Wong Sau Chi v. Wong Chun in, Stanley

DCCJ 3173/2017

[2021] HKDC 362

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3173 OF 2017

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Before: Deputy District Judge David Chan in Court

Dates of Hearing: 6 to 9 August and 4 October 2019

Date of Judgment: 9 April 2021

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JUDGMENT

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INTRODUCTION

1.This case concerns the unhappy feud between a mother and a son, being the plaintiff (the “Mother”) and the defendant (the “Son”) respectively, over a property situate at Flat No 8, 30^th Floor of Block B, Cheung Wo Court, No 277 Hip Wo Street, Kowloon, under the Home Ownership Scheme (the “Property”).

2.At the trial of this action, the Mother was represented by counsel Mr Adrian Leung (“Mr Leung”), and the Son was represented by counsel Mr Chu Wai Kei (“Mr Chu”).

THE MOTHER’S CASE

3.The Mother was born in 1935 and was 85 years old at the time of the trial.  As she did not receive any formal education, the Mother could only read and understand some traditional Chinese characters, and could not write most Chinese characters.  The English language is completely alien to her. 

4.She became the sole registered owner of the Property in 1984.  She used her own money to pay for the mortgage of the Property, which was discharged in 1999. 

5.She is the mother of 6 children, with the Son being youngest of her children.  Her husband (“Husband”) and elder son (“Elder Son”) passed away in 1993 and 2015 respectively.  As such, the Son is the sole surviving male member of her family.  It is said that this, together with her limited literacy, gave rise to the Mother reposing trust and confidence in the Son, and dependence on him to explain contents of documents to her. 

6.Notwithstanding her faith in the Son, she claims to have been deceived into signing an assignment dated 28 December 2010 (the “Assignment”) and a form dated 22 April 2010 prescribed by the Housing Department (the “Form”), under which the Mother assigned the Property from sole ownership to co-ownership with the Son as joint-tenants at nil consideration.  The Mother alleges to have no knowledge of the contents of these documents when she signed on the same. 

7.The Mother expounds on the events leading to the execution of the Form and Assignment.  Her narratives started with the request from the Son to move his family into the Property, as his own 2 sons (collectively referred to as the “Grandchildren”, and individually referred to as the “1^st Grandson” and “2^nd Grandson”) had to attend school near the Property.

8.A few days before 22 April 2010, the Son informed her that in order for him and his family to move in and reside at the Property together with her, the Form must be signed, otherwise the Mother would have to pay a premium to the Housing Department.

9.On or around 22 April 2010, the Son telephoned the Mother, asking her to join him and his wife, Ms Liu Wun (“Ms Liu”)^[1], without mentioning to the Mother about the proposed assignment of the Property to him.  The Son then drove her to the Housing Department’s office located at Lok Wah Estate (“Lok Wah Office”) to sign the Form.  At that time, she was told by the Son that the Housing Department required her signature as evidence of her consent for him and his family to reside at the Property. 

10.On this basis, the Mother signed the Form as told.  When she signed on the same, other information contained therein had not been filled out.  Neither the Son nor the staff of the Lok Wah Office explained to her about the contents of the Form and the legal consequences of signing the same.

11.On 28 December 2010, she was still residing alone at the Property, save for 2 days when she stayed at the Son’s flat in Lam Tin (the “Lam Tin Flat”), due to insect infection in the Property.  On either the evening of 28 or 29 December 2010, whilst the Mother was watching TV in the Lam Tin Flat, an unknown lady who appeared to be a friend of Ms Liu arrived and gave the Mother a document to sign on.  Both the Son and Ms Liu urged her to sign it.  She did as she was told because she was under the impression that what she was asked to sign relate to her consent to allow the Son and his family to reside at the Property.  The Mother later found out in 2016 that the document she signed was the Assignment. 

12.Pausing here, the Mother alleges that before signing of the Assignment, Ms Liu asked the lady not to interpret the contents of the same to the Mother, as the Mother was uneducated and uncultured. 

13.Her narratives continue at a time when the previous lease of the Lam Tin Flat expired.  The Son requested to move his family into the Property on a temporary basis, citing the reasons that the lease had expired and the Grandchildren had to go to school near the Property.  The Son also claimed that the rents of the nearby flats were expensive.  He and his family did eventually move into the Property upon the Mother’s agreement.  As to when this happened, she claimed to have no recollection, due to her age and the lapse of time. 

14.After the Son and his family had moved into the Property, disputes arose between the Mother, Ms Liu and the domestic helper.  The tension led to the Mother’s unsuccessful attempts to banish the Son and his family from the Property, as the Son refused.  Subsequently, the friction between herself, Ms Liu and the domestic helper escalated to a point which warranted the involvement of police.  Believing that she was still the sole owner of the Property, the Mother again tried to evict the Son and his family.  It was then, in 2016, that a social worker brought to her attention the existence of the Assignment and Form, and their legal effects.  This gave birth to the present action. 

15.The Mother now claims: (1) declaration that the Assignment and Form are null and void and of no legal effect; (2) an order that the Assignment and Form be set aside, rescinded and/or invalidated; (3) an order that the Son do sign such document to vest the Property in her sole name; (4) an order that the Son do deliver vacant possession of the Property; (5) all consequential costs in relation to transfer of the Property and rectification of title in the Land Registry to be solely borne by the Son; (6) damages; (7) mesne profits; and (8) interest and costs. 

16.To achieve these purposes, the Mother claims that she signed the Form and the Assignment under undue influence and misrepresentation from the Son.  She also relies on the doctrine of non est factum.

Undue Influence

17.The Mother alleges that the Form and Assignment were signed by her under the actual and/or presumed undue influence of the Son, because: -

(1)  of the trust and confidence she had placed in him, the Mother would sign whatever documents that the Son requested her to sign;

(2)  the Son is her sole surviving male member and son, and she could not read      and write Chinese characters properly;

(3)  she trusted the Son, and she never thought that the Son would ask her to execute any documents which would be manifestly disadvantageous to her;

(4)  the transaction was not readily explicable and/or commercially justifiable;

(5)  the Mother did not consent to the execution of the Form and the Assignment with full knowledge of the contents therein and the legal consequences of doing so; and

(6)  she did not know the legal consequences of signing    the Form because she did not receive or could not read the letters from the  Housing Authority dated 18 May 2010, 26 May 2010^[2] and 31 May 2010 (collectively the “HA Letters”). 

Non est factum

18.For non est factum, the Mother provides the following reasons: -

(1)  She was unable to understand the Form and Assignment.  The contents of the same were never explained to her.  She could not read or apprehend the      meaning of the Assignment which was in English. 

(2)  The Mother was 75 years old at the time she executed the Form and Assignment.  Together with the fact that she was uneducated, she was not in the position to ascertain what she was asked to sign.

(3)  She thought the Form and Assignment were to enable the Son and his family      to reside together with her at the Property.  She did not know it was for the transfer of ownership of the Property to herself and the Son as joint-tenants at nil consideration. 

(4)  The Mother stresses that she was not careless in signing the Form and the Assignment.  She signed them due to the instructions of the Son.

Misrepresentation

19.The Mother also cries foul that she was induced by the Son into signing the Form and the Assignment. When doing so, the Son had made the representations as set out in §§7 and 8 above.  However, the Son’s representations were false, in that: -

(1)  the documents signed were not for the Son and his family to reside at the Property, but for transfer of ownership from the Mother to herself and the Son as joint tenants; and

(2)  the Grandchildren did not require to attend school close to the Property; one of the Grandchildren was recently sent to study abroad. 

20.The Mother alleges that the misrepresentation from the Son was fraudulent in that he knew they were false, or recklessly made.  Should the representation be held not fraudulent, she would rely on section 3 of the Misrepresentation Ordinance (Cap 284) to advance her claim. 

THE SON’S DEFENCE

21.Below is a summary of the Son’s case based on the defence he has filed and the answers he has provided under the Mother’s request for further and better particulars on his defence. 

22.The Son counters the claims of the Mother by first remarking that the Mother could read Chinese, despite not receiving formal education.  He asserts that she read newspapers every day, and recognize many of the Chinese characters contained therein.  That being so, he accepts that the Mother requires assistance on complicated documents.  He also agrees that she could not read English. 

23.As to the family background, the Son elaborates that before his untimely passing, the Elder Son had been living in a nursing home in Hong Kong for years, due to his long-term illness.  He commented that the relationship between the Mother and her daughters was fair.  There was no truth in her allegation that she reposed trust and confidence in the Son. 

24.The Son then provides some history on the Property and his residence at the same.

25.He first refutes on the Mother’s claim that the Property was acquired solely on her own money.  He challenges her to prove that she financed the same without contribution from the Husband or any of her children.  The Son alleges that, since his childhood, the Mother had always been a housewife.  She did not work, and all her monies came from contributions from family members, including the Son.

26.As a matter of background, when the Property was purchased in 1984, the Son was 19 years old. Those who resided at the Property included the Mother, the Husband (until his passing in 1993), her fourth and youngest daughter 黃翠翹 (the “4^th Daughter”) (until her marriage), and the Son.

27.The Son says, at various times, he and his own family, the latter consisting of Ms Liu and the Grandchildren, had resided at the Property.  A chronology of events was provided in his defence, and they are reproduced below.

Between 1984 and 2011

28.The Son and his siblings started making monthly contributions towards the household expenses of the Property in about 1995.  He recalls that he would give the Mother a few thousand dollars per month in cash, and paid the bills of household expenditure directly out of his own pocket.  As to the repayment of mortgage, he would sometimes pay the same directly, whilst at other times he would give the Mother cash for the repayment.

29.He married Ms Liu in 1998.  At that time, Ms Liu resided at the Mainland, and would visit him intermittently by two-way permit.  During her visits, Ms Liu would stay with the Son at the Property.  Ms Liu gave birth to the 1^st Grandson in 2001.  She was eventually granted a one-way permit in 2003 and moved to stay in Hong Kong permanently together with the 1^st Grandson.  They stayed with the Son at the Property until 2004.  Whilst living at the Property, the Son would not only pay for all the household expenses, he also shouldered the costs of renovation of the Property in 2003, which was about HK$300,000.

30.Expanding on the above, the Son says that the household expenses amounted to about a few thousand dollars per month, not exceeding HK$10,000.  As to the renovation, it covered the whole Property.

31.In 2004, the Mother via her third daughter 黃翠媚 (the “3^rd Daughter”) requested the Son and his family to move out of the Property.  They did as request, and rented a flat in Shenzhen from 2004 to 2006 (“Shenzhen Flat”).  They then acquired a flat in Tseung Kwan O (“TKO Flat”) and resided therein between 2006 and August 2010.  In the meantime, Ms Liu gave birth to the 2^nd Grandson in May 2006.

32.From August 2010 to September 2011, the Son and his family moved to the Lam Tin Flat to facilitate the Grandchildren attending school.  In October 2011, the Mother moved into Lam Tin Flat and stayed over for about a week as there was water leakage problem in the Property.

Between August 2011 and November 2013

33.After one-half of the interest in the Property was transferred to the Son in December 2010, the Mother told him and Ms Liu that it was costly for them to maintain a separate household, and invited them to move back and reside at the Property.  The Son agreed, and the move happened in October 2011.  However, due to conflicts between the Mother (in one camp), Ms Liu and the domestic helper (in another camp), the Son and Ms Liu divorced in early 2013 under FCJA 982/2013, with the Decree Absolute being granted on 31 October 2013.

Between November 2013 and November 2014

34.After their divorce, Ms Liu moved out of the Property with the 2^nd Grandson,^[3] whilst the Son and the 1^st Grandson continued to reside at the Property.  During this time, the Son paid all living expenses of the Mother.  Her living expenses included management fees, government rents and rates, and public utilities, which ranged from HK$4,000 to HK$7,000 per month.

From November 2014 to September 2017

35.In May 2014, the Mother met with Ms Liu at a park on Hip Wo Street, Kwun Tong (the “Meeting”).  During the Meeting, the Mother urged Ms Liu to return to the Property and live with the Son.  To show sincerity in her proposal, the Mother gave Ms Liu a type-written letter (the “Letter”).

36.Ms Liu eventually agreed to the Mother’s proposal and moved back into the Property in November 2014 together with the 2^nd Grandson.  But the harmony did not last long, as the relationship between the Mother and Ms Liu turned sour again after the former learned that the Son and Ms Liu had sold the TKO Flat.

37.After commencement of this action, the Son, Ms Liu and the Grandchildren moved out of the Property in August 2017.

Allegations of the Mother

38.Turning to the allegations of undue influence and misrepresentations, the Son exclaims there is no truth in these.  Rather, he asserts that the transfer was instigated by the Mother.  She had such an intention a few years before December 2010, i.e. between 2007 and 2009, for the reasons that the Son had been making contributions since 1995.  He had also been paying for the household expenses whilst he and his family resided at the Property in 2003.  On top of this, he shouldered the renovation costs of HK$300,000 in 2003 all by himself.  The Son remarks that the Mother has always been a capricious person.  In spite of his inputs, the Mother had through the 3^rd Daughter demanded him and his family to leave the Property in 2004.  But even after he had moved out from the Property, he still paid HK$50,000 as costs for fixing the water leakage problem at the Property in 2010.

39.Regarding the said intention of the Mother, the Son was aware of it because, on occasions when they were at home, and whilst the Son was driving her around, the Mother revealed that before the renovation in 2003, she had actually made a will under which the Property was bequeathed to him (the “Will”).  But during the renovation, when the safe which contained the Will was placed temporarily at the 3^rd Daughter’s house, the 3^rd Daughter learned about it and threw a tantrum.  To ease the tension, the Mother instructed the 3^rd Daughter to destroy the Will.  Notwithstanding this episode, the Mother’s intention that the Son should inherit the Property remained unchanged.

40.In addition to the above, the Son gives details on the procedures and steps taken before signing the Form and the Assignment, illustrating that what the Mother has accused him of could not stand. 

41.The Son says that when he and his family was residing at the TKO Flat, the Mother requested him to inquire with the Housing Authority as to the procedures required to add his name to the Property as a joint tenant.

42.After receiving some initial information, in early 2010, the Son accompanied the Mother to the Lok Wah Office at least twice, in a span of less than 1 month, to go through the procedures for seeking consent from the same to add the Son’s name.

43.The Son explains that, according to the Housing Ordinance, change of ownership of premises under the Home Ownership Scheme without payment of premium is restricted.  The Housing Authority may at its discretion and on merits of each case give consent to do so under special circumstances.  One of these special circumstances is the advance age of the owner.  If such consent was granted, the transfer still had to be effected by way of a deed of assignment at nil monetary consideration.

44.To start the procedures, the Mother was required to file the Form.  She and the Son also had to submit documents including proof of their relationship.  Moreover, as the 4^th Daughter remained in name as an occupant of the Property although she had already moved out, steps were taken to remove such status.

45.During a visit to the Lok Wah Office in early 2010, a female staff explained details of the Form to the Mother in Punti dialect, including the pre-requisites, grounds, administration fee, time required and steps to be followed after the Housing Authority has granted its approval.  The female staff then asked if the Mother understood the consequences of signing the Form.  During the consultation, the Mother asked the staff whether the Son could sell the Property by himself without her knowledge after he was added as an owner, to which the staff replied in the negative.  It was under such circumstances that the Mother signed the Form.

46.The consent from Housing Authority came in May 2010.  There remained the requirement for a deed of assignment as explained in the above.

47.During her 2-month stay at the Lam Tin Flat which started in November 2010, the Mother became acquainted with a lady named Amy (her full name unknown to him), a neighbour of the Son, who happened to be working as a clerk in Messrs Tam, Pun & Yipp (“TPY”), a solicitors’ firm.  The Mother hence made inquiries with Amy as to the legal procedures of adding the Son’s name to the Property, and recruited Amy’s help on it.  Given the advance age of the Mother, the Assignment was brought to the Lam Tin Flat for her to sign.  But before so, TPY arranged for a staff to explain the contents of the Assignment to the Mother.  The name of the staff, as appeared on the Assignment, is Ms Leung Wing Han (“Ms Leung”).

48.In light of the above, the Son stresses that the transfer was effected only after numerous hurdles created by the Housing Authority were surmounted.  Legal procedures were followed and legal representatives were engaged.

49.Finally, on the issue of misrepresentation, the Son argues that the alleged representation could not have been true, as it was actually further for the Grandchildren to attend school whilst living at the Property.  He agreed to move back to the Property because of the Mother’s invitation and his wish to take care of his elderly mother.

REPLIES FROM THE MOTHER

50.Joining issues with what the Son said in his defence, the Mother made specific averments on the matters below.

51.She admits that she read the newspapers on daily basis.  Nevertheless, she could not fully understand the words contained therein.  She reiterates that she could not write most of the Chinese characters.

52.As to her financial status, the Mother emphasises on her independence, claiming that the Property was purchased with her own money, without aid from the Husband and her children. The Son had neither contributed to the purchase of the Property nor towards the household expenses since 1995 as alleged.  Although her daughters would give her some money in return for babysitting their children, payments were made irregularly.  The Mother added that the Son did not pay for her living expenses when he stayed with her at the Property.  The Mother sustained herself with savings.

53.Regarding the renovation of the Property in 2003, the Mother contends that it was carried out by the Son without her consent, and it was done for the sake of himself and his family.

54.The Mother denies that she initiated the Meeting.  The Letter was not written by the Mother, but its creation was prompted by the 2^nd Grandson.  On a personal level, she never wanted Ms Liu to resume living at the Property.  The Mother adds that she had no knowledge of the divorce between the Son and Ms Liu, until reading his defence.

55.The Mother disagrees that she had in October 2011 stayed at the Lam Tin Flat for about a week as alleged.  She clarifies that the stay lasted for 2 days only.

56.Finally, she negates her alleged intention to leave the Property to the Son by reference to the fact that in 2010, the Elder Son and all of her daughters were still alive.

KEY ISSUES

57.In light of the parties’ pleaded cases, the issues that this court has to resolve are as follows: -

(1)  Whether the Mother had signed and executed the Form and the Assignment under the alleged undue influence (both actual and presumed) of the Son?

(2)  Whether the Mother signed and executed the Form and the Assignment under the misrepresentation of the Son and Ms Liu?

(3)  Whether the Form and the Agreement shall be set aside on the ground of non est factum?

(4)  Whether the Mother was able to read or write Chinese, hence being capable to comprehend the contents of the Form and the Assignment? In the      premises, what was the education level of the Mother and was she an illiterate?

(5)  Whether the Mother purchased the Property and repaid the mortgage with      her own money?

(6)  Whether there was any intention to assign the Property from the Mother’s      sole name to the joint name of herself and the Son under joint tenancy?

58.Cases of this nature is fact sensitive, and the present case is no different.  It centred on the credibility and reliability of the evidence of the parties and their witnesses. For the Mother side, she alone gave evidence.  For the Son, apart from himself, he also called upon Ms Liu and his second sister 黃翠嬈 (the “2^nd Daughter”), to be his witnesses at trial. 

EVIDENCE OF THE MOTHER

Her evidence-in-chief as contained in the witness statement

59.The Mother adopted the witness statement she made as her evidence-in-chief at the trial.  In it, her evidence largely mirrored what she has said in her pleadings, with some expansions on various aspects of her case.

60.She first clarified that she has 6 children, including the Elder Son, the Son and 4 daughters.  The Son is her youngest child.

61.The Mother then explained on how she generated and accrued sufficient funds to acquire the Property.  She was a factory worker, manufacturing goods like plastic flowers and etcetera.  She also worked as general labourer in construction sites.  From these earnings, together with the living expenses given to her by the Husband, the Mother was able to save up sufficient money to pay for the deposit and subsequently repayment of the mortgage for the Property.  None of the children nor the Husband contributed to the deposit or mortgage repayment.  She rebutted the Son’s claim that he had shared the responsibility, pointing out that he was only 19 in 1984 hence was unable to help out in this regard.  The other children all had their own families to maintain, and were themselves struggling to make ends meet.

62.She confessed that she had made the Will, and it could have named the Son as the beneficiary of the Property.  She suspected that such arrangement came from the fact that at the time all her other children were married, save the Son.  Come what may, the same was destroyed when some of her children complained that the arrangement was unfair.  Her intention now is to allow the Property to become an estate of her upon her passing, and it would then be distributed in accordance with the intestacy law.

63.Regarding the renovation of the Property in 2003, she conceded that her room was also renovated, but the extent was minimal as compared to what the Son did to his own room.  She stressed that the renovation was done not because condition of the Property warranted it, but for the benefits of the Son and his family.

64.On the divorce between the Son and Ms Liu, she was not sure about it at the time.  But she speculated so based on the conducts of the Grandchildren.  As to the Meeting, the Mother agreed she did attend the same, during which she had asked for a reunion between the Son and Ms Liu.  The Mother did so as the 2^nd Grandson was feeling miserable about their separation.  But she stressed that she did not bid for Ms Liu’s return to the Property, be it verbally or in the Letter, as she could not stand Ms Liu.  The Mother added that she had said nothing concerning the joint-tenancy of the Property.  To cap off on this topic, the Mother said the Letter was the work of a writer whom carried on business in Kwun Tong, writing letters for customers.

65.As to the attendance at Lok Wah Office, the Mother said she only did so for one time.  She recalled that it was indeed a female staff who handled her case, but the staff did not provide the Mother with any explanation about the contents of the Form.

66.In relation to the HA Letters, although they exist, the Mother said she never received them.  She suspected that the Son had retrieved them from her letter box, as he retained the key to the same despite that he had moved out of the Property at the material time.  In any event, she would not be able to understand their contents even if she had received them.

Her evidence-in-chief in court

67.Notwithstanding adoption of her witness statement, the Mother had much to add at trial, mostly in reply to what the Son and his witnesses had stated in their statements.

68.Mr Leung first brought her attention to the Form.  She was able to identify her own signature on the same.  She did not know whose handwriting was on it.  At the time when she signed the Form, she had no knowledge as to the meaning of joint tenancy.

69.The Mother was then referred to the Assignment.  Again she was able to identify her own signatures on it.  The Mother said she did not know Ms Leung, and Ms Leung did not even introduce herself to the Mother.  The Mother reiterated that the contents of the Assignment were not explained to her, notwithstanding what the Son and Ms Liu alleged.  At the time when she signed the Assignment, she did not know half of the shares in the Property would be transferred to the Son.

70.As to the Will, the Mother explained it was signed many years ago.  She tore it because her children complained that the arrangement therein was unfair to them, leaving everything in the sole name the Son.  The Mother denied that she had told the 2^nd Daughter about her worries that she would transfer the Property to the Elder Son by mistake, hence wanted to transfer the same to the Son.  The Mother also never said to the 2^nd Daughter that the reason for transferring the Property to the Son was because he was the only child of hers who did not have a landed property.  There is no truth that she had changed her mind in 2013, transferring only half of the shares in the Property to the Son, with the remaining half to be shared amongst the 5 sisters.  The Mother exclaimed that she would treat them equally, as they are all her children.

71.Regarding the Letter, the Mother had it drafted because the Grandchildren blamed her for Ms Liu’s departure.  She could not recall the contents of it, but the aim of the Letter was to have Ms Liu reunite with the family, but not to return to the Property. She recalled that the Letter should be handwritten, rather than type-written.  On this point, she queried how a writer would have a computer.

72.Continuing on with the Letter, Mr Leung referred her to the phrases used in the 1^st line of the 1^st paragraph^[4] and the bottom of the 5^th paragraph^[5].  The Mother said she did not understand what those phrases meant.  She added that she would not address Ms Liu as “家嫂” as the same sounded so distanced.  She would usually call Ms Liu “阿媛”.

73.In the Letter, the Mother allegedly told Ms Liu that the Property was under the joint names of herself and the Son, and on the passing of the Mother, the Property would belong to the Son and Ms Liu.  At the trial, the Mother denied having mentioned to the writer about this, citing that there was no reason to divulge to a stranger her family issues.  Instead, she only via the Letter conveyed the message that Ms Liu should get back together with the Son and the Grandchildren. Apart from the Letter, the Mother also denied that she had verbally said the same thing to Ms Liu.

74.The Mother confirmed that the Property was renovated twice, as suggested by the Son.  There was the renovation in 2003, and the second renovation took place in 2011.  For the former, the Mother did not know how much the Son spent on it.  She did not encourage him to do it.  As to the renovation in 2011, the Mother said a lot of glasses were installed inside the Property, presumably for “Feng Shui” reason. Her room also underwent minor renovation, like installing lights and re-painting the walls.

75.The Mother denied having received education at an informal school^[6] as alleged by the Son.  She asserted that Hong Kong was invaded by the Japanese when she was young, thus she could not receive any education.  And despite that she would read newspapers and magazines, mostly she would look at the pictures and advertisements.  She did not read newspapers every day, and she would not read newspapers at all whilst having dim sum.  The Mother volunteered that she did not even know how to sign her own name in the past, having to use a seal when she was required to sign documents.

76.She said she had neither taught the Grandchildren nor the 2^nd Daughter when they were studying.  She was uneducated, and at the time when the 2^nd Daughter was still receiving education, the Mother was busy working and taking care of the family.  She did not have the time to teach the 2^nd Daughter.  She also did not teach Ms Liu Punti slangs when Ms Liu first came to Hong Kong.

Her evidence under cross-examination

77.Mr Chu started his cross-examination of the Mother by asking her what she meant by “一視同仁” when treating her children at §14 of her witness statement.  She replied that she did not know.  She was then asked whether the Elder Son has any children, and the Mother confirmed that he has a son who studied abroad.  Mr Chu then confronted the Mother with the answer she had given in court, that half of the Property should be shared amongst the daughters.  Mr Wong queried why the Elder Son was excluded when she gave that answer.  The Mother clarified that the Elder Son should have a share if he was still alive.  When she was asked now that the Elder Son has passed away, whether his son should have a share of the Property, her murmured that the son of the Elder Son studied abroad.

78.The Mother was then referred to the assignment she signed in 1984 when she acquired the Property (“1984 Assignment”).  In court. she could recognise her signature but did not know what the 1984 Assignment was about.  She was not even sure that she had seen it before.  She knew she had signed the 1984 Assignment and was aware of its contents, because staff from the Housing Authority had explained them to her.  She added that there was no reason for the staff to lie to her.  But just when Mr Chu tried to re-confirm with her the answer she gave, the Mother denied the contents of the 1984 Assignment were explained to her by the staff.  She then went on to say she had no knowledge of its contents, but she signed on it nonetheless.  She did not inquire with others as to its contents, and opined there was no reason to for her to do so.  Ultimately, she said she could not recall whether she knew its contents before signing it.

79.Mr Chu moved to the subject of mortgage.  The Mother said she understood the meaning of having a mortgage, i.e. a loan of money and that she could lose the Property if she failed to repay the loan.  The Mother agreed that she had signed on the mortgage document dated 27 June 1984 (the “Mortgage Document”), but when the same was shown to her in court, she did not know what it is.  According to her recollection, the Mortgage Document should be written in Chinese, but the document shown to her in court is in English.  She could not recall whether anyone from her family assisted her in applying for the mortgage, but she was certain that she did not enlist the help of a solicitor.

80.On the topic of repayment, she knew the mortgage was from “Hang Seng”, but did not know the full name of the institution.  She would make repayments at the counter of the Hang Seng Bank by cash on deadlines.  When asked how she learned about the deadlines, the Mother could not tell.  She also could not recall what she would say to the teller when she made the repayments.  Furthermore, she had no memory as to whether she had continued to make the repayment until 1999.  But she firmly denied to have anyone else to effect those repayments for her.

81.Following up on her last answer, Mr Chu queried what the Mother meant when she said in her witness statement that her family did not directly contributed towards the acquisition of the Property.^[7]  To this, the Mother accepted that the Husband did give her household expenses, and Mr Chu was free to treat this as contribution towards the purchase price.  She was then asked whether the Son had started contributed towards the household expenses since 1995, to which she said he was still young at that time.  When Mr Chu corrected the Mother that the Son was 30 years old in 1995, she answered this by asking Mr Chu rhetorically whether he regarded HK$1,000 as contribution.  The Mother ended this topic by giving a sharp “no”.

82.Focus of the cross-examination then turned to the Will.  As a preview, a lot of the answers that the Mother gave under this topic were incoherent.  To begin with, she could not recall exactly when the Will was made, but she said it was made at a time when the Son was very young.  After some thoughts, the Mother said that it was made before acquisition of the Property.  At a later stage, the Mother corrected that she has no recollection as to when it was made.

83.The Mother continued that she had no idea as to what was bequeathed under the Will and indeed what was written in it.  She did not read its contents and the same was contained inside a sealed envelope.  She did not bother to ask anyone what was written in the Will, as she treated it as a joke.  She elaborated that it was prepared by a friend of hers, who was a solicitor, whom had immigrated to another country and later died.  Immediately after giving these answers, the Mother claimed that the solicitor was actually not her friend.  She then stammered about having tea with a friend; a solicitor was introduced; and that the Mother signed on something.  In the end, she expressed that she was not charged for the Will as it was actually drafted by a friend.  The Mother was unsure whether the Will was signed at a law firm, but she recalled it was done somewhere in Central.

84.I asked the Mother what was it in the Will that made her daughters upset.  Unfortunately, her reply was that she did not know what the Will was about.  Interestingly, she later revealed that she tore apart the Will in front of the daughters when they accused her of unfairness, as the Will was made in favour of the Son.

85.The Mother explained that the Will was kept inside a drawer of the Property.  She was clueless as to why her daughters got wind of its existence and its contents.  She guessed it was the 3^rd Daughter who discovered the Will, after the Mother slipped her tongue and revealed its existence during conversations with the 3^rd Daughter. 

86.Mr Chu concluded his cross-examination on this subject by referring the Mother to her witness statement, where she said she could void or change the Will at any time.^[8]  She was asked how she gained such knowledge.  The Mother murmured that she could not think of what to say.

87.The Mother was referred to the Receipt on Discharge of a Charge dated 15 July 1999 (the “Receipt”).^[9]  She agreed that she gave this document to her solicitors for disclosure in this case.  The Mother confirmed that the contents of the same were explained to her, possibly by the 4^th Daughter, who lived next-door at the material time.  When asked whether it could have been the Son who rendered the explanation to her, the Mother rejected it, saying that he was not always around, travelling all over the places.

88.Mr Chu expanded on this to the Form, querying whether the Mother had asked her daughters as to the contents of the same.  In reply, the Mother said she did not see the need to do so, and her daughters were busy most of the time.

89.Regarding the renovation in 2003, the Mother reiterated that she was neither for nor against the Son’s endeavour, and that he could do whatever he wanted, as he is her son. Despite what she pleaded, i.e. the renovation was done only for the benefit of the Son and his family, there were indeed some works done in her room, like installation of lightings.

90.As to her denial of dislodging the Son and his family from the Property in 2004^[10], the Mother first asserted that she had no knowledge of it.  When Mr Chu pursued further on whether she had asked the 3^rd Daughter to do the deed for her, the Mother claimed to have no such memory.  At the end, she clarified that the request was actually made by herself.

91.The Mother confirmed the HA Letters were given by her to her solicitors.  When Mr Chu confronted her by reference to what she stated in the witness statement, i.e. that she had never received the same and suspected that they were stolen by the Son from her letter box, the Mother backpedalled, saying that she had never received them, blaming on her own stupidity for misunderstanding Mr Chu’s questions.

92.Pausing here, Mr Leung, on the second day of trial, provided to the court a copy of a letter from the Housing Authority dated 2 March 2017 to Messrs Liu, Chan & Lam (“LCL”), solicitors for the Mother.  The same showed that the Form and a letter dated 31 May 2010, the latter being one of the HA Letters, were provided by the Housing Authority to LCL.  With the agreement of Mr Chu, this letter and its attachments were added to Trial Bundle C.^[11]

93.Returning to this issue, the Mother agreed that signing of the Form was witnessed by someone from the Housing Authority, but she did not know whether the staff had signed on the left side of the Form, which was covered with a marker.  The Mother recalled that the process of signing the Form on 22 April 2010 took little time to complete.

94.Mr Chu then changed the subject to the Assignment.  The Mother denied knowing Amy.  She had never heard of TPY.  As to Ms Leung, despite her presence at the Lam Tin Flat on or about 28 December 2010, neither the Son nor Ms Liu introduced her to the Mother.  Ms Leung also did not introduce herself.  Likewise, the Mother did not find the need to introduce herself to Ms Leung, as the Mother claimed that Ms Leung was not there to look for her, and that the Mother was watching TV at that time.

95.As to Ms Liu mocking the Mother as being illiterate and uncultured in front of Ms Leung, Mr Chu questioned whether the Mother had reacted to it.  She said she did not, questioning Mr Chu why she should do so, when she agreed to what Ms Liu said.  The Mother concurred with Mr Chu that Ms Leung should have explained the contents of the Assignment to her, otherwise she could not sign it.  But she gave up on her right to request for such from Ms Leung, as Ms Liu called her an uncultured. Mr Chu suggested, under such circumstance, the Mother should have considered not to sign the Assignment, or to put it off to another day.  The Mother said she did not do so because she did not know what the document was about.  When she was asked then why she signed on something that she did not know, the Mother mumbled some words before saying that she did not wish to render any explanation on this.

96.The Mother did not know how long Ms Leung stayed in Lam Tin Flat, but she would not disagree with Mr Chu’s suggestion that Ms Leung stayed for over an hour, as the Mother did not care.

97.After signing the Assignment, the Mother did not know where it was placed.  Although it was given by her to LCL for preparation of this case, she was unsure where she retrieved it.  When asked, the Mother confirmed that she kept in her possession the Property-related documents, including the Mortgage and the Receipt.  But when she was asked about the Assignment, she did not give an answer.  After Mr Chu repeated his question, the Mother answered by inquiring why the Son’s name was on it, and asked what the Assignment was about.

98.Concerning the renovation in 2011, she disagreed with the Son’s decision to install so many glasses in the Property.  However, she did not voice out her displeasure as she learned about it only after the construction was complete.  She did not feel the need for the Son to consult her before renovating the Property.  As he is her son, he could do whatever he wished.

99.Regarding the household expenses after the Son and his family moved back to the Property in 2011, at first the Mother claimed to have paid for all these expenses, but later agreed that they were paid by the Son.  She would pay for the household expenses at the times when the Son was not living with her.  If she could not understand the contents of the bills, she would ask her sons or neighbours.

100.The Mother was then asked about her relationship with Ms Liu.  She confessed that their relationship was so bad that during the time when they resided together at the Property, she had on more than one occasion called the police.  Despite so, and notwithstanding her believe that the Son and Ms Liu had no ownership over the Property, the Mother did not try to dislodge them.  At first, she was reluctant to tell why she did not do so, but then volunteered that they would not agree to move out even if she had asked.  She added that she was afraid of Ms Liu, as Ms Liu had physically attacked her and took away her mobile phone.

101.The Mother reiterated that she had no knowledge of the divorce between the Son and Ms Liu.  The Mother agreed that she knew Ms Liu moved out of the Property, but she did not know which year that happened.  She did not inquire with the Son as to why Ms Liu left the Property, because she had no knowledge that Ms Liu had left.  The Mother claimed that she was at the Elder Son’s house at the material time.  She did not know when she became aware of Ms Liu’s departure.  However, the Grandchildren blamed the Mother for it.  Therefore, upon the requests of the Grandchildren, the Letter was written.

102.The Mother re-emphasised that she meant to ask the Son and Ms Liu to get back together only, with neither the intention nor any invitation for Ms Liu to resume living at the Property.  She said she had not given any thought about how that would be feasible if Ms Liu was not allowed to return to the Property.  Mr Chu questioned, if that was her intention, why the Mother wrote “一家團聚” in the Letter.  To this, the Mother claimed it was the creation of the writer.  She never told the writer what had happened in her family.  She had no idea what the writer had written in the Letter.

103.This brought the focus of the cross-examination to the Letter.  The Mother repeated that the Letter should be hand-written, not type-written.  The writer set up his store at the side of the road, hence it was impossible for him to have a computer.  The Mother did not see how he wrote the Letter, and the writer did not show her the same after he had completed it.  The Letter was then placed into an envelope and sealed.

104.When the Mother was asked to look at the Letter^[12], she commented that the Letter, in her recollection, should have words written in larger font.  The shape of the paper on which the Letter was written should be a square rather than rectangular.  She agreed that in her witness statement, she mentioned nothing about the Letter being hand-written.  The Mother clarified that she had told her lawyers so.

105.There is no disagreement from the Mother that she presented the Letter to Ms Liu; Ms Liu read the Letter in front of her; Ms Liu, together with the 2^nd Grandson, returned to live at the Property afterwards.  The Mother said she did not convey to Ms Liu the message that she actually did not want Ms Liu to reside at the Property.  After Ms Liu did so, the Mother said there was no reason to evict her.

106.The Mother admitted she sang Chinese opera as a hobby, but volunteered that when she was learning the songs, she did so by singing along with the demo tape prepared by her teacher.

107.Mr Chu observed that the Mother had been reading documents in court wearing a pair of glasses.  Inquiry was thus made with her as to whether she has myopia or presbyopia.  She replied that she suffered from the former, and she could not read anything with glasses on.

108.Finally, the Mother was questioned on a quarrel between herself, the Son and Ms Liu that she reported in her witness statement.^[13]  When she tried to evict the Son and his family from the Property, she alleged that the Son had impliedly proclaimed to be a co-owner.  This led to the eventual clarification with a social worker and revelation of the true effect of the Form and Assignment.  When asked, the Mother said she could not recall what words the Son used giving rise to the said implication.  She did not correct the Son on the spot by saying that she was the sole owner of the Property, as the Son had said nothing.  Mr Chu then drew her attention to what she said in the witness statement and in court about the implication from the Son.  Hearing this, the Mother changed her evidence and alleged that the implication came from Ms Liu.  Based on her new allegation, the Mother was asked whether she corrected Ms Liu on the spot, to which the Mother replied in the negative, citing that Ms Liu was divorced from the Son and no longer her family member.  The Mother confirmed that she neither said to the Son nor Ms Liu that she was the sole owner of the Property.

Her evidence under re-examination

109.The Mother was first asked about contribution from children and the Husband towards household expenses, during which she said the Son did not even pay HK$1,000 to her.  The contributions came primarily but unstably from her first daughter 黃翠玲 (“1^st Daughter”), 3^rd and 4^th Daughters.

110.She confirmed that she had to wear glasses when going out, and she had been wearing them for a long time.  When asked, the Mother said she had another pair of glasses for reading small prints on documents.

111.The Will was next.  Mr Leung tried to clarify with the Mother as to whether it was made before or after acquisition of the Property.  His effort was in vain, as she maintained that she had no recollection of it.

112.The Mother was referred to her witness statement, under which she said she was aware of her right to change or void the Will.^[14]  Mr Leung asked her how she acquired such knowledge.  The Mother answered that she figured it out by herself.  When Mr Leung asked her again for the reason to destroy the Will, the Mother replied it was due to the daughters’ protests that she was leaving everything to the Son.

113.Focus was then turned to the Letter, during which the Mother repeated that the same should be hand-written, the fonts should be larger, and volunteered that the paper used should be thinner.  She said the Letter could not be typed-written, as the writer only had a small table at the side of the road, and there was no electricity connection.

114.Referring to the clash as stated in § 108 above, the Mother said she could not recall whether the Son was present when she argued with Ms Liu.  She confirmed that it was Ms Liu who impliedly said either the Son or Ms Liu had a share in the Property, and this came after the Mother said she told Ms Liu that the Property belonged to her.  The Mother narrated that Ms Liu then proclaimed: “We also have a share”; but as Ms Liu was muttering when she said so, the Mother ignored her and simply walked away.

115.The evidence of the Mother was completed.  She called no other witness at the trial.  That concludes her case.

EVIDENCE OF THE SON

His evidence-in-chief

116.The Son adopted his witness statement as part of his evidence-in-chief, with amendments to some of the dates of events that he set out therein.  Like the Mother, what he stated in the witness statement largely repeated those given in his defence and the answers under the Mother’s request for further and better particulars on his defence, with some elaborations that are summarised below.

117.His narrative started at the time before the Property was purchased.  The Son said that the Mother would help out in the Husband’s plastic factory every now and then.  But she would spend most of her time in leisure activities, housekeeping matters and etcetera.  Thus, the money to purchase the Property came from the Husband and her children, including the Son.

118.Further to the above, he explained that the Property was registered in the sole name of the Mother because she and the Husband were never properly married.  Hence when they applied for public housing in the Sau Mau Ping Estate, the flat was registered in her sole name.  As she lodged the application for the Property under what is commonly known as the “Green Application Form”, the applicant had to be her, and it followed that the Property was registered under the Mother’s sole name.

119.He recalled that the Mother had told him she had studied at an informal school when she was young.  As such, she did acquire some basic knowledge about Chinese.  It had also been a habit of her for over 20 years to read newspapers during tea, and she was especially fond of reading the local and entertainment news.  The Mother would at times ask people around her on words that she was not familiar with.  In addition, she would accompany and sometimes even teach the Grandchildren in their studies.  She also participated in the Chinese opera, where she would read the song books whilst practicing for her shows.  Apart from these, the Son recalled that in 1988, when he just broke up with his then girlfriend, the Mother obtained a sign via fortune sticks from the temple and read out the contents of the same to the Son without aid from others.  He claimed that the Mother would often do so for her children.

120.Moving on to the renovation of the Property in 2003, the Son explained that it was done due to its deteriorating condition, as it had been occupied for 20 years.  The renovation catered for the wishes of the Mother, with installation of her favourite ceiling light and a TV set on the wall of her room with an extendable frame so that she could watch it from various positions.  Her room was also painted with a colour of her choice.  Whilst the Property was under renovation, the Son saw the Mother retrieving from her safe jewelleries, watches and documents, and placed them in the possession of the 3^rd Daughter.

121.After he and his family were dislodged in 2004, they moved to Shenzhen as he was running his business there.  Once he had generated sufficient funds, he purchased the TKO Flat and moved his family into the same in 2006.  Unfortunately, because of his cash flow problems in 2010, he had to mortgage the TKO Flat in return for a loan, and the same was leased out at a rent for repayment of the monthly instalments. The Son and his family thus moved to the Lam Tin Flat.  At that time, 1^st Grandson was 9 years old and studied at the Yau Tong Kei Hin Primary School.  2^nd Grandson had also started his studies at the St Antonius Kindergarten located at Yau Tong.  He said that their schools were actually closer to the Lam Tin Flat then the Property. 

122.The Son claimed that the Mother started discussing with him about transferring the Property to his name in 2009, but at the same time apprehensive of the discontents that the daughters might have towards such arrangement.  Seeing that the Mother had raised the same topic for 6 to 7 times, the Son therefore suggested to her that she should just follow her heart; after all, the Property belonged to her. 

123.In early 2010, the Mother urged the Son to proceed with the plan as said.  He therefore attended the Lok Wah Office together with the Mother.  During the first visit, she conveyed her intention to the staff there that she wanted to transfer the Property to the Son after her passing, and inquired with the staff whether it would be more convenient to do so by way of a will or by creating a joint tenancy over the Property.  The staff told her that if it was done by way of a will, probate application would have to be made to the court.  As such, creation of a joint tenancy would be a more direct way of achieving her goal, as the ownership would automatically be vested in the surviving owner.  The Mother followed up on this by asking the staff whether the Son could sell the Property without her consent, to which the staff replied in the negative. 

124.During that meeting, the staff also explained to the Mother the legal effect and consequences of the transfer and joint tenancy. 

125.On 22 April 2010, they paid a second visit to the Lok Wah Office, during which the contents of the Form were explained by the staff to the Mother.  The staff also asked her whether she was doing this consciously; whether she understood the explanation rendered to her; and whether she understood the legal consequences.  The Mother answered all in the affirmative. 

126.On even, administration fee was paid by way of a cheque issued by the Son.  Before making the payment, he had asked the Mother again whether she really wanted to proceed with the transfer, reminding her that this was not something to jest about.  The Mother reiterated that it was what she wanted to do. 

127.Subsequently, a letter dated 31 May 2010 was issued by the Housing Authority, informing them that the application to add the Son’s name to the Property was approved, and that formal transfer should be effected by way of deed of assignment as it was at nil consideration.  Two copies of the deed of assignment should thereafter be tendered to the Housing Authority, together with a land search. 

128.On 5 October 2010, he saw a letter issued to the Mother, saying that since the 4^th Daughter had moved into another flat under the Home Ownership Scheme, her name should be deleted from the list of occupants of the Property.  He was given to understand that the 4^th Daughter’s name was eventually removed. 

129.As to the signing of the Assignment, he recalled that the Mother invited Amy to the Lam Tin Flat in October 2010 to discuss about the transfer arrangement.  At that time, he was also present, and heard Amy explaining to the Mother about the effect of joint tenancy, and the assurance that the Son could not sell the Property without the consent of the Mother under such arrangement. 

130.On 16 December 2010, he received a confirmation from the Housing Authority via TPY that the draft deed of assignment had been approved.  Amy then asked him when the same should be signed.  The Mother replied that anytime that suited Amy would be fine, but the venue should be convenient to the Mother.  As the Mother was 75 years old at that time, Amy suggested that she could arrange for her colleague to attend the Lam Tin Flat to let her sign on the same, to which the Mother agreed.

131.Hence on 28 December 2010, Ms Leung of TPY attended the Lam Tin Flat to explain the contents of the Assignment to both the Mother and the Son, and for the Mother to sign on it.  The explanation was given in Punti dialect, and the Mother affirmed to Ms Leung that she understood what Ms Leung had said.  Whilst this was going on, Ms Liu remained inside a room, attending to the Grandchildren and was not in any way involved in it. 

132.In July 2011, as the Property became old and dilapidated again, the Son paid for its renovation.  In October 2011, after the renovation was completed, the Mother suggested to him that he should move his family back to the Property, for the reason that both the Son and Ms Liu were working and their jobs required them to travel often to the Mainland, leaving the Grandchildren to be cared by the maid.  Moreover, the Mother was worried about the Son’s financial burden for having to rent the Lam Tin Flat.

His evidence under cross-examination

133.Mr Leung started his cross-examination with the amended dates on the Son’s witness statement.  Initially, the Son represented that there were three occasions when he and the Mother attended the Lok Wah Office, namely in early 2010, 22 April 2010 and 25 May 2010.  The last date was at trial corrected to 22 April 2010, meaning there were a total of two visits.  Mr Leung challenged the Son that before the amendments, he had given his evidence in a chronological manner, but since the amendments the events were set out in an unchronological order.  In reply, the Son said he had given his instructions to the lawyers in a chronological manner and he did not understand why the events were mixed up in his statement.  He admitted that he was careless when reading over the draft, missing on these mistakes.

134.Mr Leung then confronted him on his assertion that he and the Mother attended the Lok Wah Office for “at least twice”^[15], whilst now he asserts they attended twice.  The Son denied that there was any discrepancy in the descriptions.  As per his understanding, the words “at least twice” did not denote “more than twice”.

135.The Son could not recall the exact dates of those 6 or 7 times when the Mother mentioned about transferring the Property to him.  Neither could he recall where the Mother said so.  He clarified that her intention was expressed intermittently and in a fragmented manner.  Pieced together, the Son comprehended that the Will existed, under which everything that the Mother owned would be vested in him after her passing.  This riled up the daughters when they found out about its contents during the renovation in 2003, leading to the Will being destroyed.  Regardless, the Mother said she could still leave the Property to him with or without a will.

136.On the basis that the Husband and the children all contributed towards the purchase price of the Property, Mr Leung suggested that there was no reason for the Mother to vest it entirely on the Son, to which he briskly replied that this is a question for the Mother.  The Son also disagreed that because of the Will incident and the predictable discontent from the daughters, that the Mother would not have agreed to transfer the Property to him.

137.Mr Leung then queried why the Mother would tell the Son to transfer the ownership or to add his name to the Property, but not to add him as an occupant of the same.^[16]  The Son conceded that the latter was added by him to the statement.  The truth was that the Mother never said anything about not adding his name as an occupant.  The Son also rejected Mr Leung’s suggestion that the Mother, over 70 years old in 2010, could never have instructed him to arrange for the transfer of ownership of the Property to him or to add his name to it.

138.Mr Leung went on to challenge the Son on the words “transfer of ownership” and “adding his name” that the Son used interchangeably in his witness statement.  In his reply, the Son said he meant no difference in using these terms.  Mr Leung proceeded to query why, if the intention of the Mother was to transfer the Property to the Son, she would allegedly ask the staff of the Lok Wah Office whether it would be better to use a will or joint tenancy to achieve her purpose.  He further contended that there was no reason for the Mother to consider using a will again when the history in 2003 showed that she would never again take that course.  The Son answered simply that the Mother had her free will and he could not control what she thought or ask, and what action she took.  The fact that she previously made a will without the knowledge of her daughters and the Son was a reflection of these.

139.The Son confirmed that during the first visit to the Lok Wah Office, the primary advice given by the staff to the Mother was, apart from the difference between a will and joint tenancy, that under a joint tenancy, he would not be able to sell the Property without her consent.  The staff did not, during the discussion, suggested to the Mother that she should obtain legal advice.  In addition, he did not know whether the staff, by asking the Mother whether she was of a conscious mind, could actually ascertain the Mother’s mental state.  What he had included in his witness statement was simply a report on what the staff had asked at the material time.^[17]

140.Turning to the Form, the Son agreed that the information, including the address of the Property, the reason for transfer, personal particulars of the Mother and himself, were all filled in by him.  He could not remember whether the witness who signed on the Form was the staff who handled their inquiries.  According to the Son, he did try to contact the staff who attended to them to be a witness in this case, but did not know why that failed.

141.Mr Leung referred the Son to the letter from Housing Authority dated 18 May 2010, under which it confirmed receipt of the Form and the cheque in the sum of HK$2,100 that were sent by post.  Mr Leung thus query whether they actually attended the Lok Wah Office on 22 April 2010 as alleged.  The Son reiterated that they did attend Lok Wah Office and submitted the Form and made the payment on the said date.  He was clueless as to why the letter described otherwise.

142.The topic was changed to the removal of the 4^th Daughter’s name from the Property as an occupant.  The Son agreed that upon such request from the Housing Authority, a form should have been filed.  He had no recollection as to whether he was the one who filled in and submitted the form.  When he was questioned by Mr Leung why such letter from the Housing Authority, which was sent to the Mother, was read by him, the Son denied that he had opened the same.  He speculated that he had read it when the Mother asked him about its contents.

143.Mr Leung then turned his focus to the Assignment.  He started first with the alleged meeting between the Mother and Amy, confronting the Son that there was no reason for the former to ask Amy again the difference between a will and joint tenancy in October 2010, when the Form was already submitted in April 2010 and the approval from the Housing Authority was granted on 31 May 2010.  The Son agreed with Mr Leung’s observation, but the Mother did ask Amy about it during this meeting.  In pursuit of this, Mr Leung suggested that the Mother asked Amy about these questions was due to the Mother’s unawareness of the contents of the Form.  The Son disagreed. 

144.Pausing here, the Son confessed he made a mistake in his defence, stating that the Mother and Amy met in November 2010.  The correct time is now provided in his witness statement, i.e. early October 2010. 

145.Asked by Mr Leung as to why he did not call upon Amy to be a witness in this case, the Son explained he had exhausted all means in locating her, but to no avail.  Although she lived in the same building and even on the same floor of the Lam Tin Flat, she had moved away by the time this action was commenced.  Her mobile phone has been disconnected, and she no longer worked for TPY. 

146.On to the night when the Assignment was signed, the Son explained it was Amy who fixed the time for Ms Leung’s arrival at the Lam Tin Flat.  Ms Leung took about one hour to interpret the contents of the Assignment to both the Mother and himself, as he was also not well-versed in the English language.  He described that Ms Leung would interpret the contents bits by bits, pausing every now and then to ask whether they understand what she had said.  There was no separate advice given to him and the Mother.  He also could not recall whether Ms Leung had suggested the Mother to obtain independent legal advice.  The Son did not observe whether Ms Leung had recorded down their confirmation of understanding the contents of Assignment, or had written anything down. 

147.As to the legal consequences that Ms Leung had explained during the meeting, the Son remembered roughly that if one of them died, the surviving tenant would acquire the full benefit in the Property.  Nothing was said by Ms Leung about the Mother losing her right to dislodge the Son from the Property. 

148.For his subsequent use to cross-examine Ms Liu, Mr Leung inquired into the volume of Ms Leung when she spoke.  He also asked the Son whether he could, from the dining area, hear what Ms Liu and the Grandchildren were saying inside the room.  Regarding the former, the Son said when Ms Leung was speaking, she maintained a normal volume. As to the latter, the Son said he did not hear any conversation between Ms Liu and the Grandchildren, as his focus was on Ms Leung’s explanation. 

149.The Son agreed that, save for the time when he was not in Hong Kong, his place of abode from 1984 to 2004 was at the Property.  After he and his family moved back into the Property in 2011, he continued to reside at the Property until August 2017, when the present proceedings were taken out by the Mother.  He also agreed that the TKO Flat was purchased in 2005 at the price of HK$3.8 million, and the same was sold in 2012. 

150.Regarding the renovation in 2003, the Son accepted that the primary reason was that Ms Liu received her one-way permit and would come to live in Hong Kong together with the 1^st Grandson.  The dilapidated condition of the Property, after years of occupation was another reason.  This, he said, was a way to keep the Mother happy about the arrival of Ms Liu, hoping that there would not be any hard feelings between them.  He denied that the subsequent renovation in 2011 was due to his return to live at the Property.

151.Finally, the Son has no quarrel with the fact that the Mother could not read or understand English.  Neither was there disagreement that the Mother did not receive any proper education.  As to the informal education that the Mother allegedly received, he had no personal knowledge about it, as it was something that she told her children about when she was encouraging them to study harder.

His evidence under re-examination

152.The Son took the opportunity to further elaborate on the reasons for the renovation in 2011.  He stressed that the renovation was for the benefit of the whole family, including the Mother.  As per his recollection, there were occasions when the Mother had forgotten to turn off the water tap, causing water to overflow from the sink and even spilled out to the lift lobby.  The flood soaked the electrical wires inside the Property, necessitating replacement of the same. 

153.As to the staff who attended to the Mother and the Son on 22 April 2010 at the Lok Wah Office, he said he did telephone the Housing Authority to inquire into the possibility to locate her for the purpose of giving evidence in this case.  His request for the personal particulars of the staff, however, was turned down by the Housing Authority, as the same, they said, should be made via legal means.  The Son did inform his lawyers about this and entrusted them with the task.  He was later informed by his lawyers that the staff could not be located. 

EVIDENCE OF MS LIU

Her evidence-in-chief

154.Ms Liu adopted her witness statement as her evidence-in-chief. 

155.As a matter of background, Ms Liu was born in the city of Xi’an and educated in the Mainland. She received education there up to tertiary level.  She married the Son in 1998, and they have two sons; the 1^st Grandson and 2^nd Grandson were 16 and 11 years old respectively at the time of her witness statement^[18].  She divorced the Son in 2013.  She now works as an administrative officer in Xi’an. 

156.After her marriage in 1998, she would come to Hong Kong intermittently on the strength of a two-way permit between then and 2003, when she was finally granted a one-way permit to reside permanently in Hong Kong.  During that period, she would stay at the Property together with the Mother and the Son. 

157.During her infrequent stay at the Property, she observed that the Mother had not been working.  The Mother would spend her day having tea at restaurant, singing Chinese opera or played mah-jong.  As she was not working, Ms Liu believed that the Mother’s assets came from the contributions of her children.  Ms Liu would also give the Mother HK$5,000 per month whenever she came to Hong Kong, and some jewelleries.

158.When Ms Liu first arrived in Hong Kong, she could not understand some of the local slangs used in the newspapers.  Seeing that the Mother read the newspapers every day, Ms Liu sought her help in explaining the same, and the Mother did as request.  Ms Liu also recalled that there were occasions when the Mother commented on the news she read about the late singer Miss Anita Mui, and news regarding the late Mrs Nina Wang. 

159.Her narrative continued with the renovation in 2003.  As the Son desired to take care of the Mother, Ms Liu acceded to his request to renovate the Property.  The renovation, she said, was extensive, and it took 2 months to complete.  The costs of HK$300,000 were shouldered by the Son and Ms Liu. 

160.Then came a day in May 2004, when the 3^rd Daughter requested for a meeting with Ms Liu.  At a Fairwood café, the 3^rd Daughter informed Ms Liu that the Mother requested her and the Son to leave the Property forthwith, and no question could be asked. 

161.As to where they resided at after moving out of the Property, Ms Liu’s narratives were consistent with those of the Son.  But she added that, notwithstanding her astonishment at the Mother’s request, it actually coincided with her intention at that time to live apart from the Son.  Ms Liu explained that she was having difficulty living together with the Mother, whom was fond of playing mah-jong with her friends at the Property until the wee hours of the day.  The noise and the crowd created disturbance not only to her but also to the 1^st Grandson. 

162.Ms Liu acknowledged she was aware of the dealings at the Lok Wah Office, and the Mother had on a number of occasions told her that with the Son’s name having been added to the Property, the same would eventually be vested in him when the Mother passed away. 

163.On 28 December 2010, Ms Leung attended the Lam Tin Flat at about 6 pm.  Ms Leung introduced herself to the Mother and the Son, and their discussions then took place at the dining area and lasted for about one hour.  All the while, Ms Liu stayed inside the bedroom, playing the game of Monopoly with the Grandchildren, save when she walked pass them en route to the lavatory.  Whilst doing so, Ms Liu overheard Ms Leung asking the Mother whether she understood what Ms Leung had explained and what she was going to sign.  In reply the Mother said she did, and went on to complain there were still so many pages of documents.  Ms Leung asked the Mother to be patient as it was Ms Leung’s duty to render explanations.

164.There was another renovation of the Property in 2011.  After that, Ms Liu, the Son and the Grandchildren moved back to the Property upon the request of the Mother, and in order to reduce their expenses.  However, it also led to the resumption of the strife between the Mother and Ms Liu, which resulted in the divorce between Ms Liu and the Son with the Decree Absolute being granted on 31 October 2013.  Afterwards, Ms Liu left the Property together with the 2^nd Grandson, whilst the Son and the 1^st Grandson continued to reside at the Property. 

165.This brings us to the Meeting.  Ms Liu said the Mother passed her the Letter, urging Ms Liu to read it as the Mother claimed she could not have expressed herself clearer verbally than what was being written in it.  Ms Liu was surprised to find the Letter being type-written, to which the Mother explained it was typed out by someone else.  Apart from the Letter, the Mother complained to Ms Liu that the Mother was not getting along with the Son and the 1^st Grandson after Ms Liu’s departure.  The Son frequently scolded the 1^st Grandson, and the Mother was upset about this.  Hence, the Mother wanted Ms Liu to resume living at the Property.  Ms Liu was reluctant about this, but finally succumbed to the Mother’s plea, considering the Son’s deficiencies in taking care of the 1^st Grandson and that the Mother being too advance in age to shoulder such responsibility.  Ms Liu and the 1^st Grandson returned to live at the Property in November 2011.

166.In spite of the Meeting and Ms Liu’s eventual return to the Property, the Mother’s hostility towards Ms Liu and the domestic helper never dwindled, ultimately leading to the present action.  Ms Liu, the Son and the Grandchildren left the Property in July 2017.

Her evidence under cross-examination

167.Ms Liu clarified that when she said she believed that the Mother’s assets came from the contributions of her children, it was based on what the Son told her after they started dating before 1998, and upon her own observation between 1998 and 2003.  She also confessed that she knew nothing about the acquisition of the Property in 1984; the mortgage arrangement; whether the Mother had saved up money from her employments in early years of her life; and whether the purchase price of the Property was partly paid using the Mother’s savings.  Ms Liu also agreed that, by the time she married the Son in 1998, the mortgage was almost fully repaid, and after its discharge the Mother would not require much living expenses. 

168.As to the Mother teaching her local phrases and slangs, Ms Liu supplemented that she would point to the words when she asked the Mother about their meanings.  She said it was equally possible that when she made the inquiries, she would simply point to the words and asked, or she would read out the words for the Mother to explain. 

169.On the comments that the Mother allegedly made regarding news of Miss Anita Mui and Mrs Nina Wang, Ms Liu could not recall when, where, with whom and under what circumstances they were made.  She could only remember that the Mother was looking at her when the Mother made the comments. 

170.Turning to the Form, Ms Liu admitted that she remained in the car when the Mother and the Son went into Lok Wah Office on 22 April 2010.  She has no recollection as to how long she waited, nor how many times she accompanied them to the Lok Wah Office.  Ms Liu could vaguely recall that the Mother had said to her for more than 3 times that the Son’s name had been added to the Property and that the same would be vested fully in him when the Mother passed away.  However, she could not remember exactly when or where the Mother said so.  Mr Leung then used the 2004 episode when Ms Liu and her family were dislodged from the Property to suggest that the Mother could never have uttered those words to Ms Liu.  Ms Liu countered this by saying that the question could only be answered by the Mother herself. 

171.On to the night the Assignment was signed, Ms Liu explained that the distance between dining area and the bedroom inside Lam Tin Flat was not that far apart.  She volunteered that the door of the bedroom was opened at all times, as the mattress that was placed inside it was oversized which prevented the door from closing.  Despite so, she did not see or hear how Ms Leung explained the contents of the Assignment to the Mother and the Son.  Ms Liu denied that she had exaggerated on the time Ms Leung spent on explaining the Assignment.  She also denied having stopped Ms Leung from explaining the contents of the Assignment to the Mother, calling the latter uncultured.

172.The next segment of Mr Leung’s cross-examination featured the Letter.  He first asked how Ms Liu and the Mother would normally address each other in the past.  Ms Liu said she would address the Mother as “阿媽”, whilst the Mother would call Ms Liu “家嫂” or “阿媛”, the latter being pronounced in Putonghua. Mr Leung then asked Ms Liu as to a number of phrases used in the Letter, for example “比已是有物在手”, “將是柳暗花明又一村”, “舍近求遠恐怕竹籃打水一場空”, and “家和萬事興，家衰口不停”.  Ms Liu answered that she could understand the meanings of these, but not what the Mother was trying to express in the context of the Letter.  She did not mull over on how the Mother was able to use all these idioms when she read the Letter.  Her focus was on the Grandchildren’s reactions to her divorce with the Son as described in the Letter, which broke her heart.  Ms Liu denied that the Letter should be hand-written, with smaller font size and written on a thin square-shaped piece of paper. 

173.Mr Leung ended his cross-examination by asking Ms Liu a series of question concerning her divorce with the Son.  He referred to the Decree Nisi dated 4 June 2013, where it was provided that the couple had lived separately for one year prior to the petition.^[19]  Based on such information, Mr Leung asked whether Ms Liu and the Son had lived separately since 4 June 2012 and if so where they respectively resided at.  After much probing from Mr Leung, Ms Liu agreed that she remained residing at the Property in 2012 and left only in 2013.  But she added that she had started working in the Mainland during that time, hence she rarely stayed at the Property. 

Her evidence under re-examination

174.Mr Chu limited his re-examination only to the last topic, i.e. the ground of divorce.  Ms Liu confirmed that it was based on the agreement with the Son, and there was no agreement as to separation of one year. 

EVIDENCE OF THE 2ND DAUGHTER

Her evidence-in-chief

175.The 2^nd Daughter adopted her witness statement as her evidence-in-chief.  In it, she first introduced herself as being married and having retired in 2016.^[20]  Before her retirement, she worked as a purchaser for a plastic factory.  She received education up to primary school level. 

176.Her evidence started with the acquisition of the Property.  In particular, she stressed that the Mother was all along a housewife, with infrequent visits to the Husband’s business.  Most of the time, the Mother would stay home and worked on chores, or played mah-jong with friends and neighbours.  As such, the Mother’s wealth was accrued from the monthly contributions made to her by the family. 

177.When she was still in school, the Mother would require her to read out the contents of her textbooks every night after dinner.  The 2^nd Daughter remembered that she was required to use her finger to point to the words that she was reading them out loud.

178.As to the reading habit of the Mother, the 2^nd Daughter said that the Mother would read newspapers and magazines, the former on a daily basis.  Whenever she encountered any difficulty understanding any word, the Mother would ask her children, including the Son and Ms Liu. 

179.The Mother picked up a new hobby of singing Chinese opera before 2003.  She would practise it every day at home.  The 2^nd Daughter recalled that whilst doing so, the Mother would hold up a script, singing along with the music played from a cassette player.  The Mother also enrolled herself in Chinese opera classes, and even performed in front of live audiences.  On one occasion, she performed at a community centre in Kwun Tong, which was attended by the 2^nd Daughter and 3^rd Daughter.  According to the 2^nd Daughter, the Mother ceased such hobby in about 2013, due to her conflicts with the group members. 

180.Regarding transfer of the Property to the Son, the 2^nd Daughter first heard of such intention from the Mother in 2009.  She said she was confident about this, since it was the year when the Elder Son returned to Hong Kong after a successful venture in the Mainland.  She went on to elaborate that in 1999, the Elder Son suffered a setback in his Hong Kong business, thus went to the Mainland trying to restart his career.  The Elder Son was ashamed of his failure so much so that he isolated himself from the Mother for 10 years.  In 2009, with his business in the Mainland began to flourish, the Elder Son resumed his contact with the Mother.  It was such reappearance of the Elder Son that created uneasiness in the Mother’s mind, fearing that the Property would be transferred to him by mistake.  This drove the Mother into decision to transfer the Property to the Son. 

181.On this topic, the 2^nd Daughter added that in 2009, the Elder Son was not in the good books of the Mother, as she held a grudge against him for being ungenerous to her when he was making a lot of money before 1999.  The Mother considered the Elder Son to be a penny-pinching person, and so she wanted the Son rather than the Elder Son to have the Property. 

182.At trial, the 2^nd Daughter added that the Mother started mentioning about transferring the Property to the Son since 2009, but her tone became serious and determined in 2012. 

183.Moreover, the Mother had on numerous occasions mentioned to her daughters, including the 2^nd Daughter, that they all had their landed properties, save the Son, hence she wanted to leave the Property to the Son upon her passing. 

184.The 2^nd Daughter said the Mother maintained such intention until the end of 2012, before she changed her mind in 2013, wanting only to transfer half of the share in the Property to the Son, with the remaining half share be divided amongst her four daughters.  At the home of the 2^nd Daughter, all four daughters heard the Mother’s proposal.  Since then, for reasons unknown, the Mother frequently complained to the 2^nd Daughter that the Son had deceived her into transferring the Property to him. 

Her evidence under cross-examination

185.Under cross-examination, the 2^nd Daughter corrected herself, saying that her observation that the Mother did not work started only when she was mature enough, i.e. around the age of 12 to 13.  As such, she accepted that she has no knowledge of the Mother’s employment, if any, before 1968.  Despite so, when she was about 12 to 13 years old, she did witness the Mother working on plastic flowers at home, albeit for a short period.  The money that the Mother earned was applied towards the household expenses.  She agreed that her comment about the Mother’s wealth, including the Property, came from the contributions of family members, was not absolutely accurate.  Credit should also be given to the Mother’s contribution, although the 2^nd Daughter said such financial contribution was minimal. 

186.The 2^nd Daughter explained that there was no duty imposed on her to contribute to the Mother’s monthly maintenance.  There was no pattern of payment, and she was at liberty to give some money to the Mother at an amount and at a time convenient to her.  Normally, the 2^nd Daughter would give the Mother HK$1,000 to HK$3,000 on occasions when they met for tea.  She was not aware of how much her other siblings would give to the Mother. 

187.Turning to the Mother’s limited literacy, the 2^nd Daughter accepted that the Mother did not receive any formal education.  She also accepted that when the Mother supervised on her studies, the Mother never read out to her the words contained in the textbooks.  The Mother never pointed to any words therein and asked the 2^nd Daughter to read them aloud. 

188.On the subject of reading the newspapers, the 2^nd Daughter reiterated that it was a habit of the Mother.  She knew about this despite she did not see the Mother every day.  She further explained that the Mother did not limit her choice of newspapers, at times buying a particular newspaper if it was on discount.  And when reading the newspapers, the Mother would sometimes ask her about a word, and the meaning of the word.  This was, however, not frequent, the 2^nd Daughter added.  She disagreed with Mr Leung’s suggestion that the Mother would mostly look at the pictures and advertisements when reading the newspapers.

189.As to the Mother’s interest in Chinese opera, the 2^nd Daughter said she saw the Mother would practice at home after having tea together.  Although she saw the Mother holding up a script whilst practicing, she had never looked at the contents of the script.  Regarding the Mother’s live performance on stage in Kwun Tong, the 2^nd Daughter said that she was not sure whether the show was held only for the elderly audiences as suggested by Mr Leung, as she saw some of those who were in attendance were in their 40s and 50s.  She also could not affirm to Mr Leung’s suggestion that there was a group of performers on that day, as the segment she watched only featured the Mother and another performer.

190.The 2^nd Daughter was asked why the Mother was worried about the reappearance of the Elder Son in 2009.  She initially answered that she did not know the cause of the Mother’s concern, but later supplemented the Mother’s fear came from her bad relationship with the Elder Son, and that she would transfer the Property to the Elder Son by mistake.  She denied that the Elder Son would have tea with the Mother on every Sunday, including the period from 1999 to 2009. 

191.As to the Will, the 2^nd Daughter was aware of its existence, and that it was torn up subsequently, although she did not witness the act.  She could not remember whether the Mother vowed never to leave the Property to only one child after that, but she disagreed that the Mother wanted to let all children to have an equal share in it.  The 2^nd Daughter said it was the Mother’s intention all along to leave the Property to the Son.  Asked if she felt such arrangement to be unfair, the 2^nd Daughter stated that the Mother could do whatever she wished as the Property belonged to her.  On a personal level, the 2^nd Daughter does not dissent to it.  She said that the Elder Son, whom was close to her, also expressed the same view during their conversation. 

192.Mr Leung then turned his attention to 2^nd Daughter’s assertion that the Mother had on numerous occasions mentioned to her daughters that they all had their landed properties, hence she wanted to leave the Property to the Son upon her passing. In reply to his questions, the 2^nd Daughter said those conversations took place between 2009 and 2012, and it was in 2012 that the Mother said with certainty that a joint tenancy was created with the Son.  The details, however, were not provided by the Mother. 

193.Hearing this, Mr Leung brought the 2^nd Daughter back to the start of the cross-examination, where she agreed that in late 2012 the Mother was still planning to transfer the Property to the Son.  Again, the 2^nd Daughter confirmed that what she said earlier was correct. 

194.Finally, the 2^nd Daughter said she had no knowledge that the Son was the owner of the TKO Flat until this action, and she did not know whether the Mother was aware of this in 2012.  She also had no idea as to why, when the Mother suggested to split the Property between the Son (for half share) and the four daughters (for the other half), there was no mentioning of the Elder Son. 

Her evidence under re-examination

195.Mr Chu asked the 2^nd Daughter to expand on her disagreement with the suggestion that the Elder Son would have tea with the Mother on every Sunday from 1999 to 2009.  Her answer was that, during those 10 years, the Elder Son rarely came back to Hong Kong, and whenever he did, he would stay at her place. 

196.The 2^nd Daughter is the last witness for the Son.  That is the end of the Son’s case.

AFFIRMATION OF LI KAM FAI

197.Before I proceed to set out the relevant legal principles and provide my analysis of this case, there is still the affirmation filed by Mr Li Kam Fai, a partner of TPY (“Mr Li”), which I have ordered on 7 September 2018.^[21]  The purpose of Mr Li’s affirmation^[22] (“Li’s Affirmation”) is to answer the Son’s request for documents as set out in paragraph 1 of the said order, including: written instructions given by the Son and the Mother; attendance notes created by the handler of the Assignment; correspondences between TPY and the Housing Authority; written statement signed by the Mother and the Son that they understood the content of the Assignment before execution; alternatively, attendance notes which recorded the verbal confirmation in relation to the Son and the Mother’s understanding to the contents of the Assignment. 

198.Unfortunately, save for a piece of paper with the Son and the Mother’s Hong Kong Identity Cards imprinted on it and some handwritten notes beside them, and for the correspondences between TPY and the Housing Authority regarding the draft Assignment for approval by the latter, TPY possessed none of the documents sought.

RELEVANT LEGAL PRINCIPLES

199.Despite that cases like the present one are fact-sensitive, the court is nonetheless guided by legal principles when coming to its decision.  It is therefore imperative to highlight the key legal principles before providing my analysis on this case.  For those authorities and their principles not appearing under this section, I will discuss them along the way when I provide my analysis. 

200.Mr Leung has helpfully summarised the law on undue influence (both actual and presumed), non est factum and misrepresentation in his submissions, and Mr Chu has no dispute on them.

Underlying principles on undue influence

201.Before branching out to its classes, I will start with the underlying principles on this area of law.  In this regard, Recorder Ma SC (as the Chief Justice then was) had provided a summary in the case of Bank of China (Hong Kong) Ltd v Wong King Sing & Ors:-^[23]

(1)  The concept of undue influence has all to do with informed consent.  Once a court forms the view that consent was freely given, with full knowledge of the consequences of entering into the relevant transaction, that is the end of the matter, however improvident the transaction may objectively appear. 

(2)  The rationale for undue influence is to prevent victimisation of the complainant.  It is there to protect people from being forced, tricked or misled in any way by others into entering into a disadvantageous transaction.^[24]  The unacceptable conduct lies in a relationship between two persons where one has acquired over another a measure of influence, or ascendency, of which the ascendant person then takes advantage.^[25]

(3)  The burden is on the person seeking to set aside or avoid liability under the relevant transaction.  It is not for the other party to prove that the transaction was entered into with full understanding of the nature and consequences of the transaction.^[26]

(4)  Although the legal burden of proof is imposed on the party seeking to set aside, the evidential burden may shift where undue influence is presumed. 

202.With these in mind, we now turn to the classes of undue influence relevant to the present case.

Actual undue influence

203.This is the primary class of undue influence relied upon by the Mother in her case.  The burden rests on the Mother to prove actual undue influence on a balance of probabilities.  To do so, she has to show that:-

(1)  the Son had the capacity to influence her;

(2)  the influence was in fact exercised;

(3)  its exercise was undue;

(4)  her free will was impaired at the time when the Form and the Assignment were executed;

(5)  the Son must have knowledge of the Mother’s position of weakness; and

(6)  the exercise of influence brought about the transaction; though the undue influence need only be a significant reason for the complainant entering the transaction, and need not be the only reason or even the principal one.^[27]

204.In Chan Yuk Pui v Chan Yui Chi & Ors, Au-Yeung J elaborated at §§ 3 to 5 of her judgment that, a failure to point out to the claimant that the transaction was not to her advantage and ensuring that she took proper independent advice may cause the gift to be set aside if unconscionability is shown.^[28]  And unconscionability, being a serious allegation, is not to be lightly found.  There must be a proper foundation of primary facts to provide a reasonable basis for a definite conclusion of such serious misconduct to be inferred and that inference is not to be reached by conjecture.  Whilst inference can be drawn from circumstantial evidence, the court must guard against conjecture under the disguise of drawing an inference where the primary evidence does not logically and reasonably justify the inference in question.^[29]

Presumed undue influence

205.Failing on the claim of actual undue influence, the fall-back position of the Mother is that she should succeed on presumed undue influence.  Mr Leung submits that the present case is under Class 2B.  Again, I shall refer to the principles summarised in the case of Bank of China (Hong Kong) Ltd v Wong King Sing & Ors:-^[30]

(1)  The effect of presumed undue influence is that, once it arises, whether under Class 2A or Class 2B, the evidential burden shifts to the influencer to show that the transaction was entered into with an independent mind, free of any undue influence, and the transaction was freely entered into by the complainant with full knowledge.^[31]  The effect of presumptions is not absolute but can be rebutted by evidence to the contrary. 

(2)  For the presumption to arise, the complainant under Class 2B needs to show that:

(a)  he placed trust and confidence in the influencer or that the influencer had acquired an ascendancy or domination over him; and

(b)  the transaction cannot be readily explicable by the relationship of the parties.^[32]

(3)  For the first requirement, the complainant must prove the existence of a relationship under which he generally reposed trust and confidence in the influencer, or that the influencer had acquired an ascendancy or domination over him.  The degree of trust and confidence is such that the party in whom      it is reposed, either because he is or has become an adviser of the other or because he has been entrusted with the management of his affairs or everyday needs or for some other reason is in a position to influence him in      into effecting the transaction of which complaint is later made.^[33]  Notwithstanding the frequent use of the phrase “trust and confidence”, this principle is not confined to cases of abuse of trust and confidence.  There      may for example be cases where a risk exists of vulnerable person being exploited.^[34]  Where the said abuses are established, it will be for alleged influencer to prove that the transaction in question has not its source in any     improper influence over the mind or will of the complainant, or in any fraud, misrepresentation, mistake or concealment of material facts which ought to have been disclosed by the alleged influencer to the complainant.  Should the alleged influencer failed to do so, the transaction would be set aside.^[35]

(4)  For the second requirement, transactions that are contested under undue influence are commonly entered into by people on the ground of friendship,     relationship or charity or for other motives on which many people ordinarily act.  The presumption under Class 2B is intended to apply when the complainant makes a gift so large, or enters into a transaction so      improvident, as not reasonably accounted for on the ground of friendship, relationship, charity or other ordinary motives on which ordinary men act.  And yet, it has to be recognised that sometimes it is the very relationship whether of friendship, kinship or otherwise, that would give rise to the complainant reposing the requisite degree of trust and confidence in the      influencer in the first place.  The line therefore between what is reasonable (and therefore) acceptable and what is not may therefore at times be hard to gauge.  One of the keys is to look at the nature of the transaction itself.  A Christmas gift is not the same as an unlimited guarantee.  This by itself however does not provide the complete answer.  

(5)  Another important guide lies in always looking at the respective characters of the complainant and of the influencer when assessing the impact of their relationship, particularly that of the complainant. If the complainant is for example a well-educated or strong-willed person capable of independent thought, a court may more likely be of the view that he was able to make an informed and free choice for himself in deciding whether or not to enter into the relevant transaction for the benefit of his friend or relative even though he would not personally benefit from the transaction.  On the other hand, a naive and dependent person, easily influenced by a stronger or more dominant personality, would be regarded in a completely different light when he has entered into a disadvantageous transaction.  In his case, he could well be regarded as having reposed such trust and confidence in the influencer that it becomes questionable whether his decision to enter into the transaction was voluntary.^[36]

Non est factum

206.In the leading case of Saunders v Anglia Building Society,^[37] Lord Reid at 1016A described the circumstances in which a plea of non est factum would arise: “… in favour of those who are permanently or temporarily unable through no fault of their own to have without explanation any real understanding of the purport of a particular document, whether that be from defective education, illness or innate capacity.”

207.His Lordship further said at 1016E:-

“The plea cannot be available to anyone who was content to sign without taking the trouble to try to find out at least the general effect of the document. Many people do frequently sign documents put before them for signature by their solicitor or other trusted advisers without making any inquiry as to their purpose or effect. But the essence of the plea non est factum is that the person signing believed that the document he signed had one character or one effect whereas in fact its character or effect was quite different. He could not have such a belief unless he had taken steps or been given information which gave him some grounds for his belief. The amount of information he must have and the sufficiency of the particularity of his belief must depend on the circumstances of each case.” (emphasis added)

208.In a nutshell, to be able to rely on such plea, the complainant has to show that:-

(1)  at the time when he signed the document in question, he was unable to understand it;

(2)  the document was fundamentally or radically different from what he believed he was signing; and

(3)  he was not careless.^[38]

209.Where non est factum is established, the transaction in question is void. 

Misrepresentation

210.Regarding the law on misrepresentation, the summaries provided by Au-Yeung J in the case of Chow How Yeen Margaret v Wex Pharmaceutical Inc.^[39] are most helpful and I shall adopt them in my judgment:-

“34. The principles on fraudulent misrepresentation are not in dispute: Haifa International Finance Co Ltd v Concord Strategic Investments Ltd [2009] 4 HKLRD 29, Cheung JA, §15.

(1) There must be a representation of fact made by words or conduct.

(2) The representation must be made with knowledge that it is or may be false. It must be wilfully false, or at least made in the absence of any genuine belief that it is true.

(3) The representation must be made with the intention that it should be acted upon by the claimant, or by a class of persons which includes the claimant, in the manner which resulted in damage to him.

(4) It must be proved that the claimant has acted upon the false statement.

(5) It must be proved that the claimant suffered damage by so doing.

35. On the question of falsity:

(a) It is for the plaintiffs to prove that the representations were false.

(b) When considering whether a representation which is capable of having different meanings was false, one takes as its meaning the way it would have been understood by a reasonable person in the position of the person to whom it was made.

(c) A representation will not be false simply because it is not entirely correct, provided it is substantially correct, and the difference between what is represented and what is actually correct would not have been likely to induce a reasonable person in the position of the claimant to enter into the contract.

See China Alarm Holdings Acquisitions LLC & anor v Ing Alexander Yim Leung & ors, HCA 503/2012, 24 March 2016, at §§74 and 76, DHCJ Keith.

36. On the question of mental element required for a claim in fraud, the classic statement is in Derry v Peek (1889) 14 App Cas 337, at p 374, Lord Herschell:

“... fraud is proved when it is shown that a false representation has been made (1) knowingly, (2) without belief in its truth, or (3) recklessly, careless whether it be true or false.  Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states.  To prevent a false statement from being fraudulent, there must, I think, always be an honest belief in its truth.”

37. It is enough to establish that the defendant suspected that his statement might be inaccurate, or that it was false. Lord Cairns in Reese River Silver Mining Co Ltd v Smith (1869) LR 4 HL 64, §§79-80 expressed the principle as follows:

“...if persons take upon themselves to make assertions as to which they are ignorant whether they are true or untrue, they must, in a civil point of view, be held as responsible as if they had asserted that which they knew to be untrue.”

38. It is sufficient for the plaintiff to show that the representation was a factor in the plaintiff’s decision and that, but for it, he might (not would) have acted differently: see Raiffeisen Zentralbank Osterreich AG v Royal Bank of Scotland plc [2011] Bus. L. R. D65.”

ANALYSIS

My observations

211.I will start this section of my judgment by stating what I have observed in this case. 

212.In terms of the Mother’s performance at trial, she was swift with most of her answers, although she rarely gave straight answers to Mr Chu’s questions.  She had retorted to Mr Chu’s questions with much frequency, and at times even being hostile.  She was alert to the questions asked by Mr Chu, and even corrected him when he made a mistake.^[40]  As I will highlight below, the Mother flashed her wits at trial by foreseeing correctly the adverse impact that a certain piece of information might have on her case, and tried changing her answers to emasculate them, albeit unsuccessfully.  She also exercised caution when answering questions from Mr Chu.  For example, when Mr Chu asked whether contents of the 1984 Assignment were explained to her by the staff from Housing Authority, the Mother clarified with Mr Chu that he was not asking about the Assignment, before saying “yes” to the question.  Overall, I am impressed that not only did the Mother not act her age, she was of a sound mind, feisty in character, alert of the traps in Mr Chu’s cross-examination and the implication of her answers to his questions.  She was not ready to concede without putting up a fight.  All these showed that she is not one who can easily be misled, influenced or dominated.

213.Pausing here, Mr Leung in his submissions asked for allowance to be given to the Mother due to her old age and the long lapse of time between 2010 and 2019, together with the fact that she never received any formal education.^[41]  She could be forgetful, especially with the 1984 Assignment, Mortgage Document, and the Will.  The Mother might be annoyed and slightly agitated after lengthy and detailed cross-examination.  I accept Mr Leung’s submissions that some allowance should be given to the Mother.  My rulings below are unrelated to her forgetfulness, age, lack of formal education or hearing difficulties.  I should add that the Mother was argumentative right from the start of the cross-examination, thus any suggestion that her annoyance or agitation stemmed from exhaustion over a lengthy cross-examination is unsustainable. 

214.Of course, I have not overlooked the shortcomings in the evidence of the Son,^[42] Ms Liu and the 2^nd Daughter, which Mr Leung has expanded much effort in attacking them in his submissions, most of them relating to the discrepancies as to the dates of events, time of events and their failed recollection of certain events. However, as I am to give allowance to the Mother for her faded memories due to the lapse of time, the same allowance should be given to them on these matters. Overall, I find the Son, Ms Liu and the 2^nd Daughter are credible witnesses, giving their evidence honestly without exaggeration and malingering, and conceding to their mistakes where concessions were due.  For the Son, I am impressed that he has not attempted to mask the deficiencies in his case.  Come what may, the discrepancies and the flaws in the Son’s case do not take away the fact that the primary burden rests upon the Mother. 

215.After considering all evidence, I notice there are plenty of inexplicabilities and hiatuses that render the Mother’s case, in my view, inherently defective and improbable. 

216.First, there is the peculiarity of the timing of the events.  There is a gap of 4 months between the consent from the Housing Authority^[43] and the instruction to TPY to procure the Assignment.^[44]  It is hard to explain, if the transaction was made upon the Son’s undue influence or misrepresentation, that he did not accelerate the whole process and complete the transaction as soon as possible.  The chance of the Mother slipping her tongue again, like in the case of the Will, disclosing their visits to the Lok Wah Office, and showing the HA Letters to her daughters or neighbours, would increase with each passing day.  The risk of the Mother realising his devious plan before it is completed must be something that the Son would try to avoid at all costs.  The inaction for 4 months defies such logic.

217.On this point, I will add that despite the Mother’s claim to have no possession of the Form and the letter dated 31 May 2010, and the same were obtained by LCL after commencement of this action,^[45] there is still the letter dated 18 May 2010, which stated very clearly that the Son and the Mother had requested for a transfer of ownership over the Property.^[46]  It should be foreseeable by the Son that the Housing Authority would have correspondences sent to the Property, before and when the approval was granted.  With the Son residing at the Lam Tin Flat at the material time, and assuming the Mother could not understand the words in the letters,^[47] it is conceivable that after receiving the same, the Mother might seek help from her neighbours, her daughters or even the Elder Son to explain the contents to her.  The Son’s plan could have been revealed, and the risk of such revelation would only increase with time.  There was an urgency to sign the Assignment and complete his plan before the Mother’s discovery of the truth.

218.Pausing here, the Mother alleged in her witness statement that she never received the HA Letters, and she suspected them to have been stolen by the Son.  I find this allegation to be groundless and absurd.  Save as aforesaid regarding the letter dated 31 May 2010, the other 2 letters dated 18 May 2010 and 26 May 2011 were disclosed by the Mother in this action.  There is nothing to show that these letters were also obtained by LCL from the Housing Authority.  Moreover, unless the key to the letter box was only kept by the Son (despite he lived at the Lam Tin Flat at the material time), or unless he could predict exactly when the HA Letters would be inserted into the letter box of the Property, I cannot imagine how he could take them away behind the Mother’s back.

219.Following on the above discussions, it also begs the question why the Son had allowed the Mother to retain a copy of the Assignment, which is again disclosed by the Mother in this action.  If the Son was misleading the Mother as to the purpose of the whole arrangement, surely he would not want her to hold on to a set of evidence that would reveal his plan. 

220.Again, on the issue of timing, if the whole ordeal, according to the Mother, was to obtain the permission from the Housing Authority for the Son and his family to reside at the Property, it is curious that there was inaction on the part of the Son to follow through with this for over a year.  The application for the said consent from the Housing Authority was filed in April 2010, the Property was not renovated until after July 2011^[48], and according to the Son, he and his family only moved back to the Property in October 2011.  Naturally, the Mother should have inquired with the Son as to when the consent would be granted by the Housing Authority, and why it took so long for it.  Oddly, I have heard no such evidence from the Mother.  Moreover, there is no evidence from her as to when she was told the consent from the Housing Authority was granted for the Son and his family to move back to the Property.

221.The preceding peculiarity became more bizarre by the Mother’s case that the Son requested to move back to the Property together with his family on temporary basis^[49], because of the expiry of Lam Tin Flat’s lease.  I do not understand why such request from the Son was required, if signing of the Form and the Assignment in 2010 was for the same purpose.  The Mother should have already agreed to such move before going through all the troubles.  Furthermore, for all the troubles, it is implausible for the Son to say that such move was only on a temporary basis, and for the Mother to accept it also on a temporary basis, and especially if one of the reasons allegedly provided was that the Property was closer to the schools attended by the Grandchildren. 

222.I also have trouble understanding how the Son could have convinced the Mother that permission from the Housing Authority was required for him and his family to move into the Property in 2010 (hence the need to sign the Form and the Assignment), when he had not done the same in 2003 whilst Ms Liu and the 1^st Grandson started to reside at the Property.

223.I have great reservation to the Mother’s allegation that Ms Leung failed to explain to her the contents of the Assignment on 28 December 2010.  It could be seen that Ms Leung had signed on the same to confirm that the contents were interpreted.^[50]  Could Ms Leung have done so without really interpreting the contents to the Mother?  That is possible, but what about the Son, who is a party to the Assignment, in attendance, and also signed on the Assignment?  It is the Son’s evidence that he was not well-versed in English, hence he required interpretation of the contents by Ms Leung.  I have heard no evidence from the Mother that Ms Leung also did not interpret or explain the contents of the Assignment to him.  Would it be possible that Ms Leung only interpreted or explained the contents to the Son?  This could be so only if the Mother was somehow excluded from the conference, but there is again no evidence to support this. 

224.Furthermore, the reason that the Mother provided, i.e. Ms Liu stopped Ms Leung from explaining the contents of the Assignment to the Mother as she was illiterate and uncultured, is unconvincing.  The Mother is a feisty lady, and she demonstrated it on numerous occasions during trial, talking back and retorting against Mr Chu.  It is hard to believe that she would quietly absorb the humiliation from Ms Liu in front of a stranger.  It is equally unbelievable that Ms Leung would accede to Ms Liu’s request just because the Mother was illiterate and uncultured, especially since Ms Liu was not even her client.  Not only so, knowing of the Mother’s weaknesses should actually reminded Ms Leung to take extra care in explaining the contents of the Assignment to the Mother.  Most importantly, if Ms Liu was part of the scam, it was a grave act for her to possibly infuriate the Mother before she put her signature on the Assignment, and the Son would have screamed at Ms Liu to stop.  On the last part, there is no such evidence from the Mother.

225.I find it odd that there was no greeting at all between the Mother and Ms Leung, as described by the Mother.  This is unfathomable when one of the purposes of Ms Leung’s appearance was to have the Mother sign on the Assignment.  I wonder how the Mother reacted when all of a sudden Ms Leung pulled out the Assignment for the Mother to sign.

226.I am also baffled by the lack of evidence showing any clash between the Mother and the Son when the former allegedly learned in 2016 (from a social worker) that the Property was under their joint tenancy.  This should be expected considering the astonishment the Mother must be in, when her beloved child whom she allegedly reposed trust and confidence in had betrayed and deceived her with such ruthlessness.  Not only was there no reported attempt to evict the Son and his family after the alleged revelation of the Son’s deed, it is most unbelievable that there was not even a confrontation over this.  On this point, I note the Mother had already instructed LCL in February 2017 to obtain from the police her previous reports against the Son and Ms Liu over domestic disputes in 2015 and 2016.^[51]  This came even before the next episode of domestic dispute on 17 March 2017 that was reported to the police.^[52]  Was the Mother maintaining her cool in front of the Son and Ms Liu amidst planning for this action against the Son in February 2017 behind their backs?  This is never answered.  However, if that was the case, it would show the Mother’s endurance, strong will and determination.

227.Before I turn to the issues, there remains one more puzzling situation that I have observed, concerning the visit to the Lok Wah Office on 22 April 2010.  According to the Mother, this was the only visit she paid to the Lok Wah Office.  She signed the Form there, and at that time, the information contained therein had yet been inserted. Based on these descriptions, it seems that the Form was obtained from the Lok Wah Office only there and then.  If that was the case, it would be a safe assumption that the Son would ask for the Form from the service counter, and whilst doing so the true purpose of the application could be disclosed and there was the possibility for the Mother to hear it.  Alternatively, and to avoid such accident from happening, the Son might have obtained the Form, filled in the necessary information, and ensured that the Mother had signed on the same, all prior to the visit.  I have heard no explanation from the Mother on these queries.

Whether the Mother purchased the Property and repaid the mortgage with her own money?

228.Despite this question appears at the bottom of the list of issues jointly prepared by the parties, in my view the answers to this and the other two ostensibly insignificant issues are actually vital when considering the issues of undue influence, misrepresentation and non est factum.

229.Having heard the testimonies of the Mother, the Son and the 2^nd Daughter, and the documentary evidence disclosed, I do not believe that she purchased the Property relying entirely on her own money.

230.It is indisputable that the Property was purchased under the name of the Mother, and the mortgage was taken out in her name.  Liability arising from possible default of repayment would have been borne by the Mother.  There is no evidence from both parties that the mortgage was taken out with the support of a guarantee from any of her children or the Husband.

231.From the evidence of the Son and the 2^nd Daughter, none of the children was committed or tasked with the duty to shoulder the monthly repayment before 1995.  As per the 2^nd Daughter, she had the freedom to give the Mother money at any time and in any amount.  The Son’s pleaded case shows that their contributions towards household expenses started only in about 1995.  These contributions came approximately 2 years after the Husband’s passing in 1993.  So, from 1984 to 1995, a span of about 11 years, there was no or no consistent contributions from the Son and his siblings.  Before 1993, the source to repay the mortgage and household expenses must have come from the Husband and the Mother.  And between 1993 and 1995, the money to repay the mortgage must have come from the Mother’s own savings.  Since 1995, the children’s contributions were made towards the household expenses.  Even if the Mother had applied the money to the repayment of the mortgage does not take away that fact.

232.There is no evidence to contradict the Mother’s assertion that she had worked at various jobs and saved up her earnings to finance the purchase of the Property.  The most that the 2^nd Daughter could say was that the Mother did not have any stable job after 1968, when the 2^nd Daughter was 12 or 13 years old.  As accepted by the 2^nd Daughter, the Mother would still assemble plastic flowers at home, in return for some earnings at that time.  I am not ignorant of the fact that, apart from the 2^nd Daughter being 12 or 13 years old at the time, the Son was only 2 years old, whom would demand much attention from the Mother.^[53]  In-between the 2^nd Daughter and the Son, there were the Elder Son, 3^rd and 4^th Daughters, all of whom were at the age that would still require constant care from the Mother.

233.Following on the previous segment, even if the Mother had reduced her work, hence reducing her financial contribution towards the family after her marriage to the Husband and bearing 6 children, one should not simply ignore her contribution towards the upkeep of the household.  The Mother would have to take care of the children and did chores.  She had to run the family whilst staying frugal enough to have a reserve of funds for buying the Property.  Her contribution via such means should not be disregarded, even if the Husband, who ran a plastic factory, was the primary breadwinner from 1984 to 1993.

234.The above, apart from saluting the Mother’s labours in taking care of her family, unveil also the weakness of her case under this head.  Unless she had an immensely profitable career prior to her marriage, her ability to work on full time basis and therefore her earning capacity would have been seriously hindered after marriage and especially following the birth of her children.  But if she had really been able to save up sufficient funds from her employments to purchase the Property on her own, without the aid of the Husband, and the children in the later years, her savings must have been significant.  One must then wonder how she was able to hide her wealth from the Housing Authority during the time when the Mother and her family resided at the Sau Mau Ping Estate.  It also begs the question why, if the Mother’s savings generated solely from her earnings were enough to buy the Property, was there the need to take out a mortgage?  I note the purchase price of the Property was HK$289,100^[54] and a mortgage of HK$260,100 was taken out^[55].  Only a down payment of HK$29,000 was made.  Even assuming that the mortgage was taken out because the Mother did not want to put all eggs in one basket, she could have at least increased the amount of down payment or the amount of monthly instalments to be paid, thereby reducing the interest payable to the mortgagee.  All these are left unanswered.

235.I also note the Son’s assertion that he and his siblings started making contributions in 1995.  He would also pay for the monthly instalments of the mortgage either to the Mother or to the mortgagee directly since 1995.  I do not find this to be mere coincidence.  By that time, two years had passed since the death of the Husband. Between 1993 and 1995, as I have said in the above, the mortgage repayment and household expenses would have been borne by the Mother singly.  Her savings would deplete if not exhausted, which warranted the aids from her children.  And with the Son residing at the Property and perhaps finding his feet in his career at the age of 30, him shouldering the duty to repay the mortgage and household expenses is plausible. 

236.For the above reasons, I find that the Property was purchased not only with the money from the Mother. The money came from her, the Husband, and since 1995 from the children, with the Son shouldering the primary obligation to repay the mortgage.

Whether the Mother was able to read or write Chinese, hence being capable to comprehend the contents of the Form and the Assignment?  In the premises, what was the education level of the Mother and was she an illiterate?

237.It is the Mother’s own pleaded case that she could read and understand some traditional Chinese characters, but could not write most of them.  So, the simple answers to the questions whether she was able to read or write Chinese are “yes”, albeit to a limited degree.  This is consistent with the evidence of the Son and his witnesses.  They all pointed to her reading newspapers as a habit but would seek help every now and then on words that she could not comprehend.

238.But what the Mother tried to portray at the trial was that she is almost illiterate, and when she read the newspapers, she would only look at the pictures and advertisements.  I am unable to accept this.  I find it hard to explain why she would invest a few dollars at a time to buy the newspapers when all she would read were the pictures and advertisements, not to mention that she read the newspapers on daily basis.^[56]  She could have free access to the same from the television.  Moreover, I cannot see what pleasure or information she would gain by simply looking at the pictures and advertisements without the ability to read and comprehend their descriptions. 

239.There is also the evidence of the 2^nd Daughter on this issue.  I see no reason for her to lie about the Mother’s degree of literacy.  Notwithstanding Mr Yeung’s criticisms, there was no exaggeration on her part, and she readily accepted at trial that the Mother never read out the words contained in the textbooks nor pointed to the words therein when the Mother supervised on the 2^nd Daughter’s studies.  She was also able to explain in detail how the Mother would choose her newspapers, i.e. at times buying a particular newspaper if it was on discount.

240.Then there is the hobby of Chinese opera.  The Mother claims she learned it simply by singing along with the tapes she played, whilst the Son and the 2^nd Daughter pointed to the Mother also reading from a script when she was practicing.  I prefer the evidence of the Son and the 2^nd Daughter. The Mother had performed Chinese opera before live audiences, and it is only natural that scripts of the act would be made available for the performers to practice and to rehearse with one another.  Notes could also be marked on the scripts by the performers to remind themselves on the tones, hand gestures or positions on the stage to be adopted for certain parts of the song.

241.Apart from the above, the Mother’s action in court is telling.  On the first day of trial, Mr Chu had on four occasions referred the Mother to her witness statements.  On each of these occasions, I observed that the Mother spontaneously read her witness statement whilst Mr Chu was reciting its contents to her.  She did not stop reading until Mr Chu finished his recitation.  If the Mother was almost illiterate as she proclaimed to be, why was she reading the witness statement?  What was she looking for from her witness statement?  Why was she not focusing on what Mr Chu was reciting to her?  I also note her answer given under re-examination.  When she was asked by Mr Leung whether she wear glasses, the Mother answered in the affirmative, adding that she has a pair of glasses that she uses for reading small prints on documents.  This is a most singular response from a person who claims to be almost illiterate.  Why would an almost illiterate person carry with her a reading glass for the purpose of reading small prints?

242.I am not convinced that the Mother is as illiterate as she portrayed herself to be.  I view the Mother’s evidence, clearly inconsistent with her pleaded case and her action in court, as a case of her overzealously amplifying her vulnerability.  That being so, I do accept that her abilities to read, understand and write Chinese characters are with deficiency.  But I also find that where there are words that she could not understand, she would seek explanation of the same from her children and neighbours.  For the latter, it is the Mother’s evidence that, whenever she received bills from service providers and could not understand their contents, she would ask her neighbours, apart from her sons.

243.In light of my finding above, it is redundant for me to consider the Mother’s level of education.  Come what may, it is never a foregone conclusion that a person who did not receive any education, formal or informal, must be illiterate.  Knowledge and skills could be acquired from many sources, not only from the schools.

244.The last part of this issue requires me to consider whether the Mother’s level of literacy would allow her to comprehend the contents of the Form and the Assignment.  Regarding the Assignment, if comprehension was confined to the meaning of reading, the answer must be “no”.  The Assignment is written in English, and there is no dispute between the parties that the Mother could not read the language.  As to the Form, the Chinese words printed thereon are not difficult.  Even if there were words that she could not recognise or fully appreciate their meanings, the title of the same clearly and in simple terms stated that it is an application form for transfer of ownership of real property.  I think the Mother should be able to read it and understand its purpose and I do so find.  Even if I were wrong on this, there is no reason for the Mother not to seek clarification from the staff at the Lok Wah Office or from the Son there and then.  On this point, I have heard no allegation from the Mother that she was instructed by the Son not to utter a single word or ask any question once they had arrived at the Lok Wah Office, or that she was stopped by the Son when she tried to speak.

Whether there was any intention to assign the Property from the Mother’s sole name to the joint name of herself and the Son under joint tenancy?

245.This, in my view, is a crucial issue in the present case, as it really dictates the outcome of this family feud.

246.The Mother’s case is simple and straight forward: there was no intention to transfer the Property from her sole name to one that she would hold jointly with the Son in the present, and solely by the Son upon her passing.  But for the undue influence exercised by the Son over her, or his misrepresentation, she would never have signed the Form and the Assignment.  On the Son’s side, the intention was not only shown but also realised at the time when she created the Will, leaving all her assets, including the Property, to him.  The Mother counters this by citing the incident in about 2003, when the Will was destroyed with the Mother’s vow never to leave the Property to only one child. 

247.In my view, the existence of the Will is revealing.  It shows the Mother’s desire for the Son to inherit her assets to the exclusion of other children. 

248.The Mother’s evidence at trial tried to cloud this reality.  She said that she was uncertain as to when it was made.  It could be at a time when the Son was very young, it could be before acquisition of the Property, but at the end she said she could not recall at all.  I can accept that her memory as to when exactly the Will was made faded due to the lapse of time.  What amazes me, however, is when she went further by saying that she was not even sure what was bequeathed under the Will, and what was written in it, as she had never read it.  If the Will was drafted by a solicitor, one would expect it to be prepared in accordance to the Mother’s instructions, and the contents of the same should have been explained to her.  The same should also be witnessed and executors of the Will would be nominated.  When Mr Chu started to question her on this, the Mother was rather evasive.  She first claimed that the Will was drafted by her friend, who was a solicitor.  The Mother even said that the solicitor friend had immigrated to another country and died.  Her answer then changed to that the solicitor was not her friend, but someone introduced to her by a friend.  Ultimately, she pointed to the Will being drafted by her friend and she treated it as a joke. 

249.I find the above inconsistencies a product of overcompensation.  The Mother correctly and progressively realised the significance of a will as I have highlighted above. She ultimately tried to undermine its adverse ramification on her case by calling it a joke.  Otherwise, I do not see how her evidence would have evolved in such a way; and how she could mix up a solicitor friend whom she recalled having immigrated and died, a solicitor introduced by a friend, or a friend who prepared the Will for the Mother’s amusement.  Regardless of whether the Will was drafted by a friend or a solicitor, that person would not have prepared it without knowing the Mother’s intention.  Moreover, if the Will was drafted by a friend, and it was merely a joke, it is nonsensical that the friend and the Mother would find it necessary to have it sealed inside an envelope, and for the Mother to keep it for any extended period of time.  Furthermore, one would wonder why the Mother had to sign on a document that was intended to be a joke, and took the trouble to do so in Central.  The Will being a joke also contradicts with her evidence that she could void or change it at any time.

250.Further to the above, unless the Will was formally made, and it bequeathed all of the Mother’s assets to the Son, it is implausible that the 3^rd Daughter would throw a tantrum after finding out its contents.  There is no evidence from the Mother that she had ever explained to the 3^rd Daughter that the Will was merely a joke.  Her vow never to leave the Property to only one child after tearing apart the Will is also indicative of the genuineness of it; the Property was to be inherited by the Son alone upon the Mother’s passing.

251.Mr Leung argued that, be that as it may, the Mother’s intention has changed after the Will was destroyed.  This is possible.  However, it is equally possible that its destruction was done in the heat of the moment and served as an act to soothe the tension amongst her children.  The Mother’s intention to leave the Property to the Son alone could have remain unchanged.  On this point, one must not ignore the fact that bequeathing all her assets to the Son in the Will illustrated the Mother’s fondness of the Son over his other siblings.  This is understandable as the Son is the youngest amongst her children, and had lived with the Mother for the longest period of time.  Moreover, the Son’s shouldering of the mortgage repayment since 1995 could lend credence to this.  At the time the Will was created, disagreement and discontent from her other children once they found out its contents should be foreseeable by the Mother. Nevertheless, the Mother had pressed on with it.  Her determination in achieving such end cannot be underestimated.  Her crave to leave all her assets to the Son might have been hampered by the 3^rd Daughter’s discovery of the Will, but not extinguished.  If the Mother cared so much about fairness to her other children or their feelings, the Son would never have been the sole beneficiary under the Will in the first place.  I have great reservation that, just by finding out the contents of the Will and expressing their frustrations would have truly elevated the status of the other children in the mind of the Mother. 

252.In addition, if the Mother was so determined to allow her children to have an equal share to her assets after her passing, one must wonder why there was no creation of another will for this purpose, rather than relying on the intestacy law. 

253.The Mother’s adoration of the Grandchildren might have augmented or re-ignited her desire to leave the Property to the Son after 2003.^[57]  This is supported by the undisputed fact that the Mother was willing to have the Meeting with Ms Liu, notwithstanding the volatile relationship between them, when the Grandchildren blamed the Mother for the separation of their parents.  The initiative was taken by the Mother.  Regardless of whether she invited Ms Liu to resume living at the Property in the Letter or verbally during the Meeting, the Mother had, at the very least, conceded to the same. 

254.The Mother’s intention to leave the Property to the Son upon her passing is also supported by the 2^nd Daughter’s evidence.  The 2^nd Daughter said that that was the Mother’s intention all along.  The 2^nd Daughter might have given inconsistent evidence on when the Mother told her a joint tenancy has been created over the Property^[58], but her evidence on the Mother’s said intention remain unshaken.  I have no reason to doubt the 2^nd Daughter’s evidence.

255.Apart from the above, should there be no mentioning of such intention by the Mother after 2003 to her daughters, it is peculiar that none of her other daughters, especially the 3^rd Daughter whom was furious with the Will, has stepped forward and gave evidence in support of the Mother.  They stand to lose their shares in the Property. 

256.Furthermore, one must not overlook the similarity in the end results of the Will and the joint tenancy created by the Form and the Assignment.  Both arrangements aimed at protecting the Mother’s ownership over the Property during her life time, and passing the same to the Son upon her death.  And under both arrangements, the ownership of the Property would remain solely with the Mother should the Son meets his end before hers. 

257.For these reasons, I find that the Mother intended to assign the Property from the Mother’s sole name to the joint name of herself and the Son under joint tenancy.  I believe that the process in 2010 was initiated by the Mother as described by the Son, and she voluntarily signed the Form to start it.  I also find that such intention came to fruition when the Housing Authority gave its approval upon filing of the Form, leading to the eventual execution of the Assignment.

Whether the Mother had signed and executed the Form and the Assignment under the alleged actual undue influence of the Son?

258.In light of my observations and findings above, discussions on the remaining three issues are perhaps academic.  Nonetheless, assuming that I were wrong, and for completeness sake, I will provide my judgment on them in turn below.

259.For actual undue influence, the legal burden of proof is on the Mother.  As I have reproduced in § 203 above, there are a number of matters that she has to show. 

260.First, she must show that the Son had the capacity to influence her.  I am not convinced about this.

261.The Mother’s own evidence revealed that she was not reliant on the Son.  She repeatedly denied the Son having shouldered the household expenses, especially at the times when he was not residing with her.  The Mother, with a look of disdain on her face when answering Mr Chu’s question, dismissed the Son’s payment of HK$1,000 could be regarded as a form of contribution.  Not only did she described herself as financially independent, there is also no evidence that she required care and assistance from the Son on her daily living and household chores.  In fact, for the 7 years after she dislodged the Son and his family from the Property in 2004 (when she was about 69 years old), she was capable of taking care of herself without the aid of a domestic helper.

262.In addition, the Mother admitted under cross-examination that she evicted the Son and his family from the Property in 2004.^[59]  Hence, it is questionable whether the Son had the capacity to influence the Mother.  If so, it begs the question as to why she was able to dislodge the Son and his family from the Property in 2004, and that the Son had done so with no reported clash with the Mother.  I do not see there was any shared desire on the part of the Son to leave the Property (save Ms Liu’s discontent with the Mother’s habit of playing mah-jong), after having spent HK$300,000 on renovating the Property shortly before the eviction.  This incident not only sheds light on the lack of influence or ascendency that the Son had on the Mother, it could instead be seen as the Mother having dominance over the Son at the material time.

263.Furthermore, the Mother had again tried to evict the Son and his family from the Property in or before 2016, as she had said in § 37 of her witness statement, although on this occasion the Son allegedly refused to back down.  Regardless of its result, this is another example where the Mother tried to assert her dominance over the Son.

264.I am not convinced that the Mother depended on the Son to explain contents of documents to her.  As per her own evidence, whenever she received any utility bills and she could not understand the contents of the same, she would make inquiry with her neighbours and even shopkeepers.  She also sought explanation of the contents of the Receipt from her 4^th Daughter, claiming that the Son travelled frequently and was not always around.  Apart from these, there is no evidence that, from 2004 to 2011, a span of 7 years when the Son lived apart from her (and resided at the Shenzhen Flat between 2004 and 2006), she would only rely on the Son to explain contents of documents (aside from the Form and the Assignment) to the Mother.

265.It is portrayed by the Mother that she was almost illiterate, and innocent as to all procedures in property transfer so much so that she did not know the contents and effects of the Form and the Assignment.  However, it is also her case that the Property was purchased in 1984 by herself, and she alone arranged for the mortgage even without the aid from a solicitor.  Although the 1984 Assignment and the Mortgage Document were evidently prepared by solicitors, there is nothing to challenge the Mother’s evidence that she was responsible for all the arrangements leading to the acquisition of the Property in 1984.  It is conceivable that, when doing so, she would have to choose the mortgagee, check the interest rate and the amount of monthly instalments payable, the deadline for each monthly repayment, execute the 1984 Assignment and the Mortgage Document, execute any necessary documents with the Housing Authority and so on. I am unable to accept that the Mother is as ignorant and helpless as she portrays herself to be.  Conversely, it would take a person with a clear mind to make all these informed decisions for herself and her family.

266.At the trial, the Mother was up to her old tricks by claiming at one point that she did not know the contents of the 1984 Assignment and no one had explained the same to her.  She simply signed on it without question.^[60]  I do not accept this.  Not only is this evidence self-contradictory, such assertion is simply incredible.  She initiated the acquisition, and surely she would ensure that the flat she purchased and the price she had to pay for it were the same as she had agreed to.  This, in my view, is another example of overcompensation, with the Mother predicting correctly on the possible adverse ramification of a piece of information to her case, but failed miserably in her attempt to undermine it.

267.For the above reasons, I find that the Son had no capacity to influence the Mother.  I also find that the Son acquired no ascendency or domination over the Mother.  It follows that there was no influence that he could exercise to make the Mother execute the Form and the Assignment, hence it is unnecessary to consider whether its exercise was undue.  With the intention to transfer the Property to the joint names of herself and the Son, the Mother’s free will was not impaired but was actually materialised at the time when the Form and the Assignment were executed.  In the circumstances, discussion on the failure of the Son to point out to the Mother that the transaction was not to her advantage and ensuring that she took proper independent advice is simply not engaged.  Come what may, there is no proper foundation of primary facts for me to hold that there was unconscionability so that the transaction could be set aside.

Whether the Mother had signed and executed the Form and the Assignment under the alleged presumed undue influence of the Son?

268.Based on my findings that the Son acquired neither ascendency nor domination over the Mother, and the lack of trust and confidence reposed on the Son by the Mother, the pre-requisite for establishing presumed undue influence is not satisfied.  I shall add that there is nothing to suggest that the Son was an adviser of the Mother.  Equally, he was not entrusted with the management of her affairs or everyday needs for the 7 years between 2004 and 2011 whilst they were living apart, in particular, in and before 2010 when the Form and the Assignment were signed.  Despite her limited literacy and her age, the Mother is not a vulnerable person whom could be exploited.  As illustrated in the above, she is a strong-willed person capable of independent thoughts.  I find that a case of presumed undue influence under Class 2B is not established.  As such, Mr Leung’s complaints regarding the absence of Amy, Ms Leung and the staff from the Lok Wah Office as witnesses in this case, and the lack of independent legal advice given to the Mother, warrant no further consideration.

Whether the Form and the Agreement shall be set aside on the ground of non est factum?

269.Also based on my findings above, in particular §257 of this judgment, the Mother’s claim based on such plea is bound to fail, even if she was unable to understand all the words in the Form and the Assignment.

Whether the Mother signed and executed the Form and the Assignment under the misrepresentation of the Son and Ms Liu?

270.Likewise, based on my findings above, the Mother’s claim based on misrepresentation is bound to fail.

Summary

271.My findings on each issue are largely based on the Mother’s own case, her evidence, and her behaviour in court.  Her case so inherently improbable, illogical, and overflow with flaws that the burden of proof imposed on her as the plaintiff is simply not discharged.

272.Before I close the book on this, I will briefly give my views on the Letter, although authenticity of the same, which is contested by the Mother, will bring no change to my judgment. First, the Chinese phrases used in the Letter was a topic that Mr Leung expended much time and effort in his submissions, principally to argue that they could not have come from the Mother as she simply did not understand them. I agree.  However, the Chinese phrases could have been added by the writer, who used them to spruce up the messages that the Mother wished to convey.  Equally, the phrase of “一視同仁” which appeared in her witness statement is also allegedly unknown to the Mother.  Pausing here, I doubt her allegation that she does not understand the meanings of “一視同仁” and “一家團聚”.  These are simple phrases uttered by local people all the time.  Second, the Mother’s allegation that the Letter should be handwritten never appeared in her witness statement.  It was added only at trial.  The shape of the paper used for the Letter, and the font size etcetera, came even later during cross-examination.  Apart from my suspicions that they are recent creations, these assertions are actually contrary to her evidence at trial.  The Mother said she did not see the writer writing the Letter, and the finished product was not shown to her.  The Letter was sealed inside the envelop until Ms Liu opened it during the Meeting.  In the circumstances, how she could tell the shape and thickness of the paper, fonts of the words, and that the Letter was handwritten, is beyond me.  The best that the Mother could say was that there was no computer placed on the writer’s table.  But if the writer wrote the Letter on the table and in front of the Mother, it is most singular for her to say she did not see him doing so. Finally, the Mother said she did not mention about the joint tenancy of the Property in the Letter, as there was no reason to divulge to a stranger her family issues. Oddly, the Letter was created exactly for resolving an issue within the family.

CONCLUSION

273.Based on the observations I have made, and my findings on the issues, the Mother’s claim is dismissed.

274.I also make an order nisi that the Mother shall pay the Son’s costs of this action, including all costs previously reserved, and such costs to be taxed if not agreed, with certificate for counsel.  The Mother’s own costs be taxed in accordance with the Legal Aid Regulations.  Such order will become absolute in the absence of any application to vary the same within 14 days from the date of handing down of this judgment.

275.Lastly, I thank counsel for their assistance.

Mr Adrian Leung, instructed by Liu, Chan & Lam, assigned by the Director of Legal Aid, for the plaintiff

Mr Chu Wai Kei, instructed by Yip & Co, for the defendant