Wong Yuk Tung v. Wong Po Ling and Another
Read the full judgment text of HCA 899/2012 on BabelCite. This High Court CFI judgment was delivered on 29 July 2022.
1. After a 5-day trial, Recorder Lisa KY Wong SC (as she then was) handed down a judgment dated 30 September 2016 (“ the Judgment ”) by which Mr Wong obtained judgment on his claim, among other things, that Madam Wong (“ Clara ”) should account for the sale proceeds of a flat and a car park (defined as “the Kam Fai Properties” in the Judgment) and that Clara and Wonggenos Enterprises Company Limited (“ the Company ”) should account for the sale proceeds of another flat (defined as “St Louis Flat
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HCA 899/2012 [2022] HKCFI 2351 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 899 OF 2012 _______________ BETWEEN
_______________ Before: Master Kent Yee in Chambers (Open to Public) Dates of Hearing: 16, 17 May and 2 June 2022 Date of Judgment: 29 July 2022 ___________________ J U D G M E N T __________________ Introduction 1.After a 5-day trial, Recorder Lisa KY Wong SC (as she then was) handed down a judgment dated 30 September 2016 (“the Judgment”) by which Mr Wong obtained judgment on his claim, among other things, that Madam Wong (“Clara”) should account for the sale proceeds of a flat and a car park (defined as “the Kam Fai Properties” in the Judgment) and that Clara and Wonggenos Enterprises Company Limited (“the Company”) should account for the sale proceeds of another flat (defined as “St Louis Flat 1D” in the Judgment). It was ordered in the Judgment that Clara and the Company should pay Mr Wong the sums found to be due on the taking of such accounts. 2.The learned Recorder concluded that Clara and the Company should make such accounts on the basis of an express common intention, agreement or understanding between Mr Wong and Clara that Mr Wong should remain the beneficial owner of the Kam Fai Properties and Clara held them on constructive trust for him. Hence, the learned Recorder held that Mr Wong is entitled to tracing and that Clara and the Company are constructive trustees holding those sale proceeds on trust for Mr Wong. 3.By the order of Lisa Wong J dated 27 June 2018 (“the Order”), the parties were given directions as to the filing of evidence and/or list of objections for the purpose of the accounts ordered in the Judgment and the accounts should be taken before a master. 4.Accordingly, this court took the accounts. In this document, I shall adopt the abbreviations and definitions used in the Judgment unless otherwise stated. I shall also refer to the Judgment for the background facts and procedural history of this matter. Preliminary matters 5.Before resolving the substantive issues, I have to deal with some housekeeping matters. First, Clara is the sole shareholder and director of the Company and both Clara and the Company are not legally represented. Clara has not obtained any leave from the Registrar to represent the Company. Strictly speaking, the Company should be treated as being absent. Since practically Clara and the Company share the same position in this matter, the absence of the Company does not make any real difference. And Mr Miu, counsel for Mr Wong, does not take any issue with Clara speaking on behalf of the Company as well. 6.Secondly, both parties filed further evidence after the close of evidence pursuant to the Order before this hearing. I grant leave for all such evidence to be admitted with the consent of the parties. 7.Mr Wong himself has not filed any affirmation. Mr Lam, who is the handling solicitor acting for Mr Wong, has made two affirmations on his behalf. Mr Miu indicated to this court that Lam would not testify and be cross-examined by Clara at the hearing. 8.Thirdly, Mr Miu indicated that the application that the Company do execute an assignment of all its rights and interests in St Louis Flat 25C to Mr Wong is no longer pursued for the time being despite Mr Wong’s entitlement under the Judgment. 9.At the outset, I have to make it clear that this court is bound by the factual findings of the learned Recorder in the Judgment. This is a really sad case in that Mr Wong sues Clara being one of his daughters and Clara is obviously very unhappy with those findings against her. Clara has actually exhausted the legal means to challenge such findings including appeals to the Court of Appeal. At the hearing, Clara spent most of the time in the witness box in passing comments on the findings in the Judgment. She did so in her written submissions as well. This is unhelpful and irrelevant. 10.Clara claims a number of sums which should be deducted from the Kam Fai Proceeds and among them, she makes a sizable claim generally for her remuneration in her accounts. She contends that she should be remunerated for being Mr Wong’s caretaker, agent, investment adviser and trustee taking care of the management of the relevant properties over the years. I should deal with this particular claim at the latter part of this judgment. 11.I should first indicate that I do not find Clara, the only live witness, to be a reliable witness. I am sceptical about the accuracy of the figures given by her unless they are supported by undisputed documentary evidence. For instance, Clara claims that the stamp duty payable for the acquisition of St Louis Flat 25C was HK$140,000 but this is flatly contradicted by the documentary evidence. She cannot explain why the amount of the actual stamp duty paid by the Company is doubled in her claim. The Kam Fai Proceeds 12.The Kam Fai Proceeds refer to the sale proceeds of the Kam Fai Properties consisting of the Kam Fai Flat and the Kam Fai Carpark. The former was registered in the joint names of Mother, Clara and Agnes and the latter was registered in the name of Karen. By two sets of Agreement for Sale and Purchase dated 4 December 2006 and an Assignment dated 10 January 2007, the Kam Fai Flat was sold at HK$7,900,000 and the Kam Fai Carpark was sold at HK$300,000.[1] The gross proceeds of sale stands at HK$8,200,000. 13.In taking the account of the Kam Fai Proceeds, I am tasked with the ascertainment of the net sale proceeds. To this end, I have to find out all the costs and expenses incurred both before and after the sale and those costs arising from the sale. I should also take into account all the income derived from the Kam Fai Properties including rental income and mortgage loans raised. 14.An amount of HK$82,000 as agency commission and an amount of HK$7,800 as solicitor’s fee were incurred in the sale of the Kam Fai Properties. These expenses are not in dispute and should be deducted from the gross proceeds of sale. 15.I now scrutinize the use of the Kam Fai Proceeds by Clara. 16.Out of the gross proceeds of sale, the evidence of Clara at trial was that she paid certain amounts to Mr Wong, Mother and her sisters.[2] The position of Mr Wong was that save the proper disbursements to Mother and her sisters, Clara received and retained the remaining net proceeds of sale of the Kam Fai Properties as his trustee or agent pending his instruction for reinvestment.[3] 17.For this account taking hearing, Clara in her affirmation stated that she paid AUD100,000 to Mother at her request, HK$200,000 to Karen, USD50,000 to Agnes for mortgage repayments and other expenses and AUD30,000 to her other sisters in Australia. 18.Clara is able to produce a copy of the cheque issued to Karen dated 15 January 2007 in the amount of HK$ 200,000 and another cheque of the same date issued to Karen in the amount of HK$ 616,108 for Mother. Clara also produced a remittance to her bank account in Australia in the amount of AUD 20,000, which she said was to be paid to Mr Wong for his Europe trip. 19.Clara says her payments to other sisters was made in cash when she visited them in Australia and she did not ask them to give her a receipt. 20.Mr Miu did not seriously challenge these payments by way of cross-examination of Clara. In his written closing submissions, Mr Miu only accepts that Clara paid to Mother a sum of AUD100,000 (HK$616,000) and her sisters an aggregate sum of AUD30,000 (HK$184,800) and paid for his trip to Europe in the sum of HK$123,200.00. Mr Wong accepts that these amounts should also be deducted from the gross proceeds of sale. 21.I accept Mr Wong’s concession relating to Clara’s financial contribution to his Europe trip in the sum of HK$123,200 and her payment made to her sisters in the sum of HK$184,800 despite the lack of documentary proof. I also accept Clara’s payment to Mother. 22.However, the payment to Karen calls for separate consideration. According to Clara, the payment was in fact for Karen’s contribution to mortgage repayment which was an expense incurred before the sale of the Kam Fai Properties. I shall deal with it later. 23.On the other hand, I cannot accept Clara’s alleged payment to Agnes. In her 4th affirmation, she alleged that she had paid USD50,000 to Agnes for mortgage repayments and other expense. However, her evidence at trial was that she had paid Agnes about USD80,000[4]. Clara did not explain why she now claims a lesser sum and on what basis she now arrives at a different figure. Also, there is no reason why she could not produce any documentary proof of her payment of USD50,000. At least she should ask Agnes to give her a receipt or a note acknowledging such a payment. 24.The learned Recorder stated that she was prepared to accept that both Agnes and Clara must have over the years made some contribution to the repayment of the mortgage loan.[5] It is more probable than not that Clara had made some repayments to Agnes for her contribution. Clara has the burden to prove the exact amount paid and she has failed to discharge the burden. 25.However, as with the repayment made to Karen, any repayment made to Agnes is irrelevant for the present purposes, as will be explained below. 26.Thus, the total deduction allowed is: HK$(616,108 + 184,800 + 123,200) = HK$924,108. 27.The parties are in agreement that the Kam Fai Proceeds were applied to fund the acquisition of three flats in the same buildings, namely, St Louis Flats 25C, 1D and 24A. The Company became the registered owner of St Louis Flats 25C and 1D in March 2007 whereas Clara acquired St Louis Flat 24A in her sole name in February 2007. 28.As stated in the Judgment, the Company sold St Louis Flat 1D in January 2011 for HK$4,380,000[6]. On the other hand, according to its land search record, Clara sold St Louis Flat 24A in January 2021 at the price of HK$6,900,000, reaping a gross profit of HK$4 million. 29.Clara produced the relevant documents prepared by Messrs. Au Yeung, Cheng, Ho & Tin (“AYCHT”), the handling solicitors acting for the Company and Clara in these transactions. 30.Mr Wong accepts the information gleaned from those documents. For St Louis Flat 25C, the downpayment (35% of the purchase price of HK$3,250,000), stamp duty and solicitors’ fees were HK$1,137,500.00, HK$70,000 and HK$6,000 respectively. He also accepts the agent’s commission to be HK$32,500 being 1% of the purchase price. The total amount agreed by Mr Wong is HK$1,246,000.00. 31.On the other hand, Clara claims that renovation costs in the sum of HK$100,000 was incurred upon acquisition of St Louis Flat 25C. She provides no documentary proof and I cannot accept her claim merely based on her assertion. 32.Similarly, for St Louis Flat 1D, the downpayment, stamp duty and solicitors’ fees were HK$920,500 (35% of the purchase price of HK$2,630,000), HK$39,450 and HK$6,000 respectively. Mr Wong accepts the agent’s commission to be HK$26,300 being 1% of the purchase price. The total amount agreed by Mr Wong is HK$992,250.00. 33.For St Louis Flat 24A, the downpayment, stamp duty and solicitors’ fees were HK$1,015,000.00 (35% of the purchase price of HK$2,900,000), HK$43,500 and HK$6,000 respectively. Mr Wong accepts the agent’s commission to be HK$29,000 being 1% of the purchase price. The total amount agreed by Mr Wong is HK$1,093,500.00. 34.In the Judgment, the learned Recorder observed that Clara was rewarded the downpayment on St Louis Flat 24A by Mr Wong.[7] There is no further elaboration on this matter. It is not known whether Mr Wong agreed to pay the associated expenses arising from the acquisition of St Louis Flat 24A. He has adduced no evidence in this regard. 35.In her affirmation, Clara demands Mr Wong to pay the remaining 65% of the purchase price of saying only a 35% downpayment was drawn from the Kam Fai Proceeds. I do not understand the basis of her demand but in any event it is never her case that Mr Wong has ever agreed to reimburse her the associated expenses. 36.Therefore, on the available evidence, I conclude that only the 30% downpayment, i.e., HK$1,015,000.00 is deductible. 37.Now I turn to the income and the outgoings from inception to the completion of the sale of the Kam Fai Properties. 38.Both parties start at the SPC Loan in the sum of HK$2,000,000. The Kam Fai Properties were mortgaged to SPC to secure the SPC Loan in June 1997. 39.It is not in dispute that out of the sum of HK$2 million, a sum of HK$1,008,655.74 was deposited into the account of Fullwin. Clara discloses, and now Mr Wong accepts, that another sum of HK$754,423.13 was used to discharge the Second Mortgage owed by Fullwin. 40.Thus, there was a balance of the SPC Loan in the sum of HK$236,921.13 retained by Clara. 41.Clara contends that the SPC Loan should be treated as a personal loan she extended to Mr Wong and she further claims interest at the rate of 8% per annum. This is not the finding of the learned Recorder and I reject her contention. 42.The SPC Mortgage was redeemed by repayment made possible with the GE Loan secured by the GE Charge dated 11 May 2001. Clara does not provide any figure for the total amount of mortgage payments purportedly made by her and her sisters. What she has disclosed are three pages of payment records issued by AIG (formerly known as SPC) exhibited as “ST-1” but they only cover 21 April 1998 to 21 March 2001. There should be another payment record covering the first 11 instalments. 43.Doing the best he can, Mr Miu suggests to take the average of the 1st instalment and the 12th instalment to be multiplied by 11 to work out the estimated payment for the first 11 instalments. I accept his suggestion. There is no other way to find out the actual amount of the first 11 instalments. 44.On this evidence and by this calculation, the total amount of mortgage instalments paid to SPC/AIG is HK$1,369,935.60. 45.As regards the GE Loan, it was followed shortly by the grant of the GE Facility by GE to Agnes and Clara and the GE Facility was secured by the Kam Fai Flat. With effect from 1 August 2003, the GE Loan (then standing at HK$1,034,181.58) and the GE Facility were consolidated and converted into a single loan of HK$1,518,291.15, i.e. the New GE Loan. 46.I agree with Mr Miu that the GE Facility was for the personal purpose of Agnes and Clara and Mr Wong should only be held responsible for a part of the GE New Loan. I also agree with his apportionment of Mr Wong’s liability to pay the mortgage payments: the balance of the GE Loan/the New GE Loan, i.e. 1,034,181.58/1,518,291.15 = 68.11%. 47.According to the Statement of Account prepared by AYCHT for the sale transaction of the Kam Fai Flat, the redemption money for the New GE Loan is HK$846,119.02. Mr Wong should only be liable to pay 68.11% of the same, i.e., HK$576,291.66 and this should be deductible. 48.For the mortgage repayments made to GE over the years, Clara is not able to tell the total amount. She asserts that the monthly payment was HK$8,960.20 but this is again contradicted by the payment schedule issued by GE. 49.On the materials available, Mr Miu helpfully points out that the total amount paid under the GE Loan should be HK$329,326.89 and the total amount paid under the New GE Loan should be HK$881,652.87. The former amount can be deducted whereas only 68.11% of the latter amount, i.e., HK$600,493.77 can be deducted as explained above. 50.It should be noted that these deductions regarding mortgage repayments are made on the basis that Clara with the assistance of the sisters made all such mortgage repayments with her own fund. Thus, it does not matter how much she subsequently repaid Karen and/or Agnes for their past contributions and those reimbursements should not be taken into account again. 51.As found by the learned Recorder, the Kam Fai Flat was rented out and generated rental income since September 1998. Such income was collected and kept by Clara and Clara applied the same to make the mortgage repayments.[8] 52.Clara disclosed in her 5th Affirmation that the Kam Fai Flat yielded a monthly rent of HK$21,500 for 24 months and a monthly rent of HK$25,000 for 12 months. Clara then resided at the Kam Fai Flat for about 64 months. The total rental income should be HK$816,000. Mr Wong accepts this figure without demur. This sum obtained by Clara should be set off against the mortgage repayments. 53.Clara claims several expenses of the Kam Fai Flat. She alleges that she paid the monthly management fees of HK$1,100 for 114 months. However, the tenancy agreement shows that it was the tenant who had to pay such management fees. Clara should also be responsible for such management fees when she occupied the Kam Fai Flat for her own purpose. 54.Clara further claims a total sum of HK$100,000 for the renovation, repair and maintenance of the Kam Fai Flat. She could not provide any breakdown and give any particulars. No receipt is produced. However, after the acquisition of the Kam Fai Flat, there were bound to be expenses incurred to make it tenantable and repair and maintenance costs over the years were unavoidable. I am prepared to accept this amount to be deductible. 55.Clara claims HK$10,000 as reinstatement costs of the Kam Fai Carpark in her 4th Affirmation whereas she claims HK$9,300 for the same costs in her 5th Affirmation. She refers to some documents to show the amount of the alleged costs (Exhibit ST-5) but I am unable to see how they can tell anything about the amount. She alleges that Mr Wong had a storeroom for his business erected on the Kam Fai Carpark and she had to demolish the storeroom and reinstate the carpark before it could be sold. 56.Clara disclosed the minutes of an owners’ meeting dated 23 August 2002. It was recorded that all the unauthorised structures at the car park would be handled in accordance with the Deed of Mutual Covenant and that the owner of the Kam Fai Carpark had promised to demolish the unauthorised structure. 57.It seems more likely than not that the storeroom was the unauthorised structure and it was demolished to comply with the Deed of Mutual Covenant in 2002, rather than with a view to the sale of the Kam Fai Carpark. 58.Whatever the reason why the storeroom was demolished is, the storeroom was for the personal use of Mr Wong and he should bear the costs of its demolition. Clara was not cross-examined on this item at all. I find the costs to be reasonably incurred and I allow the sum of HK$9,300 to be deducted from the sale proceeds too. 59.I can also see that Clara paid a sum of HK$4,400 to Messrs Philip Tsui & To on or about 9 December 2002 to settle their legal bill asking for HK$4,900. As stated in the legal bill, the charge was for their legal advice on the unauthorised structure erected on the Kam Fai Carpark. 60.I accept that Mr Wong should reimburse Clara the sum of HK$4,400. 61.In regard to Clara’s claim for government rates and rents allegedly paid by her from 1997 to December 2006, I am not convinced that she has made such payments. The government rates appear to have been borne by the tenants and there is no evidence that Clara has ever paid any government rents. 62.Mr Wong accepts that agency commission for rental in the sum of HK$10,750 and miscellaneous expense in the sum of HK$10,000 were incurred. I then allow these sums to be deducted. 63.I believe all the income and outgoings of the Kam Fat Properties. Now I turn to the St Louis Flat 1D Proceeds. The St Louis Flat 1D Proceeds 64.I have assessed the acquisition costs of St Louis Flat 1D at HK$992,250, which includes 30% of the purchase price as down payment. 65.When it was sold at HK$4,380,000, Mr Wong accepts that there was an outstanding mortgage to be discharged. Instead of producing direct evidence such as the bank statements and the statement of costs prepared by the solicitors handling the conveyance, Clara after the close of evidence sent to this court a copy of draft profits tax computation to show that the outstanding mortgage was HK$1,315,000.00. 66.Mr Miu does not believe that this is the correct figure but he accepts this for the present purpose. 67.Clara has not provided proof of the mortgage payments over the years. She agrees that St Louis Flat 1D was leased out and the rental income was used for servicing mortgage, government rates and miscellaneous expense. 68.Mr Miu asks this court to ignore any such mortgage payments. He refers this court to the audited account of the Company for the financial year ended 31 March 2012. The amount of HK$1,833,337 was recorded as “Gain on Disposal” representing the capital gain yielded on the sale of St Louis Flat 1D. The Retained Profits was recorded as HK$1,968,308 meaning there was a net profit of HK$134,971. 69.Mr Miu then submits that the rental income indeed was able to cover all expenses including mortgage loan interest. He submits that the only deductible items are agency commission of HK$43,800, solicitors fee of HK$7,000 and outstanding mortgage of HK$1,315,000. 70.I agree with his submissions. After deduction of the said three items, the net proceeds of sale stand at HK$3,014,200. 71.Clara argues that the annual accounting expense and audit charges of the Company should be borne by Mr Wong. She relies on Mr Wong’s allegation that she acquired the Company under his instruction as a vehicle for reinvestment and hence the Company held St Louis Flats 25C and 1D on trust for him. 72.I cannot accept her argument. Such charges have nothing to do with the sale transaction and the sale proceeds. Clara’s remuneration 73.Clara asks for a monthly fee of HK$45,000 or a grand sum of HK$12,780,000 from June 1997 to January 2021 for her various services rendered to Mr Wong. She is unable to explain the legal basis of this demand. She does not allege any promise of Mr Wong to pay such fees. 74.Mr Miu, very fairly, refers this court to the relevant passage in Halsbury’s Laws of England, 5th Edn. (2019) Vol.98 at §376:
75.Re Berkeley Applegate Ltd [1989] Ch. 32. There, Deputy Judge Edward Nugee Q.C. said (at p.50G to p.51B),
76.I bear in mind that such discretion should be sparingly exercised. I do not think I should exercise my discretion in the particular circumstances of the present case. 77.Mr Wong placed his trust and confidence in Clara because she is his daughter. But for Mr Wong’s delegation to her the management of his properties and investment matters, Clara could not have secured the GE Facilities for her own business and resided at the Kam Fai Flat for more than 5 years free of charge. In addition, she would not have been rewarded the downpayment for the purchase of St Louis 24A, which was eventually sold at a huge profit. 78.In my view, Clara has already been rewarded sufficiently for her time and effort in dealing with the properties for Mr Wong. I refuse to exercise my discretion to allow her any additional remuneration. Conclusion 79.In light of the foregoing findings and analysis, the accounts of the Kam Fai Proceeds and the St Louis Flat 1D Proceeds are as follows:
80.Pursuant to the Judgment, I order that Clara should pay Mr Wong HK$1,896,765.21 and that Clara and the Company should pay Mr Wong HK$3,014,200.00 within 28 days from the date of this order. 81.Interest on such sums should be allowed. Mr Miu refers to this court a decision of Master J Wong in Willwin Development (Asia) Company Limited and Anor. v Wei Xing [2020] HKCFI 407. There, the master ordered pre-judgment interest at the rate of 4% from the date of the writ until judgment and thereafter at judgment rate until full payment. 82.Mr Wong has taken much longer time to have the accounts completed after obtaining the Judgment. Yet, I should not lose sight of the various applications and appeals made by Clara in the wake of the Judgment and the delay should be partially attributable to them. 83.I agree with Mr Miu that I should adopt the same rate of 4% as pre-judgment interest rate from the date of the writ until this judgment and thereafter at judgment rate until full payment. I so order. 84.There is nothing to justify a departure from the general principle of costs following the event. I make an order nisi that Clara and the Company should forthwith pay Mr Wong his costs of the account taking, with certificate for counsel, to be taxed if not agreed. 85.I further order that Mr Wong’s own costs be taxed in accordance with the Legal Aid Regulations. 86.Lastly, I should Mr Miu for his fair and helpful submissions.
Mr Nelson Miu, instructed by Messrs. Cedric Yeung & Co and assigned by the Legal Aid Department, for the plaintiff The 1st defendant appeared in person The 2nd defendant, not represented, absent |
Cases cited in this judgment
Further hearings and rulings under HCA 899/2012