually told the Son her intentions as to the manner/amount of distribution with real risk ending up in a row with the Son at the Branch if he insisted on distribution which the Daughters objected. 122.Thirdly, it appeared from Isabelle’s account that she gave her bank account details to Anna in the morning of 6 September 2001, and it was said Anna and Vicky got theirs ready after the Son called on 5 September 2001. It was therefore strange for Angel to give her bank account details to her elder sisters at/about end of August or early September 2001 before the Son telephoned about the Bank Visit. I find the 5/9/01 Meeting took place, and the Son told the Daughters at the end of such family meeting to ready their bank account details, so Angel took the initiative to provide her bank account details to her elder sisters as she would not be attending the Bank Visit the following day. This undermined the accounts given by Isabelle, Anna and Vicky about the Son’s call to make arrangements for the Bank Visit. 123.Fourthly, when Isabelle was questioned as to why she did not raise the matter of Living Expenses with the Mother when she knew the HSBC Deposits would mature the following day, she simply said it was not important. I cannot see why it would not be important if, on the Plaintiff’s case, she and the Mother both thought the HSBC Deposits would be used for repayment of the Living Expenses. In my view, it was not important because Isabelle, having heard the Mother’s intimations (but not decision as yet) about gifting the Property to her, was looking towards the Property (rather than the HSBC Deposits) for the Living Expenses. XIV. BANK VISIT 124.There was no dispute the Mother, Anna, Vicky and the Son attended the Bank Visit. Isabelle and Angel did not attend because they had to work that day, but they had given their bank account details to Anna and/or Vicky. (a) On the way to the Branch 125.Anna said that just after 9am on 6 September 2001 the Son came by the Home to pick up the Mother and Anna for the taxi trip to the Branch. During the taxi ride, the Son made the Silence Request. The Mother did not say anything, and Anna said “哦, 知道”. Even though Anna knew from the alleged 6-7/01 Meeting that M&Ds and the Son held different views on distribution of the Sole Account Monies, she claimed she did not think there would be any problem because the banking procedures for transferring $2,000,000.00 from the Sole Account to each Sibling were simple, hence she did not find the Silence Request strange or suspicious. But if the banking procedures were thought to be so straightforward, she did not think of asking the Son what he expected would happen at the Branch that might excite query for which they had keep silent. 126.Vicky went to the Branch on her own. Anna and Vicky both said Anna told Vicky the Son’s Silence Request, and Vicky replied “哦, 知道”. Unlike Anna, Vicky claimed to have a strange feeling about such request and wondered what could happen, but she did not ask Anna why the Son made the Silence Request. 127.On balance, I reject Anna’s and Vicky’s account and prefer the Son’s evidence that he drove himself to the Bank and did not pick up the Mother/Anna for the Bank Visit. After all, Anna lived with the Mother and could bring the Mother to the Bank. There was every incentive for the Daughters to turn up for the Bank Visit given the anticipated distribution of Per Capita Shares and when their bank account details were still with them. 128.On balance, I also reject Anna’s and Vicky’s evidence as to the Silence Request. Even on their evidence, they both knew from the 6-7/01 Meeting the Son attempted to get $2,000,000.00 for the Grandson, and was displeased by objections thereto and left abruptly. There was no further discussion thereafter save for Isabelle’s surmise (which I have rejected) that the Mother might have told the Son her stance. There was no discussion between Vicky/Anna and the Mother on 5 September 2001, so by the time of the Bank Visit Vicky and Anna did not know whether the Son still insisted on giving $2,000,000.00 to the Grandson or not. Thus, even on the Plaintiff’s case, Vicky’s uneasiness over the Silence Request was reasonable, but Anna’s comfort with such request and their failure to query the purpose of the Silence Request were quite implausible when the 6-7/01 Meeting already highlighted a matter of concern, ie whether or not the Grandson would have a Per Capita Share. 129.I find it unbelievable that Anna would not find the Son’s Silence Request strange, and that Vicky (as she alleged) was not worried the Son might push for distribution of $2,000,000.00 to the Grandson. Further, even on the Daughters’ evidence, given Vicky’s forceful personality, the history of their dealings with the Son, and their instant objection to the Son’s proposal at the 6-7/01 Meeting, I find it most unlikely Anna and/or Vicky would not have questioned the Son’s Silence Request or at the very least sought to confirm with him the manner of distribution of the Sole Account Monies to make sure there would be no payment to the Grandson. As Mr Wong submitted, even if they did not want to confront the Son in a public place, there was no reason why they would not have warned the Mother to be careful about the distribution of the Sole Account Monies and to refuse if there was any transfer to the Son for the Grandson. (b) Office 130.Vicky claimed she gave Anna a piece of paper with particulars of her bank account. Anna said she wrote out the Daughters’ bank account particulars on a piece of paper and gave it to the Son. They were greeted by the Manager. Anna and Vicky said the Manager brought the Mother and Son into the Office to deal with the banking procedures whilst they waited outside the Office in the bank lobby area as neither the Manager nor the Son invited them in. 131.Anna and Vicky said after the Mother and Son left the Office, the Son showed them 3 transfer slips for the Vicky, Isabelle/Anna and Angel Transfers to let them check the transferee names and transferred amounts. Anna noted a total sum of $7,400,000.00 was transferred, and $2,000,000.00 of the Isabelle/Anna Transfer was for her. She asked the Son why the Angel Transfer was $1,400,000.00, and the Son replied the balance was loan repayment by Angel. Anna said the Mother stood next to the Son but did not say anything. 132.On balance, I do not believe Vicky’s and Anna’s accounts, and prefer the Son’s evidence that after meeting up with the Mother, Vicky and Anna at the Branch, they were served by the Manager who brought all of them into the Office. The Son did not have the Daughters’ bank account details, and Vicky and Anna gave such particulars to the Manager whilst the Son gave his. I find on balance the Manager completed 4 bank transfer forms for the Transfers,[44] and gave them to the Mother who signed in the presence of the Son, Anna and Vicky with no objection/query raised (as the Transfers were in line with the Mother’s decision on the manner of distribution expressed at the 5/9/01 Meeting). By reducing the Angel Transfer to $1,400,000.00, the Mother also cleaned up the loan to Angel for property purchase by repaying the balance of $600,000.00 to the Son as mentioned at the 5/9/01 Meeting. The Son said the banking procedures inside the Office took 30-45 minutes. 133.I bear in mind it was the Son who invited all 4 Daughters to attend the Bank Visit. If he had wished to secretly make away with $2,000,000.00 for the Grandson and with the Son Extra Sum for himself, he would not have made such invitation in the first place, especially when he knew the Daughters objected to giving any monies to the Grandson. According to the Daughters, Isabelle’s and Vicky’s opposition at the 6-7/01 Meeting was instantaneous and vigorous. Mr Yau tried to brush this aside by saying the Son knew the Manager well because DHS was a long-standing customer of the Branch, and the Son “could easily control the number of people coming into the [Office] where the [Transfers] were done by the Mother”. But the Son could not have known how many Daughters would turn up for the Bank Visit, and in light of the Daughters’ objections at the 6-7/01 Meeting (according to the Daughters) or 5/9/01 Meeting (according to the Son) I doubt whether the Son could have excluded their entry into the Office with or without invitation. The Son could not have assumed Vicky and Anna would have stayed outside the Office out of politeness when distribution of what Isabelle perceived as “family fortune” was at stake. On the Plaintiff’s case, if Vicky and Anna found out that more than $2,000,000.00 was transferred to him, they would have raised objection and, as Mr Wong submitted, it might be “highly embarrassing and might even get out of control”. I find it improbable the Son would have taken such risky step, and I further find the Silence Request was an unreliable embellishment to bolster such improbable step. 134.Vicky went on to say she did not think staying outside the Office was a problem as the Daughters trusted the Son. But it was their evidence that they did not have any close or trusting relationship with the Son (see paragraph 26 above). Such assertion also did not sit well with the Daughters’ suspicion about his handling of the Father’s Estate, and their objection to his proposal for distribution at the 6-7/01 Meeting. In my view, such assertion of trust in the Son was no more than a poor attempt to explain why Vicky and Anna remained outside the Office. 135.Still further, Vicky and Anna knew the Bank Visit was for distribution of the Sole Account Monies. Vicky agreed this was an important event with all Siblings invited to attend the Bank Visit. Anna agreed the Mother asked her to remain in Hong Kong until after the distribution of monies, which I find was to enable Anna to participate in the distribution process. I find the Daughters were invited to personally attend the Bank Visit so they could witness the bank transfers to avoid future argument. After all, personal attendance was not required merely for effecting the Transfers (see distribution to Angel and Isabelle even though they did not attend the Bank Visit). 136.Anna and Vicky confirmed no one stopped them from entering the Office, but they claimed it was impolite to enter without invitation. But I have found their personal attendance was to witness the distribution of the Sole Account Monies, and bearing in mind the Son’s strange Silent Request and his earlier proposal to give $2,000,000.00 for the Grandson, there was every reason for Vicky and Anna to request entry to the Office to make sure the bank transfers were made according to their understanding without any gift to the Grandson and/or any extra monies to the Son beyond the Per Capita Share. Given Vicky’s forceful and suspicious nature, I do not believe she and Anna would meekly stay outside the Office out of politeness. (c) Outside the Office 137.Vicky said outside the Office the Manager spoke to the Son “…… 個戶口[ie Sole Account]剩咗十五萬幾” (ie the Sole Account Balance). Anna said the Manager asked what was to be done with the Sole Account Balance in the presence of the Mother, Son, Anna and Vicky. Vicky and Anna said the Son suggested opening a new joint bank account. Anna said at first the Son asked her to be joint account holder with him, but she was often not in Hong Kong, so it was finally decided Vicky would be the joint account holder. The Son and Vicky went through the banking procedures for opening the Joint Account.Vicky and Anna said that upon query by the Manager the Son asked for a HSBC Premier account. Vicky claimed the Manager said “你開卓越戶口唔夠錢, 要$300,000”, but the Son replied “我過兩日會入番啲錢入去”, which Vicky understood to mean the Son would deposit monies in the Joint Account in a day or so for its balance to increase to $300,000.00 or more. Vicky and Anna claimed they did not know at that time the Sole Account was closed. 138.On balance, I prefer the Son’s account that he understood the Mother’s intention was to distribute the Sole Account Monies and close the Sole Account. But after completion of the Transfers, the Manager told the Mother there were still some monies in the Sole Account.[45] The Son said it was probably him who suggested opening a new bank account, “因為佢要close咗個account吖嘛, 咁個balance去咗邊度? 咪要set up個new account, 就將舊嗰個account嘅balance移過去, 就咁先可以close咗佢㗎嘛 …… 可能當其時嗰啲錢都係喺滙豐, 咁樣話okay, 咁咪開個joint account咪hold住咗佢囉, 就係咁解啫”. With the Mother’s agreement, Vicky and the Son opened a joint bank account to hold the Sole Account Balance for the Mother. Vicky asked for a high-interest account, so the Manager prepared bank forms for (a) opening the Joint Account which was a HSBC Premier account, (b) transferring the Sole Account Balance to the Joint Account, and (c) closing the Sole Account, and gave the forms for (b)-(c) above for the Mother to sign, which she did in the presence of Vicky, Anna and the Son with no objection/query raised. Vicky and the Son signed the bank forms for (a) above and showed their identity cards for such purpose. 139.The Son used to have a personal integrated HSBC Premier Account which was cancelled 2-5 years before trial. By the time of trial, the Son realised a Premier account holder had to maintain an account balance up to a certain threshold to obviate levy of a monthly service fee, but he did not know that in 2001. There was reference to such monthly service fee in HSBC Premier account bank statements, but the Son did not pay attention to this in his own bank statements because his personal HSBC Premier account always had more than $300,000.00. The Son said during the Bank Visit the Manager did not say the Sole Account Balance was insufficient for opening the Joint Account nor did he say he would deposit monies into the Joint Account in a day or so. Further, he did not know HSBC charged monthly service fee for the Joint Account as all bank statements were sent to Vicky’s Home and he had no sight of the same. 140.I find nothing surprising or sinister in the Son’s account. I refer to paragraph 113 above in which I have explained the Mother’s intention to make distribution and close the Sole Account, but given the distribution involved Per Capita Shares for the Siblings/Grandson and the Son Extra Sum for the Son as reimbursement of various expenses previously paid, there was the Sole Account Balance despite the Mother’s intention to close account. I also accept the Son’s explanation for opening a HSBC Premier account for the Joint Account. Whilst a monthly service fee would be charged for not meeting a threshold balance in such account, there was no clear/cogent evidence (other than bare assertions) that such account could not be opened if the opening balance was less than $300,000.00. One bears in mind that at that time the Son, DHS and the Mother were regular or even long-standing customers of the Branch, who was prepared to deal flexibly with the Son and Mother (eg allowing the Son to convey her instructions to the Bank for renewal of the HSBC Deposits). Further, there was no suggestion that over the years HSBC threatened to close the Joint Account as its balance was always below $300,000.00. 141.There was no dispute the Sole Account Balance was the Mother’s monies. In my view, the Son’s suggestion for opening the Joint Account showed fair/bipartisan approach to the Mother’s monies. There was no point into opening a sole account in the Mother’s name since it would be the same as the Sole Account and the Mother wished to close the Sole Account. The Son sensed that an account in the name of 1 Sibling (eg under his name) would meet with resistance, “如果我話開一個人嘅名, 你估佢哋會同意咩?”, which was why he was agreeable to open the Joint Account with bank statements sent to Vicky’s Home and not to him. In my view, the different treatment of the Sole Account Balance and Son Transfer showed the former and not the latter was the Mother’s monies. 142.More importantly, both Vicky and Anna claimed to have suspicions as to why the Sole Account Balance was only about $150,000.00. Both Vicky and Anna said the remaining balance of the Sole Account should be several million dollars after deducting Per Capita Shares for the Siblings ($10,000,000.00) from the Sole Account Monies (about $17,000,000.00 odd). Anna also felt strange that another bank account was to be opened.[46] But Vicky and Anna claimed they did not ask the Mother or raise query about this because of the Son’s Silence Request. Vicky added she did not want to upset the Mother who appeared to have cried when she came out of the Office.[47] Anna gave evidence that (a) she did not want to have conflict with the Son (who was short-tempered and autocratic) in a public place, (b) she had no suspicion as she thought the several million dollars were still in the Sole Account, and (c) she would ask the Son about this at the 6/9/01 Meeting (but it transpired she did not ask either the Son or the Mother). 143.On balance, I do not accept Vicky’s and Anna’s above accounts. They admitted in their statement evidence they had “疑問” about “該戶口不應只剩下15萬多港元”, so they knew the Manager was referring to the remaining balance of the Sole Account when she mentioned $150,000.00 odd, which was why they became suspicious. They could not in the same breath suggest they had no suspicion because they thought the remaining balance of several million dollars were still in the Sole Account that had not been closed. I also do not believe the Mother cried at the Branch. The distribution of monies was something she all along wanted to do (as early as in 2000 and reiterated at the 6-7/01 Meeting according to the Plaintiff’s case), and I find this was Vicky’s embellishment to avoid having to deal with the difficult matter of not raising reasonable query with the Mother. In my view, on the Plaintiff’s case, it was reasonable to be suspicious, but implausible not to have raised any query. 144.Further, on the Plaintiff’s case, if Vicky and Anna had suspicions as to the whereabouts of the remaining few million dollars of the Sole Account Monies, and (a) felt strange about the Sole Account Balance of $150,000.00 odd, (b) had concern that such sum was deposited in the new Joint Account instead of keeping such sum in the Sole Account, (c) knew they were not privy to the banking procedures inside the Office, (d) did not having sight of the transfer slip for distribution to the Son, (e) received the Son’s unusual Silence Request, and (f) knew the Son had previously asked for payment of $2,000,000.00 to the Grandson, one would have expected Vicky and Anna to have asked the Mother about these matters at first opportunity given the real and obvious risk that the Son might have gotten more than his Per Capita Share of $2,000,000.00. 145.After completion of the banking procedures at about 10am, Vicky and the Son left separately, and Anna took the Mother back Home by taxi. Vicky and Anna could have asked the Mother the above matters after the Son left, and Anna could have done so during the taxi ride back Home. But no such query was raised at such these available opportunities. I am not persuaded this could be brushed aside by Anna’s assertion that she had no suspicion/query as all along as the monies were in the Sole Account (see paragraph 143 above), and that she thought she should wait until the 6/9/01 Meeting to ask the Son to clarify this (which I reject as I find below there was no such family meeting). When pressed, Anna claimed she briefly raised the matter of the opening of the Joint Account with the Mother, but she said “等到夜晚黑返嚟, 等哥哥嚟先至問佢喇”. Vicky could not offer explanation as to why she did not ask the Mother. 146.I find Vicky’s and Anna’s accounts evasive and unconvincing, and the alleged reticence on the part of Anna and the Mother strained and unnatural. By this time the Transfers had been completed, so there was no reason for either Anna or the Mother to be shy about raising and answering such queries. The Mother must have known she transferred $9,687,012.04 to the Son at the Branch for she signed the relevant transfer slip for the Son Transfer, and if she were against giving $2,000,000.00 to the Grandson and/or the Son Extra Sum to the Son, there was no plausible reason for her not to confide her objection to Anna when the Son was away from her orbit but to wait until the 6/9/01 Meeting which the Son would attend. 147.In all the circumstances, I disagree the Bank Visit took place as the Plaintiff alleged, and accept the Son’s account of the same. Shortly after the Son Transfer, the Son told the Grandson about the distribution of $2,000,000.00 to him, and it was several months later that the Son transferred such distribution to him. XV. 06/09/01 MEETING AND AFTERMATH 148.The Son claimed he next visited the Mother at the Home more the 2 weeks after the Bank Visit, and denied he attended the 6/9/01 Meeting. (a) Before 6/9/01 Meeting 149.Anna said she went out in the afternoon of 6 September 2001 whilst the Mother remained at home. Angel said Anna telephoned to tell her the Angel Transfer was done and asked her to return Home that evening for the 6/9/01 Meeting as the Son had things to say. Isabelle said Anna telephoned to tell her “妳放工返嚟, 今晚有會開” and “…… 咁咪順咪話埋「呀, 過咗數喇」” (ie the Isabelle/Anna Transfer) to which she replied “哦, 轉咗錢喇”. Isabelle said she did not ask the purpose of the 6/9/01 Meeting as she was busy at work. Vicky said after she left the Branch until the 6/9/01 Meeting she did not have any telephone conversation with the Mother and probably not with the other Daughters too. But she claimed the Mother and Siblings all knew the 6/9/01 Meeting was to discuss the distribution of the Sole Account Monies because the Son “…… 話有咩嘢事夜晚講吖嘛, 咁咪有個會開囉”, but the Son did not mention any particular topic for discussion. In the end, Vicky confessed she had no idea why the Son called the 6/9/01 Meeting. 150.I find the Daughters’ singular lack of curiosity about the 6/9/01 Meeting implausible and unconvincing in light of the matters of concern referred to in paragraphs 143-144 above and especially when the distribution of monies had already been completed during the Bank Visit. 151.Vicky recalled the 6/9/01 Meeting at the Home was about 8pm because she already had dinner. Isabelle also said it was about 8:00pm because they had to wait for her and Angel to get off work. The Mother and Anna were at Home. Isabelle said when she returned Home, she did not ask the purpose of such family meeting because she would know soon enough when the Son came over. As seen below, the Daughters’ evidence as to whether just before the 6/9/01 Meeting Anna and Vicky told Isabelle and Angel what happened during the Bank Visit was quite inconsistent. 152.When Angel arrived at the Home, the Son had not yet arrived, but the Mother, Anna and Vicky were there. Anna said that in the presence of the Mother she told Angel and Isabelle what happened during the Bank Visit including the Daughters Transfers, and Vicky told them about the opening of the Joint Account and deposit of $150,000.00 odd into the Joint Account, but the Mother did not say anything. 153.Isabelle could not remember whether Vicky was already there when she returned Home, but Vicky said when she arrived Isabelle had returned home from work but the Son had not yet arrived. Isabelle said that from the time she returned Home until the start of the family meeting Anna did not tell her the Mother made the Daughter Transfers at the Branch that morning, and no one mentioned the Son Transfer. Isabelle claimed as they waited for the Son to arrive, there was no talk about distribution of the monies. 154.Further, Angel also said Anna and Vicky did not tell her what happened during Bank Visit, but she understood the other Daughters had received their respective Per Capita Share ($2,000,000.00) and she thought (but did not know) the Son had also received his. Isabelle and Angel said Anna and Vicky did not mention the Joint Account or transfer of the Sole Account Balance to such account. 155.Vicky said after she arrived and when they were waiting for the Son to arrive (which he did shortly), she did not ask the Mother why the remaining Sole Account Balance was just $150,000.00 odd and/or where the remaining millions of dollars were even though the Mother must have been aware of these matters as she dealt with the banking procedures for distribution of the Sole Account Monies inside the Office. 156.Mr Yau submitted the differences were minor especially when the Daughters’ evidence concerned events that happened more than 14 years before trial. Whilst I give every leeway for the effect of passage of time on memory and recollection, I am not persuaded this discrepancy could be so easily brushed aside. If there were a family meeting on 6 September 2001 (which I disagree), I find it inherent implausible M&Ds would sit around waiting for the Son to arrive and not talk about what happened in the morning at the Branch. In my view, such alleged reticence was artificial and its inconsistency with Anna’s evidence only served to undermine the overall veracity of the Daughters’ account of the 6/9/01 Meeting. (b) 6/9/01 Meeting 157.It was said that the 6/9/01 Meeting started upon the Son’s arrival. Isabelle, Vicky and Anna said they all sat at the table with Isabelle next to the Son, and Vicky and Anna opposite them. Isabelle and Vicky said the Son took out a prepared piece of paper printed in Chinese with provision for each of the Mother, Siblings and Grandson (ie 7 names) to receive $2,000,000.00, and an extra $3,000,000.00 “即係阿公用嘅，即係暫時係for阿公用住先嘅” (“Son Paper”). She could not remember the exact description for $3,000,000.00 on the Son Paper, but understood it to be a common fund. 158.Isabelle in her statement evidence stated she immediately said the proposal was unacceptable, but did not mention the Son said anything. But under cross-examination Isabelle said (a) when she saw what was on the Son Paper she queried “咁我話「咦?」我話「點解會有你個仔個名喺度㗎?」咁樣樣”, then the Son spoke up and she responded, and (b) the Son held the Son Paper and said (as heard by all present including the Mother) each of the Siblings and Grandson received $2,000,000.00 and Isabelle asked why the Grandson would get $2,000,000.00 as he should not have any share, then the Son said something and Isabelle said something. Isabelle said the debate was focused on whether the Grandson should receive $2,000,000.00 with Vicky and Anna querying why the Grandson would have a share and others asking what was happening. But after a few words, the Son suddenly put away the Son Paper and left. Isabelle said the Son left before the Mother had a chance to speak up, and before they could ask him about his proposal in respect of $3,000,000.00 for “阿公用” which Isabelle claimed not to understand. Isabelle said the 6/9/01 Meeting did not take long. 159.Vicky also said the Son took out the Son Paper intending to tell them what was in there, but Isabelle saw its contents, including the provisions for each of the Mother and Siblings to receive $2,000,000.00 with space for them to acknowledge receipt of such monies and for the Grandson to receive $2,000,000.00 too, so before the Son even said anything Isabelle already raised objection to the arrangement, and “跟住佢[Isabelle]咁咪講咗一輪嘢囉, 即係話「點解你個仔又要分呀, 咁我哋講咗話係孫冇份㗎」”. Vicky said she also raised objection and spoke up, but the Mother did not say anything particular. The Son did not want to listen anymore, so he put away the Son Paper and left before others had time to speak up. Vicky said the whole family meeting lasted about 5-10 minutes. 160.Even though Anna’s statement evidence also alleged Isabelle immediately objected about the Grandson getting a Per Capita Share when she saw what was written on the Son Paper (ie Mother, Siblings and Grandson would each receive $2,000,000.00) but did not mention the Son said anything, she gave evidence that the Son took out the Son Paper and said “「即係我哋五兄弟姊妹, 每人分$2,000,000」, 咁跟住佢講埋話佢個仔都有$2,000,000” to which Isabelle immediately objected and asked why the Grandson’s name was on the Son Paper, and the Daughters followed up by saying “係喎, 冇份㗎噃” and Mother saying “個孫係冇份㗎”. But Anna also gave evidence that the Mother did not take the initiative to voice out her view. Anna said the Son then put away the Son Paper and left abruptly, so such family meeting lasted a few 10 minutes only. 161.Anna claimed during such family meeting the Son did not say he should be gifted more monies than the Daughters, and there was no mention as to what happened during the Bank Visit. Anna said she wanted to ask the Son “點解咁得意嘅? 有十五萬, 要開一個新戶口嘅?”, but she was unable to put such query to the Son as he left abruptly. But even though Anna raised query on the way home after the Bank Visit and the Mother asked her to wait until the 6/9/01 Meeting that evening, and at such family meeting the Son still said the Grandson was to have $2,000,000.00, Anna said the Daughters did not ask the Mother about what happened at the Office or whether she transferred $2,000,000.00 to the Grandson (as there was no such need because the Mother disagreed for the Grandson to have a share). But after the Son left, Anna still did not ask the Mother about this “因為佢都係話等阿哥嚟先至問到, 咁而家阿哥都走咗喇, 仲有--都冇--問唔到嘢㗎喇, 咁所以我都冇問我阿媽”, and even added the Mother only intended they ask the Son and not her. 162.Angel said at the 6/9/01 Meeting, the Son took out the Son Paper and Isabelle saw its contents inter alia that each of the Siblings and Mother would receive $2,000,000.00 with space for each of them to acknowledge receipt and that the Grandson would also receive $2,000,000.00. In her statement evidence, Angel said Isabelle objected to such arrangement, and the Son immediately put away the Son Paper and left, so M&Ds did not have sight of the contents of the Son Paper. But Angel said under cross-examination that when the Son took out the Son Paper, he actually spoke out that $2,000,000.00 had been distributed to each of the Siblings and the Grandson would also receive $2,000,000.00, then Isabelle saw the contents of the Son Paper and said it was inappropriate for the Grandson to receive a Per Capita Share. Angel also gave evidence that she seemed to hear Mother say “個孫冇嘅”, but she did not pay attention to what else Mother said. Angel did not speak out aloud, and as was usual she had less to say. The Son was displeased and left abruptly. Angel said she did not hear the Son suggest or the Mother agree to give extra monies to the Son. Angel said the 6/9/01 Meeting lasted 15 minutes. 163.On balance I find it inherently improbable for the Son to call a family meeting after the Transfers were completed. By that time the Mother (who was of mental capacity and must have understood her signing of the transfer slips for the Transfers) had made up her mind after hearing the Siblings at the 5/9/01 Meeting and effected the Transfers irrespective whether the Daughters agreed with them or not, so there was nothing that required further discussion with the Daughters. 164.Secondly, as Mr Wong submitted, why would the Son prepare and produce the Son Paper showing each of the Mother, 5 Siblings and Grandson had received $2,000,000.00 and the remaining $3,000,000.00 odd be reserved for administration expenses? Such alleged distribution was different from the Transfers that were effected during the Bank Visit in which a sum of $9,687,012.04 (ie the Son Transfer) was transferred to the Son. I find it highly improbable for the Son, who well knew the Son Transfer, to have made the same proposal as he did at the 6-7/01 Meeting when he obtained more by the Son Transfer during the Bank Visit. 165.Thirdly, if the 6/9/01 Meeting did occur as described by the Daughters (which I disagree), in face of the Son Paper or the Son stating the Grandson was to have a Per Capita Share it was unnatural and unbelievable that (a) the Daughters did not immediately ask the Mother (being on the Plaintiff’s case the only person inside the Office other than Son and Manager) whether she had actually transferred $2,000,000.00 for the Grandson and/or (b) the Mother would not have told the Daughters she had transferred $9,000,000.00 odd (ie the Son Transfer) to the Son, especially when (according to Vicky) the Mother was upset with the Son. At the very least, the Mother, who well knew she had transferred over $9,000,000.00 to the Son, must have been anxious to take steps to recall $2,000,000.00 (which the Son said was given to the Grandson) from the Son, and even for this alone she would have told the Daughters. 166.Fourthly, there was significant discrepancy as to whether the Son and/or the Mother spoke up at the 6/9/01 Meeting. These alleged verbal expressions by the Mother, which did not feature in the Daughters’ statement evidence, were expressions of the Mother’s intentions immediately after the Bank Visit. The disarray in evidence as to such factually important matter (quite apart from the question of admissibility) spoke ill of the veracity of the 6/9/01 Meeting. 167.In the circumstances, I do not accept the Daughters’ different accounts as to what happened at the 6/9/01 Meeting, and on balance I am not satisfied the 6/9/01 Meeting took place at all. (c) After 6/9/01 Meeting 168.Isabelle said after the Son left, M&Ds sat around together to discuss the Son’s poor attitude in leaving abruptly and not letting them air their views. The Mother, Vicky and/or Anna did not say how the Sole Account Monies were distributed during the Bank Visit, and the Mother was not asked whether she actually gave $2,000,000.00 to the Grandson despite what was written on the Son Paper as observed by Isabelle. Under re-examination, Isabelle surmised the Mother had earlier told the Son her intention to gift $2,000,000.00 to each Sibling because in the post-meeting discussions the Mother said she and the Siblings were each to have a Per Capita Share. Isabelle said Vicky and/or Anna told the Mother and other Daughters about the Joint Account that was opened that morning with about $150,000.00 deposited into such account, which did not sit well with Anna’s account that these matters were raised before the 6/9/01 Meeting (see paragraph 152 above). Isabelle said she asked the reason for the deposit in the Joint Account, but Vicky and Anna said they did not know as it was the Son’s instructions. It was interesting on Isabelle’s evidence that even though the Mother knew the Sole Account was closed during the Bank Visit, and she heard the Daughters discussing the Joint Account and transfer of the Sole Account Balance to such account, she did not mention the closure of the Sole Account and/or say where the remaining monies went. Isabelle claimed she then asked the Mother why about $150,000.00 was deposited in the Joint Account, and the Mother replied she did not know as her monies were “managed” by the Son who did everything for her. But when pressed, Isabelle admitted the Mother did not say aloud that she gave her monies to the Son to “manage”, but Isabelle claimed it was just a fact that the Son “managed” the Mother’s monies. 169.Angel said that after the Son left, Isabelle told them what was written on the Son Paper, ie the Grandson was to receive $2,000,000.00, then “主要就係媽媽覺得, 就講咗一句「個孫冇嘅」, 跟住之後就冇乜特別太多嘢講”. Angel said Anna and Vicky told them the Joint Account was opened in the names of the Son and Vicky and about $150,000.00 was deposited in such account (which did not sit with Anna’s account that this was explained before the 6/9/01 Meeting), but the Daughters did not ask the Mother whether she transferred $2,000,000.00 to the Grandson or how other monies in the Sole Account were dealt with. 170.Vicky claimed that after the Son left they discussed the Son’s claim for distribution of a Per Capita Share to the Grandson. Vicky (who was the last to leave) said she and the Mother (who sat next to her in the dining area) chatted casually. Vicky was not sure what the other Daughters were doing but had the impression Angel had left and Anna/Isabelle walked about the house rather than sitting down with them. Vicky said the Mother was very upset with the Son, and said “啲錢係分畀啲仔女嘅, 孫係冇得分嘅” and other things, eg:
Vicky claimed the Mother said the Son kept asking for the title deeds of the Property with a view to sell the same. Vicky asked the Mother why there was just about $150,000.00 after the Daughters Transfers of $7,400,000.00, and Mother replied she did not know and told Vicky to ask the Son. Vicky said the Mother did not mention the Sole Account was closed. When pressed under cross-examination that the Mother must have known what happened to her monies as she personally handled the banking procedures inside the Office, Vicky claimed she did not ask the Mother why she did not know what happened to her monies or whether the Grandson was given $2,000,000.00 because despite what the Son said at the 6/9/01 Meeting she believed the Mother did not transfer any money for the Grandson as she was all along against this idea, and even claimed she was not even sure whether the Mother knew about the Son Transfer and the disposal of her monies. 171.In my view, the Daughters’ evidence had a sense of unreality. It was the Plaintiff’s case that the Mother was careful about her monies and she understood her financial status (eg she required detailed understanding of Angel’s plan before she gave her a loan, and she understood when Isabelle explained to her the Sole Account’s bank statements). It was unbelievable that the Mother had no idea what happened to her monies and had to tell the Daughters to ask the Son, especially when the Plaintiff’s case was that the Mother voluntarily entrusted monies to the Son for safe-keeping and capital growth. In my view, these assertions were made to shy away from obvious question that should naturally have been raised with the Mother on the Daughters’ evidence, ie whether or not $2,000,000.00 was actually given to the Grandson during the Bank Visit. This was especially so when according to Vicky’s evidence (a) the Transfers took place that very morning, (b) she immediately had a query in her mind as to why the Sole Balance Amount was $150,000.00, (c) the Son tried to have a share of $2,000,000.00 for the Grandson, (d) she knew the crux of the present litigation turned on the disposal of the monies in the Sole Account and what happened on 6 September 2001, and (e) the Mother was upset with the Son. 172.The Daughters’ evidence as to what was said in the post-meeting discussions was in disarray. I have found that the Son did not “manage” the Mother’s monies. Even on the Daughters’ evidence, there was uncertainty as to whether the Mother verbalised the sentiment that the Grandson was not entitled to any distribution, especially when the post-meeting discussions as well as what the Mother allegedly said did not feature in the Daughters’ statement evidence. Vicky tried to overcome the inconsistency in the Daughters’ evidence by saying Angel had left and Isabelle and Anna might not have been around when the Mother spoke to her about it. But if the Mother had raised such complaints against the Son, which would only fortify Vicky’s suspicious, these was no reason for her to simply leave or not tell Isabelle and Anna, and perhaps even to probe further with the Mother. On balance, I repeat Vicky’s attempt to downplay the importance of the conversation by saying she referred to the 6/9/01 Meeting in her statement evidence and there was no need for her to mention that during the casual chat on 6 September 2001 the Mother said the Father left her monies for her living expenses because she often (and not just at that evening) heard the Mother said so. 173.I find on balance that the 6/9/01 Meeting and the post-meeting discussions did not take place as the Daughters alleged or at all. XVI. SEPTEMBER 2001 174.The bank statements for the Sole Account were sent to the Home, and Isabelle would review them and she (and sometimes Vicky) would tell the Mother about her finances. Isabelle claimed the Mother would pay attention and understand what they told her as she was careful about her monies. Isabelle agreed such bank statements were normally issued on the 20th day of each month. 175.Isabelle claimed that about a week or so after the Bank Visit (ie about late September 2001), HSBC sent a notification to confirm the Sole Account had been closed, but she had no impression whether HSBC sent any statement that recorded the Transfers. Isabelle asked the Mother why the Sole Account was closed, and she replied “「係呀, 我畀--轉咗落哥哥度, 畀佢打理吖嘛, 咁囉。」”. The Mother did not say and Isabelle (who claimed she had no suspicion then) did not ask how much was given to the Son to “manage” even though the Son Paper at the 6/9/01 Meeting provided for the Grandson to have $2,000,000.00. 176.Further, although Isabelle claimed the Mother clearly told her the remaining monies from the Sole Account belonged to her and were entrusted to the Son to “manage” for her, and she knew the crux of the present dispute was the Mother’s intention in respect of such monies, such conversation did not feature in her witness statement. Isabelle claimed it was just a casual chat, and she mentioned it under cross-examination because Mr Wong asked her. When pressed, she said she did not cast her mind to such conversation “因為我哋一開始就係媽咪㗎嘛, 媽咪畀哥哥打理, 係一開始都係咁個囉, 唔係由我打開理, 變咗係人哋打開理㗎嘛”. But by the time of the present action Isabelle knew the Son alleged the Mother gifted the Reduced Sum to him and the Grandson, and she admitted what the Mother expressly told her about her intentions contradicted the Son’s case, which must be factually relevant (apart from the question of admissibility of such evidence). I find it quite implausible she would fail to mention such conversation in her witness statement or indeed at any time since 2001 for the reasons she gave, and would choose to rely on indirect circumstantial facts/evidence to ask the court to draw inference as to the Mother’s intentions. Further, as Isabelle admitted, by that time she knew the value of the HSBC Deposits (about $17,000,000.00), the Daughters Transfers ($7,400,000.00) and the Sole Account Balance (about $150,000.00) and understood their interplay meant about $9,000,000.00 was transferred to the Son of which $2,000,000.00 was the Son’s Per Capita Share and $7,000,000.00 odd was for the Son to “manage” for the Mother. In fact, there was no need for this deduction process because according to Vicky there was a bank statement sent to the Home that showed the Son Transfer (see paragraph 179 below). So even on her own evidence, Isabelle knew by then the Sole Account was closed and the Joint Account only had about $150,000.00, so the Mother’s monies were no longer under her own name but transferred to the Son to “manage”, an arrangement that was very different from the Sole Account when the Mother’s monies were under her own name, and the Mother’s opaque answer (ie to ask the Son) to her query about the Sole Account Balance at the post-meeting discussions would only fuel Isabelle’s concern. In my view, on Isabelle’s evidence, she would have regarded such conversation as significant and would have harboured suspicion by then. 177.On balance, I reject Isabelle’s evidence in relation to her conversation with the Mother after receipt of notification from HSBC about closure of the Sole Account. In the circumstances, it is unnecessary for me to deal with Mr Wong’s submissions as to whether such alleged conversation was inadmissible as to the question of whether the Mother retained any interest in the monies under the Son Transfer.[48] 178.Isabelle also alleged that before the maturity of the HSBC Deposits the Mother told her she would repay the Living Expenses, so when she learned from the Mother in September 2001 that the Son was “managing” the Mother’s monies, she could have requested the Mother to ask the Son to pay over monies to reimburse her. On balance I do not believe Isabelle when she said she did not raise this because “聯想唔到”, which did not sit well with her assertion in re-examination that she did raise with the Mother the matter of reimbursement of the Living Expenses, and the Mother promised she would reimburse her. As explained earlier, Isabelle was looking towards the Property for such purpose in view of the Mother’s earlier intimations to such effect. 179.Vicky claimed that a few weeks after the Daughters Transfers, Isabelle telephoned to tell her the Sole Account was closed, but did not say where the monies in such account went. Vicky later said Isabelle told her she learned of the transfer of $9,687,012.04 from the Sole Account effected on 6 September 2001 upon sight of the last bank statement of the Sole Account received in September 2001. Vicky returned Home the following day and read such last bank statement that showed such transfer (but alleged she did not pay attention to such transfer and did not know who was the transferee). Vicky said she asked the Mother “「妳個戶口係唔係取消咗呀?」…… 咁佢[Mother]話「係呀。」…… 媽媽話佢轉過一個戶口, 方便我哥哥打理”, but she stopped short of asking how much was transferred to the Son to “manage” on the Mother’s behalf and/or showing the Mother the transfer of $9,000,000.00 odd on 6 September 2001 in the last bank statement even though (a) on her evidence she was not present when the Mother dealt with banking procedures in the Office, (b) the Sole Account was closed, and (c) the Son had asked for $2,000,000.00 to be given to the Grandson to which she objected. 180.I find such assertions implausible. First, Vicky’s assertions of having the last bank statement that revealed the Son Transfer did not sit well with Isabelle’s evidence of not having sighted any statement that recorded the Transfers. Secondly, Vicky could not have failed to note the significant transfer of over $9,000,000.00 in the bank statement when her express purpose for returning Home the following day was to check papers from HSBC. Vicky claimed she concentrated on the bottom of the bank statement that stated the Sole Account was closed. But by then Isabelle had already told her the Sole Account was closed, and (as Vicky agreed) the next obvious question would be where the money in such account went. There could only have been 5 withdrawal/transfer entries (ie the Transfers and transfer of the Sole Account Balance) on the last bank statement, and she must have noticed the transfer of over $9,000,000.00 with unknown transferee, which would have given more fodder for raising questions with the Mother, especially when the Mother said monies had been transferred to a new account for the Son to “manage” and given the matters in paragraph 179(a)-(c) above. It was rather surprising that Vicky insisted she did not have to ask the Mother as the Mother had already said she did not know whether the remaining balance was $150,000.00 odd. If the Mother entrusted monies to the Son to “manage”, it would be implausible for her to have told Vicky she did not know what monies she voluntarily transferred to the Son to “manage” for her and why there was the Sole Account Balance after distribution of monies. The suggestion that she told Vicky to ask the Son was unconvincing. 181.Further, since the Mother was of mental capacity at the time and careful about her monies, she must have known about the Transfers, including the Son Transfer for over $9,000,000.00, for which she signed the transfer slip. If Vicky was anxious enough to return Home the day after she was told the Sole Account was closed (and there was actually a transfer of $9,687,012.04 out of the Sole Account) to ask the Mother about it, she would not have stopped short of asking how much of the remaining monies in the Sole Account went to the Son. When pressed, Vicky said she did not ask the Mother about the difference of $7,687,012.04 (ie the Son Transfer of $9,687,012.04 less Per Capita Share of $2,000,000.00 for the Son) because the Mother would not understand these matters (because she only had primary education and not into financial management) and “我唔會太--畀咁多壓力啲老人家, 我唔會左問右問好多嘢, 佢開心過日子就得㗎喇”. I find this a poor excuse, which did not sit well with Isabelle’s evidence in paragraph 174 above. Surely the Mother would be able to say whether the whole of the remaining monies were entrusted to the Son to “manage” on her behalf of or whether any part of those monies were gifted to the Son and/or Grandson. I do not see this as pressure on the Mother for, even on the Daughters’ evidence, she was used to discussing with them about what to do with her monies. Vicky’s alleged reticence in raising natural questions went a long way to show the unreliability of her evidence. 182.Still further, it was Vicky’s evidence that the Mother criticised the Son after the 6/9/01 Meeting (see paragraph 170 above), so there was all the more reason for the Mother to confide in Vicky what happened rather than give an opaque answer to her. But Vicky said it was just grumbling and “唔係不滿, 只不過佢有少少同我哋傾偈咁啫。我覺得一家人大家信任, 我唔覺得佢會害我, 我又唔會施壓力畀我媽媽,「妳要提防嗰個，提防嗰個仔女呀。」咁, 不嬲都哥哥打理嗰啲錢嘅, 我提防佢--叫佢提防咩嘢呢?” This is nothing more than blowing hot and cold, criticising the Son when it suited her, and downplaying distrust in the Son when pressed on other matters. I find Vicky’s evidence quite unreliable. 183.Even though Vicky claimed she did not have litigation on her mind in 2001, by the time of the present action she knew the crux of the present dispute was the Mother’s intentions over the transfer of the Claimed/Reduced Sum to the Son, and confessed it was important that the Mother expressly told her a few weeks after the Bank Visit the monies in the Sole Account had been changed to another account to facilitate the Son to “manage” the monies for her. There was no plausible reason for such matter not to feature in her witness statement, and her lame explanation that “我諗到咩嘢就寫乜嘢, 我唔清晰到要好重要, 當時 …… 我係諗到乜嘢就寫乜嘢” was unpersuasive. Her further explanation that it was possible she had forgotten her conversation with the Mother at end of September or early October 2001 when she made her witness statement but remembered under cross-examination was even more unconvincing. 184.Vicky said she only informed Isabelle a few weeks later what the Mother told her that day in late September 2001 as there was nothing much to discuss when there was no problem previously with the Son “managing” the Sole Account. I disagree. Not only did the Son not “manage” the Mother’s monies, given the “missing” Claimed/Reduced Sum it was quite strange on Vicky’s evidence that she would not have discussed these matters with Isabelle with alacrity. 185.Isabelle and Vicky (and Anna too when she was in Hong Kong) would have casual chats about the Mother’s monies and bank account but less with Angel who was a quiet person. Angel said about 1 odd month after the 6/9/01 Meeting when she had a chat with Vicky she was told the Mother had closed the Sole Account, but she did not ask why it was closed and where monies therein went. Angel said she learned the Son received $2,000,000.00 about 1-2 years after the Bank Visit, and it was several years later that she learned of the Son Transfer and its amount. I find it strange that Vicky did not tell Angel about the transfer of over $9,000,000.00 from the Sole Account and/or the Mother’s explanation that the monies in the Sole Account had been placed in another account to facilitate the Son to “manage” for her when Vicky came to know these matters in late September or early October 2001. But if Angel did learn of the Son Transfer years later, it only showed she left the matter to Vicky and Isabelle and was prepared to follow their lead. 186.In mid-September 2001, Anna returned to the United States. Before she left Hong Kong, Anna did not speak to the Mother about the monies in the Sole Account and/or the distribution of such monies. Anna said that several months later, ie almost at the end of 2001, the Mother telephoned her in the United States and briefly said she wanted to know the state of her monies (“其實佢都想知道佢嗰啲錢, 咁想問下、攞下、睇下月結單諸如此類, 咁佢話佢都睇唔到。佢係話「問過衰仔, 衰仔都唔答我。」咁囉”). Anna said at the time the Mother only wanted to have sight of the relevant bank statements. Anna thought the Mother’s monies were still in the Sole Account “managed” by the Son, so she told the Mother to ask the Son. Anna said it was after her return to Hong Kong in 2008 and after the Mother’s health started to fail that Isabelle told her the Mother signed the transfer slip for the Son Transfer of about $9,000,000.00 in favour of the Son. 187.First, I find it strange even on the Daughters’ evidence that neither Isabelle or Vicky told Anna about the closure of the Sole Account until the end of 2001 and/or the transfer of over $9,000,000.00 out of the Sole Account on 6 September 2001 until after 2008 when Anna had long distance conversations with the other Daughters about 5-6 times a month. But I have found Anna witnessed the banking procedures during the Bank Visit and she knew the Sole Account was closed. Secondly, as Anna confessed, she knew at the time the bank statements of the Sole Account were sent to the Home and Isabelle would read them to the Mother. She should have asked the Mother (who was essentially concerned with having sight of bank statements) to speak to Isabelle rather than the Son. When pressed on this, Anna said she asked Isabelle about this (even though she told the Mother to ask the Son) when they chatted over the telephone, and Isabelle told her she had no idea as the Sole Account had been closed. But strangely Anna did not follow up on what happened to the Mother’s monies and said she learned about the Son Transfer after 2008. I find her excuse that Isabelle was dealing with the matter unconvincing and lame. But this went to show Anna also left it to Isabelle and Vicky to deal with claim against the Son, and her evidence fell apart when it travelled outside scripted responses. 188.On the whole, I find the Plaintiff’s case unreliable and unbelievable, and prefer the Son’s case which I summarise as follows:
XVII. JOINT ACCOUNT 189.Vicky claimed she did not know the sum of $150,000.00 odd in the Joint Account belonged to whom even though she knew it came from the Sole Account. She just guessed it was the Mother’s monies as she did not have sight of any documentary proof and did not go inside the Office during the Bank Visit. Neither Vicky nor the Son deposited further money into the Joint Account. Vicky noted from bank statements of the Joint Account sent to Vicky’s Home that HSBC levied a service fee of $300.00/month. She claimed she asked the Son “「點解你唔入番啲錢呀?[49] 而家畀銀行個個月扣300鈫。」我媽媽都知, 我媽媽都話. …… 喺度好勞氣咁話「呢300鈫罰嘅, 不如改個嗰個戶口佢喇, 畀人罰錢」”. 190.I find Vicky’s claim that she did not know the monies in the Joint Account belonged to the Mother totally specious. If she had no idea, it begs the question why she would be prepared to be joint account holder with the Son for the Joint Account. Notwithstanding Vicky’s denial, her allegation that she told the Mother the monthly service fee was levied on the Joint Account and she suggested to the Mother “不如改個嗰個戶口佢喇” (which indicated the Mother could decide what to do with the Joint Account) clearly meant she knew the Sole Account Balance was the Mother’s monies. Further, Vicky’s insistence it was just causal chat that “佢[Mother]肉赤嗰300鈫，「轉做普通嘅呢，就唔使畀人罰喇。」咁話，佢話「呢300鈫攞去飲茶仲好喇。」咁話囉，傾偈” only served to undermine Vicky’s veracity because if it were not the Mother’s monies there was really nothing for her to “肉赤”. 191.Vicky said the Mother had no wish to withdraw monies from HSBC, and only wanted to transfer monies in the Joint Account to an ordinary bank account to obviate the monthly service fee of $300.00. But this did not sit well with Isabelle’s evidence that she asked (but she could not remember when) Vicky whether monies in the Joint Account could be withdrawn for the Mother’s Living Expenses, and Vicky told her she had asked the Son but he ignored them. Further, if Isabelle had thought of using monies in the Joint Account for the Mother’s Living Expenses and such request was refused, then why did she not ask the Mother, who was the owner of the monies “managed” by the Son, to directly ask the Son to release such monies for such purpose? I find it quite improbable she “聯想唔到”. I also note with interest Isabelle did not make such demand to the Son for use of the Mother’s monies “managed” by him and/or the Sole Account Balance in the Joint Account even after she was appointed as the Committee. I am not persuaded it was because Isabelle was busy with the Mother’s affairs, but rather she knew the monies transferred to the Son were not the Mother’s monies. In any event, right after Isabelle was appointed as Committee in October 2011, the Mother received payment of $3,160,793.79 from the Father’s Estate in November 2011 so she was adequately provided for in respect of her Living Expenses. 192.On balance I reject Vicky’s above evidence. Although the Son could no longer remember whether Vicky ever approached him with suggestion to put monies in the Joint Account into an ordinary bank account to avoid the monthly service fee, I accept his evidence that he would have readily agreed had he been asked. After all, the monies were the Mother’s and not his, and Vicky could look after the same for the Mother with bank statements sent to Vicky’s Home. There was no plausible reason for him to be obstructive when he had been reimbursed by the Son Transfer. I also accept the Son did not ignore the Mother. After all, he regularly saw her when she attended his office in 2002-2004 during weekdays to “work” for him. I find the Mother never personally asked him where her monies were, or asked for return of her monies. XVIII. 2002-2003 193.Anna said the Mother complained to her she had no clear understanding of her monies and bank account. Isabelle also said in/about 2002 (but she was not sure when) the Mother started to complain she did not have bank statements of her monies (as she felt more comfortable with paper bank statements to hand), and in mid- to end of 2003 she complained the Son failed to return her monies to her. Isabelle said the Mother tried to contact the Son but could not reach himself by telephone, and told the Daughters her unhappiness with the Son. Vicky said the Mother “時時喇” told her she had monies placed with Son, and “自從分咗錢之後, 佢都有時時打電話畀我哥哥, 想問下嗰啲錢嘅情形呀, 咁我哥哥又逃避佢呀, 唔答佢呀, 咁佢都好唔開心, 成日都同我講, 所以等到差唔多03年呢, 佢就話要搵律師幫佢手喇”. Vicky said “我媽媽一路同我講, 佢話佢啲錢問哥哥, 哥哥又唔答佢, 佢都唔知去咗邊, 咁佢又想攞番啲錢, 哥哥又唔睬佢。……唯一呢個要去搵律師囉, 我唔識得要問佢前後後啲原因, 我唔識乜嘢, 總言之我就帶咗佢去律師樓, 由得佢......”. Anna said the Daughters did not feel they should interfere in such matter between the Son (who was self-centred and was not easy to talk to) and the Mother, and they could not succeed where the Mother could not. But the Daughters did not bring the Mother to the Branch to obtain the transfer slip of the transfer of over $9,000,000.00 for documentary record of where money went. Vicky said she did not know this could be done. But it was the Plaintiff’s case that in 2000 when the Mother wanted to lift the HSBC Deposits Isabelle accompanied her to the Branch to make enquiries and give instructions. No explanation was given as why the Mother did not do so this time round. 194.Isabelle also said in mid- to late 2003 the Mother said she wished to get lawyers to help her and kept pressing Isabelle, but Isabelle told her this would take time as she was not familiar with engaging lawyers. Isabelle claimed that after spending a better part of 2003 looking for solicitors’ firm, she finally had a referral to HTP. Isabelle said that in 2004 she instructed HTP inter alia to help the Mother seek clarification of her monies of $7,000,000.00 odd and to help the Daughters deal with the Father’s Estate. Vicky said before they approached HTP (partly because the Mother wanted her monies placed with the Son returned to her), she, Isabelle and the Mother sat down to talk over what happened, and she asked the Mother how much money she had with Son but the Mother was unclear. 195.Vicky said Isabelle was the main person who gave instructions to HTP, SWC and RLC, and Vicky herself also gave instructions although she was not the main contact. But solicitors’ correspondence were mainly in English, so Vicky had to rely on Isabelle to explain to her. Anna said Isabelle told her HTP was instructed to require the Son to clarify what happened to the Mother’s monies, and she was not too involved as she lived in the United States except that she went to HTP’s office once in 2004/2005. Anna said she left it to Isabelle to deal with HTP, but Isabelle did not tell her the details. 196.I reject the Daughters’ evidence as I have found that the Mother well understood and agreed to the Transfers. The Daughters’ evidence wavered uncertainly in relation to the Mother’s wishes, ie whether she just wanted to have sight of the bank statements to understand her financial position or whether she wanted the Son to return her monies (as Anna and Vicky alleged in paragraphs 193-194 above). If it were the latter case, then HTP’s correspondence that merely requested the Son to give account of monies is not understood. If it were the former, M&Ds’ failure to approach HSBC for clarification is not understood when Isabelle and the Mother had previous experience of approaching the Branch in 2000 and when Vicky said they had the last bank statement showing the Transfers. Further, Vicky said at the time when HTP was instructed, she knew the monies transferred to the Son for him to “manage” on behalf of the Mother was about $7,000,000.00 (see paragraph 202 below). HTP’s demands for clarification of the sums of $17,000,000.00 and $9,687,012.04 are not understood and spoke ill of the Plaintiff’s case 197.Isabelle recalled she had asked for transfer slips of the Transfers during the time when the M&Ds were represented by HTP, and HTP had written to HSBC, but although they obtained 1-2 pages from HSBC, their request was essentially rejected and HSBC had no information for them. Isabelle said she only saw the microfilm copy of the transfer slip for the Son Transfer (B/2-1) during the time when the Daughters were represented by RLC (possibly in 2008-2009). I do not accept such allegation. First, in my view, it should not be difficult for the Mother as the sole account holder of the Sole Account to ask for or authorize request for microfilm copies of the Transfers from HSBC. Secondly, Vicky claimed they had the last bank statement which showed a transfer over $9,000,000.00 from the Sole Account on 6 September 2001, so there was no plausible reason for HSBC to refuse production of record to RLC but not to HTP. Thirdly, it begged the question why the microfilm copy was retrievable from HSBC by RLC (when the Mother was already mentally incapacitated) and not by HTP (when the Mother still had mental capacity) and SWC. I do not believe Isabelle’s explanations. On balance, I reject the Daughters’ evidence as to the events in 2002-2003. XIX. 2004 198.Isabelle said that in 2004 HTP was essentially instructed to help M&Ds understand the status of the Father’s Estate. On 9 June 2004, HTP wrote to SWL (B/17-18) inter alia as follows:
Isabelle said the proposal of a trust fund for the Mother was not a bad idea even though the Mother had her own monies in the sum of about $7,000,000.00 with the Son, but the Mother and Daughters wanted to have accounts of the Father’s Estate (since at the time they had no idea of its value) before they would consider the necessity of a trust fund. The Son said it was his wish to set out a family trust for the Mother not that she needed it, and he explained his proposal as follows:
199.As seen below, the request to account for the whereabouts of the entire amount of the Sole Account Monies of about $17,000,000.00 or the Son Transfer of about $9,000,000.00 permeated throughout HTP’s correspondence. Mr Yau submitted that if the Mother had gifted such monies to the Son, “it would be well neigh impossible for the Mother to keep on asking the Son to account for her monies through HTP” or “for a reasonable person, in the shoes of the Son, to remain reticent as to the true circumstances under which he received the said sum despite repeated demands for account as to the whereabout of Mother’s monies by HTP”. 200.On 17 August 2004, HTP wrote to SWL (B/22-23) referring to a meeting on 14 August 2004 and subsequent telephone conversation between solicitors, and sending (a) renunciation of administration duly signed by the Mother, and (b) the marriage certificate of the Parents subject to an agreement by the Son during the meeting that he would:
Isabelle said the Mother agreed to let the Son have priority to obtain the grant for the Father’s LA so he could commence legal action in the name of the Father’s Estate against LHK. The Son in the Son Aff (i) denied the Son had agreed to the aforesaid conditions, (ii) claimed the Son had never instructed SWL to accept these conditions, and (iii) claimed the Daughters had no right to impose any such condition on him (B/57). 201.The Son promptly obtained the Father’s LA on 27 August 2004 and commenced HCA2082/2004 against LHK on 9 September 2004 (B/25). On 11 October 2004, SWL wrote to HTP (B/24) inter alia as follows:
202.The request to account for the Sole Account Monies of about $17,000,000.00 was not understood. Isabelle confessed the Daughters knew that out of the Sole Account Monies of about $17,000,000.00, (a) they had received $7,400,000.00 (Daughter Transfers) and (b) the Sole Account Balance of about $150,000.00 had been transferred to the Joint Account. Hence the Son at best could only have received about HK$9,000,000.00 of which $2,000,000.00 was his Per Capita Share. Vicky also agreed the Mother’s monies with the Son were about $7,000,000.00. There was simply no basis to ask the Son to give account of all of the Sole Account Monies. Isabelle did not know why HTP’s letters were inconsistent with her instructions, and said she had explained the whole background facts to HTP, but deferred to HTP’s advice to demand the Son to give account of the sum of $17,000,000.00 under the Sole Account. 203.As regards Mr Yau’s submissions in paragraph 199 above, it must be remembered HTP did not ask the Son to account for monies that the Mother had entrusted to him for safe-keeping and capital growth that might have invited a denial and explanation. They simply asked him to account for all of the Sole Account Monies even though the Mother well knew about the Daughters Transfers, Per Capita Share for the Son and repayment of $600,000.00 by Angel to the Son (as the Daughters accepted). The Son could hardly be blamed for feeling aggrieved by such deliberately obtuse query, and for telling HTP to take instructions from the Mother, Anna and Vicky who attended the Bank Visit and witnessed the Transfers, especially when he did explain the Transfers were made by the Mother in the presence of Vicky, Anna and the Son. From the Son’s perspective (and as I have found), the Mother and Daughters all knew the purpose/manner of distribution including the Son Transfer. If the Mother entrusted monies for the Son to “manage” and required the Son to account and return her monies, then why not say so and set up the correct amount? This raised doubt as to whether instructions came from the Mother or whether Isabelle/Vicky were masterminding the claim with Anna and Angel largely leaving it to them to deal with the solicitors as the Son suspected. In such circumstances, there was ample basis for him to be concerned as to whether the Mother actually gave any proper instructions to HTP.[50] I also reiterate the observations in paragraph 197 above. 204.On 18 November 2004, HTP wrote to SWL with copy to “client” (B/25-26) saying that during a meeting on 14 August 2004, “as an inducement for our clients to allow your client to act as the administrator of the [Father’s Estate], your client agreed to provide to our client an up to date account (“the Account”) together with all supporting documentary evidence soonest possible. Your client also agreed to constantly keep our clients informed of the progress of the claim against [LHK] in view of your client’s previous procrastination in handling this matter. Subject to such agreement, [the Mother] agreed to renounce her right as the administrator of the [Father’s Estate]”. HTP expressed concern over progress of HCA2082/2004 against LHK as there was no information apart from receipt of the writ of summons on 9 September 2004, and demanded an account of the Father’s Estate or a report of progress of the case against LHK. Such letter went on to say:
205.Interestingly, by this time HTP recognised the Daughters Transfers of $7,400,000.00, and sought an account of the sum of $9,687,012.04, but HTP still seemed to have ignored the Per Capita Share of $2,000,000.00 for the Son. But Isabelle admitted she knew $2,000,000.00 out of the Son Transfer was the Mother’s gift to the Son, so even on the Plaintiff’s case the Mother’s monies were just $7,687,012.04. In my view, Isabelle must have known it was wrong to say the entire sum of $9,687,012.04 was unknown or the Son had to account for his Per Capita Share. Isabelle also claimed she told HTP (who represented M&Ds) what she knew including (a) the Mother told Isabelle she would repay Isabelle for her Living Expenses, (b) $150,000.00 odd in the Joint Account could not be used for such purpose given the Son’s disagreement, (c) the Property had been transferred to Isabelle so the Mother had no property under her name, (d) the Mother was anxious and careful about her monies, and (e) the Mother had about $7,000,000.00 with the Son, but left it to HTP to decide what to put in such letter, and even suggested it was mere solicitors’ writing style (筆法). In light of Isabelle’s knowledge and instructions to HTP, I find Isabelle’s explanation that it was the solicitors’ fault or “writing style” hard to accept. 206.Isabelle claimed the Mother (accompanied by Isabelle) had personally met HTP’s solicitor and gave instructions that (a) she had given monies to the Son to “manage”, (b) she wanted to know where the monies were, and (c) she wanted to demand return of her monies. But Isabelle also said the Mother merely wanted an account first. I find such allegations as to the Mother’s instructions unconvincing. The Plaintiff’s primary case was one of express trust, and this wavering stance of demanding account of the Sole Account Monies and the Son Transfer, and the reluctance to make a demand after rounds of correspondence suggested Isabelle and Vicky (who were the main persons who gave instructions to HTP) were fishing for information and knew there was no basis to make such claim. XX. 2005 207.On 14 March 2005, HTP wrote to SWL (B/27-29) chasing for inter alia (a) progress of HCA2082/2004 against LHK, (b) updated administrator’s account with all supporting documents in respect of the Father’s Estate, and (c) account of the “missing amount” of $9,687,012.04 (ie the Son Transfer) as follows, and warning that unless there was positive reply within 14 days then legal proceedings would be instituted:
208.On 31 March 2005, SWL replied by enclosing copy Defence in HCA2802/2004 served on 11 March 2005, and stating there was little point in rendering an administrator’s account at that stage since the administration of the Father’s Estate was far from being complete, but M&Ds should have been aware of the assets and liabilities of the Father’s Estate from the estate duty clearance papers and certificate of assessment. SWL went on to say as follows:
SWL also disagreed any lack of good faith on the part of the Son when inter alia he paid estate duty and interest of $8,096,668.30 and had been financing the legal action against LHK, and when the benefits of his actions would be shared by all beneficiaries by the Father’s Estate, and he urged the Mother and Daughters pay their contributions to such payments. 209.Mr Yau criticised the Son not giving full and detailed explanation to HTP’s request for account of the Son Transfer. The Son explained “我唔需要講㗎，因為大家都知道係乜嘢事，由2000年開始至到而家2016年咪又係--仍然都係喺嗰度，好清晰㗎”, and these demands to account made him even more convinced it was due to machinations by Isabelle and Vicky: “…… 根本上呢十幾年嚟係兩個人喺後面搞鬼㗎之嘛，同我mother一啲關係都冇㗎，所以我唔會問媽咪，佢哋咁樣講呢，就肯定就話係媽咪講，我媽咪絕對唔會話「如果佢十四日唔畀番呢，就告佢」，根本上就係我其中一個妹Isa同埋另外一個--兩個喺後面十幾... 同埋Vicky”. In light of my findings as to the Son Transfer, the Son could not be blamed for thinking Isabelle and Vicky were behind all this. 210.On 7 December 2005, HTP wrote to SWL (B/32-34) complaining of the Son’s failure to (a) voluntarily report to the Mother and Daughters on progress as to the administration of the Father’s Estate, (b) report on progress of the legal proceedings against LHK with copy relevant court documents and witness statements, and (c) render interim administrator’s account together with all supporting documents, and denying liability to contribute to estate duty for the Father’s Estate and legal costs for HCA2082/2004. In respect of the Son Transfer, HTP stated as follows:
Isabelle again said she had explained all backgrounds facts to HTP, but she deferred to HTP’s strategy in categorising the entire Son Transfer as “missing amount” and demanding account of the same. Again, for the above reasons, I find such explanation specious. Further, notwithstanding such letter, Isabelle said under cross-examination she did not ask their solicitors to demand the Son to return the Son Transfer or the Claimed Sum, and she agreed in re-examination they were essentially seeking clarifying account from the Son. This was consistent with the Son’s thinking that the Mother would not have commenced legal proceedings against him. I also note HTP’s letter also just said HTP would advise their clients to take legal action, not that their clients had decided to take legal action, and in actual fact no such legal proceedings were issued until the present action after the Mother became mentally incapacitated. The Son reiterated he was not surprised by such letter, “因為係Isa主導㗎嘛。蔡律師嗰度係Isa佢主導嚟告, 唔係我mother ……係Isa同佢去, 用佢嘅名, 代表埋佢。…… 因為我知道係Isa behind成件case嘅, 唔關我mother事嘅”. XIX. 2006 211.On 23 January 2006, Vongs wrote to HTP (B/35-36) stating that the Son disputed any imputation on how he discharged his duties as administrator of the Father’s Estate when he had advanced monies to fund various expenses and had spent and was then still spending time/effort to inter alia deal with EDO, obtaining grant to the Father’s LA, and assisting the prosecution of HCA2082/2004, and when the Daughters refused to join as co-administrator to share the work/responsibility and failed to contribute to estate duty and expenses. Vongs reported on the progress of HCA2082/2004, ie pleadings and discovery were completed and work was being done on witness statements with a view to set the case down for trial after exchange of witness statements, and reiterated the Son’s previous stance on the matter of administrator’s account and documents. In respect of the Son Transfer, Vongs stated as follows:
212.Anna said when SWC was engaged to represent M&Ds, she attended SWC’s offices once but left Isabelle to give instructions to SWC. She only read SWC’s letters after the commencement of the present action. But the Mother did not meet SWC’s solicitors because in 2006-2007 she was rather weak and could not handle too much dialogue. She started to be ill then. 213.On 22 April 2006, SWC wrote to Vongs (B/37-38) as follows:
Isabelle said she told SWC the Mother only claimed for the return of the Claimed Sum, and she did not know why SWC claimed for recovery of the entire amount of the Son Transfer. I find it too much of a coincidence for 2 solicitors’ firms to be mistaken about the instructions given to them. Further, the Mother had not made any decision to take legal actions for return of her monies as yet when she was represented by HTP (see paragraph 210 above) as confirmed by Isabelle. Anna also said the Mother started to be ill and did not meet SWC’s solicitors as she was too weak to handle too much dialogue (see paragraph 212 above). There was no cogent explanation for the Mother’s demand in SWC’s aforesaid letter. In any event, it was the Plaintiff’s case that the Mother entrusted the Reduced Sum to the Son for safe-keeping and capital growth, and she did sign the transfer slip for the Son Transfers. The suggestion in SWC’s letter of 22 April 2006 that their clients only knew from Vongs’ letter dated 23 February 2006 that such sum was transferred to the Son also lent weight to the concern whether it was not the Mother but Isabelle and Vicky who were behind these demands. 214.On 30 May 2006, the Son rendered the 1st interim Account (B/39). 215.On 6 July 2006, SWC wrote to Vongs (B/39-43) to say the 1st Interim Account was not a complete and perfect inventory and account of the Father’s Estate and there were no supporting documents to substantiate the calculations so the balance was incorrect. SWC asked the Son to provide full and proper accounts of a number of matters including:
In my view, there was no basis for such demand to be made in light of paragraph 5(c) above, and I reiterate the discussion in paragraphs 49-50 above in which I reject such contention. 216.Isabelle and Vicky said that since 2006 the Mother’s health failed and she suffered from degenerative dementia and stroke. Her health continued to deteriorate until she had no speech and was bedridden. XXII. 2007 217.In 2006, the Daughters as beneficiaries sued the Son as administrator to account for the Father’s Estate, and the Son filed a number of affirmations. On 9 January 2007, the Son filed the Son’s Aff in HCMP2139/2006 (B/44-96). In respect of the Home, the Son stated in the Son’s Aff as follows (B/54-56):
In respect of the HSBC Deposits, the Son’s Aff stated as follows (B/59):
218.Mr Yau took issue with the Son’s reference to absolute gift and also to voluntary distribution by the Mother in the Son’s Aff. Like the Son, I am unable to see any material difference insofar as the nature of the Claimed/Reduced Sum was concerned. Mr Yau next submitted that in respect of the proposal referred to in the Son’s Aff (“Son Proposal”) for $14,000,000.00 be given to the Mother, Siblings and Grandson, the inclusion of the Mother for entitlement to a Per Capita Share was consistent with the Plaintiff’s case as to what was proposed at the 6/9/01 Meeting and contrary to the Son’s case of there being 6 instead of 7 Per Capita Shares for the Siblings and Grandson. 219.The Son did not have much impression of the Son Proposal referred to in paragraph 35 of the Son’s Aff and could not remember why a Per Capita Share of $2,000,000.00 was proposed to be given to the Mother in addition to the Per Capita Shares to be given to the Siblings and Grandson. When asked whether the Son Proposal was made before or after the distribution of monies on 6 September 2001, the Son did not understand because by 2004 the Sole Account Monies had been distributed, and he said he must have made the Son Proposal at the meeting on 15 April 2004 at HTP’s office because prior to that meeting “我都冇機會同佢哋傾” (which evidence suggested he met with some or all of HTP’s clients on 15 April 2004). 220.Mr Yau asked me to look at paragraph 35 of the Son’s Aff and the Son’s evidence in relation thereto with a jaundiced eye. But a number of matters are of note. First, paragraph 35 of the Son’s Aff was made in response to “paragraph 34 of the Plaintiffs’ Affirmation”, but such affirmation was not before the court and the contextual background for the Son’s evidence in paragraph 35 of the Son’s Aff was unknown. Secondly, the Son’s Aff referred to a meeting at HTP’s office on 15 April 2004 attended by the Son and some/all of clients of HTP. But none of the Daughters gave evidence as to what was said at such meeting (if they attended such meeting) or their understanding from HTP as to what transpired at such meeting (if they had not attended). There was no countervailing evidence from the Daughters. Thirdly, Mr Yau complained about the Son’s failure to refer to the 5/9/01 Meeting and the Son Extra Sum being reimbursement of his various previous payments in the Son’s Aff, but the Son’s stance was that M&Ds knew about the Transfers and distribution of the Sole Account Monies “on [the Mother’s] own volition” because the Mother, Anna and Vicky participated in and witnessed the whole process during the Bank Visit. HCMP2139/2006 concerned the Daughters’ application for account of the administration of the Father’s Estate and not about the Mother’s monies (which the Son explained in paragraph 34 of the Son’s Aff), so there was no reason for the Son to give any detailed account of the Mother’s monies. Fourthly, as to the assertion in the Son’s Aff that the distribution took place even when “there was no consensus among the family members as to how Mother’s deposits should be distributed”, this had always been the Son’s case. At the 5/9/01 Meeting, the Daughters objected to a Per Capita Share for the Grandson, but the Mother nevertheless made a decision for distribution in the manner set out in paragraphs 103 and 105-106 above. 221.Fifthly, having carefully considered the evidence, I am unable to say, as Mr Yau would have me do, that the Son Proposal pre-dated the meeting on 15 April 2004 because the Son “recalled that …… [he] mentioned this proposal at the meeting on 15th April 2004 in the office as an introduction to the background” (my emphasis). This must be considered in context. HCMP2139/2006 concerned the Daughters’ application for account and particulars of the Father’s Estate, and they claimed the Father’s Half Share belonged to the Father’s Estate instead of belonging to the Mother by virtue of survivorship (see paragraphs 49-50 above). Shortly after the meeting on 15 April 2004, there were without prejudice correspondence concerning proposals for setting up a trust fund for the Mother (out of the Father’s Estate). Paragraph 35 of the Son’s Aff stated that even before the Son finished his words (which presumably included the Son Proposal) at the meeting on 15 April 2004, Isabelle and Vicky disagreed with the Son Proposal, and said “the assets of the [Father’s Estate] should be distributed according to intestacy”. This reference to inclusion in the Father’s Estate and intestacy rules harked back to the Daughters’ contention that the Father’s Half Share (ie source of half of the HSBC Deposits) was part of the Father’s Estate, and suggested that such proposal was made at the meeting on 15 April 2004 when dispute arose between the Son and Daughters in relation to slow progress of the administration of the Father’s Estate and the Daughters’ claim as to what assets were to fall within the Father’s Estate. It is not for this court to speculate (especially when the Plaintiff did not adduce evidence from the Daughters in relation to the meeting on 15 April 2004) whether or not the Son Proposal made at the Mother’s direction was one that was made to the Daughters in an attempt to resolve their dispute in 2004 but which proposal did not proceed in view of objection by the Daughters, and there was eventually fresh proposal for a trust fund for the Mother in June 2004, but suffice to say I am not persuaded the Plaintiff had shown on balance that the Son Proposal was one that necessarily supported the Daughters’ evidence as to the 6/9/01 Meeting. 222.On 5 January 2007, the Son made the 2nd Interim Account. Isabelle made her 2nd affirmation in HCMP2139/2006 on 6 February 2007 in which she had the following to say in respect of the Sole Account Monies:
223.Isabelle said she found the suggestion in Vongs’ letter dated 23 January 2006 (see paragraph 211 above) that the Son Transfer was “completely voluntarily made” strange. Isabelle confessed that when she made Isabelle’s Aff she knew the Mother was only demanding the return of the Claimed Sum of about $7,000,000.00 odd which did not sit well with Isabelle’s Aff that asserted the Mother did not make any voluntary transfer of $9,687,012.04 or any part thereof to the Son. 224.First, if the Son Transfer was not voluntary (see paragraph 14 of Isabelle’s Aff – see paragraph 222 above) or “withdrawn under instructions of [the Son]” (see HTP’s letter dated 14 March 2005 – see paragraph 207 above), then it did not sit well with the Plaintiff’s case that the Mother entrusted her monies to the Son to “manage” on her behalf. Isabelle blamed the solicitors again and said Issabelle’s Aff was drafted by SWC. Under cross-examination, Isabelle agreed the Mother willingly gave $9,000,000.00 odd to the Son, but apart from $2,000,000.00 that was given to the Son, the balance of the Son Transfer was for the Son to “manage” for her. But when pressed as to why she would not make clear in Isabelle’s Aff that $2,000,000.00 out of the Son Transfer was “completely voluntary made” by the Mother to the Son, Isabelle again said Isabelle’s Aff was drafted by her solicitors and she could not remember. But when further pressed, she admitted that every paragraph of Isabelle’s Aff had been explained to her (even though she could no longer remember the explanation at trial), but she did not clearly tell SWC $2,000,000.00 out of the Son Transfer was for the Son at the time (even though she mentioned it when she first instructed them), but she later changed to say she could not remember. 225.Isabelle went on to claim even though the Mother had told her that her monies were with the Son, she had not seen the transfer slip for the Son Transfer and for all she knew there might have been no Son Transfer at all, so she just stated an amount she knew (ie $9,687,012.04) in Isabelle’s Aff. I refer to the discussion in paragraphs 196-197 above and reject such allegations. XXIII. 2010-2011 226.On 4 October 2010, the Son rendered the Draft Final Account. On 14 November 2011, the Son paid the Mother’s entitlement in the Father’s Estate in the sum of $3,160,793.79 to the Committee. Anna agreed she also received monies distributed from the Father’s Estate. 227.In mid-2011, Isabelle applied to be appointed as the Committee. By that time the Daughters were represented by RLC, and Isabelle recalled that RLC obtained microfilm copy of the transfer slip for the Son Transfer of $9,687,012.04 (that comprised the Claimed Sum). As to why she did not state in the MH Certificate (prepared and filed by RLC) that the Mother was entitled to the Claimed Sum, Isabelle again claimed she told RLC about the HSBC Deposits and Claimed Sum, and further gave instructions/explanation to RLC about the nature of such sum, but was legally advised there was no need to include the same as trust money in the MH Certificate. When it was pointed out to her that not only had she failed to mention any trust in the MH Certificate she also declared there was no trust, Isabelle was unable to give further explanation. I do not accept Isabelle’s explanation, especially when she said RLC took the particular trouble to get the microfilm copy of the transfer slip of the Son Transfer and she gave particular instructions on the same. 228.It would appear from the above analysis that Isabelle’s answers to inconsistences was to blame the solicitors, but it would be too much of a coincidence that all 3 solicitors’ firms misunderstood her instructions. In 2007, Isabelle’s Aff alleged the Son Transfer was involuntary (which suggested there was no trust). In 2010, there was no mention of any trust in the MH Certificate. I find it improbable that SWC and RLC committed the same error. Further, it was difficult to envisage RLC advising Isabelle to exclude the alleged trust in the MH Certificate (when the standard form certificate in Annex B of Practice Direction 30.1 required giving information as to trust interests), and letting Isabelle make an untrue statement that the Mother had no trust interest. It was only on 11 June 2013 (see paragraph 231 below) (when the Mother was mentally incapacitated) that the Plaintiff’s solicitors alleged the Claimed Sum was entrusted to the Son for safe-keeping and capital growth (B/194-195). 229.There is no need for me to speculate whether the present claim by the Mother was in fact the Daughters’ attempt by the backdoor to circumvent their undertaking in the 4/11/10 Order not to pursue any claim in relation to the BOC Deposits, but the Daughters’ poor attempt to get some monies from the Son was reflected by their refusal to accept until the 1st day of trial that at least $600,000.00 out of the Claimed Sum was not the Mother’s monies subject to any trust, and by their insistence that the Father’s Estate had fully reimbursed the funeral expenses paid by the Son when the Draft Final Account showed otherwise. 230.In my view, the inconsistencies in the solicitors’ correspondence could not be brushed aside by saying the variations were slight and there was a constant theme of complaint that the Mother had monies in the hands of the Son which he should give account. In my view, the devil was in the details, and as Mr Wong submitted, the fact remained that the solicitors had put different and wrong amounts in their correspondence when Isabelle had, according to her, told them “everything”. Repeated errors by different solicitors’ firms were quite improbable, and amounted to poor and unreliable excuse. XXIV. 2013 231.On 11 June 2013, the Mother by her present solicitors wrote to the Son (B/194-195) to ask him to explain “what has happened to the balance sum of monies after 6th September 2001 which was on that day held in [the Sole Account]”, and set out their understanding that the Mother “made a distribution of a total of $7,400,000 to [the Daughters], and a sum of $2,000,000 to [the Son] and another sum of $2,000,000 possibly, at your insistence, to [the Grandson]. A small sum of $157,582.15 was retained for opening another account”. It was said that the balance of $7,687,012.04 (ie the Claimed Sum) was entrusted to the Son for safe-keeping and capital growth. 232.On 25 June 2013, C&Y sent a holding reply (B/196). On the 25 June and 4 July 2013, the Mother’s present solicitors wrote to the Son (B/197-198) and to C&Y (B/199-200) to ask for return of the Claimed Sum. This again was perplexing because Isabelle knew that out of the Claimed Sum $600,000.00 was Angel’s repayment to the Son. 233.On 10 July 2013, C&Y replied to the Daughters’ present solicitors (B/201-202) to reject their demand for return of the Claimed Sum and gave the Son’s stance as follows:
234.The Son claimed the Mother never asked him for return any part of the Son Transfer when they met from time to time after the Bank Visit. It was only after the Mother became mentally incapacitated and the Committee was appointed that the present action was pursued to re-open the Son Transfer (which had been completed many years ago). Plainly, the Mother was well aware that part of the Sole Account Monies had been transferred to him even in 2001, and if the Mother thought he misappropriated her monies, he expected the Mother would have taken action long before 2014, especially when she had legal representation since 2004. XXV. SUMMARY 235.On balance I find that of the Son Transfer, $600,000.00 was Angel’s repayment to the Son, $2,000,000.00 was the Mother’s gift to the Son, $2,000,000.00 was the Mother’s gift to the Grandson, and $5,087,012.04 was the Mother’s gift being reimbursement of the various expenses the Son previously paid such as the Father’s medical and funeral expenses. There was no question of any express or resulting trust in respect of any of such sums in favour of the Mother, and I reject the Plaintiff’s contention that the Reduced Sum was the Mother’s monies entrusted to the Son for safe-keeping and capital growth. 236.There was lack of cogent evidence to draw inference as to when such alleged trust was created and how much monies were subject of such trust, and the metamorphosis in the Plaintiff’s case from $9,687,012.04 (Son Transfer) in 2004 to $7,687,012.04 (Claimed Sum) in 2013 and finally to $7,087,012.04 (Reduced Sum) in 2016 (when the Mother already lost mental capacity since December 2006) spoke loudly against any express trust. 237.I have also found the Son had not been “managing” the Mother’s monies prior to the Transfers. After all, the Sole Account Monies were merely on fixed time deposits, and there was no evidence the Son either operated such account or made investments with such monies. I see nothing sinister in the Son getting a large share than the Daughters. Even Anna accepted the Mother intended to reimburse the Son for his expenditure for the Father and/or Father’s Estate, and I have found the Mother was a traditional wife and mother who respected the Father’s views, and who held traditional inheritance values for “長子嫡孫”. Since the distribution concerned the Mother’s monies, Mr Yau’s suggestion that the Son obtained a larger share than he would under the Father’s intestacy was irrelevant. As for the contention that the Mother would not have gifted almost all of her cash when she had many more years to live, at the time of the Transfers she still had the Property which was only transferred more than a year later to Vicky (who had no interest in the Property) and Isabelle in recognition of her paying the Living Expenses, and but for the unexpected hiccup with LHK’s delay and professional negligence that was not envisaged in 2001, the Mother could look towards distribution from the Father’s Estate. 238.Further, if the Mother wanted the Son to “manage” her monies for her, there would be no need to close the Sole Account or open the Joint Account. She could have kept the remaining monies of $7,244,594.19 (ie $17,244,594.19 (Sole Account Monies) - $10,000,000.00 (Per Capita Shares for the Siblings)) in the Sole Account and asked the Son to “manage” the same as before. The fact the Mother took the step to close the Sole Account and open the Joint Account clearly indicated a different intention and a change from the previous arrangement. Alternatively, the Mother could have transferred the entire sum of $7,244,594.19 to the Son for him to “manage” the same on her behalf without the trouble of opening the Joint Account in the name of Vicky and the Son. Alternatively, the Mother could have placed such sum in the Joint Account and let the Son and Vicky to manage such monies on her behalf. In my view and as Mr Wong submitted, the deliberate split of the sum of $7,244,594.19 into 2 parts (ie the Son Transfer and the Sole Account Balance) with different treatment strongly suggested they were for different purposes and plainly supported my conclusion there was no trust in respect of the Son Transfer. XXVI. OTHER MATTERS 239.By reason of the above findings and conclusions, it is unnecessary for me to consider the interesting arguments raised by Mr Yau and Mr Wong on (a) the presumptions of advancement and resulting trust, and (b) the defence of laches. XXVII. CONCLUSION 240.In the premises, the Plaintiff’s claim is dismissed. There is no reason why costs should not follow event. I grant a costs order nisi that the Plaintiff shall pay the Son costs of the action (including all costs reserved, if any) with certificate for two counsel to be taxed if not agreed.
Mr Albert Yau and Mr Kevin Poon, instructed by Chui & Lau, for the plaintiff Mr Damian Wong and Mr Alexander Wong, instructed by Yung & Au, for the defendant [1] total aggregated value of property passing in connection with the Father’s death on which estate duty was leviable was stated to be $25,802,300.00 [2] because (1) at all times the Son instructed solicitors to handle probate matters, (2) the Son invited the Daughters to administer the Father’s Estate but such invitation was declined, (3) the complaint that the Son alleged he was the sole beneficiary of the Father’s Estate was erroneous, (4) the Son paid over $8,000,000.00 to clear estate duty in respect of the Father’s Estate, and (5) the Son funded the litigation in HCA2082/2004 by the Father’s Estate against LHK [3] the transfers in paragraph 5(g)(i)-(iii) above are collectively referred to below as “Daughters Transfers” [4] see paragraph 10 of the Son’s Defence and paragraph 9 of the Plaintiff’s Reply [5] see paragraph 11 of the Son’s Defence and paragraph 9 of the Plaintiff’s Reply [6] ie the Claimed Sum in paragraph 7 below [7] ie the Reduced Sum in paragraph 9 below being the Claimed Sum less $600,000.00 being part of Angel’s Per Capita Share (see paragraph 6 below) that was used as repayment to the Son [8] ie the Claimed Sum in paragraph 7 below [9] ie $17,244.594.19 (Sole Account Monies) - $7,400,000.00 (Daughters Transfers) - $2,000,000.00 (Per Capita Share for the Son) - $157,582.15 (Sole Account Balance) [10] Isabelle received $2,000,000.00 for herself and $2,000,000.00 for Anna who did not have any Hong Kong bank account, and Angel received $1,400,000.00 after $600,000.00 was deducted as repayment to the Son [11] the Plaintiff denied the presumption of advancement was applicable, and relied on the presumption of resulting trust [12] the Plaintiff denied recovery of the Reduced Sum held by the Son was barred by laches [13] on balance I do not accept the suggestion in Isabelle’s Aff that the Son and Father were not on good terms in the last few years before the Father passed away and/or that the Son only came to see the Father to borrow money as his business was not good (B/104) [14] see Son’s Aff filed on 9 January 2007 (B/46) [15] see footnote 14 above [16] partially recouped from the Father’s Estate (see paragraphs 63-65 below) [17] there was no deduction for funeral expenses in the Draft Final Account (see paragraph 4(s) above) [18] eventually recouped from the Father’s Estate (see deduction items 2-3 and 5(a) of the Draft Final Account in paragraph 4(t) above) [19] partially recouped from the Father’s Estate (see deduction item 5(b) ($2,080,547.00) as compared with addition items for costs and disbursements ($1,444,275.00) and interest therein ($145,020.00) received from the defendant for refund of taxing fee ($22,248.00) in the Draft Final Account, see paragraph 4(t) above) [20] about $10,000.00 odd a month, about $100,000.00-$200,000.00 a year, or about $500,000.00 in the 4 years from 1997 to 2000 [21] see Attorney-General of Hong Kong v Wong Muk Ping [1987] 1 AC 501, 510 [22] see Tobin & anor v Esekiel & anor (2012) 83 NSWLR 757 ,775 [23] see In re B (Children) (Care Proceedings: Standard of Proof) [2009] 1 AC, 11, 24 applied by Poon J (as he then was) in Standard Chartered Bank v Li Wai Ping HCA10587/2000 (unreported, 17 February 2011) para 19 [24] see Star Glory Investment Ltd v Kai Tuo (H.K.) Technology Co Ltd & ors HCA3523/2002 (unreported, 13 August 2005) para 12, Esquire (Electronics) Ltd v The Hong Kong and Shanghai Banking Corp Ltd [2007] 3 HKLRD 439, 494, Lam Rogerio Sou Fung v Tan Soon Gin George HCA2576/2005, Chu J (as she then was) (unreported, 5 May 2011) paras 39-40, Hua Tyan Development Ltd v Zurich Insurance Co Ltd (fka Zurich Insurance Co) & anor [2012] 4 HKLRD 827, 835, and Hui Cheung Fai & anor v Daiwa Development Limited & ors HCA1734/2009, DHCJ Eugene Fung SC (unreported, 8 April 2014) paras 77-83 (see also The Ocean Frost [1985] 1 Lloyd’s Rep 1, 57) [25] see Isabelle’s Aff that claimed the Father’s Half Share and the Home ought to fall within the Father’s Estate until such attempt was abandoned under the 4/11/10 Order (see paragraphs 4(q) and (u) above) [26] eg the Son tried to get a Per Capita Share out of the Sole Account Monies for the Grandson, the Son made the Silence Request to Vicky and Anna at the Bank Visit even when nothing untoward was anticipated, and Vicky/Anna knew the remaining balance of the Sole Account Monies (about $17,000,000.00) after the distribution by way of the Daughters Transfers (about $7,400,000.00) should be more than the Sole Account Balance (about $150,000.00) transferred to the Joint Account, etc [27] eg the Mother orally expressed she (a) entrusted her monies to the Son to “manage” on her behalf and/or (b) disputed the gift of $2,000,000.00 (Per Capita Share) to the Grandson [28] if that were the case, then the Transfers would have amounted to intermeddling in the Father’s Estate which would have required all Siblings to return the monies they received for proper administration, but whilst there was demand for the Son to account for the Father’s Half Share, Isabelle’s Aff did not offer to return the Daughters Transfers [29] ie those sold to repay the bank loans for payment of duty/interest (see paragraphs 53 and 55 above) [30] eg the Daughters claimed they only learnt HCA2082/2004 had been set down for trial from the Son’s Aff [31] actually Anna handled the admission procedures at HKAH for the Father [32] Anna claimed she applied for the burial plot ($200,000.00 odd) and “龕位” (about $5,000.00), ordered the coffin (a better quality one chosen for grave burial but reasonably priced), and arranged the necessary ceremonies/rites (not exceed $100,000.00) [33] “可能有其他嘅, 但係我真係諗唔起, 因為好多數, 多到你根本上都記唔得, 好似你請蔡伯勵嚟睇風水, 睇幾次, 上埋山, 落埋晒--甚至佢落葬嗰啲, 佢 ……. 嗰啲錢, 送封利是, 係咪？好多嗰啲細數, 我真係唔記得” [34] Isabelle and Vicky agreed 1 of them must have given details of Vicky’s Home to their solicitors, but claimed not to know why the Mother who lived at the Home used Vicky’s Home as her address (with Vicky thinking it was a mistake by the solicitors, and Isabelle saying it was probably the result of her answering questions put to her by the handling solicitors) [35] Isabelle and Vicky claimed to have no idea why the Property was used as their address when they did not live there [36] but Isabelle claimed she understood $500,000.00 would be for repayment of the Living Expenses to her [37] “…… 只不過話[Mother]唔可以單方面停咗唔續期啫, 但係[HSBC]冇講過其他嘢,「妳唔可以停咗嗰個定期佢唔做。」[HSBC]就係咁講, 總言之係話「妳唔可以話停囉」” [38] Isabelle said Anna raised objection, but Vicky did not pay attention to whether Anna did or did not [39] ie $10,000,000.00 to the Siblings and leaving the remaining monies of about $7,000,000.00 intact [40] “即係嗰陣時就未--就醞釀分錢，但係最後係點樣呢，係只係一個general idea嘅啫，就冇話precisely你係點點點點點點呀咁樣，最後決定就係9月5號晚” [41] the Son said he could not identify/locate all such records due to long lapse of time [42] “因為我mother話會畀番嗰啲錢我嘅。……就係咁多年嚟，我攞咗出嚟墊支，例如我father嘅medical同埋兩三次醫藥費，醫院，同埋funeral，佢曾經話將來會畀番我。” [43] see also paragraph 11(3) of the Son’s witness statement filed on 2 January 2015 [44] with $4,000,000.00 transferred to Isabelle since Anna did not have any bank account in Hong Kong, $1,400,000.00 transferred to Angel since $600,000.00 was deducted as repayment to the Son, and $9,687,012.14 transferred for the Son comprising $2,000,000.00 (Per Capita Share) for the Son, $2,000,000.00 (Per Capita Share) for the Grandson, $600,000.00 being repayment by Anna and $5,087,012.04 (Son Extra Sum) for the Son [45] but the Son could not remember whether the Manager gave the exact amount of the Sole Account Balance or just said it was about $150,000.00 [46] Anna said “喺我嘅心目中，我就覺得，媽媽只係拎咗一部分錢出嚟分畀我哋嘅啫，咁佢其餘嘅錢，佢一路都係都仲喺度㗎嘛，咁所以我冇諗到嗰個七百幾萬嗰啲數字囉，我係覺得... ...「咁得意嘅？點解又有要十五萬幾開一個新戶口啫？」” [47] Vicky thought the Mother might have been thinking of the Father when she was dealing with banking procedures for distribution of the HSBC Deposits that were derived from the BOC Deposits jointly held by the Parents [48] see Shephard v Cartwright [1955] AC 431 applied in Overseas Trust Bank Ltd v Lee See Ching John [1999] 3 HKC 197, 201 [49] such evidence suggested Vicky had asked the Son to deposit monies to meet the threshold of $300,000.00 for account balance to avoid the monthly service fee but the Son refused [50] Anna was in the United States, and Angel said she never attended any solicitors firm or personally give instructions to solicitors, so she had not seen documents/ correspondence by solicitors, but sometimes Vicky might briefly update her on progress during casual chats | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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