Wong Wai Wing v. Mang Fan Lin

HCMP 1498/2016

[2019] HKCFI 1692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1498 OF 2016

______________

______________

Before: Deputy High Court Judge Allan Leung in Court

Dates of Hearing: 16 – 18, 23 – 26 April 2019

Date of Judgment: 8 July 2019

______________

JUDGMENT

______________

Index		Paragraph
Introduction		1
Background		6
Chance encounter in October 2010		7
Mr Wong’s monetary and other gifts to Ms Mang		9
The Shenzhen Property		11
Abortion		12
The Coronation Property		13
Marriage		14
Joint account		15
Meeting at Festival Walk		16
Mr Wong’s discovery of Ms Mang’s date of birth and marital status		17
Ms Mang’s attempts to contact Mr Wong		19
Confrontation at a shopping mall		20
Consultation with Clinical Psychologist		22
Moving house		24
Party and party correspondence and Ms Mang’s offer of settlement		25
Mr Wong’s attempt to jump off a bridge and his medical condition		27
Discharge from KH		32
Co-habitation		34
Events since co-habitation		35
Signing of divorce documents at ONC Lawyers’ offices		46
Will (testamentary instrument)		50
Mr Wong’s instruction for his bank statements to be sent to the Coronation Property / online banking		51
Scuffle on 4 February 2014		52
Mr Wong’s departure from the Coronation Property		53
Decree Nisi, Consent Order and the present proceedings		54
Divergence between the parties’ case and evidence		59
The chance encounter in October 2010		60
The Shenzhen Property		63
The abortion		66
The Coronation Property		68
Their marriage		70
Mr Wong’s discovery of Ms Mang’s date of birth and marital status.		72
Ms Mang’s attempts to contact Mr Wong		74
Discharge from KH		76
The divorce and signing of divorce documents at ONC Lawyers’ offices		78
Repayment of the mortgage on the Coronation Property		91
Money and gifts by Mr Wong to Ms Mang		96
The court’s view on the credibility of Mr Wong and Ms Mang		103
Objective criteria in assessing credibility		106
Assessment of the witnesses’ credibility		109
Medical expert evidence		145
Analysis		150
The law on undue influence and unconscionable bargain		151
The court’s view		159
The Shenzhen Property		173
The Coronation Property		178
The Maintenance Agreement and Consent Order		184
Ms Mang’s counterclaim		194
Conclusion		200
Costs		201

INTRODUCTION

1.The plaintiff and defendant are husband and wife but are going through a divorce.  A consent order in relation to, among other things, the plaintiff’s maintenance of the defendant (“Consent Order”) was made in FCMC 12013/2013 (“Divorce Proceedings”) on 31 March 2014 together with the Decree Nisi.  The Family Court has ordered that the Decree Absolute not be granted pending the determination of these proceedings.

2.By these proceedings, the plaintiff is seeking (1) to set aside the Consent Order; and (2) a declaration that all gifts and money given and/or entrusted to the defendant by the plaintiff do stand to the credit of the plaintiff and consider as the plaintiff’s assets for the consideration of financial relief in the Divorce Proceedings.

3.The bases of the relief sought are that the Consent Order and the gifts and money were obtained by the defendant by (1) misrepresentation; (2) undue influence; and (3) they amount to unconscionable bargain.  However, the plaintiff is no longer relying on misrepresentation.  The defendant denies the plaintiff’s claim and the bases thereof.

4.The defendant is counter-claiming HK$393,000 which she claims belonged to her friend Wang Jing (“Ms Wang”), which was remitted to the plaintiff to purchase shares of a listed company in Hong Kong for her.  The plaintiff claims the money was his own money and, in any event, the defendant does not have locus standi to make the counter-claim since her pleaded case is that the money belonged to Ms Wang.

5.The parties’ case and evidence on almost every facet of their relationship are diametrically opposed.  The background set out below is mostly factual and should not be controversial.  The divergence between their case and evidence will be discussed in the sections that follow.

BACKGROUND

6.The parties first met in October 2010, married on 24 April 2012, and filed for divorce in August 2013 by consent.  The Family Court granted the Consent Order and the Decree Nisi on 31 March 2014. 

Chance encounter in October 2010

7.The plaintiff (“Mr Wong”) and the defendant (“Ms Mang”) first met in October 2010 on a coach when they travelled to mainland China on business.  That was shortly after the death of Mr Wong’s wife.

8.They soon developed a romantic and intimate relationship.  Within a very short time after they met, Mr Wong started giving Ms Mang money and gifts the details of which are set out in the annexures to the submissions of Mr Chong, Mr Wong’s Counsel. 

Mr Wong’s monetary and other gifts to Ms Mang

9.The money given by Mr Wong to Ms Mang included payments for the purchase of a property (金域藍灣) in Shenzhen on 28 November 2010 (“Shenzhen Property”) for RMB 3.38 million (bought in the name ofMs Mang’s mother), and Flat C, 16^th Floor, Tower 7, The Coronation, No 1 Yau Cheung Road, Kowloon (“The Coronation Property”) on  10 January 2012, which was under construction at the time, for HK$6.388 million (bought in the sole name of Ms Mang).

10.For the period between 26 November 2010 (within weeks of their first meeting) and 24 April 2012 (the date of their marriage) Mr Wong made payments and gifts to Ms Mang to the value of over HK$8 million.  From 24 April 2012 to 9 March 2014, the date on which he stopped co-habiting with Ms Mang, the amount was over HK$3 million.  The total value of the monetary and other gifts between 26 November 2010 and 9 March 2014 was therefore over HK$11 million.  This figure has taken into account payments which are disputed by Ms Mang in her pleadings.

The Shenzhen Property

11.Mr Wong bought the Shenzhen Property on 28 November 2010.  It is registered in the name of Ms Mang’s mother.

Abortion

12.Ms Mang discovered she was pregnant after her trip to Vietnam with Mr Wong. She had an abortion on 16 December 2010.

The Coronation Property

13.Mr Wong bought the Coronation Property in early January 2012 in Ms Mang’s name.  It was under construction at the time.

Marriage

14.On 24 April 2012, Mr Wong and Ms Mang entered into a civic marriage at the offices of a law firm.  The ceremony was not attended by family or friends as they wanted to keep the marriage secret from Mr Wong’s three children, family and friends.  Despite their marriage, they did not co-habit; Mr Wong continued to live with his children.  They only started co-habiting on 30 May 2013.

Joint account

15.On 22 May 2012, Mr Wong deposited $1.7 million into a joint account held in his and Ms Mang’s names.

Meeting at Festival Walk

16.Mr Wong, Ms Mang, Phyllis Cheng (a solicitor and friend of one of Mr Wong’s daughters), Mr Wong’s younger daughter met at Festival Walk on 1 June 2012.  The meeting was audio recorded.  Ms Cheng informed Ms Mang that none of Mr Wong’s family members objected to Mr Wong marrying Ms Mang (they did not know Mr Wong and Ms Mang had already married).  Their only request was that Ms Mang promised not to take Mr Wong’s money.

Mr Wong’s discovery of Ms Mang’s date of birth and marital status

17.On 27 June 2012, Mr Wong discovered Ms Mang’s real date of birth, which is different from the one shown on an identity card he had seen, and that she only divorced her former husband in November 2011, after they had started their romantic and intimate relationship. 

18.After the discovery, Mr Wong avoided Ms Mang and the following events took place:

(i)   On 3 July 2012, Mr Wong withdrew HK$1.7 million from a fixed deposit account at the Standard Chartered Bank.  He had to pay penalty for the early withdrawal.  He had thought that as the deposit was in the joint names with Ms Mang, bothof their signatures were required for any withdrawal but in fact either of them could withdraw the money in the account;

(ii)   He issued proceedings against Ms Mang on 19 September 2012, seeking a declaration that the Coronation Property, which was, and still is, in Ms Mang’s sole name, was held on trust by her for him;

(iii)   On 20 September 2012, he distributed HK$8 million from the sale of family assets to two of his children.

Ms Mang’s attempts to contact Mr Wong

19.As she had lost contact with Mr Wong, Ms Mang attempted to get in touch with him through various means between around 13 August 2012 and 17 September 2012.  She did it by persistently calling Mr Wong, writing to him herself, through her solicitors and Mr Wong’s former colleagues.  On one occasion her solicitor called Mr Wong’s employer and told him Ms Mang had attempted to commit suicide, although Ms Mang said when she gave evidence that it was a mis-communication. 

Confrontation at a shopping mall

20.On 9 July 2012, Mr Wong and his daughter ran into Ms Mangafter breakfast in a shopping mall.  Ms Mang followed Mr Wong as he was leaving.  Mr Wong’s daughter called for assistance from the security staff and the police were called.

21.Mr Wong said in his evidence that he was scared as he saw Ms Mang holding a rolled up newspaper which he thought could be a weapon.  Ms Mang said as she had lost contact with Mr Wong and had been trying to find Mr Wong, she did not want to lose Mr Wong so she followed him.  There was confrontation despite the presence of the police and Mr Wong subsequently left with the assistance of the staff from the mall on a wheelchair. 

Consultation with clinical psychologist

22.Mr Wong consulted Dr Frendi Li, a clinical psychologist, on 2 August 2012.  Mr Wong said that was because of his depressive mood after his discovery of Ms Mang’s concealment of her real date of birth and the status of her divorce from her former husband. 

23.The doctor’s note recorded “Adjustment to relationship problem”.  The note also recorded, among other things, Mr Wong’s marriage to Ms Mang and the family’s objection, his worry after discoveryof her real date of birth that she was spying on him but that he was not too concerned as he thought his daughter was over sensitive, and that the next step would be between a “safety plan vs giving [Ms Mang] a chance”. 

Moving house

24.Mr Wong moved house in October 2012 and went into rentedaccommodation with his children which he claimed was to avoid Ms Mang because of her persistent attempts to contact him.

Party and party correspondence and Ms Mang’s offer of settlement

25.Between 27 December 2012 and 7 January 2013, the parties’ solicitors corresponded with each other about a meeting to discuss their divorce.

26.According to a letter from Mr Wong’s solicitors to Ms Mang’s solicitors of 16 January 2013, Ms Mang visited the office of Mr Wong on 10 January 2013 offering to return everything she had received from Mr Wong in order to settle the dispute. A draft settlement agreement was attached to the letter but no response was received from Ms Mang. 

Mr Wong’s attempt to jump off a bridge and his medical condition

27.Mr Wong went for his regular medical checkup at the Prince of WalesHospital (“POW”) accompanied by his younger daughter on 18 May 2013. POW’s Private Family Medicine Consultation Summary of 18 May 2013 (10:29 am) [1] recorded, among other things, that “psychologically” he had “depressed mood; fleeting suicidal ideation although he could control himself; ‘his main concerns’, financially—all shared with the children, not much left for himself, wants to remarry but objected to by children, begin to have poor relationship with children due to marriage/financial problem; adjustment disorder and Acute Stress Reaction.” 

28.His medical records between 8 December 2010 and 14 December 2013 show that he suffered from, among other things, high blood pressure with complications.

29.After the checkup at POW, Mr Wong attempted to jump off a bridge.  The police were called.  He was admitted to Queen Elizabeth Hospital and transferred to the Psychiatric Ward of Kowloon Hospital (“KH”) the next day, ie 19 May 2013.

30.The Progress Note of KH dated 19 May 2013 (2:15 pm) [2] recorded, among other things, the following:

“ [Voluntary] admit from QEH [allegedly] for suicidal attempt from height by jumping from height …

No previous [history] of suicide or violence

Mr. Wong reported that his ex-wife has passed away [approximately] 3 years ago.

He has another marriage with a lady in China [approximately] 1 years ago …

Since then, Mr Wong has increased conflict with his children as they were dissatisfied about his re-marriage.

Complained of low mood in recent 1–2 years with negative cognition, disturbed sleep with early morning wakening and suicidal plan or attempt

He denied active suicidal plan or attempt.

He also occasionally heard non-existing voices of unclear content.

…

Yesterday [18.5.2013], he has a row with his relatives over the matter of his remarriage.

He attempted to jump from height in a footbridge impulsively. However, patient claimed he only make casual comment about his suicidal thought and to step up the barrier to check out the height. He denied suicidal intention. Nagging for early discharge.

No suicidal note prepared.

He was stopped by daughter and escorted to QED [Accident and Emergency Department] for further management.

…

Imp: Adjustment disorder

DDx: Depressive episode”  [sic]

He was put on “Suicidal Risk”.

31.On 20 May 2013, the Progress Sheet [3] recorded, among other things, improvement of his low mood over the loss of his wife since starting a relationship with Ms Mang; his children’s anger after finding out his marriage to Ms Mang without notice to them; his transfer of assets and money to his children; his request for money from his children to help with the mortgage; his daughter’s agreement to give him money to pay the mortgage; his denial of hearing non-existent noises.

Discharge from KH

32.There is no dispute that Ms Mang visited Mr Wong at KH and arranged for Mr Wong to be discharged on 30 May 2013.  However, the circumstances and the events that led to Mr Wong’s discharge are in dispute.  Among other things, the Progress Sheet of 30 May 2013 [4], the day on which Mr Wong was discharged, prepared by Dr Wong who attended Mr Wong recorded the following which is relevant to the assessment of the evidence:

“ [Wife] seen together with [patient]

Strongly request [patient] to be [discharged]. Willing to add [plaintiff’s] name to the flat if [daughter] insisted as [daughter] will pay mortgage.

Claimed [daughter] does not take care of [patient].

She can assure [patient] is not suicidal and not depressed.

…

Explained family issues difficult to settle in hospital.

Explained to [wife] [patient] may encounter new stressors and affect mental state.

However, [wife] insisted[patient] mood is stable and not suicidal.” [5]

“ Discussed with [daughter] [patient’s] mental state and [patient’s wife’s] request DAMA (Discharge Against Medical Advice)

[Daughter] understood [wife] will DAMA [patient] but requested … social worker … to liaise with [wife] in future as they do not plan to get involved with [patient’s] matters anymore.

Explained [to wife] risk of deterioration in mental state if stressors encountered in future …

[Wife] strongly insisted [patient] will be able to cope and not suicidal.

Insisted DAMA.

Explained to [wife] the meaning of DAMA.

[Wife] willing to bear consequence of [patient’s] [discharge].” [6] [sic]

Mr Wong was discharged in the afternoon.

33.On the same day of Mr Wong’s discharge, he went to his office and collected his retirement fund in the sum of HK$2,108,179.81 which was paid into his bank account.  Two cashier’s orders for the total sum of HK$2 million were given to Ms Mang the next day on 31 May 2013 for payment of the mortgage instalments for the Coronation Property.

Co-habitation

34.Mr Wong was taken to the Coronation Property by Ms Mang after his discharge and started co-habiting with her.  He also stopped taking medication prescribed by KH for his condition shortly after he moved into the Coronation Property.  The reasons for this are in dispute.

Events since co-habitation

35.Mr Wong gave instructions to his solicitors Au, Thong & Tsang on 4 June 2013 to discontinue his action against Ms Mang for declaratory relief in connection with the Coronation Property.

36.He and Ms Mang jointly signed a Letter of Instruction to Cheung & Yeung, solicitors, regarding a letter to be written to Mr Wong’s children and paid HK$5,000 on account of the legal fees.[7]

37.Mr Wong signed a hand written note on 9 June 2013 expressing his regret and sorrow for mistreating Ms Mang which he said was orchestrated and forced upon him by his daughter Ka Mun, and Phyllis [Cheng], and holding them legally responsible for the harm caused to Ms Mang [8].

38.Cheung & Yeung issued a letter to Mr Wong’s three children on 13 June 2013 [9] confirming they acted for Mr Wong and Ms Mang and demanding, among other things, the return of all the money withdrawn from Mr Wong’s account and dividend received from a family company to Mr Wong.  A draft undertaking in Chinese to be signed by Ms Mang waiving her rights to the properties, cash and shares which Mr Wong had transferred to his children was attached to the letter. 

39.Mr Wong’s children responded through their solicitors Vongs on 3 July 2013 [10] , rejecting Mr Wong’s demand and the draft Undertaking.  A draft undertaking to be signed by Ms Mang on the children’s terms was attached to the letter.

40.On 9 July 2013, Mr Wong sent a handwritten note to his children in response to Vong’s letter of 3 July 2013 [11].  In his note, Mr Wong referred to his solicitors’ letter of 13 June 2013 and the draft undertaking to be signed by Ms Mang and said, among other things, any dispute would have to be resolved through legal means, and his claim would include recovery of two properties from the children.

41.On 15 July 2013, Mr Wong sold shares for HK$183,775 which Mr Wong said was for payment of the monthly instalment for the mortgage on the Coronation Property.  He gave a cheque for HK$100,000 to Ms Mang on 19 July 2013.

42.On 23 July 2013, he sold more shares for HK$442,402 and gave a cheque for HK$440,000 to Ms Mang.

43.On the same day, Mr Wong signed an undertaking to pay the outstanding mortgage of HK$3.8 million on the Coronation Property in one lump sum if they were to divorce and not to make any claim for the property [12].

44.On 2 August 2013, Mr Wong and Ms Mang signed a “離婚協議書” (“Divorce Agreement”) [13] stating, among other things, that (1) they had separated for one year; (2) Mr Wong would pay Ms Mang a monthly maintenance of HK$20,000 and discharge the outstanding mortgage of HK$3.8 million before the Chinese New Year of 2015.  It further stated that Ms Mang agreed to let Mr Wong stay at the Coronation Property should Mr Wong need somewhere to live: 

「 離婚協議書

1/1 黃偉榮[HKID number] 孟凡蓮[HKID number] 雙方已分居一年，現友好協商同意離婚。

2/1 男方須在簽離婚紙第一個月起，每月付女方HK$20,000元作曕養費，付女方渣打銀行[account number] MANG FAN LIN 户口直至女方再婚為止

3/1 現居住御金國峰7座16樓C室，業主權孟凡蓮。尚欠樓按餘款HK$3,800,000元由男方負責付清，自離婚日起計至2015年春節前付清。

4/1 女方同意男方如有需要居住，在和平环境情況下可以居住此物業。

男方：黃偉榮 女方：孟凡蓮

2013年8月2日 」

45.On the same day, they also signed another document (“Supplemental Agreement”) [14] stating, among other things, that (1) their Divorce Agreement must be kept confidential; (2) they were very much in love and had to divorce temporarily for special reasons; (3) they would re-marry after things were settled; (4) their daily life would remain the same during the divorce (re-marriage); (5) they would continue to love each other forever until the last day; (6) if it became impossible to live in Hong Kong, they would be happy to live in the north:

「关于黃偉榮与孟凡蓮的離婚協議書不能我們兩人以外的任何人知道，除工作人員外。我們兩夫妻十分恩愛，因有特殊原因暫時離婚，處理好事情后盡快復婚，在離婚 (復婚) 時間生活模式不变，如果對方再婚必須经另方同意認可，雙方要互相关愛對方，必須愛護對方一生一世，直到生命結束。如果沒條件在香港居住，願意一起回北方生活。

黃偉榮

孟凡蓮

2013年8月2日在家

於御金國峰7座16樓C室」

Signing of divorce documents at ONC Lawyers’ offices

46.Mr Wong and Ms Mang attended ONC Lawyers’ offices on 21 August 2013 to sign a minutes of a consent order for a maintenance agreement (“Maintenance Agreement”) [15] jointly.  A Form 4 — Acknowledgement of Service confirming, among other things, that Mr Wong did not intend to defend the divorce (“Consent to Divorce”) [16] was signed by Mr Wong.  However, it was necessary to obtain the most up to date outstanding mortgage loan on the Coronation Property for inclusion in the Maintenance Agreement.  Enquiry was made of the bank on the same day.

47.They went back to ONC Lawyers’ offices on 22 August 2013 to sign the documents [17] after obtaining the up to date outstanding mortgage loan (HK$4.15 million instead of HK$3.8 million) which was reflected in the Maintenance Agreement [18] but not in the Divorce Agreement dated 2 August 2013.

48.The divorce petition together with the Maintenance Agreementwere filed on 22 August 2013.  A call over date of 4 November 2013 was given by the Family Court [19].  The Consent to Divorce indicating Mr Wong’s intention not to contest the divorce petition was filed on 23 August 2013.

49.A ‘Without Prejudice’ letter from ONC Lawyers dated 16 August 2013 addressed to Mr Wong and marked “Present” (“WP Letter”) [20] was disclosed by Ms Mang to support her contention that Mr Wong was advised by ONC Lawyers to seek independent advice on the divorce.  Attached to the WP letter was the Maintenance Agreement with the latest outstanding mortgage loan of HK$4.15 million.  It will become clear below that this is significant.  Mr Wong denies that he ever received the WP Letter.

Will (testamentary instrument)

50.On 30 October 2013, Mr Wong signed a document with the heading “遺書” (“Will”) [21], stating that if anything untoward were to happen to him, it would have nothing to do with Ms Mang, and his conduct was forced upon him by the egregious acts of his children and Phyllis Cheng which destroyed his happiness.  There are three Chinese characters (“坏点子”) in this document which are not commonly used in Hong Kong: 

「 遺書

我黃偉榮若真的有事情發生，我完全和孟凡蓮無關，我被迫的行為是与孩子，朋友之中鄭惠儀律師 (Phyllis)等作出了坏点子，靠害，全不做好事，破坏了我的幸福，對生活沒意義。

黃偉榮字2013.10.30日 」

Mr Wong’s instruction for his bank statements to be sent to the Coronation Property / online banking

51.Mr Wong gave instructions to Standard Chartered Bank to sendthe bank statements of his account to the Coronation Property.  Accordingto the documents disclosed, the statements covered the period between July 2012 and June 2013.  He also started online banking from 17 November 2013 which was terminated on 23 July 2015.

Scuffle on 4 February 2014

52.An altercation took place on 4 February 2014 when Mr Wongand his elder daughter ran into Ms Mang at Kowloon Station.  There were some angry exchanges between Mr Wong’s daughter and Ms Mang, and some pushing and shoving as the former was trying to take photographs ofthe latter with her mobile phone.  The police were called.  Mr Wong gave a statement to the police on 23 February 2014 in which he said when he gave evidence in court that he downplayed the seriousness of the incident to protect Ms Mang. 

Mr Wong’s departure from the Coronation Property

53.It is not disputed that Mr Wong left the Coronation Property on 9 March 2014, although he claimed he was kicked out and Ms Mang said he moved out.

Decree Nisi, Consent Order and the present proceedings

54.The Family Court granted the Decree Nisi and a Consent Order of the Maintenance Agreement on 31 March 2014.

55.On 29 April 2014, the plaintiff took out an inter partes Summons for an order that the Maintenance Agreement signed by the parties on 21 August 2013 be declared null and void on the ground of duress; and in the alternative, if the minutes of the consent order had been made an order of the court, that the order be set aside.  

56.Deputy District Judge A Yim ordered on 26 May 2014 in FCMC 12013/2013 that the Decree Absolute not be issued until the issue of the parties’ ancillary relief has been settled. 

57.On 23 September 2014, the plaintiff issued an Originating Summons in the District Court (DCMP 2587/2014) for substantially the same relief.  Because of the amount involved the case was transferred to the High Court under HCMP 1498/2016.

58.The relief now claimed in the Prayer in the Re-Amended Statement of Claim are, among other things:

(a)   An order that the agreement for financial relief and the Consent Order [made by the Family Court on 31 March 2014 and incorporating an agreement for the maintenance of the defendant prepared by the defendant’s solicitor as part of the draft minutes dated 21 August 2013 and forming part of paragraphs 1 and 2 of the Consent Order] be set aside.

(b)   A declaration that all gifts and money given and/or entrusted to the defendant by the plaintiff do stand to the credit of the plaintiff and consider as the plaintiff’s assets for the consideration of financial relief in FCMC 12013/2013.

DIVERGENCE BETWEEN THE PARTIES’ CASE AND EVIDENCE

59.The parties’ case and evidence on many of the major events above are different.  They are summarized below.

The chance encounter in October 2010

60.Apart from agreeing that they first met on a coach on their business trip to mainland China in October 2010, their versions of how they came to sit together, what happened during and after the trip are different.  These include the actual date they met on the coach, who initiated the first conversation and the content thereof, whether Mr Wong told Ms Mang about his family background, who started the romantic and passionate approach after the initial meeting, including the holding of hands and kissing, when, where, the circumstances in which their first intimate relationship took place and at whose instigation, who suggested marriage, and ultimately their divorce.

61.It is not in dispute, however, that Ms Mang had promised Mr Wong that she would look after him for life very shortly after they met.  Even on Ms Mang’s own case, she said during her cross-examination that as a divorcee (even though the Decree Absolute of her divorce from her former husband was only granted in November 2011 ie over a year after they met, a fact which was not known to Mr Wong at the time) she was also looking for a companion so the feeling was mutual.

62.Mr Wong started paying money to her and bought the Shenzhen Property soon after their first meeting.  Their evidence on the circumstances that led to the purchase of the Shenzhen Property is different. 

The Shenzhen Property

Mr Wong’s case

63.Ms Mang suggested buying a property in Shenzhen on or around 23 November 2010 when they were in Shenzhen.  She had alreadyarranged for estate agents to show them a number of properties.  He agreed to buy the Shenzhen Property on 28 November 2010 for RMB 3.38 million.  He made a number of remittances totalling RMB 5.26 million to Ms Mangfor, among other expenses, the deposit, balance purchase price, agent’s fees, decoration.  He was told that as a non-Shenzhen resident he could not hold the Shenzhen Property, and Ms Mang said she would be happy to hold it for him.  He trusted her, even when he later discovered to his surprise that the Shenzhen Property was bought in the name of Ms Mang’s mother, because of her promise to look after him for life.  He said during his cross examination by Mr Chow, Ms Mang’s Counsel, that Ms Mang had decorated the Shenzhen Property very nicely and comfortably and he intended to live in Shenzhen after his retirement with Ms Mang.

Ms Mang’s case

64.After their trip to Vietnam around the end of October/early November 2010, Mr Wong voluntarily offered to buy a property for her mother.  He let her make the viewing arrangements and said he did not mind in whose name the property would be held.  She told Mr Wong that it would be held in her mother’s name as her mother was concerned that Mr Wong would ill-treat her given that he already had three children.  Mr Wong agreed that the Shenzhen Property be held in her mother’s name.

65.During Ms Mang’s cross examination by Mr Chong, she said Mr Wong told her after their intimate relationship that he wanted to live with her on a long term basis.  While she suggested renting a property in Shenzhen Mr Wong wanted to buy instead.

The abortion

Mr Wong’s case

66.Ms Mang discovered she was pregnant after their trip to Vietnam and said to him that as he already had three children, and she cared about him, they did not need the baby.

Ms Mang’s case

67.It was Mr Wong who did not want the baby.  Even though she was concerned about having an abortion at her age, Mr Wong insisted and she agreed to have the abortion.

The Coronation Property

Mr Wong’s case

68.Ms Mang suggested buying a property in Hong Kong on 25 October 2011 so that there would be a place for her to stay when she came to Hong Kong on business and where she could live with Mr Wong.  He remitted HK$1 million to Ms Mang on 23 November 2011 for the acquisition of the property which was under construction.  They viewed andagreed to purchase the Coronation Property on 3 January 2012. Ms Mang asked that it be held in her name so that Mr Wong’s children would not know about it.

Ms Mang’s case

69.She felt very bad being stuck between Mr Wong and his children.  On 3 January, 2012 she told Mr Wong she had decided to use the HK$1 million he gave her in November 2011 to buy a small flat in Hong Kong. Arrangements were then made to view the Coronation Property which was under construction.

Their marriage

Mr Wong’s case

70.Ms Mang started pressurising him to marry her in July 2011 and threatened to commit suicide or leave him if he did not.  On 20 March2012 after collecting his marriage certificate and his wife’s death certificate at the registries, Ms Mang took him to a law firm and made arrangements for their marriage.  They went through a civic ceremony on 24 April 2012.  All the documents were kept by Ms Mang who asked him to keep their marriage secret and not to tell his children.  They did not live together after their marriage until 30 May 2013.  He told his children about their marriage on 26 June 2012 as he felt guilty about hiding it from them.

Ms Mang’s case

71.She wanted to marry Mr Wong about a year after they first metbut Mr Wong said he needed time to sort out his children who disapprovedtheir relationship.  She was tired of their surreptitious relationship and the mistreatment by Mr Wong’s children who were always rude to her so she told Mr Wong she wanted to split up with him.  Mr Wong acknowledged her ill treatment by his children and gave her HK$1 million to comfort her.  He also said he would pay her HK$100,000 every year.  Mr Wong bought her an engagement ring on 11 November 2011.  In March 2012 she told Mr Wong she could no longer put up with the treatment by his children and wanted to split up if they did not get married.  They then decided to get married after Easter.  They married on 24 April 2012.  Mr Wong asked her not to tell anyone and he did not want his children to know.  He also asked her to keep the marriage certificate.

Mr Wong’s discovery of Ms Mang’s date of birth and marital status

Mr Wong’s case

72.He discovered on around 27 June 2012 Ms Mang’s real date of birth and she was still married when she was pressing him to marry her.  Her divorce with her former husband only finalised in November 2011.  She also has a Hong Kong ID card which she obtained in 2008.

Ms Mang’s case

73.The date of birth Mr Wong saw earlier was on an identity card which belongs to her friend.  She used it to obtain benefits at a golf club, which is a common practice in Shenzhen.  The Decree Absolute of her divorce with her former husband was granted in November 2011 as she had not been able to find him.

Ms Mang’s attempts to contact Mr Wong

Mr Wong’s case

74.Ms Mang attempted to contact him from 13 August 2012 through various means, including approaching his former colleague by text messages, phone calls, letters from her solicitors, and visiting his office, causing havoc.  As he was concerned about his personal safety, he and his two daughters moved out of their home in October 2012 and into rented accommodation.

Ms Mang’s case

75.As she had no news of Mr Wong after his disappearance, she called his colleague Mr Kwan and sent him messages for forwarding to Mr Wong.  However, there was no response from him.  She also sent letters to Mr Wong via her lawyers but she was still ignored.  She said she was keen to find Mr Wong as he had disappeared for a long time.  It was not the case that she was exerting pressure on him as suggested by Mr Chong.

Discharge from KH

Mr Wong’s case

76.After his transfer to KH on 19 May 2013, he told the doctor there about the problems he had with Ms Mang.  The doctor advised him to contact Ms Mang which he did but Ms Mang ignored him.  She accused him that it was a set up.  In the end Ms Mang visited him and arranged for his discharge on 30 May 2013.  She knew about Mr Wong’s fear of staying in KH and said she would help him.  She also said she would add Mr Wong’s name to the Coronation Property and pressurised the doctor to discharge Mr Wong against doctor’s advice.  She threatened him that she would send him back to KH if he did not listen to her.  He was afraid of going back to KH because of what he saw when he was there.

Ms Mang’s case

77.She denies that she sought to discharge Mr Wong from KH and that she promised to add Mr Wong’s name to the Coronation Property.  This is despite what is recorded in KH’s Progress Sheet of 30 May 2013 (see paragraph 32 above), and her signature on the Declaration of Voluntary Discharge dated 30 May 2013 confirming her understanding of the explanation given by the medical staff about Mr Wong’s condition.  She questioned the authenticity of the Progress Sheet during her cross-examination and said she could not remember she had the discussion with the doctor as recorded. 

The divorce and signing of divorce documents at ONC Lawyers’ offices

Mr Wong’s case

78.Having been advised he could not revoke his marriage to Ms Mang but he had to divorce her instead after his discovery of Ms Mang’s concealment from him of her real age and the status of her divorce from her former husband, correspondence between his and Ms Mang’s solicitors regarding a meeting to discuss the divorce ensued.  Nothing was agreed.

79.On 23 July 2013, Mr Wong told Ms Mang his mother was unhappy about his concealment of their marriage from his children and hisclaim against his children for the return of assets.  Ms Mang suggested that they should divorce and wait till things have settled and re-marry again.

80.He was asked to draft the Divorce Agreement (離婚協議書), which was dictated by Ms Mang regarding, among other things, payment of the outstanding mortgage for the Coronation Property and monthly maintenance of HK$20,000 to her.  He was persuaded to sign this and the Supplemental Divorce Agreement on 2 August 2013.  Ms Mang emphasized to him the importance of not telling anyone, which is also stated in the Supplemental Divorce Agreement.  He said apart from these two agreements, he was asked to sign a number of other documents including declarations and undertakings on various dates, all dictated by Ms Mang.

81.On 21 August 2013, he and Ms Mang went to see ONC Lawyers with the Divorce Agreement and Supplemental Divorce Agreement.  They signed a number of documents, including the Maintenance Agreement.  They were asked to check the latest outstanding mortgage loan.  They went back to ONC Lawyers the next day on 22 August 2013 and signed the documents with the up to date figure for the outstanding mortgage loan.  No advice on the divorce was ever given to him.

82.Despite what was stated in the divorce petition that they had been separated from 28 June 2012, they were actually co-habiting from 30 May 2013.

83.He started paying the monthly maintenance to Ms Mang from 9 February 2014.

84.He said the solicitor from ONC Lawyers covered up the content of Maintenance Agreement when asking him to sign.

85.He only learned at the court hearing of their divorce petition that Ms Mang wanted to enforce the Maintenance Agreement despite what was said in the Divorce Agreement and the Supplemental Divorce Agreement about the temporary nature of the divorce.  He then realised it was a set up.  He said he would never have married Ms Mang had it not been her promise to look after him for life.

86.In the summary of an interview with a social worker on 26 July 2013 [22], it recorded, among other things, that (1) he had been with Ms Mang for three years and did not believe she wanted his money; (2) his children were concerned that Ms Mang would take his assets so they would not return to him the assets that he had transferred to them and wanted him to divorce Ms Mang or change [the Coronation Property] in which Ms Mang was living into joint names; (3) he had been thinking of divorcing Ms Mang and then remarrying her or living with her again after getting back his assets, however, Ms Mang did not agree; (4) he had tried to contact his daughters a number of times but they refused to take his calls; (5) his daughters insisted that he divorced his wife before any discussion about the return of his assets to him; (6) he was relying on Ms Mang for his food and lodging.

87.Mr Wong said during his cross-examination by Mr Chow that he did not agree with what is stated in the above summary.

Ms Mang’s case

88.It was Mr Wong who wanted a divorce to appease his children who were angry that he had bought the Shenzhen Property for her mother.  He told her that as long as they were not husband and wife, his children would return the assets to him.  The divorce would be temporary and he would date her again after sorting out the financial matters with his children.

89.It was Mr Wong who drafted the Divorce Agreement and asked her to sign it.  He also suggested the maintenance payment and asked her not to tell his children.  It was Mr Wong who asked for the divorce and she had never put any pressure on him.

90.The divorce was a set up by Mr Wong as he wanted to recover the assets he had transferred to his children.

Repayment of the mortgage on the Coronation Property

Mortgage on the Shenzhen Property

91.During her cross examination on the issue of Mr Wong’s payment of HK$1 million to her on 23 November 2011, Ms Mang claimed that HK$638,800 of the HK$1 million was for the payment of the 10% deposit for the Coronation Property.  Completion was due to take place in early 2013 and the mortgage on the Coronation Property was about HK$4.2million, roughly the same as the figure on the Maintenance Agreement she and Mr Wong signed at ONC Lawyers’ offices on 22 August 2013.

92.She was asked if another 10% of the deposit paid by her had come from Mr Wong.  She claimed that when she was about to move in to the Coronation Property, Mr Wong had disappeared.  So the other 10% had to come from other sources.  She therefore mortgaged the Shenzhen Property to the Agricultural Bank of China on 9 January 2013.  The mortgage loan of RMB 1 million, which was paid to Ms Wang, was in fact for this purpose. 

93.This gainsays the purpose of the loan stated in the mortgage document which was “for decoration”.  Ms Mang was named as the borrower, her mother the mortgagor, and Ms Wang the recipient in the mortgage document.  It also contradicts Ms Wang’s evidence who initially denied receipt of the money (see paragraphs 141 – 144 below).  Ms Mang claimed during her cross examination that Ms Wang must have forgotten about this.  She also said in Shenzhen the mortgage loan was paidnot to the borrower or mortgagor but to a third party.  Further, in Shenzhen, one could not borrow money to buy property, and the documents were all prepared by the bank staff.  When it was put to her that this would amount to deception of the bank, she said this was common practice and every mortgage in Shenzhen was processed like this.

Loan from Zhang Huang Zheng

94.Ms Mang claimed that she had to obtain a loan of HK$4.25 million from one Mr Zhang Huang Zheng (“Zhang”) to pay off the mortgage loan for the Coronation Property.  She signed a loan agreement with Zhang on 16 March 2013 (“Zhang’s Loan Agreement”) [23] under which Zhang would lend her HK$4.25 million of which HK$4.2 million was for repayment of the mortgage loan on the Coronation Property, and HK$50,000 was for interest penalty. 

95.Although almost the entire amount of the loan was withdrawn,documentary evidence shows that it was not fully used for the repayment of the mortgage loan.  In response to Mr Chong’s question on the use of the loan, Ms Mang claimed that she had used the money to pay off the Shenzhen mortgage and repay a loan from her boss but she was unable to remember how exactly the balance of the loan was used.  She said it was money she borrowed so she could do whatever she wanted with the money.

Money and gifts by Mr Wong to Ms Mang

Mr Wong’s case

96.During their relationship, he gave a substantial amount of money and gifts to Ms Mang. He opened a bank account for her use and paid her credit card and personal expenses.

97.He had a habit of keeping HK$6,000 in his pocket and any money withdrawn over and above HK$6,000 would be given to Ms Mang, although he said not every withdrawal exceeding HK$6,000 would involve payment to Ms Mang.

98.When Ms Mang asked him for money, he did not ask why she needed the money as he trusted her.  He is a generous person and as long as Ms Mang liked something he would buy it for her.  He was very willing to pay her every time she asked him for money. He had given all his money to his wife when she was alive.  He treated Ms Mang as his own family member after their intimate relationship, and he would have married her if the time was right, which was not at the time.

99.His friend did ask him to be careful with Ms Mang about money but he trusted and listened to her.  He said had it not been Ms Mang’s undue influence which led to his blinded trust in her, he wouldnot have given her the money and gifts, and that he would not have signed the Maintenance Agreement.  He said he would not be where he was now had he been more careful and alert.

100.He did not know what was wrong with him at the time but he would just pay her whenever she asked him for money because of her promise to look after him.  He was afraid of death having witnessed his wife’s painful death.  As he had about HK$10 million at the time, he was happy to just spend it all as he did not know when he would die.  He thought he would die within 3 – 5 years and he did not want to live a long life.  It was good to have met someone who would look after him, and Ms Mang had treated him attentively and well.

Ms Mang’s case

101.Mr Wong voluntarily gave her the money and gifts while he was going out with her and said he would do that as long as she was happy.  She also started calling her “wife” soon after they met.

102.In order to impress and reassure her mother who was unhappyabout their relationship because of Mr Wong’s age and he already has three children, Mr Wong also gave money to her mother.

THE COURT’S VIEW ON THE CREDIBILITY OF MR WONG AND MS MANG

103.It can be seen from the above the divergence between the evidence of Mr Wong and Ms Mang.

104.It would not be unfair to say that neither Mr Wong nor Ms Mang was totally honest when giving evidence.  The question is who is more believable. 

105.There is no shortage of guidelines for the adjudication on disputed facts and the assessment of the credibility and reliability of witnesses.

Objective criteria in assessing credibility

106.The judicial approach of the English Courts on finding facts on disputed evidence is well-established:

“ The great virtue of the English trial is usually said to be the opportunity it gives to judge to tell from the demeanour of the witness whether or not he is telling the truth. I think that this isoverrated. It is the tableau that constitutes the big advantage, thetext with illustrations, rather than the demeanour of a particular witness. On that I would adopt in their entirety (this being the highest form of judicial concurrence) the words of Mr. Justice MacKenna:-

‘ I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability, and sometimes that of other judges, to discern from a witness’s demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly.Is that the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting an act to deceive me, or is he speaking from the fullness of his heart, knowing that is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help.

This is how I go about the business of finding facts.  I start from the undisputed facts which both sides accept.  I add to them such other facts as seem very likely to be true, as,for example, those recorded in contemporaneous documents or spoken to by independent witnesses like the policeman giving evidence in a running down case about the marks on the road.  I judge a witness to be unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important points.  I rely as little as possible on such deceptive matters as his demeanour.  When I have done my best to separate the true from the false by these more or less objective tests, I say which story seems to me the more probable, the Plaintiff’s or the Defendant’s?’”

(The Judge, by Patrick Devlin, 1979 edition, p 63)

107.There is a plethora of Hong Kong cases which adopt the above approach:

“ 11. The approach I adopted in earlier decisions when assessing the credibility is repeated:

‘ The assessment of a witness’s credibility and/or reliabilityis a task frequently undertaken by the court in litigation (infact, very often an essential task). I consider the following to be appropriate test to adopt:-

‘ There are two objectives tests for assessing a witness’s credibility regarding a matter to which he has testified:-

(a) whether that part of his testimony is inherently plausible or implausible;

(b) whether that part of his testimony is, in a material way, contradicted by other evidence which is undisputed or indisputable (an example often given of such evidence is contemporaneous documents).

Further, where it is shown that a witness has been discredited over one or more matters to which he has testified (using the above tests), this fact is relevant to the assessment of his overall credibility. Likewise, regard may be had to a witness’s motive for deliberately not giving truthful testimony. For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest.’

(See, for example, the decision in Chiu Chi Tong v. Lau Chong Sai & Another, HCA 765/2002 (para. 28) and Yu Ming Investment Ltd. v. Peng Ru Chuan, Richard, HCA 814/2002 (para. 13)).’”

(Sun Hoi Tat v Profectus Investment Group Ltd HCA 1366/2013, 4 August 2016 per Chung J at para 11)

108.The focus of the assessment is therefore very much on the inherent plausibility or implausibility of the witnesses’ testimony having regard to the undisputed or indisputable evidence and contemporaneous documents.

Assessment of the witnesses’ credibility

109.There are altogether three factual witnesses, namely Mr Wong, Ms Mang, and Ms Wang.  Ms Wang gave evidence for Ms Mang on her counter-claim of HK$393,000.  There was therefore no corroboration of the evidence on the relationship between Mr Wong and Ms Mang by any other factual witnesses.

110.Applying the above principles, this court’s view on the reliability and credibility of the factual witnesses is as follows.

Mr Wong

111.Mr Wong was depressed after losing his wife.  He was later diagnosed with Adjustment Disorder with Depressed Mood.  He met Ms Mang in October 2010.  Mr Wong was keen to have a companion to fill the void left by the death of his wife.  He took a dim view of life.  He had a number of ailments and believed that he would die within 3 – 5 years.  He had about HK$10 million and he considered it was sufficient for him to lead a good life.  Ms Mang gave him hope as she promised to look after him for life.  Mr Wong trusted Ms Mang totally. 

112.There is no dispute that he gave Ms Mang money and gifts, the receipt of most of them is not disputed by Ms Mang. Some of the payments disputed by Ms Mang are contradicted by documentary evidence.  Mr Wong’s payment of HK$100,000 into Ms Mang’s account after receiving the money from Mr Kwan, his former boss, which is supported by bank statements, is one of the examples. 

113.Mr Wong was able to remember vividly the details of many of the payments to Ms Mang, the purposes for which Ms Mang said she needed the money, the amounts, where the payments were made, where hewithdrew the money for such payments and the circumstances in which thepayments were made.  He also remembered many of the gifts he bought her.

114.He was scared of going back to KH because of what he saw in his ward while he was there.  Ms Mang discharged him from Kowloon Hospital on 30 May 2013 as his guardian.

115.He was able to answer most questions under cross-examination without hesitation, and with clarity and conviction.  He said several times that had he not been so mixed up, and had he been more vigilant and alert like a normal person, he would not have to be in court.

116.He made it very clear that he did not want to burden his three children and wanted them to live their own lives.  He was relying on Ms Mang to look after him as a companion.

117.I believe he was not the author of some of the notes, letters, declarations and undertakings.  Not only are many of these documents self-serving, but they are often one sided in Ms Mang’s favour.  One of the documents—the “Will” dated 30 October 2013 [24] signed by Mr Wong— described the bad deeds of, among others, his children, and Phyllis Cheng.  This document contains three Chinese characters “坏点子” which are not commonly used in Hong Kong.  This suggests that this document probably had Ms Mang’s input, or was even dictated by Ms Mang, albeit written by Mr Wong.  Despite its heading, this document is not a Will.  It simply says, among other things, that if anything were to happen to Mr Wong, it would have nothing to do with Ms Mang.  The document puts the blames on Mr Wong’s children and Phyllis Cheng, a solicitor and a friend.

118.In his statement to the Police of 23 February 2014 [25], Mr Wong downplayed the incident at Kowloon Station on 4 February 2014 when Ms Mang allegedly pushed Mr Wong’s elder daughter.  He said he did this to protect Ms Mang. He declined to answer further question on this after he was warned of the risk of self-incrimination.

119.His description of some of the events was more credible and inherently more plausible.

120.Despite his evidence that he had a habit of keeping HK$6,000 in his pocket and gave the rest to Ms Mang when he withdrew more than HK$6,000 from his bank accounts, he said not all such withdrawals involvedpayments to Ms Mang.  He did not, therefore, include every withdrawal ofover HK$6,000 in his claim.  He had filtered the items of payments before including them in the annexures to his Re-Amended Statement of Claim.  Some of the items challenged by Ms Mang were minor, or contradicted by documentary evidence. 

121.It is hard to dispute that from the evidence and what Mr Wong told the medical staff at POW and the social worker, Mr Wong’s children’s objection to his relationship with Ms Mang played a big part in what happened between them which ultimately led to their divorce and these proceedings.  The following is recorded in POW’s Private Family Medicine Consultation Summaries of Mr Wong’s meetings with its medical staff on 1 June 2013 [26] and 24 August 2013 [27], to which no reference was made during the trial:

“ since discharge [from KH], much happier since staying with [Ms Mang]”

“ adjustment disorder—relationship problem with daughters” (Summary of 1 June 2013)

“ remarried in 2012—due to conflict [between] 2^nd wife and elder daughter, [Mr Wong] refused to see wife for 10 months”

“ after discharge from QEH/KH—stays with 2^nd wife”

“ relationship with 2^nd wife very good”

“ relationship with daughters—not good” (Summary of 24 August 2013)

122.The above summaries are relevant to the determination of some of the issues in these proceedings.

Ms Mang

123.One of the issues in these proceedings is whether she had promised to look after Mr Wong for life.  Mr Wong’s case is that it was on this promise that he paid a substantial amount of money to her, bought the Shenzhen Property and the Coronation Property, and gave her the other gifts.  

124.Her evidence on her promise is not consistent.  Having agreed on the first day of her cross examination that she had made the promises, she then said she had never made that promise verbally.  Only when she was reminded by Mr Chong that she had made that admission earlier did she say she did not make the promise on the first day they met.

125.She often asked Mr Chong to repeat his questions to her even though some of them were straight forward.  She also sometimes contradicted what is said in her own statement.  For example, when asked about the Cartier watch Mr Wong bought her for her birthday on 23 December 2011 believing it was her birthday according to the date of birth on the identity card of Ms Mang’s friend, she insisted it was a Christmas gift even though she said it was a birthday gift in her statement [28]. 

126.She was sometimes evasive and did not answer the questions put to her. Rather than answering the questions, she volunteered information unrelated to the questions asked.  One example is when answering one of the questions about her and Mr Wong’s visit to ONC Lawyers on 21 August 2013.  She was asked if she brought the Divorce Agreement and the Supplemental Divorce Agreement signed by the partieson 2 August 2013 to ONC Lawyers on 21 August 2013 to give instructions to them to prepare the divorce papers.  She kept saying it was Mr Wong who brought the two agreements to ONC for legal advice.  When it was put to her that ONC Lawyers represented her in the divorce proceedings, she said ONC Lawyers were only acting for her ‘on the surface’.  ONC Lawyers of course filed the papers in the Divorce Proceedings for her and represent her in these proceedings. 

127.She was also evasive in answering Mr Chong’s question as tothe exact date on which the divorce documents were signed.  Despite whatshe said in her statement that they were signed on 22 August 2013 when theywent back to ONC Lawyers after obtaining the most up to date outstanding amount of the mortgage loan, she kept evading Mr Chong’s question.  In the end she agreed that the documents were signed on 22 August 2013 because of the need to insert the latest outstanding amount of the mortgage loan in the Maintenance Agreement.

128.Ms Mang claimed that Mr Wong had been advised by ONC Lawyers of the need to seek independent legal advice in connection with the divorce and the Maintenance Agreement before signing the latter.  Sherelied on the WP Letter which contained the advice [29].  Mr Wong denies heever received the letter which, apart from giving the alleged advice, contains the exact amount of the outstanding mortgage loan as at 21 August 2013.  In the light of the evidence that the up to date amount of the outstanding mortgage loan was only available on 21 August 2013 when enquiry was made of the mortgagee bank at the offices of ONC Lawyers, the figure simply could not have been available on 16 August 2013 and included in the WP Letter which was allegedly presented to Mr Wong on the same day.  This castsdoubt on the authenticity of the WP Letter.  She declined to answer further questions on this after she was warned about the risk of self-incrimination. 

129.Her credibility is also undermined by her misrepresenting her real date of birth by using a friend’s identity card, and her concealment of the real status of her divorce from her former husband.  She claimed she used her friend’s identity card to obtain benefits and privileges at a golf club. Despite her claim that the use of other people’s identity card to obtain benefits and privileges when making booking to play golf is a common practice in Shenzhen, she admitted when pushed by Mr Chong that it was dishonest.

130.On the basis of the date of birth on the identity card of her friend which Mr Wong thought was hers, he bought her a Cartier watch which cost $65,400 on 23 December 2011 when asked by Ms Mang to buy her a birthday present.

131.Ms Mang kept the promotion materials of the ‘Hong Kong Chinese Industry & Commerce Association’ which claimed on its website that a number of prominent Legislative Council members and Justices of the Peace were its honorary consultants.  In fact, this Association did not exist.  Her business card described her as “External Vice Minister”.  She claimed she had not really been involved with the Association apart from meeting one Chan Fan once and her role was supposed to be promoting golf to the Association’s members.  She claimed that she did not really know who its officials were but she needed a job.  No satisfactory explanation was offered by Ms Mang as to why she kept the promotion materials and her business cards for a year despite her claim that she had not had any involvement with the non-existent Association apart from one meeting with Chan Fan.  The only explanation she gave was that she did not really pay any attention to where she had put the materials and her business cards.

132.She obtained a mortgage loan of RMB 1 million from the Agricultural Bank of China on 9 January 2013 secured by the Shenzhen Property purportedly for the purpose of decoration.  The recipient of the RMB 1 million was her friend Ms Wang.[30] This contradicts with her evidence on the purpose of the mortgage loan referred to in paragraph 92 above, ie to pay for the Coronation Property.  Ms Wang’s evidence on her receipt of the RMB 1 million loan, which is incredible, will be dealt with below.  Ms Wang is the person who is effectively making the counter-claim for HK$393,000 through Ms Mang. 

133.She borrowed HK$4.25 million from Zhang which, according to Zhang’s Loan Agreement, was to pay the mortgage loan for the Coronation Property.  However, none of the entries on her bank statement show that the loan was used for such purpose.  Almost the whole of the alleged loan was withdrawn by her shortly after the money was paid into her account [31]. Although this had nothing to do with Mr Wong, it would appear that Ms Mang had misled Zhang about the purpose of the loan which is relevant to the assessment of her overall credibility.

134.Her evidence on Mr Wong’s discharge from KH on 30 May 2013 contradicts what is stated in the contemporaneous Progress Sheet prepared by KH’s medical personnel, who are independent third parties, in particular regarding her promise to add Mr Wong’s name to the Coronation Property. 

135.Despite Master Cheung’s Order of 22 December 2016, she persistently failed and/or refused to disclose the Provisional Sale and Purchase Agreement of 28 November 2010 (“PA”) in respect of the Shenzhen Property.  She claimed that she did not keep it as it was a long time ago, that it was not a formal and legally binding agreement and was not required to be produced in the PRC. A transcript of an inquisitorial hearing in a Shenzhen Court on 31 March 2016 in relation to the ownership of the Shenzhen Property (in which Mr Wong was the claimant, and Ms Mang and her mother were the defendants) recorded her lawyer’s representation, when responding to the request by Mr Wong’s legal representative for the PA, that it was not necessary to produce the PA for the reasons also set out in the transcript.[32] This suggests, therefore, that the PA did exist at the time of the hearing.  When it was put to her by Mr Chong that PRC law requires the PA, signed by the purchaser with the receipt issued by the vendor and the certificate of inspection of the property, to be kept for revenue purposes, her answer was that she had provided whatever she had in her possession, and she could not provide what she did not have.

136.It transpired from the formal sale and purchase agreement of the Shenzhen Property dated 12 January 2011, which she was able to produce after five years of the purchase of the Shenzhen Property, that the purchase price was RMB 1,998,588, not RMB 3.38 million which Mr Wong was led to believe and paid.  Her mother’s thumb print was appended to the formal agreement as the purchaser.

137.She said during her cross examination that the practice in Hong Kong and the PRC was different in that in order to save tax, it was common practice in the PRC to insert the price for the first hand sale in the sale and purchase agreement of the second hand sale instead of the actual price paid.  She conceded that it was dishonest when it was put to her by Mr Chong that it was a false representation to the PRC Government.

138.She made a statutory declaration on 4 November 2013 [33] in FCMC 12013/2013 that, as at the date of her petition for divorce, she and Mr Wong had separated for over a year.  In fact, as at the date of her petition, ie 22 August 2013, she and Mr Wong had been co-habiting ashusband and wife since 30 May 2013.  The period of separation was allegedto have started on 28 June 2012 when they, although sharing the CoronationFlat, lived separately.  However, the Occupation Permit of the CoronationProperty was not issued until 21 August 2012 and the Assignment was only executed on 24 January 2013.  They could not, therefore, have resided at the Coronation Flat before the issue of the Occupation Permit and the dateof the Assignment.  It would appear, therefore, that the statutory declaration she made in support of the divorce petition was false.

139.Her attempt to corroborate Ms Wang’s evidence on her knowledge of her receipt of the RMB 1 million mortgage loan secured by the Shenzhen Property (which is incredible for reasons explained below) further compromised her credibility. 

140.On the basis of the above, Ms Mang is a less credible and reliable witness than Mr Wong.

Ms Wang

141.She was the recipient of the RMB 1 million mortgage loan from the Agricultural Bank of China secured by the Shenzhen Property referred to in paragraph 93 above.  When she was asked about this by Mr Chong, she denied any knowledge.  After she was shown the mortgagedocument of 9 January 2013 showing Ms Mang’s mother as the mortgagor, and her as the recipient, she then claimed she had misunderstood Mr Chong’s questions as she thought Mr Chong said she had borrowed RMB 1 million from Ms Mang for renovation purpose.  There is no basis for the alleged misunderstanding as Mr Chong never said this to her.  She then claimed she had forgotten about it despite the substantial amount, when she was able to remember two relatively smaller amounts of money she claimed she remitted to Mr Wong nine months later for the alleged purpose of buying shares for her, which is the subject of Ms Mang’s counter-claim. 

142.So far as the alleged purchase of the shares in Hanergy Thin Film Power Group Limited (“Hanergy”), a Hong Kong listed company (stock code 00566), for her by Mr Wong is concerned, she did not raise any queries about the shares or seek to claim the HK$393,000 remitted to Mr Wong via Ms Mang for the share purchase, or the shares, until January 2015, some 15 months after remittance of the money for the purchase of the shares. 

143.She instructed her solicitors Choi & Associates to issue a letter to Mr Wong on 2 January 2015, claiming that Mr Wong held the shares on trust for her and Ms Mang, and demanding that the shares be sold and the sale proceeds returned to her. Despite the claim in Ms Mang’s Defence and Counterclaim that the HK$393,000 was provided by Ms Wang for the purchase of the shares, Choi & Associates’ letter stated that they acted for both Ms Wang and Ms Mang for whom Mr Wong held the shares on trust.  When asked why this was the case, she said she did not understand why as she did not read English, and it was a ‘connected claim’, meaning that she claimed against Ms Mang who in turn claimed against Mr Wong.

144.Ms Wang’s answers contradicted her case and simply did not make sense.  Her evidence is not believable. 

Medical expert evidence

145.Two medical experts who are specialists in psychiatry gave evidence on Mr Wong’s medical condition. They are Dr Chung See Yuen (“Dr Chung”) instructed by Mr Wong, and Dr Hung Bing Kei Gabriel (“Dr Hung”), instructed by Ms Mang. They filed their separate reports and issued a Joint Expert Psychiatric Report of 26 June 2017 (“Joint Report”). 

146.Neither Dr Chung nor Dr Hung had treated or seen Mr Wong. They reviewed the relevant documents, including pleadings, medical notes, and used Diagnostic and Statistical Manual Disorder, Fourth Edition, Text Revision (DSM-IV-TR) in making the diagnosis.

147.They both agree that Mr Wong suffered from Adjustment Disorder with Depressed Mood although they disagree on the severity of Mr Wong’s condition.  Dr Chung opines that Mr Wong’s mental capacity was impaired when he signed the divorce documents in August 2013, while Dr Hung disagrees.  They also disagree on whether Mr Wong had early dementia, and whether he was vulnerable to undue influence because of his condition. 

148.The experts’ medical opinion therefore does not really assist this Court in determining whether, and if so the extent to which, medically Mr Wong’s mental capacity was affected and impaired by his Adjustment Disorder with Depressed Mood, and whether he was vulnerable to undue influence.  They both agree the diagnosis by the doctors attending Mr Wong and reflected in the various summaries and reports would be more accurate.

149.So far as early dementia is concerned, when Mr Wong was giving evidence, he had very good and vivid recollection of the money and gifts he gave Ms Mang during their relationship, including details of the amounts of money paid to her, the gifts he bought for her, the circumstances in which he made the payments and bought the gifts, the prices, where he paid her, and the discussions he had with Ms Mang on many of those occasions. 

ANALYSIS

150.Having considered the evidence, this court has to determine whether Mr Wong has made out his case of undue influence and unconscionable bargain in respect of the money and gifts he gave Ms Mang between 26 November 2010 and 9 March 2014, and his signing of the divorce documents, in particular the Maintenance Agreement.

The law on undue influence and unconscionable bargain

151.Undue influence may arise in the context of gifts and contracts. There is actual undue influence where actual influence was expressly used for the purpose of obtaining the gift or contract; and presumed undue influence where the relationship between the parties at the time or shortly before the making of the gift or contract has been such as to raise a presumption of influence.  The latter category has been further subdivided into (a) those cases in which the relationship falls into one of the well-established categories of relationship, such as solicitor and client, where the relationship as such raises the presumption that undue influence has been exercised; and (b) those cases where, if the complainant proves the de facto existence of a relationship under which the complainant generally reposed trust and confidence in the wrongdoer, the existence of that relationship raises the presumption of undue influence.  The doctrine of undue influence is available as a ground to set aside any transaction for valuable consideration which results in a benefit to one party out of all proportion to the valuable consideration so given.  (See Halsbury’s Law of Hong Kong, 2^ndedition, Vol 44, paras 340.154 – 155.)

152.This was elaborated in the following judgments:

“ Class 2: Presumed undue influence

In these cases the complainant only has to show, in the first instance, that there was a relationship of trust and confidence between the complainant and the wrongdoer of such a nature thatit is fair to presume that the wrongdoer abuse that relationship inprocuring the complainant to enter into the impugned transaction‌…once a confidential relationship has been proved, the burdenthen shifts to the wrongdoer to prove that the complainant entered into the impugned transaction freely, for example by showing that the complainant had independent advice.”

(Barclays Bank Plc v O’Brien [1994] 1 AC 180

at 189E–F, per Lord Browne-Wilkinson)

“ Although undue influence is sometimes described as an ‘equitable wrong’ or even as a species of equitable fraud, the basis of the court’s intervention is not the commission of a dishonest or wrongful act by the defendant, but that, as a matter of public policy, the presumed influence arising from the relationship of trust and confidence should not operate to the disadvantage of the victim, if the transaction is not satisfactorilyexplained by ordinary motives: Allcard v Skinner (1887) 36 ChD 145 at 171. The court scrutinises the circumstances in which the transaction, under which benefits were conferred on the recipient, took place, and the nature of the continuing relationshipbetween the parties, rather than any specific act or conduct on the part of the recipient. A transaction may be set aside by the court, even though the actions and conduct of the person who benefits from it could not be criticised as wrongful. … Whether or not [the third defendant’s] conduct could be described as ‘wrongful’, the requirement of the doctrine of undue influence is that it must be ‘affirmatively established that the donor’s trust and confidence in the donee has not been betrayed or abused’ ….”

(Pesticcio v Huet & Ors [2004] EWCA Civ 372
    at §20, per Mummery LJ)

“ The burden of proving an allegation of undue influence rests upon the person who claims to have been wronged. … The evidence required to discharge the burden of proof depends on the nature of the alleged undue influence, the personality of the parties, their relationship, [and] the extent to which the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship, and all the circumstances of the case.” (emphasis added)

(Royal Bank of Scotland plc v Etridge (No 2)
[2002] 2 AC 773 (HL) at §13, perLord Nicholls)

153.Presumed undue influence, if it can be established, would appear to be more applicable to the relationship between Mr Wong and Ms Mang.  To establish such undue influence, it is necessary for Mr Wong to show the existence of a relationship in which he reposed trust and confidence in Ms Mang to the extent that the relationship would give rise to a presumption of undue influence, and hence the burden of proof to the contrary rests upon Ms Mang.  “The evidence required to discharge the burden of proof depends on the nature of the alleged undue influence, the personality of the parties, their relationship, [and] the extent to which the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship, and all the circumstances of the case”: Royal Bank of Scotland plc v Etridge (No 2), supra.

154.Hon Godfrey Lam J noted in Bank of China (Hong Kong) Ltd v Wong Kam Ho [2014] 1 HKLRD 41 at paras 26 – 27 that:

“ 26. Whether or not a transaction was brought about by the exercise of undue influence is a question of fact. The burden ofproving this fact lies with the person who asserts it, that is to say,generally, the person who claims to have been unduly influenced. As with other matters of fact, this question can be determined by the court by reference to direct evidence, such as the oral evidence of the person complaining of undue influence that she signed the document in question as a result of being subjected to ‘excessive pressure, emotional blackmail or bullying’, or by inference from other, indirect evidence.

27.   What facts can and should be found by inference is a question that depends on the circumstances of each case.  The question is ‘whether the evidence justifies the inference that, ona balance of probabilities, the impugned transaction was procured by undue influence, that is to say, by an abuse by the allegedly dominant party of the trust and confidence reposed in him by theallegedly subservient party’: Li Sau Ying v Bank of China (Hong Kong) Ltd(2004) 7 HKCFAR 579, per Lord Scott NPJ [34].”

155.In Royal Bank of Scotland plc v Etridge (No 2) [2002] 2 AC 773, Lord Nicholls of Birkenhead said at para 21:

“ … there are two prerequisites to the evidential shift in the burden of proof from the complainant to the other party. First, that the complaint reposed trust and confidence in the other party, orother party acquired ascendancy over the complainant. Second, that the transaction is not readily explicable by the relationshipof the parties.”

156.Unconscionable bargain is one which it was apparent, from the intrinsic nature and subject of the bargain itself, that it was one which (a) no person in his sense and not under delusion would make on the one hand, and (b) no honest and fair person would accept on the other; in fact, an inequitable and unconscionable bargain.  (Halsbury’s Law of Hong Kong, 2^ndedition, Vol 44, para 340.156.)

157.What constitutes unconscionable bargain was considered in Lo Wo & Others v Cheung Chan Ka & Another [2000] 2 HKLRD 370, per Waung J:

“ Exploitation is the foundation for a finding of unconscionable bargain and exploitation usually takes the form of the strong party, the exploiter taking unfair advantage of the seriously disadvantaged party, the exploitee. What seems to be present in all cases where the courts have set aside for unconscionable bargains are circumstances of the transactions which suggest that the exploiter was aware of an opportunity for exploitation and has taken advantage of such opportunity.” (at 381H–J)

“ Historically, courts have exercised jurisdiction to set aside contracts and other dealings on a variety of equitable grounds. They include fraud, misrepresentation, breach of fiduciary duty,undue influence and unconscionable conduct. In one sense they all constitute species of unconscionable conduct on the part of a party who stands to receive a benefit under a transaction which, in the eye of equity, cannot be enforced because to do so would be inconsistent with equitable and good conscience. But relief on the ground of ‘unconscionable conduct’ is usually taken to refer to the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage,eg a catching bargain with an expectant heir or an unfair contractmade by taking advantage of a person who is seriously affectedby intoxicating drink. Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two. In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position.”

(at 379E–J, citing Mason J (as he then was)

in Commercial Bank of Australia Ltd v Amadio
(1983) 151 CLR 447, 461; emphasis added)

158.The bargain must be proved to be unconscionable in the sensethat “one of the parties to it has imposed the objectionable terms in a morallyreprehensible manner, that is to say, in a way which affects his conscience”. The behavior of the stronger party must be characterized by some moral culpability or impropriety.  The fact that the terms of the contract are unfairis not sufficient.  The beneficiary has to be guilty of unconscionable conduct. (See the Court of Appeal’s decision in Tong Kwok Cheong v Tong Wai Lin [2014] 1 HKLRD 339at paras 34 – 35, applying Boustany v Pigott (1995) 69 P&CR 298.)

The court’s view

159.Applying the above principles to this case, the questions that this court has to determine in deciding if Mr Wong has established undue influence and unconscionable bargain include whether (1) there was in existence a relationship such that Mr Wong reposed trust and confidence in Ms Mang which would give rise to a presumption of undue influence; (2) his trust and confidence in Ms Mang has been betrayed or abused; (3) that the money and gifts Mr Wong gave to Ms Mang were not readily explicable by their relationship; (4) the money and gifts Mr Wong gave Ms Mang was such that no person in his sense and not under delusion would make on the one hand; and no honest and fair person would accept on the other; (5) Ms Mang took unfair advantage of Mr Wong, that she was aware of an opportunity for exploitation and has taken advantage of such opportunity; (6) that her behaviour was characterised by some moral culpability or impropriety; (7) Mr Wong’s will was so overborne that it was not independent and voluntary, such that he was unduly influenced; and (8) his will, even if independent and voluntary, was the result of the disadvantageous position in which he was placed and of Ms Mang unconscientiously taking advantage of that position.

160.Mr Wong suffered from Adjustment Disorder with Depressed Mood and was still grieving over the death of his wife when he met Ms Mang in October 2010.  They soon developed a romantic and intimate relationship.  He was happy to find a companion who promised to look after him for the rest of his life to fill the gap left by his late wife.  They became lovers.  He started giving her money and gifts within a shortperiod after they met, including buying the Shenzhen Property within weeks of their first meeting.  He said in his evidence that he paid her money and bought her gifts without questioning as he trusted her, and he was not a petty but a generous person.

161.They married on 24 April 2012, less than two years after they first met.  It is not in dispute that Ms Mang wanted to marry him.  Even in Ms Mang’s own case, she wanted to marry Mr Wong about a year after they met but Mr Wong said he needed time to sort out his children who were unhappy about their relationship.  Mr Wong himself said he also wanted to marry her but his children objected and so he wanted to stall until the right time. 

162.As with every relationship, there were ups and downs and the evidence suggests that most of the problems arose because of Mr Wong’s children’s objection to their relationship.  There were angry verbal exchanges and altercation on a number of occasions between Mr Wong’s daughters and Ms Mang. On two occasions the police had to be called.  Mr Wong told the social worker that he refused to see Ms Mang for 10 months because of the conflict between his children and Ms Mang. In his evidence, and his discussion with the social worker, Mr Wong said Ms Mang was kind and good to him, and his relationship with Ms Mang was very good after his discharge from KH. 

163.It is quite clear from the evidence that Mr Wong was influenced by his children’s disapproval of his relationship with Ms Mang.  His relationship with them, in particular his daughters, was not good.

164.KH’s Progress Sheet of 30 May 2013, ie the day of his discharge from KH, recorded that his daughters understood Ms Mang would discharge Mr Wong against medical advice and requested that, among others, social worker liaised with Ms Mang after Mr Wong’s discharge as they did not plan to get involved with his matters anymore.  Mr Wong also claimed that his daughters did not take care of him [34].  The Progress Sheets of 27, 28, 30 May 2013 recorded, among other things, that Mr Wong had no hallucination and delusion; he scored 29/30 of MMSE, a cognitive test; there was no obvious memory problem while he was in ward; he was [Activity of Daily Living] independent.[35]  There was no mention of early dementia or dementia in the discharge summary.  The Consultation Summary of 19 July 2013 recorded, among other things, that Mr Wong’s “mental state was stable after discharge”; “very happy after discharge”; “calm and settled”; “mood neutral; not depressed”; “no hallucination/‌delusion; not suicidal”; “very happy after discharge”.

165.During Mr Wong’s disappearance, Ms Mang attempted to find him through various means, including contacting Mr Wong’s former colleagues. Mr Wong’s Counsel submitted that, in doing so, Ms Mang was exerting pressure on Mr Wong.

166.According to POW’s Private Family Medical Consultation Summary of 24 August 2013 [36], Mr Wong told the medical staff that because of the conflict between his elder daughter and Ms Mang, he refused to see Ms Mang for 10 months.  This explains his disappearance.  So he consciously decided, albeit presumably influenced by his elder daughter, to avoid Ms Mang.

167.I have reviewed the letters and messages Ms Mang sent to Mr Wong between 13 August 2012 and 17 September 2012, and the attendance notes of the telephone calls between Mr Wong’s colleagues and Ms Mang’s solicitors [37]. They show that she was desperate and genuinely trying to find Mr Wong.  The tone of her messages was conciliatory and indicative of her care and concern about Mr Wong’s health, and her helplessness about his sudden disappearance.  I consider that such reaction was normal and expected of a wife whose husband had suddenly disappeared two months after their marriage.  In fact, it would be odd if Ms Mang did not bother looking for Mr Wong at all in the circumstances.  I can find no evidence that in trying, quite desperately, to find Mr Wong the ways she did, she was exerting pressure on Mr Wong.

168.The evidence suggests that their relationship was good and Mr Wong did not believe Ms Mang was after his money.  While they had disputes, which is expected in all relationships, Mr Wong said to the medical personnel at POW that he was much happier since staying with Ms Mang after his discharge from KH [38], that his relationship with Ms Mang was very good, and his relationship with her daughters was not good.[39] He also gave examples in his evidence of how he enjoyed Ms Mang’s company who had been nice to him. 

169.Mr Wong transferred assets to his children allegedly after his discovery of Ms Mang’s real date of birth and the status of her divorce from her former husband.  He also commenced proceedings against Ms Mang for a declaration that she held the Coronation Property on trust for him.  He was able, therefore, to take proactive actions to protect himself, including taking legal action adverse to Ms Mang, and withdrawing HK$1.7 million from the Joint Account.

170.While there was in existence a relationship, on his own evidence, such that Mr Wong reposed trust and confidence in Ms Mang, there is no evidence to suggest that his will was so overborne that it was not independent and voluntary such that he was unduly influenced when paying money and giving gifts to Ms Mang.  Most of them was explicableby their relationship as lovers, and later husband and wife.  Mr Wong said in his evidence that he was happy to give Ms Mang money and buy her gifts as he trusted her and he was a generous person, and he treated her as a family member after their sexual relationship.

171.Mr Chong submitted that Mr Wong was misled into buying Ms Mang a Cartier watch as her birthday gift on the mistaken belief that her birthday was the one on her friend’s identity card.  Given his personality and generosity, their relationship at the time and the gifts Mr Wong had bought her, it is likely that he would have bought her the watch as a Christmas gift even if not as a birthday gift.

172.This court is not satisfied, therefore, that all the money and gifts Mr Wong gave to Ms Mang were unconscionable bargains and the result of undue influence.  However, some of the gifts and transactions warrant further consideration as to whether they constitute unconscionable bargains.

The Shenzhen Property

173.It is inherently unlikely that Mr Wong would have bought the Shenzhen Property within weeks of meeting Ms Mang as a gift to her mother, whom he had never met.  Whoever is to be believed as to why the Shenzhen Property was bought and not to be held in Mr Wong’s name, it was held not in Ms Mang’s name but in the name of Ms Mang’s mother, and Mr Wong only discovered this much later. 

174.Ms Mang had also refused to disclose the PA. Had she done so, it would have revealed the price of RMB 1.98 million and not RMB 3.8 million which Mr Wong was led to believe to be the purchase price, and paid.  He of course remitted more money to Ms Mang to decorate the Shenzhen Property and pay for other expenses relating to the Shenzhen Property. 

175.Ms Mang borrowed RMB 1 million from the Agricultural Bank of China secured by the Shenzhen Property allegedly for the purposeof paying part of the mortgage loan for the Coronation Property.  However, the purpose of the RMB 1 million loan was stated on the mortgage document to be for decoration and the recipient of the RMB 1 million was Ms Wang.  Mr Wong was not aware of any of these.

176.Even on Ms Mang’s evidence, she had suggested renting a property for her and Mr Wong to live in in Shenzhen but Mr Wong wanted to buy instead.  Mr Wong said Ms Mang had decorated the Shenzhen Property nicely and comfortably, and he was going to live in Shenzhen after the retirement. 

177.This court considers it was apparent from the intrinsic natureand subject of the transaction that it was unconscionable and characterized by some moral culpability and impropriety on the part of Ms Mang, and was one which no person in his sense and not under delusion would enter into on the one hand, and no honest and fair person would accept on the other, and hence it was an inequitable and unconscionable bargain.  (See Tong Kwok Cheong v Tong Wai Lin, supra and Halsbury’s, supra).  Further, even if the will of Mr Wong was independent and voluntary in agreeing to pay for the Shenzhen Property and have it held in the name of Ms Mang’s mother, it was the result of the disadvantageous position in which he was placed (his inability to hold the Shenzhen Property in his name) and of Ms Mang, who concealed the actual purchase price of the Shenzhen Property from Mr Wong, mortgaged the Shenzhen Property for RMB 1 million purportedly for decoration and paid the loan money to Ms Wang, unconscientiously taking advantage of that position (see Lo Wo & Others v Cheung Chan Ka & Another, supra).

The Coronation Property

178.The Coronation Property is held in the sole name of Ms Mang.  Whoever’s evidence on the purchase of the Coronation Property is to be believed, Mr Wong did provide the purchase money, albeit the Coronation Property is subject to a mortgage. 

179.Unlike in Shenzhen where allegedly as a non–Shenzhen resident, Mr Wong could not hold the Shenzhen Property in his name, he is a Hong Kong resident and could have therefore held the Coronation Property in his name, or in joint names with Ms Mang.  If his evidence is to be believed, Ms Meng wanted to buy the Coronation Property for her and Mr Wong to live in.  The reason why it was bought in Ms Mang’s name was because she said Mr Wong’s children would not know about it. 

180.Mr Wong did commence proceedings against Ms Mang on 19 September 2012 for a declaration that the Coronation Property was held on trust for him although he discontinued the action on 4 June 2013 after his discharge from KH. 

181.KH’s Progress Sheet of 30 May 2013 did record that Ms Mang was willing to add Mr Wong’s name to the Coronation Property [40] if the daughter insisted as the daughter would pay the mortgage.  Ms Mang’s challenge of the authenticity of the Progress Note prepared by totally independent professionals is simply incredible.

182.It is inherently plausible that Mr Wong’s collection of his retirement sum of just over HK$2.1 million on the day of his discharge from KH, ie 30 May 2013, payment of HK$2 million to Ms Mang on 31 May 2013 as further part payment of the mortgage loan for the Coronation Property, and his withdrawal of the proceedings against her in which he sought a declaration that she held the Coronation Property on trust for him, were on the basis of Ms Mang’s promise to add his name to the Coronation Property.  Ms Mang agreed in the Divorce Agreement that Mr Wong could stay there should he need somewhere to live [41].  Mr Wong did livein the Coronation Property after his discharge from KH from 30 May 2013 to 9 March 2014 when he was kicked out according to his evidence, or he left according to Ms Mang’s evidence.

183.As with the Shenzhen Property, the transaction was unconscionable and characterized by some moral culpability and improprietyon the part of Ms Mang, and was such that no person in his sense and not under delusion would enter into on the one hand, and no honest and fair person would accept on the other, and hence it was an inequitable and unconscionable bargain.  (See Tong Kwok Cheong v Tong Wai Lin, supra and Halsbury’s, supra).  Further, even if the will of Mr Wong was independent and voluntary in agreeing to pay for the Coronation Property and have it held in Ms Mang’s name, it was the result of the disadvantageous position in which he was placed (his bad relationship with his children over financial matters and his relationship with Ms Mang) and of Ms Mang unconscientiously taking advantage of that position (holding the CoronationProperty in her name so that Mr Wong’s children would not know about it)  (see Lo Wo & Others v Cheung Chan Ka & Another, supra).

The Maintenance Agreement and Consent Order

184.Whoever’s evidence is to be believed, the fact is that both Mr Wong and Ms Mang signed the Divorce Agreement and Supplemental Divorce Agreement both dated 2 August 2013 [42].

185.Both documents suggest that the divorce was to be a sham.  The evidence suggests that the purpose of the feigned divorce was to appease Mr Wong’s children who vehemently opposed to their relationship and would not return any of Mr Wong’s assets to him unless he divorced

Ms Mang, or change the Coronation Property into joint names [43].

186.The Divorce Agreement stated, among other things, that Mr Wong and Ms Mang had been separated for a year and they agreed to anamicable divorce; Mr Wong would pay Ms Mang a monthly maintenance ofHK$20,000 and pay off the balance of the mortgage loan for the Coronation Property in the sum of HK$3.8 million before Chinese New Year of 2015; Ms Mang agreed to let Mr Wong live at the Coronation Property shouldhe need somewhere to live. 

187.On the same day, they signed the Supplemental Agreement which stated, among other things, that the Divorce Agreement could not be known to any third party; they loved each other and the divorce was temporary and for special reasons; they would remarry when matters had been dealt with; their lives would remain the same during their divorce (re-marriage); they must love each other for the rest of their lives.

188.The natural deduction of the Supplemental Agreement was to neutralize, if not negate, the effect of the Divorce Agreement. 

189.The evidence also shows that their separation from 28 June 2012, albeit living under the same roof, deposed to in paragraphs 7 and 8 of Ms Mang’s declaration in support of the divorce petition [44] could not have been possible as it was before the occupation permit of the Coronation Property was issued and the execution of the Assignment.  The declaration was therefore false. 

190.It seems to this Court quite clear that the divorce was a sham with a view to enabling Mr Wong to recover the assets he had transferred to his children.  Whoever instigated it, both Mr Wong and Ms Mang colluded in signing the Divorce Agreement, the Supplemental Agreement, and the Maintenance Agreement which forms part of the Consent Order. 

191.Further, it would appear that the circumstances in which Mr Wong signed the Maintenance Agreement were suspicious.  He said the solicitor from ONC Lawyers covered up the content of the document when he was asked to sign it.  What added to the suspicion is the WP Letter marked “Present” allegedly hand delivered to Mr Wong on 16 August 2013.  This was relied upon by Ms Mang as evidence of Mr Wong having been advised by ONC Lawyers to seek independent advice on the divorce and the documents he was asked to sign.  Attached to the WP Letter was the Maintenance Agreement with the up to date figure of the outstanding mortgage loan for the Coronation Property.  This figure was only available on 21 August 2013 and could not possibly be included in the WP Letter allegedly presented to Mr Wong on 16 August 2013.  It would not be unfair to draw an inference that the WP Letter was a forgery.  Ms Mang declined to answer any further questions on the WP Letter upon being warned of the risk of self-incrimination. 

192.Given the conflicting evidence on the divorce, the apparent intention behind and the ostensible effect of the Divorce Agreement and the Supplemental Divorce Agreement, the suspicious circumstances in which the Maintenance Agreement was executed and the WP Letter was allegedly presented to Mr Wong on 16 August 2013, it would be an unconsciousable bargain to Ms Mang if effect was given to the Maintenance Agreement which incorporated Mr Wong’s agreement to pay the monthly maintenance to Ms Mang and the outstanding mortgage of the Coronation Property as provided in the Divorce Agreement.

193.The Maintenance Agreement and the Consent Order are therefore set aside.  The financial arrangement and the ancillary relief should be considered by the Family Court in the Divorce Proceedings.

Ms Mang’s counterclaim

194.In her counterclaim, Ms Mang seeks the shares of Hanergy which she claims she had asked Mr Wong to buy for her friend Ms Wang, or their equivalent monetary value. 

195.Ms Mang claims that Ms Wang remitted HK$393,000 to her which she in turn gave to Mr Wong to purchase the Hanergy shares. The basis of Ms Mang’s counterclaim and why she has locus standi to sue is unclear since the money for the purchase of the shares had come from Ms Wang.

196.The evidence given by both Mr Wong and Ms Wang does not support Ms Mang’s counterclaim.

197.Mr Wong’s evidence is that on 23 July 2013, Ms Mang told him that the interest rate in the PRC was better than Hong Kong so he should deposit money in the PRC to earn better interest.  He gave HK$440,000 to Ms Mang for this purpose.  Then in early October 2013, Ms Mang told Mr Wong that her friend Ms Wang had insider information about the potential of the shares of Hanergy.  He agreed to repatriate to Hong Kong the money he had given to Ms Mang for deposit in fixed deposit account inthe PRC in July to buy the Hanergy shares.  On 9 October 2013, Ms Mang transferred HK$393,000 to his account to purchase the shares.  

198.Ms Wang’s evidence (see paragraphs 142 to 144) on her allegedpurchase of the Hanergy shares through Mr Wong above is simply incredible. 

199.Ms Mang’s counterclaim is devoid of any merits and is dismissed.

CONCLUSION

200.It is ordered that:

(1)   The Maintenance Agreement and the Consent Order be set aside;

(2)   The Shenzhen Property and the Coronation Property, and all payments and expenses made by Mr Wong to Ms Mang in connection with the two properties, including but not limited to stamp duties, agency fees, legal fees, renovation, payments for the mortgage loan for the Coronation Property, do stand to the credit of Mr Wong and consider as his assets for the consideration of financial relief in FCMC 12013/2013;

(3)   The defendant’s counterclaim be dismissed.

COSTS

201.Neither party has emerged as victor in these proceedings.  While this court does not necessarily agree entirely with Mr Chow’s suggestion in the summing up of his closing submissions that the whole matter was a ‘farce’ (鬧劇), this court does have reservations and concerns about the way in which the divorce was instigated and conducted, and the veracity of some of the evidence of both parties.

202.In light of the above, save for any interlocutory cost orders already made which do stand, I make a costs order nisi pursuant to Order 42, rule 5B(6) that there be no order as to costs.

Mr K M Chong and Mr Philip S Y Li, instructed by Tse Yuen Ting Wong, for the plaintiff

Mr Enzo W H Chow, instructed by ONC Lawyers, for the defendant