Woo Chak Keung Ricky v. The Personal Representative of the Estate of Yu Yuet Yuen

HCMP 654/2017

[2019] HKCFI 1567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 654 OF 2017

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Before: Deputy High Court Judge Kenneth Wong in Court

Date of Hearing: 17 June 2019

Date of Judgment: 17 June 2019

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J U D G M E N T

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1.For the reasons below, I am prepared to grant the declaration that the defendant, i.e. the Personal Representative of the Estate of Madam Yu Yuet Yuen (余月圓) (“the Wife”), deceased does hold the property described in the schedule to the originating summons dated 21 March 2017, namely “All That one equal undivided thirty-sixth part or share of and in ALL Those pieces or parcels of ground respectively registered in the Land Offices as The Remaining Portion of Section A of Kowloon Inland Lot No. 3068 and of and in the messuages, erections and buildings thereon now known as Nos. 384,384A and 386 Portland Street, Kowloon together with the right to hold use occupy and enjoy All That the 6^th Floor of the said No. 384A Portland Street, Kowloon, Hong Kong (Also Known as Rear Portion, 6^th Floor, No. 386 Portland Street, Kowloon, Hong Kong)” (“the Property”) on trust for the estate of Gong Hong (or Hon) Mow (江洪茂), deceased (“the Deceased”) and that the estate of the Deceased is the sole and absolute beneficial owner of the Property.

2.The Property was brought in 1965 by the Deceased and the Wife [1] . In both the sale and purchase agreement dated 14 January 1965 and the assignment dated 1 May 1965, it was stated that the Deceased and the Wife purchased and were assigned with the Property “as Joint Tenants”.  This was a clear declaration of legal ownership of joint tenancy.  Absent other indication and evidence to the contrary, equity follows the law.  As such, the beneficial interests of the Deceased and the Wife were the same as their legal interests, as Baroness Hale of Richmond said in Stack v Dowden [2007] 2 AC 432 at paragraph 54:

“ It should only be expected that joint transferees would have spelt out their beneficial interests when they intended them to be different from their legal interests. Otherwise, it should be assumed that equity follows the law and that the beneficial interests reflect the legal interests in the property. I do not think that this proposition is controversial, even in old fashioned unregistered conveyancing.”

3.But the equity allows the possibility that the common intention between the two parties (whether between husband and wife or between two cohabitees) could change over time, and consequently their respective beneficial interests may also change over time, provided there is sufficient evidence to support the inference, as explained by Johnson Lam J (as the Vice President then was) in Chan Chui Mee v Mak Chi Choi [2009] 1 HKLRD 343 at paragraph 34:

“ In Ip Man Shan Henry v Ching Hing Construction Co Ltd at paras.70–74, I referred to the conceptual distinction between pre-acquisition common intention and post-acquisition common intention. At para.74, I said:

If the common understanding was arrived at prior to the acquisition of the property, the beneficial ownership had not yet been crystallized and one may infer a common intention more readily.  On the other hand, if the common understanding were only formed after the acquisition of the property, this would imply a change in the beneficial ownership of the property.  The evidence must support an inference that there was a fresh agreement as to beneficial ownership before the court can give effect to the common understanding.  In other words in that situation, there mustbe some evidence to infer that the original beneficial owner has agreed to give up some of his interest in the property in favour of the other party.”

4.His Lordship’s approach tallies with the subsequent exposition by the English Supreme Court in Jones v Kernott [2012] 1 AC 776, at paragraph 51 where Lord Walker of Gestingthorpe and Baroness Hale of Richmond JJSC summarized the principles as follows:

“ In summary, therefore, the following are the principles applicablein a case such as this, where a family home is bought in the joint names of a cohabiting couple who are both responsible for any mortgage, but without any express declaration of their beneficial interests. (1) The starting point is that equity follows the law and they are joint tenants both in law and in equity. (2) That presumption can be displaced by showing (a) that the parties hada different common intention at the time when they acquired the home, or (b) that they later formed the common intention that their respective shares would change. (3) Their common intention is to be deduced objectively from their conduct:

‘the relevant intention of each party is the intention which was reasonably understood by the other party to be manifestedby that party’s words and conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party’: Lord Diplock in Gissing v Gissing [1971] AC 886, 906.

Examples of the sort of evidence which might be relevant to drawing such inferences are given in Stack v Dowden [2007] 2 AC 432, para 69.  (4) In those cases where it is clear either (a) that the parties did not intend joint tenancy at the outset, or (b) had changed their original intention, but it is not possible to ascertain by direct evidence or by inference what their actual intention was as to the shares in which they would own the property, ‘the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property’: Chadwick LJ in Oxley v Hiscock [2005] Fam 211, para 69.  In our judgment, ‘the whole course of dealing … in relation to the property’ should be given a broad meaning, enabling a similar range of factors to be taken into account as may be relevant to ascertaining the parties’ actual intentions.  (5) Each case will turn on its own facts.  Financial contributions are relevant but there are many other factors which may enable the court to decide what shares were either intended (as in case (3)) or fair (as in case (4)).”

5.These principles in Jones v Kernott were applied by the Court of Appeal in Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985 at paragraph 5.16.

6.There is clear evidence in the present case showing that the subsequent common intention of the Deceased and the Wife was that the Wife should only have the life interest in the Property and after her death, the Property should be held by the estate of the Deceased for distribution to the Deceased’s three sons [2] :

(1)  On 20 October 1975, the Deceased made a will in Chinese, which was subsequently proved with the Letters of Administration issued on 31 December 2013 under HCAG 006431/2012. In the will, the Deceased expressed the wish that the Wife would be able to live at the Property until her death and thereafter his three sons, namely, Jiang Hong Wei (江宏偉) alias Hong Wei Jiang alias Gong Fong Wai, Lazaro Leon Kong Fong (江兆偉) alias Gong Shu Wai (or Way) and Gong Wing Wai (江榮偉) alias David Wing Wai Gong (collectively “the three sons”) would be entitled fully to the Property.

(2)  The Wife faithfully adhered to the terms of the Will.  She kept the original of the Will in a safe deposit box.  After the Deceased died on 17 January 1981, she passed it to Mr Choi Shui Hung, a solicitor in 1984 and instructed him to apply for the probate of the Deceased’s estate in accordance with the terms of the will.

(3)  The Wife died on 6 February 1988.  Before she died, in about 1985, she had orally confirmed to her daughter-in-law that after she died, the Property would belong to the three sons.

7.In the premises, I am satisfied that after the acquisition of the Property in 1965, when the Deceased made his will in 1975, the Deceased and the Wife had reached a common understanding and agreement that the Wife should only have a life interest in the Property, and after her death, all the interests in the Property should be passed to the Deceased’s estate for distribution to the three sons.

8.I therefore make the declaration as stated in paragraph 1 above.  I shall deal with the terms of the order for the transfer of the legal title of the Property from the defendant to the plaintiff.

9.I thank Mr Timothy Y H Wong, counsel for the plaintiff for his very helpful assistance.

Mr Timothy Y H Wong, instructed by Liu, Choi & Chan, for the plaintiff

The defendant was not represented and did not appear