Chung Yan Wing v. Ko Hoi Si

DCCJ 2922/2020

[2022] HKDC 1386

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2922 OF 2020

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Before:  Deputy District Judge Alfred Cheng in Court

Dates of Hearing:  26-28 October and 1 November 2022

Date of Judgment:  16 December 2022

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JUDGMENT

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A. INTRODUCTION

1.I am asked to determine the beneficial ownership of Flat 8, 23/F, Block B, Kwai Yin Court, Tai Wo Hau (“the Property”). It was purchased in the defendant’s name in 2003 at $920,000.00.

2.The plaintiff claims that she is the beneficial owner of the Property, and asks the court to declare that the defendant holds the Property on trust for her, and to award mesne profits[1] for the defendant’s wrongful occupation of the Property.

3.The defendant states that she is the outright owner of the Property. She counterclaims for damages for the aborted sale of the Property in 2020 as a result of the plaintiff’s registration of the writ of summons in the present case as a lis pendens against the Property at the Land Registry[2].

4.The circumstances of this case are regrettable on multiple levels. First, the plaintiff is the defendant’s mother. It is not any notion of morality that troubles me. Rather, a dispute within the family is always charged with emotions. This complicates the fact-finding process by this court, as the parties’ emotions obfuscate the truth. It is plainly disappointing to see that parties could not dispose of the present case amicably.

5.It is even more unfortunate that the parties present diametrically opposite stories as to what happened as early as 20 years or so ago. As Ms Lilian Ip, counsel for the defendant, describes during her cross examination, one of the parties must have been dishonest. I am effectively asked to pass damning judgement and criticisms on the losing party, which is obviously something this court is reluctant to do. But it seems to me that this court is presented with few alternatives.

B. THE UNDISPUTED FACTS

6.By way of a Preliminary Sale and Purchase Agreement dated 11 September 2003 (“the PSPA”), the defendant purchased the Property from National Resources Properties Limited (“National Resources”) for $920,000.00. The PSPA was followed by the Formal Sale and Purchase Agreement (“the FSPA”) dated 25 September 2003, and the Assignment dated 29 October 2003. The conveyancing documents, on their face, are standard and not controversial.

7.The purchase price was paid in the following manner:-

7.1.  According to a deposit receipt dated 23 September 2003, cash totalling $62,310.00 was deposited into the client’s account of the solicitors acting for the defendant in the conveyancing transaction.

7.2.  According to another deposit receipt dated 13 October 2003, cash totalling $184,000.00 was deposited into the same account.

7.3.  HSBC granted a loan of $644,000.00 to the defendant by way of a facility letter dated 8 October 2003, to be secured by an all-monies mortgage over the Property, and the personal guarantee by Chan Kam Tong[3]. The role and significance of Chan Kam Tong will be explored below.

8.There is no documentary evidence to help identify the person depositing the cash into the solicitors’ account as described above.

9.Mortgage repayment was initially $2,545.00 per month based on the interest rate of 2.5% per annum. The installments were deducted from the defendant’s HSBC account 195-5-XXXXXX. It appears that, apart from mortgage repayments and the annual premiums for property insurance, the defendant’s HSBC account was not used for any other purpose. The passbook also recorded that, at least up to 2017, cash was deposited periodically into this account to keep up with the mortgage repayments. Again, there is no documentary evidence to help identify the person depositing such money into this account from time to time.

10.By way of an agreement dated 11 June 2020, the defendant sold the Property to a third party for $5,600,000.00. But as stated above, since the plaintiff registered the writ of summons in the present case as a lis pendens, the sale was ultimately aborted.

11.So much so for the undisputed facts. One needs to then turn to the parties’ respective cases.

C. THE PLAINTIFF’S CASE

12.The plaintiff came to Hong Kong from the mainland in 1980. She had 3 children with her ex-husband: the defendant, born in August 1983; Ko Hoi Suen, born in December 1985; and Chung Jyn Yee, born in September 1988. She divorced her husband in 1993.

13.The plaintiff and her 3 children lived in a public rental housing unit in Fu Pik House, Tai Wo Hau Estate (“the PRH”). The plaintiff says she and Ko Hoi Suen still live there.

14.In 2001, the plaintiff met Chan Kam Tong through work; the latter being a contractor for construction works. They developed a relationship since then. Chan Kam Tong gave her at least $10,000.00 per month for her maintenance.

15.In the summer of 2003, the plaintiff thought about buying a property. She considered that the children were approaching majority. The PRH did not provide sufficient space for all of them. She also thought that property prices were low, and it would be a good investment to purchase one at that time. Hence, she went to a nearby estate agency to set up property viewings. After viewing 3 different flats in Kwai Yin Court, she decided to purchase the Property as it was the most suitable[4].

16.The plaintiff claims that she has been working since she arrived in Hong Kong. She claims to have earned $18,200.00 per month since 1996; $20,800.00 per month since 1998; and $24,000.00 per month since 2000 as a casual worker at construction sites. She had the habit of saving up, so by 2003, she had around $350,000.00 in cash.

17.The plaintiff discussed with Chan Kam Tong, and the latter agreed to be her guarantor if she applied for a mortgage[5]. But she then decided to purchase the Property in the defendant’s name. She even removed the defendant as an occupant of the PRH to enable the defendant to purchase the Property. According to the plaintiff, this could allow her to continue to live in the PRH. Also, if she were to marry Chan Kam Tong but divorce him at the end, she thought that she would be able to keep the Property away from any ancillary relief application by Chan Kam Tong, if the Property was registered in the defendant’s name.

18.Before signing the PSPA, the plaintiff told the defendant that although the Property was purchased in her name, she did not own it. The plaintiff says the defendant understood this. Ko Hoi Suen and Chung Jyn Yee were also told separately about this understanding at around the same time.

19.The plaintiff claims that she paid for the purchase price, legal costs, stamp duty, and estate agency commission when acquiring the Property in the defendant’s name. She also paid for the furniture and the deposits for management fees and utilities. She deposited cash each month to the defendant’s HSBC account to settle the mortgage repayments up to 2016. Afterwards, she asked the defendant to pay her monthly maintenance directly into that account; the money would then be used to settle the mortgage repayments. She also paid for the management fee of the Property up to 2016; she only asked the defendant to do since 2017 as her income decreased by then.

20.After the acquisition of the Property, the plaintiff and her daughters would take turns to stay there. The plaintiff, Ko Hoi Suen, and Chung Jyn Yee would each spend around 2 nights per week there, sleeping in the master bedroom. The defendant occupied the smaller bedroom.

21.The plaintiff strenuously denies that the defendant could afford to buy the Property, because she was only 20 years old in 2003, and there was no incentive for her to do so.

22.The plaintiff claims she was surprised when she could not gain access to the Property with her keys on 22 March 2020. She also discovered that the defendant installed security camera to monitor the Property’s entrance. There was then heated dispute between her and the defendant on the phone.

23.The plaintiff sent a handwritten letter to the defendant by registered post on 18 April 2020, asking the defendant to discuss with her before 1 May 2020 about vacating the Property. But there was no reply from the defendant.

24.Later in May 2020, she heard from friends that the defendant attempted to sell the Property. She found it urgent to seek legal advice. Hence, the present case was commenced and the writ registered as a lis pendens.

25.The plaintiff and Chung Jyn Yee give evidence in support of the plaintiff’s case. On the 2^nd day of trial, the plaintiff also called Ko Hoi Suen as a witness. But around an hour into cross examination, Ko Hoi Suen reported that she felt dizzy, and had difficulty breathing. Despite a short adjournment, she did not feel comfortable enough to continue her evidence. The court thus first received evidence from Chung Jyn Yee for the time being.

26.After Chung Jyn Yee finished her evidence, Mr Charles K C Chan (appearing for the plaintiff) informed me that Ko Hoi Suen left the court to seek medical treatment. After discussion, the court adjourned early on the 2^nd day pending an update on Ko Hoi Suen’s condition.

27.When the trial resumed on the 3^rd day, Mr Chan submitted a medical note prepared by Dr Cheung Ka Yeung, a general practitioner in private practice in Tsing Yi. He stated that Ko Hoi Suen suffered a panic attack on the 2^nd day of trial, and was not fit to continue her testimony that day. Sick leave was granted for the 2^nd and 3^rd days of trial.

28.Mr Chan applied to expunge the evidence of Ko Hoi Suen from the court’s record. Ms Ip did not oppose to such application. I thus granted the order sought with costs reserved.

D. THE DEFENDANT’S CASE

29.The defendant claims that, since the plaintiff divorced her ex-husband in 1995, she and the 3 daughters have been reliant on CSSA.

30.The plaintiff dated a Yip Chuk Fai (transliteration), who was a construction worker. Yip Chuk Fai was abusive to the plaintiff’s 3 daughters.

31.The plaintiff knew Chan Kam Tong through work in 1998. Chan Kam Tong was easygoing, and he supported the plaintiff financially. It is also Chan Kam Tong’s evidence[6] that the plaintiff borrowed money from him, but could not repay him. The plaintiff thus invited him to have dinner at the PRH, which I understand was to be treated as a kind of repayment. Since 2000, the plaintiff ended her relationship with Yip Chuk Fai, and started a relationship with Chan Kam Tong.

32.Chan Kam Tong says he found the defendant likeable. They developed a close bond which has since been lasting. Indeed, during their respective oral evidence, the defendant and Chan Kam Tong referred to each other as father and daughter. However, Chan Kam Tong have not been fond of Ko Hoi Suen and Chung Jyn Yee, and they never developed a close relationship.

33.Despite breaking up with the plaintiff, Yip Chuk Fai continued to pester her. Some time in 2000, Yip Chuk Fai became angry when he found out the plaintiff was dating Chan Kam Tong. He had a quarrel with the plaintiff inside the PRH. When he became physically violent to the plaintiff, the defendant tried to stop him. As a result, the defendant’s back was hit by a folded chair. But when the defendant sought medical treatment, the plaintiff prohibited her from telling the doctor what truly happened. The plaintiff also demanded her not to report Yip Chuk Fai to the police. The defendant obliged. She had to be absent from school for 3 days to nurse her injuries.

34.Some time in 2003, Yip Chuk Fai came to the PRH to look for the plaintiff again. The plaintiff was not in, so the defendant asked him to leave. However, Yip Chuk Fai banged vigorously and repeatedly on the door of the PRH, and was verbally abusive to the defendant. The defendant called Chan Kam Tong for help. When Chan Kam Tong arrived at the PRH, Yip Chuk Fai had already left. The defendant decided that she would move out of the PRH by renting a flat. But Chan Kam Tong advised her to buy a flat as renting would not be cheap.

35.The defendant then told Chan Kam Tong that she only had around $100,000.00 in savings. She started working full time after finishing Form 5 education in 2001. She earned $8,000.00 - $9,000.00 per month, and would be able to save up $4,000.00 per month. Chan Kam Tong agreed to sponsor her 20% of the purchase price.

36.After property viewing, the defendant decided to buy the Property. She thought that the Property had good security as compared to the PRH. Chan Kam Tong also recommended the Property because it was close to the PRH.

37.The defendant claims that, with the help of Chan Kam Tong, and the mortgage loan from HSBC, she paid the purchase price of the Property with her own money. She also paid for all incidental cost. Chan Kam Tong helped her to renovate the Property. They also went to buy some furniture. Since then, she lived in the Property alone, up to the summer of 2008 when her then ex-boyfriend (later her husband) started co-habiting with her at the Property.

38.The defendant claims that she paid for all mortgage repayments and the utility bills of the Property. Chan Kam Tong helped her to pay management fees up to around 2016 to alleviate her financial burden[7]. After that, she paid the management fees as well.

39.The defendant, Chan Kam Tong, and Leung Chun Lam (the defendant’s husband) give evidence in support of the defendant’s case.

E. THE LEGAL PRINCIPLES

40.The plaintiff asks this court to find that the defendant holds the property on a constructive trust, or in the alternative a resulting trust in her favour.

41.The parties agree that the applicable legal principles are settled. Ms Ip refers me to the summary of legal principles set out in Woo Tat Huen v Lee Wai Ping [2021] HKCFI 576 at §§42-46, which I gratefully adopt and set out below for easy reference:

“42. The starting point where there is sole legal ownership (as is the present case) is [sic] sole beneficial ownership, and the onus is on the person seeking to show that beneficial ownership is different from the legal ownership; in other words, it is for the non-owner to show that he has any interest at all: Stack v Dowden [2007] 2 AC 432, §56.

43. The relevant principles have been conveniently summarized recently by Coleman J in Lam Ka Kui v Choi Yuen Ling [2020] HKCFI 2647; HCA 537/2017 (unrep., 23 October 2020), §§8-16:-

(1) Where a common intention constructive trust has arisen, ownership in the property is split into legal ownership and beneficial ownership. The trustee holds the legal title on trust for the beneficiary.

(2) Where a constructive trust is alleged to arise on the basis of the parties’ common intention, it is the intention commonly held by the property owner and the plaintiff regarding their shared beneficial interests in the property that matters. The trust is constituted by the three elements of (i) the common intention, (ii) the plaintiff’s detrimental reliance on their common intention, and (iii) the unconscionability of the property owner departing from it.

(3) The burden of proving each element of common intention, detrimental reliance and unconscionability is on the person seeking to show that the beneficial ownership is different from the legal ownership. The focus is on the intention of the parties at the time of acquisition of the asset. Contemporaneous conduct is inherently more likely to be a reliable indicator of intention, to be given greater weight, than are words and conduct after the event.

(4) Common intention can be expressed or implied. It can be deduced or inferred objectively from the parties’ conduct. As a matter of common sense, it is easier to infer such an intention prior to the acquisition of property which results in an obvious change in legal ownership (rather than after such an acquisition where there is no change in legal ownership and a change in beneficial ownership is not otherwise apparent).

(5) In Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327, §§2.3-2.4, Cheung JA identified two situations where a common intention constructive trust may arise.

(a) The first is where at any time prior to acquisition, or exceptionally at some later date, there is an agreement, arrangement or understanding reached between the parties on how the property is to be held beneficially. The finding of such an agreement or arrangement can only be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been.

(b) The second situation is where there is no evidence to support a finding of an agreement or arrangement on the beneficial ownership of the property, and the court must rely entirely 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. In this situation, direct contributions to the purchase price by the party who is not the legal owner, whether initially or by mortgage instalment payments, will readily justify the inference necessary to the creation of a constructive trust.

(6) A resulting trust arises by virtue of the plaintiff’s contribution in money or in some other way towards the property's acquisition. Equity holds the legal owner to be a trustee of that property for the plaintiff in an appropriate share, giving effect to the parties presumed intention. Particularly in a domestic context, but also generally, if it is possible to resolve the matter by reference to common intention, there is no need to resort to resulting trust.

(7) As emphasized in Stack v Dowden §§68-69, an intention to have beneficial interest different from legal interest in property is unlikely, and the task of showing that should not be lightly embarked upon. It was recognized that, in family disputes, strong feelings are aroused when couples split up which can often lead the parties, honestly but mistakenly, to reinterpret the past in self exculpatory or even vengeful terms. If a difference is to be found between the beneficial and legal interest, clear evidence will be required. Unequal contributions to the purchase price of property will not likely be enough to move away from the starting point that equity follows the law.

44. As can be seen from the above, ultimately it is a question of intention – in the case of constructive trust, the common intention of the property owner and the plaintiff; and in the case of resulting trust, the intention of the person who provided the purchase price at the time the property was acquired. Between the two, and particularly in a domestic context, if it is possible to resolve the matter by reference to common intention, it would not be necessary to resort to resulting trust at all: Primecredit §1.3.

45. The modern approach to constructive trust is to assess the common intention of the parties by a holistic approach having regard to the context. In a domestic context (particularly in relation to a matrimonial home), the court is not constrained in that exercise by pure direct monetary contributions to the purchase price: Primecredit §1.6.

46. Moreover, in the assessment (whether on constructive trust or resulting trust), the court should have regard to inherent probabilities in light of the surrounding circumstances at the time the property was acquired: Primecredit §1.4.”

40.I would like to add that, in Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985, the Court of Appeal referred to Chan Chui Mee v Mak Chi Choi [2009] 1 HKLRD 343 to emphasise that it would be the whole course of conduct from which, if any, the court would have to objectively deduce the common intention.

F. ANALYSIS OF EVIDENCE

41.Both parties devote significant time commenting on the respective credibility of each witness. I shall start analysing the evidence with that.

F.1 Credibility of the plaintiff’s witnesses

42.Ms Ip submits that the plaintiff and Chung Jyn Yee are not credible witnesses. She mainly relies on 2 points:-

42.1.  Paragraph 11 of the Statement of Claim dated 22 June 2020 stated that the plaintiff paid a lump sum of $690,000.00 as the down payment. The remaining $210,000.00 was raised through the mortgage provided by HSBC. But after the defendant filed her Defence and Counterclaim dated 17 August 2020 setting out how the purchase price was paid, the plaintiff amended §11 of the Statement of Claim on 22 September 2020 by, inter alia, changing the down payment from $690,000.00 to “about 30% of the purchase price” and the mortgage loan of $210,000.00 to “about 70% of the purchase price”. Ms Ip submits that the plaintiff could not have been the one paying for the purchase price as alleged, as she did not even know how the Property was acquired at the first place.

42.2.  The witness statement of Chung Jyn Yee is identical to that of Ko Hoi Suen. Relying on Au Yeung Pui Chun v Cheng Wing Sang [2021] HKCFI 463 at §§30-35, the evidence of the plaintiff and Chung Jyn Yee could not have been the truth.

F.2 Amendment to the Statement of Claim

43.The plaintiff explains in her witness statement that she always remembered she paid around 30% of the purchase price as down payment. When she first approached her lawyers in 2020 for the present dispute, Ko Hoi Suen’s husband told her that she should have paid $690,000.00 as down payment, according to the record he obtained from the Land Registry. She thus instructed her lawyers to put down $690,000.00 as the amount of down payment in the original Statement of Claim. But she realised Ko Hoi Suen’s husband made a mistake when the defendant filed her Defence and Counterclaim. That was why she caused the Statement of Claim to be amended.

44.Looking at the matter objectively, I do not accept that the plaintiff made a genuine mistake as to the amount of down payment.

45.For a property that cost $920,000.00, there is a huge difference between $690,000.00 and 30% of the purchase price. The difference is even starker when it is the plaintiff’s evidence that she had around $350,000.00 in savings around the time of the acquisition of the Property – it is difficult to understand how she could mistakenly believe she paid $690,000.00 when she admittedly could not afford that sum. Considering that the Property was the plaintiff’s first and only property acquisition in Hong Kong, and the only time which she applied mortgage in Hong Kong, I do not think that a reasonable property owner with such background would forget even the rough amount of down payment he/she paid towards the acquisition of a property.

46.It appears to me to be rather convenient for the plaintiff to explain under cross examination that her memory did not serve her well for some matters. The plaintiff is able to set out details on her income for the years prior to the acquisition of the Property; and on how Chan Kam Tong was asked to be the guarantor for the mortgage loan. I do not find it credible that she could not remember at least the rough amounts of the mortgage loan she allegedly took out in the defendant’s name in 2003.

47.When one refers to the Property’s land search, one can immediately see that National Resources first obtained 2 charging orders against one of the predecessors-in-title in 1999 and 2002 respectively. The Property was sold to National Resources for $690,000.00 by way of an agreement dated 27 June 2003. Other than this, if one looked at the land search (either in May/June 2020, or any time since then), one could not detect any relationship between the sum of $690,000.00 and the defendant’s purchase of the Property in 2003.

48.Ko Hoi Suen’s husband (whose name this court does not even know) has not been called by the plaintiff as a witness. Therefore, this court does not have the benefit of his evidence on how he allegedly made the mistake in suggesting that the plaintiff paid $690,000.00 as the down payment; nor does the defendant have the opportunity to cross examine him to ascertain the truthfulness of the alleged mistake. There is no evidence showing that the plaintiff has been disabled from calling him as a witness. As such, I think it is appropriate for me to draw an adverse inference against the plaintiff for the failure to call her son-in-law to give evidence. I thus reject the plaintiff’s evidence (and similarly Chung Jyn Yee’s evidence) that it was her genuine mistake to state that the down payment was $690,000.00 in the original Statement of Claim. In my judgment, this is simply an excuse to hide the fact that the plaintiff did not even know the amount of down payment prior to the filing of the Defence and Counterclaim.

49.In my judgment, the plaintiff did not have such knowledge because she was never in possession of the conveyancing documents and payment records relating to the acquisition of the Property in 2003. The plaintiff agrees that it was the defendant who discovered all those documents. But she explains that she allegedly kept all the documents in a safe she left at the Property. In her witness statement, she states that some time after March 2020, the defendant called her to ask for the password of the safe. Unbeknownst of the defendant’s plan to exclude her entitlement to the Property, she gave the password to the defendant. Under cross examination, she amplifies her evidence by stating that she was unhappy and dining alone when the defendant called. She was unhappy because she loathed to follow Chan Kam Tong’s suggestion to kick the defendant out of the Property and take the same back. She thought she could not do it, as the daughter was at the end her daughter. Chan Kam Tong allegedly heckled her on this for 2 days on around 13-14 March 2020.

50.I disbelieve the plaintiff on her explanation as to why the defendant came to possess all of the conveyancing documents and payment records, for the following reasons:

50.1.  The plaintiff’s evidence under cross examination is opposite to her stance in the witness statement. In §71 of her witness statement, the plaintiff states that she intended to sell the Property in 2017, because the price was high and she ceased to work by then. She allegedly raised this matter with the defendant and Leung Chun Lam. She told them that she would like to take the Property back to sell it on the market. But the defendant asked not to kick her away, as she and her husband were still waiting for the allotment of a government quarter. The defendant allegedly agreed to move out once so allotted. In §81 of her witness statement, she repeats that in 2018-2019, the defendant and Leung Chun Lam refused to move out of the Property. They even scolded her, which turned her relationship with them sour.

50.2.  Given the plaintiff’s evidence in her witness statement, I cannot understand how the plaintiff could feel repugnant of Chan Kam Tong’s suggestion in 2020 to kick the defendant out of the Property (if the suggestion did exist). She requested the defendant to vacate the Property without qualms for 3 years prior to that[8]. If her evidence in her witness statement were truthful, she would have been more than happy to find Chan Kam Tong supportive of her plan. However, the plaintiff even became emotional and needed a short adjournment to calm down when she was cross examined on these matters. In my judgment, such emotions do nothing more than casting a serious doubt on her credibility.

50.3.  Again, if the plaintiff’s evidence in her witness statement were truthful, she should have at least felt uncomfortable when the defendant asked for the password out of the blue. It begs belief that the plaintiff would just tell the defendant the password without at least inquiring the defendant’s purpose of obtaining so.

50.4.  I also give some weight to the fact that the plaintiff did not ask for any pre-action discovery and/or inspection of the safe. If it was true that the conveyancing documents and payment records were all along kept in the safe, the plaintiff could well have requested for discovery to make sure that she could put forward her claim more accurately.

51.On the other hand, I do not think the following matters should be given much weight in assessing the plaintiff’s credibility:

51.1.  I note that the plaintiff’s HSBC account was maintained at the same branch as the defendant’s HSBC account, as their account numbers both started with 195- as the branch code. But there is no evidence, by cross examination or otherwise, to show whether this was an intentional arrangement by the plaintiff, or just a co-incidence. Moreover, there is no evidence to show that the relationship between the plaintiff and the defendant was so hostile in 2003 after Yip Chuk Fai’s assault on the defendant in 2000, such that the defendant would not have maintained her HSBC account at the same branch. Neither party says the relationship irretrievably broke down in 2003. Therefore, this court is not in a position to infer anything out of the HSBC accounts. For example, the branch might have been the closest to both the plaintiff and the defendant, and they patronised it out of convenience; or there was a special reason for the plaintiff to maintain the the defendant’s HSBC account at this particular branch. This issue is simply not explored at trial.

51.2.  Both counsel asked numerous questions in cross examination requiring the witnesses to recall, without looking at the documents, the exact date, time or name in relation to a particular event. This is not helpful to determine credibility because one can expect that witnesses must have refreshed their memory in preparation of the trial. Further, the current dispute, as pleaded, does not depend on the minutiae of particular events. With respect, it is not understood how this “memory picking” exercise could shed light on the credibility of a witness.

F.3 Identical witness statements

52.Mr Chan disputes with Ms Ip’s proposition that the witness statements of Ko Hoi Suen and Chung Jyn Yee are identical to each other.

53.In my judgment, Ms Ip’s description of the 2 witness statements is more than fair. The sequence, paragraphing, and content of the 2 statements are exact copies of each other[9], save and except §§29-32 of Chung Jyn Yee’s statement, which are absent in Ko Hoi Suen’s statement. In these 4 paragraphs, Chung Jyn Yee speaks of her alleged residence at the Property continuously for around half a year in 2006, and her relationship with the defendant. I would also add that the plaintiff’s witness statement at §§84-109 is also identical to the corresponding parts of her daughters’ statement.

54.Ms Ip refers to Ho Sing Yin v Chan Yiu Ling, the administratrix of the estate of Tsang Kwong Lik, deceased HCA 90/2010 (Deputy Judge Saunders; 13 July 2012), which was cited in approval, amongst other authorities, in Au Yeung Pui Chun v Cheng Wing Sang [2021] HKCFI 463.

55.In Au Yeung Pui Chun, G Lam J (as he then was) said there was obvious similarity between the witness statements of the plaintiff therein, and her 2 witnesses. From the numbers put forward by the learned Judge, one can see that 2/3 of each of the witness statements were said to be identical to each other. The learned Judge referred to the evidence of the plaintiff that she and her 2 witnesses fully discussed their evidence before giving instructions to their lawyers. It was held that, whilst the statements would not be altogether rejected solely because they were largely identical to each other, the weight that could be placed on them was greatly diminished.

56.Mr Chan tried to distinguish the present case from Au Yeung Pui Chun by submitting that, unlike the facts in that case, Chung Jyn Yee claims under cross examination that she did not read the witness statements of the plaintiff and/or of Ko Hoi Suen before preparing her own statement. I do not think this is a valid distinction, when one refers to §§59, 63-64 of Ho Sin Ying:

“59. It is right that Yau Man said that she did not have any discussion with Yau May before making her witness statement, and denied having read Yau May’s witness statement before signing her own witness statement. If that was the case the only inference that can be drawn from the fact that 64% of her witness statement was precisely identical to another witness statement is that the solicitors who have prepared her witness statement have slavishly copied that of another witness. It is simply unbelievable that two witnesses, even sisters, could have used precisely the same words and punctuation in telling their story.

…

63. … It is right that solicitors know better than witnesses the relevance and the weight of different events and matters. That knowledge will define the questions that are asked of the witness in the course of the preparation of the witness statement. I accept that a solicitor may determine the formatting of a witness statement.

64. But it is not for a solicitor to ‘choose’ the words, phrases, or expressions in a witness statement. Those are all matters for the witness. Where witness statements are identical it is difficult if not impossible to believe that the witnesses have independently provided … the ‘raw materials’ for the preparation of the witness statement.”

57.It is my view that, similar to the authorities referred to above, little weight should be given to Chung Jyn Yee’s witness statement.

58.Indeed, I think there are abundant reasons to disbelieve Chung Jyn Yee. She recounts many factual matters as told by the plaintiff. Given the dim view I have as to the plaintiff’s credibility, I similarly think Chung Jyn Yee’s credibility is doubtful.

59.I also think Chung Jyn Yee was prone to exaggeration. She was adamant that the defendant had a lavish lifestyle, and could not have saved up sufficient money to purchase the Property in 2003. But she confirms in her oral evidence that she was never shown evidence of the defendant’s savings (or the lack thereof). Whilst she insists that she did go out with the defendant and the latter’s friends to dinners, karaoke parlours, and drinks, she agrees that she did not go with them on every single occasion, and she could not tell whether the defendant paid for her own share of the cost every time. And as to the luxury goods that the defendant allegedly liked to buy, Chung Jyn Yee also cannot say definitively that the defendant bought them with her own money. I see this as an example that Chung Jyn Yee was not an impartial witness, and her evidence must be treated with caution. To state the obvious, I do not think the plaintiff’s credibility is helped by Chung Jyn Yee’s evidence.

F.4 Other matters affecting the plaintiff’s credibility

60.Apart from the above, I have also given consideration to the following aspects of the evidence.

61.First, the plaintiff’s evidence, if true, shows that she committed a criminal offence. As a tenant of the PRH, she cannot have any interest in any landed property in Hong Kong. Since tenants of the Housing Authority are required to periodically declare that they do not have any interest in any landed property in Hong Kong, the plaintiff could well be fraudulent in submitting declarations as such throughout the years[10]. I think I should be slow to find that the plaintiff has a beneficial interest in the Property unless the evidence is clear – indeed, this echoes with the legal propositions set out in Woo Tat Huen (see §43(7) of that Judgment, as quoted in §41 above).

62.Secondly, I think Ms Ip is correct to observe that the Amended Statement of Claim does not refer to any express common understanding and/or agreement, prior to or at the time of the acquisition of the Property in 2003, between the plaintiff and the defendant about the plaintiff’s beneficial interest in the Property. However, the plaintiff states in her witness statement and under cross examination that, on the day before signing the PSPA and afterwards, she told the defendant that she was the person having the beneficial interest in the Property. If she were truthful, it would be reasonable for her to raise such communication at the first available opportunity. But I have not heard any reasonable explanation from the plaintiff as to why this was left out of the Statement of Claim and its subsequent amendment.

63.I also find it perplexing that, when the plaintiff refers to the circumstances under which she allegedly allowed the defendant to stay in the Property in 2004 or 2005, she claims that she told the defendant in certain terms that the Property belonged to her, and the defendant acknowledged it[11]. But the plaintiff’s alleged assertion then made does not find its way in the Statement of Claim and its subsequent amendment[12]. Again, if she did stress her beneficial ownership to the defendant so painstakingly, one would expect this to feature significantly in the pleadings.

64.Thirdly, on day 2 of the trial, and when Ms Ip is cross examining the plaintiff on the terms of the PSPA, the plaintiff claims that she appended the defendant’s signature on the PSPA, and also the defendant’s initials against each of the amendments on the PSPA. The plaintiff only raises this for the first time in her oral evidence. When Ms Ip asks the plaintiff why she has failed to mention this allegation in her pleadings and in her witness statement, she answers that she did not recall it before then.

65.Similar to above, I find it the most surprising that the plaintiff failed to mention this piece of fact prior to her oral evidence, if she were truthful at all. In the present case, since there was no express declaration of trust by the defendant over the ownership of the Property, both parties must have tried to exhaust their memory to recall matters which might support an inference that they had the beneficial interest of the Property. The allegation that the plaintiff appended the defendant’s signature of the PSPA would support an inference that the Property was acquired under her prerogative. It seems to me unimaginable that the plaintiff could not have recalled this important piece of fact when she recounted the factual events to her lawyers. I think it rather shows that the plaintiff to be unreliable.

66.Mr Chan invites me to find that the defendant’s signature is more consistent with the plaintiff’s handwriting rather than the defendant’s handwriting. I reject his submissions without hesitation. There is no expert evidence on the various signatures seen in the PSPA and the FSPA. In addition, there is simply no evidence showing the circumstances in which the various signatures were appended. One does not know whether signatures would look more or less alike because of a particular way in which they were appended. For example, does it matter that one signed on a document seated or standing? Or is it relevant if he/she was asked to signed in limited space or with the comfort of a large desk? With respect, Mr Chan does not satisfy me that all these imponderables can be ignored in the present case.

F.5 The defendant’s credibility

67.Mr Chan submits that I should reject the defendant’s evidence as incredible. I shall set out his attacks on the defendant’s evidence in turn.

68.It is first submitted that the defendant could not have saved up as much as she claims, and could not have afforded the mortgage repayments throughout the years. The defendant was cross examined on (i) the level of her income; and (ii) her expenses prior to the acquisition of the Property.

69.Mr Chan suggests that the defendant could not have earned $8,000.00 to $9,000.00 per month as alleged. For April 2002 to March 2003, the defendant’s employer reported to the Inland Revenue Department that she earned $94,322.50, or $7,860.21 per month; for April 2003 to February 2004 (ie 11 months only), the same employer reported that she earned $91,438.00, or $8,312.55 per month. I do not think the defendant gives a wrong estimate of her income around the time of the acquisition of the Property. The plaintiff does not have any evidence otherwise to show that the defendant is untruthful in this regard. Whilst it is true that the defendant has not discovered any document showing her income prior to 2002 and since 2004, I do not think the plaintiff has successfully persuaded me that the defendant’s evidence is so inherently improbable that I should reject it. Indeed, as a matter of cross examination, Mr Chan does not ask much other than putting to the defendant that she is lying about her income and savings. With respect, there is little probative value in such line of questioning when Mr Chan’s bare assertions are met with the defendant’s bare denial. I have not been shown how these questions and answers can help this court to resolve the factual issues. I would also add that the plaintiff has not seen fit to ask for specific discovery of documents showing the defendant’s income.

70.Mr Chan then asks the defendant to list her daily expenses around the time of the acquisition of the Property, down to the dollars and cents she used for food, transportation etc. Quite apart from the fact that the defendant explains that she was frugal and would only use modest sums each day, I do not think the whole line of cross examination helpful in any way. The plaintiff does not have any positive evidence, apart from the bare assertions of Chung Jyn Yee, to show that the defendant could not have saved up much by 2003 with her then income and lifestyle. The defendant’s evidence that she spent meagre sums per day does not appear to me to be inherently improbable – in the context of the local living standard back in 2003, it is certainly possible that one could be as frugal as the defendant has depicted under cross examination. Again, I do not think Mr Chan’s line of questioning derives much probative value, when he has just put to the defendant that she is lying without demonstrating any evidential foundation for his case.

71.Mr Chan next attacks the defendant’s credibility by questioning her stated motive for buying the Property. In particular, he submits that it could not be true that the defendant chose not to call the police when she was so seriously injured by Yip Chuk Fai.

72.I do not think Mr Chan is correct. There is little evidence on the interaction between various parties when Yip Chuk Fai assaulted the defendant in 2000 (when she was around 17). For example, was the plaintiff dominating over her daughters, to the extent that the daughters dared not disobey her? Or was the defendant already so disrespectful to the plaintiff, that the defendant could not have kept quiet? Or was Chan Kam Tong already taking up the father role in the plaintiff’s family, such that everyone would let him to decide whether to call the police? These matters are simply not explored in any detail as a matter of cross examination, and little elaborated in the witness statements.

73.Hence, in a vacuum, I cannot see how I can assess the defendant’s credibility when she says the plaintiff prevented her from calling the police; and how I can assess Chan Kam Tong’s credibility when he says he deferred to the plaintiff’s decision to keep quiet on Yip Chuk Fai’s assault when he and the plaintiff just started dating. These are possible responses human beings may have in a particular set of circumstances. But the plaintiff has not laid any evidential foundation to say the circumstances of the present case could never cause the defendant and Chan Kam Tong to have such responses.

74.The same goes for Mr Chan’s criticism against the defendant’s alleged decision to purchase the Property, but not a flat much farther away from the PRH. The episodic harassment of Yip Chuk Fai at the PRH is in the evidence; but there is no evidence showing that he had a habit of stalking the plaintiff’s family, or he had the history of waiting around Tai Wo Hau Estate where the PRH is. As such, I do not find it unreasonable that the defendant followed Chan Kam Tong’s advice to choose a building with good security but close to the PRH. I also think it inherently probable that Chan Kam Tong so suggested because he wanted the relationship between the plaintiff and the defendant to improve. It is not correct for the plaintiff to suggest that Chan Kam Tong’s evidence is absurd, when she claims in her witness statement[13] that the defendant still paid her monthly maintenance after the acquisition of the Property – again, I see no evidence that the relationship between the plaintiff and the defendant broke down irretrievably since 2003.

75.Thirdly, Mr Chan submits that the defendant gives no good explanation on why she changed from depositing cash to bank transfers for the mortgage repayments since 2017, when she had already settled the management fees for the Property by bank transfers since 2016. He submits that this shows the plaintiff’s evidence is more likely to be the truth – that money was transferred into the defendant’s HSBC account since 2017 because this was the time when the plaintiff handed over the passbook to the defendant, and asked the latter to pay the monthly maintenance to that account.

76.I do not find this fact significantly affecting my assessment on credibility. One can see that the management fees for the Property were settled by bank transfers from the plaintiff’s bank account prior to 2016. Thus, both parties adopted different payment methods for different matters. I am not convinced that a particular mode of putting money into the defendant’s HSBC account to settle the mortgage repayments indicates whose money it was in the present case.

77.Lastly, it is submitted that, if the defendant really lived alone in the Property (prior to her husband moving in), there would be no need for her to purchase a bed for each of the 2 bedrooms there. The undisputed fact that 2 beds were purchased shows the plaintiff’s evidence that she stayed over in the Property sometimes must be correct.

78.In my judgment, the plaintiff is again asking me to make assessment on credibility in vacuum. Whether or not a person living alone would purchase an extra bed is a highly personal choice. The defendant explains that this could allow Chan Kam Tong or her friends to have a bed to lie on when they visited. Chan Kam Tong also gives evidence to the same effect. Without evidence showing whether it was inherently probable or not for the defendant and/or Chan Kam Tong to think that way, I do not find the plaintiff’s submissions convincing.

F.6 Chan Kam Tong’s credibility

79.Whilst I bear in mind that I should not determine the credibility of a witness simply from his/her demeanour, Chan Kam Tong has come across as genuine and forthcoming. I am generally impressed with his evidence, and I prefer this evidence unless it is clearly shown that he is incorrect.

80.Mr Chan submits that I should find Chan Kam Tong’s evidence as incredible. It is said that his evidence about Yip Chuk Fai injuring the defendant in 2000 is unbelievable. The plaintiff says if it were true that Chan Kam Tong developed close ties with the defendant, he would have reported the matter to the police.

81.Based on what I said above when I set out my views on the defendant’s credibility, I similarly think that the plaintiff’s criticisms are not significant. The plaintiff lays emphasis on Chan Kam Tong’s agreement that he took up the father role in her family. But even so, it does not simply mean that Chan Kam Tong would not respect the plaintiff’s decision not to call the police. All depends on the dynamics between the plaintiff and Chan Kam Tong when the assault happened in 2000, which evidence, as I said, is sorely lacking.

82.Mr Chan submits I should also reject Chan Kam Tong’s evidence that he paid the management fee for the Property up to 2016 in order to alleviate the defendant’s financial burden. Chan Kam Tong claims that, when he gave monthly maintenance to the plaintiff, he would also give her $700.00 extra to help pay the management fee.

83.I do not find Chan Kam Tong’s evidence improbable. He says both he and the defendant had to work, but the plaintiff did not. So it was the most convenient for the plaintiff to pay the management fee, as the management office was only open during office hours. There is no substantial cross examination upon Chan Kam Tong’s answers to show that he must be lying.

F.7 Miscellaneous matters

84.I do not think it is necessary for me to exhaustively determine the credibility of Leung Chun Lam, the defendant’s husband. Even on the defendant’s case, he moved into the Property in 2008. He is unable to give evidence on the circumstances surrounding the purchase of the Property in 2003. Thus, his evidence is irrelevant to the most pertinent factual issues.

85.I have been provided with various bills (e.g. management fee, rates and government rent, water, and gas) in relation to the Property. They were dated from 2003 up to 2021. It is difficult to see how, on their face, they can provide significant probative value on the beneficial ownership of the Property:

85.1.  A lot of the bills were paid in cash. Although the bills were in the defendant’s possession, it is not clear who actually paid for those bills.

85.2.  In any event, it is not disputed that the defendant (and later her husband as well) spent the most time at the Property. I do not find it surprising that the defendant might well have agreed to pay for the utilities etc since she had the use of the Property, irrespective of whether she had, or perceived to have ownership over the Property.

85.3.  The only bill and payment that I would like to singularly point out is the demand note issued by the Water Authority for water deposit of $400.00. It was paid by EPS on 3 October 2003. The receipt showed that the payment was from the plaintiff’s HSBC account (195-2-XXXXXX) rather than the defendant’s HSBC account. The parties did not explore this payment in depth, so the circumstances of this payment is unclear. In my judgment, this does not significantly indicate the beneficial ownership of the Property, because (i) its amount is insignificant; (ii) there is no evidence showing that the parties had significant discussion or attached significant weight as to who should pay for the water deposit; and (iii) as I set out above, there is no evidence that the relationship between the plaintiff and the defendant was so hostile back in 2003 that the plaintiff would not have paid for the deposit but for an alleged interest in the Property.

86.The same goes for the evidence showing that the Leung Chun Lam liaised with contractors for the mandatory inspection of the windows at the Property in 2019. Given the defendant’s family were in use of the Property, I think it is natural for them to assume the responsibility to follow up on the matter irrespective of their view as to the beneficial ownership of the Property.

87.There is a final matter which I would like to comment. In her witness statement, the defendant states that the plaintiff was on CSSA. This prompted the plaintiff’s solicitors to contact the Social Welfare Department, which confirmed in a letter dated 9 October 2020 that the plaintiff “is/was not a recipient of” CSSA, after checking its computerised system. This letter prompted the defendant’s solicitors to also write to the Social Welfare Department, which replied on 26 November 2021 that the retention period of CSSA record after a case was closed would be 7 years.

88.There is no further correspondence to seek clarification from the Social Welfare Department whether the plaintiff indeed never received CSSA at any point of time, or she did not do so for the 7 years prior to enquiries being made, as this was all the record could show. As such, I decide to place no weight on the issue of CSSA.

F.8 Conclusion on credibility and findings of fact

89.I bear in mind the cogency of evidence required corresponds to the seriousness of the factual findings. I find the defendant and Chan Kam Tong credible. In contrast, the plaintiff is a liar. I also think Chung Jyn Yee has lied in her evidence in an attempt to assist her mother. I have no hesitation to prefer the defendant’s evidence whenever it is in conflict with the plaintiff’s evidence.

90.I find as facts:

90.1.  The defendant purchased the Property in 2003 with her own money and the financial assistance gifted by Chan Kam Tong. She decided to move out of the PRH because she had enough of the harassment by Yip Chuk Fai.

90.2.  There was never any discussion, common understanding, and/or agreement between the plaintiff and the defendant acknowledging that the plaintiff was the sole beneficial owner of the Property.

90.3.  The defendant paid the mortgage repayments each month since 2003, either by her own money, or by money gifts given by Chan Kam Tong from time to time.

90.4.  The defendant paid for the majority of outlay of the Property. Insofar as management fee was paid through the plaintiff’s bank account up to 2016, she paid it with the money of Chan Kam Tong and under his direction.

90.5.  The defendant (and later her husband) have not been living in the Property on any licence granted by the plaintiff, but rather on the fact that the defendant was the outright owner.

90.6.  The plaintiff, Ko Hoi Suen and/or Chung Jyn Yee did not live in the Property as they would please. They only visited or stayed at the Property at the defendant’s invitation or (implicit) agreement.

91.On the basis of my factual findings, there could not have been any constructive and/or resulting trust in favour of the plaintiff regarding the beneficial ownership of the Property.

G. THE DEFENDANT’S COUNTERCLAIM

92.It is pleaded in the Amended Defence and Counterclaim that the defendant has suffered the following losses as a result of the aborted sale of the Property in 2020:

92.1.  $30,000.00 as the fee she paid the purchaser for cancelling the “provisional/formal sale and purchase agreement”;

92.2.  $112,000.00 as estate agency commission; and

92.3.  $20,000.00 as legal expenses incurred in the aborted sale.

93.Whilst my factual findings will support the conclusion that the defendant is entitled to her counterclaim, the defendant has not put forward any documentary evidence to prove the extent of her loss. She also stops short of setting out the amount of her loss in her witness statement. In short, there is no evidence to verify whether the figures put forward in her pleadings are indeed true and accurate.

94.Although I find the defendant credible and reliable, her claim remains to be unsupported by evidence. I find it fascinating that, whilst the defendant has been represented by solicitors and counsel since the beginning of the present case, the absence of evidence to support the counterclaim could escape the eyes of multiple professionals. It is with regret that I can only award her nominal damages for the losses in relation to the aborted sale, which I assess at $1,000.00.

95.The defendant further claims damages for any loss of value in the Property between the aborted sale in 2020 and any subsequent sale in the future. I agree with Mr Chan that the defendant has no evidence to show any fall in the value of the Property, if at all. Since there is no application by the defendant to defer the assessment of damages to another hearing, she must fail in her claim for damages for any possible loss in value. Indeed, Ms Ip does not seriously argue otherwise.

H. CONCLUSION

96.I dismiss the plaintiff’s claim. I order the writ of summons currently registered against the Property at the Land Registry be removed by the plaintiff at her expenses within 14 days of this Judgment.

97.On the defendant’s counterclaim, I award damages at $1,000.00, together with interest at 1% above HSBC prime, from July 2020 to the date of this judgment; and at judgment rate thereafter.

98.I direct that a copy of this Judgment be sent to the Department of Justice for it to consider whether there shall be any follow-up action against the plaintiff and/or Chung Jyn Yee for giving false evidence before this court. I also severely reprimand Ko Hoi Suen for her attempt to do the same – she has narrowly avoided the same referral only because of the plaintiff’s decision to withdraw her as a witness at the last available opportunity.

I. COSTS

99.The court regularly penalizes a dishonest plaintiff with indemnity costs: see for example, Lee Priscilla Siok Ai v Secretary for Justice sued for and on behalf of Director of Highways [2022] HKCFI 1569 (Au-Yeung J; 27 May 2022); Pak Siu Hin Simon v JV Fitness Ltd [2017] 6 HKC 110. This is plainly applicable to the present case. For the plaintiff’s claim, I make an order nisi that the plaintiff do pay the defendant’s costs (including all costs reserved, if any) on indemnity basis, with certificate for counsel. Such costs shall be summarily assessed. As such, there is no need for me to separately provide for the costs of and occasioned by the adjournment resulting from the aborted oral evidence of Ko Hoi Suen.

100.As for the defendant’s counterclaim, I make an order nisi that there be no order as to costs.

101.I think this is a case in which I shall consider whether wasted costs shall be ordered against the plaintiff’s solicitors, and/or Mr Andy Y H Lam (the counsel who settled the Statement of Claim and also the subsequent amendment); and if so, to what extent such order(s) should cover the plaintiff’s liability to pay costs to the defendant. My reasons are as follows.

102.I am guided by discussions set out in Shahid Mohammad v The Kowloon Motor Bus Co (1933) Limited [2022] HKDC 1122 (HH Judge Andrew Li; 14 October 2022) and So Kam v Guildford Limited & Anr [2021] 2 HKLRD 319. Whilst the learned Judge set out the legal principles on wasted costs from the perspective of a personal injuries case, I do think the same are largely applicable in the present case. This is because (i) the plaintiff is never on legal aid; (ii) she does not appear to be working at the time when she commenced the present case[14]; and (iii) coupled with the fact that she has been living in the PRH, she does not appear to have substantial resources to fund the present litigation. In my judgment, the duty of her legal representatives to the court makes it incumbent on them to ensure that the plaintiff has an honest and reasonable cause of action. Such duty must be a continuing one.

103.In my judgment, it is inexplicable that the original version of the Statement of Claim would plead $690,000.00 as the down payment the plaintiff allegedly paid to acquire the Property if the plaintiff’s legal representatives exercised any judgement assessing the merits of the plaintiff’s instructions. Any cursory reading of the land search by professional eyes would not have missed the coincidence of this with the purchase price National Resources actually paid for the Property. Similarly, if the plaintiff were asked about the monthly mortgage repayments she allegedly made since 2003, rough calculation would immediately show that the mortgage loan could not have been as little as $210,000.00. All these should have led to a further train of inquiry on all the relevant circumstances surrounding the alleged acquisition of the Property in 2003. But the Statement of Claim relied on the allegation that the plaintiff paid the purchase price of the Property as the only piece of fact in around 2003 to support her claim of beneficial ownership in the Property[15]. In my view, there is at least a reasonable ground to suspect that the plaintiff’s legal representatives did not make any meaningful assessment of the plaintiff’s instructions before helping her to commence the present case.

104.I have highlighted above the possibility of the plaintiff incriminating herself by signing the Statement of Truth in the Statement of Claim and in her witness statement. On the face of these documents, there is no indication that the plaintiff was suitably warned of the consequences. In my view, a reasonably competent lawyer should advise the plaintiff in no uncertain terms the risk associated with pursuing her claim. It behooves this court to identify and penalise any serious failing of duties on the part of legal representatives.

105.And I think there is clearly an apparent case that the plaintiff’s legal representatives have failed to continuously reflect and advise the plaintiff on the merits (or more properly, the lack of it) as the present case progresses. No interlocutory steps have apparently been taken to raise query on what Mr Chan attacks at trial as the loopholes in the defence. This have significantly handicapped the plaintiff from raising the same query in a meaningful manner by way of cross examination.

106.The above matters cumulatively cause me to seriously suspect whether the plaintiff’s solicitors and Mr Andy Lam discharged their duties in any reasonable manner. They might be able to show that, despite their clear and unequivocal advice, and conscientious effort to obtain and test the plaintiff’s case, the plaintiff remained adamant to proceed with the present case with the existing state of evidence. This court will then certainly find that they have done a proper job, and should not be personally liable for costs in any way. But in my judgment, this must be a case where further investigation is warranted.

107.For the purpose of determining the issue of wasted costs, I give the following directions:

(1)  Messrs Ivan Tang & Co shall cause of a copy of this Judgment to be sent to Mr Andy Y H Lam of counsel within 7 days of this Judgment;

(2)  Within 28 days of this Judgment, Messrs Ivan Tang & Co and Mr Andy Y H Lam of counsel do file their respective written submissions on why this court shall not order wasted costs against them. Any evidence is to be adduced by way of affirmation to be filed together with the written submissions. The submissions and the affirmation (if any) shall also be served at the same time on the plaintiff, the defendant, and each other;

(3)  Within 28 days thereafter, the plaintiff and the defendant, if they so wish, do file and serve their respective written submissions on whether (and if appropriate, to what extent) wasted costs ought to be ordered against Messrs Ivan Tang & Co, and/or Mr Andy Y H Lam of counsel. Any evidence is to be adduced by way of affirmation to be filed and served together with the written submissions;

(4)  Within 14 days thereafter, Messrs Ivan Tang & Co, and Mr Andy Y H Lam of counsel do file their respective written submissions in reply (if any);

(5)  All of the submissions and affirmations referred to above are also to be lodged through the Judiciary’s e-Lodgement Platform;

(6)  The question of whether wasted costs order should be awarded shall be disposed on paper unless ordered otherwise;

(7)  Within 14 days of this Judgment, the defendant do file and serve her skeleton bill of costs (no more than 10 pages) for summary assessment of her costs in the present case;

(8)  Within 14 days after (7) above, the plaintiff do file and serve her reply on the defendant’s bill of costs (no more than 5 pages);

(9)  There shall be summary assessment of the defendant’s costs on paper, which is to be handed down together with the decision on wasted costs.

Mr Charles K C Chan, instructed by Ivan Tang & Co, for the plaintiff

Ms Lilian Ip, instructed by Huen & Partners, for the defendant