Pang Kam Chuen, The Sole Executor of the Estate of Pang Yeuk Chi, Deceased v. Pang Kam Bor

DCCJ 348/2021

[2023] HKDC 1346

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 348 OF 2021

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JUDGMENT

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Introduction

1.This is a difficult case. I am being asked to determine the true intention of one Mr Pang Yeuk Chi (彭若慈) (“the Father”) back in 1986 (ie, 37 years ago) when he paid for the down payment for a residential unit known as “Flat F, 4^th Floor & Flat Roof, Kwai Fu Building, Kwai Chung, New Territories” (“the Property”) now registered in the sole name of the Defendant (“D”), who was one of the Father’s many sons.

2.The plaintiff (“P”) said the Property was subject to a common intention constructive trust (“CICT”). D said the Property was an absolute gift from the Father to him.

3.The Father was alive when this action started but sadly passed away before the commencement of the trial on 18 May 2023.

4.By reason of the above, I am being asked to determine the true intention of a person I never met, and without hearing his live evidence.

5.I shall do my best.

Background Facts

6.For reasons which will become apparent in later parts of this judgment, I should set out the background facts before I start analyzing the evidence and the issue in dispute.

7.The Father was born in Mainland China in 1940.

8.It is common ground, and indeed extremely well-known, that the People’s Republic of China (“PRC”) was founded on 1 October 1949. Prior to that, there was a lengthy period when China was in civil war (“the Civil War”). The Civil War was between Kuomintang (“KMT”) on one side, and the Chinese Communist Party (“CCP”) on the other side. KMT lost. CCP won. Since some family members of the Father supported KMT during the Civil War, the Father suffered, at least politically, upon KMT’s defeat, especially during the Cultural Revolution which, as is well-known, started in Mainland China in around May 1966. For that reason, the Father and his eldest son (from his first marriage) Mr Pang Kam Kuen (“Kuen”) left Mainland China for good and came to Hong Kong in 1968. The Father was unable to bring all of his family members to Hong Kong at one go. D, then aged 4, became separated from him. On D’s case, D managed to come to Hong Kong to join the Father in 1979, when D was about 15. On P’s case, that occurred in 1982, when D was about 18. Nothing important turns on this, though I must say for the record that according to D’s HKID Card, the original of which I inspected before D took his oath in the witness box, D had the first version of his HKID Card issued to him by the Hong Kong Government in November 1979, which indicated D’s version of events was correct, whereas P’s version of events cannot possibly be true.

9.Partly by reason of the way the parties argued their respective cases at the trial, it is important to note that the Father was a businessman, and had been one since at least 20 March 1974, when he started a furniture business in Hong Kong, wholly owned by him as a sole proprietor, which was registered in the Business Registration Office (“BRO”) of the Inland Revenue Department (“IRD”) as “Kar Wah Furniture Trading Co” (“Kar Wah”). The Father operated Kar Wah from 1974 to around 2000, ie, for around 26 years, and he was reasonably good at keeping documents. I will come back to this.

10.The Father and his first wife, Madam Cheung Wai Chun, had 4 children, namely:-

(1)  Kuen – a son born in 1959;

(2)  D – a son born in 1964;

(3)  Pang Siu Yue (“Yue”) – a daughter born in 1965; and

(4)  Pang Kam Chu (“Chu”) – a son born in 1968.

11.The Father and his second wife, Madam Yau Yuk Mui (“the Widow”), had 3 children, as follows:-

(1)  Pang Kam Tin (“Tin”) – a son born in 1973;

(2)  P – a son born in 1974; and

(3)  Pang Kam Ying (“Ying”) – a daughter born in 1976.

12.By an assignment dated 8 December 1986 duly registered in the Land Registry with Memorial No TW418935 (“the Assignment”), D became the sole registered owner of the Property.

13.By a legal charge, also dated 8 December 1986, with (1) D as the named mortgagor; (2) the Father as the named borrower; and (3) Bank of Communications (“the Bank”) as the named mortgagee, duly registered in the Land Registry with Memorial No TW418936 (“Mortgage Deed”), the Property had been charged to the Bank for the sum of HK$120,000 plus interests, etc.

14.The parties agreed the Father paid for everything.

The Witnesses – Overview

15.The following witnesses gave live evidence at the trial, in this order of appearance:-

(1)  The Widow;

(2)  P;

(3)  D;

(4)  Madam Lam Chau Wan (“D’s Wife”);

(5)  Tsang Lam (“the Employee”);

(6)  Chu;

(7)  Yue; and

(8)  Yuen Kwong Hau (“Hau”).

The Law – Analyzing Evidence

16.There is no real dispute as to how I should go about analyzing the live oral evidence. What was said by DHCJ Thomas Au, as Au JA then was, in Lee Fu Wing v Yau Po Ting Paul [2009] 5 HKLRD 513 (§53), and what was said by DHCJ Paul Lam SC in Taishin International Bank Co, Ltd v QFI Limited [2020] HKCFI 2116 (§13), were particularly helpful. I am guided by those dicta. I am also aware of what was said in Phipson on Evidence (20^th Edition, Chapter 45, including its §45-24), and I considered that as well.

The Evidence Of The Widow

17.I find the Widow’s evidence generally unreliable, or at least generally unhelpful, for these reasons:-

(1)  Most, if not all, of the things the Widow had ever said about the purchase of the Property she said she had only heard from the Father, and it was her own evidence that she did not ask questions (“我對他的決定沒有過問”). The Father was never cross-examined, since he passed away before the start of the trial. I am not satisfied the Father must have told the Widow the truth, or the whole truth. I say this since it is common ground D was a son of the Father’s first wife, as opposed to a biological son of the Widow herself, and I could see with my own two eyes, from the way the Widow and D spoke about each other whilst giving sworn evidence before me, that they obviously did not like each other at all. With this as the background, I have reservations whether the Father had been honest with the Widow vis-à-vis the true financial arrangements between the Father and D. In my view, it is entirely possible the Father lied to the Widow and P about these things with the best of intentions, such as to keep the Widow and P happy. I am fully aware I should never speculate, but in assessing the Widow’s evidence I certainly need to remind myself that her evidence was mostly hearsay, and relying on hearsay evidence can be dangerous. Just as there was no direct evidence that the Husband had lied to the Widow or P, there was also no direct evidence the Husband had told the Widow or P the whole truth. All things considered I am of the view that I should not put any real weight on any part of the Widow’s evidence.

(2)  In fact, I am not even sure whether the Widow had been truthful. For example, her first witness statement, made on 13 August 2021, only had one sentence on the issue of the mortgage loan arrangements for the Property. On 3 April 2023, she made a second witness statement and it had a substantially expanded section on the very same issue. That brand-new section alleged, for the first time, that she was present at the Bank when the Father made inquiries and she heard all discussions. She was cross-examined about this “expansion” of evidence, and she was wholly unable to provide this court with a logical or otherwise acceptable reason why, if this brand-new allegation that she was present at the Bank was true, she did not mention it at the first available opportunity, ie, in her first witness statement made on 13 August 2021.

(3)  In §16 of the Widow’s first witness statement made on 13 August 2021, there was a bizarre allegation that “丈夫透過親戚向彭錦波提出把葵富大廈的業權轉讓給他”. The “親戚” (ie, relative) was nameless. Since most people had names, I specifically asked the Widow why this relative had no name, or whether she had ever asked for the name of this relative. The Widow said she did ask the Father for the name whilst he was still alive, but she could not recall his answer. Given the fact that the Father and the Widow had obviously been in a close relationship since before 1973 (when Tin was born) and got married since 1979, I find the Widow’s inability to name the relative highly suspicious, to say the least. In my view, this allegation is probably false, although as I shall explain at appropriate places below, nothing turns on this.

The Evidence Of P

18.I find P’s evidence similarly unreliable, or at least unhelpful, for these reasons:-

(1)  Just like the Widow, most, if not all, of the things P said about the purchase of the Property he said he only heard about them from the Father. Since P was only about 12 back in 1986 when the Property was bought, most if not all of those alleged conversations with the Father were not even contemporaneous. The Father could have just lied to P or he could have just changed his mind by the time he spoke to P about the Property. P’s evidence is therefore even less useful. I would not put any weight on any part of P’s evidence whatsoever.

(2)  P’s evidence under cross-examination demonstrated, at the very least, P’s indifference vis-à-vis being accurate, or telling this court the truth, even when he was under oath. The classic example is P’s answer under oath that P had never read the Father’s witness statements until the day P was cross-examined. That answer under oath was contradicted by what P had himself said in his own witness statements, which P had confirmed on oath just earlier on the same day. I find P’s indifference vis-à-vis accuracy, or the truth, shocking. In such circumstances, I am unable to rely on anything P had ever said.

(3)  P’s evidence under cross-examination also showed that he was making things up as he went along. The classic example is P’s evidence on what can perhaps be called “the Kowloon City incident”. According to P, in 2010, he bumped into D on a street in Kowloon City whilst D was parking his car, whereupon P orally demanded, on behalf of the Father, that the Property be assigned to the Father. If this incident did happen, there was no reason why P could have forgotten to put this into either of his witness statements, given its obvious relevance. But it is common ground P never mentioned this, in any way or form, at any point prior to his being cross-examined. P’s explanation under oath on why he never mentioned this incident was that P expected “the main witness” to be the Father. That made no sense whatsoever because according to P, only P (but not the Father) bumped into D so that the evidence would have to come from P, and not the Father. In my view, the more probable reason is that “the Kowloon City incident” never happened at all and P was just making things up as he went along.

(4)  Further, P had also attempted to “expand” his evidence in many other ways over time. For example, in §13 of P’s witness statement dated 13 August 2021, P referred to an oral conversation in 1986 (when P was about 12) where the Father was said to have told P “我們一家將搬進葵富大廈”. There was no reference to ownership, or beneficial interest. In P’s second witness statement dated 3 April 2023, that conversation was suddenly said to have included the declaration “層樓係我地嘅”. I do find that “expansion” suspicious, to say the least. P was asked to explain this “expansion” of evidence to me. P was wholly unable to explain it.

(5)  P’s evidence was also full of internal contradictions and inconsistencies which P was wholly unable to explain. In §5 of P’s second witness statement, for example, P said “據我所知所信，我確認父親的證人陳述書及父親的補充證人陳述書的所有段落均為真實”. If that were true, then the Father’s assertion that “我的確沒有他的聯絡方式” vis-à-vis D should also be true. In P’s oral evidence, however, P repeatedly insisted the Father had D’s mobile number because P had given that to the Father himself. P’s oral evidence flatly contradicted his own witness statement. In fact, P either lied under oath when he confirmed §5 of his second witness statement as true, or he lied under oath when he orally insisted the Father had D’s mobile number. Either way, P lied under oath. In such circumstances, I am unable to rely on any part of P’s evidence.

The Evidence Of D

19.I find D’s evidence more reliable because:-

(1)  Most if not all of D’s evidence, including, specifically, D’s explanation as to why he had for many years been content to assist the Father run Kar Wah without taking salaries was logical, accorded with common sense, and was fully supported by the evidence of other witnesses called by him. In particular, as I shall elaborate below, D’s key evidence was supported by the evidence of D’s Wife who on my assessment was an even more reliable witness.

(2)  D’s demeanour while giving evidence demonstrated to me D cared about accuracy and truthfulness.

The Evidence Of D’s Wife

20.I find the evidence of D’s Wife even more reliable because:-

(1)  The evidence of D’s Wife, including her explanation on why her mother in Mainland China once went on a “due diligence” trip to Hong Kong to basically “check” D’s suitability as a future son-in-law, was convincing. Her evidence adequately explained why the Father in most likelihood intended to gift the Property to D absolutely (as a marital gift) back in 1986 so as to ensure the two parents of D’s Wife would proceed to give the intended marriage their blessings.

(2)  D’s Wife answered all questions in a most spontaneous manner, which was indicative of her being truthful. In fact, as I was watching D’s Wife being cross-examined by Mr Alan Leong SC, Leading Counsel for P, in a most skillful manner, I started to feel sorry for Mr Leong, for none of his cross-examination questions had the effect of diminishing, in any way or form or to any degree, the credibility of the evidence of D’s Wife, despite the very high level of skills being utilized by Mr Leong.

The Evidence Of The Employee

21.I also find the evidence of the Employee reliable because:-

(1)  The Employee struck me as a simple and honest person who gave his evidence in a straightforward manner. He was truly independent, as he had no financial interest in the outcome of this action, and he was not related to any of the people featured in this litigation, save and except as an old friend of D. By the time he gave evidence, he was retired, and had no axe to grind. He was relaxed in his mannerism, and it appeared to me it was because the outcome of this action was of no concern to him.

(2)  Everything said by the Employee was logical.

The Evidence Of Chu

22.I find the evidence of Chu reliable because:-

(1)  Chronologically, D’s Wife had been cross-examined by Mr Alan Leong SC, Leading Counsel for P, first. When it was Chu’s turn to be cross-examined, Mr Leong, as he was of course entitled to, used the evidence given by D’s Wife in the questioning, doing so without acting in breach of the rule in HKSAR v Nancy Kissel (2010) 13 HKCFAR 27 (§75 & §76). The general direction of Mr Leong’s questioning of Chu included whether Chu had himself heard specific things being talked about in the household. I paid particular attention to Chu’s answers to these questions. I noticed Chu was extremely careful in his answers, qualifying them with explanations when necessary. I had the distinct impression that Chu did so because he cared about accuracy, and the need to avoid misleading me in any way or form. It seemed to me Chu was an honest person with impeccable integrity, and he took his duty to tell me “the truth, the whole truth, and nothing but the truth” very seriously.

(2)  On being asked why he was not at the Father’s funeral, Chu gave a full, and logical, answer. I had the distinct impression that he was speaking from the bottom of his heart, and that he took his duty to be truthful seriously, even when he was just answering a question of no direct relevance to the main issue in this action.

(3)  The contents of Chu’s evidence accorded with common sense.

The Evidence Of Yue

23.I find the evidence of Yue reliable because:-

(1)  Despite the skilful and laborious cross-examination by Mr Leong, Yue’s evidence was unshaken. For literally all questions asked by Mr Leong, Yue gave simple and direct answers which accorded with common sense, in natural and spontaneous ways, without having to think. In my view, that was indicative of Yue telling the truth in a frank and honest manner.

(2)  When Yue did not know something (eg, whether Kuen received any salary), Yue simply said so directly. This gave me the impression that Yue was also a most honest person with impeccable integrity, and that she also took her obligation to tell me “the truth, the whole truth, and nothing but the truth” very seriously.

The Evidence Of Hau

24.I find the evidence of the Hau reliable because:-

(1)  Just like the case of Yue (who was Hau’s wife), despite the hard work of Mr Leong, Hau’s evidence was wholly unshaken. Whilst Hau’s manner of speaking was rather colourful the substance of Hau’s evidence was coherent and corroborated what all other witnesses from D’s side had said.

(2)  Mr Leong had sensibly never put to Hau that he lied or was otherwise an unreliable witness.

The Hearsay Notice

25.It is common ground the Father passed away on 9 November 2022, making it impossible for him to give live evidence at the trial, which commenced on 18 May 2023. In compliance with §1 of the Order of DDJ Anthony Chan dated 3 April 2023, P’s solicitors filed a hearsay notice vis-à-vis (1) the Father’s Witness Statement dated 13 August 2021; and (2) the Father’s Second Witness Statement dated 10 December 2021 (collectively, “the Father’s Statements”) on 4 April 2023.

26.By reason of the matters set out above, I should perhaps also explain my considerations vis-à-vis the weight, if any, given to the Father’s Statements, by reference to Section 49 of the Evidence Ordinance (Cap 8) (“the EO”), which reads as follows: -

“(1) In estimating the weight, if any, to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) For the purposes of subsection (1), regard may be had, in particular, to the following—

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight;

(g) whether or not the evidence adduced by the party is consistent with any evidence previously adduced by the party.”

27.I give no weight to the Father’s Statements, having considered that their contents are in my view completely unreliable because:-

(1)  The Father’s Statements were made in 2021, ie, around 35 years after the key events in 1986. They were by no means made contemporaneously with the occurrence of the key events in 1986.

(2)  The Father had a financial interest in the outcome of the action, and thus a potential motive to lie.

(3)  The Father sought to say D came to Hong Kong in 1982 but that was flatly contradicted by D’s HKID Card, the original of which I inspected, and a true copy of which had been duly disclosed by D in November 2021.

(4)  The Father sought to say “彭錦波從沒有向其他人宣稱自己是葵富大廈的業主” (ie, D never ever claimed to any person whosoever that he was the owner of the Property) when, plainly, what D had or had not said to 3^rd parties unknown to the Father would be beyond the Father’s personal knowledge.

(5)  The Father sought to assert he did not have D’s mobile number, but P, in his oral evidence, given under oath, repeatedly insisted the Father had D’s mobile number because P had himself given that to the Father.

(6)  The Father made a bizarre allegation that “我向親戚透露我想把彭錦波在葵富大廈的業權轉讓給我，透過親戚向彭錦波提出辦理轉名手續”. The “親戚” (ie, relative) was nameless. I found this highly suspicious, to say the least.

(7)  The Father sought to say “近年出席彭錦波的大女兒結婚設宴擺酒時，他也沒有叫孫女向我斟茶。我沒有感受到被他尊重” (ie, the Father felt that he did not get the respect he deserved from D, when D never asked D’s daughter to perform a traditional tea pouring ritual for him during D’s daughter’s wedding banquet). In my view, if the Father’s assertion was true, then this feeling of anger or disappointment which the Father seemed to have attempted to convey using those words may mean the Father had yet another potential motive to lie in this litigation in order to “get back at” D.

P’s Case Improbable

28.P’s case, as pleaded in §4 of the Statement of Claim (“SoC”), was that for the ease of obtaining a mortgage loan from the Bank, the Father acquired the Property in the name of D, on trust. By §5 of the SoC, it was alleged it was “the common intention” of the Father and D that despite the acquisition of the Property in the name of D, the sole beneficial owner of the Property would be the Father. By Mr Leong’s oral opening, P made it clear his case was the existence of an express agreement between the Father and D, made orally, on the terms of purchasing and registering the Property in D’s name. In effect, I am being invited to enforce the terms of an alleged oral agreement on beneficial interests in land “through the backdoor”. As I mentioned in Chan Kang Hung Bovis v Chan Kang Kong [2023] HKDC 933, the law allows litigants to do so. See Lewin on Trusts (20^th Edition), §10-074, or Clough v Killey and Ors (1996) 72 P & CR D22. Indeed, by §16 of Mr Leong’s written opening, Mr Leong also invited me to apply as correct what was said by Godfrey Lam J (as Lam JA then was) in Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 (§46 to §50) to the effect that in all CICT litigation, one should start with “evidence of express discussions” whilst at all times recognizing and remembering the parties’ other conduct “remains relevant as a matter by reference to which their assertions about the agreement or understanding must be gauged and tested”. I accept Mr Leong’s submissions on the law as correct and I adopt the approach as set out in Liu Wai Keung (above).

29.Having carefully considered all evidence and submissions for this matter, however, I come to the firm view that P’s case is improbable. It is my finding that there was no agreement between the Father and D that D shall hold the Property on trust for the Father, and there was no common intention that despite the acquisition of the Property in the name of D, the sole beneficial owner of the Property would be the Father. In fact, it is my finding that the Father intended to gift the Property to D absolutely, which the Father did. The Father’s allegation of CICT was, in my view, nothing more than an afterthought, and was untrue.

30.On balance of probabilities, I reject P’s case as false.

31.Firstly, P’s case is inherently unlikely. This was discussed in oral closing submissions. P’s alleged oral agreement, that of D holding the Property on trust for the Father, was one with no benefit to D whatsoever, but detrimental to D in the sense that the arrangement would mean D would then lose his entitlement to apply for public housing benefits. It seemed to me that D would never have agreed to any such arrangement if it was ever mentioned to him as alleged. Mr Leong’s answer to this was that on Chu’s oral evidence, the Father was the leader of the family, and everyone would just do whatever the Father said should be done. Assuming this to be right, Mr Leong capably argued, there was no inherent implausibility.

32.I have carefully considered Mr Leong’s answer, but at the end of the day I reject it. In my view, there is no real conflict between accepting Chu’s evidence and saying P’s case is inherently unlikely. That is because no matter how deferential the sons of the Father really were there must still be some limits as to what the sons would be prepared to do on instructions. To think of an extreme example, had the Father ordered D to get Chu killed, then judging from the character of D as I could observe when he was giving sworn evidence in the box, D would most probably have said no. Common sense would tell us deference to parents was unlikely to be literally absolute so that much would depend on the nature of the instructions and their likely consequences. It seems to me it was indeed inherently implausible for any person in D’s position to be willing to lose his entitlement to public housing benefits just because the Father, or any parent, had asked.

33.Secondly, and this was discussed in Mr Leong’s oral opening, P’s case may amount to a suggestion that the Father and D had in December 1986 conspired with each other to use dishonest means to deceive the Bank into advancing a large sum of money to them. If P’s case was the truth, the Father and D could have been prosecuted for and convicted of the common law crime of conspiracy to defraud the essential elements of which were as stated in HKSAR v Mo Yuk Ping (2007) 10 HKCFAR 386 (§40 to §55, per Sir Anthony Mason NPJ). I said “could have been” since if the Father and D had in fact been prosecuted (they never were), they could have contested the charge in a number of ways, and I should not speculate. I do, however, have to mention this because this potential issue of criminality also makes P’s case inherently implausible. Asking rhetorically, why would the Father and D risk going to prison over this? Looking at all factual circumstances as they existed in 1986, it was highly improbable that they would do so.

34.Thirdly, even if I were to ignore the inherent implausibility of P’s case, and just focus on the sworn evidence, I would still have rejected P’s case as false because of D’s denial on oath. D’s sworn evidence, which I accept as the truth, was that the Father had never asked that D be a “mere nominee” or “trustee”, and D had never said yes to something which was never even asked of him.

35.When P’s case on this was specifically put to D by Mr Leong, D’s answer on oath was:-

「一定唔同意喇。呢個係作得仲離譜喇，係咪先？你買樓，無𢲡𢲡捉我去簽名喎，你傻嘅咩？你當我-當我白痴嘅咩？」

[English translation: “I definitely disagree. This fabrication was even more outrageous, right? You buy a flat, and grab me to sign my name for no reason, are you insane? Are you treating me – treating me like an idiot?”]

36.Fourthly, as alluded to above, the Father was reasonably good at keeping documents. He actually kept, and produced in this legal action, documents created in 1986 for the purchase of the Property, including some receipts issued by the estate agent in 1986, and some receipts issued by the solicitors’ firm which handled the conveyancing work in 1986. That being the case, it must be observed the Father (or P after the Father sadly passed away on 9 November 2022) never produced any document created in 1986 which demonstrated, by way of unchallengeable contemporaneous record, that the alleged agreement between the Father and D existed. There was no declaration of trust and no handwritten letter. In my view, that was because the Property was an absolute gift from the Father to D, and this whole claim of CICT was just an untrue afterthought.

37.When I specifically asked Mr Leong about this at oral closing, Mr Leong’s answer was:-

“Your Honour, again, my submission is that this point need not exercise your mind anymore because the Father was the one calling the shots. Nobody dared to offend him… with his authority in this kind of family, it would not be reasonable to expect that he would ask the son to sign a piece of paper declaring that he was holding the Property only for the convenience of getting mortgage because, both from the Father’s end and from the son’s end, this is totally unnecessary.”

38.I am positive Mr Leong had said all that could responsibly be said about this on behalf of P. In my view, the point is not so much whether creating a document was “necessary”. The point is what I should make of the conspicuous absence of contemporaneous records vis-à-vis the alleged agreement. I would have thought if P’s case was true, there would be some contemporaneous records in support of it. Even if D never signed anything because the Father never asked, there should still be some correspondence, or even personal diary entries or notes which mentioned, at least in passing, the alleged agreement. There was none. Whilst this may not be important vis-à-vis any person who had been really bad at keeping records all his life, it is rather important vis-à-vis the Father because the Father was reasonably good at keeping documents. In such circumstances, it seems to me I should regard this conspicuous absence of contemporaneous records vis-à-vis the alleged agreement as an indication that P’s claim of CICT is untrue.

39.Fifthly, as I shall proceed to explain, D’s case is very likely to be true. If D’s case is true (and it is my ruling that it is), then P’s case must be false.

D’s Case More Likely To Be True

40.D’s case, as pleaded in §16 of his Defence, was that the Father (1) out of love and affection; (2) as a return for D’s long period of unpaid hard work at Kar Wah; and (3) as a marital gift purchased and assigned the Property to D. In §18 of his Defence, D said the Father had expressly told D the Property was intended to be given to D as a gift.

41.On balance of probabilities, I accept D’s case as true.

42.Firstly, D’s case is inherently likely. It was normal for parents to want to help their children with their children’s purchases of residential properties, especially for marriage purposes. Many parents did so. Whilst in most scenarios it would be quite unlikely for this to happen to one child but not his siblings, in our present scenario, once it is accepted that known to the Father at the time (1) D had been working for the Father unpaid for a long period of time; and (2) D was getting married, the unique gift of the Property from the Father to D (and D only) made perfect sense.

43.In relation to this, I accept D’s sworn evidence that he worked diligently at Kar Wah for a long period of time without taking a salary. It was common in Chinese communities for children to be doing work for the parents unpaid. D’s evidence on this was also corroborated by the evidence of other witnesses called by D, including the Employee and Hau. I further accept the sworn evidence given by D’s Wife that when the Father visited her parents for the purpose of discussing the proposed marriage, the Father had explicitly said to her “你放心，阿波好幫得手，我會喺香港買層樓俾佢” (“Don’t worry, Ah Ball is a good assistant, I will buy an apartment in Hong Kong and gift it to him”).

44.Secondly, D being a generally reliable witness for the reasons already explained above, I also accept D’s sworn evidence that the Father had repeatedly said to him “我打算買層樓俾你結婚” (“I plan to purchase an apartment and gift it to you for you to get married”).

45.Thirdly, adopting the approach as explained by Godfrey Lam J (as Lam JA then was) in Liu Wai Keung (above), I considered the totality of all evidence, including “evidence of express discussions” and evidence of the parties’ other conduct, and came to the view that the evidence plainly showed that the common intention between the Father and D back in 1986 was that the Property was meant to be a gift from the Father to D, and they conducted themselves accordingly until their relationship turned sour in or around 1988, when the Father chose to side with the Widow in a dispute or a number of disputes between the Widow and D’s Wife.

Other Matters

46.The above should be sufficient to dispose of this action (which must, of course, be dismissed by me). However, for completeness, I should also deal with some other arguments raised by Mr Leong.

47.Firstly, Mr Leong said the picture which D was trying to paint in this litigation was “extraordinary” because (1) D being only 4 years old when the Father “abandoned” him, D could not have sufficient affection towards the Father to work for him unpaid; and (2) D’s story was “too filial to be true”.

48.With respect, I disagree with Mr Leong.

49.Life experience tells us people’s feelings towards their parents can be mixed and complicated. While a period of physical separation could make a child feel resentful, it could also make a child want to get closer to the parent to “make up for lost time”. D had been cross-examined on these issues, and I accept D’s sworn evidence as true. For example, D said these about his feelings towards the Father, and I accept them as genuine: -

「老竇叫我落嚟香港打拼… 當時個感覺，一定係感受到父愛嗰種親情… 即係有 - 有老竇照顧喇已經。即係唔會話再喺度自己無父無母嗰種生活… 親生老竇嚟㗎嘛… 我信我老竇… 老竇生意即係自己生意…大家嗰個心係我知佢，佢知我… 老竇覺得我 - 我幫佢，我就覺得佢幫我，即係咁咋嘛… 一定唔會同老竇喺度講數或者點樣㗎嘛。」

[English translation: “Dad had asked me to come to Hong Kong to fight for the future together… the feeling I had at the time was one of having received fatherly love… finally getting taken care of by Dad, and no longer living as if I had no Dad and no Mum… he was my biological Dad after all… I believed in Dad… Dad’s business was my business… we felt that I knew his heart and he knew my heart… Dad considered that I…I was helping him, and I considered that he was helping me… as simple as that really… I would never discuss monetary payments with Dad.”]

50.All things considered, I accept the main theme of D’s case as true. It is my factual finding that D was as filial as he said he was. In fact, in my view, many people in the world are just as filial as D was. That being the case, there was nothing “extraordinary” about D’s story at all. If my own father had a business, I would myself have worked for him for free as well. I consider this normal, and in no way “extraordinary”.

51.Secondly, Mr Leong referred to a letter issued by D’s former solicitor dated 10 November 2014 and noted it did not refer to the Property as a “gift” or “marital gift”. On the strength of this observation, Mr Leong submitted to me, effectively but not in these words, that D did not tell his own former solicitor the Property was a “gift” or a “marital gift” because D knew it was not.

52.The exact words of Mr Leong, as set out in §19 of his written closing, were:-

“… Had there actually been a marital gift of the [Property] to [D] by [the Father] … any reasonable person would have expected the first word [D] mentioned to [his former solicitor] when instructing her on a reply must be GIFT!”

53.With respect, I disagree with Mr Leong.

54.D had been specifically cross-examined on this, and I accept his sworn evidence as true. Specifically, D said the following under oath, and I accept these as an accurate recollection of the truth: -

「當時點解冇提呢個問題呢？係當時我老竇話啲錢佢出㗎嘛，咁我個自然反應就係，我喺舖頭做咗咁多年，你冇俾人工我，我冇收你人工，即係我就撇開 - 即係當時撇開你送俾我嗰件事嚟講，就係淨係我呢度都已經可以話叫做唔止呢個樓，呢層樓喇… 我喺舖頭，辛辛苦苦咗成十年，你都唔 - 唔講，吓，即係依家呢個時候，買咗層樓俾我，都話叫做信託，係嬲呢樣嘢嘅啫。」

[English translation: “At that time, why did I not mention this problem? It was because at that time, my Dad was saying the money was all paid by him, and my natural response was, I had worked at the shop for so many years, you did not pay salary to me, I did not take salary from you, in other words I just put aside – at the time I put aside this incident of you gifting it to me, and even just this it should be worth more than the flat, this specific flat… At the shop, I worked industriously for 10 years, you still didn’t – didn’t say, well, meaning at that time, bought me a flat, still called it a trust, I was only angry about this.”]

55.In other words, according to D, when D received the demand letter from the Father’s solicitors at the time, D was very angry. However, D was not angry about the Father reneging. D was angry about the Father categorizing the money paid for the purchase of the Property as entirely the Father’s, when D had contributed many years of his time and effort towards the success of Kar Wah as a furniture business. D was offended the Father considered the money entirely the Father’s, given how it was earned partly with D’s selfless contribution. It was for this specific reason that when D was giving instructions to his solicitor at the time, D’s focus was on saying the money belonged to him.

56.I have considered D’s sworn evidence, set out verbatim above, carefully. In my view, that was a sufficient explanation for what happened. D’s sentiment was understandable. Whilst litigation lawyers would look at the concept of ownership, or source of financial contribution, in a legalistic way, I can understand why D, as a lay person, looked at it differently. I am satisfied the absence of the word “gift”, or the phrase “marital gift”, in the letter issued by D’s former solicitor dated 10 November 2014, was due to D’s anger and different focus, exactly as explained by him on oath. It does not mean the Property was something other than a gift, or that the concept of the Property being a gift was a recent fabrication.

57.In fact, D’s sworn evidence that the Property was an absolute gift was supported by the sworn evidence of D’s other witnesses. So, even if the absence of the word “gift”, or the phrase “marital gift”, in the letter issued by D’s former solicitor dated 10 November 2014, was suspicious (it was not), once the totality of the evidence had been considered, the absence paled into insignificance. Putting it differently, I should not hold this point against D, when all other pieces of evidence adduced by D pointed towards the Property being an absolute gift from the Father to D.

58.Thirdly, Mr Leong said the Father’s “declaration” in his will dated 19 July 2017 that the Property’s beneficial title belonged to him was “of high probative value”.

59.With respect, I disagree with Mr Leong.

60.The Father passed away on 9 November 2022 and never gave live evidence. If P were to use the Father’s “declaration” in his will in the manner as proposed by Mr Leong, P would be using it to prove the truth of the “declaration” itself and thus using it as hearsay, and I need to consider Section 49 of the EO (above).

61.I give no weight to the Father’s “declaration” in his will dated 19 July 2017, having considered that it is unreliable because:-

(1)  It was made in 2017, ie, some 31 years after the events in 1986. It was not made contemporaneously with the occurrence of the events in 1986.

(2)  The Father had a financial interest in the making of the declaration, and thus a potential motive to lie.

(3)  The declaration sought to say the Property’s beneficial title belonged to the Father “因為 [所有款項] 均由本人獨自支付” (ie, “because [all sums] were solely paid by me”). The conspicuous and unexplained absence of any reference to the alleged oral agreement between the Father and D on the terms of purchasing the Property is inconsistent with other evidence sought to be adduced by P’s side, and inconsistent with P’s primary case that the alleged oral agreement existed.

62.Fourthly, since I rejected P’s factual case as false, the issue of illegality is purely academic. In case I was wrong, however, I should also deal with Mr Leong’s submissions to the effect that there could not be any crime because no economic loss could be caused to the Bank.

63.With respect, I disagree with Mr Leong.

64.As the Court of Appeal had said in HKSAR v Wong Lai Man [2023] 2 HKLRD 479 [2022] HKCA 88 (§50 to §58, per Anthea Pang JA), for the purposes of the common law crime of conspiracy to defraud, the terms “economic loss” and “putting another person’s economic interest at risk” were never restricted to “proprietary interest”. In my view, had the Father and D conspired with each other to use dishonest means, such as a fraudulent misrepresentation as to who the beneficial owner of the Property was, so as to “get better mortgage loan terms” from the Bank and reduce the quantum of interests payable to the Bank, that would be caught by the common law crime of conspiracy to defraud. The “economic loss” would be the larger quantum of interests which would otherwise have been paid to and received by the Bank. Indeed, one may also say by putting the Bank at risk of expensive litigation, possibly vis-à-vis successors-in-title instead of the Father and D personally, the alternative element of “putting another person’s economic interest at risk” would also have been present.

65.For those reasons, but for the fact that I have already rejected P’s factual case as false and the issue of illegality is academic, I could have applied Monat Investment Ltd v All Person(s) in Occupation of Part of No 16 Ma Po Tsuen [2023] 2 HKLRD 1311 [2023] HKCA 479 and indirectly Patel v Mirza [2017] AC 467 and considered proportionality. I could also have considered referring this matter to the Secretary for Justice and/or law enforcement agencies for further investigation. Any conspiracy to deceive any bank in any way for financial advantage should be treated seriously.

66.Incidentally, if P says the Bank would have offered the exact same mortgage loan terms with or without using D’s name, that defeats P’s case. If the Bank would have done the same thing without D’s name, then why was the Property in D’s name? There was no “convenience” of any kind by using D’s name instead of the Father’s name, as the Mortgage Deed required both (1) the Father’s signature; and (2) D’s signature, and indeed they both signed. The most logical explanation for everything that has ever happened was simply this – the Property was indeed an absolute gift from the Father to D, hence the registration of D as the owner. Indeed, that also explained why there was no litigation when D and the Father fell out with each other as early as in 1988. This action was not brought by the Father against D until 2021 (ie, some 33 years after D and the Father fell out with each other). The allegation of CICT was an untrue afterthought.

67.Fifthly, I am fully aware Mr Leong made other points, factual and legal, in his written and oral submissions. I have in fact considered all of them. I do not, however, specifically address them in this judgment as I do not consider them to be sufficiently material, or important. This should not be considered as a kind of criticism. Mr Leong’s thoroughness is truly helpful, and I appreciate it.

Disposition

68.P’s allegation of CICT being false, this action is dismissed.

69.The parties agreed costs should follow the event. I order P to pay the costs of this action, including all costs previously reserved (if any), to D, to be taxed with certificate for counsel if not agreed.

Final Remarks

70.I do thank all counsel for their most able assistance.

Mr Alan Leong SC, leading Mr Alwin Chan, instructed by K W Wong & Co, for the plaintiff

Mr Tommy Cheung, instructed by Lo & Lo, for the defendant