Chau Kai Chuen Philip v. Chow Ying, The Administratrix of the Estate of Chow Kai Bing, The Deceased

HCMP 916/2019

[2021] HKCFI 2780

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 916 OF 2019

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Before:  Hon K Yeung J in Chambers

Date of Hearing: 8 September 2021

Date of Decision:  8 September 2021

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DECISION

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1.By Originating Summons of 25 June 2019, the plaintiff claims to be the sole beneficial owner of a property held in the name of his late mother and late brother.

2.Lam Mei (the “Mother”) and Chow Sang were a couple.

3.They had 6 sons and 2 daughters.  The plaintiff is one of their sons, and the defendant one of their daughters.

4.In December 2000, the Mother and one of her sons (Chow Kai Bing, “Bing”) became the registered owners of a property at Rhythm Garden (the “Property”). They were joint tenants.  The Property was acquired under the Home Ownership Scheme.

5.The Mother passed away in 2002.  By virtue of his right of survivorship, Bing became the sole owner of the Property.

6.Bing passed away in 2004.  The defendant is the administratrix of Bing’s estate.

7.The plaintiff claims that he has been the only person making financial contributions towards the purchase of the Property. 

8.On the evidence adduced by him, I am satisfied that neither the Mother nor any of the plaintiff’s siblings had the financial means to contribute towards the purchase price of the Property.  The plaintiff has further produced some bank documents which support his case.  I do not have any basis or contrary evidence not to accept his evidence.

9.When the Originating Summons was first before me on 8 June 2020, I expressed concern as to whether the beneficiaries of Bing’s estate might have any interest in the Property.  They were not before the court, and had not apparently been consulted.

10.All the beneficiaries of Bing’s estate have since been consulted.  They have all in writing expressed consent to the plaintiff’s application.

11.I note that two of those beneficiaries are discharged bankrupts.  The views of the Official Receiver have been sought.  No competing claim has been lodged by the Official Receiver.

12.The defendant also consents to the application.

13.On the evidence before me, I am satisfied that the plaintiff is the sole beneficial owner of the Property under resulting trust.

14.I have considered the case of Cheuk Shu Yin v Yip So Wan (2012) 15 HKCFAR 344.  I am satisfied that the creation of equitable interest under a resulting trust is not contrary to the regime under the Home Ownership Scheme. The plaintiff was the Mother’s son and Bing’s brother.  As observed by Lord Hoffmann NPJ in Cheuk Shu Yin at §33,it is in the public interest that persons eligible for Home Ownership Scheme flats but were unable to pay the deposit or keep up the mortgage payments should be able to buy one with the assistance of their family or friends, on the basis that the latter would have beneficial interests which they could realize when the restriction period had expired.

15.In the circumstances, this Court:

(a)   grants a declaration that the plaintiff is the sole beneficial owner of the Property;

(b)   grants a further declaration that the defendant and the estate of Chow Kai Bing have been holding the Property on trust for the plaintiff;

(c)   the defendant do within 3 months assign and transfer the legal title of the Property to the plaintiff or his nominee; and

(d)   there be no order as to costs.

Mr Ross M Y Yuen, instructed by Jimmie K S Wong & Partners, for the Plaintiff

C&Y Lawyers, for the Defendant, was excused from attendance