Liang Ying v. Wong Sze Man

DCCJ 2738/2022

[2023] HKDC 1228

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2738 OF 2022

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BETWEEN

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JUDGMENT

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1.Introduction

1.1These proceedings are concerned with the ownership of a female cat, named Argen by plaintiff and subsequently “墨魚丸” by the defendant (“Argen”). On 25 April 2022, at her flat at Breamar Hill (“Flat”), the plaintiff handed Argen over to the defendant. The disputes between the parties crystallized about three weeks later in mid-May 2022 when the defendant refused to comply with the plaintiff’s demand for Argen’s return.

1.2The plaintiff commenced the present action on 18 July 2022. This matter first came before me on 16 December 2022, which was the substantive hearing of the plaintiff’s application for interlocutory injunction by which interim arrangements were sought for custody of or access rights to Argen. The parties agreed at the hearing that a more sensible way forward was for a speedy trial of the action. I therefore ordered, by consent, that there be a speedy trial without pleadings and gave directions for the further conduct of the case, one of which was for the parties to lodge an agreed list of issues following the completion of the evidential timetable^[1]. The parties further helpfully agreed on the interim custody arrangements in respect of Argen pending the trial of the present action.

1.3The single issue which I need to determine, as refined in consultation with and agreed by the parties during the trial, is this: On 25 April 2022, whether the plaintiff’s intention was to gift Argen to the defendant (“Issue”). In resolving the Issue, I have to determine, at the time when Argen was handed over to the defendant, whether there was a clear and distinct act of gift and evidence that a gift was intended by the plaintiff. The parties agree that if the Issue were answered in the negative, the defendant is obliged to return Argen to the plaintiff. Conversely, were the Issue answered in the affirmative, the plaintiff’s claim for the return of Argen should be dismissed^[2].

1.4It is common ground that the defendant, in making a case for a gift, must prove three elements: (1) an intention on the part of the plaintiff to make a gift, (2) an intention of the defendant to accept the gift and (3) delivery. As is apparent from the framing of the Issue, the main battleground is the first element, namely the intention of the plaintiff deliveror.

1.5The defendant contends that since early 2022, she had been told (effectively) that Argen was up for adoption, and she decided to and did adopt Argen on 25 April 2022. She invites me to conclude from the evidence that the dealings between the parties were only consistent with the plaintiff intending to gift Argen to her.

1.6The plaintiff disagrees and advances a two-pronged argument. First, on the facts, she invites the court to find that the arrangement between the parties was one of temporary care of Argen, as the Flat was to undergo renovation. According to the plaintiff, her intention was expressly communicated to those present (including the defendant) on 25 April 2022. Secondly (and alternatively), the plaintiff argues that even were the factual disputes resolved in favour of the defendant, the evidence as advanced by the defendant falls short of being clear and unequivocal to show that an absolute and unconditional gift was intended.

1.7At the trial, I was helpfully assisted by Mr Tommy Cheung for the plaintiff and Mr Bernard Mak (with Mr Bryan Lee) for the defendant, all of counsel.

2.The evidence

2.1The following witnesses were called.

2.2The plaintiff herself gave evidence. She also called her husband (“Julian”) and one of her husband’s sisters (“Perthena”). Where appropriate, the plaintiff and Julian are referred collectively as the Poons.

2.3The defendant herself also gave evidence. She additionally called her husband (“Terence”) and another sister of Julian’s (“Sandy”). The defendant and Terence, again where appropriate, are referred collectively as the Wongs. Sandy introduced the Wongs to the Poons[3].

2.4All of the witnesses called (except Perthena) were present at the Flat on 25 April 2022, which was the first occasion the Poons met or had any direct dealings with the Wongs. Prior to 25 April 2022, Sandy acted as a conduit, essentially relaying messages from Julian to the defendant.

2.5I should point out that I have only considered the evidence germane to the resolution of the Issue. The affirmations filed for the purpose of the plaintiff’s injunction application included allegations and counter-allegations (supported and countered by veterinarian evidence) of lack than satisfactory treatment of Argen which was perceived to be relevant to the issue of interim custody. Only very limited reference (correctly in my view) has been made to such evidence by Mr Cheung and Mr Mak in closing, as the question of proper (or improper) treatment of Argen is strictly not relevant to the Issue.

2.6In the following sections, I will endeavour to set out the relevant evidence chronologically in four phases, namely (1) the period prior to Sandy’s involvement, (2) the period from Sandy’s involvement to 24 April 2022, (3) the events which transpired at the Flat on 25 April 2022 and (4) the period after 25 April 2022 visit. For each of the periods, I will set out a number of interim observations and “minor” factual findings. My main factual findings will be made in a subsequent section after I have considered all the evidence.

2.7In my fact-finding exercise, I am assisted by a schedule compiled by the parties and lodged with their written closing submissions (“Schedule”) in which the disputed and undisputed evidence is identified. There is further no or no serious dispute between the parties on the approach to adopt in resolving factual disputes. In evaluating the factual evidence, importance is attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of 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 statements (and additionally the affirmations in the present case).

2.8In particular, it is pertinent to bear in mind that the present dispute is not concerned with a “hard” commercial matter but an arrangement in respect of Argen between two families of cat-lovers which was liaised by Sandy. As such, some laxity in the language used between the parties, in any event before dispute had arisen, is to be expected. As a corollary, however, once the dispute had arisen, it is logical to expect that parties would then be more careful with their choice of words, especially after legal representatives were retained. It is also important to remember that these proceedings were commenced shortly after the disputes were crystallized and therefore the relevant events would still be relatively fresh in the minds of the respective witnesses.

2.9Unless otherwise stated or qualified, the matters stated in the next four sections are not disputed, as set out in the Schedule or gleaned from the parties’ closing submissions.

3.Events prior to Sandy’s involvement in late January 2022

3.1Although the Schedule does not deal with this period, the events prior to Sandy’s involvement (from late January 2022 onwards) are in my view largely undisputed or indisputable.

3.2On 13 July 2014, the plaintiff adopted Argen from the Society for the Prevention of Cruelty to Animals (HK) (“SPCA”). For that purpose, the plaintiff signed an agreement with the SPCA (“Adoption Agreement”). At the time of the adoption, Argen was a three-month-old baby.

3.3The name “Argen” is short for “Argentina”, the plaintiff’s favourite team at World Cup 2014 which took place between 12 June and 13 July 2014. The final, which was played on the day when plaintiff adopted Argen, featured Germany against Argentina.

3.4The plaintiff’s parents resided in the Mainland. The plaintiff’s father was diagnosed with a serious illness in May 2020 and eventually passed away on 8 October 2020. The plaintiff’s mother did not cope well with her husband’s illness and eventual demise. The Poons therefore made regular visits to the Mainland to care for the plaintiff’s parents. Such regular visits lasted from July 2020 to August 2021. As a result, since around July 2020 or slightly earlier, Argen stayed with Julian’s mother (“Mrs Poon”) and her maid at Mrs Poon’s residence in Telford Gardens in Kowloon Bay.

3.5Mrs Poon’s residence and maid were provided by Sandy.

3.6Mrs Poon herself was in frail health and was diagnosed with pancreatic cancer in September 2021. Perthena visited Mrs Poon regularly. Perthena gave unchallenged evidence that (1) the plaintiff made thoughtful arrangements to make sure that Argen was taken care of by Mrs Poon’s maid and other family members such as her niece Ms Candice Lam (“Candice”) and (2) when the Poons returned to Hong Kong, they would visit Mrs Poon’s flat frequently, almost on a daily basis.

3.7The evidence unequivocally shows that Mrs Poon had developed a very close bond with Argen. According to Julian, after Mrs Poon was diagnosed with her terminal illness, she made the following requests to which the plaintiff and he acceded: (1) Argen would stay with her whilst she was combating her terminal illness and (2) Argen should be permitted to stay in her flat for a period upon her expected demise so as to give more time for Argen to adapt to losing her.

3.8Mrs Poon was hospitalized in early November 2021 and passed away later that month. Following Mrs Poon’s demise, Argen continued to stay at her residence with Mrs Poon’s maid.

3.9Julian accepted that following Mrs Poon’s demise, Sandy was minded to take back the maid she provided to Mrs Poon and to either let or sell the Telford Gardens flat. At that stage, there was no discussion about Argen between Julian and Sandy.

3.10Perthena gave evidence (again unchallenged) that the plaintiff and Julian approached her in January 2022 to explore whether she could take care of Argen as they were planning to renovate the Flat. Although Perthena hoped that she would be able to assist, she was due to receive a medical operation. The evidence shows that Perthena was admitted to Hong Kong Sanatorium & Hospital on 9 February and discharged on 18 February 2022. She explained in court that, even after her discharge from the hospital, her main priority was to rest and recuperate and she was therefore unable to take care of Argen.

3.11Julian has a closer relationship with Perthena than Sandy. Indeed, Sandy in cross-examination accepted that she only had more contact with Julian following Mrs Poon’s demise.

3.12There are, in my view, a number of takeaways from the evidence of this period.

3.13First, despite initial suggestions to the contrary in the defendant’s evidence, it seems to me clear that, despite the fact that Argen had not been living with the Poons for over 1.5 years (as will be seen below, Argen moved back to the Flat in early February 2022), the plaintiff obviously cared for Argen deeply. Indeed, Mr Mak in closing fairly described the plaintiff as a cat-lover.

3.14The second is the recognition that the plaintiff’s love for Argen may not necessarily be synonymous with keeping Argen. The plaintiff’s love for Argen may also be manifested by the acceptance that, due to other life demands (work or otherwise), Argen may be better taken care of by another suitable owner. Such acceptance should not be deprecated as abandonment (as has been suggested in the defendant’s evidence) but should rather be commended for having Argen’s best interest in mind.

3.15It seems to me that the above considerations are pertinent in my fact-finding exercise, given that Julian reached out to Sandy at the time when Argen was about to move back to the Flat after a significant period of absence. Even on the plaintiff’s own case, at the time when Julian approached Sandy, the intended temporary arrangement represented a significant departure from the “status quo”, in that for the first time since Argen’s adoption in 2014, she would be taken care of by a non-family member, and indeed, by someone with whom the plaintiff did not have any prior relationship.

3.16In the above regard, Mr Cheung understandably relied on Perthena’s evidence to show the plaintiff’s intention at the material time, and in particular the unchallenged evidence that the Poons had approached Perthena for temporary assistance to take care of Argen during the Flat’s renovation. However, it does not automatically follow that when Perthena’s assistance was not forthcoming, the approach made to Sandy would necessarily be on the same basis. As the intended arrangement was for Argen to be taken care of by a non-family member, I have to consider the inherent likelihood or unlikelihood of the plaintiff’s case, given the fact that a host of other alternatives would or should have featured in the Poons’ consideration.

4.Events from Sandy’s involvement in late January 2022 to 24 April 2022

4.1The family held a memorial service for Mrs Poon on 23 January 2022. A few days later, Sandy asked Julian about Argen, no doubt because the maid was soon to be relocated away from the Telford Gardens flat (§3.9 above). Whilst there is no dispute on the fact of such a discussion, the parties disagree on its content.

(1) According to Sandy, Julian asked her to find someone to adopt Argen (你係唔係有朋友想要隻貓，我哋照顧唔到). The parties agree that Julian did not use the term “adoption” (領養) but the defendant argues that such the words used by Julian did convey such a meaning.

(2) According to Julian, he told Sandy that he planned to renovate the Flat and that Perthena was unable to assist in temporarily caring for Argen. He then asked Sandy if she knew of anyone who could take care of Argen temporarily (你會唔會有朋友暫時幫我哋照顧Argen). Julian denies that he had intimated to Sandy that he and the plaintiff were unable to care for Argen.

4.2Sandy identified the defendant as a possible candidate since she was aware that the defendant was already a cat-owner. On 28 January 2022, Sandy had lunch with the Wongs at the Grand Hyatt. The lunch was not specifically set up to discuss about Argen and the discussion on Argen only lasted about ten minutes.

4.3During the lunch, Sandy informed the defendant that the Poons did not want to keep Argen. It is apparent from the evidence that the defendant was earlier unsuccessful in adopting another cat. When told about Argen by Sandy, the defendant and Terence had a series of private Whatsapp communication between themselves (between 1:18 and 1:33 pm) in which Sandy stated to Terence that it was serendipitous to have another opportunity to adopt a cat, using phrases such as “like the universe telling us” and “the one I wanted to adopted [sic] earlier has her family”. At the material time, Sandy was not aware of the private Whatsapp communication between the defendant and Terence.

4.4On 1 February 2022 (which was the first day of Lunar New Year), Sandy spoke to Julian and mentioned to him the lunch she had with the Poons. Julian informed Sandy that he would be happy if the defendant could bring Argen home with her. Sandy relayed the message to the defendant by Whatsapp on 2 February 2022 (我昨天見到哥哥他說如果你喜歡Argent [sic] 他們會很開心你帶他回家). Along with that message, Sandy also sent a number of photographs of Argen to the defendant.

4.5It is the defendant’s evidence (which is not disputed) that she had arranged with Sandy to visit Argen on 4 February 2022 at the Telford Gardens flat. However, on 3 February 2022. Sandy called the defendant to inform her that Argen was injured (no doubt having been told been the Poons) and the visit had to be postponed. After the call, Sandy sent further photographs of Argen to the defendant at the request of Julian (哥哥叫我send這些Argent [sic] 相給你).

4.6On 4 February 2022 at 6:39 pm, the defendant by Whatsapp asked Sandy whether Argen had been spayed, to which Sandy answered in the affirmative. The defendant also asked about Argen’s injury.

4.7It is Sandy’s evidence that Argen moved back to the Flat in early February 2022, apparently at the time or shortly after the visit by the defendant at the Telford Gardens flat was postponed.

4.8On 14 March 2022 at 5:12 pm, Sandy sent a Whatsapp to the defendant to ask whether the defendant had time to visit Argen (你有冇時間去見貓貓Argent [sic]?). It is Sandy’s evidence that the message was sent at Julian’s request made earlier that day. Under cross-examination, Julian said that he could not recall having made such a request. On balance, I find that Julian did so request for two reasons. First, it seems to me unlikely that Sandy would have asked the defendant on her own initiative. Secondly, along with asking the defendant whether she had time to visit Argen, Sandy also sent additional photographs of Argen and the plaintiff to the defendant, the photographs no doubt having been provided by Julian.

4.9Due to the COVID-19 pandemic and a number of her colleagues having been tested positive, the defendant told Sandy that she would prefer to visit Argen at a later date.

4.10On 9 April 2022, Sandy spoke to Julian, during which Julian asked whether the defendant still wanted Argen. On the following day, Sandy sent a Whatsapp to the defendant in these terms: “And so are you interested in exploring the possibility of taking up the cat Argent [sic]?”

4.11On 19 April 2022, the defendant took the initiative to contact Sandy by Whatsapp to ask whether 25 April 2022 was a convenient time to visit Argen. Sandy told the defendant that she had to ask Julian whether the proposed date was convenient. On the following day, the date was confirmed.

4.12There is a dispute on whether Julian called Sandy on 24 April 2022 during which Julian asked Sandy whether the defendant could take Argen with her following the visit. I do not believe much turns on this since, as will be seen below, it is common ground that a similar request was made by the plaintiff on 25 April 2022.

4.13Julian accepted in cross-examination that he had arranged a dinner at the Flat with Perthena and Candice on 24 April 2022. Whilst Julian maintained that the dinner was an ordinary family gathering, it is Sandy’s evidence that Julian told her at the 25 April 2022 visit that the dinner was arranged for Perthena and Candice to say farewell to Argen (見佢最後一面).

4.14A number of observations may be made at this stage on the evidence on this phase.

4.15It is clear that the Wongs, in particular the defendant, had since the lunch with Sandy on 28 January 2022 formed a clear impression that Argen was up for adoption. The Wongs plainly did not regard the 25 April 2022 visit as simply one for them to consider temporarily caring for Argen.

4.16Where the parties agree that the relevant intention is that of the plaintiff’s, Mr Cheung was forensically astute to point out that there was no direct evidence on the plaintiff’s intention during this period. The discussions were carried out between Julian and Sandy on the one hand and between Sandy and the Wongs (in particular the defendant) on the other. Flowing from the foregoing, Mr Cheung reminded me that, realistically, Julian had no control over and did not dictate how Sandy conveyed the messages to the Wongs, and as a result, how the Wongs, especially the defendant, understood them. Underlying the foregoing observations are Mr Cheung’s contentions that things said by Sandy and the Wongs’ interpretation of them cannot be attributed to the plaintiff and do not shed light on the plaintiff’s intention.

5.The visit on 25 April 2022

5.1On 25 April 2022, Sandy picked up the Wongs at the Grand Hyatt in her car and they arrived at the Flat at around 3 pm. Sandy introduced the two couples to each other and they eventually all went to the Wongs’ residence with Argen in Sandy’s car. What transpired in between is a matter of disagreement between the parties.

5.2According to the Wongs and Sandy, what transpired on 25 April 2022 were as follows.

(1) Following Sandy’s introduction, the defendant and Terence played with Argen, during which there was casual chit-chat amongst those present. At that time, the Wongs, Sandy and the Poons were all in the living room. The plaintiff also introduced Argen to the defendant and explained how she came up with Argen’s name and described Agren as easy-going and shy.

(2) Julian then brought up the topic of water leakage in the master bedroom, and as a result, Julian, Terence and Sandy left the living room and went to the master bedroom. They returned to the living room within 2 to 3 minutes. At or around that time, Julian told Sandy that Perthena and Candice had come to the Flat the previous evening to say farewell to Argen.

(3) Whilst Julian, Terence and Sandy were away from the living room, the defendant and the plaintiff continued to play with Argen in the living room and carried on casual conversation.

(4) After the others (especially Terence) returned to the living room, the defendant asked the plaintiff a number of questions about Argen, including Argen’s vaccination records, diet etc.

(5) The plaintiff then asked the defendant whether she and Terence could take Argen away with them (你而家係咪可以即刻帶佢走？), to which the defendant said that the decision had to be made by Terence.

(6) Whilst Terence was contemplating, the plaintiff said that if the Wongs were not minded to take Argen away that day, she would lock Argen in a room as the renovation was to start tomorrow (如果唔係我會暫時困住佢喺房，因為聽日裝修工人喺度).

(7) Terence then said although he had not planned on taking Argen away immediately, but if that was good for Argen he would (其實本來今日冇諗住即刻帶佢走，不過如果咁樣係對貓貓好啲，就即刻帶佢走啦). The defendant then added Argen would be kept in a crate as there was another cat at home (會先將Argen困喺籠度，因為屋企有第二隻貓). The Wongs then started to discuss the logistics of taking care of Argen.

(8) The plaintiff then said to the defendant if things turned out to be problematic, she could return Argen (唔緊要㗎，如果之後真係唔OK，你可以俾返我㗎). The defendant then said she did not anticipate any problems (唔會唔OK嘅).

(9) The plaintiff then started to pack various things for Argen, and in the process, mentioned to the defendant that there were only two cans of cat food left.

(10) The defendant then saw the plaintiff in tears and offered to exchange contact with the plaintiff. The defendant further told the plaintiff that she would send photographs and videos of Argen to her and that she could visit Argen at any time.

(11) Sandy offered to drive the Wongs back to their home with Argen. She invited the Poons to go along and they agreed. Julian drove Sandy’s car to Wongs’ home.

5.3The Poons painted a different picture. They described the events as follows.

(1) After Sandy introduced the two couples to each other, the plaintiff thanked the Wongs. She gave an introduction of Argen, including how she came up with the name, the fact that Agren was adopted from the SPCA, and that Argen had been spayed as required under the Adoption Agreement. The defendant specifically denied that the plaintiff had mentioned the SPCA during the 25 April 2022 visit.

(2) The plaintiff then said that as the Flat’s renovation was to commence the following day, whether it was convenient for the Wongs to take Argen away for temporary care (聽日開始裝修，今日你可唔可以帶Argen走暫時照顧住？). Terence said that he was not ready, to which the plaintiff then replied she had other ways to take care of Argen (唔緊要，我都有第二啲方法照顧到Argen). At that time, Argen was hiding in the corridor.

(3) As the plaintiff felt slightly embarrassed by Terence’s answer, she went to look for Argen in the corridor. She then brought Argen to the living room, upon which Terence then said that he did not want Argen to be in a dusty environment so he would take Argen home that day.

(4) Sandy, Terence and Julian then left the living room to look at the water leakage problem in the master bedroom. The difference between the parties is on the duration, and it is the plaintiff’s case that they were away from the living room for about 8 to 10 minutes. When the plaintiff and the defendant were alone with Argen in the living room, the plaintiff thanked the defendant again for taking care of Argen temporarily and informed the defendant that she would collect Argen after the renovation was completed. The defendant then asked how long was the renovation expected to last, to which the plaintiff said about three weeks but it might be delayed. The defendant asked if the renovation was delayed whether Argen would continue to stay with her, to which the plaintiff adopted a wait and see attitude, stating that it was important to see if Argen could acclimatize to the new environment. The plaintiff also asked the defendant to provide updates of Argen to which the defendant agreed. Significantly, it is the plaintiff’s evidence that the defendant asked whether Argen was up for adoption to which the plaintiff said she would need to observe further.

(5) It is the plaintiff’s evidence that the above dialogue had completed when Sandy, Terence and Julian returned to the living room. She then started to pack various things for Argen and was joined by the defendant, during which the defendant asked various questions about Argen including Argen’s vaccination records and diet. As the plaintiff was packing Argen’s things, she requested to go to the defendant’s place to check the environment to which the defendant agreed.

(6) The plaintiff accepted that she became sad and agreed that there were only two cans of cat food left at the Flat.

5.4In the defendant’s closing submissions, Mr Mak has assiduously analyzed the evidence. With no disrespect to his industry, I agree with Mr Cheung’s submissions that (1) there is not a large disagreement in terms of the substance or contents of most of the conversations^[4], (2) whist there are disagreements on the timing or the order of such conversations^[5], they do not, in my view, assume significance^[6], and (3) only a few aspects are truly contested and controversial.

5.5The aspect which is truly contested and controversial is whether the plaintiff did make her intention clear on multiple occasions that the arrangement intended was one of temporary care of Argen (shortly after Sandy’s introduction of the two couples to each other and during a “private” conversation with the defendant when Julian, Sandy and Terence were away from the living room). In my view, because of the importance of that aspect, its determination has a significant impact on the credibility of the witnesses. Further, by reason of the contrasting sequence of events advanced by the parties, a determination of that aspect also has a significant impact on the factual findings on what generally transpired during the 25 April 2022 visit.

6.Events after the 25 April 2022 visit at the Flat

6.1As stated earlier, the Poons went to the Wongs’ residence with Argen after the 25 April 2022 visit at the Flat. In the evening, the plaintiff and the defendant had a series of Whatsapp exchanges.

(1) The plaintiff thanked the defendant and expressed hope that the defendant’s cat and Argen could get along (Hi Janice, 今日麻煩晒你哋… 希望阿妹同亞珍可以相處到啦). The defendant replied by saying that the two cats would get along but a little time was needed (佢哋唔會有問題的) followed by (要少少時間適應).

(2) The plaintiff then said that she and Julian were at ease, as they were of the view that the defendant and Terence were cat-lovers (我知道你哋對貓貓好好，我哋都好放心).

(3) The defendant sent to the plaintiff various photographs of Argen being kept in a crate, including her observation that Argen was becoming less nervous about the new surroundings. Later in the evening, the defendant informed the plaintiff that Argen started to consume food, to which the plaintiff then commented she was relieved and asked whether the defendant’s cat was still nervous (咁我哋就放心啦，咁阿妹點啊？係咪仲係好緊張呀？). The defendant then said that her cat was still slightly apprehensive and she would keep Argen in a crate for another day (係呀，佢有少少… 不安囉，即係可能驚我哋會冇咁錫佢… 咁要啲時間安撫佢嘅情緒囉，咁所以暫時Argen我就唔放佢出嚟住啦，可能等多日等佢哋適應咗我先再俾佢出嚟囉).

6.2The Flat’s renovation commenced on 26 April 2022. According to the plaintiff, she and Julian moved to a hotel in North Point and moved back to the Flat on or about 10 May 2022. However, the plaintiff and Julian decided to find and found an alternative flat during the first week of the renovation. Eventually, they moved to Tseung Kwan O on 24 May 2023.

6.3In the afternoon of 26 April 2022, the defendant sent a message to Terence by Whatsapp, commenting that although taking Argen home was a sudden event, she felt that the family was now complete (唔知點解呢，雖然即係好突然就帶咗Argen返嚟啦，但係我覺得呢好似，即雖然兩隻貓都唔係容易去處理，但係我覺得呢而家我哋個家庭呢好圓滿，即係完整左一個家庭，兩隻貓同我哋兩個).

6.4In the evening of 26 April 2022, the plaintiff asked the defendant by Whatsapp for an update. The defendant told the plaintiff that Argen had urinated in the morning but not defecated. The plaintiff then commented that Argen should be able to acclimatize to the new surroundings shortly (… 睇佢個樣衰衰咁樣，應該好快就適應㗎啦).

6.5In the morning of 27 April 2022, the defendant informed the plaintiff by Whatsapp that Argen had defecated but her behaviour was slightly out of control. Argen seemed to have settle down in the evening and the plaintiff expressed her wish that Argen and the defendant’s cat could later become good sisters (希望佢哋遲啲可以成為好姊妹), to which the defendant replied that in time they would (俾啲時間佢哋). The plaintiff then commented she was sorry that the defendant’s cat would have to make some accommodation in the meantime (委屈阿妹啦).

6.6There was no communication between the defendant and the plaintiff for a few days. On 2 May 2022, the defendant took the initiative by sending two videos of Argen to the plaintiff. The videos apparently showed that Argen and the defendants’ cat were getting along for the most part. Significantly, the plaintiff mentioned in passing that she was moving to a new place (我哋終於要搬去有細細個露台嘅地方) but nothing further was discussed on the topic, in particular on how that would impact Argen. The defendant also informed the plaintiff that she had given Argen a new name “墨魚丸” (… 我幫 [Argen] 改咗個新名同埋燒賣一齊，一個叫燒賣啦，一個叫墨魚丸啦，因為係佢腳仔呢… Argen腳仔都有啲似嗰啲墨魚丸”). There was no objection by the plaintiff (我哋以為係蝦餃襯燒賣添… 哈哈).

6.7There was another period of silence. On 8 May 2022, the plaintiff asked for an update. The defendant replied the next day, stating that Argen was doing well (墨魚丸幾好呀). The plaintiff asked for a convenient time to visit Argen to which the defendant replied by stating that it had to be a few weeks later (… 不過可能要遲幾個星期，因為呢排我同老公個schedule都幾full，啲朋友屋企人輪流上嚟屋企聚會同探貓貓… 或者五月尾六月頭). The plaintiff then said she understood (好，明白).

6.8On 14 May 2022, Julian called Sandy, the purpose of which was to ask Sandy to request the defendant for Argen’s return. Julian agreed that he mentioned to Sandy that the plaintiff missed Argen. Sandy then spoke to the plaintiff over the phone. There is no dispute that Sandy refused to approach the defendant for Argen’s return and she asked the plaintiff to claim down.

6.9On 16 May 2022, the plaintiff spoke to the defendant on the phone. The parties agree that the parties’ relationship had by then started to deteriorate. It is apparent that during the phone conversation, the defendant had made adverse comments towards how the plaintiff treated Argen. The plaintiff also asked for Argen’s return to which the defendant said she would need to discuss with Terence.

6.10On 19 May 2022, the plaintiff by Whatsapp refuted the defendant’s allegation of poor treatment and demanded for Argen’s return within the week. This invited a lengthy and prepared reply from the defendant within three minutes, refusing to comply with the plaintiff’s demand and requesting the plaintiff to refrain from contacting her further. The plaintiff then stated as follows:

“當日我們雙方均有同意如果有不適應的情況下，我們是可以接回Argen的。你也承諾我們可以隨時去探望Argen。我問你幾時我們可以探Argen，你推說要幾個禮拜後，原因就是你們家中有聚會朋友要玩貓？這樣的藉口是讓人難以接受。是否你一直沒有時間，我們就不可能見到Argen？

… 你把它帶到家中三個禮拜就不願歸還，更沒有道理可循。無論你現在叫他什麼名字，我事實上而且在法律上由始至終都是Argen的主人。我並不想搞大件事，希望你明白事理，好好處理件事，否則我們只有尋求警方協助。”

6.11The plaintiff then retained her former solicitors, Messrs Ha and Ho (“H&H”). On 2 June 2022, H&H issued a demand letter to the defendant (“H&H Letter”) which set out in detail the relevant events and the justifications for the plaintiff’s demand for Argen’s return.

6.12No doubt prompted by the H&H Letter (which was sent to the defendant by hand), from the wee hours of 3 June 2022 onwards, there was a series of Whatsapp communications between the defendant and Sandy, in which the former sought confirmation from the latter on what factually transpired since the lunch on 28 January 2022.

6.13On 9 June 2022, the plaintiff reported the matter to the police and provided a statement to the police (“Plaintiff’s Police Statement”). Sandy was invited by the police to provide a statement, which she did on 14 June 2022 (“Sandy’s Police Statement”).

6.14Eventually, the defendant’s former solicitors, Messrs Wilkinson & Grist (“W&G”), provided a detailed reply to the H&H Letter on 16 June 2022 (“W&G Letter”). The plaintiff’s current solicitors, Messrs Lam and Lai (“L&L”) issued a pre-action letter on 7 July 2022 (“L&L Letter”) and, as stated earlier, the plaintiff commenced the present action on 18 July 2022.

6.15I shall return to the H&H Letter, the Plaintiff’s Police Statement, Sandy’s Police Statement and the W&G Letter in the next section at which I set out my main factual findings.

7.Factual findings

7.1The main factual disputes which require my determination have been identified at §§4.1, 4.13, 5.2 and 5.3 above. For the reasons set out below, I prefer the evidence given by the Wongs and Sandy, as there are a number of inconsistencies in the evidence of the Poons when compared with the contemporaneous documentary evidence. I also find that there are various aspects which are inherently unlikely in the Poon’s evidence and appear to me to be illogical.

(i) The nature of Julian’s request made to Sandy in late January 2022

7.2As identified at §4.1 above, there is a dispute between the parties on the nature of the request made by Julian to Sandy in late January 2022.

7.3I prefer Sandy’s evidence for the following reasons.

7.4First, as set out at §3.16 above, Mr Cheung understandably relied on Perthena’s unchallenged evidence that the Poons had approached her for temporary assistance to take care of Argen during the Flat’s renovation. Upon reflection, I do not attach to it too much weight for the following reasons.

(1) Whilst there is no dispute on the nature of request made by the Poons to Perthena (ie one of temporary care), as stated at §§3.15 and 3.16 above, the request made to Sandy represented a significant departure from the “status quo” in that Argen would be taken care of by a non-family member and I have to consider the inherent likelihood or unlikelihood of the plaintiff’s case.

(2) In the context of the injunction application, the Poons have adduced evidence to show that they are “financially comfortable”. It is therefore plain that there were and they could afford other viable alternatives, especially given the plaintiff’s case that the Flat’s renovation was not major and would only take three weeks. For example, arrangements could be made for Argen to stay in a pet hotel or the Poons could have made arrangements to stay at a pet-friendly hotel with Argen during the period when they decided to move out of the Flat during its renovation. Such viable alternatives would avoid unnecessary complications, for example, the need to make arrangements to visit Argen or, as here, risking Argen not getting along with the defendant’s cat.

(3) The evidence before me, however, shows that the Poons had in effect “waited” for the Wongs to visit Argen without considering any other viable alternatives, which suggests that the intended arrangement, rather than of a temporary nature, was of a more significant one.

(4) Julian also accepted in cross-examination that it was unlikely that Sandy would have misunderstood him and the overwhelming evidence is that the message conveyed by Sandy and understood by the Wongs was effectively one for adoption.

7.5Secondly, in re-examination, the plaintiff said that she and Julian were never of the view that they were unable to take care of Argen and that Julian would not have said the same to Sandy. However, Julian’s evidence that he asked Sandy specifically to find someone to take temporary care of Argen during the Flat’s renovation is inconsistent with the H&H Letter. As observed at §6.11 above, the H&H letter dated 2 June 2022, which was the first “formal” demand and drafted as a “final notice of demanding” the defendant to return Argen, is a detailed document and one can only infer that considerable care was given in its drafting. Yet, there is no mention of the Flat’s renovation at all. Instead, and significantly, the H&H Letter states at §3:

“Due to some personal reasons, our client has considered the option of having someone to adopt and take care of Argen. In early 2022, Sandy, the younger sister of our client’s husband, proposed you to our client to consider whether you would be the suitable person to take good care of Argen.”

7.6Thirdly, the Plaintiff’s Police Statement is also not entirely consistent with Julian’s evidence. It reads as follows:

“… 其後由於 [the Flat] 於2022年4月26日需要開始進行裝修，冇合適地方比隻貓居住，而且因為工作關係需要經常往返內地，所以想物色一個新嘅暫養人照顧Argen…

… 於2022年4月25日… 當時 [Sandy] 都有陪同 [the defendant] 一齊到我住所，而 [the defendant] 將Argen帶離我屋企之前我有同 [the defendant] 清楚表示只係暫時寄養到 [the defendant] 嘅住所… 我亦有同 [the defendant] 講如果我認為唔適合作為Argen嘅暫託人，我就可以隨時接走Argen因為我先係Argen嘅主人…” (emphasis added)

7.7It is notable that (1) the Plaintiff’s Police Statement specifically gave the plaintiff’s regular absence from Hong Kong as a reason for parting with Argen and (2) Argen’s return was not tied to the completion of the Flat’s renovation.

7.8Fourthly, the inconsistency identified at §7.5 above remained unrectified in subsequent correspondence passing between solicitors. In particular, at W&G Letter §1 (dated 16 June 2022), it was specifically pointed out that at the lunch on 28 January 2022, the defendant was told by Sandy that the Poons did not want to keep Argen anymore. Where the Plaintiff’s Police Statement (given on 9 June 2022) had already mentioned the Flat’s renovation, it is unlikely that the same was not mentioned in the L&L Letter (dated 7 July 2022), if Julian did in fact approach Sandy for the purpose of temporary care of Argen during the Flat’s renovation. Yet, the L&L letter (which was in reply to the W&G Letter) did not mention the Flat’s renovation at all and indeed adopted the contents of the H&H Letter.

7.9Fifthly, not only is Julian’s evidence inconsistent with the H&H Letter, the Plaintiff’s Police Statement and the L&L Letter, given what transpired up to the 25 April 2022, it is inherently unlikely that Julian approached Sandy for temporary care due to the Flat’s renovation, for the following reasons.

(1) It has to be borne in mind, on Julian’s evidence, he asked Sandy to look for someone to temporarily care for Argen with whom he did not have any prior relationship. However, as Julian accepted, there was no discussion with Sandy on the duration or the timing of the Flat’s renovation. Whilst it is true that the evidence does not suggest that there was any such discussion when the Poons approached Perthena, it seems to me that there is a significant difference between seeking assistance within the family and enlisting a stranger for assistance.

(2) Further, there appears to be disconnect between Julian’s various approaches to Sandy (and Sandy’s consequent follow-up with the defendant) and the intended renovation. For example, Julian accepted that he had discussed with Sandy on 2 February 2022 in relation to the defendant visiting Argen on 4 February 2022 (which was the fourth day of the Lunar New Year) at Telford Gardens (§4.5 above). I have also found that Julian had on 14 March 2022 approached Sandy again regarding the defendant visiting Argen (§4.8 above).

(3) In my view, the timing of Julian’s above approaches to Sandy suggest that they were unlikely to be related to the Flat’s renovation. As regards the February 2022 discussion, it has not been suggested that the Poons had arranged for the renovation to be carried out shortly after the Lunar New Year, when it is well-known that decoration workers customarily “downtools” well beyond the public holidays. In relation to the March 2022 discussion, it took place at a time when the COVID-19 pandemic was becoming serious^[7] and there is no evidence that Poons had arranged for the renovation to commence imminently.

7.10I therefore accept Sandy’s evidence on what transpired when Julian approached her in late January 2022. I make a finding along the lines of §4.1(1) above. Additionally, whilst it is common ground that Julian did not use the term “adoption”, I am satisfied that the words used by Julian (as narrated by Sandy) did convey such a meaning. This is entirely consistent with the position set out in the H&H Letter and the understanding of the Wongs at the lunch on 28 January 2022 (§4.3 above).

(ii) The dinner with Perthena and Candice on 24 April 2022

7.11The suggestion that the dinner organized by the Poons with Perthena and Candice was for the purpose of bidding farewell to Argen (§4.13 above) was first put forward in Sandy’s Police Statement and repeated in her affirmation filed on 27 July 2022. The affirmations of the plaintiff and Julian filed on 5 October 2022 did not deal with this aspect at all.

7.12It is inherently improbable that this aspect of Sandy’s evidence was made up, for the following reasons.

(1) Although it is common ground that Julian had a closer relationship with Perthena than Sandy, it has not been suggested that there is any degree of animosity between the Sandy and the Poons such that she would put forward untrue evidence against their interests.

(2) Whilst Mr Cheung made certain observations on Sandy’s ability to recall the events on 25 April 2022, they were mainly related to whether she paid full attention to the discussions on Argen between the Poons and the Wongs, in particular when Sandy accepted that her main task of arranging the two couples to meet had been achieved.

(3) In particular, Mr Cheung commented that much of Sandy’s evidence had been coloured by the exercise of the defendant confirming various matters with Sandy following the H&H Letter (§6.12 above). However, I note that in that process, the topic of the dinner 24 April 2022 was not discussed between Sandy and the defendant. In other words, the evidence set out in Sandy’s Police Statement was “unprompted” and came from her individual recollection. I agree with Mr Mak’s submission that the phrase “見佢最後一面” is not one which could be plugged out of thin air.

(4) I further note that this aspect of Sandy’s evidence is not specifically dealt with in Mr Cheung’s closing submissions at all.

7.13For the above reasons, I find that, during the 25 April 2022 visit, Julian did tell Sandy that Perthena and Candice came to dinner the previous evening to bid farewell to Argen.

(iii) The visit on 25 April 2022

7.14Both Mr Mak and Mr Cheung have made very detailed submissions on the factual findings to be made in respect of what transpired at the 25 April 2022. As stated at §5.5 above, the aspect which is truly contested and controversial is whether the plaintiff made her intention clear in stating to those present on 25 April 2022 that the arrangement intended was one of temporary care of Argen.

7.15In my view, the plaintiff did not, for the following reasons.

(1) It is the plaintiff’s case that shortly after Sandy’s introduction of the two couples to each other, she asked whether it was convenient for the Wongs to take Argen away for temporary care as the renovation of the Flat was due to start the next day. I do not find the plaintiff’s case to be likely. As I have found (and Mr Cheung did not contend otherwise), the Wongs obviously approached the 25 April 2022 on the basis that Argen was up for adoption. If, as the plaintiff described, at the outset of the visit, the Wongs were told something which was diametrically contrary to their expectation, one would have thought that the Wongs (or even Sandy) would have sought to clarify matters. Yet, according to the plaintiff, despite his initial hesitation, Terence then agreed to the temporary care arrangement (§§5.3(2) to (3)).

(2) The plaintiff’s evidence that she had reached an agreement on temporary care with the defendant during a “private conversation” (§5.3(4) above) is contradicted by the subsequent events. It is to be recalled that, according to the plaintiff, she expressly told the defendant that she would collect Argen after the completion of the renovation, indicated that the renovation was expected to take three weeks and stated that any discussion regarding Argen’s adoption was very much a side issue and to be discussed later.

(3) The plaintiff moved back to the Flat on 10 May 2022 (§6.2 above). On 8 May 2022, the plaintiff only asked the defendant for a convenient time to visit Argen (§6.7 above). When cross-examined, the plaintiff said that as she and Julian were contemplating to move to the new flat in Tseung Kwan O (which they did on 24 May 2023), she would only collect Argen after the move. However, the plaintiff was aware that she was going to move to a new place latest on 2 May 2022 (§6.6 above) and it is odd that the plaintiff did not discuss the potential impact with the defendant as it would change the entire basis of the arrangement allegedly agreed with the defendant. Further, it is the plaintiff’s evidence that she was unhappy with the defendant’s response on 9 May 2022 that a visit could only be arranged in end of May or early June 2022. As the Poons were to move back to the Flat the next day (on 10 May 2022), I am unable to see any good reason for not asking for Argen’s immediate return, pursuant to the agreement allegedly reached at the 25 April 2022 visit.

(4) Instead, Julian had to approach Sandy on 14 May 2022 to act as a conduit to ask the defendant for Argen’s return. It is also inexplicable that the reason given to Sandy was that the plaintiff missed Argen (§6.8 above) instead of the obvious, namely as the renovation had been completed, the defendant was obliged to return Argen.

(5) Even after the dispute had crystallized in mid-May 2022, the plaintiff’s response on 18 May 2022 (§6.10 above) made no mention of the arrangement allegedly agreed with the defendant on 25 April 2022.

(6) The suggestion that Argen’s adoption was only a side issue is contradicted by the H&H Letter and the L&L Letter, which elevated adoption as being the principal matter discussed between the plaintiff and the defendant (§§7.5 and 7.8 above).

(7) It is common ground that the plaintiff became sad and emotional at the end of the 25 April 2022 visit. However, the plaintiff was obviously accustomed to Argen living elsewhere. It seems to me more likely than not that the plaintiff became sad and emotional because it dawned on her at the end of the 25 April 2022 visit that, contrary to the previous arrangement, she would no longer have “unfettered” access to Argen. Looking at it from another perspective, as I have found at §7.4(2) above, there were clearly other viable alternatives to cater for the Flat’s renovation and it was entirely unnecessary to subject herself to such emotions.

(8) The defendant’s view following the 25 April 2022 visit (supported by contemporaneous records which came into existence before any dispute had arisen) militates against the plaintiff’s case. The message sent by the defendant to Terence on the next day plainly indicated that she already regarded Argen as a member of the family. It is unlikely that the defendant would behave so presumptuously, if the only an agreement for temporary care was reached at the 25 April 2022 visit.

7.16For the above reasons, I do not accept the Poons’ evidence set out at §5.3 above.

7.17Although I have rejected the Poons’ evidence on what transpired during the 25 April 2022 visit, it does not automatically follow that the evidence of the Wongs and Sandy should be accepted. In this regard, I have carefully considered the criticisms advanced by Mr Cheung. However, I am not persuaded that the evidence of the Wongs and Sandy is inherently unlikely, illogical or is not to be believed.

7.18As a general proposition, for the reasons set out at §§7.12(2) and (3) above, I agree with Mr Cheung that I should place less weight on Sandy’s recollection on the discussion between the Poons and the Wongs on Argen during the 25 April 2022 visit.

7.19On the specifics, Mr Cheung at his Closing Submissions §§44-53 criticized four aspects of the Wongs’ evidence.

7.20First, Mr Cheung submitted that it was inherently unlikely that the plaintiff would have said that she would lock Argen in a room (§5.2(6) above), as such an arrangement bordered on a case of neglect and maltreatment and was potentially a criminal act.

7.21I do not agree. It is clear from the relevant invoice that the renovation works were carried out mainly in the master bedroom. The suggestion that keeping Argen in a separate room amounted to neglect and maltreatment is an exaggeration. Sending Argen to a pet hotel cannot be considered to be objectively superior, as the evidence shows that Argen would also be only provided with a small space in a pet hotel.

7.22Secondly, Mr Cheung submitted that it was unlikely that the plaintiff would have said that if things turned out to be problematic the defendant could return Argen (§5.2(8) above) (“Return Arrangement”). This is because, Mr Cheung submitted, if the plaintiff had wanted to gift Argen away because of her other commitments, it was improbable that she would suggest the Return Arrangements because there would be no change in the meantime in respect of the gift’s underlying premise, namely the plaintiff’s other commitments.

7.23I also do not agree with Mr Cheung on his second criticism. As stated at §3.14 above, whilst the plaintiff’s love for Argen may necessarily be synonymous with keeping Argen, should things not work out with the defendant, it did not mean that the plaintiff would not want to be in a position to look for an alternative owner. Indeed, one would expect the plaintiff to want to be in that position, instead of leaving Argen’s future to be decided by the new (but incompatible) owner.

7.24Thirdly, Mr Cheung argued that it was unlikely that the plaintiff and the defendant would have agreed to an adoption at the 25 April 2022 visit when both of them could not be sure that Argen would get along with the defendant’s cat or be able to acclimatize to the new environment.

7.25Dealing first with the defendant, she had plainly regarded Argen as family (albeit sooner than she had expected) on the day following the 25 April 2022 visit (§6.3 above). As regards the plaintiff, and related to Mr Cheung’s second criticism, I do not regard it is inherently improbable for the plaintiff to have dealt with the matter by the Return Arrangement. Indeed, on the evening of 25 April 2022, the plaintiff had already stated that she and Julian were at ease as they were of the view that the defendant was a cat-lover. In the above regard, it seems to me pertinent to also take into account that the plaintiff had effectively waited for the Wongs to visit Argen (§7.4(3) above).

7.26I therefore also do not agree with Mr Cheung’s third criticism.

7.27Fourthly, Mr Cheung submitted the defendant’s case is militated by the following undisputed facts:

(1) the plaintiff has not released to the defendant Argen’s vaccination records;

(2) the plaintiff has not notified SPCA of any change of Argen’s ownership, which is a requirement under Clause 7 of the Adoption Agreement;

(3) the name linked to Argen’s microchip as recorded in SPCA’s system remains that of the plaintiff.

7.28Mr Cheung’s fourth criticism is not strictly one targeted at the credibility of the Wongs’ evidence set out at §5.2 above, but a submission on whether, despite making a finding at along the lines of §5.2, whether the evidence is sufficiently clear and unequivocal to show that a gift was intended by the plaintiff. I shall deal with this in the next section.

7.29For the above reasons, I do not agree with Mr Cheung’s submission that the defendant’s factual actual is inherently improbable or illogical. Mr Cheung has also not identified any material to show that the Wongs’ evidence has departed from or contradicted by any contemporaneous records. I accept the Wongs’ evidence and make a finding along the lines of §5.2 above.

8.Determination of the Issue

8.1As stated at §1.6 above, Mr Cheung advances a two-pronged argument. In the previous sections, I have already found against the plaintiff on the facts. I shall now deal with Mr Cheung’s alternative argument, namely whether the evidence as found (in favour of the defendant) is sufficiently clear and unequivocal to show that an absolute and unconditional gift was intended by the plaintiff on 25 April 2022.

8.2There is a large measure of agreement between Mr Cheung and Mr Mak on the applicable principles.

8.3DHCJ Paul Lam SC has summarized the relevant principles at Ng Kit, the legal representative and sole beneficiary of the estate of Ng Kwun Yuen (deceased) v Wu Tsun Hua & Ors [2021] HKCFI 877 §33. In gist:

(1) If a gift is claimed, the onus is on the donee to prove it.

(2) A gift made between living persons (inter vivos) may be defined shortly as the transfer of any property from one person to another gratuitously, while the donor is alive, and not in expectation of death. It is an act whereby something is voluntarily transferred from the true owner in possession with the full intention that the thing shall not return to the donor.

(3) Gifts of chattels are more often made by delivery than by deed. A gift of chattels is not complete unless accompanied by delivery. Actual delivery is not mere evidence of the gift, but is a part of the gift itself. To constitute delivery, the act must be such, or be accompanied by such words, as to be unequivocal.

(4) Prima facie, the donor of a completed gift is not entitled to revoke it.

8.4As stated at Day v Harris [2014] Ch 211 §69, in ascertaining the intention of a party, the issue depends not on the subjective intention of that party but rather his intention objectively ascertained from his words and conduct. The recipient, in making a case for a gift, must prove an intention in the deliveror to make a gift, an intention of the recipient to accept the gift and delivery. Mr Cheung emphasized that the requirement is to show a clear, unequivocal and distinct act of gift.

8.5At Palmer on Bailment, 3^rd Ed §3-013, the learned author listed a number of evidential criteria by which a court may determine whether a delivery of a chattel imports a gift or a loan. For example, reference may be made to the conduct by one or both parties and an assessment is carried out on whether it indicates a perception of the relationship more convincingly explicable by reference to one possible version of that relationship than by reference to an alternative version. All of the criteria set out by the learned author appear to me to be propositions of common sense.

8.6As I understand Mr Cheung, there are two major planks to his argument that the defendant is unable discharge her burden to show that the plaintiff had intended to gift Argen absolutely and unconditionally to the defendant on 25 April 2022.

(1) First, as set out at §4.16 above, it is Mr Cheung’s submission that there is no direct evidence on the plaintiff’s intention during the period prior to the 25 April 2022 visit (section 4 above). The question which I have to determine is whether Mr Cheung is right in his submission things said by Sandy and the Wongs’ interpretation of them cannot be attributed to the plaintiff and do not shed light on the plaintiff’s intention. In particular, Mr Cheung argued that the defendant had confirmed on the first day of trial that she was not advancing a case that Sandy was somehow the plaintiff’s agent.

(2) Secondly, Mr Cheung submitted that it is inappropriate to take into account what happened after Terence had agreed to take away Argen on 25 April 2022 (§5.2(7) above), as it is the defendant’s position that a gift was already made by that juncture.

8.7I do not agree with the first plank of Mr Cheung’s argument, in particular his submission that there is no evidence showing that things said by Sandy were known to, authorized by and/or adopted by the plaintiff prior to 25 April 2022. In my view, stripped of any legal argument on agency, there is ample evidence from which appropriate inference may be drawn on the plaintiff’s intention.

8.8First, for the reasons set out at §§7.2 to 7.10 above, I have found that Julian approached Sandy in late January 2022 on the basis that Argen was up for adoption as the Poons were of the view that they could not give Argen the requisite care. In my view, the approach made by Julian must have been the result of discussions and agreement between the plaintiff and Julian. As stated at §7.5 above, I have rejected the plaintiff’s evidence that she and Julian were never of the view that they were unable to take care of Argen and that Julian would not have said the same to Sandy.

8.9Secondly, the evidence shows that the plaintiff sought to delay bringing Argen back to the Flat.

(1) On the plaintiff’s case, the promise made to Mrs Poon was that Argen should be permitted to stay in Mrs Poon’s flat for a period after her expected demise so as to give more time for Argen to adapt to losing her (§3.7 above).

(2) One would have thought that Mrs Poon’s memorial service on 23 January 2022 (§4.1 above) would reasonably have brought closure to the family’s loss and sufficient time would have elapsed for Argen to make the necessary adaptation. The Poons obviously thought so, as they approached Perthena for temporary assistance which meant that they thought Argen was ready to move away from Mrs Poon’s flat.

(3) Yet, the Poons did not bring Argen back to the Flat when Perthena was unable to offer assistance.

(4) Instead, the Poons approached Sandy for assistance and Argen continued to stay at Telford Gardens over the Lunar New Year holidays and the proposed visit by the defendant on 4 February 2022 was to take place at Telford Gardens (§§4.5 to 4.7 above).

(5) As stated at §7.9(3) above, there is no suggestion that the renovation was to commence either before or immediately after the Lunar New Year and I am unable to see any reason (and the plaintiff has not offered any) as to why she did not bring Argen back to the Flat in late January 2022, if the sole reason was due to the Flat’s renovation.

(6) In my view, the inference to be drawn is that the decision to keep Argen at Telford Garden must also have been the result of discussion and agreement between the plaintiff and Julian.

8.10Thirdly, I have already commented that the approach made by Julian to Sandy on 14 March 2022 was also unlikely to be related to the Flat’s renovation (§7.9(3)) above. I am similarly of the view that the Julian’s approach to Sandy was the result and agreement between the plaintiff and Julian.

8.11Fourthly, I have already found that the dinner with Perthena and Candice on 24 April 2022 was organized by the Poons for the purpose of bidding farewell to Argen. It is clear that it sheds light on the plaintiff’s intention at the material time.

8.12I also do not agree with the second plank of Mr Cheung’s argument. Many of the criteria set out at Palmer on Bailment §3-013 involve the assessment of subsequent events or conduct in ascertaining the parties’ intention. With no intention of criticizing Mr Cheung, it seems to me that the second plank of his argument is advanced in recognition that the events after Terence’s agreement to taken Argen away on 25 April 2022 (as found) are better explicable by reference to adoption than a temporary arrangement.

8.13In my view, the evidence on the plaintiff’s intention to gift Argen to the defendant is clear and unequivocal. I have come to this conclusion based on all the factual findings made in the previous sections and where necessary the additional inferences to be drawn therefrom.

(1) In late January 2022, Julian approached Sandy on the basis that it had been discussed and agreed between the plaintiff and Julian that they were unable to continue to take care of Argen. That was the message conveyed by Sandy during the lunch on 28 January 2022 and understood as such by the Wongs (§§4.1 to 4.3 and 7.2 to 7.10 above).

(2) The visit originally scheduled for 4 February 2022 (but cancelled due to Argen’s injury) was not related to the Flat’s renovation, but arranged on the basis that Poons were happy for the defendant to take Argen home (§§4.4 to 4.5 above).

(3) The request made to the defendant to visit Argen on 14 March 2022 was unrelated to the Flat’s renovation (§§4.8 and 7.9(3) above) and represented a continuation of offering Argen for adoption.

(4) On 9 April 2022, Julian asked Sandy whether the defendant still wanted Argen and on the following day, Sandy enquired with the defendant on that basis (§4.10).

(5) The plaintiff was aware of the events on 4 February, 14 March and 9 April 2022 and they all show that her intention was to gift Argen to the defendant on 25 April 2022. This is evidenced by the dinner on 24 April 2022 organized for the purpose for Perthena and Argen to bid farewell to Argen (§§7.11-7.13 above).

(6) The plaintiff therefore knew that the 25 April 2022 visit was for the Wongs to decide whether to adopt Argen and the gift was complete when Terence agreed to take Argen away.

(7) As regards the Return Arrangement, I am of the view that it should be understood, not as any form of reservation on the plaintiff’s part that Argen should be returned to her, but as an obvious possibility that the defendant may disclaim the gift. This is clear from the language of the phrase “唔緊要㗎，如果之後真係唔OK，你可以俾返我㗎”.

(8) The plaintiff becoming sad towards the end of the visit is more explicable by Argen’s adoption than placing Argen in the temporary care of the defendant during the Flat’s renovation (§7.15(7) above).

(9) The language used by the plaintiff in the correspondence with the defendant before 8 May 2022 is more consistent with an arrangement of more permanent nature (ie the hope that Argen and the defendant’s cat would become good sisters) (§§6.1 to 6.6 above).

(10) The request by Julian to Sandy to ask for Argen’s return because the plaintiff missed Argen is indicative of a change of heart on the plaintiff’s part (§§6.8 and 7.15(3) and (4) above), and as such an attempt to revoke the gift.

(11) The position set out in the H&H Letter, the plaintiff’s Police Statement and the L&L Letter is more consistent with Argen’s adoption and directly contradict the plaintiff’s evidence given at the trial, namely the arrangement was only one of temporary care during the Flat’s renovation (§§7.5 to 7.8 above).

8.14As stated at §§7.27 to 7.28 above, Mr Cheung also took the point that (1) the plaintiff has not released to the defendant Argen’s vaccination records, (2) the plaintiff has not notified SPCA of any change of Argen’s ownership, which is a requirement under Clause 7 of the Adoption Agreement and (3) the name linked to Argen’s microchip as recorded in SPCA’s system remains that of the plaintiff.

8.15I do not regard the above factors as having the effect of diluting the clear evidence on the plaintiff’s intention of making gifting Argen to the defendant on 25 April 2022. The primary point is that it has not been suggested by Mr Cheung that they are conditions to be fulfilled before the gift could be “perfected”. As I understand Mr Cheung, he sought to rely on these factors as showing some reservations on the part of the plaintiff.

8.16But Mr Cheung’s submission is predicated on the assumption that these factors can be objectively viewed as significant. In my view, they cannot be so regarded. The vaccination records do not have any real significance, as the last entry was dated 12 August 2014, namely after Argen received her third vaccination shot shortly after her adoption. It has not been suggested that there is any real repercussion from the failure to comply with Clause 7 of the Adoption Agreement or to change the microchip records.

8.17For all the above reasons, I answer the Issue in the in the affirmative.

9.Conclusion

9.1As a result, I dismiss the plaintiff’s claim for the return of Argen.

9.2I also make a costs order nisi that the plaintiff is to pay to the defendant the costs of this action (including any costs reserved) to be taxed if not agreed with a certificate for counsel.

9.3I thank all counsel for their assistance.

Mr Tommy Cheung, instructed by Lam and Lai, for the plaintiff

Mr Bernard Mak leading Mr Bryan Lee, instructed by Anthony Siu & Co, for the defendant