Shum Wing Lok v. Shum Man

HCA 931/2017

[2022] HKCFI 2622

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 931 OF 2017

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JUDGMENT

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A.  THE CLAIM

1.This is the trial of the plaintiff’s claim against the defendant for the repayment of a loan in the sum of HKD 3 million which was allegedly made on 21 March 2016.

B.  UNDISPUTED FACTS

2.The following facts are undisputed.

3.Shum Tai On (“Father”) was born in Mainland China. He came to Hong Kong in about 1960.

4.Father and his first wife, Madam Fu (“Mother”) had four children. In order of seniority:

(1)  Shen Baochu (“Baochu”);

(2)  Shum Wing Kai (“Wing Kai”);

(3)  Shum Man (the defendant); and

(4)  Shum Wing Lok (the plaintiff).

5.After Mother passed away in 1990, Father married Wong Lan Chun (“Madam Wong”) in 1994.

6.Father established and became the owner of Tai On Insurance Agency Co (泰安保險代理公司) (“Tai On Agency”) in 1985. The plaintiff became an owner thereof on 29 March 2004, whereas Father ceased to be an owner on 18 January 2016.

7.The plaintiff assisted Father in his insurance business (which was done via Tai On Agency and Tai On Insurance Broker Limited (“Tai On Broker”) which was set up subsequently) since the plaintiff arrived in Hong Kong in 1979 for almost 40 years, and none of the other family members had been involved in any way in the insurance business run by Father and the plaintiff.

8.The plaintiff and the defendant’s relationship turned sour since 1983 and they had no direct contact with each other since then.

9.The defendant spent most of her time in Canada since 1996. She only came back to Hong Kong once or twice every year and stayed until Chinese New Year (except in 2015 and 2016 when the defendant had stayed in Hong Kong for a longer period so as to take care of Father).

10.Father gifted all his shares in Tai On Agency and Tai On Broker to the plaintiff on or about 20 January 2016.

11.On 17 March 2005, the defendant applied to open an account with Wing Lung Bank (No.020-603-203-xxxx-7) with Father as an authorized signatory thereto (“the defendant’s AUD Account”). A fixed deposit with principal of AUD283,672.19 in the said account matured on 24 May 2006. On 24 May 2006 and 26 May 2006, the sums of HKD 200,000 and HKD 1,460,000 were withdrawn from the said account respectively. The said bank account was subsequently “auto-closed” on 30 July 2011 with zero balance.

12.On 8 January 2015, the plaintiff applied to open an account with Wing Lung Bank (No.020-625-000-xxxx-x) (“the Current Account”). Father was added as an authorized signatory thereto on 26 January 2015.

13.On 26 January 2015, Father was added as an authorized signatory to operate the plaintiff’s account with Wing Lung Bank (No.602-3-10xxx-8) (“the Securities Account”) which was opened on around 31 October 2003.

14.On 29 January 2015, 28,000 shares in HSBC Holdings PLC (“the 28,000 HSBC shares”) were transferred from Father’s account to the Securities Account.

15.In January 2016, the following shares had been transferred from Father’s account to the Securities Account:

(1)  16,872 shares in Hong Kong Exchanges and Clearing Limited (“the 16,872 HKEX shares”);

(2)  30,000 shares in Evergrande Real Estate Group Limited (“the 30,000 Evergrande shares”); and

(3)  22,500 shares in Hang Seng Bank Limited (“the 22,500 Hang Seng shares”).

16.As at 22 January 2016, the balance of the Current Account was HKD 192.81.

17.On 16 March 2016, HKD 504,186.71 was deposited into the Current Account. This sum of money was the sale proceeds of 10,000 shares in HSBC in the Securities Account.

18.On 17 March 2016, the 22,500 Hang Seng shares were sold, and the transaction was settled on 21 March 2016 in the sum of HKD 3,031,129.86. The sale proceeds were deposited into the Current Account.

19.On 21 March 2016, the plaintiff withdrew HKD 3 million from the Current Account and used the said sum to purchase a cashier’s order No.840408 in the same amount (“the Cashier Order”) at Wing Lung Bank, payable to the defendant.

20.On the same day, the Cashier Order was given to the defendant. A photograph was taken at Father’s home on that day after the Cashier Order was handed over to the defendant.

21.The hatred between the plaintiff and the defendant persisted thereafter without any improvement at all.

22.On 3 May 2016:

(1)  a sum of HKD 400,000 was paid from the Current Account to Baochu by way of a cheque dated 26 April 2016;

(2)  a sum of HKD 400,000 was deposited into the bank account of the defendant’s daughter (Cheung Pui Lui (“Pui Lui”)).

23.On 10 May 2016, a sum of HKD 1,500,000 was transferred from the Current Account to Father’s account with Wing Lung Bank (No.603-000-xxxx-x) (“Father’s Current Account”).

24.On 25 May 2016, a sum of HKD 1,000,000 was withdrawn from the Current Account. The said sum was used to purchase a cashier’s order (No.855758) in the same amount, payable to Wing Kai.

25.On the same day, a sum of HKD 700,000 was remitted from the Current Account.

26.On 26 May 2016, Father left Hong Kong for Shanghai.

27.The entirety of the 16,872 HKEX shares and the 28,000 HSBC shares had been sold by 21 March 2016 and 19 May 2016 respectively.

28.Father passed away on 5 July 2016.

29.Baochu passed away on 22 June 2018.

30.Father left his last will dated 29 April 2016, in which the plaintiff was named the executor of the estate of Father. The plaintiff subsequently renounced his executorship on 31 August 2016. Letters of Administration with the said will annexed was eventually granted to Wing Kai on 24 February 2021.

C.  THE ISSUES

31.In a gist:

(1)  It is the plaintiff’s case that the Cashier Order which was handed over to the defendant on 21 March 2016 was a loan advanced by him personally to the defendant, upon a request made by Father on 18 March 2016. Even though the plaintiff had not been on good terms with the defendant at all for a long time, he, as a filial and obedient son, followed Father’s instructions in lending her the money. He therefore withdrew money from the Current Account and purchased the Cashier Order with such money on 21 March 2016. The monies in the Current Account belonged to him solely, and therefore the defendant was obliged to repay the money advanced to her in the sum of HKD 3 million.

(2)  While the defendant accepted that she had indeed received HKD 3 million by way of the Cashier Order on 21 March 2016, she alleged that the said sum of money in fact represented a gift which Father gave her, and it was Father’s intention that she would use the money to purchase a property in Canada. Although the money which was used to purchase the Cashier Order came from the Current Account which was under the sole name of the plaintiff, the defendant alleged that (at least part of) the monies in that account were owned by Father beneficially. Insofar as there is evidence which shows that the money which was used to purchase the Cashier Order was sale proceeds obtained from the sale of certain shares in listed companies, the defendant’s case is that those shares also belonged to Father beneficially, even though they were deposited in the Securities Account which was also under the sole name of the plaintiff.

32.In light of the above, the main issues of this trial are:

(1)  Whether the sum of HKD 3 million belonged to the plaintiff, or was it held by the plaintiff on trust for Father;

(2)  Whether the plaintiff advanced the said HKD 3 million to the defendant as a personal loan; and

(3)  Whether Father directed the plaintiff to pay the defendant the said HKD 3 million as a gift from Father to the defendant.

D.  CREDIBILITY OF WITNESSES

33.A total of 4 witnesses had given oral evidence at the trial.

34.The plaintiff had given evidence himself but he did not call any other witness.

35.The defendant, apart from herself, had called Wing Kai and Pui Lui to give evidence in support of her defence.

D1.  Baochu’s Affirmations

36.While Baochu had made an Affirmation on 8 November 2017 in support of the defendant’s application to set aside the default judgment obtained by the plaintiff herein (“Baochu’s Short Affirmation”), she did not provide any witness statement for this trial because, as aforesaid, she had passed away on 22 June 2018.

37.On the same day (8 November 2017), Baochu had made another Affirmation to be filed in HCAP 8/2017 (“Baochu’s Long Affirmation”), a probate action relating to the estate of Father (“the Probate Action”).

38.By consent, both Baochu’s Short Affirmation and Baochu’s Long Affirmation (collectively, “Baochu’s Affirmations”) had been admitted as hearsay evidence for the purpose of this trial pursuant to section 47(1)(a) and (b) of the Evidence Ordinance (Cap.8, Laws of Hong Kong). Those provisions read:

“47(1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay unless—

(a) a party against whom the evidence is to be adduced objects to the admission of the evidence; and

(b) the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice.”

39.Section 49 of the Evidence Ordinance provides that:

“49. Considerations relevant to weighing of hearsay evidence

(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.”

40.While Mr Shum and Mr Cheung for the plaintiff raised no objection to the admission of Baochu’s Affirmations, they had much to say in relation to the weight to be given thereto.

41.They submitted that the Court should not give any weight to those affirmations because:

(1)  Given the importance of Baochu’s evidence, the plaintiff would suffer much prejudice if any weight was attached to Baochu’s Affirmations in the circumstances where she could no longer be cross-examined in Court;

(2)  Various matters raised in Baochu’s Affirmations were hotly disputed by the plaintiff, inconsistent with the defendant’s evidence and were not fully particularised. These made it even more important for Baochu to be cross-examined so that her evidence could be tested;

(3)  Baochu’s Affirmations were not made contemporaneously at the occurrence of the matters stated.

42.Reliance had been placed by the plaintiff’s counsel on two cases in support of their argument.

43.The first case relied upon by the plaintiff was Ko Nga Chun v Companhia De Desenvol Vimento Wui San Limitada & Another [2018] HKCFI 1134. In this case, the plaintiff therein sought to rely on the hearsay statements of Ko Kan (her father) contained in his affirmations dated 27 August 2012, witness statements dated 5 December 2014 and 9 November 2015 for the reason that he had passed away on 24 January 2016. Having considered the facts of the case, DHCJ To (as his Lordship then was) refused to admit such hearsay statements as evidence.

44.The plaintiff’s counsel had drawn this Court’s attention to what his Lordship stated at paragraph 20 of the Judgment as follows:

“Ko Kan is a party and key witness in this litigation. His evidence about the power of attorney, the sale and purchase agreement of the Land between Kong Cheong and Wui San (ie S&P(1)), the Intermediary Agreement and the receipt of $8 million dated 8 July 2009 issued to Suen are crucial. He gave a completely different account of events in his confession statement to the police in the Mainland on 15 November 2007. It is important that the evidence of such a crucial witness should be tested by cross-examination. Should a witness of such critical importance be about to demise, the party seeking to rely on his evidence should have taken steps to secure his evidence by deposition under Order 39 rule 1 of the Rules of the High Court. Ko Kan's death was well anticipated. Yet the Plaintiff failed to adopt this course and thereby deprive the defendants of the chance of cross-examination. Without such cross-examination, the defendants are severely prejudiced. This is an appropriate case which the Plaintiff should have secured the evidence of Ko Kan by Order 39 procedure and to avail her opponent the chance of cross-examination.” (emphasis added by the plaintiff’s counsel)

45.In my view, apart from the above paragraph, it is also important to refer to the following observations which his Lordship made while he was considering whether to admit the hearsay statements:

“16. Ko Kan’s hearsay statements were made between August 2012 and November 2015 relating to events which occurred during the period from 2005 to 2009. They can hardly be described as having been made contemporaneously. They were also obviously made for the purpose of the present action.

17. Ko Kan is not an independent witness but a party to the present action and against whom there is a substantial counterclaim of $25 million. He was the father of the Plaintiff. Both the Plaintiff and Ko Kan had reasons to advance their interest at the expense of Suen. As the evidence reveals, he was a person of suspicious character. He had every reason to conceal or misrepresent the truth through the hearsay statements made for the purpose of the present proceedings.

18. The circumstances in which Ko Kan’s hearsay statements were adduced are such as to suggest there was an attempt by the Plaintiff to prevent proper evaluation of its weight. He did not die a sudden death but died ten years after he was diagnosed of lung cancer. However, the information on his death was not disclosed until 4 August 2017, ie 17 months after his death and just three months before commencement of trial. The delay to notify the court and the opponent was unexplained and this cast doubt on the Plaintiff’s motive of the delay.

19. In the summons to substitute Ko Kan with the Plaintiff dated 4 August 2017 and the pre-trial review on 9 August 2017, no notice of the Plaintiff’s intention to adduce Ko Kan’s hearsay statements was given. It was only until 19 September 2017, six weeks before trial, that the Plaintiff filed the hearsay notice indicating for the first time that she would adduce Ko Kan’s hearsay statements as evidence at trial. Such conduct may be taken an attempt to ambush her opponent.

[…]

21. Mr Cheung, counsel for the Plaintiff, submits that the defendants could have availed themselves of the safeguards under Order 38, rule 21 to call additional evidence to attack the reliability of the hearsay statements. On the facts of the present case, all the evidence which the defendants could have availed themselves were presented. There is no cure to the loss of opportunity for cross-examination. Mr Cheung also referred to other cases in which hearsay statements were allowed. Those were decisions on their own facts.

22. Having read the three statements, I am satisfied that, except as to his personal dealing with Suen, Ko Kan’s evidence is covered by the evidence of the Plaintiff and Kuang. Mr Pun SC, counsel for the defendants, has indicated that Suen will not pursue the counterclaim against Ko Kan. Hence, exclusion of Ko Kan’s hearsay statements will not cause any prejudice to the Plaintiff, but its inclusion will cause severe prejudice to the defendants. Accordingly, I consider it appropriate to refuse to admit Ko Kan’s hearsay statements.”

46.The second case relied on by the plaintiff was But Wai Sum v But Wai Keung [2021] HKCFI 3708. In this case, the plaintiff therein sought to rely on the witness statement and statutory declaration of But Wai Tong (the brother of both parties therein) who had signed those documents two days before he passed away on 1 August 2014. Mr Shum and Mr Cheung quoted the following two paragraphs of the Judgment in their closing submissions:

“91. P must know that Tong’s evidence is crucial, for Tong is the one personally involved in all the material matters which are contested in these proceedings. P commenced these proceedings in February 2012. According to P, Tong was willing to be a witness to give evidence in support of P’s case at all times. P also knew that Tong became seriously ill in about early 2014 because of liver cancer.

92. As mentioned in the above, the contemporaneous documentary evidence is in support of D’s case and contradicting P’s case. D should be entitled to test whether Tong’s evidence could stand in view of the contemporaneous documentary evidence by cross-examination. Tong’s death on 1 August 2014 is not a sudden death but could be anticipated in early 2014. Given that P has been legally represented at all times in these proceedings, P must know or ought to have known that there is a fair way to preserve Tong’s evidence, ie by a deposition under Order 39. If a deposition is taken, D would have an opportunity to cross-examine Tong in the process of taking the deposition. However, P did not make any application under Order 39 rule 1 to preserve Tong’s evidence by deposition. P has not offered any explanation as to why he did not do so. Without making an application under Order 39, P in fact has deprived D of the chance of cross-examining Tong. In these circumstances, it would be grossly unfair to D if any weight is given to Tong’s statutory declaration and witness statement. I decline to attach any weight to the statutory declaration and the witness statement.” (emphasis added by the plaintiff’s counsel)

47.In declining to attach any weight to the said witness statement and statutory declaration, DHCJ MK Liu actually had also stated the followings:

“86. As mentioned in the above, Tong passed away on 1 August 2014. Tong signed his statutory declaration and his witness statement on 30 July 2014, just two days before his death. P has produced a medical certificate signed by a doctor, showing that Tong was able to understand everything and signed the statutory declaration and the witness statement without any undue influence from anyone on 30 July 2014.

87. The doctor has not said why he could conclude that Tong was able to understand and to confirm the contents of the statutory declaration and the witness statement on 30 July 2014. The statutory declaration and the witness statement were signed by Tong just two days before his death. In these circumstances, one would expect that some examinations would be done to check whether Tong had the mental capacity to make the statutory declaration and the witness statement on 30 July 2014. However, based upon the evidence before the court, it is not known whether such examinations have been performed, and if yes, what were the outcomes of those examinations.

88. Even if I put aside the aforesaid matters, and even if I take the opinion set out in the medical certificate on its face value, I am of the view that no weight should be given to Tong’s statutory declaration and witness statement in any event.

89. Regarding Tong’s evidence, P said the following in his witness statement dated 23 December 2016:

‘44. Tong has always been willing and prepared to be my witness to support my claim against [D]. Upon Tong’s instructions, [the solicitors then acting for P in this case] has prepared a witness statement for his signing. Unfortunately Tong became seriously ill in or about early 2014 because of liver cancer. He passed away on 1^st August 2014. However, before his death, on 30^th July 2014, Tong signed his witness statement and a declaration confirming the truth of the contents stated in his witness statement. ……’

90. In Ko Nga Chun v Companhia De Desenvol Vimento Wui San Limitada & Anor, DHCJ To refused to admit the hearsay statement of a deceased witness, and said at [20]:

‘…… It is important that the evidence of such a crucial witness should be tested by cross-examination. Should a witness of such critical importance be about to demise, the party seeking to rely on his evidence should have taken steps to secure his evidence by deposition under Order 39 rule 1 of the Rules of the High Court. Ko Kan’s death was well anticipated. Yet the Plaintiff failed to adopt this course and thereby deprive the defendants of the chance of cross-examination. Without such cross-examination, the defendants are severely prejudiced. This is an appropriate case which the Plaintiff should have secured the evidence of Ko Kan by Order 39 procedure and to avail her opponent the chance of cross-examination.’ ”

48.Having cited those two cases above, the plaintiff’s counsel submitted:

“The above authorities and decisions stem from the rationale that a party’s right to test an opposing witness’s evidence by cross-examination is fundamental in civil trials. The need for cross-examination is more so when the witness’s evidence is crucial to a party’s case and material to the major factual disputes. It is grossly unfair to a party if it is deprived of the opportunity to cross-examine the opposing witness and weight is attached to such untested evidence.”[1]

49.I should emphasise that, in my view, those two authorities cited by the plaintiff’s counsel were just two examples of cases in which the Court had considered whether the statements of a witness should be admitted or given weight in circumstances where the witness could not be cross-examined because of his/her demise. These cases did not lay down any principle that whenever the opponent is deprived of the opportunity to cross-examine the statement maker, such a statement should not be admitted or be given no weight. What they had reminded us was the potential prejudice which could be brought by the lack of opportunity to cross-examine the witness concerned. At the end of the day, the question of weight to be attached to such evidence must be considered on a case-by-case basis, and in the course of such consideration, the factors set out in section 49 of the Evidence Ordinance must be taken into account. In this sense, I do not think such past examples may assist the Court much. Indeed, this was exactly the reason why DHCJ To did not consider the cases cited by the counsel for the plaintiff in Ko Nga Chun useful[2]. This is also the reason why I have quoted the Judgments in the aforesaid cases more extensively than what the plaintiff’s counsel did. Those additional paragraphs quoted show that the learned Judges had considered other circumstances of those cases, and some of those circumstances plainly cannot be found in the case before this Court. In short, no two cases are identical. I have to consider the case before this Court on the basis of its own circumstances.

50.I now turn to consider the factors set out in section 49(2) of the Evidence Ordinance so as to decide on the “reliability or otherwise” of Baochu’s Affirmations. I have the following observations in relation thereto:

(1)  It is now impossible to call Baochu as a witness because she had passed away;

(2)  Baochu’s Affirmations cannot be said to have been made contemporaneously with the occurrence or existence of the matters stated because the affirmations were affirmed on 8 November 2017 whereas the most important events covered by those affirmations took place in 2016;

(3)  Among other things, two areas covered by Baochu’s Affirmations which are crucial as far as this trial is concerned are: (i) what happened on 21 March 2016; and (ii) what Father recounted to her during her lifetime. For (i), since Baochu was there when the Cashier Order was handed over to the defendant, her evidence was not hearsay evidence. In relation to (ii), her evidence that Father did tell her certain things was not hearsay evidence but direct evidence. In other words, as far as these matters are concerned, Baochu’s Affirmations are not multiple hearsay evidence;

(4)  Baochu was not a party to this action. On the other hand, this Court was not told much about the Probate Action, so it is not known the involvement of Baochu therein and the extent of her interest in the outcome of the Probate Action. Be that as it may, the plaintiff’s counsel did not argue that Baochu had any motive to conceal or misrepresent matters in her Affirmations, even though this Court has not lost sight of the plaintiff’s attack at her evidence being “incomprehensive”, “over-general” and even “suspicious”, etc.;

(5)  The accounts given in Baochu’s Affirmations have been edited, in the sense that they were specifically drafted and prepared for use in court proceedings;

(6)  I do not find the circumstances in which Baochu’s Affirmations were adduced are such as to suggest an attempt to prevent proper evaluation of their weight;

(7)  Baochu’s Affirmations were made shortly (slightly more than a month) after the defendant took out a summons filed on 26 September 2017 to set aside the default judgment obtained by the plaintiff herein. The contents therein were largely consistent with the defendant’s affirmation filed on 26 September 2017 for the same purpose.

51.The plaintiff’s counsel have time and again emphasised that it would be grossly unfair to the plaintiff if this Court agrees to give any weight to Baochu’s Affirmations because her evidence was not tested by cross-examination. I agree that this is an important matter which the Court has to take into account.

52.However, in the circumstances of the present case, I do not think it is right to disregard Baochu’s Affirmations altogether, particularly when Baochu’s Affirmations were made at a very early stage and at the time when the discovery procedure of this action was yet to take place. She could not have made up her evidence by reference to the documents obtained from the plaintiff in the discovery process.

53.I will therefore place weight on Baochu’s Affirmations. Having said that, I am not going to place full weight thereon as suggested by Ms Leung who acts for the defendant. I shall remind myself that I have to be more cautious when I consider the evidence contained in Baochu’s Affirmations because of the lack of opportunity on the part of the plaintiff’s counsel to cross-examine her.

D2.  The defendant’s witnesses

54.The plaintiff’s counsel submitted that since all the defendant’s witnesses (including the defendant herself) had breached the fundamental principle of witnesses giving statements independently in that they had referred to and adopted the accounts of Baochu or Pui Lui, as the case may be, in their own witness statements, such statements should be given no weight. For example:

(1)  In paragraph 5 of the defendant’s witness statement, she stated that:

“本人的姐姐沈寶初於2017年11月8日作了非宗教誓章以支持本人申請撤銷原告人乘着本人不在香港的時候所獲取的「無抗辯下而得的勝訴判決」，內容除了確認本人和原告人幾十年來的老死不相往來的關係和當天父親饋贈本人港幣3,000,000的情形 ，又陳述了關於原告人代父親持有金錢和股票的事實，本人深信姐姐絕無虛言，本人採納姐姐於2017年11月8日的非宗教誓章作為證據。” (emphasis added)

(2)  In paragraph 3 of Wing Kai’s witness statement, he stated that:

“本人的姐姐沈寶初於2017年11月8日作了非宗教誓章以支持沈敏申請撤銷原告人沈永樂乘着被告人沈敏不在香港的時候所獲取的「無抗辯下而得的勝訴判決」，本人已經仔細看過，我相信姐姐所說的全部都是真的 […]” (emphasis added)

(3)  In paragraph 10 of Pui Lui’s witness statement, she said that:

“本人的姨媽(沈寶初)於2017年11月8日作了非宗教誓章以支持沈敏申請撤銷原告人沈永樂乘着被告人不在香港的時候所獲取的「無抗辯下而得的勝訴判決」，本人已經仔細看過，我相信姨媽所說的全部都是真的，內容涉及本人的亦是正確無誤 […]” (emphasis added)

55.There are other examples. For the sake of completeness, I set out the complaints of the plaintiff’s counsel in the table below:

Witness statements (“w/s”)	Adoption of others’ evidence
D’s w/s dated 10 May 2019	Baochu’s Short Affirmation
Wing Kai’s w/s dated 10 May 2019	Baochu’s Short Affirmation
Pui Lui’s w/s dated 10 May 2019	Baochu’s Short Affirmation
Pui Lui’s supplemental w/s dated 18 January 2020	Nil
D’s supplemental w/s dated 23 January 2020	Pui Lui’s supplemental w/s dated 18 January 2020
Pui Lui’s 2nd supplemental w/s dated 23 April 2020	Nil
D’s 2nd supplemental w/s dated 25 April 2020	Pui Lui’s 2nd supplemental w/s dated 23 April 2020
Pui Lui’s 3rd supplemental w/s dated 31 January 2022	Paragraph 13 of Baochu’s Short Affirmation

56.In support of their submissions, they had cited a number of authorities. I will refer to some of them below.

57.In Ho Sing Yin v. Chan Yiu Ling (HCA 90/2010, unreported, 13 July 2012), DHCJ Saunders (as he then was) held that:

“58. This is not the first time that I have seen witness statements from two witnesses in which the majority of the paragraphs are precisely identical. I accept Mr Leung’s submission that where witness statements are presented to the court which are substantially identical, it will often be unlikely that the court will be able to place any weight at all on either witness.

[…]

60. Too often solicitors forget that the purpose of a witness statement is for the witness to ‘tell their story’ to the court. The pre-prepared, pre-filed, witness statement is a substitute for the evidence in chief of a witness. The only proper way in which such a witness statement can be taken is for a solicitor to sit with the witness and question the witness, in the same way as evidence would have been elicited in the past in chief. From the answers to the questions the narrative, or ‘the story’, is built up in the form of a witness statement.

61. The fact that our system now requires full disclosure of a party’s case, in part by the exchange of witness statements prior to the trial, is not a license to solicitors to tailor or engineer witness statements in order that they may corroborate each other. If they do so, it will be transparent, as it is in this case, and it is likely that the court will reject the evidence of the witnesses.

62. Mr Chong sought to justify the identical paragraphs by saying that:

‘It is common in the legal profession that witness statements are prepared by solicitors upon the instructions given by the witnesses. The presentation of one’s evidence in a witness statement such as the choice of words, phrases, expressions and formatting preferences is usually a matter of style determined by solicitors who know much better than the witnesses as to the relevance and weight of different events and matters.’

63. With respect to Mr. Chong, that is no answer. It is right that solicitors know better than witnesses the relevance and the weight of different events and matters. That knowledge will define the questions that are asked of the witness in the course of the preparation of the witness statement. I accept that a solicitor may determine the formatting of a witness statement.

64. But it is not for a solicitor to ‘choose’ the words, phrases, or expressions in a witness statement. Those are all matters for the witness. Where witness statements are identical it is difficult if not impossible to believe that the witnesses have independently provided, what Mr Chong correctly described as, the ‘raw materials’ for the preparation of the witness statement.” (emphasis added)

58.Pausing here, Mr Shum and Mr Cheung reminded this Court that DHCJ Saunders’ decision (presumably they were only focusing on the learned Judge’s view quoted above) was not overturned despite an appeal. In this regard, I should point out that the view above was expressed in relation to a witness (known as Yau Man) whose evidence was considered by the learned Judge as irrelevant. There was no challenge on this on appeal, and the grounds of appeal (including those set out in the Respondent’s Notice) had nothing to do with the way the learned Judge treated the evidence of the said Yau Man.

59.The plaintiff’s counsel then referred to Leung Wing Hong v Leung Yiu Cho, the administrator of the estate of Leung Kam Wah, deceased (HCMP 1473/2014, unreported, 11 August 2016), in which the affirmations of the five interveners were almost identical. Having considered cases such as Ho Sing Yin (supra), HKSAR v Subramaniam Navarajan (CACV 480/2006, unreported, 1 August 2007) and In the matter of Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789, B Chu J took the view that:

“28. The contents of the Interveners’ affirmations were clearly mostly ‘copied and pasted’ from the same version. There was no explanation as to their similarity. The affirmations were probably drafted by their solicitors, as the Interveners had required interpretation before signing, and would not have given the instructions to their solicitors in English. In their affirmations, they had all confirmed what D had said were accurate and in this respect, they had not really given any independent evidence as to their own recollection or version of events, in particular in relation to the disputed 1993 Agreement and the 2009 Agreement. I therefore accept that the Interveners’ affirmations, in so far as they purported to confirm what D had said about the two agreements should not be given any weight.” (emphasis added)

60.The plaintiff’s counsel had also referred to Au Yeung Pui Chun v. Cheng Wing Sang [2021] HKCFI 463, in which large parts of the witness statements of the plaintiff and two of her witnesses were nearly identical. The plaintiff therein admitted in cross-examination that before giving instructions to the lawyers, she and those two witnesses had fully discussed their evidence (“商量過晒”). Having cited the criticism made by DHCJ Saunders in Ho Sing Yin (supra) and referred to the approach adopted in other cases such as that followed by B Chu J in Leung Wing Hong (supra), G Lam J (as G Lam JA then was) held that:

“[…] while I do not reject the statements altogether on this ground alone, the court must be very cautious in approaching them and the weight that can be placed on them has been greatly diminished.”[3]

61.The plaintiff’s counsel also referred this Court to the English case of Smith New Court Securities Limited v. Scrimgeour Vickers (Asset Management) Limited [1992] BCLC 1104, in which the witness statements of two witnesses (Mr Lewis and Mr Abrahams) were prepared in the following way:

(1)  Mr Lewis and Mr Abrahams were interviewed together in a meeting;

(2)  A draft witness statement was then prepared for Mr Lewis. A copy of which was then used to prepare a second draft composite statement. This composite statement contained input from both Mr Lewis and Mr Abrahams;

(3)  Mr Lewis and Mr Abrahams went through the said composite statement together in a meeting with a solicitor;

(4)  The said composite statement was then revised according to the joint discussions among the solicitor, Mr Lewis and Mr Abrahams;

(5)  Further amendments to the revised composite statement were made by another solicitor following his conversations with Mr Lewis and Mr Abrahams;

(6)  Two clean copies of the composite statement were then prepared, one for Mr Lewis and one for Mr Abrahams. These statements were in substantially identical terms.

62.Chadwick J took the view that:

“The effect of this process was that any independent recollection which either Mr Lewis or Mr Abrahams might have bad as to the events of 21 July 1989 was likely to have become coloured by the recollection of the other.”[4]

63.It was submitted by Mr Shum and Mr Cheung for the plaintiff that:

“The above wealth of authorities established the rationale of the Court’s decision not to give weight to substantially identical statements and statements which adopt co-witnesses’ evidence: the fundamental principle that witnesses should give their account independently from their own recollection and unaffected by the recollection of others must be followed.

One therefore understands that co-witnesses should not discuss or read the witness statements of others before giving statements or testifying. Otherwise, they would have absorbed and had in their mind accounts of co-witnesses when giving evidence, which could be reflected in deliberate copying others’ evidence, tailoring their evidence when they do not have independently recollection or giving evidence on matters they do not know. Their evidence is simply tainted with ill intention or inadvertently. In either situation the Court simply cannot discern which part(s) of the witness’ evidence is from independent recollection and which part(s) is not tainted. Therefore, the Court would not accord any weight to such statements/evidence because it is very dangerous to rely on them.

[…]

All three witnesses who testified for D engaged in the third form of breach as they all expressly state in their witness statements that they referred to and adopted the accounts of Baochu, D or Pui Lui. The above process was confirmed in cross examination. It follows that their witness statements should be given no weight.”[5]

64.I agree that a witness should not have read the witness statements of others before making his/her own statement, because there is a possibility that his/her own memory would be tainted by others’ recollection of the matters concerned. This may well be unavoidable even if the witness genuinely intends to tell the Court what he/she believes to be the truth, because, as stated by Coleman J in Yu Man Fung Alice v Chiau Sing Chi Stephen [2020] HKCFI 2923, “memories are fluid and malleable, being constantly rewritten whenever they are retrieved”[6]. Therefore, if it is evident that the witnesses have discussed among themselves about the matters to be covered by their respective evidence before they prepared their own witness statements, the Court must be more cautious when considering the weight to be given to such statements. Having said that, I do not agree with the approach suggested by the plaintiff’s counsel that the Court may simply disregard all such statements and attach no weight thereto. In my view, the Court still has to consider the evidence carefully and decide whether any weight, and if so, how much weight, should be given. The usual yardsticks, such as the inherent probability of the matters concerned, and the consistency between the content of the witness statement and the contemporaneous documents, are of great importance in the weighing process.

65.The approach of not dismissing the “problematic” witness statements automatically has also been adopted by other learned Judges.

66.For example, in Chan Chung Yee v. Chan Wah Cho, Joe & Another [2018] HKCFI 611, counsel for the defendant therein, having referred to DHCJ Saunders’ comments made in Ho Sin Ying (supra), argued that no weight should be given to the witness statement of the plaintiff’s witness, on the ground that it was a mere adoption of the plaintiff’s statement and affirmations with no independent input. Counsel went even further and submitted that no weight should be given to the plaintiff’s witness statement in such circumstances. Deputy High Court Judge To (as he then was) disagreed to adopt such an approach, and held that:

“While I would not query the proposition of Deputy Judge Saunders, I do not think it should be taken as an over-sweeping statement of law. It is the function of the court to make findings of fact based on its own assessment of credibility of witnesses. It is common knowledge that in a civil case, witness statements are prepared by solicitors on the instruction of the client and on the basis of what they were told by the witnesses. A witness is asked to prepare a witness statement because the evidence he is going to give is likely to be corroborative of the party’s evidence. The assertions are expected to be similar. Whether a witness statement is the product of copy and paste from another witness’ statement is easy to tell. Whether it is the product of paraphrasing or rephrasing or an independent input based on a similar account is sometimes difficult to distinguish. Of course, if it is the clear product of copy and paste, there is a need for caution. On the other hand, the court may not know which of the two is the original work and which is the copy product. The court’s function is not to penalize. It would be abdicating its fact finding function by giving both statements no weight and would not be doing justice to the party or witnesses concerned. In my view, if a witness’s evidence has been tested by cross-examination, the court should do its best to assess credibility. In the present case, though Hin was not called, Chung Yee [the plaintiff] testified and was cross-examined. The court would not be doing justice by putting aside his witness statement, which is adopted as his evidence in chief, no weight. That said, the court shall not give any weight to Hin’s witness statement for the simple reason that he has not testified and should not allow it to add weight to Chung Yee’s credibility.”[7] (emphasis added)

67.A similar approach was adopted by DHCJ Kent Yee in Integrity Financial Advice Network Company Limited (HCA 623/2012, unreported, 15 March 2016). In this case, the formats and the contents of the witness statement of the defendant therein were to a large extent similar to those of his witness. This was particularly so in respect of the content concerning the central issue, namely, the alleged oral assurances and representations: The contents were nearly identical in this regard. In his Judgment, the learned Deputy Judge had this to say:

“My decision on the issue of misrepresentation is mainly based on inherently probability taking into account contemporaneous documents and my observations of the witnesses’ oral evidence. The identification in the witness statements of both parties did not feature much in my deliberation and I was not really troubled by such identification.”[8] (emphasis added)

68.It can thus be seen that the evidence of the witnesses concerned was not simply rejected. The Court had still taken into account such evidence which had been tested by cross-examination.

69.With respect, I agree that this is the correct approach.

70.In my view, even in the situation where witnesses had discussed the subject matters concerned before they gave their witness statements, that does not necessarily mean that they intended to create a consistent story among themselves so as to deceive the Court. This is particularly so when family members (especially close family members) are involved. In such a situation, the weight to be given to the evidence of such witnesses should be considered after taking into account their answers given during cross-examinations, on, among other matters:

(1)  Areas covered by the discussions;

(2)  Reasons for the discussions;

(3)  The subject matters covered by the witness statements.

71.At this juncture, it is appropriate to remind ourselves the importance of cross-examination. This topic was considered at length by Deputy High Court Judge Reyes SC (as he then was) in Kaifull Investments Limited v The Commissioner of Inland Revenue [2002] 1 HKLRD 858, in which the learned Judge, having reviewed a number of authorities on the matter, summed up a number of propositions as follows:

“(1) The general principle is that, where an attack on a witness’ evidence is to be made, notice should normally be given to the witness in cross‑examination of the nature of the attack if such is not otherwise obvious.

(2) There is no breach of the principle if the witness knew or ought to have known that his version of events was being challenged or that adverse inferences might be drawn against him.

(3) Even if the procedural rule is transgressed, it does not inexorably follow that matters which have not been put to a witness in cross‑examination cannot be relied on. It may be a question of the weight to be given to a witness’ testimony taking into account all the available evidence. Thus, for example, a witness’ evidence may be so incredible as to be incapable of belief or his evidence may be unsupported or contradicted by known facts and contemporaneous documents.

(4) The principle does not inflexibly require every point which might be used against the witness to be put to him. There can no hard‑and‑fast rule. The paramount consideration is fairness to the witness. In essence, the principle is breached if in all the circumstances an omission to cross‑examine on a specific point is unfair to a witness.”[9]

72.In the present case, despite the plaintiff’s apparent disagreement with the evidence contained in the respective witness statements given by the defendant and her witnesses, the plaintiff’s counsel, during cross-examination, mainly focused on the way they prepared their respective witness statements rather than on the crux of the subject matter, namely, whether the Cashier Order was given to the defendant as a gift from Father or a loan made by the plaintiff. While some questions on the said main issue were asked, such cross-examination was not lengthy at all. They explained in their written reply submissions why they did that[10] as follows:

“7. There is no need for P to cross-examine the witnesses of D on the topics identified in D’s paras. 13.1 to 13.3 because firstly, in a civil trial there is no rule or practice that any case need be put or that every disputed matter need be cross-examined. Secondly, this is especially so when all contrary evidence was already given by P. In the present case there is another specifically valid reason not to cross examine D and her witnesses in detail: D and her witnesses had already been shown to have collaborated with co-witnesses. D’s grave mistake in preparing the witness statements shows systematic improper coordination among all D’s witnesses. If P were to cross-examine these witnesses on those topics, P would be opening the gate for them to purport to give an independent answers at the trial extrinsic to their statements, dragging P into the scenarios in Integrity Financial Advice Network Co Ltd v. Chu Yau Shun [PS3] and Chan Chung Yee v. Chan Wah Cho, Joe and Another (20/03/2018, HCA1419/2011) [2018] HKCFI 611 [DLOA#8], that is when cross-examination was conducted in detail the judges (i.e. DHCJ Kent Yee and DHCJ To) would consider the witnesses’ answers in cross-examination afresh independently from their witness statements, as stated by DHCJ To in Chan Chung Yee at para. 37:

‘... In my view, if a witness’s evidence has been tested by cross-examination, the court should do its best to assess credibility. ...’

(emphasis added by the plaintiff’s counsel)

8. By reason of the above (see also paragraph 24 hereinbelow), to offer a chance for D and her witnesses to give evidence by way of cross-examination would not be a wise course for P to take in the present case. Hence P had perfectly proper reasons not to cross-examine witnesses for D extensively on the substantive issues.

[…]

24. Regarding DHCJ To’s statement that the Court’s function is not to penalise and that “if a witness’s evidence has been tested by cross-examination, the court should do its best to assess credibility”, he was obviously adopting the same approach as DHCJ Kent Yee did in Integrity Financial Advice Network Co Ltd, which is to the effect that if the witness concerned is cross-examined, his answers can still be considered by the Court in assessing his credibility and more broadly the inherent probability of his account. It is never a cardinal rule of law for the Court to sweep away everything once the witness failed to make his statement independently. Hence, what DHCJ To said in para. 37 is totally in line with what was said in DHCJ Kent Yee’s judgment and the whole line of authorities cited by P.”

73.Insofar as it is their submissions that DHCJ To meant that counsel of the other side are given an option not to cross-examine those witnesses whose witness statements are found to be “problematic” (whether because those statements are identical in their contents or otherwise) so as to avoid giving those witnesses a chance to give oral explanation/evidence on the substantive issues concerned, with greatest respect to Mr Shum and Mr Cheung, I think they have misunderstood his Lordship, whose comments must be properly understood with the particular circumstances in mind: In that case, while both the plaintiff (Chung Yee) and his brother “Hin” had given witness statements, only Chung Yee had testified in Court. Hin was not called to testify at the trial at all. As a result, only Chung Yee was cross-examined. It was only in this context that the learned Judge said that “if a witness’ evidence has been tested by cross-examination, the Court should do its best to assess credibility”. In other words, Hin was not cross-examined not because of the deployment of any tactics of the counsel for the defendant therein, but because he was not called at all. His witness statement was as a result not admissible anyway pursuant to Order 38 rule 2A(6) of the Rules of the High Court.

74.On my part, I am not attracted by this tactic adopted by the plaintiff’s counsel at all, as this is not conducive to the interest of justice. As I pointed out above, there are different reasons why witnesses might have discussions on the case (or refer to another witness’ statement) before they prepared their own witness statements. Whether their evidence should still be accepted by the Court is a matter to be decided by the Court. That should be done after the Court has had the opportunity to consider their oral evidence given in Court, and cross-examination on the crux of the issues concerned as well as, for example, the reason for such discussions would assist the Court in assessing the reliability and credibility of the witnesses concerned. It would also be fairer to the witnesses if they were given an opportunity to answer any challenge against their evidence. However, the approach of cross-examination used by the plaintiff’s counsel had made it more difficult for the Court to do justice in the case, because their evidence were not tested in many aspects.

75.Be that as it may, this Court should try its best by reference to the trite principles in assessing the respective cases of the parties. I will bear in mind the followings:

(1)  Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility;

(2)  Importance should be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events;

(3)  The court will also attach importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement;

(4)  The court should consider a witness’ motive for deliberately not giving truthful testimony. For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest;

(5)  It is essential to have regard to the entirety of a witness’ evidence. A witness can make mistakes, but the mistakes do not necessarily affect other parts of his evidence. Likewise, a witness may lie. However, lies themselves do not mean necessarily that the entirety of that witness’ evidence is to be rejected. A witness may lie in a stupid attempt to bolster his case, but the actual case nevertheless remains good irrespective of the lie;

(6)  On the other hand, where it is shown that a witness has been discredited over one or more matters to which he has testified, this fact is relevant to the assessment of his overall credibility;

(7)  While the court is entitled to take demeanour into account when assessing testimony, it should be borne in mind that demeanour can be deceptive and is therefore to be approached with care.[11]

76.I will now turn to consider the credibility of the individual witnesses generally.

D3.  Credibility of the individual witnesses

D3.1  The defendant

77.I am of the view that the Court has to approach the defendant’s evidence cautiously for the following reasons:

(1)  As the plaintiff’s counsel pointed out, the defendant admitted that she had read Baochu’s Short Affirmation and Pui Lui’s witness statement (as the case may be) before she made her own witness statements. This might have affected her memory and impression of matters in the past;

(2)  Despite the defendant’s denial during cross-examination that she had discussed the case with Pui Lui, she admitted eventually that Pui Lui had reminded her of certain matters whenever she was not sure about them. There was no evidence placed before the Court as to what exactly she had been reminded by Pui Lui. That being the case, there might well be matters in her witness statements which were only included after such reminders;

(3)  She had also demonstrated in the witness box that she could be stubborn at times and would refuse to make admission on matters which were undeniable. One obvious example was when she was asked about the plaintiff’s involvement in Father’s business. Although it is undisputed by counsel that the plaintiff had assisted Father in his insurance business for over 40 years, it had taken a long time during cross-examination before the defendant eventually accepted that assertion;

(4)  The defendant’s assertion that she drafted her witness statements herself is also doubtful to say the least. Since she admittedly had no experience in conducting litigation before, I find it quite impossible that she would be able to come up with the witness statements filed which are quite professionally prepared. This view is reinforced by reference to the way the defendant, Pui Lui and Wing Kai referred to Baochu’s Short Affirmation as quoted in paragraph 54 above. It can be seen that the wordings used were very similar and at some points identical. This shows that, contrary to the suggestion of the defendant, it is more likely than not that the witness statements were not prepared by the witnesses themselves but by someone else (for example, the defendant’s solicitors), which is not unusual in civil litigation.

78.Having said that, I do not think the defendant was deliberately misleading the Court while she was giving evidence on the main issues. She had shown that she would readily admit a fact even if such admission might be detrimental to her case. For example, when she was cross-examined on whether Father had as a matter of fact told her that all the moneys in the Current Account belonged to Father, the defendant frankly accepted that he did not. She also clarified that he only said that he had deposited his own moneys into the Current Account. She maintained such an answer even after she had been reminded about her pleaded case that Father had told her that all the assets in the Current Account were owned by Father.

79.Furthermore, although the defendant did refer to Baochu’s Short Affirmation from time to time in her own witness statement, it can be seen that the defendant had also added a lot of evidence within her personal knowledge. In other words, this is not a case where she had simply adopted another witness’ evidence without independent input from herself. I will consider such independent input carefully in due course in accordance with the general principles referred to above.

80.Moreover, despite the defendant’s admission that she had been reminded by Pui Lui of certain matters, as pointed out by the plaintiff’s counsel, Pui Lui in fact was not present or involved in a number of crucial events concerning the crux of the present case. In other words, the extent to which the defendant’s evidence was tainted by Pui Lui’s reminders was limited. For example, since Pui Lui was not there when the Cashier Order was handed over to the defendant on 21 March 2016, the defendant’s evidence in this regard could not have been so tainted.

81.I should also note that the defendant had in fact made an Affirmation on 19 September 2017 (“the defendant’s 1^st Affirmation”), which was only around a month after the defendant was informed that the plaintiff had obtained the Default Judgment. This Affirmation was made before Baochu’s Affirmations were affirmed. The content of the defendant’s 1^st Affirmation is basically consistent with her evidence given subsequently. There was no evidence that the defendant had discussed the case with Baochu or Pui Lui or anyone else before she made this Affirmation.

82.The plaintiff’s counsel submitted that the Court should note that the defendant’s 1^st Affirmation did not say much as far as the merits of the case is concerned, and remarkably, the defendant did not make her best points in the defendant’s 1^st Affirmation, for example, she did not refer to two handwritten notes allegedly written by Father at all. I will say more about those notes in Section E11 below. It suffices for me to mention at this stage that I am of the view that weight should be given to the defendant’s 1^st Affirmation, despite the plaintiff’s submissions, for the reasons mentioned in the preceding paragraphs.

83.To conclude, I am of the view that I will have to be cautious in the evaluation of the defendant’s evidence. I will consider each of the important issues which the defendant had given evidence on (to be discussed below) in accordance with the general principles set out above.

84.Before I leave this topic, I should refer to the submissions made by the plaintiff’s counsel that the Court should take into account the defendant’s failure to prove the authenticity of certain handwritten notes allegedly written by Father. This is because, it was said, if the Court agrees that those notes were not written by Father as alleged, this would reflect very badly on the general credibility of the defendant and her witnesses. As I mentioned, further analysis on those notes can be found in Section E11 below.

D3.2  Pui Lui

85.Pui Lui has given three witness statements in this action. Out of those statements, in my view, the most important one is her 1^st witness statement.

86.She had admittedly read Baochu’s Short Affirmation before she prepared her 1^st witness statement. It is also clear that she had discussed the case with the defendant before she prepared her 1^st witness statement. I will therefore consider her evidence cautiously, as in the case of the defendant.

87.However, it should be noted that Pui Lui has also given evidence within her own knowledge (but not within the personal knowledge of either Baochu or the defendant) in her 1^st witness statement. I shall consider the same in accordance with the general principles which I have set out above.

D3.3  Wing Kai

88.In Wing Kai’s witness statement, he had also adopted and referred to Baochu’s Short Affirmation from time to time. He had also unconvincingly insisted that his witness statement was prepared by himself. Because of that, the same approach explained above has to be adopted: this Court has to be cautious when considering Wing Kai’s evidence. Having said that, at the end of the day, this Court is able to come to its conclusion in this action without considering Wing Kai’s evidence.

D3.4  The plaintiff

89.I am totally unimpressed by the plaintiff as a witness. I hold the view that he had no hesitation to give whatever evidence so long as that would be (in his view) helpful to his case, not caring whether those matters were true or not.

90.In order to give the Court a bad impression on the defendant, the plaintiff had given evidence on various matters based on his own speculation. For example:

(1)  He stated in Court that the defendant’s purpose of coming to Hong Kong during Father’s last days was not to take care of Father but to visit relatives. This is clearly not the case;

(2)  He stated in his witness statement that when the defendant emigrated to Canada, she had requested financial assistance from Father so as to purchase a property there, and as a result Father transferred AUD280,000 to her. However, he admitted in Court that this was only what he guessed, and he had failed to give any valid basis supporting such a guess. On the other hand, this does not sit well with the admitted fact that Father was added as an authorised signatory to the defendant’s AUD Account;

(3)  He stated in his witness statement that the defendant had gone back to Canada right after she had received the Cashier Order so as not to lose any social benefit in Canada. However, he admitted upon cross-examination that this was only his guess again.

91.The plaintiff had also shown that he would readily change his evidence whenever that would suit his purpose. For example:

(1)  In his witness statement, he stated clearly that when Father asked him to lend the defendant HKD 3 million, Father said the money would be repaid within 2 months (“她過兩個月就還給我”). He confirmed this evidence initially in his cross-examination. He even agreed with the defendant’s counsel that that means the money would be repaid in around May 2016. However, he subsequently changed his evidence. He firstly said Father told him that the defendant would repay in 2 to 3 months. He then alleged that Father actually said “幾個月之後”, and “a few months” could mean “3 months” or “5 months”. When he was shown what he stated in his own witness statement, he changed his evidence again, and stated that while Father did actually say “過兩個月”, Father actually meant “a few months” which could mean “1½ months”, “2½ months” or “3 months”;

(2)  When he was cross-examined at the end of Day 1 of the trial on whether Father had informed the plaintiff before Father made a transfer of HKD 1.5 million from the Current Account to Father’s Current Account, the plaintiff stated Father did not do so, but explained that: “當時我爸爸已經糊塗到唔識講”. However, he denied that he had said this very shortly thereafter. When he was told at the beginning of Day 2 of the trial that it was confirmed by the audio recording that he had indeed said Father “唔識講” in Court, he said it was only a slip of tongue. In my view, when he first said Father “唔識講”, he was making it up hastily without thinking it through, in an attempt to explain away Father’s transfer of money from his bank account without informing him which is inconsistent with his case that the money therein belonged to him (the plaintiff).

92.Some aspects of the plaintiff’s evidence are also contradicted by contemporaneous evidence.

93.For example, in paragraphs 23 and 24 of his witness statement, he alleged that since Baochu and Wing Kai wanted to have control of Father, they took Father to Shanghai and refused to let Father meet Madam Wong. However, it is evident from the WeChat communication records of the family chat group that this is plainly not the case:

(1)  On 28 May 2016[12], Baochu sent the following message:

“王老師，我不能在香港常住，你也遲遲不回港。所以我們決定把爹爹帶回上海，希望你能住過來幫助我一起照顧爹爹。另外爹爹現在精神實在不好，除了你以外謝絕其他人探望。不知你何時能過來？” (emphasis added)

(2)  In reply, Madam Wong stated on the same day that she could not go back to Hong Kong beforehand because she had received a knee replacement operation. However, at the time when Madam Wong was informed that Father would be going to Shanghai, she had already purchased ticket to go back to Hong Kong[13]. Madam Wong stated that even though she would like to pay Father a visit, she would prefer to go back to Hong Kong first, and that she would go to Shanghai and take care of Father when she could walk again[14];

(3)  Baochu told Madam Wong on 30 May 2016 that Father intended to go back to Hong Kong and live together with Madam Wong, and asked Madam Wong for her view on this arrangement. However, Madam Wong did not reply to this message at all[15];

(4)  On 4 July 2016, Madam Wong stated that she had not totally recovered yet, and that she would ask her friend to take her to see Father in due course[16].

94.Further, the plaintiff gave oral evidence in Court that Father was gradually losing his “thinking ability” since the Lunar New Year in 2016. This contradicts his evidence that he felt “at ease” to let Father bought and sold his (the plaintiff’s) stocks.

95.The plaintiff has also given other evidence which are plainly inconsistent with contemporaneous documents or inherently improbable. I will elaborate further below.

E.  ANALYSIS

E1.  Ownership of the stocks in the Securities Account

96.During the cross-examination of the defendant by the plaintiff’s counsel, one of the limited areas covered was the defendant’s pleaded case that Father had told her that “all the assets in the Bank Account[17] are beneficially owned by Father”[18]. As the defendant admitted in Court that Father had never said “all” assets in the plaintiff’s account belonged to him, the plaintiff’s counsel submitted that:

“D has adduced no evidence at all which part(s) of the assets (which changed all the time before the death of the later Father) in [the Current Account and the Securities Account] and which part(s) belonged to P. The net effect is that D has adduced no evidence to substantiate her other main defence and claim that the $3 million used to purchase the Cashier Order came from the late Father’s money and not from P’s money. Therefore, the first limb of D’s case (that the $3 million came from the late Father) fails in liminae. The above failure of D in terms of evidence is fatal to D’s defence because if, as a matter of fact, the $3 million did not belong to the late Father, it does not matter what the late Father allegedly said to D and whatever he said concerning gift has no effect in law.”[19]

97.This is in fact a red herring.

98.It is important to note that:

(1)  The money used to purchase the Cashier Order on 21 March 2016 came from the Current Account;

(2)  The balance of the Current Account as at 22 January 2016 was only HKD 192.81;

(3)  Since then, there was no activity in this account, until the sale proceeds of 10,000 shares in HSBC in the sum of HKD 504,186.71 were deposited into this account on 16 March 2016;

(4)  The said 10,000 shares in HSBC were part of the 28,000 HSBC shares mentioned earlier in this Judgment, which were deposited into the Securities Account from Father’s account on around 29 January 2015;

(5)  A further sum of HKD 3,031,129.86 (which represented the sale proceeds of the 22,500 Hang Seng shares) was deposited into the Current Account on 21 March 2016;

(6)  On the same day, HKD 3 million was withdrawn from the Current Account for the purpose of purchasing the Cashier Order.

99.In my view, given the above circumstances, the crux of the matter is the beneficial ownership of the 10,000 shares in HSBC and the 22,500 Hang Seng shares.

100.However, the plaintiff’s counsel disagreed. They submitted that it was not meaningful to trace where the cash in the Current Account came from, because Father had been given the authority to trade the stocks in the Securities Account and he had quite actively bought and sold stocks.

101.With respect, I do not accept this argument, because it is evident that there was no buying/selling of HSBC shares or Hang Seng shares at all since the 28,000 HSBC shares and the 22,500 Hang Seng shares were transferred from Father’s securities account to the Securities Account, until the sale of 10,000 HSBC shares and of the 22,500 Hang Seng shares referred to above.

102.I will now consider the beneficial ownership of those shares.

103.The plaintiff alleged that Father deposited the 28,000 HSBC shares and the 22,500 Hang Seng shares into the Securities Account (which was under the plaintiff’s sole name) because Father had given these shares to him as gifts, so as to reward him for his hard work over the years.

104.As far as the 28,000 HSBC shares are concerned, the plaintiff’s evidence is plainly inconsistent with a note written by Father which the plaintiff had signed on 3 January 2015 and acknowledged with the following handwriting of the plaintiff himself: “一定遵父親囑付”.

105.The aforesaid note reads:

“交沈永樂留存

匯豐銀行股票20,000股，存入金葵花沈永樂戶口，作泰安保險公司鎮店基金之用，不可出售，在真正必需時，最多只能作抵押品，向銀行借錢。

同樣匯豐股票5000股留存在我身後喪葬之用，簡單喪禮，不用通知保險同業，
音樂界朋友請沈寶初發短訊通知，

再有3000股，留作我生前另用，由我己掌握。股息由我零用，”

106.It must be noted that the aforesaid note was signed by the plaintiff shortly (within a month) before the HSBC shares were transferred from Father’s own account to the Securities Account.

107.I am aware of the fact that despite what was written in the said note, Father had sold all HSBC shares in the Securities Account subsequently. The plaintiff explained that that was probably because Father had lost his mind given his health condition had deteriorated. I do not accept this evidence, as that is plainly contradictory to the plaintiff’s own conduct to let Father operate the Securities Account freely all along, even in June 2016 when the plaintiff was of the view that Father had lost his “thinking ability” totally.

108.The plaintiff also alleged that Father had given him the 16,872 HKEX shares, the 30,000 Evergrande shares and the 22,500 Hang Seng shares as gifts. However, it is evident that Father had subsequently sold all these shares without the plaintiff knowing it. The plaintiff stated that since Father had very good judgement on the timing of buying and selling stocks, he had let Father operate the Securities Account so that Father could make some money for him and that this would also serve as a good pastime for Father. In my view, if those stocks had been given to the plaintiff as gifts, it is inherently improbable that Father would have sold them all without at least informing the plaintiff (not to mention asking for the plaintiff’s approval) beforehand.

109.The plaintiff’s allegation that those shares had been given to him as gifts is also inconsistent with his own evidence that he did not pay much attention to the transactions done by Father at the material time. While the plaintiff claimed that he had taken a quick look at the monthly statements whenever they were sent to him, he admitted, for example, that he did not know about the sale of the 22,500 Hang Seng shares until after the commencement of the action herein. In my view, if the stocks deposited in the Securities Account belonged to the plaintiff, he would not have adopted such a “couldn’t care less” attitude. This is more consistent with the scenario that Father was the beneficial owner of the shares in the Securities Account, and Father was trading his own shares rather than doing it for and on behalf of the plaintiff.

110.The plaintiff tried to salvage his case by saying in his oral evidence that even though Father had sold his shares, the sale proceeds were still kept in his (plaintiff’s) bank account. This is in fact not entirely correct. For example, it is evident that HKD 1.5 million had been transferred from the Current Account to Father’s account on 10 May 2016 which made the balance of the Current Account drop from HKD 1,554,660.48 to HKD 54,660.48. Again, if Father had given his stocks to the plaintiff as a gift, it is inherently improbable that Father would then transfer any money back to himself from the plaintiff’s bank account. This is particularly so in the circumstances where the plaintiff alleged that he was the son whom Father most loved.

111.On the other hand, it is the defendant’s evidence that Father did tell her in around mid-February 2016 that in order to avoid his assets being freezed upon his death, he had transferred his money and stocks (including the 28,000 HSBC shares and the 22,500 Hang Seng shares) to the plaintiff’s bank account and that he (Father) remained the beneficial owner of those assets. While I have indicated in the earlier part of this Judgment that I have to assess the defendant’s evidence cautiously for reasons which I have explained, I accept the defendant’s evidence that Father did tell her about his intention on this, and that this was the real reason of the transfers, because:

(1)  The plaintiff’s and Father’s conduct as analysed above are inconsistent with the plaintiff’s allegation that Father had given the money and stocks to him as gifts;

(2)  This part of the evidence was already contained in the defendant’s 1^st Affirmation filed on 26 September 2017. By then Baochu had not made any affirmation yet herein. There is nothing which suggests that the defendant had prepared her 1^st Affirmation after discussion with anyone else;

(3)  The defendant’s evidence in this regard is consistent with the way the Securities Account and the Current Account were operated at the material time;

(4)  Given Father’s old age, it is inherently probable that Father would have the worry that his own accounts would be freezed upon his death, which might cause much inconvenience to his children.

112.It is therefore my finding that the source of fund of the purchase of the Cashier Order came from Father, but not the plaintiff.

113.That should be the end of the plaintiff’s case, because if the money used to purchase the Cashier Order did not belong to the plaintiff, there is no way it can be said that the plaintiff had advanced any loan to the defendant.

114.While the above finding should be adequate in dismissing the plaintiff’s claim, I would proceed to consider other circumstances which, in my view, would also take us to the same conclusion, that the Cashier Order was given to the defendant as a gift by Father.

E2.  The alleged request for the loan on 18 March 2016

115.The plaintiff alleged that Father requested him on 18 March 2016 to advance the loan of HKD 3 million to the defendant. Such evidence is totally incredible for the following reasons.

116.Firstly, the plaintiff’s case on the time of repayment had been changing all the time.

117.In the demand letter issued by the plaintiff’s solicitors to the defendant dated 28 March 2017, it was alleged that it was an express or implied term that the defendant shall repay the HKD 3 million upon demand.

118.In the letter issued by the plaintiff’s solicitors to the defendant’s solicitors dated 10 April 2017, it was alleged that it was an express term that the defendant shall repay the said sum of HKD 3 million within reasonable time. It was further stated, as an alternative, that there was an implied term that the HKD 3 million would be repaid upon demand.

119.In the Statement of Claim, it was pleaded that there was an express or implied term that the HKD 3 million loan had to be repaid by the defendant “upon demand”[20].

120.In the plaintiff’s witness statement, he stated that when Father asked him to lend money to the defendant, Father said the defendant would repay in 2 months (“叫我先借給她，她過兩個月就還給我”). This repayment period of “2 months” was not pleaded at all.

121.As aforesaid, while he confirmed in Court with the defendant’s counsel that the money would be repaid in around May 2016 (i.e. around 2 months from 21 March 2016), he subsequently changed his evidence. He initially said that Father told him that the defendant would repay the money in 2 to 3 months. He then alleged that Father actually said “幾個月之後”, and that could mean “3 months” or “5 months”. He changed his evidence again upon being shown by the defendant’s counsel what he stated in his witness statement: He stated that while Father did say “過兩個月”, by that, Father actually meant “a few months” which could mean “1½ months”, “2½ months” or “3 months”.

122.When he was asked further, according to his knowledge, when the defendant should repay, the plaintiff answered that he had not thought about this matter.

123.In my view, given the plaintiff’s reluctance in lending any money to the defendant, the large amount of money involved, and the plaintiff’s total ignorance of the defendant’s financial position (hence, her repayment ability), it would be inherently improbable that the plaintiff would not have confirmed with Father about the proposed timing when the defendant would repay when Father asked him on 18 March 2016 to lend money to the defendant. However, the ever-changing nature of the plaintiff’s evidence in this regard shows that there was no clear understanding about the time of repayment. The plaintiff’s eventual answer that he had not thought about when the defendant would repay is even more incredible and inherently improbable.

124.The reason of all these is simple: The HKD 3 million was a gift and was not supposed to be repaid by the defendant to anybody.

125.Secondly, the plaintiff alleged that Father said on 18 March 2016 that he would guarantee the defendant’s repayment of the loan.

126.However, the plaintiff accepted that Father’s health condition had been deteriorating and he was terminally ill at the material time[21]. Apparently, Father had started to prepare for his own demise at the material time. In such circumstances, it is inherently improbable that Father would say that he would guarantee that the defendant would repay. Indeed, the plaintiff recognised this as he stated in paragraph 20 of his witness statement that:

“…父親說他擔保沈敏會把錢還給我，我心裡想98歲的老人，還能擔保嗎…”

127.Thirdly, even if Father did say that he would guarantee the defendant’s repayment, the plaintiff should know that Father’s guarantee meant nothing once he had died. That was the reason why the plaintiff allegedly wanted the defendant to give him an “IOU”, but he said this idea was rejected by Father. In such circumstances, it is important that the plaintiff would know more about the defendant’s ability to repay, especially when the plaintiff said that he had not talked to the defendant for 30 years and he did not know about the defendant’s financial situation at all. Yet, there is no evidence that the plaintiff had ever asked about this.

128.Fourthly, the plaintiff’s evidence that he had requested Father on 18 March 2016 to let him have an “IOU” (which was allegedly rejected by Father) is inconsistent with his case pleaded in paragraph 8(3) of the Reply, in which he pleaded that this request was made on 21 March 2016.

E3.  The reason why the loan was advanced

129.While the plaintiff and the defendant are siblings, their relationship was really bad and they had not communicated with each other for more than 30 years (since 1983). In my view, in the light of such a bad relationship, it is inherently improbable that the defendant would borrow money from the plaintiff unless she was in a desperate situation at the material time.

130.It would therefore be relevant to consider what the plaintiff stated to be the reason why the defendant had to borrow money from him nonetheless.

131.In paragraph 37 of the plaintiff’s 2^nd Affirmation filed on 2 November 2017, he stated that:

“我借錢給被告人完全是應先父要求說被告人做了「大閘蟹」等錢週轉，故此問我借”

132.However:

(1)  While the plaintiff did mention in the same affirmation that the defendant had told him (on 21 March 2016 after the Cashier Order was handed over to her) that she needed money because of her loss in the stock market[22], he admitted in Court that there was actually no such conversation (see further Section E7 below);

(2)  Even if there was any such conversation, this explanation about loss in the stock market, according to his 2^nd Affirmation, came from the defendant but not Father. Hence, it is clear that there was no “應先父要求說被告人做了「大閘蟹」”[23];

(3)  According to the plaintiff’s witness statement, he had already agreed to lend HKD 3 million to the defendant, though reluctantly, on 18 March 2016. By then, even according to his own evidence, he did not know about the defendant’s loss in the stock market;

(4)  The plaintiff alleged in his witness statement that when Father asked him to lend money to the defendant, Father told him that the defendant was in need of money for the purpose of purchasing a house in Canada.

133.In my view, there were such discrepancies and inconsistencies because the plaintiff was not telling the truth. He had made his evidence up so as to support his case of there being a loan advanced to the defendant.

134.The defendant stated in her evidence that Father had said that he would like to give her HKD 3 million so that she could purchase a land property in Canada, because Father had given land property to each of his other children. I accept that this was what Father said. I also find that Father had told the plaintiff about this, and that is the reason why the plaintiff stated in his witness statement that Father told him to give HKD 3 million to the defendant for the purpose of purchasing a house in Canada. However, the plaintiff in his witness statement twisted Father’s meaning a bit and alleged that because of such an intended purchase, a loan was therefore required to be advanced to the defendant.

E4.  The plaintiff’s knowledge of the balance in the Current Account

135.The plaintiff alleged in his witness statement that he had agreed on 18 March 2016 to Father’s suggestion to lend HKD 3 million to the defendant.

136.To be able to lend the defendant HKD 3 million, the plaintiff had to have HKD 3 million in his bank account in the first place. Not only that, it is also common sense that the plaintiff had to know at the material time that he had such an amount of money for his disposal before he would agree to lend money to others. In other words, the plaintiff would not have agreed to Father’s suggestion unless he knew on 18 March 2016 that he had the ability to lend the defendant HKD 3 million.

137.However, according to the plaintiff’s own evidence, he did not pay attention on 18 March 2016 as to whether he had HKD 3 million in his account.

138.He also admitted that, when he went to Wing Lung Bank in the morning of 21 March 2016 for the purpose of purchasing the Cashier Order, he did not know whether he had HKD 3 million in the Current Account.

139.That being the case, it is inherently improbable that he would agree to Father’s suggestion on 18 March 2016 to lend the defendant money as alleged.

E5.  The Cashier Order

140.The plaintiff alleged that, for the purpose of advancing the HKD 3 million loan to the defendant, it was his own idea (as opposed to Father’s idea) to buy a cashier order, so that there would be a record that he had withdrawn money from his own account for such a purpose.

141.The plaintiff’s evidence in this regard simply does not make any sense to me.

142.Firstly, if he would like to have some proof of the loan, this purpose could have been achieved by issuing a cheque payable to the defendant. It was very convenient for the plaintiff to do so because he said he had kept his cheque book both at home and in office.

143.Secondly, the plaintiff stated that he did not keep the original withdrawal slip issued by the bank for the withdrawal of HKD 3 million. If the plaintiff was so eager to keep any record for the purpose of proving that a loan had been advanced by him personally, it is inherently improbable that he would not keep such a withdrawal slip.

144.There are other matters which I have considered in coming to the conclusion that it was not the plaintiff’s own idea that a cashier order be issued for the purpose of paying the defendant HKD 3 million.

145.The plaintiff admitted during cross-examination that he did not have any other business to deal with at the bank in the morning of 21 March 2016 apart from purchasing the Cashier Order. In other words, the plaintiff had gone to the bank specifically for the purpose of purchasing the Cashier Order. Why did he have to do so?

146.The defendant tried to explain why a cashier order had to be received for the purpose of the gift, by stating that it was because Father knew that if the cheque was going to be issued by the plaintiff with his name on such a cheque, she would not accept it. She also said that the purpose could not be achieved by Father issuing a cheque under his name, because the bank might enquire with the plaintiff as to why a cheque of such a large amount was issued.

147.In my view, the reason why Father would prefer to use a cashier order rather than a cheque at the material time was because he wanted to make the incident more important. That was the reason why he had asked the plaintiff to go to the bank specifically to purchase the Cashier Order. I will come back to this point later under Section E9 below. At this point, it suffices for me to say that the fact that a cashier order was used has made it more likely than not that the money was intended to be a gift rather than a loan, because it would be more important to prove the source of money if such money was a loan, and this could be achieved more easily by way of a cheque.

148.Before I leave this topic about the purchase of the Cashier Order, there is one more matter which I should mention. It is this. On the reverse side of the withdrawal slip, the words “分錢” were handwritten there.

149.Baochu said in the Short Affirmation that she recognised that these words were written by Father.

150.On the other hand, the plaintiff stated that this was impossible, because the copy of the withdrawal slip was only obtained from the bank after the commencement of this action.

151.In this regard, I reject Baochu’s speculation, because it was impossible for Father to be able to write on this document which was not obtained until after his death.

152.Furthermore, if Father had to make a record of “分錢”, he could have written it down in one of his notebooks rather than on this withdrawal slip even if this paper had been given to Father at the material time.

153.In my view, given the plaintiff’s acceptance that:

(1)  it was the bank’s practice to ask its client about the purpose of withdrawal of large sum of money for fear that its client would be cheated of the money;

(2)  he had been asked by the teller about the purpose of the withdrawal at the bank when he purchased the Cashier Order,

the words “分錢” must have been written down by the teller as a record, and these words must have been used by the plaintiff when he gave his explanation on the purpose of the Cashier Order on 21 March 2016.

154.I do not accept the plaintiff’s evidence that he had mentioned to the teller or the bank supervisor who was present that “該分的錢都已經分晒”, nor that this was a loan to be advanced to the defendant as requested by Father as alleged. If the teller had asked specifically about the purpose of the withdrawal, and thought fit to make a record about this, I find that it is more likely than not that the teller would try to make a correct record rather than a wrong one.

E6.  Taking of photograph on 21 March 2016

155.It is undisputed that, after the Cashier Order was handed over to the defendant on 21 March 2016, a “selfie” had been taken by the plaintiff. It can be seen that, apart from the plaintiff, Father, Baochu and the defendant were in the picture, with Father and the defendant holding the Cashier Order.

156.The defendant and Baochu stated that the photograph was taken at the suggestion of Father, but he did not say why he made this suggestion.

157.The defendant speculated in her witness statement that Father probably wanted to have the plaintiff and the defendant taking a photograph together happily while Father was still alive.

158.On the other hand, the plaintiff had given the following evidence on this matter:

(1)  In paragraph 35 of his 2^nd Affirmation filed on 2 November 2017, he stated that:

“於2016年3月21日早上，當我購買了該張三佰萬圓港幣的本票，便拿到我先父的家裏，因先父告知我被告人及大姐會在他家中等我的本票。我記不起當時各人說過什麼。我亦記不起那張本票交給先父還是被告人，但被告人收到本票後，突然拿了一張白紙作背景襯托那張本票，並且要求我拍照。當時我以為被告人想拍照作為證明收了我那張本票的借款⋯⋯” (emphasis added)

(2)  In paragraph 22 of his witness statement, he said:

“我拿了本票之後便將本票送去父親家。當被告人收到了本票之後，我拿起了手機拍照作為被告人收到了本票的憑證。”

(3)  During cross-examination in Court, the plaintiff initially said it was he who proposed that a photograph be taken, and this suggestion was made because he wanted to have some proof that the defendant had received the Cashier Order. However, after a while, he stated that he could not recall who made the suggestion.

159.Insofar as it is the plaintiff’s evidence that the “selfie” was taken for the purpose of proving that a loan had been advanced by him to the defendant[24], this evidence is rejected:

(1)  If the photograph was taken for such a purpose, then it would be very odd indeed that the focus of the photograph was not on the Cashier Order. Even the original copy of the photograph, as admitted by the plaintiff, could not show the words on the Cashier Order (and hence, one cannot tell that is a cashier order at all). Further, there was no need to have Father and Baochu in the photograph;

(2)  The plaintiff had been changing his evidence on the circumstances under which the photograph was taken. He said in one of his versions that it was the defendant who requested to have this photograph taken. If the Cashier Order represented a loan advanced by the plaintiff to the defendant, it is inherently improbable that the defendant would request to have proof of the loan as alleged;

(3)  The plaintiff’s evidence given in paragraph 35 of his 2^nd Affirmation is inconsistent with his own evidence that he was eager to have proof of the loan.

160.The plaintiff said in cross-examination that taking the photograph was the most he could do so as to prove that the loan had been made. In fact, it is not. For example, he could have kept the original withdrawal slip which could be used to prove that the HKD 3 million actually came from his bank account. However, the plaintiff said he had thrown that slip away.

161.While Father had rejected the plaintiff’s alleged idea that the defendant should sign an “IOU”, there was nothing that stopped the plaintiff from asking the defendant for such a written acknowledgement in private.

162.As aforesaid, the defendant had also given her thought as to why Father would suggest taking the photograph, namely, that Father wanted to have the plaintiff and the defendant taking a photograph together happily while Father was still alive. I find that this reason, though a speculated one, is more likely to be the truth.

163.The defendant’s counsel submitted that the reason why Father wanted to have a photograph taken was because Father wanted to resolve the hatred between the plaintiff and the defendant. The plaintiff’s counsel submitted that it is inherently improbable that Father would attempt to resolve the hatred between the plaintiff and the defendant in this way, and that it would be naïve for Father to have made this attempt.

164.When we analyse Father’s action at the material time, it must be borne in mind that he was terminally ill at that time, and he was preparing for his own demise. It is more likely than not that he anticipated that he would not have long to live. In my view, in such circumstances, it is not surprising for him to take whatever steps he could think of in an attempt to resolve the hatred between his son and daughter, even if such an attempt is in the eye of others “naïve”.

165.Having said that, I do not think I have to go this far. From the point of view of Father, I would have thought it would at least be satisfying to be able to take a photograph with his children together happily, even if the taking of such a photograph would not help in resolving the problem between the plaintiff and the defendant.

166.I therefore find that it is more likely than not that the taking of the photograph was initiated by Father, and the purpose was not to prove that a loan had been advanced by the plaintiff to the defendant as alleged.

E7.  Conversation between the parties on 21 March 2016

167.The defendant stated in her 1^st Affirmation filed on 26 September 2017 that she did not talk to the plaintiff at all when the Cashier Order was handed over to her on 21 March 2016.

168.However, the plaintiff, in his 2^nd Affirmation filed on 2 November 2017, gave another version of the event as follows:

“被告人當時對我說她的股票做了「大閘蟹」，動彈不得。我理解即是她持有的股票買入後股價下跌，出現虧損。她說待幾個月後，她出售股票後便會還錢給我”

169.During his cross-examination, the plaintiff said he was sure that the defendant did not say anything upon receipt of the Cashier Order. When he was shown the paragraph quoted above, he said the content in his affirmation was wrong (“寫錯”).

170.It is very difficult to understand (and the plaintiff did not explain) how he could put down something like he did when such conversation had admittedly never taken place. The most probable reason is that the plaintiff had made up the conversation so as to boost his case when he made his 2^nd Affirmation.

171.If there was no conversation as such, and the parties did not talk to each other at all, then it is inherently improbable that it was a loan as alleged. As aforesaid, the plaintiff did not have any idea on the defendant’s financial situation at all, not to mention her ability to repay. It is unlikely that the plaintiff would not even ask for an assurance that the defendant would repay within 2 months (or a few months as he alleged in Court that that was Father’s real meaning). Let us assume for the sake of argument that the plaintiff had no choice but to lend the money to the defendant as this was allegedly the instruction of Father. But even under these circumstances, an assurance coming from the defendant is simply necessary. It must be borne in mind that the plaintiff and the defendant had been on bad terms for more than 30 years, and the request for loan was not made by the defendant directly at all.

172.In my view, the aforesaid explanations on financial need and loss in stock market were not the only words made up by the plaintiff.

173.In paragraph 8(4) of the Reply, the plaintiff pleaded that

“At the moment when Father handed over the Cashier Order to the Defendant, the Plaintiff heard Father told the Defendant that ‘this is a loan from your brother, you must repay him in the future’ or words to that effect.” (emphasis added)

174.If Father had really said these words, this is a very important proof in support of the plaintiff’s case. However, surprisingly, these words were never referred to in (and hence unsupported by) the plaintiff’s witness statements or affirmations filed herein.

175.What the plaintiff stated in his witness statement was that, after they had taken the photograph:

“父親就對我說他會監督被告人還款給我”[25] (emphasis added)

176.This is very different from the pleaded case of the plaintiff. In the pleaded case, Father’s words were spoken to the defendant. However, according to the plaintiff’s witness statement, the words were spoken to the plaintiff.

177.This again demonstrates that the plaintiff’s evidence is simply incredible. I do not accept his evidence that Father had stated that he would “monitor” the repayment of the defendant or that he had told the defendant that that was a loan from the plaintiff.

178.The plaintiff accepted in Court that the defendant had not talked to him at all on 21 March 2016 when the Cashier Order was handed over to her. In my view, this is further evidence in support of the defendant’s case that the Cashier Order was given to her by Father as a gift.

E8.  Demand for repayment

179.Taking into account:

(1)  The plaintiff and the defendant were on very bad terms for more than 30 years;

(2)  The plaintiff alleged that he did not want to lend the defendant money at all, and he agreed to do so only because this was an instruction given by Father;

(3)  HKD 3 million is admittedly not a small sum of money;

(4)  The plaintiff’s evidence that Father said the defendant would repay in 2 months, and that means the money would be repaid in around May 2016;

(5)  Father passed away on 5 July 2016,

I would have thought the plaintiff would be eager to chase the defendant for repayment from May 2016 onwards, and in any event, from July 2016 onwards, after Father had passed away. Even if this Court accepts the plaintiff’s evidence that Father meant “5 months” by saying “過兩個月就還” (which I do not accept), the loan should have been repaid by around August 2016.

180.However, it appears that the plaintiff did not demand the defendant for repayment until his solicitors sent a demand letter to the defendant on 28 March 2017.

181.In this regard, the plaintiff suggested that:

(1)  He had started to chase the defendant for repayment before 13 May 2016 by using the family WeChat group[26];

(2)  He had also chased the defendant for repayment after 13 May 2016.

182.The plaintiff initially alleged that he could not produce any proof that he had chased the defendant for repayment by WeChat message because he had lost his mobile phone while the defendant had failed to produce all such records in the discovery process.

183.First of all, in my view it is incredible for the plaintiff to say that he had chased the defendant for repayment before 13 May 2016, because, even adopting the shortest repayment period which he mentioned in his witness statement (that is, 2 months), the term of the loan would not expire until 21 May 2016. Father was still in Hong Kong at the material time. If there were indeed any loan, and if the plaintiff was as filial and obedient as he claimed himself to be, I do not think he would start chasing the defendant that soon.

184.In any event, the plaintiff had eventually found his phone and the earlier WeChat communication records. It was not shown that he had ever chased for repayment before 13 May 2016. That means it was a lie when he said he did.

185.As far as the plaintiff’s allegation that he had asked the defendant for repayment subsequently by WeChat message is concerned, it has been proved not to be the case by reference to the WeChat records placed before the Court.

186.However, the plaintiff insisted that he had done so. He said in Court that he had “chased for repayment by innuendo” (“影射追數”) in around June 2016 by sending the following message in the family group chat which includes all the siblings:

“借錢唔還，用過呢筆錢嘅，不得好死”

187.In fact, the records show that what he actually sent was:

“爹爹在彌留之間還在討債，這錢用過不得好死”

188.I really cannot imagine that this message can be interpreted as a message for chasing for repayment. If anything, this is against chasing for repayment. Indeed, the plaintiff admitted in Court at one stage that this was not about chasing for repayment of loan. However, he subsequently changed his evidence and said, upon being cross-examined on the matter, that his message meant Father was still chasing the defendant for repayment of loan for him while he was dying. This is totally incredible and I reject this evidence. If he was truthful in his evidence that Father had, in the plaintiff’s presence, chased the defendant for repayment of the loan in June 2016, I do not believe that the plaintiff would have done nothing to follow up on the matter. Further, he did not have to “影射追數” as he had every reason to chase the defendant for repayment openly and explicitly.

189.In fact, when the plaintiff faced the defendant’s plea that he had not made any request or demand to the defendant for repayment before his solicitors’ letter dated 28 March 2017[27], he pleaded in paragraph 10 of his Reply that:

“[…] It is averred that the Plaintiff has made repeated requests and demands to the Defendant to repay HK$3,000,000 to him after Father’s decease. The Plaintiff particularly remembers that on one occasion which was on or about 16^th July 2016, after Father’s funeral was completed in Shenzhen, the Plaintiff has orally demanded the Defendant to repay HK$3,000,000 to him in a family meeting, but the Defendant refused to repay the said loan to him.”

190.No demand by WeChat message was mentioned at all.

191.Further, I do not accept his evidence that he had ever demanded the defendant for repayment on around 16 July 2016. If he had done so, and if the defendant had scolded him as he alleged in his 2^nd Affirmation and witness statement, I do not believe that he would wait until 8½ months later before he instructed his solicitors to issue a demand letter to her.

E9.  Why the plaintiff was involved

192.It was submitted by the plaintiff’s counsel that if the HKD 3 million was given to the defendant as a gift, there was no reason why Father had to involve the plaintiff at all.

193.On the other hand, the defendant’s counsel submitted that the reason why Father wanted the plaintiff to be involved in the purchase of the Cashier Order was because Father wanted to resolve the hatred between the plaintiff and the defendant.

194.A similar issue had been raised in relation to the taking of the photograph on 21 March 2016 after the Cashier Order was handed over to the defendant (see Section E6 above). I am of the view that the same analysis should be equally applicable here: it is possible that Father would like to resolve the hatred between the plaintiff and the defendant.

195.However, I do not think I have to go this far, because I think there were more obvious reasons why the plaintiff had to be involved.

196.Firstly, it is evident that on around 18 March 2016, Father did not have much assets left in his own bank account: he only had HKD 2,415.45 in Father’s Current Account and 700 shares in Hong Kong Exchanges and Clearing Limited (which worth HKD 122,010) in his own securities account. That means Father had no choice but to make use of the money in the accounts under the name of the plaintiff.

197.Secondly, it was the plaintiff’s evidence in Court that the usage of Cashier Order would make the matter more important (“鄭重其事啲”). That explains why Father did not simply issue a cheque, but instructed the plaintiff to go to the bank specifically for the purpose of purchasing the Cashier Order. As Father was bedridden at the material time, he could not do it himself, and therefore he had to ask for the assistance of somebody else to do it for him. The plaintiff was the natural candidate because he was the only one, apart from Father, who could withdraw money from the Current Account.

E10.  Pui Lui’s evidence

198.The defendant’s case that the Cashier Order was a gift given by Father is supported by Pui Lui’s evidence. She stated in her witness statement that:

(1)  Shortly after 9 March 2016, Madam Wong told her that Father would like to give HKD 3 million to the defendant as a gift;

(2)  The reason why Father had this thought was that he had given all his other children land properties, except the defendant; and Madam Wong was worried that the plaintiff might misappropriate Father’s assets which were held under the name of the plaintiff;

(3)  Madam Wong asked Pui Lui to talk to the defendant about Father’s intention;

(4)  While Pui Lui had told the defendant about this, the defendant did not give any reply in relation to the suggestion.

199.I have mentioned in the earlier part of this Judgment that Pui Lui’s evidence has to be considered cautiously because she had admittedly read Baochu’s Short Affirmation and discussed the case with the defendant before she prepared her 1^st witness statement. Be that as it may, I accept Pui Lui’s evidence referred to above for the following reasons:

(1)  This evidence given by Pui Lui was given according to her personal knowledge of the matter;

(2)  When Pui Lui had her conversation with Madam Wong, neither Baochu nor the defendant was there. Hence, any discussion with the defendant would not “taint” Pui Lui’s evidence in this regard;

(3)  This matter was not mentioned in Baochu’s Short Affirmation either, and therefore Pui Lui’s evidence in this regard was not affected by her reading of Baochu’s Short Affirmation;

(4)  While Pui Lui’s evidence was that she had told the defendant about what Madam Wong said, the defendant did not mention about this matter in any of her witness statements at all. If Pui Lui and the defendant had indeed composed their witness statements together for the purpose of producing a consistent story, I would have thought the defendant would be bound to include this incident in her own witness statements. The fact that she had not included this matter has in my view, in the circumstances of the present case, added credibility to Pui Lui’s evidence in this regard;

(5)  While the plaintiff’s counsel have pointed out time and again that the defendant’s witnesses have alleged that they had conversations with Father who have since then passed away and as a result their allegations on what had been talked about cannot be contradicted by Father, it is undisputed that Madam Wong is still alive, and there is nothing which stops the plaintiff from calling her as a witness at this trial. Pui Lui should know this well. Yet she went ahead to give evidence on this conversation;

(6)  The plaintiff did not call Madam Wong to dispute the alleged conversation between Madam Wong and Pui Lui, and there is no evidence that the plaintiff and Madam Wong had a bad relationship. To the contrary, it is evident that the plaintiff had said a lot of good words about Madam Wong in his evidence herein;

(7)  The alleged conversation (i.e. Madam Wong to ask Pui Lui to find out what the defendant would think about the proposed gift from Father) is inherently probable because this is consistent with the defendant’s evidence that she had rejected Father’s gift beforehand. If she had not, there was no need for Madam Wong to ask Pui Lui to talk to the defendant about this proposed gift from Father at all. Father could have given his gift to the defendant directly without asking her beforehand.

E11.  Father’s handwritten notes

200.In Baochu’s Short Affirmation (which was filed on 8 November 2017), she produced two handwritten notes which were allegedly written by Father. They were dated 7 May 2016 (“the May 2016 Note”) and 16 June 2016 (“the June 2016 Note”) respectively.

201.The May 2016 Note provides that:

“我的小兒子沈永樂帳戶內

有378萬元70萬是公司欠總公司的帳期，

公司準備辦我後事的50萬元

沈永樂有25萬元，之外

剩餘228萬元，是我最後的

棺材老本，特此聲明，

橫琴島樓宇不能做分期，祇能

以後再說，

沈大安

2016年5月7日”

202.According to the evidence of the defendant:

(1)  The May 2016 Note was written by Father in front of her in his home. Nobody else was there;

(2)  Father told the defendant on that occasion that he was worried that the plaintiff might misappropriate his money which was kept by the plaintiff on Father’s behalf;

(3)  Father’s aforesaid worry was caused by a row between Father and the plaintiff;

(4)  Father therefore wrote the May 2016 Note, and asked the defendant to make a few photocopies thereof;

(5)  She only knew after the commencement of these proceedings that Father had also given a photocopy of the May 2016 Note to Baochu and Wing Kai respectively.

203.The May 2016 Note seems to support the defendant’s case that the money in the plaintiff’s account in fact belonged to Father.

204.The June 2016 Note provides that:

“本人在離開香港，取出永隆銀行取出90萬

元，是我和王蘭珍的聯名戶口(因為我年大，

去銀行不方便，加王蘭珍名字，是為了方便，

並不是她的)銀主是我。

現在本人將多年積蓄，分配給子女，

沈寶初 90萬              沈永佳80萬

沈敏 300萬                沈永樂150萬

1. 其中70萬是泰安的

2. 50萬是本人身後費用

3. 我離開香港給他的30萬

現存沈永佳戶口

中國銀行130萬

本人帶到上海來30萬作生活費

王蘭珍到香港以後，沒有賺一分錢

全部是我的錢

沈大安聲明

2016年6月16日”

205.The June 2016 Note, according to Baochu’s Short Affirmation, was only discovered among Father’s belongings after his death.

206.The plaintiff disputed the authenticity of both the May 2016 Note and the June 2016 Note, and submitted that the Court should reject these notes as evidence herein. Having said that, the plaintiff’s counsel expressly confirmed that the plaintiff has never had a positive case of forgery.

207.If these notes are given weight, they (especially the June 2016 Note which expressly stated that the HKD 3 million was distributed by Father to the defendant) would come a long way in supporting the defendant’s case.

208.Hence, Ms Leung asked this Court to attach full weight to these notes. On the other hand, Mr Shum and Mr Cheung submitted that since the defendant has failed to prove the authenticity of these notes, no weight should be attached thereto. They further submitted that the fact that the defendant and her witnesses had relied on such notes of which authenticity cannot be proved should be taken into account when their general credibility is assessed.

E11.1  The May 2016 Note

209.As aforesaid, the May 2016 Note was allegedly written by Father in the presence of the defendant.

210.It is trite that the handwriting of a disputed document can be proved in different ways, and one of which is by way of the testimony of a person who saw the document being executed. This is an acceptable way even though there is no handwriting expert evidence on the matter.

211.The plaintiff’s counsel attacked the reliability of the evidence relied on by the defendant and her witnesses in that:

(1)  Baochu did not give any detailed account of the circumstances in which Father passed the photocopy of the notes to her;

(2)  Wing Kai simply indicated that the May 2016 Note was “left to him” but there was no explanation as to how the note was so left;

(3)  The defendant did not give detailed account as to the circumstances and reasons for Father to write the May 2016 Note.

212.While I can see the relevance of these matters in the Court’s assessment of the authenticity of the May 2016 Note, regrettably the aforesaid matters were not explored in cross-examination (in the case of Baochu, she could not be cross-examined because she had already passed away).

213.Since the evidence of the witnesses concerned were not tested properly by way of cross-examination, I do not think that I am able to make any finding on the authenticity of the May 2016 Note.

214.For the avoidance of doubt, neither am I in a position to find that the defendant or any of her witnesses had knowingly relied on any forged document which would affect the Court’s assessment of their general credibility.

215.I will therefore disregard the May 2016 Note.

E11.2  The June 2016 Note

216.In relation to the June 2016 Note, the submissions of the plaintiff’s counsel, in a gist, were:

(1)  In the absence of handwriting expert evidence, the bare assertions of recognition made without basis are meaningless;

(2)  The defendant did not explain how the June 2016 Note came into her possession;

(3)  If Father wrote the June 2016 Note but did not give it to anyone (which is the case here because Baochu said the note was found among his belongings after his death), that would defeat the purpose of writing this note;

(4)  The adoption of the wordings “現在本人將多年積蓄，分配給子女” did not make any sense, because, for example, the HKD 3 million had already been passed to the defendant nearly three months before the date of the note;

(5)  As a fragile person, it is inherently improbable that Father could have remembered and written down so much detail in the note without assistance;

(6)  Since the plaintiff had been appointed by Father as his executor, it would have been reasonable for Father to hand the June 2016 Note to the plaintiff, however, Father never did so;

(7)  If the intention of Father were to conduct pre-death disposition using money in the plaintiff’s bank account including giving the plaintiff money to be used for the designated purposes as mentioned in the June 2016 Note, there was all the more reason for Father to give the note to the plaintiff but not left it to be discovered after his death.

217.First of all, I am of the view that the question of whether the defendant, Baochu, Pui Lui and Wing Kai could refer to any specific features of Father’s handwriting to support their evidence that they could recognise the handwriting of the June 2016 Note is far less important than the case where a handwriting expert is engaged. If the defendant and her witnesses had indeed saw a lot of Father’s handwritings in the past, it is possible for them to give evidence which is acceptable to the Court that the June 2016 Note was indeed written by Father.

218.One of the very important matters which the Court should take into consideration is the exact location where the June 2016 Note was retrieved. For example, if the note was found in a drawer which had only been used by Father, then it would be a factor to which the Court should give much weight when considering whether the note was indeed left by Father.

219.Another important matter which the Court should take into consideration is Father’s health condition after 16 June 2016. It could be seen from the WeChat communication records that his condition had deteriorated to the extent that Wing Kai had on 24 June 2016 considered it appropriate to start the discussion among his siblings as to the contingency plan in the event Father got seriously ill and died[28]. It also seems that Father had got a cold on 26 June 2016[29]. These matters are relevant when the Court considers the reason why the June 2016 Note was not given to anyone but left among his belongings to be discovered.

220.However, as aforesaid, Baochu could not be cross-examined anymore and the rest of the defendant’s witnesses were not cross-examined on the aforesaid matters.

221.In these circumstances, I do not think this Court is able to (and in my view it is, in such circumstances, undesirable to) rule on the authenticity of the June 2016 Note at all. This would not affect the overall assessment of the merits of the case, because it is clearly shown by the other evidence (including the plaintiff’s own evidence) that it is far more likely that the Cashier Order was a gift rather than a loan.

222.I would also not take the June 2016 Note into account when I consider the general credibility of the defendant and her witnesses.

223.For the sake of completeness, I would also make the following comments on the plaintiff’s submissions referred to above:

(1)  I do not consider it appropriate to analyse the words “現在” in the sentence “現在本人將多年積蓄，分配給子女” as if it were a statutory provision. It should be borne in mind that by the time the note was allegedly written, Father was already 97 years old. Looking at the matter in another way, if it was a note “invented” as suggested by the plaintiff’s counsel, the “inventor” could have written it in a more “perfect” way so as not to create an obvious point of weakness to be attacked;

(2)  I do not think it is inherently improbable that Father could remember the figures mentioned in the June 2016 Note. If those figures really represented gifts which he gave his children, it is not surprising that he could remember them;

(3)  Further, as pointed out by Ms Leung for the defendant[30] (which was not disputed by the plaintiff in his counsel’s reply submissions), the plaintiff’s bank statements were only disclosed to the defendant upon the making of the Court order dated 11 October 2019. Hence, neither the defendant nor her witnesses could have any knowledge that Father had left HKD 300,000 in the Current Account when he left Hong Kong for Shanghai until such discovery of bank statements. However, this figure of HKD 300,000 was mentioned in the June 2016 Note;

(4)  According to the plaintiff, he was not in Shanghai on 16 June 2016, and he only went there on 30 June 2016. There is no evidence as to Father’s condition by then. As aforesaid, this matter is important because it may shed light on the question of why Father did not hand over the June 2016 Note to the plaintiff upon his arrival.

224.Hence, on the face of it, the content of the June 2016 Note seems to make sense to me. Putting it in another way, such content at least has not brought suspicion upon the authenticity of the document.

E11.3  Conclusion on Father’s handwritten notes

225.For the above reasons, I will not take into account the contents of the May 2016 Note or the June 2016 Note when I consider the merits of the present case.

F.  CONCLUSION

226.Having considered all the evidence placed before this Court, especially those referred to above (except the May 2016 Note and the June 2016 Note), I find that it is more likely than not that the Cashier Order given to the defendant on 21 March 2016 represented a gift made by Father to the defendant rather than a loan advanced by the plaintiff personally to her.

G.  ORDER

227.The plaintiff’s action is therefore dismissed.

H.  COSTS

228.I make a costs order nisi that the plaintiff shall bear the costs of the defendant (with all costs reserved), to be taxed if not agreed.

229.The above order nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on paper) within 14 days hereof.

Mr Erik Shum and Mr Victor Cheung, instructed by Simon C. W. Yung & Co., for the plaintiff

Ms Pauline Leung, instructed by Ho & Ip, for the defendant