Kong Hon Kui Thomas and Kong Hon Quan Marius (Administrators of the Estate of Kong So Ngo, Deceased) v. Wu Yuk Chun Judy and Another
Read the full judgment text of HCA 350/2013 on BabelCite. This High Court CFI judgment was delivered on 21 March 2019.
1. In this action, the plaintiffs, as administrators of the estate of their aunt Madam Kong So Ngo (“ Mrs Chung ”), claim against the defendants for possession of a landed property and all other assets of Mrs Chung including her personal effects.
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HCA 350/2013 [2019] HKCFI 742 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 350 OF 2013 ________________________
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_________________ J U D G M E N T _________________ Introduction 1.In this action, the plaintiffs, as administrators of the estate of their aunt Madam Kong So Ngo (“Mrs Chung”), claim against the defendants for possession of a landed property and all other assets of Mrs Chung including her personal effects. 2.Mrs Chung passed away on 13 April 2003 intestate and letters of administration of her estate were granted to the plaintiffs (collectively referred to as “Ps”) on 17 October 2012. Mrs Chung was born on 5 September 1917[1] and was 85 years old at the time of her death. Mrs Chung had a younger sister Madam Kong So Fong (“Madam Kong”) who was living with her at the time and who survived her and passed away on 14 November 2008. Madam Kong was described to be 87 years of age on her death certificate, which meant that Madam Kong was born in about 1921 and she was about 4 years younger than Mrs Chung. Madam Kong left a will dated 27 July 1989 appointing Ps to be executors of her estate and also beneficiaries of her residuary estate. Probate of Madam Kong’s estate was granted to Ps on 28 December 2009. 3.Mrs Chung’s estate included the following :
4.The 1st defendant (“Judy”) claims to be Mrs Chung’s “goddaughter” (契女/誼女) and she had counterclaimed against Ps for, amongst other things, a declaration that she was/is the beneficial owner of all assets in Mrs Chung’s estate including in particular the Property and it was her case that Mrs Chung had repeatedly represented to her and/or promised her that if Judy agreed to live in the Property to look after her and Madam Kong, then Judy would eventually be entitled to all of Mrs Chung’s assets (“Promise”). Judy said she had relied on the Promise in moving with her family to reside in the Property and as a result had suffered detriment and Judy should be entitled to all the assets of Mrs Chung’s estate. 5.Judy’s case in her re-re-amended defence and re-amended counterclaim (“RRAD & RAC”) was thus based on (1) proprietary estoppel and also (2) that Ps’ claim of damages for trespass for the period prior to Madam Kong’s death was time barred under section 4(1)(a) of the Limitation Ordinance, Cap 347. 6.So far as the 2nd defendant was concerned, this comprised of all those persons in occupation of the Property. I understand that Ps’ application for default judgment against the 2nd defendant had been stood over to the trial. No one had appeared for 2nd defendant at the trial or throughout this action. 7.During the trial, Ps indicated and confirmed that they were no longer claiming mesne profits/damages for trespass prior to Madam Kong’s death on 14 November 2008. As a result, there was no time bar issue and the only remaining issue was the proprietary estoppel raised by Judy. 8.Counsel Mr Tom Ng appeared for Ps at the trial, and Counsel Mr Leon Ho appeared for Judy. Brief Background 9.Ps are brothers and they are respectively ranked 3rd and 5th among 6 children. Their number 1 brother had passed away. They have another older brother, number 2. Thomas is number 3. Number 4 is a sister, and Marius is number 5 and number 6 is another sister. Thomas was born in October 1934. He was working as a draftsman in an architectural firm prior to his retirement in 1997. Younger brother Marius was born in 1941. He was working as a sales representative prior to his retirement in 2000. At the time of the trial, they were aged respectively 84 and 77. Ps’ father was the eldest son of their paternal grandparents who also had 6 children, 3 sons and 3 daughters. One of Ps’ father’s younger sisters was Mrs Chung whom Ps called “3rd aunt” (三姑姐) and the other of their father’s younger sisters was Madam Kong whom Ps called “4th aunt” (四姑姐). 10.According to Thomas, when he was still a young boy, his paternal grandparents, his “oldest aunt” , “3rd aunt” and “4th aunt” resided on the 1st floor of a building at 30, Stanley Street[2] (“Stanley Street Building”), while Thomas’s parents and their children, including Thomas and Marius resided on the 2nd floor of the Stanley Street Building. The two floors were rented by Thomas’s paternal grandfather. 11.After the death of his paternal grandfather in 1942, Thomas said his family moved to reside with his paternal grandmother, Mrs Chung and Madam Kong on the 1st floor of the Stanley Street Building. Mrs Chung was about 24 and Madam Kong was about 21 years old at the time and both were jobless, and it was Thomas’s father who was the one who took up the responsibility for paying the rental and the household expenses of the whole family. All of them lived under the same roof in the Stanley Street Building for more than 10 years and they had a very good relationship. 12.Mrs Chung attended Belilios School, a well known girls’ school in Hong Kong, and she later joined the Red Cross and/or had volunteered as a nurse for the defence forces during the Second World War. 13.Mrs Chung married Mr Chung Tak Kwong (“Mr Chung”) on 11 January 1954 and after marriage, Mrs Chung moved out of the Stanley Street Building to live with her husband at 2nd floor, No 9 Caine Road (“No 9 Caine Road”)[3]. Mrs Chung was about 36 years old when she married Mr Chung, who was then about 45 years old. They were both Christians and they had no children out of their marriage. 14.As seen in a deed later entered into by Mrs Chung and the developer of No 9 Caine Road on 16 January 1990 (“Deed”)[4], Mr Chung was the registered owner of two flats at No 9 Caine Road, namely 1st and 2nd floor, No 9 Caine Road[5]. 15.From an obituary published by St Paul’s Church, Mr Chung was born in October 1908. His parents died when he was a child. He had attended St Paul’s College, and later qualified as a teacher and had taught at St Paul’s College. He then joined the Hong Kong Government and during the Second World War, had served the defence forces. He was awarded a British Empire Medal for Meritorious Service for Gallantry on 30 December 1947. After the war, he rejoined the Government, and later retired early in April 1960 due to health problems. Thereafter he had provided advice and guidance on education and career issues to young people recommended or referred to him by friends and organisations. 16.Mrs Chung did not take up any form of employment after marriage. 17.As for Madam Kong, Thomas said that Madam Kong had worked after the war until probably about 55 years old when she retired. After the Stanley Street Building was demolished in about 1962, Madam Kong moved to a rented room on Seymour Road to live by herself. 18.Thomas married Sze-To Wai Ching, Justina (“Justina”) in 1966. Justina was about 18 when she married Thomas, which meant she was born in about 1948 and she was about 70 at the time of the trial. She never worked and has always been a housewife after her marriage to Thomas. They have two sons, born respectively in 1967 and 1970. 19.According to Thomas, his family and Mrs Chung and Madam Kong maintained a harmonious relationship even after his two aunts had moved out of the Staunton Street Building. 20.As for Judy, she was born in December 1961[6], and she was 56 at the time of the trial. Judy said she first met Mr Chung in 1975 when she was a student. According to Judy, she was waiting for a friend at City Hall and Mr Chung started to talk to her and he told her that he would usually stroll around the City Hall and if she needed help with her studies, he could provide private tuition to her. Judy then said from 1975 to 1977, Mr Chung had helped her in preparing for Hong Kong Certificate of Education Examinations and later Mr Chung had helped her to prepare for the London Chamber of Commerce & Industry Commercial Law Examination in Hong Kong in 1983. According to Judy, she used to have lessons with Mr Chung at the City Hall at weekends, but in the late 1970s/early 1980s, Mr Chung who was then in his early 70s had difficulties with walking, and Judy started to have lessons at Mr Chung’s home at No 9 Caine Road, and that was how Judy first met Mrs Chung. It was Judy’s case that a bond was then developed between her and Mr and Mrs Chung. 21.It was not quite clear as to when exactly Madam Kong moved to live with Mr and Mrs Chung. I will consider this issue again later in the judgment. What was not disputed was that prior to Mr Chung’s death, Madam Kong had already moved to reside with Mr and Mrs Chung at No 9 Caine Road. 22.Mr Chung passed away on 12 August 1986 at the age of 77 years old. Mrs Chung would be about 68 at that time. Judy said she continued to visit Mrs Chung frequently after Mr Chung’s death. In March 1988, Judy married a Mr Sin Wing Cheung (“Sin”), and after marriage, they lived with Sin’s grandmother at her flat known at 8E Caineway Mansion on Caine Road (“8E Caineway Mansion”). During the trial, Judy had said she was pregnant at the time of her marriage and later her son William was born on 15 September 1988. 23.Not long after Mr Chung’s death, a developer was planning to redevelop the building of No 9 Caine Road, but it would appear that Mrs Chung initially refused to move. Eventually, Mrs Chung, as administratrix of Mr Chung’s estate, executed the Deed pursuant to which she agreed to sell No 9 Caine Road on the following terms:
24.The actual date and sale price of the two flats at No 9 Caine Road was unknown. The date of completion of the acquisition for the Property was 1 February 1990[7] and the sale of the two flats at No 9 Caine Road should this be on or about that date. It would appear that either the developer had paid for her the purchase price of the Property or such purchase price was paid out of the sale proceeds of the two flats at No 9 Caine Road. At that time, Mrs Chung would be about 74 years old. 25.According to the SJE (as defined below), the saleable area of the Property is 1,326 sq ft. According to the assignment plan, there was a living/dining room with balcony, a master bedroom with an en-suite bathroom, two other bed rooms, a second bath room, a servant’s room and a servant’s water closet. However, during inspection in 2015, the SJE noted that there had been alterations to the plan, and that (i) a 4th bedroom was added and occupied part of the living/dining room next to the balcony; (ii) the servant’s water closet and the room next to the water closet was altered to become the servant’s room; (iii) the original servant’s room was altered to become a bathroom for the servant with the corridor altered to be the servant’s room. 26.It was not quite clear when exactly the alterations were carried out in the Property but by the time Judy and her family moved in, the layout plan of the Property had already been altered. Judy had said there were 4 bedrooms when she and her family moved in and that the servant’s toilet was removed by the previous owner/s and that the servant’s room was used as a storeroom. 27.As seen in the Deed, the developer had agreed to pay for all expenses and costs for repair and decoration of the Property to render it in a tenantable condition, and thus Mrs Chung and Madam Kong probably moved into the Property sometime in 1990/1991. Even though Thomas and Marius had said in their witness statements that they noticed Judy had moved into the Property in 1991, Marius had clarified during the trial that he first saw Judy in 1991 when Judy was helping Mrs Chung move and that Judy had not yet moved into the Property then. 28.According to Thomas, shortly after Mrs Chung and Madam Kong moved into the Property, the developer of No 9 Caine Road had arranged for a couple to live in the Property together with Mrs Chung and Madam Kong to keep them company, and that the couple was living there for about a year before moving out. Judy did not mention this in her witness statement, but she had not disputed this. 29.According to Ps, after Mr Chung’s death, Judy was employed by Mrs Chung as a carer, and she was to reside in the Property rent free as payment for her job of caring for the elderly Mrs Chung and Madam Kong. It was Thomas’s evidence that Mrs Chung had told him Judy was staying in the Property as a “nurse”/ “carer” to look after Mrs Chung and Madam Kong. 30.Judy denied she was employed by Mrs Chung as a “nurse” or a “carer”. She had produced a copy of the Certificate of Proficiency issued by the London Chamber of Commerce and Industry in Autumn 1983, certifying that she had been examined in the subject of Commercial Law and was found qualified to receive the certificate for proficiency in the subject[8]. She joined the Zuellig Group as a receptionist/secretary effective from 9 August 1993 with a monthly salary of HK$9,000[9] and as from October 1996 onwards until the present, she has been employed as an estate agent[10]. 31.As mentioned earlier, after her marriage to Sin, Judy resided at Sin’s grandmother’s property at 8E Caineway Mansion. I will come back to Judy’s then living condition later. 32.According to Judy, Mrs Chung began to ask her to move into the Property in about 1991 and 1992, and that Mrs Chung had verbally made the Promise to her, which was repeated from time to time by Mrs Chung. 33.Eventually, in around the summer/autumn of 1994 Judy, her husband Sin, their son William and their domestic helper Rafaela Carino Bucay (“Bucay”) all moved into the Property to live with Mrs Chung and Madam Kong in the Property. At that time, Mrs Chung would be about 76/77 years old, and Madam Kong would be about 73 years old. During the trial, Judy indicated on a plan of the Property that Mrs Chung occupied the master bedroom, Madam Kong occupied the room next to Mrs Chung’s, and William and Bucay occupied the room opposite[11]. However, in her 1st witness statement, she had said William and Bucay occupied the room next to Mrs Chung’s room[12]. Anyway, Judy and Sin occupied the bedroom which was originally part of the living room. 34.Later, in around late 1995, Sin moved out of the Property, but Judy decided to remain living in the Property with William. It transpired during the trial that although Judy and Sin lived separately after he moved out, they never got divorced and had remained in contact and on friendly terms throughout. 35.William was born in September 1988 and was about 6 years old in 1994. William went to the United States to attend High School in about September 2005, but returned in June 2006 to study at a local school and that in about January 2008 he left Hong Kong again to attend a short foundation programme at Cambridge Arts & Design. In September 2008, he went to Bethany to do “A” levels, and in 2009, he attended a diploma course at University of Arts in London, and later he studied in a university in Paris. He eventually returned to Hong Kong in about 2012/2013. In 2013, he started working as an estate agent and is now working in the same firm as his mother. 36.Ps case was that after they were granted the letters of administration of Mrs Chung’s estate, they had asked Judy to deliver vacant possession of the Property and to move out, but Judy refused to do so and that Judy had been letting out some of the rooms in the Property to foreigners for short terms without Ps’ authorisation. Judy had further withdrawn all the balances in bank accounts held in the joint names of Mrs Chung and Judy, and almost all the balance in an account held in Mrs Chung’s sole name. Judy had also taken all of Mrs Chung’s personal properties in the safe deposit box, in particular, she had retained the 128 items in Annex A. 37.Ps issued the writ herein on 25 February 2013. The statement of claim went through a number of amendments, the final version being the RRRASOC filed on 30 August 2018. The Scott Schedule 38.With the limitation issue gone, the agreed Scott Schedule contained 6 issues, namely:
The law and Issue 1 39.The leading case which concerns proprietary estoppel is the House of Lords decision Thorner v Major and others [2009] 1WLR 776[13] and noting the comments of an academic authority that there is no definition of proprietary estoppel that is both comprehensive and uncontroversial (and many attempts at one have been neither), Lord Walker of Gestingthorpe then stated :
40.What was stated by Lord Walker in Thorner v Major above was also set out by Recorder Lisa Wong SC, as she then was, in Fung Oi Ha v Fung Pui On HCA 17/2012, unrep, 6 June 2016, namely the doctrine of proprietary estoppel is based on the following 3 main elements[15]:-
41.As further set out by the Recorder in the Fung Oi Ha case, there must be a sufficient causal link between the promises relied upon and the conduct which constitutes the detriment[16]. 42.There was no dispute over the above general principles. However, Mr Ng submitted that it was unclear whether the doctrine of proprietary estoppel would apply to non-landed properties. He had referred to the following paragraph in The Law of Proprietary Estoppel by Professor Ben McFarlane, as follows[17]:
43.The above *refers to footnote 62, **refers to footnote 63 and ***refers to footnote 64. As pointed out by Mr Ho, footnote 64 refers to cases where the English courts have held that the promise-based principle was applied to property other than land. Mr Ho referred to passages in two other textbooks, Estoppel by Conduct and Election (2nd Edition)[18] and The Law of Waiver, Variation and Estoppel[19]to support his submission that the principle is of general application and that the weight of authority indicates that proprietary estoppel can operate in relation to property other than land. 44.Mr Ho had also referred to Re Basham [1986] 1 WLR 1498[20] where Edward Nugee QC held that :
45.In Thorner v Major, the defendants’ counsel had argued that In re Basham was wrongly decided so far as it extended, not just to the deceased’s cottage, but to the whole of his residuary estate[21]. Lord Walker however was of the view that the Lordships did not need to decide whether In re Basham was correctly decided, so far as it extended to the residuary estate, and that he would prefer to express no decided view, and that on that point, Lord Walker had also pointed out that the deputy judge in In re Basham relied largely on authorities about mutual wills, which were arguably a special case. 46.In Thorner v Major, Peter Thorner, the owner of a farm, had no wife or children and was a first cousin of the father of David Thorner who claimed upon Peter’s death, Peter having died intestate, to have a right to inherit the farm. The case for David, as pleaded, relied primarily on proprietary estoppel and extended not simply to the farm but to the whole of Peter’s net estate. However, the trial judge, as Lord Scott of Foscote had pointed out, that quite rightly in his opinion, confined David’s equity to the farm, its live and dead stock and associated chattels and the working capital standing to the credit of the farm account with the Bank[22]. The trial judge found that, amongst other things, Peter was a taciturn and private man who was not given to direct talking, and that the trial judge was satisfied that by the statements/remarks made by Peter, including that of handing to David a “Prudential bonus notice” relating to two policies on Peter’s life with the statement to David that the policies were for Peter’s death duties, Peter was intending to indicate to David that he would be Peter’s successor to the farm in question, and that David’s understanding to that effect was correct. The trial judge subsequently held that proprietary estoppel was established and that David should receive the land, buildings, live and dead stroke and other assets of Peter’s farming business. 47.The Court of Appeal allowed the defendant’s appeal on the grounds that Peter’s implicit statement of 1990 did not amount to a “clear and unequivocal representation” by Peter upon which he had intended David to rely. David appealed and his appeal was allowed by the House of Lords. 48.It was held by the Lords, amongst other things, that (1) whether a representation had sufficient clarity to establish a proprietary estoppel depended upon the context in which it had been made; and (2) that it was a necessary element of proprietary estoppel that the assurances given to the claimant should relate to identified property; that the judge had found that there had been an assurance by Peter that the claimant would inherit “the farm”; that both parties had known that the extent of the farm was liable to fluctuate, according to sales and purchase of parcels of land from time to time; that it was clear, however, that the assurances given by Peter related to the extent of the farm as it would exist at the time of his death; that, consequently, there was sufficient certainty about subject matter to found a proprietary estoppel. 49.Lord Walker of Gestingthorpe said:
50.Mr Ng had relied on the above passage in submitting that proprietary estoppel usually relates to land. However, Mr Ho pointed out that the House of Lords upheld the trial judge’s order that once proprietary estoppel had been established in relation to the farm, the claimant would acquire proprietary interest on the land, buildings, live and dead stock and other assets of the farming business, including funds in the farm’s current account[23], namely other non-land property. 51.Insofar I can see, there was nothing said in Thorner v Major which pointed towards that proprietary estoppel be restricted or confined to landed property. Having said this, in light of my later factual findings in this judgment, it is not necessary for this Court to determine this issue. The evidence 52.Thomas had filed no less than 4 witness statements. Marius had filed 2 witness statements. Thomas’s wife Justina has also filed one witness statement in support of Ps’ case. 53.Judy’s former domestic helper Bucay was contacted by Ps and she came to Hong Kong from the Philippines at Ps’ invitation and gave a witness statement on behalf of Ps. Bucay came to Hong Kong again to attend the trial to be cross examined. 54.As for Judy, she had also filed 4 witness statements and her son William had filed 3 witness statements in support of his mother’s case. They both attended trial to give evidence. Judy also called a good friend of William’s, Yeung Wing Man (“Yeung”) to give evidence on her behalf. 55.Centaline Surveryors (“SJE”) were appointed to prepare a report on the market rents of the Property for various periods commencing on 14 April 2003 until 24 February 2017. A report was submitted on 26 August 2015[24]. As there was no dispute to the report, the SJE was not called. 56.After the parties’ closing submissions, the Court indicated to the parties of its intention to call for the probate files of Mr Chung’s estate and of Madam Kong’s estate and that leave was then given to the parties to inspect the files and to make supplemental submissions. There was no objection to the Court calling for the said probate files. Credibility of witnesses 57.In Mo Ying v Brillex Development Ltd and Another [2014] 3HKLRD 224 (CFI)[25], DHCJ Eugene Fung SC had set out the general principles which judges apply as to fact finding and the assessment of credibility summarised in Hui Cheung Fai v Daiwa Development Ltd (unreported, HCA 1734/2009, 8 April 2014)[26] :
58.With the above in mind, I turn to consider the present case. Some relevant matters 59.As Lord Walker had said in Thorner v Major, he would prefer to say that to establish a proprietary estoppel the relevant assurance must be clear enough and what amounts to sufficient clarity, is hugely dependent on context, or the surrounding circumstances[27]. Before I come to consider the 3 elements of the pleaded proprietary estoppel, I will first of all set out my findings and observations in connection with the following:
Mrs Chung’s financial affairs after Judy moved into the Property 60.To start with, there was no information on what assets Mrs Chung had held in her personal name at the time of the death of Mr Chung. She had never been in gainful employment and appeared to have been dependent financially on Mr Chung. 61.As seen from the probate file of Mr Chung’s estate, the letters of administration of Mr Chung’s estate were granted to Mrs Chung on 28 April 1989. Mr Chung was an orphan and both his parents died in the Mainland when he was about 7 years old and Mr Chung had no siblings and no children. There being no other family members who would have been entitled to his estate on intestacy, Mrs Chung, being his widow, was the sole beneficiary of his estate. 62.As also seen from the probate file, the major assets of Mr Chung’s estate were his two flats at No 9 Caine Road which were valued to be a total of HK$900,000 at the date of Mr Chung’s death. The gross principal value of his estate was HK$909,011.38, and amongst his remaining assets was cash in his bank accounts of about HK$5,300. Among his bank accounts at HSBC and Standard Chartered Bank (SCB), there was a savings account held by Mr Chung in joint names with Mrs Chung at HSBC (“HSBC 075342 Account”). The balance of this account at Mr Chung’s date of death was HK$730. There was no mention of the 128 items in Annex A in the schedule of properties attached to the letters of administration granted to Mrs Chung. 63.A printout provided by HSBC on 29 July 2013 of the details of the bank accounts which had been held by Mrs Chung (“HSBC Printout”)[28] indicated she had held 3 savings accounts in joint names with Judy, a time deposit account in joint names with Judy, a savings account in her sole name (“HSBC Sole Account”) and also the HSBC 075342 Account. The HSBC Printout also indicated that after Mr Chung’s death on 12 August 1986, Mrs Chung had continued to maintain the HSBC 075342 Account for over 3 years until it was closed on 14 November 1989. 64.The HSBC Printout indicated that the HSBC Sole Account was opened on 19 August 1986, 7 days after Mr Chung’s death, and from the transaction history report of this account provided by HSBC from 1 November 2001 to 13 April 2003 (“History Report”)[29], there had been two “Auto Cr” of regular monthly amounts respectively of HK$1,491 (or HK$1,490) and HK$705 into the HSBC Sole Account. Judy had said one was Mrs Chung’s “fruit money/生果金” (old age allowance from the Government) and the other one was her widow’s pension from the Government. 65.It would thus appear that after Mr Chung’s death, the major assets Mrs Chung had were the two flats at No 9 Caine Road she inherited from Mr Chung and some cash. 66.As mentioned earlier, Mrs Chung later entered into the Deed as administratrix of the estate of Mr Chung and pursuant to the Deed, the Property was acquired under Mrs Chung’s name. At about the same time, she sold the two flats at No 9 Caine Road to the developer. 67.As seen in the HSBC Printout, Mrs Chung had a time deposit account at HSBC which was opened on 1 February 1990 (“HSBC Time Deposit Account”), and the time deposit confirmations as at 16 December 1996 indicated that there were two time deposits of a total of about HK$2,475,000 at that time, namely (i) a HKD Time Deposit of HK$1,975,000 @ 4.9% interest per annum, and (ii) a USD Time Deposit of US$64,574.45 @ 5.0625 interest per annum[30]. 68.As the date of the opening of the HSBC Time Deposit Account on 1 February 1990 coincided with the completion date of the acquisition of the Property in Mrs Chung’s name, it was more probable than not that the amounts therein came from her sale of the two flats at No 9 Caine Road. Further, since at that time, the only savings account she held at HSBC was the HSBC Sole Account, the HSBC 075342 Account having been closed about 2½ months earlier on 14 November 1989[31], unless the interests were rolled over with the principal, it would appear that the interests from the HSBC time deposits would have been credited into the HSBC Sole Account during the period between 1 February 1990 until 16 December 1996. 69.On 16 December 1996, Mrs Chung opened two savings accounts in joint names with Judy, one in HKD and one in USD, and Mrs Chung also added Judy’s name to the HSBC Time Deposit Account (collectively referred to as “HSBC Joint Accounts”)[32]. Copies of the savings accounts passbooks showed that the two HSBC Joint Savings Accounts were opened for the credit of interests of the two time deposits held under the HSBC Time Deposit Account, one of USD and one of HKD, from 16 December 1996 onwards[33]. Save for those interests, and any accrued interests thereon, there was no other source for the credits. 70.Judy’s evidence during the trial was quite clearly that her name was added by Mrs Chung to the HSBC Joint Accounts, but it would appear from the HSBC Printout that the HSBC Joint HKD Savings Account and the HSBC Joint USD Savings Account were new accounts opened by Mrs Chung in joint names with Judy on 16 December 1996 and that the only “addition” was of Judy’s name was to the HSBC Time Deposit Account. 71.Mrs Chung had also held a joint HKD savings account and a joint HKD time deposit account at Standard Chartered Bank with Judy (collectively “SCB Joint Accounts”). Ps did not appear to be aware of these accounts at the time they applied for letters of administration of Mrs Chung’s estate since the SCB Joint Accounts were not stated in Thomas’ affidavit for the Commissioner for Estate Duty, nor in the RRRASOC. 72.The SCB time deposit confirmation dated 10 February 1996 indicated that on that day there was a transfer deposit of HK$ 314,000 which was placed on a time deposit for one month @ interest of 4.5% per annum and that the time deposit was held in joint names of Mrs Chung and Judy[34]. It would appear that the time deposit only commenced from 10 February 1996, but as seen from the passbook, the SCB Joint Savings Account was opened earlier, since there was an odd amount brought forward on that date. It would seem probable that the amount of HK$314,000 was transferred from the SCB Joint Savings Account, and in any event, the interests from the time deposit was credited into the SCB Joint Savings Account as from 11 March 1996 onwards. The exact date of the opening of the SCB Joint Savings Account was unknown. 73.Thus, Judy’s name was added to the SCB Joint Accounts on about 10 February 1996 whereas the HSBC Joint Accounts were opened later on 16 December 1996, with Judy’s name then added to the HSBC Time Deposit Account on that day. 74.To summarise, prior to Judy moving into the Property which she said was in summer/autumn of 1994, on the present evidence, the only bank accounts Mrs Chung held at HSBC was the HSBC Sole Account and the HSBC Time Deposit Account and she probably also held the savings account at SCB, and her only source of income was, in addition to the monthly payments from the Government, the interests from her time deposits and any accrued interests. 75.Notwithstanding Judy’s name appearing on the HSBC Joint Accounts and the SCB Joint Accounts (collectively “Joint Accounts”) as a signatory, and the accounts being operable by either signature of Judy or Mrs Chung, insofar as one can see, from early 1996 (when Judy’s name appeared) until January 1999, there appeared to be no withdrawals from the Joint Accounts. 76.Thomas’s evidence in his witness statement was that in 2000, Mrs Chung’s health deteriorated and as a result, she added Judy’s name to her accounts, in order for Judy to help her to withdraw funds to pay various household expenses[35]. During the trial, Thomas said it was Madam Kong who told him this, and that he did not know that in 1996, Mrs Chung had already added Judy’s name to the Joint Accounts. 77.Marius on the other hand said in his witness statement Mrs Chung had told him that as she was not able to walk properly, Judy had asked a bank officer to attend the Property and to add Judy’s name to Mrs Chung’s accounts, so that this would enable Judy to withdraw funds for household expenses and the property related expenses. Marius said he was somewhat concerned upon hearing this but he did not voice any opinion, since Judy was only able to withdraw upon Mrs Chung’s authorisation[36]. During the trial, Marius had also said Mrs Chung had told him that Judy suggested her to place her funds on fixed deposits to earn higher interests and this was why the amounts were then transferred to be placed on fixed time deposit. Under cross examination, Marius had said it was in 2001 Mrs Chung told him about Judy’s name being added to her accounts, that this was at the suggestion of Judy. 78.As seen earlier, it was not in 2001 that Judy’s name was added to the Joint Accounts. Marius had said that Mrs Chung mentioned to him about Judy’s name being added on 2 occasions, on one occasion it was when the HSBC officer went to the Property, and the other occasion was that when Judy helped her to earn more money by placing funds on fixed deposits. Marius was clearly confused and his evidence could not have been correct, since the visit of the HSBC officer to the Property was in 2002, and the purpose of the visit was not to add Judy’s name to Mrs Chung’s accounts. Further, the HSBC Time Deposit Account was opened by Mrs Chung in 1990, and there was no sufficient evidence that Judy was involved in that at all. 79.It was the evidence of Thomas and Marius that that they did not regard it appropriate to enquire or probe into their aunt’s financial affairs and they had said they never asked Mrs Chung. In any event, it was clear that they knew very little regarding Mrs Chung’s financial affairs. 80.It was Judy’s evidence in her 1st witness statement that after she moved into the Property, the financial arrangement between her and Mrs Chung was that Judy would be responsible for paying for all household expenses of the Property, including management fees, rates, utilities, food, salary of the domestic helper, and expenses of raising a pet dog, and that Mrs Chung and Madam Kong would pay (i) their own medical expenses and (ii) other personal expenses from their private savings (“Financial Arrangement”)[37]. Judy further said as some of the household bills were previously paid under Mrs Chung’s name, Mrs Chung would first pay those bills with funds in her bank accounts and that Judy would reimburse her, pursuant to the Financial Arrangement. 81.Judy was asked to explain what “personal expenses” of Mrs Chung’s she was referring to, Judy had said “laisees”, gifts to caretakers, medical expenses. It was also Judy’s evidence that Mrs Chung would often give cash gifts to her relatives (including Ps) who went to visit her of sometimes HK$10,000 to HK$20,000. 82.The evidence of Bucay, Judy’s former helper, was that after she moved to the Property with Judy’s family, Mrs Chung and Madam Kong had initially each paid her HKD1,000 per month, and later Mrs Chung increased the monthly sum to Bucay to HKD2,000 per month. 83.It was Judy’s evidence that she did not know about those payments to Bucay. Bucay’s workload must have increased after the move. I find it more probable than not that the two elderly ladies would have decided to pay her extra. In any event, there was really no sufficient evidence to contradict Bucay’s evidence on the amounts Mrs Chung (or Madam Kong) was paying her, and I therefore accept Bucay’s evidence in this regard. 84.It would further appear from Bucay’s evidence and also from Judy’s own evidence, that Mrs Chung would have been withdrawing funds from her other personal bank accounts for her use after Judy moved into the Property in 1994 until January 1999, since as said earlier, there appeared to be no withdrawals at all from the Joint Accounts even though they were in existence by end of 1996. There was no evidence as to which bank accounts Mrs Chung was withdrawing cash from during those 4 or 5 years but it would appear more probable than not it was from the HSBC Sole Account, since it was Bucay’s evidence (as seen below) that she was accompanying Mrs Chung to HSBC to withdraw cash and that the only account Mrs Chung held at HSBC between 1994 to January 1999, apart from the HSBC Joint Accounts, was the HSBC Sole Account. 85.Judy had denied that Bucay was accompanying Mrs Chung to HSBC to withdraw cash, and that it was Judy whom Mrs Chung had asked to withdraw or to accompany Mrs Chung to withdraw cash prior to January 1999. However, it was also Judy’s own evidence that she was working very long hours in particular after she became an estate agent in 1996 and Judy did not state which bank account was Mrs Chung withdrawing cash from. 86.Judy said she was the one who paid for all utility bills and management fees, including rates and that these were paid from her personal account at HSBC. Bucay disagreed and it was her evidence that in those early years after they moved into the Property, as Mrs Chung was still able to walk Buacy would accompany Mrs Chung to HSBC and after withdrawing cash from the bank, Mrs Chung would give her cash to pay the utilities bills at the Post Office and also the management fees to the management office. 87.The management fees were only payable after end of January 1996, as prior to that, the developer of No 9 Caine Road had agreed to pay pursuant to the Deed. It was however Judy’s evidence that as all management fees had to be paid by cheques, they were paid by cheques drawn from Judy’s personal account/s. Although the management fee invoices issued by the Management Office Knight Frank Petty Limited in September 2013 stated that the payment method for management fees was to be by cheque[38], there was no sufficient evidence that this was the only payment method during the years between February 1996 and 2003. 88.It was Bucay’s evidence during the trial that since 1994 until about 2002, even after Judy was asked to go to the bank to get cash for Mrs Chung, Mrs Chung would continue to give cash to Bucay to pay the utilities bills. When shown the History Report of the HSBC Sole Account indicating that the electricity and gas bills being paid regularly by standing instructions since November 2001, Bucay accepted that she could be wrong about the payment of electricity and gas bills after November 2001, but maintained that prior to November 2001, Mrs Chung had asked her to pay bills at the Post Office. 89.Although Bucay’s evidence was somewhat confusing as to what bills Mrs Chung was asking her to pay and over what period, she was firm in her evidence that she did accompany Mrs Chung to the HSBC to withdraw monies when Mrs Chung was able to walk, and that Mrs Chung had then given her cash to pay bills at the Post Office. 90.Bucay’s employment was terminated in about May 2007 prior to expiry of her contract and Judy said this was due to her incompetence in looking after the family, eg she was cooking food in the Property for sale to other domestic helpers , and also her working attitude, and on one occasion Bucay had lost Judy’s dog while walking it[39]. Bucay had lodged a claim in the Labour Tribunal for her long service payments and later on 29 October 2007, Judy settled her payments. In the present trial, Bucay had decided to give evidence for Ps, and her evidence has to be considered against this background although Bucay had said she bore no grudges against Judy. 91.I accept that Bucay had changed her evidence in relation to the period of her payment of the bills after being shown the History Report, but she had readily accepted what was reflected in the History Report and admitted that she might have made a mistake over the period. I am of the view that due to the lapse of time, Bucay’s recollection of certain matters could be faded but I see no reason why Bucay would want to make up a story in relation to her accompanying Mrs Chung to the banks and to help her pay the bills with cash. When Mrs Chung was mobile, there was no reason why she could not have gone to the bank herself to withdraw funds and it would make sense for her to ask Bucay to accompany her, in particular when Judy was at work. 92.Notwithstanding certain inaccuracies or changes on her part, I find Bucay a generally reliable witness and what she said was credible. I thus accept Bucay’s evidence and find more probable than not that Bucay did accompany Mrs Chung to HSBC from time to time when Mrs Chung was able to walk and go to the bank herself. I further accept Bucay’s evidence that Mrs Chung had asked her to pay some of the bills with cash. 93.Judy had agreed with Ps’ evidence that Mrs Chung “was a person with detail minded character especially in regard to money”. Judy further said that Mrs Chung led a frugal lifestyle although she would give cash to her relatives who visited her. It was Thomas’s evidence that Mrs Chung had a habit of recording all her daily expenses in a notebook. When Judy was asked about Mrs Chung’s such habit, Judy did not really deny this and only said Mrs Chung had many notebooks on her desk, in her room or in her drawers and she was writing down many things, in particular Judy said Mrs Chung had written the words “Sad, Sad, Sad” (“慘，慘，慘”) in her notebook. When William was asked about Mrs Chung’s habit of recording all her daily expenses in a notebook, he had responded by saying that Mrs Chung was always keen to learn new things and she was always practising her writing in her notebooks. 94.Judy said after Mrs Chung’s death, she threw out many of Mrs Chung’s notebooks/notes, but some were kept in the bookcase in the helper’s room but later they went missing. When asked why she threw some or Mrs Chung’s notebooks/papers out and kept some, Judy’s answer was that she wanted to keep some as a momento of Mrs Chung’s writings. She did not explain on what basis she selected what to keep. As seen later, the Handwritten Note (as defined later) was one document kept by Judy. As it was not really denied by Judy and William, I accept Ps evidence that Mrs Chung was a detailed- minded and meticulous person and had a habit of recording her daily expenses, and/or financial matters and affairs and in particular, I find the Handwritten Note (as defined later) supports my finding in this respect. 95.As said, withdrawals from the Joint HKD Savings Accounts commenced only in January 1999. I set out below a table of the aggregate annual withdrawals therefrom until the date of death of Mrs Chung:
96.The above totalled HK$393,000 over a period of about 4 years. There was in fact also a withdrawal of HK$30,000 on 6 February 2002 and another withdrawal of HK$45,000 from the HSBC Sole Account on 29 March 2003, as seen from the History Report. Excluding the latter withdrawals of HK$45,000, which was only 5 days prior to Mrs Chung being sent to Hong Kong Central Hospital and Queen Mary Hospital, the total withdrawals from Mrs Chung’s accounts for a period of about 4 years from January 1999 to January 2003 came to HK$423,000, or about HK$8,800 per month. 97.Further, according to the alleged Financial Arrangement, Judy was reimbursing Mrs Chung for say the electricity and gas bills, which averaged about HK$1,200 per month for the year 2002. This would mean Mrs Chung had available to her some HK$10,000 per month. 98.Judy’s evidence was that under the Financial Arrangement, Madam Kong would be responsible for her own personal expenses from her private savings. There was no evidence that Mrs Chung was paying for Madam Kong’s personal expenses. 99.As for electricity and gas, these were undoubtedly paid from the HSBC Sole Account. As said, the electricity and gas bills were about HK$1,200 per month, taking an average for 2002. Judy had produced various bills but those were all after Mrs Chung’s death. The copy of the Demand for Rates for the quarter July to September 2005 indicated the amount was then about HK$900 per month[42]. The official receipt of management fees indicated an amount received of HK$2,000 for December 2005[43]. The water bill indicated an amount of HK$417.70 for about 4 months ending in November 2007, or only about HK$100 odd per month. Since those amounts for rates, management fees and water bills were over two years after Mrs Chung’s death, these amounts should be less than HK$3,000 per month during the 4 years preceding Mrs Chung’s death. 100.By 1999, Mrs Chung was already about 81 years old. As seen later, although she had difficulties with walking, she was in reasonable good health and there was no evidence that she had incurred much medical expenses. Judy’s evidence was that Mrs Chung was frugal towards herself. If there were indeed the Financial Arrangement, those withdrawals from 1999 to 2003 plus Judy’s alleged reimbursement would mean that on average Mrs Chung should have about HK$10,000 per month in those 4 years to pay for her “personal expenses”. After paying Bucay $2,000 per month, and even if Mrs Chung could have given some laisees or cash to caretakers or relatives, it did not seem probable that she was simply giving away all the balance. 101.Judy’s case was that she either reimbursed Mrs Chung or paid direct the management fees, rates and utilities. She had mentioned that the water bills were paid by her, sometimes by EPS, or by cheque, or Bucay would pay the bills at the Post Office. What Judy said in fact supported what Bucay had said that she had gone to the Post Office to pay bills save that Bucay’s evidence was that cash for such payments was from Mrs Chung. As said earlier, Judy said one of the reasons she terminated Bucay’s employment was she was cooking food to sell to other domestic helpers, and Bucay was shown copies of gas bills in 2007 and 2008[44] as evidence that after Bucay left, the gas bills were much lower. However, if Judy had indeed been reimbursing Mrs Chung for electricity and gas bills, she would have noticed how high the gas bills were, at least as seen in the History Report from November 2001 until Mrs Chung’s death. 102.As indicated earlier, I have accepted Ps’ evidence that Mrs Chung was a detailed-minded and meticulous person with a habit of recording her daily expenses and/or financial matters. In light of my finding, there should have been some records in those notebooks/papers kept by Mrs Chung of her expenses and there should have been records if Judy had indeed reimbursed Mrs Chung her for utilities expenses or property related expenses or paid for food and other household expenses. 103.Judy’s only witness was William who had said that household expenses were paid by his mother, ie Judy, after they moved into the Property until Mrs Chung’s death. He was not asked to elaborate how he would know that household expenses were paid by his mother. William was only about 5 or 6 years old at the time of moving in and about 14 years old when Mrs Chung died, and I do not find his evidence in this respect reliable or would shed light on whether there was the Financial Arrangement as alleged by Judy or whether there had been any reimbursement by Judy of household bills to Mrs Chung. 104.The burden was on Judy to satisfy this Court that there had been the Financial Arrangement and there had been reimbursements by Judy for household bills, in particular reimbursements by her of any utilities or property related expenses paid by Mrs Chung and/or that Judy had been paying for the food and other common expenses of her family, Mrs Chung and Madam Kong. 105.Even though Judy had paid for Bucay’s contractual salary and her dog expenses, and Judy night have paid for food expenses for her own family or some common expenses, I do not find there was sufficient evidence that there was the Financial Arrangement as alleged by Judy, namely that she was paying for all household expenses including food expenses for Mrs Chung and Madam Kong or that Judy had reimbursed Mrs Chung for all the utilities or property related expenses or household expenses which had been paid by Mrs Chung, after she moved into the Property and prior to Mrs Chung’s death. 106.Bucay’s evidence was that she had not seen Mrs Chung paying Judy any monies. However, Judy’s own evidence during the trial was that prior to her name being added to the Joint Accounts, Mrs Chung had asked Judy to withdraw or Judy to accompany her to withdraw cash from bank, and that Mrs Chung had paid Judy cash of several thousands of dollars after withdrawal. Even though I find there was no sufficient evidence that, as alleged by Ps, Judy was “hired” or “employed” by Mrs Chung as a “nurse” or a “carer”, on Judy’s own evidence, Mrs Chung did pay her various cash sums from time to time. Further, I find it more probable than not that if Mrs Chung had paid Judy prior to the Joint Accounts being set up, Mrs Chung would have continued to pay various cash sums to Judy thereafter, since there was no reasonable explanation from Judy if Mrs Chung had paid her prior to her name being added to the Joint Accounts, why such payments would stop after Judy’s name being added. 107.So far as the HSBC Sole Account was concerned, according to Judy, since the account was used for receipt of Mrs Chung’s pension/ “fruit money”, Judy’s name could not be added to that account. According to Judy, on 30 July 2002, at Mrs Chung’s request, Judy had arranged for the HSBC Customer Relationship Manager to come to the Property and to assist Mrs Chung to change the operating mode of the HSBC Sole Account to be by way of Mrs Chung’s name chop instead of by Mrs Chung’s signature. When Judy was asked why this change was necessary, her response was that this was because Mrs Chung’s signature had changed and/or was illegible or it did not match the specimen signature on the bank’s record, and that it would be easier for Mrs Chung to operate the account by using a name chop. 108.Judy had produced a hand written note of Mrs Chung herself recording the visit of the HSBC Customer Relationship Manager on 30 July 2002 to effect the change of her personal signature to that of her name chop for operating the HSBC Sole Account (“Handwritten Note”)[45]. 109.As seen in the Handwritten Note, Mrs Chung was clearly mentally alert at the time. She had personally recorded down the date and year (both western calendar and Chinese calendar) and even time of the visit of the HSBC Customer Relationship Manager and the change of operating mode and she had further recorded that the name card of the manager was placed in the iron cabinet near the “Savings Passbook”. 110.Although Mrs Chung had recorded that Judy was assisting her to change the operating mode, it would seem that apart from the standing instructions, the only withdrawal from the HSBC Sole Account which could be seen in the History Report, prior to the change of operating mode was the sum of HK$30,000 on 6 February 2002 and after the change, the only sum withdrawn from the HSBC Sole Account prior to Mrs Chung’s death was the sum of HK$45,000 withdrawn on 29 March 2003, about 4 days prior to Mrs Chung being admitted to Queen Mary Hospital. Since Mrs Chung had funds in the HSBC Joint HKD Savings Account and the SCB Joint HKD Savings Account, there appeared to be no particular reason why Mrs Chung would wish to withdraw cash from the HSBC Sole Account nor was there sufficient evidence that Mrs Chung had encountered difficulty in withdrawing the $30,000 in February 2002, which necessitated or led to the change of operating mode. 111.The iron cabinet was kept in Mrs Chung’s bedroom. Notwithstanding that Mrs Chung appeared to have trusted Judy by adding Judy’s name to the Joint Accounts, there was no sufficient evidence that the bank passbooks or the time deposit certificates were ever kept by anyone other than Mrs Chung prior to her death. Even though Judy was a single signatory to the Joint Accounts, she had admitted that all withdrawals were made on the authorisation/instructions, and with the consent, of Mrs Chung. In fact, in her 1st witness statement, Judy had said her name was added so that it would be more convenient for her to manage Mrs Chung’s finances on her behalf[46]. Having considered all the evidence, it is my finding that the adding of Judy’s name was for administrative purposes only, namely to facilitate Judy to withdraw funds on behalf of Mrs Chung. It is also my finding that all along Mrs Chung was in control of her own finances and/or financial affairs and the Handwritten Note indicated that even in July 2002, Mrs Chung was mentally alert and was still in control and there was no sufficient evidence that there had been any change until later when her health condition was said to have deteriorated at Queen Mary Hospital. 112.Mr Ng had drawn the Court’s attention to Nanyang Commercial Bank v Personal Representative of Vannee Nativivat [2013] 2 HKLRD 749 where it was stated that[47]:
113.Mr Ng had also drawn the Court’s attention to Whitlock and another v Moree (Bahamas) [2017] UKPC 44 where the Privy Council has recently adopted a different approach putting great weight on such a clause in the banking documents. 114.There was no evidence produced by Judy to show that whether there was a survivorship clause in the banking documents at the time of when Judy’s name was added to the Joint Accounts. Further, it was not her pleaded case to rely on such survivorship clause, if any, nor was it her pleaded case that there was any common intention of her and Mrs Chung that the survivor would be entitled to the funds. She only relied on the Promise and the proprietary estoppel and throughout, it was Judy’s own evidence that the source of the funds was solely from Mrs Chung. It is my finding that all funds in the Joint Accounts had remained beneficially Mrs Chung’s at the time of her death, as there was no sufficient evidence that by adding Judy’s name to the Joint Accounts, there was any intention on the part of Mrs Chung that upon the adding of her name, Judy would then become a joint owner of the funds therein. 115.The day after Mrs Chung’s death, on 14 April 2003, Judy withdrew all the monies in the Joint Accounts and closed all those accounts, save that the USD time deposit in the HSBC Time Deposit Account appeared to be only transferred out on 7 May 2003. The HKD time deposit was uplifted before maturity on 14 April 2003 and transferred into Judy’s personal account at HSBC[48]. According to the HSBC Printout, the HSBC Time Deposit Account was closed on 13 May 2003 after the transfer out of the USD time deposit. As for the HSBC Sole Account, a total of HK$255,500 was withdrawn by Judy on 14 April 2003 leaving only a balance HK$367.15, with Judy probably using Mrs Chung’s name chop and without informing HSBC the death of Mrs Chung. The HSBC Sole Account was however not closed until 6 January 2007, over 3 years after Mrs Chung’s death, according to the HSBC Printout. 116.When Judy was asked why she immediately went to the banks to transfer away Mrs Chung’s monies on 14 April 2003, Judy had said she happened to have time that day and that the monies were promised to her. She had also said during the trial that she did not want so many accounts and so many documents and therefore she transferred all the monies to her account. I do not find her explanations credible or make sense. 117.At the date of Mrs Chung’s death on 13 April 2003, the balances in her known accounts appeared to be:
118.It was not clear what happened to the SCB Joint Time Deposit. During the trial, Judy had said that the principal should have been credited into the SCB Joint HKD Savings Account, and if not there, then to the HSBC Joint Accounts. However, no amount could be identified to be part of the SCB Joint Time Deposit. 119.Apart from the Property and the above cash at banks, Mrs Chung had left personal effects. Judy’s evidence in her 1st witness statement, was that her name was added by Mrs Chung to a safe deposit box Mrs Chung kept at the Bank of East Asia and that Mrs Chung had taken her to the box in around 1995/1996 and that Mrs Chung had showed her the items in the box, which included the title deeds of the Property and other memorable personal items of Mrs Chung and Mrs Chung. Judy’s evidence was that she later closed the box in Mrs Chung’s name and the items including the 128 items in Annex A were kept by her. 120.There was no documentary evidence produced by Judy which showed when Mrs Chung’s safe deposit box at Bank of East Asia was opened and/or when Judy’s name was added, and/or when the box was closed. 121.Ps were not aware of the 128 items in Annex A until Judy disclosed them during discovery. Judy denied that those items were of any sentimental value to Ps. 122.During the trial, Judy suddenly said that some of the 128 items were given to her by Mrs Chung at the time of Judy’s marriage. This was however never mentioned by Judy in any of her witness statements. Mr Ng objected to this part of her evidence. As pointed out by Mr Ng, Judy had admitted in the RRAD&RAC that all 128 items in Annex A belonged to Mrs Chung. I agree that this part of Judy’s evidence, namely that some of the items were gifted to her at the time of her marriage should not be admitted. In any event, I do not find this credible, since as I understand it, it was Judy’s evidence that the photographs of the 128 items produced by her were taken by her from the contents of Mrs Chung’s safe deposit box at Bank of East Asia, and even though Judy’s name was added to the box, there was no reason nor evidence that Judy had placed in the same box her personal items and in any event, Judy was the one who disclosed all 128 items as being part of Mrs Chung’s estate. 123.As said, all 128 items are now in Judy’s possession. There was no valuation of these items. Mrs Chung’s health condition after Judy moved into the Property 124.Bucay had said when they first moved to the Property, Mrs Chung could still walk, but later she had difficulties in walking. 125.According to Judy, apart from a cataract operation in early 1990s, Mrs Chung’s health condition was generally satisfactory and that prior to summer 2002, she was healthy and was all along mentally alert. Judy had also said in her 1st witness statement that Mrs Chung had some minor choking and breathing problems in around fall of 2002 and had to visit the hospital but was later discharged and her health improved thereafter[49]. During the trial, Judy said that in 2002 Mrs Chung had gone to Queen Mary Hospital on two occasions, once about mid 2002 and once about end of 2002, and each time she stayed about a week, and at end of 2002, she was also in the Sandy Bay Hospital for 3 or 4 days. 126.Thomas had said in his witness statement that Mrs Chung’s health deteriorated and during the trial, he clarified what he meant was that prior to 2000, Mrs Chung could go out on her own but since 2000, she was not as strong or mentally alert as before but she was not suffering from dementia and was only slightly slow in her motions and reaction. Thomas had also said that Mrs Chung had suffered from skin disease on her legs/feet. Thomas had bought a wheelchair for Mrs Chung but it would appear that Mrs Chung did not like to use the wheelchair and preferred to use a chair with wheels. 127.Marius’s evidence was that it was only in about 1999/2000 that Mrs Chung became less mobile, and that she would sit in a chair with wheels but up until 8 or 10 days prior to her death, Mrs Chung had had no major surgery, and had no Parkinson’s disease, nor any mental problems. 128.Having considered the evidence, I accept that it was probably in about 1999/2000 that Mrs Chung became less mobile and this would also be consistent with the fact that it was only in January 1999, that Judy started to make the withdrawals from the Joint Accounts as authorised and instructed by Mrs Chung. As Bucay had said, and which I have accepted, when Mrs Chung was able to walk, she would go to the bank herself, sometimes accompanied by Bucay. 129.Judy was also asked about Mrs Chung’s eating habits during the trial, and Judy had said that Mrs Chung could not take hard food and that she did not like to eat fried foods or “internal organs”, and she liked “choi sum” (菜心) and “fuzzy melon” (節瓜) and also soft foods. It was Justina’s evidence that Mrs Chung liked bird’s nest and also abalone. William’s friend Ms Yeung had said Mrs Chung would not eat any Japanese food. 130.Bucay’s evidence was that when Mrs Chung was well, she would have her meals at the dining table and that it was only when she was ill, that she needed to feed her in her room, but Bucay had said most of the time, she did not need to spoon feed either Mrs Chung or Madam Kong. 131.Whatever food preferences Mrs Chung had, I find that the evidence indicated that even though Mrs Chung had become less mobile and had difficulties with walking, prior to summer 2002, Mrs Chung was generally healthy and she was mentally alert. In fact, it was Judy’s own evidence that Mrs Chung had led a relatively independent life, with no major operations, and that Mrs Chung did not really require any care. 132.Judy had said in her 1st witness statement that in early April 2003, Mrs Chung went to Hong Kong Central Hospital because she was not feeling well and the doctor there advised her to stay in the hospital for a night for a detailed check up and that after that, she was transferred to Queen Mary Hospital. 133.According to the payment receipt issued by the Hong Kong Central Hospital on 3 April 2003 at 7:15 am[50], Mrs Chung was diagnosed to be suffering from dehydration and vomiting. According to the payment advice issued by Queen Mary Hospital[51], Mrs Chung was admitted to the hospital at 8:06 am on 3 April 2003. Further, according to a receipt issued by Queen Mary Hospital dated 14 April 2003[52], Mrs Chung was in the public ward of the hospital from 3 April 2003 to 12 April 2003, a total of 10 days. 134.It would appear that it was only after Mrs Chung was admitted to the Queen Mary Hospital on 3 April 2003 that her health deteriorated and she passed away on 13 April 2003. Judy had said Mrs Chung died of bacterial infection. On the death certificate, Mrs Chung’s cause of death was stated to be “I (a) Type II Respiratory Failure, I (b) Old pulmonary tuberculosis, II (a) Poor premorbid condition”[53]. 135.Ps and Bucay on one side and Judy and William on the other gave different accounts of Mrs Chung’s trips to the hospitals in April 2003 and what Mrs Chung had said or not said. I will deal with their evidence in this respect later. 136.Judy had said Mrs Chung’s death was rather unexpected to her.[54] However, this was not really consistent with Judy’s evidence in her witness statement that on around 23 March 2003, Mrs Chung had instructed Judy to make various gifts of cash and various items to Ps and other relatives and that Judy believed that Mrs Chung had asked her to make those gifts because Mrs Chung knew that her health condition was unstable at that time and she would like to distribute her assets to Ps and other relative before she would give her all her assets to Judy as she promised[55]. In fact, Judy had also said in her witness statement, earlier in around fall of 2002 (at the trial, Judy’s evidence changed somewhat and she said that this took place at end of 2002/early 2003), Mrs Chung had taken the initiative to discuss the formal transfer of her assets to Judy[56]. Thus, whether Mrs Chung’s death was unexpected to herself or to Judy, Mrs Chung was making distributions of her assets at end of 2002/early 2003. 137.Anyway, I find that the evidence indicated that Mrs Chung continued to be mentally alert after the visit of the HSBC Customer Relationship Manager and was in reasonable health for her age up until 2 or 3 April 2003. As seen later from the evidence of those who were with her, even on her way to the Queen Mary Hospital, although she was weak, Mrs Chung was not unconscious and was aware of what was going on. As said earlier, Mrs Chung’s condition appeared to have deteriorated after she was admitted to the Queen Mary Hospital. Ps’ relationship with Mrs Chung and Madam Kong 138.As seen earlier, Thomas’s evidence was that when he was still a young boy, his parents, paternal grandparents, and over 10 members of the Kong family including Mrs Chung and Madam Kong were all living under the same roof. Thomas had said the male members of the family must take care of the female members of the family and they all had a very good relationship. According to Thomas, his father, who was then a senior clerk working for an insurance department of a private company, was the one who took up the responsibility for the Kong household after his paternal grandfather passed away. It was, Thomas’ case that after Mrs Chung and Madam Kong respectively moved out in 1953 and 1962, his family had maintained very close contact with them and often visited them. 139.Thomas did not deny that Mrs Chung had requested him and his family to move to the Property to live with her and to take care of her and Madam Kong, and that he had declined. 140.Marius confirmed during the trial that when he was young, his family used to live with Mrs Chung and Madam Kong under the same roof and that they all had a very good relationship. Marius’s evidence was that after his two aunts moved away, they always visited Marius and his family, but his evidence was that Mrs Chung did not request him and his family to move into the Property between 1991-1994. 141.Whether there was any request from Mrs Chung or not, and whether the reasons and/or excuses given by Thomas/Marius for not moving to the Property to live with Mrs Chung and Madam Kong were valid or not, it was quite clear that throughout neither of them had any wish to move into the Property to live with Mrs Chung and/or Madam Kong. 142.Thomas’s evidence as to when Madam Kong moved to live with Mrs Chung was also rather confusing. In his 1st witness statement, he had said it was in or around 1986 that when Mr Chung was seriously sick that Madam Kong had moved to the Property to live with Mr and Mrs Chung. Then in his 2nd witness statement, he had said that apart from the first few years of Mrs Chung’s marriage, Madam Kong and Mrs Chung were living under the same roof for their entire lives. During the trial, when cross examined by Mr Ho, Thomas then again said that after the Stanley Street Building was demolished until 1986, Madam Kong was living in a rented room on Seymour Road. When asked by this Court which version was correct, Thomas said his memory could be wrong and that maybe it was only around 1986 when Mr Chung was not well that Madam Kong moved in. He then said he was busy working every day and night and that he had to work overtime at night and that he could only visit his two aunts during holidays and he only recalled he had visited the two aunts at separate places. 143.Marius’s evidence in his 1st witness statement about when Madam Kong moved to live with Mr and Mrs Chung was the same as that of Thomas’s, namely that Madam Kong moved into the Property in around 1986 when Mrs Chung was not well. 144.However, Judy’s evidence was that when she visited Mr and Mrs Chung in late 1970s/early 1980s at No 9 Caine Road, Madam Kong had already moved in to live with Mr and Mrs Chung. This would in fact accord with Thomas’s version in his 2nd witness statement, which version he abandoned during the trial. 145.Thomas was quite elderly at the time of the trial and due to the lapse of time, that he got confused and could not recall exactly when Madam Kong moved to live with Mr and Mrs Chung was in my view understandable. Anyway, it would appear that in the late 1970s/early 1980s, as Thomas had himself said, he was at that time busy working during the week and often had to work overtime, he could only visit his aunts during holidays. I accept Judy’s evidence in this respect and find that probably in late 1970s/early 1980s, Madam Kong had already moved to No 9 Caine Road, to live with Mrs Chung and Mrs Chung, and in any event, Madam Kong was living with them prior to Mrs Chung’s death. 146.It was also Thomas’s evidence in his 1st witness statement that later on when Mrs Chung’s health deteriorated when she became older he visited her even more often. As said earlier, Thomas had clarified during the trial when he referred to deterioration of Mrs Chung’s health, he only meant she had become weaker than before and that she had difficulties with walking. Further, it was Thomas’s evidence that after Mrs Chung passed away, he had continued to visit Madam Kong frequently. 147.Thomas’s wife Justina had also accompanied Thomas to visit the two elderly ladies. Justina had said that she liked to cook and often made Chinese soup for both ladies. Her evidence in her 1st witness statement was that Mr Chung liked abalone and that she recalled cooking for them and bringing the food to the Property when she visited them. This however could not have been correct, since Mr Chung never lived in the Property. 148.During the trial, Justina’s evidence was that they would usually visit the two aunts during daytime and seldom at night as in the evening she would need to cook for her family. Thus, she would not see Judy who had to work during daytime. 149.Justina had also said Mrs Chung was obsessed with cleanliness and was doing her own cooking before Bucay moved there with Judy’s family. There was in any event no evidence that anyone else had cooked for Mrs Chung and/or Madam Kong before Judy’s family and Bucay moved into the Property, apart from Justina making soup for them. 150.Bucay’s evidence was that the soup that Mrs Chung had was usually brought to her by Thomas and Justina and that they would visit Mrs Chung and would bring soup for her about 2 to 3 times a week. 151.It was William’s evidence in his 2nd witness statement that he attended the morning session at primary school and later full day secondary school, and that when he was in primary school, he had seen Ps visiting the Property about once a month in the afternoon on weekdays and the frequency went down to once one to two months when he was in higher years of primary school and in secondary school, and that Ps would normally come and said hi to both Mrs Chung and Madam Kong and brought soup for them. William said sometimes Ps would take Madam Kong for medical check-up. William had said that Ps had little to say to the elderly ladies other than very brief greetings and would leave within half an hour or so during their visits, and that Ps did not take their aunts out of the Property other than for medical reasons. According to William, if Mrs Chung needed to see the doctor, it would be his mother Judy who would accompany her but he had also said that Ps would take Mrs Chung to see the doctor if Judy was not free. 152.William later in his 3rd witness statement added that he had also met Justina during Ps’ visits, but he only saw Justina bring soup and packaged chicken broth to Mrs Chung and never bird’s nest or abalone. William then also said in his 3rd witness statement that to be fair to Ps he was residing with his grandparents on weekdays when he was around primary 3-primary 6. 153.As for Judy’s evidence, she had said in her 1st witness statement that throughout 1994-2003, Ps and their siblings had visited the two elderly ladies about once every month, and sometimes they came for a particular purpose, eg to bring them to see the doctors, otherwise they came to the Property and stay for brief periods. 154.As Judy was working long hours during the daytime, it would seem unlikely that she would be at home very often during the day. Her evidence as well as William’s indicated that Ps had taken not only Madam Kong to a medical clinic but they had also taken Mrs Chung. 155.During the trial, when Court invited Thomas to draw a floor plan of the Property, he did not seem to be able to recall which bedroom was William or Bucay occupying. I accept his evidence in this respect was confusing. However, it seemed that Judy herself had got it wrong in her 1st witness statement as to which room William and Bucay were occupying. 156.Having considered all their evidence, I find that in the early days, namely in late 1970s/early 1980s, when Mr Chung was still alive, it appeared that Thomas and Marius did not really visit their aunts that often due to their work, and probably they would only visit their aunts during holidays or festivals. However, I accept Thomas’s evidence that later on after his retirement in 1997, Thomas and Justina did visit their aunts more frequently since they lived not far away, and that they had brought soup for Mrs Chung and Madam Kong during their visits, and had also taken Mrs Chung and Madam Kong to see doctors. As for the frequency, since Judy was often not at home and William at school, Bucay would be the one who would be at home during the day and I accept her evidence in this respect. 157.In any event, whether it was two or three times a week or not, I find that that even though Ps had declined to move to the Property, they did maintain a harmonious relationship with Mrs Chung, and that Thomas and Justina did visit Mrs Chung frequently bringing her soup. It was also Judy’s evidence that Mrs Chung had given Ps cash gifts during their visit, and it was her case that Mrs Chung had expressed her wish to make various gifts to Ps and their siblings and that even on the way to the Queen Mary Hospital on 3 April 2003, Mrs Chung had indicated that HK$200,000 should be given to Thomas (even though as seen later on in the judgment, I do not find there was sufficient evidence for this). Thus, even on Judy’s own evidence, there was a good and harmonious relationship between at least Thomas and Mrs Chung. 158.Ps’ evidence was that they continued to visit Madam Kong after Mrs Chung’s death and had taken her to doctors. I accept their evidence and that from all accounts Madam Kong clearly had a much closer relationship with Ps than with Judy and it was Ps whom Madam Kong had left her estate to in her will. Judy’s relationship with Mr and Mrs Chung 159.Judy said during the trial that she grew up in Stanley village and that her own parents were illiterate. She said she was grateful to Mr Chung whom she met in 1975 and who had helped her in her studies and her examinations and had taught her English. As mentioned earlier, Judy’s evidence was that from 1975 to 1977, Mr Chung had helped her in preparing for the Hong Kong Certificate of Education Examinations (“HKCEE”). She had said during the trial that it was in 1977 that she sat for those examinations. However, as Judy was born in December 1961, in summer 1977 she would only be about 15. It would seem more probably to be around 1979 or late 1970s that Judy was completing her Form 5 and sitting for the HKCEE. 160.Judy completed her Commercial Law Examinations in summer of 1983 when she was about 21 years old. It was not clear what she did after that. It was her case that thereafter, she continued to visit Mr and Mrs Chung and from time to time, she ran errands, prepared Chinese medicine and accompanied them to see the doctor. She said she also spent time to chat with them on the phone on other days of the week. As Mr Chung had difficulties with bending his legs, she had also volunteered to trim his toenails. Judy said before Mr Chung died in 1986, he had repeatedly asked her to look after Mrs Chung and Madam Kong on many occasions as they did not have any children. 161.In the affirmation of identity dated 22 September 1987 which Judy filed for Mrs Chung’s application for the letters of administration of Mr Chung’s estate (“Affirmation of Identity”), Judy had said that she had been acquainted with Mr and Mrs Chung for over 7 years. 7 years prior to 1987 would be in about 1980. As said earlier, I think it is more probable to be around late 1970s that Judy was completing her Form 5, but in any event, I accept that Judy would have become acquainted with both Mr and Mrs Chung by late 1970s/early 1980s. 162.Ps had challenged what Judy said about her personal care of Mr Chung. In particular, Thomas had said in his 2nd witness statement that Mr Chung was a well-educated and independent gentleman and that he had actively advocated human rights in the 50s and 60s and had assisted the “Anti Mui Tsai Society” and that he would not have allowed and/or troubled Judy to trim his toenails for him because of his educational background, honour, integrity and liberal values. 163.There was no evidence as to what Judy did after her Commercial Law Examination but she was not living with Mr and Mrs Chung prior to Mr Chung’s death. Even if Mr Chung had put on weight and had needed help to trim his toe nails, there was no reason why Mrs Chung could not have helped him. In any event, I do not find there was sufficient evidence that Judy had helped Mr Chung to trim his toe nails. 164.Thomas had said it was he who made all the funeral arrangements for Mr Chung as Mrs Chung was very distressed after losing her husband, and that Thomas was the one who settled all necessary funeral expenses, and that Judy never attended Mr Chung’s funeral or went to pay her last tribute to Mr Chung. On the other hand, Judy’s evidence was that she did attend Mr Chung’s funeral. Mr Ho had submitted that if Judy did not attend Mr Chung’s funeral, then it would be most unlikely that Mrs Chung would have asked Judy to make the Affirmation of Identity. I do not see why this would necessarily follow. There was no sufficient evidence to decide which version was more probable. However, as seen on Mr Chung’s death certificate, Thomas was the one present at Mr Chung’s death at the Hong Kong Sanatorium Hospital and I accept Thomas’s evidence that he was the one who was entrusted by Mrs Chung to make all the funeral arrangements for Mr Chung. 165.Judy had said after Mr Chung passed away, Mrs Chung felt lonely and sad and often called Judy and as Judy lived quite close by, she visited Mrs Chung frequently, and that their relationship became closer due to frequent contacts. However, as seen in the Affirmation of Identity, Judy was at that time not yet married and she was living in Apleichau, and she was not living close to Mrs Chung in 1987, even though she then said at the trial she was often visiting Sin’s grandmother. 166.Although Judy was asked by Mrs Chung to make the Affirmation of Identity in 1987 and that they would have known each other over 7 years by then, there was no sufficient evidence that in 1987, Mrs Chung was introducing Judy to her friends, neighbours or relatives or a priest visiting Mrs Chung, as her goddaughter. In fact, according to Judy, Mrs Chung had few friends, and it was not clear what neighbours Judy was referring to. 167.When asked about Mrs Chung introducing her as goddaughter to Mrs Chung’s relatives, Judy initially had said when the relatives came over she was not there but she later maintained Mrs Chung did say in front of her relatives that Judy was her goddaughter, and that Mrs Chung had also said this in front of Madam Kong. 168.Both Thomas and Marius denied that they had heard Mrs Chung mention Judy was her goddaughter in 1987. Even though they were confused as to when Judy moved into the Property, Ps would on their own evidence have noticed Judy’s presence around Mrs Chung in 1991. 169.After Judy’s marriage to Sin in 1988, she was living at 8E, Caineway Mansion and by then she was living close by Mrs Chung. It was not clear what job she was doing at the time, if any, and she was also pregnant with William. However, I accept her evidence that she did visit Mrs Chung from about 1988 onwards. 170.I will deal with the circumstances under which or reasons why Judy said she moved to the Property later in this judgment. It was Judy’s evidence that after she moved into the Property in the summer/autumn 1994, she began to look after Mrs Chung and Madam Kong personally on a daily basis with the assistance of Bucay. Judy’s evidence was that in addition to running errands for them and bring them to see the doctor (with the assistance of Ps) from time to time. Further, because of Mrs Chung’s old age, she had to look after her on a very personal level, including but not limited to massaging her, trimming her toenails and assisting her with bathing. According to Judy, on winter days, when the temperature was low, Mrs Chung felt cold but would prefer not to purchase a heater because she was worried that the heater might catch fire and Judy would sleep with her and warm her with her body. 171.Marius’s evidence was that Mrs Chung was overly meticulous about her hygiene that she had a tendency of mysophobia, and she would never allow others to sleep in her bed, and also Mrs Chung would often go to bed with a hot water bottle and that it was unimaginable that she would allow Judy to sleep with her to keep her warm during the winter. Marius further said even Madam Kong had never slept in the same bed together with Mrs Chung although the two of them were natural and biological sisters and that they were very close to each other. Marius said he had never heard Mrs Chung mention that Judy had massaged her or slept next to her, and that it was Bucay who had helped Mrs Chung trim her toe nails when Mrs Chung had difficulties in moving. Further, on each occasion when he visited Mrs Chung, he had never seen Judy taking care of Mrs Chung personally and that he only saw Mrs Chung having dinner, watching television or listening to the radio, all by herself. 172.There was really no sufficient evidence that Judy had cared for Mrs Chung in the intimate or personal way as described by Judy. It was Judy’s evidence that she was not a paid carer and, it was also Judy’s own evidence that Mrs Chung had paid Bucay HK$500 for Bucay to wash her hair. If Judy was indeed helping Mrs Chung bathe or caring for her in the way claimed by Judy, there was no reason why Judy could not have helped Mrs Chung to wash her hair. 173.There was no evidence as to what Judy did between 1983 after she completed her Commercial Law Examination and 1993, as she only produced evidence of her employment from about 1993 onwards. From the employment letters/agreements produced by Judy, in 1993/1994, she was working as a reception/secretary for the Zuellig Group and her working hours were from 9 am to 6 pm on Mondays to Fridays and from 9 am to 1 pm on alternate Saturdays[57]. Later in October 1996 when she started to work as an estate agent, she appeared to have to work on shifts as her working hours in 1997 were stated to be 9:30 am to 17:30 pm/11:30 am-21:30 pm, and she was allocated only 4 days per month as rest days[58]. There were no specified rest days. Later, in February 1999, her working hours were stated to be 9 hours per day Mondays to Saturdays (with one hour for lunch) and 5 hours on Sundays[59] and 6 rest days per calendar month in accordance with a roster. She changed to work for another property agency in June 2000. 174.It would thus appear that Judy’s working hours as an estate agent were indeed very long with rest days in accordance with a roster, and not necessarily on a Sunday or a public holiday. This also accords with Bucay’s evidence that Judy did not maintain a regular routine and used to return home at different times and sometimes very late. William had said Mrs Chung was often bored when he was at school, and he had also said he was staying at his grandparents’ home on weekdays when he was attending primary 3-6. Later he was attending full day secondary school between 2001-2005. William’s evidence was that on Sundays, after preparing food for the elderly ladies, he and his mother would go out with their dog to visit Judy’s family and to have their own fun. There was no evidence that Judy and William had ever taken Mrs Chung on any outing even when Mrs Chung was able to walk. Having considered all this, I accept Ps’ evidence that during the day in the week, the two elderly ladies would often be in the Property by themselves with Bucay. 175.Judy is a believer of Krishna and a vegan. She said she is of the firm belief that killing animals creates bad karma, and yet her evidence in her witness statements was that as she believed that meat soup would improve the blood circulation of Mrs Chung, at Mrs Chung’s request, she had relented and made beef and pig’s liver soup for her. However, this part of Judy’s evidence was inconsistent with Judy’s evidence during the trial that Mrs Chung did not like to eat “internal organs”. Even if Mrs Chung did like beef and pig’s liver soup, there was no reason why Judy could not have instructed Bucay to handle the meat and to make the soup for Mrs Chung. I do not find Judy’s evidence in this respect make sense, and I accept what Bucay had said, Judy would not handle meat and that the soup that Mrs Chung had was usually brought to her by Thomas and Justina. 176.Judy’s evidence was that Mrs Chung would have “long chats” with her before going to bed and that was particularly draining for Judy but as Mrs Chung had few friends, Judy tried to listen to her even though Judy was very tired. However, Bucay had said during the trial that she would only finish cleaning the kitchen at around 10 pm every evening and then she had to take Judy’s dog out. It was Bucay’s evidence that Judy would come home very late and sometimes after she came home she would then go straight back out often to take a swim, and Bucay had said she seldom saw Judy taking care of Mrs Chung or having long chats with Mrs Chung. 177.In her 1st witness statement, Judy had said that Mrs Chung had 2 elder brothers and a younger sister, ie Madam Kong and that Mrs Chung’s eldest brother had 3 sons including Ps, and 2 daughters. This was not correct. In her 2nd witness statement, Judy then explained that it was “a slip of pen”, and that Mrs Chung’s eldest brother should have 4 sons including Ps and 2 daughters. However, Judy seemed to have still got it wrong, as Mrs Chung’s parents in fact had 3 sons and 3 daughters, and Judy failed to mention Mrs Chung and Madam Kong had three brothers including Ps father and another older sister Kong So Ying. During the trial, Judy suddenly said that she had met Kong So Ying who had come to visit Mrs Chung at No 9 Caine Road, but she had not mentioned this at all in her witness statements. 178.Judy’s evidence on what she knew of Mrs Chung’s family members was thus rather confusing. Under cross examination, Judy then tried to explain that it was Mrs Chung herself who was speaking in a piecemeal way, ie “一舊舊” and that it was Mrs Chung who was not clear when describing her family members. 179.When asked about which secondary school Mrs Chung attended, Judy had responded Belilios School but Judy then immediately added that she was not sure whether it was a secondary school or not. Judy seemed unsure even as to whether Mrs Chung had attended secondary school. 180.As mentioned earlier, Judy was asked during the trial about Mrs Chung’s eating habits during 1994-2002, and when asked whether there was anything Mr Chung would absolutely not eat, Judy did not mention anything about Mrs Chung refusing to eat any Japanese food, which was the evidence given by William’s good friend Yeung. Yeung had said this was because Mrs Chung told her she had helped the defence forces during the war and she did not like the Japanese. 181.To summarise, even though Judy had said she had “long chats” with Mrs Chung, she did not seem to know very much about Mrs Chung’s personal background. She had also given very little information about what she and Mrs Chung had chatted about, or how long those chats were. I accept that it was probable that Judy could have chatted to Mrs Chung after she returned home from work and by then Bucay had gone to bed, but as Judy herself had said, she was very tired after work. Further, it was late and Mrs Chung was elderly and it seemed unlikely that such “long chats” would have taken place very often. 182.William had said his mother had told him that Mr Chung was her honoured teacher and a very dear person to her, and that she was grateful that someone with so much background had shown her the ropes. He agreed with his mother’s description that she and Mrs Chung was like a real daughter and mother. 183.It was Judy’s and William’s evidence that William had bought a birthday cake for Mrs Chung on her 80th birthday (which was on 5 September 1997). William said it was Bucay who mentioned to him that it was Mrs Chung’s birthday, and he felt inspired to buy her a cake. Further, it was the evidence of Judy and William that later Mrs Chung had asked William to go into her room and asked if William would call her “paternal grandmother” (嫲嫲) and William nodded and that Mrs Chung was very touched and said all her money and her assets would eventually go to William and her. 184.What was clear from William’s evidence was that it was not Judy who had told William about Mrs Chung’s 80th birthday, but Bucay. Judy had also mentioned in her 1st witness statement that shortly after Mrs Chung’s 80th birthday, Judy and William had a birthday dinner with Mrs Chung in the Property and that she had bought Mrs Chung a gold peach (which meant longevity) to wish Mrs Chung good health and that Mrs Chung had thanked Judy for being with her all those years as seen later, this was one of the occasions that Judy said Mrs Chung had repeated the Promise to her[60]. 185.There was a gold peach ornament among the 128 items in Annex A[61], and there was also a gold heart pendant (engraved with the words “福夀”) with a gold necklace[62]. Mrs Chung had kept a receipt dated 15 September 1990 for the gold heart pendant and the gold necklace[63], which seemed to indicate that Mrs Chung had bought those items for herself shortly after her 73rd birthday. There was no receipt produced for the purchase of the gold peach, and there was really no evidence as to when the gold peach was bought or who bought it. 186.It was also Judy’s evidence that at Christmas 1998, William had sent a Christmas card to Mrs Chung and had addressed her as “paternal grandmother” (嫲嫲) on the card, and that Mrs Chung had cherished the card very much and kept it on her desk until she passed away. 187.Judy had explained William addressed Mrs Chung as paternal grandmother to please Mrs Chung, but normally he would call Mrs Chung “契婆” or god-grandmother. 188.Mrs Chung was not uneducated and there was no sufficient evidence as to why Mrs Chung would be more pleased if William addressed her parental grandmother, instead of god-grandmother. 189.On the invoice from Hong Kong Funeral Home for the expenses of the funeral arrangements for Mrs Chung (“Funeral Home Invoice”)[64], both Thomas and Judy had left their respective mobile telephone numbers for contact, Thomas being described on the invoice as the nephew of Mrs Chung, and Judy being described as the goddaughter. Thomas had said that it was Judy who told the staff at the Hong Kong Funeral Home that she was Mrs Chung’s goddaughter and the staff then wrote the description down. At the trial, Thomas was asked whether he had tried to correct that description, Thomas said he could not recall. 190.According to Judy, Mrs Chung had entrusted her with the arrangements for her funeral, in that Mrs Chung had told Judy that she wanted to wear her traditional wedding gown for her funeral and that Mrs Chung had specifically asked William to place a special item in her coffin (William had said he put a pencil case given to Mrs Chung by her teacher). Further, Mrs Chung had told Judy that it was her wish to be cremated and that her ashes be placed close to those of Mr Chung and she wished to have her photographs attached together with those of Mr Chung in her grave. 191.It was not disputed by Thomas that Mrs Chung’s funeral arrangements were made by both him and Judy and that Judy had contributed her ideas as to what coffin to be purchased and what clothes Ms Chung was to wear. Thomas had explained that as Judy had contact with Mrs Chung for a long time, Judy would know of Mrs Chung’s wishes and preferences, but Thomas said Judy had gone to the Hong Kong Funeral Home only once before the actual funeral. 192.What was clear was that Thomas did not challenge Judy describing herself as Mrs Chung’s goddaughter on the Funeral Home Invoice. It was also clear that he recognised that Judy had known Mrs Chung for a long time. It was not Judy’s case that there was any formal ceremony for her to be adopted as Mrs Chung’s daughter. It was also Yeung’s evidence that Mrs Chung told her that she was the god-grandmother of William and had treated William as her grandson and that they lived as a family. 193.Judy had said that Ps never came to celebrate the birthdays of Mrs Chung and Madam Kong and while they would come to the Property during Chinese New Year, they would not come at other festivals. However, apart from what Judy and William had said about the celebration of Mrs Chung’s 80th birthday, there was no sufficient evidence of Judy and/or William celebrating any other birthdays together despite Mrs Chung’s birthday and William’s birthday were only 10 days apart, or Chinese festivals with Mrs Chung as a family either, whether outside or at home. There were no photographs produced by Judy taken of Mrs Chung together with Judy and/or William celebrating any of their birthdays or any of the Chinese festivals, whether at home or outside. 194.On the other hand, Judy had produced a photograph showing William taken with Bucay on his 6th birthday, which was on 15 September 1994, and the photograph was said to be taken inside the Property[65]. The photograph was taken on the same occasion of Williams’ 6th birthday as two other photographs, one of which showed William with Sin’s mother[66] and the other one showed William with his father Sin[67]. However, Mrs Chung did not appear in any of the photographs with William even though she would presumably be in the Property and this was notwithstanding Judy saying that Mrs Chung was introducing her as her goddaughter in around 1987 and William saying that he was calling Mrs Chung god-grandmother. 195.It was not disputed that Judy did reside under the same roof with Mrs Chung for some 8 to 9 years. Thomas accepted that Judy had contact with Mrs Chung for a long time. Further, Mrs Chung had clearly trusted Judy to the extent that she had added Judy’s name to the Joint Accounts in order for Judy to be able to withdraw funds on her behalf even though this would be with her authorisation and consent. 196.Judy had said Mrs Chung was sad and lonely after the death of Mr Chung. By the time Judy moved in, it was some 6 years after Mr Chung’s death, and further Mrs Chung did have the company of her sister Madam Kong and Marius’s evidence was that the two sisters were very close in their relationship, both physically and emotionally and that the two sisters were living under the same roof for over 20 years as seen from my finding later. Having said this, that Mrs Chung would like company, in particular someone younger to go and live with her and Madam Kong in the Property would be understandable. However, I do not find that there was sufficient evidence that Mrs Chung needed the care and attention as described by Judy. Even though I do not accept Judy’s evidence of her intimate or personal care of Mrs Chung, I am prepared to accept that Judy and Mrs Chung had known each other over a long period of time and it was not improbable that Mrs Chung could have regarded Judy as a goddaughter at some stage, even though there was no sufficient evidence that Mrs Chung had introduced Judy to friends, neighbour and relatives as her goddaughter in 1987. Judy’s relationship with Madam Kong 197.As for Judy’s relationship with Madam Kong, in her witness statement, Judy had described Madam Kong as not a particularly easy-going person. During the trial, Judy had described Madam Kong to be of a very strong character (“剛烈”) whereas Mrs Chung was gentle (“柔弱”) and Madam Kong would often scold people using abusive words such as “仆街”, “賤人”, “衰人” and would talk incessantly to herself in her room. Judy had admitted that she had no deep feelings towards Madam Kong and merely tolerated her presence and that Judy moved into the Property only because of Mrs Chung, but as Mrs Chung had a sister, she looked after Madam Kong as well. Judy admitted that it was Ps who would take Madam Kong for regular medical check ups when needed and/or to see a doctor, when necessary. 198.According to Judy, Madam Kong had been diagnosed to have a tumour in around mid-2000s, and on one occasion her tumour bled, and that Ps together with Bucay took her to hospital and that Judy had to tidy up the bloodstains and waste in Madam Kong’s room. Judy had also said due to Madam Kong’s tumour, she needed help to go to the toilet at the middle of the night, and that she would knock on the wall, and Judy would then help her to go to the toilet. 199.Judy’s evidence was that after Madam Kong was taken by Ps to the hospital Madam Kong remained in hospital and after discharge from the hospital, she was transferred to a sanatorium where she remained until she passed away in November 2008. 200.William’s friend, Yeung, gave evidence that during her visits, Madam Kong had usually stayed in her room and she would shout and talk on her own. Yeung said she did not find Madam Kong approachable, and she never took any initiative to talk to Madam Kong. Yeung had also said that she was told by William to ignore Madam Kong. 201.Bucay’s evidence was that Madam Kong did not get along with Judy and that Madam Kong would sometimes become irritable and angry over Judy and she had asked Mrs Chung why she let Judy move in. Bucay gathered that Madam Kong did not like Judy and was unhappy about Judy moving into and residing in the Property. However, Bucay had said that Madam Kong got on fine with her and Bucay did not have any problems or issues with Madam Kong. She also said after Mrs Chung passed away, Judy was very mean to Madam Kong and that Judy had bad feelings towards Madam Kong. It was also Bucay’s evidence that she saw Judy sorting through Mrs Chung’s belongings and papers after Mrs Chung’s death, and Judy had instructed her to throw out Mrs Chung’s papers. Bucay said she then took the initiative to help Madam Kong go through her papers in her bedroom, and that it was in the course of this that Bucay discovered Madam Kong’s will and she then passed the will to Thomas. 202.From Judy’s evidence, it would appear that Madam Kong went to the hospital and later the sanatorium in about 2005, ie about two years after Mrs Chung’s death. There was no evidence that Judy had visited Madam Kong after her admission to the hospital or the sanatorium. 203.Although Judy had said that she had to clean up the mess when Madam Kong’s tumour bled, this seemed to be an one off incident as Madam Kong was then taken to hospital by Ps and later transferred to the sanatorium. Even though Madam Kong had needed regular medical check-ups at one stage, there was no sufficient evidence that Madam Kong was in ill health until about mid 2000s or about 2005. 204.As for helping Madam Kong to go to the toilet at night, this part of Judy’s evidence was not mentioned in her 4 witness statements. Judy had said during the trial that this went on for about a year. There was no reason why Judy could not have arranged for Bucay to help Madam Kong to go to the toilet at night particularly that Bucay and Madam Kong had got on well. There was no sufficient evidence to support what Judy had alleged. I do not find that this part of Judy’s evidence credible. 205.On Judy’s own evidence, she did not have much communication, if any, with Madam Kong, and as Judy herself said, she only tolerated the presence of Madam Kong. It was clear that Judy did not have a good relationship with Madam Kong. I accept Bucay’s evidence that Madam Kong did not like Judy, whereas Bucay’s own relationship with Madam Kong was fine, and that throughout the years Madam Kong was mainly cared for by Bucay. I note that Bucay’s employment was terminated in 2007 by Judy while Madam Kong was still in hospital/the sanatorium. Mrs Chung’s relationship with Madam Kong 206.As mentioned earlier, Judy had described Mrs Chung was gentle and that Madam Kong was of a strong character. During the trial, Judy had given evidence in relation to an incident in early 2002 when Mrs Chung had an argument with Madam Kong, and according to Judy, Madam Kong had accidentally pushed Mrs Chung who fell to the floor. Mrs Chung was angry and that was the occasion when Mrs Chung had told Madam Kong about the Promise. 207.Although Judy had mentioned in her 1st witness statement that sometimes Madam Kong had upset Mrs Chung on trivial matters[68], Judy did not specifically mention the above incident in any of her 4 witness statements. Even if the incident did take place, it was Judy’s own evidence during the trial that Mrs Chung loved (“好錫”) her younger sister and Judy had agreed despite that Madam Kong’s bad temper, Mrs Chung would want Madam Kong to lead a life with no worries. 208.In my view, the person closest to Mrs Chung after Mr Chung’s death must have been Madam Kong. They were biological sisters and grew up together during the war. They were only about 4 years apart in age, and Madam Kong was living with Mrs Chung under the same roof for a long time. I accept Marius’s evidence that they had been close both physically and emotionally. Mrs Chung’s trips to the hospitals in early April 2003 209.In his 1st witness statement, Thomas had said he received Judy’s call in early April 2003 about Mrs Chung not feeling well, and that he and Justina rushed to the Property and found that Mrs Chung was very weak and she told them she was very dizzy. Thomas said in his 1st witness statement that he, Justina and Bucay then accompanied Mrs Chung to the Hong Kong Central Hospital and subsequently, he was advised by the doctor there to take Mrs Chung to the Queen Mary Hospital. In the taxi journey from the Hong Kong Central Hospital to Queen Mary Hospital, Mrs Chung had said to him and Justina that “Judy is not a good person” but she was too weak to say anything further[69]. It was Thomas’s evidence that Judy did not accompany Mrs Chung to either the Hong Kong Central Hospital or the Queen Mary Hospital. It was also Thomas’s evidence that during the time when Mrs Chung was in hospital, he had not seen Judy visiting Mrs Chung there, and that it was he who telephoned Judy and informed her of Mrs Chung’s death. 210.Justina in her witness statement had said that she had the habit of doing morning exercise at around 5 am and that she recalled when Thomas received the call from Judy regarding Mrs Chung’s condition and that Mrs Chung had to be taken to hospital, she had just finished her morning exercise and had her dim sum breakfast, so it would have been around 8 am, and that she and Thomas then went to the Property[70]. Justina said upon arrival at the Property, she helped Mrs Chung to get dressed. Justina had said Judy did not go to the Hong Kong Central Hospital and that Judy was still in her pyjamas in the Property and was presumably getting herself ready for work. However, what Justina said about going to the Property around 8 am was inconsistent with the hospital receipts. 211.During the trial, Justina amended what she had said in her witness statement in that maybe on the day in question, Judy had telephoned Thomas before she left for her morning exercise, and that upon hearing that Mrs Chung was not well, she probably did not go for her exercise or her breakfast that morning. Justina admitted that she could have made a mistake about having gone to the Property after her morning exercise and breakfast, and that she could not recall when she arrived at the Property but she was adamant that Judy did not go with them. 212.Justina’s evidence in her witness statement was also that when she, Thomas, Bucay and Mrs Chung arrived at the Hong Kong Central Hospital, Bucay left the taxi to look for a wheelchair and that it was then Mrs Chung said to her that Judy was not a good person (玉珍唔將係一個好人), and that Mrs Chung had intended to leave the Property to Madam Kong but Judy had asked her to sign some documents to change the ownership of the Property but Mrs Chung told Justina that she refused to do so. 213.Thomas’s and Justina’s evidence was however contradicted by Bucay’s evidence. During the trial, Bucay had said that Judy was with Thomas, Justina and Mrs Chung when the 5 of them went in a taxi to the Hong Kong Central Hospital. Upon arrival, Bucay said she pushed Mrs Chung in a wheelchair to the Information Counter. Later she saw an envelope was given to Mrs Chung, which Bucay understood from Judy that it was a referral letter and then all 5 of them then went in a taxi to Queen Mary Hospital. 214.In her 1st witness statement, Judy said very little about how Mrs Chung got to the Hong Kong Central Hospital, only that Mrs Chung went there because she was not feeling well and was advised to stay there for a detailed check-up and later that she was transferred to the Queen Mary Hospital. 215.In her 2nd witness statement, Judy had said Mrs Chung had difficulties in breathing, and that, Bucay, Thomas, Justina and Judy took Mrs Chung to the Hong Kong Central Hospital and that as mentioned earlier, Judy said she and Thomas and Justina took Mrs Chung to Queen Mary Hospital in a taxi and Bucay did not go. Judy did not mention anything about Mrs Chung had indicated to her in the taxi to give HK$200,000 to Thomas. 216.Then, in her 3rd witness statement, Judy said that when Mrs Chung was transferred from the Hong Kong Central Hospital to the Queen Mary Hospital by taxi, and it was when the taxi was near the bus terminal of no 23 bus at Pokfield Road that Mrs Chung had raised two fingers and indicated to Judy that she was to give HK$200,000 to Thomas. 217.It was only in her 4th witness statement, after Thomas and Justina and Bucay had described Mrs Chung’s trips to the hospitals and after the hospital receipts were produced, that Judy then stated her own version of events. 218.Judy’s version was that at night time of 2 April 2003, Mrs Chung was not feeling well. Judy considered that Mrs Chung should see a doctor, but as Mrs Chung was very weak at that time, Judy said she was unable to send Mrs Chung to a hospital on her own, and therefore she telephoned Sin to see whether he could assist, but Sin did not answer her call and she therefore called Thomas as he lived nearby. Thomas and Justina came to the Property and that they called 999 and an ambulance arrived and took Mrs Chung to the Hong Kong Central Hospital as it was closest to the Property. As only one family member was allowed in the ambulance with Mrs Chung, Judy said she was the one who was in the ambulance, and that Thomas, Justina, and Bucay went to the Hong Kong Central Hospital on their own, and that after Mrs Chung settled down in the hospital, they all went home. Then in the early hours of 3 April 2003, the doctor at the Hong Kong Central Hospital advised that Mrs Chung should be transferred to Queen Mary Hospital. When asked during the trial how she received such advice, Judy said she believed that she should have received a call from the Hong Kong Central Hospital, and she then informed Thomas and Justina, and that was why they all went back to the Hong Kong Central Hospital again, and later they took Mrs Chung to the Queen Mary Hospital. Judy said Bucay did not go with them. 219.William’s evidence was that in the evening of 2 April 2003 (according to his belief), Thomas showed up at the Property when Mrs Chung was not well and that an ambulance was called and that Mrs Chung was wheeled out in a wheelchair by the ambulance men. During the trial, William said he recalled that the ambulance was called but then he seemed to waver somewhat in his evidence. Later he had said he recalled seeing a wheelchair and Mrs Chung was wheeled out of the Property and he said the wheelchair was brought from the ambulance. 220.There was no mention by Judy of any ambulance in her first 3 witness statements. In short, the 5 witnesses each gave a different version of Mrs Chung’s trips to the hospital. 221.Judy’s latest version appeared to be she, Thomas and Justina went to the Hong Kong Central Hospital twice, the first time was in the night time of 2 April 2003 when Judy went with Mrs Chung in the ambulance, whereas Thomas, Justina and Bucay went separately. Then, early morning of 3 April 2002 they all went to Hong Kong Central Hospital again, this time without Bucay, and later it was Thomas, Justina and Judy who took Mrs Chung to Queen Mary Hospital. 222.Due to the lapse of time and lack of hospital records, it is not possible now to find out exactly what happened, namely how Mrs Chung got to the Hong Kong Central Hospital and whether she had stayed overnight there. There was an Out-Patient Card issued to Mrs Chung[71] by the Hong Kong Central Hospital which was not dated, but this would seem to indicate that Mrs Chung was not admitted to the hospital overnight. Nor did the receipt from the Hong Kong Central Hospital showed Mrs Chung was admitted overnight. Whether the ambulance was called or not, it would seem more probable than not that Mrs Chung was taken to the Hong Kong Central Hospital either very late on 2 April 2003 or very early in the morning of 3 April 2003 and simply remained in the Out-Patient Ward for check-ups, and then she was later referred to the Queen Mary Hospital. Anyway, what seemed clear from the hospital receipts was that Mrs Chung left the Hong Kong Central Hospital at 7:15am on 3 April 2003 and was admitted to the Queen Mary Hospital by about 8:06 am on 3 April 2003. Judy had said she had given Mrs Chung’s HKID card to Thomas to handle the registration procedures at both hospitals. Thomas was the one who produced the Out-Patient Card and the receipts from both hospitals and he was also the one who paid. 223.Thomas, Justina and Bucay maintained they were all there at the Hong Kong Central Hospital and also to the Queen Mary Hospital. Bucay had said Judy was also there. I am prepared to accept Bucay’s evidence and find more probable than not that all 4 of them were with Mrs Chung when Mrs Chung was taken to both hospitals. 224.Bucay’s evidence was that she did not recall anyone had said anything in the taxi to the Hong Kong Central Hospital or to the Queen Mary Hospital. I do not find there was sufficient evidence that Mrs Chung had said to Thomas/Justina in the taxi that Judy was not a good person on their way to either hospital. I also do not find that there was sufficient evidence that Mrs Chung had indicated to Judy or said to Judy in the taxi to the Queen Mary Hospital that she would like to give HK$200,000 to Thomas. As said earlier, Judy did not mention this incident in her first two witness statements and although she then tried to explain her omission in her 3rd witness statement was because she tried to obtain a copy of the cheque from HSBC first[72], I do not find her explanation credible. 225.Judy’s evidence was that when Mrs Chung was in Queen Mary Hospital, she visited her at night time on weekdays and day time on weekends, and that she had visited Mrs Chung together with Sin and that Sin had sometimes visited Mrs Chung alone and that she and Sin had bumped into Ps once in the Queen Mary Hospital. 226.William’s evidence in his 2nd witness statement was that at the time in early April 2003, SARS prevailed in Hong Kong and that his parents had advised him not to visit Mrs Chung in hospital and that was why he did not go to the hospital to visit Mrs Chung at all. 227.During the trial, William’s evidence was that his mother did visit Mrs Chung at Queen Mary Hospital as she had returned home from the hospital to tell him how Mrs Chung was doing. 228.As said earlier, Judy’s evidence was that she had called Sin first when Mrs Chung was not well. I find this rather odd. Judy’s evidence in her witness statement was that Mrs Chung did not like Sin drinking and smoking inside the Property and Mrs Chung had “boldly criticized” Sin[73] and that this was one of the reasons that Sin later moved out, and although Judy’s case appeared to be that she had “sacrificed” her marriage because of her failing to move out with Sin, it transpired during that trial that she was in regular contact with Sin notwithstanding Sin having moved out of the Property in 1995 and that Judy and Sin had continued to maintain a friendly relationship. Even so, there was no evidence that Sin had visited Mrs Chung at the Property regularly after he moved out in 1995 or that Sin had maintained any relationship with Mrs Chung. I do not see any reason why Sin would want to go to visit Mrs Chung alone after Mrs Chung was admitted to the Queen Mary Hospital and I do not find there was sufficient evidence that he had. 229.Judy’s evidence during the trial was that Mrs Chung was not able to drink or eat and had to be on a drip after admission to the Queen Mary Hospital and that she was not able to leave the bed on her own. Although she was able to breathe normally initially, later she had to wear an oxygen mask to help her breathe. According to Judy, although she tried to talk to Mrs Chung, she was not sure whether Mrs Chung heard her as there was no response. In other words, Judy’s evidence was that she was not able to communicate with Mrs Chung during her visits. 230.On the other hand, Thomas’s evidence was that initially Mrs Chung was able to communicate with him and Justina. Thomas had said due to SARS, the visiting hours at Queen Mary Hospital at that time were restricted and he had not seen Judy and/or Sin visiting Mrs Chung at all. Judy however claimed on one occasion she and Sin did bump into Thomas at the hospital. 231.There was no sufficient evidence that upon admission to Queen Mary Hospital, Mrs Chung had immediately deteriorated to the extent that she was not able to communicate with any one. Although Judy could have visited Mrs Chung at Queen Mary Hospital, I am not able to say how frequent. The evidence showed that Thomas was the one who was in attendance at Mrs Chung’s death[74]. Matters after Mrs Chung’s death 232.As said earlier, Judy was stated to be Mrs Chung’s goddaughter on the Funeral Home Invoice and on that occasion, Judy was there at the Hong Kong Funeral Home together with Thomas and Justina. What was not disputed was that Judy did relate to Thomas Mrs Chung’s wishes and preferences. Judy had also said she was sitting with Mrs Chung’s family at the funeral and had thanked those who attended and that she had gone with Mrs Chung’s family members to collect the body. 233.Thomas on the other hand said that Judy only showed up for that first meeting at the Hong Kong Funeral Home and gave views about the type of coffin and Mrs Chung’s wishes and preferences, and thereafter she was absent during the rest of the funeral arrangements save that she did attend the funeral. He did not contradict Judy’s evidence that she was sitting with Mrs Chung’s family. Judy’s evidence during the trial was that it was on the same day that she went to the Hong Kong Funeral Home and that Thomas, Justina and others were there and that later that day, she went with the family to the Queen Mary Hospital to arrange for the collection of the body. Judy maintained she was there with Thomas to arrange for collection of the body. 234.As Thomas held the HKID card of Mrs Chung, he was the one who applied for the death certificate and the cremation permit on 14 April 2003 and that he went to identify and collect the body at Queen Mary Hospital on 16 April 2003. The Funeral Home Invoice was undated, but the receipt of the fee for cremation of HK$1,300 issued by the Food and Environmental Hygiene Department was dated 14 April 2003[75] and it was stated on the receipt that the Hong Kong Funeral Home was to collect the ashes. The memo for identification and collection of the body was dated 16 April 2003 and it was stated thereon that the body was released to Thomas[76]. These documents would appear to indicate that Thomas had attended and/or made arrangement with the Hong Kong Funeral Home on either 13 or 14 April 2003 prior to paying the cremation fee, and went to identify and arrange for collection of the body from Queen Mary Hospital on 16 April 2003. Thus, the visit to the Hong Kong Funeral Home and the collection of body would appear to have taken place on different dates and not on the same day as Judy claimed. Having considered the evidence, I find there was no sufficient evidence that Judy had gone to Queen Mary Hospital on 16 April 2003 with Thomas for identification and collection of the body. 235.After the funeral, all the family members had lunch together. It was Judy’s evidence that she mentioned to Thomas at the time that she was not aware that Mrs Chung had left any will but Judy told Thomas about the Promise. Judy said she had also suggested to Ps that she was agreeable to any one of them to move into Mrs Chung room, in order to look after Madam Kong but none of Mrs Chung’s family members agreed to move in nor did they question why she had a right or interest to remain in the Property. William said he also attended the lunch and after lunch Ps and Judy went to the Property to discuss over arrangements for Madam Kong, and the discussion took place in Madam Kong’s room and that she was grumpy as usual and was not willing to discuss anything. 236.Ps denied that Judy had mentioned the Promise or that she invited either of Ps to move into the Property. Ps maintained there was no mention by Judy of any inheritance or legacy of Mrs Chung and that was why Ps had no knowledge thereof. 237.As seen earlier, it was Judy’s evidence that in the taxi to Queen Mary Hospital, Mrs Chung had indicated to her to give $200,000 to Thomas. Even though I did not find there was sufficient evidence that Mrs Chung gave such indication, it was not disputed that Judy did pay $200,000 to Thomas by cheque on 16 April 2003[77]. Thomas had said in his 3rd witness statement that the payment was never communicated to him by Mrs Chung and that it was Judy who said the payment was at the request of Mrs Chung. Thomas’s evidence was that at the time, he did not question it as he thought that Judy would like to share his burden of Mrs Chung’s medical and hospital fees. During the trial, Thomas had also said that he assumed what Judy said was true, that it was Mrs Chung who instructed her to pay the sum to him. 238.What was clear was that Ps had continued to allow the then status quo to continue after Mrs Chung’s death and that they did not interfere with Judy’s residence in the Property. Thomas’s evidence was after Mrs Chung’s death, he was not clear who paid the management fees and said that as Judy was living there it should be Judy who paid. Thomas had also said during the trial that prior to Mrs Cheung’s death that he had known of Judy’s name being added to the Joint Accounts and he had assumed that after Mrs Chung’s death, Judy was paying all the utilities and property related expenses with monies from the Joint Accounts. 239.Thomas’s evidence was that after Mrs Chung’s death, after being reminded by Madam Kong, he had taken steps to inform the Government Treasury of Mrs Chung’s death. He said as Mrs Chung left no will, he had understood that Madam Kong would be entitled to a share of Mrs Chung’s estate and that it should be Madam Kong who should apply for the letters of administration of Mrs Chung’s estate. He said he did not know that he and his siblings and/or Mrs Chung’s other members/nieces could have a share of Mrs Chung’s estate. Thomas had also said that Madam Kong had orally asked him to apply for the letters of administration but he could not do so unless Madam Kong formally authorised him through a power of attorney and as Madam Kong was in weak health, he did not take up the matter nor did he contact solicitors at that time. He said it was only after Madam Kong died that be contacted solicitors. 240.The evidence showed that about two weeks after Madam Kong’s death Thomas instructed solicitors to deal with Mrs Chung estate and he had filed an affidavit for the Commissioner of Estate Duty[78] and that in November 2009, he instructed another firm of solicitors to deal with Madam Kong’s estate. Whether or not it was when applying for letters of administration of Mrs Chung’s estate that Thomas was advised by solicitors to apply for letters of administration of Madam Kong’s estate, it was clear that shortly after Madam Kong passed away, Ps had tried to apply for letters of administration of Mrs Chung’s estate and this would show that Ps were keen to recover the possession of the Property as soon as Madam Kong passed away. 241.Further, although Judy had said in her 2nd witness statement that Thomas told her that Madam Kong had refused to let him deal with Mrs Chung’s estate[79], in my view, what Judy said would not make sense since as I have found that Madam Kong had a good relationship with Ps and she had appointed Ps as her sole executors and beneficiaries and there was no reason for Madam Kong to refuse to let Thomas to deal with Mrs Chung’s estate. In any event, I find there was no sufficient evidence to contradict Thomas’s evidence that Madam Kong had asked him to apply on her behalf for letters of administration of Mrs Chung’s estate and that Madam Kong never told him that Judy was to inherit Mrs Chung’s estate. Issue 2: Did Mrs Chung make the Promise to Judy 242.I now come to consider the first element of the proprietary estoppel. The Promise, or the representation, that was pleaded in the RRAD&RAC, was that in or around 1990-1991, Mrs Chung invited Ps and/or other relatives of Mrs Chung to move to the Property to look after her and Madam Kong, and after Ps and/or Mrs Chung’s other relatives declined her invitation, Mrs Chung told Judy, on multiple occasions through phone conversations and when meeting with Judy, that if Judy moved to the Property to live with and look after Mrs Chung and Madam Kong, Mrs Chung would leave all her assets to Judy[80]. 243.Mr Ng, relying on Mo Ying v Brillex Development Ltd [2014] 3 HKLRD 224 (CFI)[81], which was upheld on appeal [2015] 2 HKLRD 985 (CA), criticised Judy for not having pleaded or set out the exact words/phrases used by Mrs Chung. The Mo Ying case concerned a common intention constructive trust and DHCJ Eugene Fung SC had said in relation to “express common intention”, express discussions should be pleaded in the greatest detail, both as to language and as to circumstance, referring to Hammond v Mitchell [1991]1 WLR 1127 at 1139E‑F (Waite J)[82]. Mr Ng submitted that what was held in Mo Ying case should also apply to the present case of proprietary estoppel where express words used by Mrs Chung should be pleaded. 244.Judy’s witness statements were all in English and it was not exactly clear what express words were used by Mrs Chung in Chinese until the trial. Judy had said in her 1st witness statement that she learnt through visits and phone calls with Mrs Chung that Mrs Chung had repeatedly requested Ps and their siblings to move into the Property to look after her and Madam Kong and Mrs Chung’s request was refused by Ps. According to Judy, Mrs Chung had told her many times that she was sad and lonely with nobody to rely upon, and that sooner or later she would be too old to manage the Property on her own[83]. It was not quite clear what Mrs Chung meant by “managing the Property” if she did utter those words, and in any event, she did not mention her other assets. 245.Judy’s evidence was that in 1991 and 1992, Mrs Chung began to ask on the phone and during Judy’s visits whether Judy could move to reside in the Property and to look after Mrs Chung and Madam Kong. According to Judy, Mrs Chung verbally made the Promise[84]. 246.Judy said she did not agree as in 1991-1992, as William was only 4 years old then and also Sin was a total stranger to Mrs Chung, and Sin did not have any moral responsibility to look after Mrs Chung and Madam Kong particularly when Madam Kong was not an easy-going person[85]. 247.Judy then said the matter dragged on. She visited Mrs Chung and talked to her on the phone more often, during which Mrs Chung had expressed her sadness and loneliness. According to Judy, from time to time, Mrs Chung repeated the Promise in front of Sin and Judy’s mother. Eventually, in around the summer or autumn of 1994, Judy said she persuaded Sin to change his mind and accepted Mrs Chung’s invitation, and they then moved into the Property with William and Bucay[86]. 248.During the trial, Judy had said that Mrs Chung told her that if Thomas had agreed to move in, she would give him all her assets in future. Judy did not in fact mention this in her witness statement and when cross-examined, Judy replied that she had omitted to say this as what Mrs Chung said was piece-meal / “忽然間講一句，忽然間又講一句”. It was put to Judy that Mrs Chung had never said to Thomas that if he were to move in, she would give him all her assets, but Judy answered “佢有講 ‘叫佢地來住，來照僱我，將來的嘢交俾佢’”. 249.When Judy was asked by Mr Ng whether the Promise or the representation as pleaded by her would mean that if Judy were to move in then Mrs Chung was to leave all her assets to Judy and would leave nothing for Madam Kong, Judy confirmed that it was her case that if she were to move into the Property to live with Mrs Chung and to look after Mrs Chung and Madam Kong, Mrs Chung’s intention was that everything would be left to Judy and nothing would be left for Madam Kong. 250.Judy had initially said under cross examination that if she moved in relying on the Promise and looked after Mrs Chung and Madam Kong, then she would have performed her part of the deal and that even if she were to pass away before the two elderly ladies, she/her estate would be entitled to Mrs Chung’s assets, but she later changed her stance and said if she were to die first, her understanding was that her estate would not be entitled to all the assets of Mrs Chung because otherwise, Mrs Chung would have nothing to live on. She then said this was only speculation on her part. 251.She was asked to clarify whether it was her understanding that if she had looked after both elderly ladies until their death, she would be entitled to all the assets of Mrs Chung only upon the death of both elderly ladies. Judy however said no as Mrs Chung did not say that Judy had to wait until Madam Kong’s death nor until Mrs Chung’s death. Judy had said: “佢無話等到我死” and that Mrs Chung had only said “將来我留晒的嘢俾你”. Judy then said “佢無好明確講等佢地死”. 252.Upon further cross examination, Judy then changed her evidence again and said logically “將来” would mean when Mrs Chung died. Judy admitted that Mrs Chung could give or transfer away her assets during her lifetime but Judy said it never occurred to her that she Mrs Chung would do so and that she would have told Judy. When asked whether Judy had asked Mrs Chung, Judy had responded that she did not and she then said that she moved to the Property not because of Mrs Chung’s assets and that it was because Mrs Chung had asked her and Judy could not bear to see Mrs Chung so sad (“唔忍心佢咁慘”). 253.In her 1st witness statement, Judy had said the “whole purpose” for her to move into the Property was because Mr Chung had told her to look after Mrs Chung and Madam Kong[87]. Judy had also said that when Sin wanted to move out, she was in a dilemma and that at the time Mrs Chung had also expressed her concern that if Judy were to move out of the Property about one year after moving in, that would give an impression to her relatives, particularly Ps, that it was burdensome to live with her, with the consequence that it would be impossible to find anyone to assume Judy’s role to look after her and Madam Kong. I do not find what Judy said makes sense since if Judy did move out with Sin, Mrs Chung could simply have explained to her relatives that she and/or Madam Kong did not like Sin smoking and drinking and Sin decided to move out and to maintain her marriage, Judy decided to move out with Sin. Anyway, Judy decided to remain living in the Property. 254.To summarise, according to Judy, the express words which were uttered by Mrs Chung if Judy were to move to the Property to live with and look after Mrs Chung and Madam Kong were “將来我留晒的嘢俾你”, and that the Promise was uttered and/or repeated on various occasions including the following:
255.As seen earlier, during the trial, Judy had also mentioned that Mrs Chung told Madam Kong of her intention to give everything to Judy during the incident in early 2002 when Mrs Chung and Madam Kong were having an argument and Madam Kong had accidentally pushed Mrs Chung who fell onto the floor and hurt her foot. When Judy was asked why she never mentioned the above incident in all her 4 witness statements, her response was that she did not write down this incident as there were many things to write down. 256.Judy herself was not present at the incident, and she had also admitted under cross examination that she herself never mentioned the Promise to Madam Kong or Ps when Mrs Chung was alive. 257.It seems that if Mrs Chung had indeed told Madam Kong about the Promise, Madam Kong should have become concerned as she might be evicted by Judy upon Mrs Chung’s death. Given her relationship with Judy, I would have thought Madam Kong would have informed or alerted Ps. There seemed no sufficient evidence that she had. Anyway, I find there was no sufficient evidence that Madam Kong was aware of Mrs Chung’s alleged intention of leaving all her assets to Judy or that Madam Kong was aware of the alleged Promise. 258.Judy’s first pleaded case was that it was in or around 1992 or 1993 that after Ps and/or her other relatives had declined to move in that Mrs Chung had asked Judy to move in. The timing was later amended in her pleadings to 1990 to 1991. However, in her 1st witness statement, Judy then said the first time Mrs Chung made the Promise was in 1991 and 1992. Mrs Chung and Madam Kong moved into the Property probably in 1990/1991, or sometime after 1 February 1990 and as mentioned earlier, there was another couple initially living in the Property for about a year after Mrs Chung and Madam Kong moved in. It would thus seem unlikely that in 1990 or early 1991 that Mrs Chung would be asking whether Ps or Judy to move in. I find it more likely to be towards around latter part of 1991 or 1992 that Mrs Chung would have asked Ps or Judy to move in, namely after the other couple had moved out. 259.It was never Judy’s pleaded case in the RRAD&RAC that the reason of Mrs Chung adding Judy’s name to the Joint Accounts was that Mrs Chung wanted to honour the Promise to Judy “bit by bit”. This was not Judy’s evidence in her 1st witness statement either. As said before, the adding of Judy’s name was according to Judy’s then evidence in her 1st witness statement was so that it would be more convenient for Judy to manage Mrs Chung’s finances on behalf of Mrs Chung. It was only in Judy’s 2nd witness statement that she then claimed that the adding of her name to the Joint Accounts was to honour the Promise. I have rejected this part of Judy’s evidence earlier and it was my finding that the adding of Judy’s name to the Joint Accounts was for Judy to help manage Mrs Chung’s finances or for administrative purpose only. 260.It was not explained by Judy why her name was added to Mrs Chung’s safe deposit box. It was not part of Judy’s pleaded case that the adding of her name by Mrs Chung to the safe deposit box was an act to honour the Promise. All she pleaded was when she accompanied Mrs Chung to the box, Mrs Chung had repeated the Promise to Judy. Judy had said during the trial that the box was later closed when Mrs Chung was still alive, to save expenses. 261.Hence, apart from Mrs Chung repeating the Promise, there was no other act of Mrs Chung pleaded by Judy to indicate that Mrs Chung’s intention was to leave all her estate to Judy upon Mrs Chung’s death. 262.Notwithstanding Judy’s pleaded case and evidence that the Promise was repeated to quite a number of people, including Sin, Judy’s mother, Judy’s sisters, the furniture store manager Kam, the only witnesses Judy eventually called were William and Yeung. 263.Yeung met William in September 2001 when she was 13 years old and when she and William were both in same Form 1 class and they were good friends and have remained good friends. Yeung said she had visited William at the Property about 3 times a week to have lunch with him there and that she would visit William also during weekends and after school until September 2002 when her visits reduced in frequency to once every several weeks as she and William were no longer in the same class and at end of 2002 due to SARS, she ceased visiting William at the Property. 264.Yeung’s evidence was that although she met Mrs Chung during her visits, Mrs Chung never had lunch together with her and William. Yeung had also said in her witness that on one occasion in the summer of 2002 when she went to visit William, he was taking a nap in his room when she arrived, and she then chatted to Mrs Chung who was in the sitting room. Yeung said Mrs Chung had told her that Judy treated her very well and looked after her living and that she would leave everything to Judy and William when she passed away[101]. 265.Yeung was not cross-examined as to what exactly was said by Mrs Chung. Yeung would only be about 13 years old in the summer of 2002 and just completed Form 1. It was not quite clear in what context Mrs Chung had uttered those words save that Yeung said Mrs Chung had asked Yeung how her family members had treated her. In any event, Judy herself had said Mrs Chung would often speak in a piecemeal manner, namely “一舊舊” and also “忽然間講一句”. I do not find it probable that Mrs Chung who was then 84 years old would suddenly confide in Yeung or a 13 year old student about what she intended to do with her assets when she passed away. 266.In William’s 1st witness statement, he simply confirmed what was said by Judy regarding the Promise, and there was no independent evidence from him[102]. When put to him that in 1994 he was only around 6 years old and that he would not have any independent recollection of events which took place in 1994, William objected and said he was aware of the situation in 1994. However, it was not really clear what he was aware of save that he and his parents had moved into the Property. 267.William admitted that he was not present when Yeung chatted to Mrs Chung during which Mrs Chung was alleged to have said everything would go to Judy and William. When he was asked about the post-funeral lunch, William said he was sitting at a separate table from Judy, and did not hear Judy telling Thomas and his other relatives about the Promise. 268.When he was asked about why Mrs Chung would ask him to call her paternal grandmother in her room on her 80th birthday, William’s response was that he recalled the incident and that he did not know why at the time and only nodded in response to Mrs Chung’s request, and later he sent Mrs Chung a Christmas card in 1998 addressing her as paternal grandmother. William did not really elaborate during the trial what Mrs Chung had said about her money and assets would eventually go to him and his mother. William was only about 10 days short of being 9 years old on Mrs Chung’s 80th birthday in 1997. Judy was not present, and it was not really clear what Mrs Chung had said to William or what William had told Judy at the time. 269.As said, Yeung was about 13 when Mrs Chung was chatting to her and William was only about to be 9 on Mrs Chung’s 80th birthday. In light of their then ages and for reasons set out above, I do not find their evidence in relation to what Mrs Chung had said to them would be reliable. 270.Neither Sin nor any other of Judy’s family members were called as witnesses. The furniture store manager Kam was eventually also not called by Judy. In my view, Sin would have been an important witness as he did agree to move in with Judy and could have shed light as to why his family decided to move in. When asked during the trial, Judy had tried to explain that her solicitors had advised her to find witnesses who were not family members and that if the Court deemed it necessary, she could call Sin then and there. There was no confirmation from her solicitors that this was their advice and I do not find Judy’s explanation for failing to call Sin or her other family members satisfactory. As Judy had maintained regular contact and was on friendly terms with Sin, the inference I draw is that her failure to call Sin would indicate that Sin’s evidence would not have supported her case. 271.In the end, the main witness was Judy herself. As emphasized by the Court of Final Appeal in Yung Shu Wu v Vivienne Sung Wu (2011) 14 HKCFAR 39[103], as Judy was in effect alleging a gift or the promise of a gift to her by a person now deceased, namely Mrs Chung, the Court has to approach such claims with suspicion. 272.One of the main concerns I have with Judy’s case was that in light of her evidence that Madam Kong had been living with Mrs Chung (and Mr Chung) as early as late 1970s/early 1980s, and that Mrs Chung was clearly providing Madam Kong with a roof over her head and also I find the two sisters were very close to each other, it seems inherently improbable that Mrs Chung would make the Promise to Judy, promising to leave everything to Judy if Judy were to move into the Property in 1994, and/or repeating the Promise thereafter, without any provision to ensure that Madam Kong would have at least a roof over her head. 273.In particular, the words uttered by Mrs Chung “將来我留晒的嘢俾你” were in my view vague in that there was no identified property/asset and no timing. Mrs Chung was not an uneducated person. Even though she did not have any gainful employment, it was not disputed that she had done voluntary work by joining the Red Cross and/or had worked as a nurse during the Second World War. As found earlier, Mrs Chung was also of a detailed mind and meticulous in her financial affairs and I have accepted earlier that Mrs Chung had a habit of recording her daily expenses and her financial affairs. 274.As seen from the Deed entered into by Mrs Chung with the developer of No 9 Caine Road, Mrs Chung entered the Deed in the capacity of administratrix of Mr Chung’s estate. Having applied for letters of administration of her husband’s estate through solicitors, Messrs Woo, Kwan, Lee and Lo, she should be aware as to who would be entitled to the estate of a deceased who died intestate, as she had to state in her affirmation for grant as to whether Mr Chung had left any parents, siblings or children. Even if she did not know, since her acquisition of the Property was through the Deed executed at a solicitors’ office, and she had to execute assignments for the sale of the two flats at No 9 Caine Road and for the acquisition of the Property, Mrs Chung should have known that a written document would be necessary to effect the transfer of a property. Indeed, as seen below, it was Judy’s evidence that Mrs Chung herself had brought up the matter of formal transfer of assets at end of 2002/early 2003. 275.Judy herself had been working for over 6 years as an estate agent by early 2003 and she had studied commercial law. Through being an estate agent, she would have had dealings with conveyancing solicitors and she should also be well acquainted with conveyancing procedures. She did not dispute this and as said earlier Judy had said that in fall of 2002/early 2003, perhaps Mrs Chung was aware of her advanced age as she had to visit the hospital, she had repeated the Promise and had taken the initiative to discuss the idea of formally transferring her assets to Judy. It was also Judy’s own evidence that on about 23 March 2003, Mrs Chung was asking Judy to gift various items to Ps and two of their siblings, and Judy herself had recorded down Mrs Chung’s wishes. Since Judy had helped to arrange for the HSBC Customer Relationship Manager to attend the Property to help Mrs Chung to effect the change of the operating mode of the HSBC Sole Account, Judy should in my view be fully aware that she could also arrange for a solicitor to attend the Property to help Mrs Chung effect her various wishes, whether to transfer the Property to Judy, or to prepare a will or to prepare any other documents in relation to her intended gifts. 276.Bearing in mind both Judy and Mrs Chung appeared to be educated women at least to secondary school level, and according to Judy, they had long chats together, it did not seem probable that neither Judy nor Mrs Chung had recorded down or had anything in writing as evidence of Mrs Chung’s intention in relation to the Property and Mrs Chung’s other assets. Even if not formally, Mrs Chung could have written down her wishes regarding the Property and her other assets. Yet, there was no written record or any written document or paper at all produced by Judy even though there had been plenty of opportunity for Mrs Chung to prepare or write something. 277.Even on Judy’s own case, Mrs Chung was conscious and able to communicate with her in the taxi on her way to the Queen Mary Hospital. Thus, in my view there was still time for Mrs Chung to execute a will or an assignment, or to write down her wishes or the Promise immediately after her admission to the Queen Mary Hospital. 278.Having considered all the above and all the circumstances in this case, and in particular, as I have found the person closest to Mr Chung was Madam Kong, I do not find it inherently probable that Mrs Chung would have made the Promise or the representation as pleaded or alleged to Judy, or that Mrs Chung’s intention was to leave all her assets to Judy upon her death without any provision at all for Madam Kong. I do not find that there was sufficient evidence that the Promise as pleaded existed. I also do not find that there was sufficient evidence that Mrs Chung had induced, encouraged, or allowed Judy to believe that Judy would have acquired proprietary interest of the Property or of all Mrs Chung’s assets, as pleaded in the RRAD&RAC. Issue 3: Any detrimental reliance 279.Notwithstanding that I do not find that the Promise existed, I will go on to consider whether there had been any detrimental reliance by Judy in the circumstances that Mrs Chung was found to have made the Promise as pleaded by Judy. Reliance 280.Prior to Judy and her family moving in, they were living in 8E Caineway Mansion with Sin’s grandmother. Judy had said the saleable area of 8E Caineway Mansion was 600 sq ft and consisted of one big room and one small room. In 1988, when Judy moved there after her marriage with Sin, Judy had said Sin’s grandmother was occupying the smaller room and Sin’s 2nd uncle who was occupying the bigger room had emigrated to Canada leaving his daughter with Sin’s grandmother and the two of them slept in respectively the lower and the upper level of a bunk bed in the smaller room. Prior to moving into the Property, according to Judy, she, Sin and William occupied the bigger room. Bucay’s recollection was different, in that she had said that Sin’s grandmother occupied the larger room, and that Judy, Sin and William occupied the smaller room, with Judy and Sin sleeping on one bed, and William sleeping on a folding bed, and there was no room for Bucay who had to sleep outside in a friend’s house. Bucay’s employment with Judy commenced in December 1993 but according to Judy, Bucay was sleeping in the living room. William’s evidence during the trial was that initially he was with his parents in one bedroom, but when he was older, he shared the bunk bed with his great grandmother, and that Bucay was sleeping on the folding bed in the living room. 281.Whichever, it was not really disputed that the Property offered physically more space for Judy and her family plus her dog, the Property being a 4 bedroomed unit, and almost twice the size of 8E Caineway Mansion. Judy and Sin had their own privacy in one bedroom, whereas Bucay and William shared another bedroom. Moreover, Judy and her family were living there rent free after moving in. 282.It was Judy’s evidence that when she was living in 8E Caineway Mansion, she had to look after Sin’s grandmother whom she knew well before her marriage to Sin and whom she used to play mah-jong with, and that Sin’s grandmother was about the same age as Mrs Chung. Under cross examination, Judy admitted that after moving to the Property, she would not be able to look after Sin’s grandmother, but she then said that her mother-in-law (Sin’s mother), who was living in Lai Tak Estate, had promised to go and look after Sin’s grandmother, and also that the Property was only about 5 minutes walk to 8E Caineway Mansion. 283.It was Marius’s evidence that Mrs Chung told her Judy requested Mrs Chung to allow Judy and her family to move to the Property as Judy was not getting along with her mother-in-law. However, it was pointed out to Marius during the trial that Judy was not living with her mother-in-law at the time, but Marius maintained that was what Mrs Chung told him. 284.According to Judy, Sin’s job in 1994/1995 was a car service manager with a salary of about HK$35,000/HK$36,000 per month. Judy had said, prior to Sin moving out of the Property, he was paying to Judy about HK$10,000 per month for maintenance for her and William. 285.There was no sufficient evidence that Judy moved to the Property due to any disagreement, whether between Judy and her mother-in-law, or between Judy and Sin’s grandmother. However, I note that when Sin moved out of the Property in 1995, he did not move back into 8E Caineway Mansion to live with his grandmother, and instead, according to Judy, he rented and shared a unit with friends in a village house in Sai Kung. 286.Judy’s evidence as to why she moved into the Property was rather confusing and inconsistent. In paragraphs 17-20 of her 1st witness statement, Judy’s evidence appeared to be that she moved into the Property in reliance on the Promise. However, in paragraph 26 of her 1st witness statement, she had said that the “whole purpose” for her to move into the Property was that Mr Chung had told her to look after Mrs Chung and Madam Kong. 287.During the trial, when asked why she moved into the Property, Judy gave two reasons, namely :
288.It was Judy’s evidence under cross examination during the trial that it was not because of Mrs Chung’s assets that she moved into the Property, although later she had added that Mrs Chung had said she would give everything to Judy/“佢話俾晒的嘢我”. 289.William had initially agreed that Judy moved to the Property for the two reasons given by Judy and had said it was never about financial consideration or the Promise, and that the Property was not worth that much at the time in 1994, although later during the trial he seemed to change his stance. However, he had also said he was only a boy then and did not really know much. 290.After moving in, the only occasion that Judy had mentioned about being in a dilemma whether to remain or to move out was when Sin moved out in 1995. As mentioned earlier, it was Judy’s evidence that Mrs Chung expressed her concern that if she moved out of the Property about a year after she moved in, that would give an impression to Mrs Chung’s relatives that it was burdensome to live with her. I have said earlier that I do not find this evidence makes sense. 291.In fact, during the trial, Judy’s evidence was that she did not even tell Mrs Chung initially when Sin moved out and that she had only told Mrs Chung that Sin had gone on business trips to Mainland China and only told Mrs Chung later that Sin did not like Madam Kong. It was not exactly clear when Judy eventually told Mrs Chung that Sin had moved out. 292.Although Judy had said in her witness statement that Mrs Chung was very grateful of her decision to stay and repeated the Promise, this was not specifically pleaded in her RRAD&RAC, and she only pleaded that her separation with Sin, or the sacrifice of her marriage, was part of the detriment. 293.As set out in Szeto Chak Mei v Chan Lam Shan, HCMP 836/2012, unrep, 1 March 2016, for the element of reliance, the test is not a “but for” one. The promises relied upon do not have to be the sole inducement for the conduct; it is sufficient if they are an inducement. Once it has been established that promises were made and that there has been conduct by the plaintiff of such a nature that inducement may be inferred, then the burden of proof shifts to the one claiming vacant possession to establish that the claimant did not rely on the promises[104]. 294.As seen above, both Judy and William had emphasized that Judy did not move into the Property because of Mrs Chung’s assets and that the reasons why Judy decided to move into the Property were because of Mr Chung’s request of her to look after Mrs Chung and Madam Kong, and also because Judy could not bear to see Mrs Chung so sad. Even though Judy had also later referred to the Promise, on their own evidence, even if the Promise had existed, I am not satisfied that the Promise was an inducement for Judy moving into or remaining in the Property. Detriment 295.The detriment pleaded by Judy was particularised as follows[105]:
(1) Care and attention 296.Judy’s evidence was that she was looking after Sin’s grandmother at 8E, Caineway Mansion prior to their moving into the Property and Sins’ grandmother was more or less the same age of Mrs Chung. Thus, whether she moved to the Property or not, she would have to take care of an elderly person. However, I accept that, by moving in, she had to take care of two elderly persons. 297.I have earlier considered Judy’s evidence in relation to her relationship with Mrs Chung and Madam Kong and her alleged personal care of Mrs Chung and Madam Kong. To summarise, and as pointed out earlier, it was Judy’s own evidence that Mrs Chung was leading a rather independent life and did not require round-the-clock care. I find no sufficient evidence that Judy had cared for Mrs Chung in the intimate or personal way as described by Judy. As for Madam Kong, I find that the cleaning up of the mess when Madam Kong’ tumour bled seemed to be only an one off incident and there was no sufficient evidence that Judy had helped Madam Kong go to the toilet at night. I have found that Madam Kong did not like Judy and that Madam Kong was mainly cared for by Bucay. 298.I have mentioned earlier that it was Judy’s evidence that she had run errands for Mr and Mrs Chung, prepared Chinese medicine and accompanied them to see the doctor. She had said that after Mr Chung died, she had telephoned and visited Mrs Chung frequently, and she had also mentioned accompanying Madam Kong to the doctor’s clinic at the request of Mrs Chung, prior to her moving into the Property. In light of Judy’s own evidence, it would appear that even if Judy had not moved into the Property, on her own evidence, she would have carried on what she said she was doing on behalf of Mrs Chung. 299.Having considered all the evidence, I do not find there was sufficient evidence that the care and attention Judy alleged that she had provided for Mrs Chung and Madam Kong was a detriment on her part. (2) Suffering from anxiety and stress 300.There was no medical evidence produced by Judy that she was suffering from any anxiety or stress and in any event she was working very long hours after becoming an estate agent and was often not at home. 301.During the trial, when William was asked whether his family’s living environment had in fact improved when they moved to the Property, William became somewhat emotional and had said when his family was living in 8E Caineway Mansion, he was living with his biological great grandmother and it was a real family whereas after they moved to the Property, he had suffered many many years of Madam Kong’s constant scolding and shouting and Madam Kong had insulted him all the time, and he disagreed that his living condition had improved. 302.William said he did complain to his mother all the time when he was in primary school and in secondary school about living in the Property but his mother had asked him to be tolerant and that she was training him to be tolerant. None of this part of William’s evidence or of his suffering for many years was mentioned in his witness statement or by Judy in her witness statement. Further, William had said he was residing with his grandparents on weekdays when he was around primary 3 – primary 6. Thus, even in primary school, he was often not at home, and no doubt at secondary school, he would be at full day school. 303.In fact, it would appear from Yeung’s evidence that when she asked William who Madam Kong was, he had told her Madam Kong was “crazy” and he had told Yeung to just ignore Madam Kong. It would thus seem that the attitude William adopted towards Madam Kong was to ignore her. In any event, from the evidence, Madam Kong was always in her own room, but I accept Yeung had said even though she was in William’s room, she could hear Madam Kong was scolding or shouting in her own room. 304.According to William, he had called Mrs Chung god- grandmother and from all accounts he did get on well with Mrs Chung and they had a good relationship. I accept that Madam Kong was probably a less easier person to live with than Ms Chung. Notwithstanding this, I do not find there was sufficient evidence that William had suffered from any anxiety or stress by living in the Property. (3) Sacrificing her marriage with Sin 305.As seen earlier, it was Judy’s evidence that she had sacrificed her marriage. However, she had said in her witness statements that there had been other problems with her marriage. Notwithstanding in the RRRAD&RAC, Judy had stated that Sin had a mistress and a child, there was no further elaboration on this and as said earlier, it transpired during the trial that she and Sin never got divorced and had remained on good terms and were in regular contact. Sin had remained her spouse and a beneficiary on Judy’s medical insurance policy with the Zuellig Group effective from 1 September 2000 with monthly premium payable by Judy[106]. Whether this was due to Judy’s previous record with the Zuellig Group or not, Judy did not seem to have taken any steps to update the record and seemed to be content that Sin to remain a beneficiary of her medical policy. Also, according to Judy, Sin was the person she had first called when Mrs Chung was not well on 2 April 2003 and that she and Sin, and also Sin on his own, had visited Mrs Chung. Further, in 2006, when William was applying to a school in UK, the school invoice was addressed to both Sin and Judy at the address of the Property[107]. 306.Having considered the evidence, I am not satisfied that there was sufficient evidence that there had been any sacrifice made by Judy by her decision to remain in the Property and not moving out with Sin. (4) Payment of expenses 307.As said earlier, Judy’s evidence was that there was the Financial Arrangement, and that Judy had reimbursed Mrs Chung over household bills. I have found that there was no sufficient evidence that the Financial Arrangement had existed and/or that Judy had reimbursed Mrs Chung for the utilities or household bills. The evidence showed that Mrs Chung and Madam Kong would often have their meals separate from Judy and William. I do not find there was any sufficient evidence that Judy had paid for Mrs Chung’s or Madam Kong’s food or other common expenses. Even if Judy did pay for some food or common expenses, she was living in the Property rent free, there was no sufficient evidence that she had suffered any detriment, in that what she had paid for towards common expenses was more than the market rent she would have to pay for sharing a 4 bedroom flat. Conclusion on Issue 3 308.It was not disputed that Judy had enjoyed rent free accommodation of a 4 bedroom flat since she moved into the Property and on her own evidence she had also received various sums of money from Mrs Chung. 309.Having considered all the evidence and the circumstances of this case and looking at the matter as a whole, even though I accept that Judy had a long and good relationship with Mrs Chung who had trusted her and it was probable that Mrs Chung could have regarded her as a goddaughter at some stage, I am not satisfied that there was sufficient evidence of any detrimental reliance on the part of Judy, even if the Promise had existed. Issue 4, Issue 5 and Issue 6 310.In relation to Issue 4, Mr Ng submitted that no relief should be granted to Judy even if Judy has detrimentally relied on the alleged Promise. In light of my findings above, I do not need to consider this issue. 311.Issue 5 will be dealt with below. In light of my findings, I do not need to consider Issue 6. Conclusions 312.Having regard to all the above as Judy has failed to prove the existence of the Promise, Ps, in their capacity of joint administrators of Mrs Chung’s estate, should be entitled to ownership and possession of all of the assets in Mrs Chung’s estate. 313.In so far as the Property is concerned, Ps now seek mesne profit since Madam Kong’s death. Having considered the circumstances of this case and that Ps only obtained grant of the letters of administration of Mrs Chung’s estate on 17 October 2012, I order Judy to pay damages/mesne profits to Ps from 1 November 2012 onwards until delivery of vacant possession. I will allow Judy 3 months from today to deliver vacant possession. 314.The mesne profits of the Property have been set out in the report by the SJE and I understand that there was no dispute as to the amounts stated therein. Ps are willing to accept the amount of HK$41,200 per month as from 25 February 2015 onwards to the date of delivery of vacant possession. I will leave the parties to work out the exact figure/s. 315.All rates, management fees, renovation/improvement expenses of the Property incurred after Mrs Chung’s death are to be borne by Mrs Chung’s estate. All utilities expenses namely gas, electricity and water are to be borne by Mrs Chung’s estate until Madam Kong’s death and thereafter, such utilities expenses are to be borne by Judy until delivery of vacant possession of the Property. 316.As for the Joint Accounts and the HSBC Sole Account, in view of my findings on the non existence of the Promise and that all the funds therein remained beneficially Mrs Chung’s, they should belong to her estate. Judy should return to Ps on behalf of Mrs Chung’s estate all funds withdrawn by her, subject to an account of any expenses paid out by her on behalf of Mrs Chung’s estate and/or in relation to the Property as set out above. I will allow Judy 3 months to prepare the accounts and order Judy to pay the balance, if any, to Ps within 3 months from the date of this order. 317.As for the 128 items in Annex A, I order Judy to return them to Ps on behalf of Mrs Chung’s estate within 3 months of this order. Defence and Counterclaim 318.In light of my findings, the RRAD&RAC is dismissed. 2nd defendant 319.I am satisfied that due service of the writ was effected on the 2nd defendant. There had been no acknowledgment of service, nor had there been any defence filed. No one had come forward or appeared for 2nd defendant throughout and at the trial. I grant Ps judgment as claimed. Order 320.The order I make is to the following effect:
321.As for costs, since Ps/Mrs Chung’s estate are the successful party, I will order Judy to pay the costs of this action, including any reserved costs. This is an order nisi, which will be made final after 21 days.
Mr Tom Ng, instructed by Robertsons, for the plaintiffs Mr Leon Ho, instructed by Hobson & Ma, for the 1st defendant The 2nd defendant was not represented and did not appear [1] See her date of birth on hospital payment advice, D1:54 [2] In the witness statements and throughout the trial, Thomas and Marius had referred to them and their family members living at a building at 30, Staunton Street, but later it transpired from Mrs Chung’s marriage certificate filed in the probate file of Mr Chung’s estate, the correct address should be 1st floor, 30 Stanley Street. [3] Which was also known as 4th floor, No 9 Caine Road [4] E1:28-33 [5] Also known respectively as 4th Storey / “M” Floor (3rd floor) and 5th Storey / “Q” Floor (4th floor) [6] See E (2):350 [7] See Land Search Record, D:28-30, and Assignment at E1:38-42 [8] E2:379 [9] E1:235 [10] E1:240 [11] See plan at E1:26 [12] At para 21, B:7 [13] At para 29, pg 786 [14] At para 29, pg 786 [15] At para 107, pg 44 [16] At para 109 [17] At para 1.21 [18] At para 11-044 [19] At paras 11.126 and 11.127 [20] At 1510C-F [21] In para 31, at pg 787 [22] per Lord Scott, at para 13 pg 780 [23] At paras 13 and 48 [24] D:1-50 [25] At para 77 [26] At paras 77-80 [27] At paras 56-59 [28] E1:233 [29] E1:212-214 [30] E1:210-211 [31] See E1:233 [32] See E1:210-211, and also 233 [33] For USD Joint Savings Account, see E1:186-194; For HKD Joint Savings Account, see E1:195-200 [34] E1:209 [35] See para 14, B:53 or B:62 [36] Para 12, B:44or B:49 [37] See para 29, B:9 [38] E1:144 [39] See para 32(3), B:154 [40] E1:201-208 [41] E1:195-200 [42] E2:393 [43] E2:438 [44] E3:627, 637 [45] E1:182-1 [46] See para 29, B:10 [47] At para 29 [48] See E1:77 [49] E1:56 [50] E1:56 [51] E1;54 [52] E1:57 [53] E1:142 [54] See para 45, B:14 [55] See para 7, B:96 [56] See para 42, B:13 [57] E1:235 [58] E2:240-35-253 [59] E2:255-259 [60] See para 34, B:11 [61] E2:392/F:15 [62] F:17 [63] E2:392 [64] E1:62-63 [65] See para 20, B:150; E2:288 [66] E2:380 [67] E2:381 [68] At para 17, B:6 [69] See para 13, B:32 [70] See paras 8,9, B:121 [71] E1:44 [72] See para 5, B:95 [73] Para 25, B:8 [74] E1:142 [75] E1:60 [76] E1:61 [77] E1:77 [78] E1:95 [79] Para 22(1), B:87 [80] See para 4(2), A:26-27 [81] At para 38(2) [82] See para 38(2) [83] At para 16, B:15 [84] See para 17, B;6 [85] See para 18, B:6 [86] See para 19, B:6 [87] See para 26, B:9 [88] See para 4(2), B:26 [89] See para 17 B:6 [90] Para 19, B:5 [91] Paras 22 and 23, B:7-8 [92] See para 23, B:8 [93] See para 4(4) d), A:27 [94] Para 28, B:9 [95] See para 4(4)(b), A:27, and para 29, B:10 [96] Para 33, B:11 [97] See para 34 B:11 [98] See paras 37 -39 B:12-13, and para 4(4)(e), A:27-28 [99] See para 42, B:13 [100] See para 47, B:14 [101] See para 14, B:26 [102] See para 2, B:19 [103] At para 73 [104] At para 36 [105] See para 5, A:38-4-38-5 [106] E2:345 [107] E2:266 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCA 350/2013