Law Kim, By the Next Friend Official Solicitor v. Luk Yik Biu and Another

DCCJ 4111/2019

[2022] HKDC 878

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4111 OF 2019

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BETWEEN

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Before: His Honour Judge Jonathan Wong in Court

Date of Hearing: 20-24, 28 & 31 December 2021

Date of Judgment: 2 September 2022

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JUDGMENT

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1.Introduction

1.1These proceedings are concerned with a dispute between family members over the beneficial ownership of a property at Flat A, 9^th Floor, Lai Chi Court, Nos 338-342, Lai Chi Kok Road, Kowloon, Hong Kong (“Property”).

1.2The plaintiff and her husband (now deceased) (“Father”) have five sons. The 1^st defendant is the 3^rd son and the 2^nd defendant is his wife.

1.3The plaintiff was previously the registered owner of the Property. By an assignment dated 7 November 1989 (“Assignment”), the Property was assigned to the defendants. It is the plaintiff’s case that, despite the Assignment, the Property was held on trust by the defendants initially for the plaintiff and Father and for the plaintiff solely following Father’s demise.

1.4The plaintiff’s case is based on common intention constructive trust, or alternatively resulting trust. She seeks a declaration to that effect, and also an account of all the earnings derived from the Property. The foregoing is disputed by the defendants.

1.5Conversely, it is the defendants’ case that the Assignment was executed pursuant to an agreement between them and the plaintiff, by which the Property was sold by the plaintiff to them at a consideration of HKD 450,000. Further, the defendants argue that the plaintiff is barred from claiming any relief by reason of acquiescence and/or laches.[1]

1.6At the trial, the plaintiff and the defendants were represented respectively by Ms Josephine Tjia and Mr Jackson Poon, both of counsel.

2.The plaintiff’s summons dated 24 November 2021

2.1Before I address the substantive issues, I should first deal with an application which was heard and determined at the beginning of the trial.

2.2At the pre-trial review on 19 November 2021, HHJ MK Liu granted leave to the plaintiff to issue a summons for leave to adduce additional documents, which summons was directed to be heard and determined at the beginning of the trial.

2.3On 24 November 2021, the plaintiff issued a summons for leave to file and serve a supplemental list of documents and to adduce the documents enumerated therein as evidence at the trial (“Summons”).

2.4The documents enumerated in the supplemental list of documents are (1) two affirmations of the plaintiff respectively dated 13 January and 29 September 2020 (“Affirmations”), (2) a copy medical note prepared by Dr SY Yip (“Medical Note”), and (3) a declaration made by Mr Luk Yik Tak (“5^th Son”) on 18 October 2016 enclosed under the cover letter from Messrs Fung, Law & Ng to the Registrar of High Court filed under LAA No 602 of 2016 (“Declaration”).

2.5I refused the plaintiff’s application in respect of the Declaration but otherwise allowed the application. I also ordered that the costs of the application be paid by the plaintiff to the defendants in any event, with a certificate for counsel and that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

2.6In this section, I set out the reasons for my decision on the Summons.

2.7The plaintiff was born in 1931. In 2014, she was diagnosed as suffering from mild to moderate dementia.

2.8This action was commenced in June 2017. The plaintiff was examined by Dr Gabriel Hung Bing Kei (“Dr Hung”), a specialist in psychiatry engaged by the plaintiff’s solicitors, on 14 May 2018. According to Dr Hung’s report dated 16 May 2018, he maintained his opinion formed in July 2017 (ie around the commencement of these proceedings) that the plaintiff had capacity to manage her litigation and that she was capable of instructing her legal representatives.

2.9Dr Hung’s report was provided to the defendants’ solicitors on 27 August 2018. The defendants’ solicitors replied and suggested that the plaintiff should be subject to a joint examination by the parties’ appointed experts.

2.10Eventually, the plaintiff was examined by Dr Hung and Dr Wong Yee Him (engaged by the defendants) (“Dr Wong”) on 19 January 2021. In the meantime, the plaintiff had made her witness statement dated 24 December 2019 and supplemental witness statement dated 8 May 2020. The contents of the Affirmations are essentially the same as those contained in the plaintiff’s witness statements.

2.11In the joint report of Dr Hung and Dr Wong dated 8 February 2021, both doctors agreed that the plaintiff had become a mentally incapacitated person but disagreed on whether she was capable of giving evidence in court.

2.12Thereafter, in May 2021, the Official Solicitor gave her consent to act as next friend.

2.13At the pre-trial review, the plaintiff’s then intention, in reliance on Dr Hung’s opinion, was to give evidence at the trial. Her ability to do so was challenged by the defendants. HHJ MK Liu ordered that, unless the trial judge directed otherwise, the witness statements, except those of the plaintiff, would stand as evidence-in-chief.

2.14On the first day of the trial, Ms Tjia accepted that the plaintiff was no longer mentally capable to give evidence. The Summons was therefore argued on that basis.

2.15Mr Poon opposed the Summons on the following grounds.

(1) He took an overarching point that the Summons was a late application.

(2) In respect of the Affirmations, he said that the plaintiff did not adduce sufficient evidence that she had the requisite mental capacity when making the Affirmations, and further that the plaintiff should have made an application under RDC Order 39, rule 1 for the plaintiff to be tested by cross-examination earlier: Ko Nga Chun v Companhia de Desenvol Vimento Wu San Limitada & Anor [2018] HKCFI 1134 §20.

(3) As regards the Declaration, he submitted that its content was already covered in the witness statements of the plaintiff’s other witnesses and as the 5^th Son did not file a witness statement, there was no justification for its inclusion.

2.16I agree with Mr Poon in respect of the Declaration for the reason set out at subparagraph (3) of the preceding paragraph but disagree with him as regards the Affirmations and Medical Note for the following reasons.

2.17First, as submitted by Ms Tjia, where a witness is prevented by his mental capacity from attending the trial to testify, the Court may upon considerations of all circumstances, admit the witness statements and/or affirmations made by that witness as hearsay evidence: Lily Cheung v Cheung Wai Kwok & Anor [2014] 6 HKC 155 §§53-66. In the present case, the plaintiff was the only person who could give an account of the circumstances surrounding the execution of the Assignment. In my view, the exclusion of the plaintiff’s evidence would be prejudicial to the interests of justice.

2.18Secondly, whilst it is true that the defendants would not have the opportunity of cross-examining the plaintiff on the contents of the Affirmations, as noted at Lily Cheung §63, it remains open to the defendants to refer to that fact in their submissions on the weight, if any, to be attached to the Affirmations.

2.19Thirdly, I do not accept that the plaintiff did not have the requisite mental capacity at the time of the making of the Affirmations, which was well before the joint examination by the two experts. Even according to Dr Wong, the defendants’ own expert, the plaintiff had retained her long-term memory, which was consistent with (1) the observations of Ms Cheung Man Kok, the plaintiff’s solicitor, made at the time of the preparation of the Affirmations and (2) the Medical Note.[2]

2.20Fourthly, the defendants cannot derive assistance from Ko Nga Chun. In that case, DHCJ To refused to allow in the hearsay statements in the circumstances where there was an attempt by the plaintiff in that case to prevent proper evaluation of its weight (§18) and there were palpable discrepancies between the hearsay statements and a confession statement to the police in the Mainland (§20). It was in that context that DHCJ To’s observations on RHC Order 39 were made. The facts of the present case are very different.

2.21Fifthly, I accept Ms Tjia’s submission that the Summons, whilst a late application, did not cause any or any sufficient prejudice as the Affirmations did not seek to introduce any new evidence. As stated above, any deprivation of the opportunity for cross-examination could be remedied by submissions on the weight to be attached to the Affirmations.

2.22Sixthly, even were I to refuse the Summons in respect of the Affirmations, the plaintiff may still rely on the plaintiff’s witness statements as hearsay evidence and practically the same arguments (as made by the parties in their closing submissions) will be canvassed. Whilst it may be said that the Affirmations are therefore otiose, Mr Poon did not argue against the Summons on that basis.

2.23For the above reasons, I made the order as set out at §2.5 above.

3.Background facts

3.1The main issues identified by the parties have been set out at §§1.4 and 1.5 above. It should be noted that in so far as the plaintiff’s case on common intention constructive trust is concerned, it is based on the second of the two situations identified at Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 3267 §§2.3 to 2.4, namely where there is no evidence to support a finding of an agreement or arrangement on the beneficial ownership of a property, the court may rely on the conduct of the parties both as the basis from which to infer a common intention on the beneficial ownership of the property and as the conduct relied on to give rise to a constructive trust.

3.2It is therefore necessary to canvass events over a lengthy period of time, essentially from the 1960s to the commencement of these proceedings in 2017. It is to be noted, however, that many of the “signpost” events are not in serious dispute between the parties. The factual disputes are concerned with the parties’ contrasting explanations as to why those signpost events occurred.

3.3In this section, I will endeavour to extract from the chronology those salient background events which are germane for the proper determination of the disputes between the parties. Unless otherwise stated, the matters stated in this section are not in dispute or in serious dispute. Indeed, the bulk of the events below are taken from the Agreed Chronology lodged by the parties.

3.4As stated at §1.2 above, Father and the plaintiff together have five sons. They were born between 1956 and 1964. In 1965, the entire family began residing in a public housing unit at Flat 9054, Block 23, Tung Tau Estate, Kowloon (“Matrimonial Home”). Father was a civil servant and the plaintiff worked as a cleaning lady at a branch of Hang Seng Bank earning about HKD 3,000 per month. The plaintiff’s working location was close to the Matrimonial Home.

3.5In 1978, the Property was acquired as the size of the Matrimonial Home was no longer sufficient to cater to the needs of the family. The defendants initially contended that the deposit was paid solely by the plaintiff, but the 1^st defendant accepted in cross-examination that it was illogical that that was the case and Mr Poon in closing did not seriously suggest otherwise. I find that the deposit was paid jointly by the plaintiff and Father.

3.6Although the decision to acquire the Property was made and the deposit paid by Father and the plaintiff, the Property was purchased in the name of the 1^st Son. It was accepted by the 1^st defendant that the arrangement was put in place as Father was the tenant of the Matrimonial Home, a public housing unit.

3.7Following its acquisition, Father and the 1^st and 2^nd Sons resided in the Property.

3.8The acquisition of the Property (at HKD 134,425) was financed by a mortgage and the repayments were made by the 1^st and 2^nd Sons. It was accepted by the 1^st defendant that the entire family regarded the repayment of the mortgage was out of filial duties and did not have to be repaid to the 1^st and 2^nd Sons and that the Property was managed by the 1^st and 2^nd Sons.

3.9In 1984, the 1^st Son got married and made an application for a public housing unit. As a result, a Deed of Gift was executed by the 1^st Son assigning the Property to the plaintiff. Despite the fact that the Property was assigned only to the plaintiff (for the same reason that the Property was initially purchased in the name of the 1^st Son[3]), I accept the plaintiff’s evidence that the Property was jointly owned by the plaintiff and Husband.

3.10In 1988, the 1^st Son and his wife moved out of the Property as they were allocated a public housing unit. The 1^st and 2^nd defendants got married and moved into the Property to live with Father. The plaintiff, however, was living in the Matrimonial Home due to its proximity to her workplace.

3.11In around July 1989, the 4^th and 5^th Sons moved to Macau. Following the departure of the 4^th and 5^th Sons from Hong Kong, Father moved back to the Matrimonial Home to live with the plaintiff.

3.12On 7 November 1989, the Assignment was executed. The parties disagree on the circumstances of, and those leading to, the execution of the Assignment and such disputes go to the core of the present proceedings. The parties’ respective cases are set out at later in this judgment.

3.13Also on 7 November 1989, the defendants obtained a mortgage loan in the sum of HKD 200,000 to finance the transaction. As stated at §1.5 above, the consideration stated in the Assignment was HKD 450,000 (“Consideration”).

3.14In May 1991, the defendants purchased another property in Tuen Mun and moved out of the Property (“Tuen Mun Property”). Thereafter, the plaintiff, at the request of the defendants moved into the Tuen Mun Property to take care of the defendants’ children.

3.15In mid 1992, the 4^th and 5^th Sons returned to Hong Kong from Macau. The 4^th Son moved into the Matrimonial Home whilst the 5^th Son into the Property. In 1993, the 5^th Son got married and his wife also moved into the Property. The 5^th Son lived in the Property without having to pay any rent.

3.16In 1995, the 5^th Son and his wife purchased their own property and moved out of the Property although the 5^th Son still occasionally resided at the Property himself.

3.17In 2000, the Matrimonial Home was demolished. Father and the 4^th Son purchased a property at “旺角海富苑海寧閣 15樓18室” (“Mongkok Property”). Father and the 4^th Son then moved into the Mongkok Property.

3.18In 2004, the 4^th Son moved out of the Mongkok Property to live with his wife in Hunghom.

3.19In 2005 (or 2008), the plaintiff moved out of the defendants’ Tuen Mun Property and moved into the Mongkok Property to live with Father.

3.20In 2010, the Property was rented out. The 1^st defendant had all along kept the rent generated and paid the outgoings and the mortgage repayments of the Property.

3.21In 2014, the plaintiff was diagnosed to be suffering from mild to moderate dementia. Father passed away on 7 August 2014.

3.22In August 2015, a family meeting was held at a restaurant in Yaumatei attended by all five sons and their wives and some of the plaintiff’s grandchildren. (“August 2015 Meeting”). The plaintiff, however, was not present at the August 2015 Meeting. It appears that it was at the August 2015 Meeting that the disputes over the Property first surfaced. It is unfortunate because, as accepted by the parties, the relationship between all family members was previously harmonious, and it was further agreed by the sons who gave evidence at the trial that the plaintiff was a very good mother. The parties’ conflicting cases on the August 2015 Meeting are dealt with below.

3.23In September 2015, another family meeting was held at the Mongkok Property (“September 2015 Meeting”). The 2^nd Son and his wife and the defendants did not attend the September 2015 Meeting.

3.24Thereafter, in a Whatsapp Group (which was formed well prior to the August 2015 Meeting) of which all 5 sons and their wives and some of the plaintiff’s grandchildren were members (“Family Whatsapp Group”), there were discussions (at times not the most cordial) over the ownership of the Property. The gist of the dispute was that the Property, despite the Assignment, was owned by the plaintiff but this was disputed by the 2^nd Son and the defendants.

3.25Importantly, on 8 December 2015, the 1^st defendant sent the following message to the Family Whatsapp Group (“December 2015 Message"):

「我不想老是大家兄弟的感情受到傷害所以希望大家可以俾五年時間我來補償這20多年對深水埗 (ie the Property) 所付出的費用的補償 五年後把深水埗交回大家

如有需要我哋會喺律師見證下承諾我哋由始至終沒有打算將深水埗賣出 是你哋的誤會 而且我哋冇騙麻麻 (ie the plaintiff) 而是麻麻信任我哋將物業交給我們保管打理

至於你哋提出的45 萬是因為向銀行借出貸款的200,000估算作為政府釐印費和律師費稅款的費用基準而我哋係沒有這450,000入戶口的收益請大家不要誤會

因此19號及往後的約會我哋是不會出席的」 (emphasis added)

3.26On 8 January 2016, the 4^th Son instructed a firm of solicitors to issue a letter to the defendants to notify them to attend a meeting on 23 January 2016 to be attended by the plaintiff and the other sons and their wives. A number of proposed solutions were set out in the letter, including (1) the unconditional return of the Property to the plaintiff, (2) the transfer of the interest in the Property to the other four sons such that the five of them would hold the Property in equal shares, or (3) the Property be sold and the net proceeds be distributed to the five sons in equal shares. The defendants did not attend the meeting.

3.27Following unmet demands made in June 2016 and March 2017 for the return of the Property to the plaintiff, the present proceedings were commenced in June 2017.

4.The parties’ respective cases

4.1It is the plaintiff’s case that she did not have any intention to transfer any legal or beneficial interest of the Property to the defendants by the Assignment.

4.2As to the circumstances of execution of the Assignment, it is the plaintiff’s case that on or about 7 November 1989 (ie the date of the Assignment), the 1^st defendant visited the plaintiff at the Matrimonial Home and asked her to put a cross on a document. The plaintiff was illiterate and, having complete faith in all her sons including the 1^st defendant, did not enquire what the nature of the document was. She understood the 1^st defendant’s request to be one to facilitate the 1^st defendant’s management the Property, similar to the previous arrangement when the Property was held under the name of the 1^st Son. It is further the plaintiff’s case that she did not receive any of the Consideration from the defendants.

4.3Conversely, the defendants’ case is as follows.

(1) Prior to 7 November 1989, the plaintiff had repeatedly requested the defendants to purchase the Property from her.

(2) It was subsequently agreed between the plaintiff and the defendants that the Property would be sold to the defendants at the Consideration.

(3) The Consideration was to be paid in the following manner:

(a) as to the HKD 200,000 obtained from the mortgage, instead of paying it to the plaintiff, the plaintiff had agreed that HKD 160,000 would be paid to the 1^st and 2^nd Sons (HKD 80,000 each) to compensate them for contributing to the purchase of the Property;

(b) as to the remainder of the mortgage loan (ie HKD 40,000), the plaintiff agreed that the defendants would be allowed to use it for the purpose of paying legal fees, stamp duty, repair and maintenance, household furniture and electric appliances for the Property;

(c) as to the remainder of the Consideration (ie HKD 250,000), it would be repaid by monthly instalments of HKD 2,500 without interest.

(4) The Assignment was executed at the offices of Messrs TS Tong & Co and the content was explained to the plaintiff by a law clerk, Mr Sin Wai Leung (“Mr Sin”).

(5) Following the execution of the Assignment, the Consideration was fully satisfied by the defendants.

4.4A general theme run by the defendants was that the plaintiff was manipulated principally by the 4^th Son to pursue these proceedings against them.

5.The evidence

5.1In terms of evidence, the plaintiff relied on the plaintiff’s Affirmations and the evidence of the 4^th Son. The 1^st Son had also prepared two witness statements in support of the plaintiff’s case but eventually did not come forward to give evidence at the trial. Both defendants gave evidence. In addition, they called the 2^nd Son and Mr Sin as their witnesses.

5.2In assessing the evidence in this case, three aspects merit mention.

5.3First, this is a case on credibility. I shall adopt the approach set out at Hui Cheung Fai & Anor v Daiwa Development Ltd & Ors, HCA 1734 of 2009, 8 April 2014 §§79-83. In essence, importance is attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of the events. It is further important to assess the consistency of the evidence of a witness with undisputed or indisputable evidence, and its internal consistency, namely by comparing the oral testimony and his witness statement(s).

5.4Secondly, in terms of the Affirmations, Mr Poon accepted that the burden is on the person who objects to a hearsay statement to establish incapacity of the witness at the time when the statements were made: Lau Kwai Ping Joyce, the Executrix of the estate of Tsang Fung Ying (deceased) v Fulland International Limited [2020] HKCFI 1501 §50. Mr Poon referred to Dr Wong’s observations that the plaintiff was first diagnosed with mild to moderate dementia in 2014, that the plaintiff’s condition was deteriorating since 2018 and that the plaintiff scored 11 out of 30 in the Mini Mental State Examination in January 2021. However, the fact remains that Dr Wong did not express any views on whether the plaintiff had the requisite mental capacity to make the Affirmations at the time of their making.

5.5Also relating to the Affirmations is the issue of admissibility and what weight ought to be placed on them. As set out at New Well Master Company Limited (formerly known as Well Master Company Limited) v Tidjan Ananto [2021] HKCFI 2953 §§37 and 106, the mere fact that a witness is mentally incapacitated at the time of the trial does not prevent the admission of his statements and the attachment of weight to such hearsay evidence. Further, as set out at New Well Master §§53 and 87-107 and Lau Kwai Ping Joyce §60-62, in assessing the weight of the hearsay evidence considerations should be given to sections 49(1) and (2) of the Evidence Ordinance Cap 8 and the totality of the evidence. The assessment of the hearsay evidence should be made against the other factual evidence.

5.6Thirdly, on the issue of whether adverse inference should be drawn (for example when the 1^st Son, despite having filed witness statements, did not come forward to give evidence at the trial), I adopt the approach summarized at Cheung Kwong Yuen v Sun Hui Fang, DCCJ 743 of 2016, 6 September 2017 §§27-29. In essence, where a person without explanation fails to call a witness who he might reasonably be expected to call, it is open to the court to infer that that person’s evidence would not have helped that party’s case. However, if the reason for a witness’ absence satisfies the court, no adverse inference should be drawn, or if there is some credible explanation, even if not wholly satisfactory, the potentially detrimental effect may be reduced or nullified.

5.7I now turn to summarize of the evidence of the witnesses. In a family dispute, as one might expect, emotive accusations and cross-accusations were made by the parties against each other. For example, accusations were made by the defendants and the 2^nd Son against the 4^th Son for not being filial to the plaintiff. They turned out to be unjustified on the evidence, and were not pursued by Mr Poon in closing. In the following summary, I will focus on those aspects of the evidence which are necessary to properly determine the factual disputes identified at Section 4 above.

5.8The following summary is to be read in conjunction with the undisputed or largely undisputed facts set out at Section 3 above.

5(a) The plaintiff

5.9The plaintiff gave the following evidence by the Affirmations.

5.10The plaintiff accepted that between 1989 and 2005, of her five sons, she was probably closest with the 1^st defendant.

5.11On 7 November 1989 when she was alone in the Matrimonial Home, the 1^st defendant handed over a piece of paper and said to the plaintiff 「亞媽， 你寫俾我啦！只要在上面打個交叉就得。」 At the time, she thought that she was entrusting the Property to the 1^st defendant to manage and she did as the 1^st defendant requested.

5.12In 1990, the plaintiff learnt from Father that the 2^nd defendant also became a registered owner of the Property. She had thought that that was similarly to facilitate the defendants’ management of the Property and therefore did not follow up the matter with the defendants.

5.13In about 1991, the plaintiff wanted to make some payments to the 1^st and 2^nd Sons for their contribution to the Property. At the time, she was living with the defendants at the Tuen Mun Property. As she did not have sufficient cash, she therefore suggested to the 1^st defendant to obtain a mortgage loan in the sum of HKD 200,000. She told the 1^st defendant that the sum of HKD 200,000 was to be paid HKD 80,000 each to the 1^st and 2^nd Sons and HKD 40,000 was to be kept by the 1^st defendant and that the 1^st defendant was to be responsible for the repayment of the mortgage.

5.14The plaintiff, however, did not know whether any mortgage was obtained or whether the 1^st and/or 2^nd Sons had been paid. She also did not know whether the Property was rented out, as the primary purpose of the Property was for the use of the family. Even if the Property were rented out, in the context of a family, she did not give particular thought to who should keep the rent (因為始終是一家人，不用分得那麼清楚).

5.15The plaintiff further said that she was not under any financial pressure, and had never complained if her sons did not maintain her financially. Whilst she was living with the defendants between 1991 to 2005, the 1^st defendant irregularly paid her some money (not fixed amounts), which she would use to purchase food for the defendants’ family. She categorically stated that those irregular payments were not monthly payments of HKD 2,500 in satisfaction of the Consideration as contended by the defendants.

5.16After the plaintiff moved back to the Mongkok Property to live with Father in 2005, they were financially sufficient and relied on the pension of Father (by then retired) and their savings.

5.17In September 2015, the plaintiff was told by the 4^th Son that he found out from the records at the Land Registry that the Property was, to her surprise, sold to the defendants at the Consideration in November 1989. She was adamant that she and Father had no intention to transfer any interest in the Property to the defendants and that she did not know about, and therefore did not agree with the defendants on the Consideration.

5.18In November 2015 (by reference to the Family Whatsapp Group), the plaintiff voluntarily went to live with the 4^th Son and his family, as she underwent two operations that year. She never refused any of her sons to visit her, except when she was told by the 4^th Son that the 2^nd Son and the 1^st defendant would like to meet her in the absence of other siblings, she declined to do so.

5(b) The 4^th Son

5.19The 4^th Son was the only witness called by the plaintiff at the trial.

5.20The 4^th Son became aware that the Property was registered under the name of the defendants in 1990 when he was told by the plaintiff and Father when they visited him in Macau.

5.21The 4^th Son said in viva voce evidence for the first time as follows.

(1) After he came back from Macau in 1992, he failed in his stock investments and lost all his savings. The plaintiff and Father helped him out financially. In 1996 or 1997, when the 4^th Son learned from the plaintiff that she wanted to pay HKD 80,000 to the 1^st Son for his contributions to the Property, the 4^th Son arranged for such payment as he felt indebted to the plaintiff. The plaintiff, however, did not request the 4^th Son to pay the 2^nd Son.

(2) In respect of the acquisition of the Mongkok Property in 2000, by that time, all of the other siblings had already purchased their own property. Father wanted to help the 4^th Son out and decided to jointly purchase the Mongkok Property with him. Father paid 2/3 of the deposit and the 4^th Son the remainder. The 4^th Son was also responsible for the mortgage repayments. At that time, he was working as a secondary school teacher.

(3) The 4^th Son got married in 2004 and moved out of the Property to live with his wife in her property in Aberdeen. The 4^th Son also quit his teaching job in and started a business with his wife. That business failed soon after and the 4^th Son was having difficulties to service the mortgage payments in respect of the Mongkok Property. Father, as a caring parent, decided to redeem the mortgage. In doing so, Father had never asked the 4^th Son to repay him. The 4^th Son, however, still paid for the expenses of the Mongkok Property.

5.22After Father’s demise in August 2014, in August 2015, the 1^st Son invited the siblings to take stock of the assets of Father and the plaintiff. This precipitated the August 2015 Meeting. At the meeting, when the Property was discussed, the defendants did not raise the issue that they had purchased the Property from the plaintiff. It was only towards of the end of the meeting that the 1^st defendant said cursorily that he had complied with all legal procedures and had nothing further to say (我已經做足法律程序，無嘢講).

5.23Although the 4^th Son said in his 2^nd witness statement that, at the August 2015 Meeting, the 1^st Son and the 2^nd Son did not acknowledge receipt of HKD 80,000 from the defendants, he became less sure in court. Whilst he maintained that the 1^st Son did not, he accepted in cross-examination that the 2^nd Son did so acknowledge but could not recall whether the 2^nd Son said that the sum was received shortly after the execution of the Assignment.

5.24After the August 2015 Meeting, in order to understand the 1^st defendant’s reference that the 1^st defendant had complied with all legal procedures, he went to the Land Registry to obtain information on the Property.

5.25At the September 2015 Meeting, attended by the plaintiff, the 1^st, 4^th and 5^th Sons and their wives, the 4^th Son explained to those attending that the Property had been sold by the plaintiff to the defendants at the Consideration. The plaintiff repeated many times that she had only intended to entrust the Property to the 1^st defendant for his management, did not have the intention to transfer any of the interest in the Property, did not discuss the Consideration, and did not receive the Consideration from the defendants.

5.26On 26 September 2016, a burial ceremony was held for Father. On that occasion, attended by all siblings and their wives, the 1^st defendant stated that the Property was valued at HKD 2,500,000 and he was entitled to HKD 500,000 (“2016 Proposal”).

5.27In 2018, the 4^th Son sold the Mongkok Property at HKD 6,000,000. He kept the net proceeds to himself, save that he distributed HKD 400,000 to each of the 1^st and 5^th Sons for helping in the plaintiff’s case. The 4^th Son also admitted that the instructions to the plaintiff’s solicitors mostly emanated from him.

5(c) The 1^st defendant

5.28The 1^st defendant said in his witness statements as follows.

(1) In 1989, he and his wife moved into the Property to live with the plaintiff. During that time, the plaintiff had on many occasions indicated that she wanted to transfer the Property to the defendants’ name. The defendants therefore suggested that they would purchase the Property for the Consideration.

(2) In October 1989, the defendants applied for a mortgage loan in the sum of HKD 200,000. The 1^st defendant also contacted Mr Sin and informed him that they intended to purchase the Property from the plaintiff.

(3) On an unspecified date in November 1989, the plaintiff told him that she wished to pay HKD 80,000 each to the 1^st and 2^nd Sons for their contributions to the Property.

(4) On 7 November 1989, the defendants (together with their new-born child) and the plaintiff attended the offices of Messrs TS Tong & Co and met Mr Sin. He explained to Mr Sin that the plaintiff was illiterate. Mr Sin therefore explained the Assignment to the plaintiff in detail. The plaintiff did not raise any query and she signed on the Assignment. After the execution of the Assignment, the defendants informed Mr Sin that the proceeds from the mortgage should be paid to the plaintiff (by cheque) and Mr Sin complied with the request.

(5) In December 1989, the 2^nd defendant, who was at the time working at a bank, opened a joint account for the plaintiff and Father into which the HKD 200,000 cheque was deposited. The sum was then transferred to his account. He then issued two cheques, each in the sum of HKD 80,000, to the 1^st and 2^nd Sons.

(6) In respect of the remainder of the Consideration (ie HKD 250,000), he paid HKD 2,500 in cash every month to the plaintiff. When his financial situation permitted, he would give extra to the plaintiff for family expenses. The remainder of the Consideration was fully settled in 1998, but even thereafter, he would on a monthly basis give money to the plaintiff.

(7) The 4^th Son could not have discovered that the Property was transferred to the defendants only after the demise of Father.

(8) At the August 2015 Meeting, both the 1^st and 2^nd Sons acknowledged that they had received HKD 80,000. However, the 1^st and 4^th Sons said that they wish to “overturn” (推翻) the Assignment as they wished to “share in the benefits of the Property” (分享該物業的利益). In fact, the 1^st Son’s wife said that had she known that receiving the HKD 80,000 would jeopardize her interest in the Property, she would not have taken it (早知收了八萬元，沒有了這層物業，我就不收了). The 1^st defendant and the 2^nd Son expressed disagreement with the foregoing.

(9) Following the August 2015 Meeting, the 1^st and 4^th Sons made unjustified accusations against the defendants in the Family Whatsapp Group and the 4^th Son and his wife constantly called the 2^nd defendant at her workplace which caused the 2^nd defendant to lose her job. This constant badgering took a toll on the health of not only the defendants but their children.

(10) As regards the December 2015 Message,[4] he sent it because he was under incessant attack by the 1^st and 4^th Sons and was worried about his family’s physical and mental health. When he sent it, he was extremely emotionally unstable (本人是在情緒極不穩定之下才發出那信息) and it was only meant to pacify the situation and did not represent the truth.

(11) On 23 January 2016, the 1^st and 4^th Sons made constant phone calls to his workplace. At noon, the 1^st and 4^th Sons even brought the plaintiff (in wheelchair) to his workplace which severely affected his work (嚴重影響本人的工作).

(12) He said that he was entrusted by Father with the title deeds of the Mongkok Property, but the 4^th Son somehow managed to sell the Mongkok Property in 2018 without the title deeds. He criticized the 4^th Son as being dishonest and unreliable.

(13) He believed that the plaintiff was being manipulated and portrayed the 1^st and 4^th Sons as not being filial to the plaintiff. He also suggested that after the plaintiff moved to live with the 4^th Son in 2015, he was denied access to the plaintiff when asked to meet her privately.

(14) He also explained that the delay for the plaintiff’s joint examination was due to the fault of the plaintiff’s solicitors.[5]

5.29In my view, the 1^st defendant’s evidence is unsatisfactory in many respects. His viva voce evidence contradicted many aspects of his written statements.

(1) He accepted in cross-examination that in 1989, the plaintiff was not living at the Property but at the Matrimonial Home. Therefore, where his written evidence stated that the plaintiff had repeatedly said at the Property that she wanted to transfer the Property to him and that he had discussed the Consideration with the plaintiff, it is not correct.

(2) It is common ground that the financial contributions made by the 1^st and 2^nd Sons in respect of the Property were out of filial duties (and the 1^st and 2^nd Sons resided at the Property following its acquisition) and did not have to be repaid. There was therefore no particular reason for the plaintiff to have repeatedly said in October or November 1989 that she would want to transfer the Property to the 1^st defendant in order to repay the 1^st and 2^nd Sons.

(3) In any event, the 1^st defendant accepted that at the relevant time, the defendants were not financially comfortable. If he truly purchased the Property, it is odd that the defendants purchased the Tuen Mun Property and moved out of the Property in 1991. Indeed, the 1^st defendant said for the first time in cross-examination that the defendants were only able to purchase the Tuen Mun Property because the 2^nd defendant won a lottery to enable them to make the deposit. I do not find this credible.

(4) Related to the preceding paragraph, it is also common ground that after the defendants “purchased” and moved out of the Property respectively in 1989 and 1991, the 5^th Son moved in and stayed there rent-free. The 1^st defendant explained that he allowed the 5^th Son to do so as they were siblings. As stated at §3.5 above, the Property was purchased to cater to the needs of the family. It is more likely than not that the 5^th Son stayed at the Property for that reason, and not the one proffered by the 1^st defendant. That the Property was for family use is also consistent with the fact that the 1^st defendant accepted that the Property was left vacant between 1999 to 2010 when it was rented out. He explained in cross-examination that he did so because he was involved in the management of the estate he would have to attend meetings which ran late into the evening and stay at the Property after the meetings. If the Property belonged to the defendants, one would have thought that they would wish to earn rental income from it and any rental income would surely more than pay for any transportation costs for him to return from the Property to his Tuen Mun Property.

(5) Although it is the 1^st defendant’s case that he paid the 1^st and 2^nd Sons shortly after December 1989,[6] the 2^nd Son (see below) gave evidence that he only received HKD 80,000 after 1997.

(6) As stated at §3.14 above, at the request of the defendants, the plaintiff moved to the Tuen Mun Property to take care of their children. The 1^st defendant accepted that the plaintiff had to quit her job as a cleaning lady earning HKD 3,000 per month and that he compensated her for doing so. However, in his written evidence, the 1^st defendant only paid HKD 2,500 to the plaintiff each month. He then changed his evidence in the cross-examination by stating that he paid the plaintiff HKD 5,000 a month. However, even then, the alleged monthly payment was less than HKD 5,500. It was only in re-examination that he paid HKD 5,000 plus some extra money to the plaintiff every month. I do not find his evidence at all convincing.

(7) As regards the August 2015 Meeting, he accepted in cross-examination, in contrast to his written evidence,[7] that he could not recall whether the HKD 80,000 issue was mentioned. He further accepted that he did not give an account of the Assignment and only stated that he had complied with all legal procedures. I find the latter inexplicable. If the 1^st defendant’s case were true, there was no reason that he would not proffer a full (instead of a cryptic) explanation when confronted by the 1^st and 4^th Sons, especially when that was the first occasion when the issue arose.

(8) Relatedly, it is accepted by the 1^st defendant that after August 2015 Meeting, he never asked the plaintiff to explain the situation to the rest of the family members. When cross-examined by reference to the Family Whatsapp Group, the 1^st defendant accepted that the plaintiff wished to meet the defendants on 6 December 2015 (a Sunday) and 23 January 2016.[8] The defendants declined to attend on both occasions. If the Assignment was truly the plaintiff’s wish, one would have thought that the defendants would have been eager for the whole matter to be clarified by the plaintiff.

(9) Between the two requests for a meeting, the 1^st defendant sent the December 2015 Message. Two days after the 1^st defendant declined to attend the meeting on 6 December 2015, he sent the December 2015 Message at 9:37 pm on 8 December 2015.

(10) I do not accept the 1^st defendant’s evidence that he only sent the December 2015 Message for the reasons stated at §5.28(10) above. As a matter of chronology, on 5^th December 2015 at 4:37 pm, the 4^th Son’s wife sent a message to the Family Whatsapp Group to invite the defendants to a meeting on 6 December 2015. Four messages were sent by the 1^st Son’s wife at around 4:30 pm on 6 December 2015 culminating by a request sent on behalf of the 1^st, 4^th and 5^th Sons and their wives to the defendants not to dispose of the Property (懇請三哥和三嫂在會面之前，不能夠將深水埗荔枝角9樓A座置業變更，否則大家必追究到底). On 7^th December 2015 at 11:00 pm, the 1^st Son asked whether the 1^st defendant could attend a meeting on 19 December 2015 or suggest a convenient date. On 8 December 2015, the 2^nd Son sent a message at 9:01 pm stating that he felt that the recent events were troublesome. More than 30 mins later, the 1^st defendant sent the December 2015 Message.

(11) As can be seen, it cannot be said that the 1^st defendant was under incessant pressure from the 1^st and 4^th Sons. The messages were few and far between. The 1^st defendant could not recall whether he was otherwise contacted by the 4^th Son on 8 December 2015, but even if he was, it would have been in the morning. In my view, the 1^st defendant’s evidence that he was emotionally unstable is an exaggeration, and this is fortified by the fact that it was accepted by the 2^nd defendants that, in truth, she and their children were having health problems for reasons other than those relating to the Property (see below). Even accepting that the 1^st defendant was emotionally unstable after the sent the December 2015 Message, there was no valid reason why the erroneous position was not later clarified.

(12) As regards the events on 23 January 2016, the 1^st defendant’s written evidence is simply untrue.[9] The 1^st defendant accepted in his viva voce evidence that he left the office on 23 January 2016 at 11 am for work matters. It is therefore untrue that his work was affected by the plaintiff visiting his workplace.

(13) As stated at §2.10 above, the plaintiff’s joint examination by the psychiatrists was delayed from August 2018 to January 2021. The original appointment was rendered abortive because of a mistake made by the plaintiff’s solicitors. However, after the mistake was rectified, it is plain from the letters dated 4 December 2018 and 8 January 2019 from the defendants’ solicitors that it was their position to put the proposed joint examination “on ice”. However, it is not entirely clear what transpired between January 2019 and 19 January 2021 when the joint examination took place. Both Ms Tjia and Mr Poon in their closing submissions did not draw to my attention the relevant details. In any event, the issue of which party was responsible for the delay of the joint medical examination only has peripheral relevance to the resolution of the main issues of these proceedings.

(14) As regards his evidence that the plaintiff is being manipulated by the 4^th Son, it is premised, in part, on his evidence that the plaintiff did not voluntarily move to live with the 4^th Son. However, his evidence is not consistent with the records in the Family Whatsapp Group. The plaintiff underwent two operations in 2015 and her maid resigned voluntarily at the end of November 2015. On 25 November 2015, the 4^th Son’s wife sent a message to the Family Whatsapp Group informing the others that the plaintiff would move to live with the 4^th Son, along with a message that the 4^th Son and she would welcome other siblings to visit. No objection was raised by the defendants or the 2^nd Son. In fact, as shown in the Family Whatsapp Group, the 1^st defendant accepted that there were previous discussions in mid-November 2015 that the plaintiff should move in to live with the defendants, but the 1^st defendant indicated that it could only be a temporary arrangement until another maid[10] was hired to take care of the plaintiff.

5(d) The 2^nd defendant

5.30The 2^nd defendant’s written evidence is consistent with that of the 1^st defendants and is therefore likewise subject to the same criticisms. The 2^nd defendant gave additional evidence on her own and her children’s health conditions.

5.31In her written evidence, the 2^nd defendant said as follows.

(1) After the August 2015 Meeting, the 4^th Son and his wife constantly called her at work and that caused her to lose her job on 31 October 2015.

(2) The 1^st and 4^th Sons made repeated and unjustified attacks against the defendants which put the entire family under great distress (令我們一家人飽受困擾). This caused her health to deteriorate and she was hospitalized on 14 August 2016 for her stomach problems.

(3) The distress also had deleterious effect on the health of her children, causing them to be sent to hospital on several occasions for treatment.

5.32I do not find that 2^nd defendant’s evidence credible, for the following reasons.

(1) She accepted in cross-examination that she was diagnosed with stomach polyps and had an operation to removed them in May 2015, well before the disputes on the Property crystallized in August 2015. She then explained in viva voce evidence that her anxiety problems would affect her stomach problems which resurfaced in August 2016. However, there is no documentary evidence to support her assertion.

(2) She also accepted that she had already retired in 2013 and resumed work on a contract basis in January 2015. Instead of losing her job, she accepted in cross-examination that she simply did not renew her contract.

(3) As regards her children, she accepted that they were not in the Family Whatsapp Group and the 1^st and 4^th Sons did not contact them directly. It is therefore an exaggeration that the actions 1^st and 4^th Sons would have adversely affected her children.

(4) As regards her son, he was diabetic due to his obesity and she accepted that such condition was not caused by the disputes over the Property.

(5) As regards her daughter, she was suffering from seizures since 12 years old and had a history of poor compliance with her medications. She however unreasonably disagreed with Ms Tjia’s proposition that her daughter’s condition was not caused by the disputes over the Property.

5(e) The 2^nd Son

5.33The 2^nd Son accepted that he did not have direct knowledge on the execution of the Assignment, whether the defendants made payment to the defendants or the circumstances under which the 1^st defendant sent the December 2015 Message. I therefore do not find his evidence particularly helpful in the resolution of the issues. However, what is pertinent and clear from the 2^nd defendant’s evidence is that he accepted that he only received HKD 80,000 after 1997 and that the plaintiff had until 1997 expressed her wish for payments to be made to the 1^st and 2^nd Sons.

5(f) Mr Sin

5.34In his witness statement, Mr Sin said as follows.

(1) He joined Messrs TS Tong & Co on 16 July 1988 as an assistant conveyancing clerk. Between 1988 and 1995, his primary task at the firm was to carry out conveyancing works. At the time, he worked under the supervision of Mr Chan (陳啟鏞律師).

(2) He was contacted in March 2017 about the present proceedings and agreed to be the defendants’ witness.

(3) The 1^st defendant and his father were colleagues and friends. In October 1989, the 1^st defendant contacted him and he was told that the defendants intended to purchase the Property from the plaintiff at the Consideration and to apply for a mortgage in the sum of HKD 200,000. The 1^st defendant requested him to assist with the relevant documentation.

(4) On 7 November 1989, the plaintiff, the defendants and their baby went to the firm. He was made aware of the fact that the plaintiff was illiterate and he explained the Assignment to the plaintiff. The plaintiff did not raise any query.

(5) After the execution of the Assignment, the defendants instructed him to issue a firm’s cheque in the sum of HKD 200,000 to the plaintiff. As regards the remainder of the Consideration, the plaintiff and the defendants indicated to him that it would be sorted out within the family.

5.35In cross-examination:

(1) Mr Sin said that he handled many conveyancing cases. He accepted that there was no particular reason why he would or could remember the details of the Assignment and the circumstances of the execution of the Assignment.

(2) He said that the firm was acting for both the plaintiff and the defendants. He said that the plaintiff was silent throughout and did not say anything on 7 November 1989 at the firm.

(3) He accepted that if the plaintiff had so instructed, the HKD 200,000 cheque could be “split” and issued to parties in accordance with the plaintiff’s instructions. Yet, he did not take any instructions from the plaintiff.

(4) He also accepted that the practice 30 years ago was much less strict than the current practice.

(5) Mr Chan had already retired from the firm in 2017. In any event, he confirmed that Mr Chan was not present at the execution of the Assignment. He admitted that his witness statement was drafted purely from his recollection, and he did not refer to any contemporaneous records or documentation.

6.Findings and analysis

6.1In assessing the evidence, I bear in mind the approach set out at §§5.3 to 5.6 above.

6.2As regards the Affirmations, as stated at §§5.4 and 5.5 above, the mere fact that a witness is mentally incapacitated at the time of the trial does not prevent the admission of his statements and the attachment to such hearsay evidence. I have considered the factors set out at Section 49(1) and (2) of the Evidence Ordinance Cap 8. In particular, I find that there is no evidence of any actual tendency for the plaintiff to conceal or misrepresent matters. In assessing the Affirmations against the totality of the evidence, I note that the background facts are not seriously disputed by the defendants, and on those disputed areas, for example, the circumstances leading to the execution of the Assignment and the payment of the Consideration, it cannot be said that the evidence of the defendants themselves is satisfactory. I am of the view that weight should be attached to the Affirmations. For the reasons set out below, it does not follow that I accept the content of the Affirmations in its entirety.

6.3I also find the 4^th Son to be an honest and reliable witness. Much of his evidence is concerned with what transpired at or after the August 2005 Meeting and is largely undisputed or supported by the Family Whatsapp Group. I must confess that I have some reservations about his treatment of the Mongkok Property, in particular his decision to keep all the sale proceeds to himself when it was sold in 2008 and to distribute partial sums only to the 1^st and 5^th Sons. However, one must remember that the present litigation is not about the Mongkok Property and the less I say about it the better. In any event, the defendants do not run a case premised on gift. Had it been the case, one might see the fact that Father had gifted his interest in the Mongkok Property to the 4^th Son (if true) may have relevance to whether the plaintiff gifted the Property (or part of the interest in it) to the defendants. As matters stand presently, how the 4^th Son had treated the Mongkok Property does not inform on the issues to be decided in the present proceedings.

6.4I also decline to draw any adverse inference by reason of the fact that the 1^st Son did not come forward to give evidence. First, as submitted by Ms Tjia, given the domestic context of this action, it is understandable that a family member may refuse to testify for either camp at the trial. Secondly, as I understand Mr Poon, the point he made in closing was that as the 1^st Son did not give evidence, the plaintiff failed to prove that HKD 80,000 was not given to the 1^st Son. However, the assertion that HKD 80,000 was given to the 1^st Son is a case run by the defendants and their evidence on this issue is far from satisfactory (as to which see further below).

6.5For the reasons set out at Section 5 above and the additional ones stated below, I do not find the defendants to be credible witnesses.

6.6There is no dispute between the parties that where a constructive trust is alleged to arise of the basis of the parties’ common intention, it is the intention commonly held by the property owner and the claimant regarding their shared beneficial interests in the property that matters. The trust is constituted by the three elements of (1) common intention, (2) the claimant’s detrimental reliance on their common intention and (3) the unconscionability of the property owner departing from it. The burden of proving each element is on the person seeking to show that the beneficial ownership is different from the legal ownership: Lam Kau Kui v Choi Yuen Ling [2020] HKCFI 2647 §§9-10.

6.7As stated at §3.1 above, the plaintiff’s case is based on the conduct of the parties to infer a common intention on the beneficial ownership of the Property and as the conduct relied on to give rise to a constructive trust. As stated at Prime Credit §1.3, in the domestic context, if it is possible to resolve the matter by reference to common intention, there is no need to resort to the plaintiff’s case based on resulting trust.

6.8I find (on a balance of probability) that what transpired chronologically was as follows.[11]

(1) In the period leading to 7 November 1989 (ie the date of the Assignment), there was no discussion between the plaintiff and the defendants for the sale and purchase of the Property at the Consideration: §5.29(1) above.

(2) Whilst there was no discussion between the plaintiff and the defendants on the sale and purchase of the Property, prior to the date of the Assignment, the plaintiff did likely tell the 1^st defendant her wish to pay HKD 80,000 each to the 1^st and 2^nd Sons and for the 1^st defendant to retain HKD 40,000 for his efforts in maintaining the Property and to service the resulting mortgage payments: §5.13 above. Given the lapse of time, it seems to me that the plaintiff’s recollection that that was only done in 1991 was incorrect.

(3) However, her wish to repay the 1^st and 2^nd Sons was not mandatory and no timing for such repayments was discussed. Prior to the date of the Assignment and after the 1^st defendant had moved into the Property, the plaintiff was under the impression that, like the 1^st Son when he resided at the Property, the 1^st defendant would take up the responsibility of managing the Property.

(4) I am prepared to accept that the Assignment was executed at the offices of TS Tong & Co on 7 November 1989. However, I do not accept that the Assignment was explained to the plaintiff in any detail. As stated at §5.35(1) above, Mr Sin accepted that there was no particular reason why he would or could remember the circumstances of the execution of the Assignment which took place in 1989. However, even were I wrong on the foregoing, the fact that the Assignment was explained to the plaintiff is not necessarily inconsistent with her case on constructive trust. One has to bear in mind that the plaintiff was already aged 56 at the time of the Assignment. It seems to me that she might not have been able to obtain a mortgage for any extended term and the assignment of the Property to the 1^st Son was simply the mechanism for her to obtain some money from the Property.

(5) One also has to bear in mind that the Property was the only real property owned by the plaintiff and Father (Father was only a tenant at the Matrimonial Home). It was bought for the use of the family and at the time of the Assignment, at least the 1^st defendant, the 4^th and 5^th Sons did not own their own properties. There was no particular reason for the plaintiff to sell the Property to the 1^st defendant, given that there was no urgency (or obligation) to repay the 1^st and 2^nd Sons and the 1^st defendant was admittedly financially not comfortable at that time: §5.29(3). I also do not find it probable that the plaintiff would agree to extend an interest free loan for the sum of HKD 250,000 to the 1^st defendant. In effect, the arrangement as contended by the defendants was one which the plaintiff provided financial assistance to the defendants to purchase the Property at extremely favourable terms. Further, there was no explanation as to why the defendants purchased their Tuen Mun Property in 1991 when they had already purchased the Property in 1989. It was not suggested that the defendants’ family had outgrown the Property. Even if the defendants’ evidence that the 2^nd defendant had won a lottery to enable them to make the initial deposit for the Tuen Mun Property were true (which I find it is not), it begs the question why they did not use their fortuitous gain to repay the plaintiff when she was extending an interest-free loan to them.

(6) I also find that the defendants, contrary to their evidence, did not pay the 1^st and 2^nd Sons shortly after the execution of the Assignment : §§5.29(5) and 5.33 above. Nor did they make regular payments to the plaintiff as they alleged: §5.29(6).

(7) The manner in which the Property was continued to be used by the other members of the family after the defendants had moved to their Tuen Mun Property is also consistent with the fact that the Property was acquired for the use of the family and remained so after the Assignment: §§3.15, 3.16 and 5.29(4) above.

(8) At stated at §§5.29(7) and (8) above, at the August 2015 Meeting, the defendants never gave an account of the Assignment and only stated that he complied with all legal procedures. Thereafter, he never asked the plaintiff to explain the situation to the other family members and simply avoided the plaintiff.

(9) It is pertinent to note that his first attempt at explaining the Assignment was the December 2015 Message, the content of which is set out at §3.25 above. The content of the December 2015 Message is entirely consistent with the plaintiff’s case, namely that she had entrusted the Property to the 1^st defendant to manage and that there was no discussion in respect of the Consideration. For the reasons set out at §§5.29(10)-(11) and 5.32 above, I do not accept that the December 2015 Message was sent in the circumstances where the 1^st defendant was emotionally unstable or worried about the health of his own family. I find that the content of the December 2015 Message was a correct representation of the arrangement on the Property, namely that the plaintiff had simply entrusted the Property to the 1^st defendant (or defendants) to manage.

(10) I also accept the 4^th son’s evidence that the 1^st defendant made the 2016 Proposal at the burial ceremony held for Father: §5.26 above.

6.9In closing, Mr Poon referred to Jones v Kernott [2011] UKSC 53. He sought to derive assistance from the fact that the defendants had all along kept the rental income of the Property and paid all outgoing expenses. In the light of the factual findings made in the preceding paragraph, I am unable to see how Mr Poon can derive assistance from Jones. In that case, the issue was whether the intention of the parties (a separated couple), who already shared beneficial interests in a property acquired before their separation, had changed after their separation: Jones §§47-48. It was said at §48:

“… At the outset, their intention was to provide a home for themselves and their property. But there after her intentions changed significantly… they separated in October 1993. No doubt in many such cases, there is a period of uncertainty about whether the plaintiff would live and what they would do about the home witch they used to share. This home was put on the market in late 1995 but failed to sell. Around that time a new plan was formed. The life insurance was cashed in and Mr Kernott was able to buy a new home for himself. He would not have been able to do this have you still had to contribute towards the mortgage, endowment policy and other outgoings on 39 Badger Hall Avenue. The logical inference is that they intend that his interest in badger Hall Avenue should crystallise them. Just as he would have the sole benefit of any capital gain in this new home, Miss Jones have to sort benefit of any capital gains in Badger Hall Avenue… [I]t is clearly the intention was reasonable people would have had had a thought about it at the time…”

6.10The facts of the present case are very different from Jones. That the defendants kept the rental income and paid the outgoings of the Property is entirely consistent with the plaintiff’s intention from the outset that the defendants would manage the Property for her. There is no question of any changed intention.

6.11In view of the matters stated at the preceding paragraphs, and giving due consideration of the inherent probabilities in the light of the surrounding circumstances, I find that, on the evidence, a common intention constructive trust can be inferred, in that the plaintiff had simply entrusted the Property to the defendants for management (as acknowledged by the 1^st defendant himself in the December 2015 Message), and that the plaintiff had in reliance thereon, acted to her detriment and that it would be unconscionable for the defendants to depart from it. Indeed, Mr Poon in closing did not suggest that there was no reliance or detriment should the defendants fail to persuade me to accept their factual case.

6.12On the basis that the issues may be resolved on the basis of constructive trust, there is no need to resort to any resulting trust.

6.13As regards the defendants’ case on laches and acquiescence, Mr Poon in closing only pursues a case on laches and the only points he made were that Father could no longer give evidence and some of the relevant documents have now been lost. He referred ton Lewin on Trust (20^th Ed), Vol II §§46-063 to 064, for the proposition that a sale cannot be set aside after a lapse of 20 years.

6.14However, Mr Poon did not refer me to Lewin on Trust §46-062 to put his submissions in context. It is clear that the passages he relied upon are concerned with purchase of trust property by trustees and self-dealing transactions and not with the issues of the present case.

6.15In any event, it is clear from the authorities that in order to make out a case on laches, something more than mere delay is required before a plaintiff will be denied equitable relief under the doctrine. In the present case, I am unable to see a case on delay, as the dispute only crystallized at the August 2015 Meeting (after the demise of Father) and the proceedings were commenced in 2017. This is not a case where the defendants had asserted their ownership in the Property many years ago and the plaintiff had sat on her claim. Further, when the dispute crystallized in August 2015, Father had already passed away.

6.16Finally, Mr Poon took a pleading point that the estate of Father should be joined. I do not regard this to be a valid point. Mr Poon did not spell out what were the consequences of the non-joinder, even were he correct. In any event, I do not believe he is correct, since as at the commencement of the proceedings, the beneficial interests of the Property, which was acquired jointly by the plaintiff and Father, would have been owned entirely by the plaintiff by reason of survivorship. It is further noted that the defendants have all along denied Father had any interest in the Property from the outset.

7.Conclusion

7.1The parties’ closing submissions also set out various other points. In my view, the matters identified above are sufficient to deal with the issues in these proceedings. For avoidance of doubt, those other points have also been considered.

7.2For the above reasons, I enter judgment in favour of the plaintiff. Mr Poon did not make any submissions against the relief sought by Ms Tjia in her closing submissions should the defendants fail in their defence.

7.3The plaintiff is entitled to the following relief:

(1) a declaration that the defendants hold the Property on trust for the sole benefit of the plaintiff;

(2) an order that the defendants execute all necessary documents to transfer the Property into the name of the plaintiff;

(3) an order that the defendant to provide an account under all monies they had earned from the Property from which the defendant may make reasonable deductions of all expenses and payments in relation to the property having incurred at or paid by them;

(4) an order that the defendant to pay to the plaintiff such sums found to be due, if any, on the taking of the account.[12]

7.4There is no reason why costs should not follow the event. I make an order nisi that the defendants do pay to the plaintiff the costs of this action (including any reserved costs) to be taxed if not agreed, with a certificate for counsel. The plaintiff’s own costs are to be taxed in accordance with legal aid regulations.

7.5I thank counsel for their helpful assistance.

Miss Tjia Josephine, instructed by Christine M Koo & Ip, Solicitors & Notaries LLP, assigned by Director of Legal Aid, for the plaintiff

Mr Jackson Poon, instructed by Tang & Lee, for the 1^st and 2^nd defendants