Chang King To v. Wong Shuen Yuk (By Her Guardian Ad Litem Official Solicitor)
Read the full judgment text of HCA 2518/2015 on BabelCite. This High Court CFI judgment was delivered on 28 October 2019.
1. This is a case concerning the respective rights of members of a family in a property known as Unit 1, 16 th Floor, Block 17, Heng Fa Chuen, Hong Kong (“the Property”). The Property is registered under the name of Madam Wong Shuen Yuk (“Madam Wong”) and her eldest son Mr Chang King To (“KT”). There is a dispute as to whether Madam Wong and KT are now joint tenants or tenants in common. The Property is now being occupied by Mr Chang King Him Clarence (“Clarence”, the youngest son of Madam Wong)
Cited by 7 cases · Cites 11 cases
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HCA 2518/2015 & HCA 1574/2017 [2019] HKCFI 2597 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2518 OF 2015 ________________________
________________________ AND IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1574 OF 2017 ________________________
___________________ (Heard Together)
___________________ J U D G M E N T ___________________ INTRODUCTION 1.This is a case concerning the respective rights of members of a family in a property known as Unit 1, 16th Floor, Block 17, Heng Fa Chuen, Hong Kong (“the Property”). The Property is registered under the name of Madam Wong Shuen Yuk (“Madam Wong”) and her eldest son Mr Chang King To (“KT”). There is a dispute as to whether Madam Wong and KT are now joint tenants or tenants in common. The Property is now being occupied by Mr Chang King Him Clarence (“Clarence”, the youngest son of Madam Wong), and Clarence’s wife and son. Mr Chang King Hei Terry (“Terry”) is the second son of Madam Wong. Terry has no claim concerning the Property but is a witness in the trial of these proceedings. 2.Madam Wong became mentally incapacitated in about August 2013. 3.On 13 June 2019, B Chu J gave leave to the Official Solicitor for not attending the trial in these proceedings and directed that Madam Wong would be bound by the judgment on liability to be given by the court in the trial. 4.On 9 July 2019, in the pre-trial review, I ordered HCA 2518/2015 and HCA 1574/2017 to be tried at the same time. In my view, all the issues in HCA 2518/2015 are covered in HCA 1574/2017. It would be appropriate for the two actions to be tried at the same time. 5.The real battle is between KT and Clarence. BACKGROUND FACTS 6.Previously, KT has commenced proceedings concerning 2 notices of severance against a law firm (“the Solicitors”), ie HCA 785/2014. On 21 November 2014, KT’s claim was struck out by the Court of First Instance. KT took the matter to the Court of Appeal, ie CACV 257/2014. On 30 June 2015, the Court of Appeal handed down a judgment dismissing the appeal (“the CA Judgment”). 7.In this trial, both KT and Mr Henry Suen, counsel for Clarence, agree that the facts set out in the CA Judgment are not in dispute. Accordingly, it would be useful to mention the facts set out in the CA Judgment, which can serve as the undisputed factual background. For ease of reference, unless otherwise indicated, the abbreviations used in the CA Judgment are adopted herein. 8.In the CA Judgment, Yuen JA said:
9.The original text of the Chinese Instruction mentioned in [10.2] of the CA Judgment is as follows:
10.As recorded in [17.3] of the CA Judgment, KT made no allegation of fraud or dishonesty against the Solicitors in those proceedings. 11.The evidence given by the witnesses in these proceedings will be assessed in the light of this undisputed factual background. KT’s CASE 12.In HCA 2518/2015, KT claims that Madam Wong has never given instructions to the Solicitors to issue the 2 notices of severance on her behalf. Alternatively, the 1st Notice of Severance was revoked by the 29 July 2011 e-mail, and the 2nd Notice of Severance was revoked by the “To Whom It May Concern” document. KT is seeking a declaratory judgment to the effect that the 2 notices of severance are void, and he himself and Madam Wong remain as joint tenants of the Property. 13.In HCA 1574/2017 (previously DCCJ 2850/2014), KT claims that Clarence had been in occupation of the Property under a gratuitous licence only granted by Madam Wong and KT, which was terminated upon (a) the expiration of a notice to quit dated 12 June 2014 issued by KT’s solicitors (“the NTQ”)[1] or (b) Madam Wong becoming mentally incapacitated by 7 August 2014[2]. KT is seeking an order that Clarence shall deliver vacant possession of the Property to him. KT also seeks an order that Clarence shall pay mesne profits or damages for trespass to him, calculating from the expiration of the NTQ. 14.A joint legal owner of a property may or may not be a joint owner of the same in equity. In respect of whether KT is a beneficial owner of the Property, KT’s position on this issue is not clear. During the trial, at one time KT said the Property was Madam Wong’s property during Madam Wong’s lifetime. However, KT also said that if the Property was sold during Madam Wong’s lifetime, he considered that he should be given 50% of the sale proceeds. In his final submissions, KT said that he considered himself as a joint tenant in equity. However, I note that in KT’s pleadings in both actions, there is no plea concerning whether KT has any beneficial interest in the Property. 15.In both actions, KT is the only witness giving evidence in support of his case. CLARENCE’s CASE 16.Clarence’s participation is only in HCA 1574/2017. He only raised a defence to KT’s claim and has not put forward any counterclaim. In his amended defence, it is pleaded:
17.Reading the pleading, it is not clear whether Clarence is claiming that he has already acquired some beneficial interest in the Property. At the beginning of the trial, I have asked Mr Suen to clarify the position. Mr Suen submits that Clarence is not claiming that he has acquired any beneficial interest in the Property. Clarence’s position is that Madam Wong is the sole beneficial owner of the Property at all times. Although KT is a registered owner of the Property, KT is a bare trustee holding the Property for Madam Wong. Clarence’s stance is that KT cannot evict him from the Property, for he is occupying the Property pursuant to a permission given by Madam Wong, and that permission is irrevocable because of the proprietary estoppel pleaded in the defence. 18.Clarence has given evidence in support of his case. He has also called two other witnesses to give evidence in the trial, namely (a) Terry; and (b) Madam Cheung Long Yu Lorna (“Lorna”), cousin of KT, Terry and Clarence. THE ISSUES 19.Having heard the submissions from the parties, I am of the view that the issues to be resolved in these proceedings are as follows:
20.I will examine these issues in turn later in this judgment. THE PRINCIPLES 21.As to the assessment of the credibility and/or reliability of a witness’s evidence, the principles are well established. In Star Glory Investment Ltd v Kai Tuo (HK) Technology Co Ltd and Others[3], Andrew Chung J said:-
22.Similar guidance was given by DHCJ Eugene Fung SC in Hui Cheung Fai v Daiwa Development Ltd[4]. 23.For obvious reason, Madam Wong cannot give evidence in the trial. In these circumstances, KT’s evidence concerning the 2 notices of severance, as well as Clarence’s evidence concerning the representations allegedly made by Madam Wong to him, should be approached with caution. The situation is similar to approaching the evidence given by a person claiming to be a donee under a gift made by a deceased person. See Kwan So Ling v Woo Kee Yiu Harry and Others[5], in which G Lam J said:
24.With these principles in mind, I turn to the evidence in these proceedings. THE EVIDENCE KT 25.I am of the view that KT is an evasive and unreliable witness. His evidence concerning the 2 notices of severance is obviously untrue. 26.Before returning to Hong Kong in 2010, in October 2009, KT in Australia sent the following email (“the October 2009 email”) to Clarence in Hong Kong:
27.During cross-examination, KT was asked that as shown in this email, before he came back to Hong Kong in 2010, he sought a permission from Clarence allowing him to live in the Property on a temporary basis, and KT promised to find a place to live after some time. KT denied that he had made any promise to only live in the Property temporarily. He said that he had only said to stay at the sofa in the Property temporarily. In my view, this is clearly a disingenuous answer. The plain meaning of the October 2009 email is the one suggested to KT during cross-examination, and KT was trying to twist the meaning of that email. 28.Under cross-examination, KT was referred to the first paragraph of the NTQ, in which the solicitors said “[w]e act for Chang King To, one of the 2 registered co-owners of [the Property]”. KT was asked whether the solicitors were only representing him in issuing the NTQ to Clarence. KT said he was not sure. He had not asked whether the solicitors were only representing him. He said the solicitors were retained by him, but he was not sure whether they were also representing Madam Wong. He said he was not a lawyer and could not be sure on this matter. I am of the view that KT was obviously evading the question. The meaning of the NTQ is plain. The solicitors were representing KT and KT alone in issuing this NTQ. KT just tried to refuse to admit this. 29.In respect of the 2 notices of severance, the following undisputed facts have to be borne in mind:
30.In his evidence, KT’s claimed that:
31.Having considered KT’s evidence carefully, I am of the view that his claim concerning the 2 notices of severance is inherently improbable and cannot be true.
32.I have also considered the paper copy of the 29 July 2011 email allegedly bearing Madam Wong’s signature, and the “To Whom It May Concern” document also allegedly signed by Madam Wong. I am not convinced that these documents can provide any support to KT’s case. After all, the weight of these 2 documents depends upon (a) whether these documents are really documents signed by Madam Wong; and (b) if yes, in what circumstances Madam Wong signed these documents. The only evidence on these matters is from KT. Bearing the inherent improbabilities of KT’s evidence as set out in [31] above, and bearing in mind the special burden mentioned by G Lam J in Kwan So Ling, I am not satisfied that there is any credible and reliable evidence showing that these 2 documents are documents signed by Madam Wong and representing Madam Wong’s real intent. 33.The severance issue is an important issue in these proceedings. In my judgment, KT’s evidence on this crucial issue is untrue. That being the case, his overall credibility is doubtful. Save and except the admissions made by him which are against his interest, I reject his evidence. 34.KT made the following admissions in his evidence:
35.I also note that there is no evidence from KT saying that KT has made any contribution in relation to mortgage repayments, management fees, government rent and rates, utilities expenses or any other expenses concerning the Property. 36.In KT’s amended statement of claim in HCA 1574/2017, it is pleaded:
37.In respect of these allegations, the only relevant evidence is [10] of KT’s witness statement dated 16 June 2015 filed in HCA 1574/2017, in which KT mentioned that one night in September 2013, Clarence’s girlfriend intended to have a discussion with KT concerning KT’s residence in the Property. KT refused to have a discussion and ignored Clarence’s girlfriend. Thereafter, there was a dispute between Clarence and his girlfriend on the one hand and KT on the other hand. KT was assaulted by Clarence and his girlfriend. Madam Wong came out from her bedroom and was shocked by the scene. In order not to make Madam Wong worry, KT left the Property and moved to live in an another place. 38.I have said that I do not accept KT’s evidence. In my view, even if KT’s evidence is accepted, his evidence cannot support the pleas in [3] of his amended statement of claim in HCA 1574/2017:
Clarence 39.Clarence mentioned the following in his evidence:
40.I am of the view that Clarence is an honest and reliable witness. Importantly, his evidence on the 3 representations is unchallenged during cross-examination. I accept that Madam Wong did make the said representations to Clarence. 41.Clarence has produced some documents concerning mortgage repayments and payments of management fees, utilities expenses and renovation expenses to support his evidence. KT challenged that those documents could not be sufficient evidence showing that those payments were indeed paid by Clarence. In my view, there is no substance in this challenge, bearing in mind that:
42.I accept Clarence’s evidence. Terry 43.Terry was married in 1982 and emigrated to Australia in 1989. According to Terry, the relationship among the 3 siblings was all along harmony until early 2010, when KT returned to Hong Kong from Australia on his own. He was told that there was a dispute between KT and Clarence as KT had broken his promise that KT’s stay in the Property was only on a temporary basis. Only at that time, Terry realized that the Property was registered under the joint names of Madam Wong and KT. Terry knew that over the years, Clarence had made contributions to the Property and had taken care of Madam Wong. 44.Terry was in Hong Kong in April 2011 with his family to visit Madam Wong. Terry discussed the joint tenancy matter with Madam Wong, and Madam Wong strongly indicated to him that she did not intend to let KT to have the Property upon her death. Madam Wong also told him that she added KT as one of the co-owners was simply for the purpose of satisfying the mortgagee’s requirement. Her intention was to let Clarence to live in the Property as long as he wanted, and the Property would only be passed to the 3 sons after Madam Wong’s death. After returning to Australia, Terry sent an email to KT on 3 May 2011, in which Terry told KT their mother’s intent concerning the Property. KT did not give any reply to this email. 45.In November 2011, Terry came to Hong Kong to attend Clarence’s wedding. Madam Wong asked Terry to accompany her to go to the Solicitors’ office to handle the severance matter, and Terry did so. Terry said the solicitor had explained everything to Madam Wong, Madam Wong understood and signed the documents. 46.I am of the view that Terry’s evidence remains intact after cross-examination. I accept Terry’s evidence. Lorna 47.Lorna is the cousin of KT, Terry and Clarence. She said that in late August or early September 2010, Madam Wong contacted her by phone and complained that KT had lodged in the living room of the Property for several months with no intention to move away. Madam Wong told Lorna that in 1986, the mortgagee required Madam Wong to add one more mortgagor to take up the Property. She decided to use KT’s name to satisfy the mortgagee’s requirement. It was not her intention to give the Property to KT after her death. Madam Wong also told Lorna that since Clarence had lived with her in the Property and had contributed a lot in relation to the Property, she intended to let Clarence to live in the Property as long as he wanted, and the Property would be passed to the 3 sons after Madam Wong’s death. Madam Wong told Lorna that KT actually knew that his name was added to the Property for the purpose of satisfying the mortgagee’s requirement only, for Madam Wong had expressly told this to KT at the outset. Madam Wong told Lorna that she did not want to see her sons having quarrels because of the Property. Madam Wong asked Lorna to try to persuade KT to move out from the Property and find a place to live. 48.Lorna then arranged a dinner with KT, Clarence and Madam Wong. Lorna tried to facilitate the discussion concerning KT’s stay in the Property, and Lorna encouraged KT to seek another accommodation. KT refused to discuss the matter and left. After this incident, KT sent numerous messages to Lorna through mobile phone, blaming Lorna for arranging that dinner. 49.Lorna’s evidence is clear and cogent. Nothing in the cross-examination really casts doubt on her evidence. I accept Lorna’s evidence. ANALYSIS Issue 1 – KT being a bare trustee 50.Joint legal owners of a property may not be joint owners of the same in equity. Each case depends upon its own facts. 51.Based upon the evidence accepted by the court, it is clear that KT is a joint owner in name only and he does not have any beneficial interest in the Property. At the beginning, Madam Wong nominated KT to be a joint owner of the Property for the purpose of satisfying the mortgagee’s requirement only, and Madam Wong had made this known to KT. Further, there is no evidence showing that KT has made any contribution in relation to the Property at any time. 52.In my judgment, Madam Wong is the sole beneficial owner of the Property. KT is a bare trustee holding the Property for Madam Wong. Issue 2 – Severance of the joint tenancy 53.As a matter of law, a joint tenancy can be severed by one joint tenant at any time without the consent of the other. As recorded in [25] of the CA Judgment, this is accepted by counsel for KT in that case. The correctness of this proposition of law cannot be doubted. 54.Based upon the evidence accepted by this court, the 1st Notice of Severance and the 2nd Notice of Severance were issued pursuant to the instructions given by Madam Wong. If there is any deficiency in the 1st Notice of Severance because the description of the Property therein may not be entirely correct, the problem has been rectified by the 2nd Notice of Severance. In my judgment, the joint tenancy in law has been severed by the 2nd Notice of Severance. Issues 3 – KT may not evict Clarence from the Property 55.In his evidence and in his final submissions, KT says that the purpose of Madam Wong nominating him to be a co-owner of the Property is to authorize him to make decisions concerning the Property after Madam Wong passing away. During the final submissions stage, in response to the questions from the bench, KT agrees that all the decisions concerning the Property should be made by Madam Wong and not by him during Madam Wong’s lifetime. KT also says that the NTQ was issued on his instruction, not on Madam Wong’s instruction. That being the case, in my view, even according to KT’s own saying, the NTQ would not be valid and have no effect at all. Further, there is no evidence showing that Madam Wong has ever required Clarence to move out from the Property. Accordingly, even according to KT’s own case, there is no reason why Clarence should leave the Property and hand over the vacant possession of the same to KT. 56.In my judgment, in any event, Clarence is entitled to stay in the Property during Madam Wong’s lifetime by the operation of the doctrine of proprietary estoppel. 57.The 3 elements of proprietary estoppel are (a) a representation or assurance made to the claimant; (b) reliance on it by the claimant; and (c) detriment to the claimant in consequence of his reasonable reliance[12]. The principles concerning proprietary estoppel have been set out by DHCJ Cooney SC in detail in Szeto Chak Mei (the sole administrative of the unadmininistered properties of the late Szeto Chiu, deceased) v Chan Lam Shan and Others[13]. 58.With these principles in mind, I am of the view that there is a proprietary estoppel operating against Madam Wong. Madam Wong must keep the promise made to Clarence in the 1st Representation, the 2nd Representation and the 3rd Representation, and cannot go back on her words. The meaning of these representations is clear, ie Clarence may treat himself as an owner of the Property and may stay in the Property as long as he wishes, but he has to make contributions to all the expenses relating to the Property and to maintain and to take care of Madam Wong. Clarence may live in the Property during Madam Wong’s lifetime, and after Madam Wong’s death, the Property would be given to the 3 sons. Relying upon these representations, Clarence moved into the Property in August 1987 to look after Madam Wong for many years, and Clarence has contributed to various payments and expenses concerning the Property. Maintaining and taking care of Madam Wong for many years, as well as the monetary contributions made by Clarence, are detriments to Clarence in consequence of his reliance on the representations. 59.KT submits that the Property was mortgaged again in 2005 and 2009. The loans secured by the 2005 mortgage and the 2009 mortgage were used to support Clarence’s business. Accordingly, Clarence’ repayments of these mortgages should not be treated as detriments in relation to the proprietary estoppel claimed by Clarence. In my view, this submission cannot assist KT’s case. It is not disputed that the money raised by the 2005 mortgage and the 2009 mortgage was used to support Clarence’s business. However, Clarence is not relying upon the repayment of these mortgages to found the proprietary estoppel in his case. He is relying upon his contributions to the repayment of the very first mortgage used to assist the purchase the Property, as well as his contributions to other expenses in relation to the Property and his maintenance and care of Madam Wong for many years as detriments suffered by him in reliance of the representations made by Madam Wong. I am of the view that Clarence has shown all the necessary elements in the proprietary estoppel claimed by him. 60.In my view, the proprietary estoppel would not cease to operate after Madam Wong becoming mentally incapacitated. If a person is estopped from doing something, the estoppel would still operate against his estate after the death of that person. Similarly, I am of the view that an estoppel against a person would still be operative against that person even he or she has become mentally incapacitated. 61.Since Madam Wong is estopped from requiring Clarence to leave the Property, KT himself cannot do so. As a matter of law, a tenant in common may grant a licence to anyone to occupy the Property on a non-exclusive basis without the consent of other tenants in common[14]. Madam Wong is the sole beneficiary owner of the Property and KT is a bare trustee holding the Property on trust for Madam Wong. After the severance of the joint tenancy, KT at most is a tenant in common in law. While the other tenant in common (ie Madam Wong) is estopped from evicting Clarence from the Property, by reason of this estoppel, Clarence may stay in the Property, regardless of KT’s view. 62.In his final submissions, KT argues that Clarence has not come to the court with clean hands and hence is not entitled to have any equitable relief, and his defence of proprietary estoppel must fail. In my judgment, KT is not entitled to put forward this argument as the allegation of “unclean hands” has never been raised in KT’s pleadings. The allegation of “unclean hands” is a factual allegation which must be pleaded, so that the other side would have an opportunity to prepare evidence to meet this allegation. Without raising this allegation on pleadings, it would be unfair for KT to take this point at trial. Secondly, I have rejected KT’s evidence. Based upon the evidence accepted by this court, there is nothing which may support KT’s allegation of “unclean hands”. Issue 4 – No mesne profit or damages 63.In my judgment, Clarence is not in wrongful possession of the Property. Accordingly, KT is not entitled to have any mesne profits or damages for trespass from Clarence. Other matters 64.Lastly, I have to mention 2 other matters.
DISPOSITION 65.I dismiss KT’s claim in each action. 66.KT has agreed that the costs of HCA 2518/2015 should follow the event and be taxed on the High Court scale. I order that costs of HCA 2518/2015 be paid by KT to Madam Wong, to be taxed on the High Court scale if not agreed. For the period in which KT was receiving legal aid in HCA 2518/2015, KT’s own costs during this period be taxed in accordance with the Legal Aid Regulations. 67.HCA 1574/2017 was transferred from the District Court, formerly known as DCCJ 2850/2014. The reason of the transfer is that KT has commenced HCA 2518/2015 in the High Court, and there are common issues in these 2 cases. KT and Mr Suen have agreed that the costs of HCA 1574/2017 should be taxed on the District Court scale, and they have agreed that costs should follow the event. In these circumstances, I order that costs of HCA 1574/2017 (including all the costs in DCCJ 2850/2014 and all costs reserved, if any) be paid by KT to Clarence and Madam Wong, to be taxed on the District Court scale if not agreed. For the period in which KT was receiving legal aid in HCA 1574/2017 (formerly DCCJ 2850/2014), KT’s own costs during this period be taxed in accordance with the Legal Aid Regulations. 68.It is most unfortunate that KT and Clarence have to resolve their dispute in court. Although I have ruled that Clarence may continue to stay in the Property, the siblings may have another legal battle in future if the feud between them cannot be resolved through amicable discussion. I take this opportunity to urge the two brothers to try to have discussion to resolve the difference between them. After all, I am sure that their mother, Madam Wong (who is now 90 years old), would certainly want to see KT, Terry and Clarence to have a harmonious relationship among themselves again.
The Plaintiff appeared in person Mr Henry Suen, instructed by Chiu, Szeto & Cheng, for the 1st Defendant in HCA 1574/2017 Cheng, Yeung & Co., for the 2nd Defendant in HCA 1574/2017 and the Defendant in HCA 2518/2015, being excused [1] In the NTQ, KT’s solicitors required Clarence to deliver vacant possession of the Property to KY on or before 12 July 2014. [2] See [4A] of KT’s amended statement of claim in HCA 1574/2017. It is not known why KT put down the date “7 August 2014” in his amended statement of claim. It is an agreed fact that Madam Wong became mentally incapacitated in August or September 2013. See CA Judgment [15]. [3] HCA 3523/2002, 13 August 2005 [4] HCA 1734/2009, 8 April 2014, [77] – [82] [5] HCA 1311/2011, 30 April 2015 [6] CA Judgment, [17.3]; also no such allegation in the pleadings in these 2 actions [7] CA Judgment [4.1] and [5.1] [8] CA Judgment [10.1] and [10.2] [9] CA Judgment [12.1] [10] CA Judgment [14.1] [11] CA Judgment [26.1], [26.2], [33.2] [12] Snell’s Equity (33rd edition), [12-038] [13] HCMP 836/2012, 1 March 2016, [31] – [42] [14] Chin Lan Hong and Others v Cheung Poh Choo and Others, CACV 98/2004, [32] – [35] | ||||||||||||||||||||||||||||||||||||||||||||||||||||
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