Pang Kam Chuen, The Sole Executor of the Estate of Pang Yeuk Chi, Deceased v. Pang Kam Bor
Read the full judgment text of DCCJ 348/2021 on BabelCite. This District Court judgment was delivered on 28 February 2024.
1. By my reasoned judgment dated 6 October 2023 with neutral citation number [2023] HKDC 1346 ( “the Judgment” ), I dismissed this action with costs. On 3 November 2023, the plaintiff ( “P” ), not satisfied with the outcome, took out a summons ( “the Summons” ) for (1) leave to appeal; (2) stay of execution pending appeal; and (3) costs.
Cited by 4 cases · Cites 30 cases
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DCCJ 348/2021 [2024] HKDC 110 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 348 OF 2021 ------------------------- BETWEEN
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------------------------- DECISION ------------------------- Introduction 1.By my reasoned judgment dated 6 October 2023 with neutral citation number [2023] HKDC 1346 (“the Judgment”), I dismissed this action with costs. On 3 November 2023, the plaintiff (“P”), not satisfied with the outcome, took out a summons (“the Summons”) for (1) leave to appeal; (2) stay of execution pending appeal; and (3) costs. 2.Having considered, and applying, Tsang Wing Kwai v Tsang Wing Fai [2018] 5 HKLRD 350 [2018] HKCA 759, procedural directions (“the Directions”) were given for the Summons to be dealt with by paper-disposal, without any oral hearing. 3.Pursuant to and in compliance with the Directions, the parties lodged written submissions, which I have read. 4.Having read all submissions, I am fully satisfied the Summons (which is devoid of merits) should indeed be disposed of on paper. 5.This is my decision vis-à-vis the Summons (“Decision”). 6.In this Decision, I shall continue to use the abbreviations used in the Judgment. Basic Principles 7.There is no dispute as to how I should go about deciding the Summons. The Summons being “within time”, the main consideration is whether the intended appeal has any reasonable prospect of success. 8.In this context, “reasonable prospect of success” means more than fanciful without having to be probable: SMSE v KL [2009] 4 HKLRD 125 (at §17, per Le Pichon JA). Since P’s intended grounds of appeal are, in gist, an allegation that my finding of facts was somehow wrong, I should consider and apply Wong Ka Yan Patrick v Cheung Ka Yu Nicole [2023] HKCA 1310, where the Court of Appeal (at §21, per Au JA) most helpfully summarized the basic principles as follows: -
Intended Ground One 9.So far as material, P’s intended ground one reads: -
10.In my view, P’s intended ground one is obviously unarguable, and has no reasonable prospect of success. 11.Firstly, it is clear from the Judgment (§§29 to 33) that I started my analysis by examining the inherent implausibility of P’s case (because that was more important), after which I moved on to state (§34) “even if I were to ignore the inherent implausibility of P’s case, and just focus on the sworn evidence, I would still have rejected P’s case as false because of D’s denial on oath”. When I moved on to analyse D’s case, I likewise started my analysis, at §42, by examining its inherent likelihood (as that was more important). What I did in the Judgment was thus the exact opposite of what P now says I did. P’s intended ground one is simply false[1]. 12.Secondly, it is clear from the Judgment (§§29 to 34) that I was dismissing P’s case on both (1) inherent implausibility; and (2) factors over and above inherent implausibility, and that I would have dismissed P’s case on either ground. That being what my view was, it actually did not matter in this particular case whether I (a) considered one more important than the other; (b) considered both of equal importance; or (c) considered a holistic approach more appropriate because the outcome would have been identical in each of these scenarios. 13.I refuse to grant leave on P’s intended ground one. Intended Ground Two 14.So far as material, P’s intended ground two reads: -
15.P then, within this intended ground two, lists out 15 assertions alleged to be “facts not disputed by [D]”. 16.However, that list is partially false, and partially irrelevant, or at least immaterial. 17.P’s first assertion reads: -
18.P’s assertion that D did not dispute “it was reasonable for the bank to prefer a mortgagor much younger and debt free” is entirely false. The truth is, D repeatedly and strenuously disputed that. At trial, D’s trial counsel had put to P the Bank would not, in 1986, require a younger person to be the mortgagor[2]. D’s witness statements[3] explicitly said P’s assertion was fabricated (虛構的), unreasonable (不合理), and nonsensical (不合情理的). The fact that D disputed that assertion is also obvious from reading D’s written closing[4], where D also made the very obvious point that P never adduced any evidence from the Bank as to its internal policy back in 1986[5], and so on and so forth. It is, with the greatest respect, highly unsatisfactory for P to insert an entirely false assertion as part of his intended ground two in this manner. 19.For completeness, I should also mention I was fully aware this was discussed orally in the course of P’s oral opening, when I said this:-
20.In response to that, Mr Alan Leong SC, leading counsel for P, simply said “of course”, without suggesting I did not need to fully consider the evidence on this since it was somehow agreed or unchallenged. As it turned out, it was challenged, but P chose to adduce no evidence from the Bank, or from any person who worked at or for the Bank in 1986, as to the Bank’s mortgage loan approval policy back in 1986 or the reasons why the Bank approved the mortgage loan for the Property back in 1986. Since P was all along legally represented, that choice must be an informed choice. 21.Furthermore, even if the Bank preferred a younger mortgagor back in 1986, that does not tell us anything significant. The Property could still be an absolute gift from the Father to D, for all of the reasons stated in the Judgment. That first assertion, even if true, would not make the finding in the Judgment wrong. It would still be open to me, or any judicial officer, to find that the Property was an absolute gift from the Father to D. 22.P’s second assertion reads: -
23.That was true but wholly irrelevant, or at least immaterial. As I had recorded in the Judgment (§14), the parties agreed the Father paid for everything. That was perfectly consistent with my finding that the Property was an absolute gift. It would not make the finding wrong. 24.P’s third assertion reads: -
25.That was also true but wholly immaterial. It would not make the finding in the Judgment wrong. 26.Indeed, back in 1986, it was quite common for apartments to be shared by close family members, temporarily or otherwise. At trial, D’s Wife gave sworn evidence that things like the exact size of this marital gift were never mentioned by the Father, and so long as it was “an apartment” for her marriage she would be happy[7]. In my view, since the Property cost D absolutely nothing to start with, it was not something highly unusual that it became shared by some close family members, temporarily or otherwise, or that D and D’s Wife became content with this. Putting it differently, the fact that close family members other than D and D’s Wife were allowed to reside in the Property, temporarily or otherwise, did not make the Property any less likely to be a marital gift from the Father to D. As the wise proverb goes, “don’t look a gift horse in the mouth”. If the Property was indeed an absolute gift (and in the Judgment I had found that it was), it actually made sense for D to be generous with it. 27.In any case, at trial, D gave sworn evidence as follows[8]:-
28.Clearly, it was completely open to me, or any judicial officer, to accept D’s evidence on this as true, and/or to find that the Property was an absolute gift from the Father to D, and that D was perfectly content with it being used by other close family members as a shared residence as well, as a temporary arrangement or otherwise. 29.P’s fourth assertion reads: -
30.That was also true but wholly immaterial. It would not make the finding in the Judgment wrong. 31.Firstly, there was no law saying if you were gifted a property you must live in it. Many people owned an apartment but voluntarily chose to live in a different one, for a variety of reasons. This was, and still is, an extremely common phenomenon in Hong Kong. The objective fact that D and D’s Wife eventually moved out did not tell us anything valuable about beneficial ownership – it merely told us they preferred living in a different place. Ownership and residence can be, and often are, completely separate issues. Indeed, a person can own an apartment in one jurisdiction but live in a different apartment in a different jurisdiction. P’s fourth assertion does not in any way make the finding in the Judgment wrong. 32.Secondly, D gave full explanations, on oath, as to why he and his wife moved out of the Property, and his explanations were logical. D’s witness statement[9], which D adopted as his evidence-in-chief, read:-
33.As I had discussed with Mr Alan Leong SC, leading counsel for P, when Mr Leong was on his feet for his oral closing at the trial[10], D’s case was essentially a classic case of “happy wife, happy life” – D was just taking steps to make his wife happy so that he could himself be happy. It was a very common mentality. There was nothing implausible about this. In fact, at all times, it was exceedingly common for a young couple to move out of a residence because of arguments between the wife and the mother-in-law. The fact that D chose to be practical did not mean the Property was never a gift from the Father to D. P’s fourth assertion does not in any way make the finding in the Judgment wrong. 34.Thirdly, D’s Wife also gave full explanations on oath as to (1) why she wanted to move out of the Property; and (2) why she was happier living in a wooden hut away from her mother-in-law, in these words[11]:-
35.At the start of the trial, I explicitly told counsel for the parties this[12]:-
36.I have no doubt whatsoever counsel for the parties understood what was said, given how experienced and competent they all were. They would in any case be fully aware §10.43 of the Code of Conduct for Hong Kong Barristers independently provided that:-
37.In the course of his cross-examination of D’s Wife, Mr Alan Leong SC, leading counsel for P, never suggested to D’s Wife that she lied about her sentiments back in the 1980s. I therefore assume P had accepted those parts of the evidence of D’s Wife quoted above as either entirely true, or immaterial vis-à-vis P’s case. If that is so, it is not open to P to now say D’s Wife had lied about her sentiments, or that D’s Wife had moved out of the Property for reasons other than those as articulated by her. If D’s Wife had moved out of the Property purely so as to (1) avoid arguments with her mother-in-law; and (2) avoid hearing unkind remarks of the kind as quoted above, one cannot see how this could tell us anything significant about the Property’s beneficial ownership. 38.P’s fifth assertion reads: -
39.That was also true but wholly immaterial. It would not make the finding in the Judgment wrong. 40.Firstly, as I had mentioned, there was never any law saying if you were gifted a property you must live in it. The recipient of an absolute gift could deal with the gift in whatever way he wanted, including allowing his father to live in it as a licensee. The fact that D did not seek to evict the Father from the Property, or seek possession, does not make the finding in the Judgment wrong. I adopt and repeat §§26 to 33 above. 41.Secondly, D gave full explanations, on oath, as to why he did not seek to evict the Father from the Property, or to get physical possession of the Property, and his explanations were logical. D’s witness statement[13], which D adopted as his evidence-in-chief, read:-
42.It was plainly open to me, or any judicial officer, to accept D’s explanations, given on oath and as set out above, as true instead of false. 43.Further, in the course of his cross-examination of D, Mr Alan Leong SC, leading counsel for P, had put a number of propositions to D[14], but those propositions did not include any allegation that D had lied about his sentiments, or about the reasons why D did not seek to evict the Father from the Property, or about why D did not seek to gain physical possession of the Property. P should therefore be taken as having accepted those parts of D’s evidence as either entirely true, or immaterial vis-à-vis P’s case. It should not be open to P to now say D lied about these things, and that these are material to P’s case. 44.For the record, I am aware of the UK Supreme Court’s recent observations in Griffiths v TUI (UK) [2023] 3 WLR 1204 [2023] UKSC 48 (§§42 to 70, per Lord Hodge DPSC) on the importance of complying with the longstanding rule in Browne v Dunn (1893) 6 R 67, what was stated by the Judicial Committee of the Privy Council in Chen v Ng [2018] 1 P&CR DG2 [2017] UKPC 27, and what was said by Stock NPJ in Leung Wing Yi Asther v Kwok Yu Wah (2015) 18 HKCFAR 605 (§43). In my view, in the specific situation of this particular case, it would certainly be wholly unfair to D if a judicial officer were to reject D’s explanations on oath, when P’s leading counsel had never put to D, in the course of his cross-examination of D, that D’s explanations were for whatever reason untrue. In my view, it is certainly fanciful for P to suggest the Court of Appeal would somehow be minded to disbelieve D’s explanations, when no contrary proposition on these issues had ever been specifically put to D in cross-examination. 45.P’s fifth assertion does not in any way make the finding in the Judgment wrong. 46.P’s sixth assertion reads: -
47.P’s strange assertion that D did not dispute “the Property was the Father’s” is obviously false. The truth is, D repeatedly and strenuously disputed that. 48.Firstly, at trial, D’s counsel had in fact, as one would expect, specifically put to P the central proposition that the Property was never the Father’s but was an absolute gift to D (and thus D’s property instead of the Father’s property)[15]. That was, of course, the reason why we were having a trial in the first place. If D had somehow agreed the Property was actually the Father’s (D never did), this legal action would not exist and there would be no trial at all. 49.Secondly, as I had mentioned above, D’s witness statement[16], which D adopted as his evidence-in-chief, also read:-
50.It was plainly open to me, or any judicial officer, to accept D’s sworn evidence on this as true. 51.Similarly, P’s strange assertion that D did not dispute “it was not probable for [the Father]… to have wanted to gift the Property to [D]” is also obviously false. 52.Firstly, at trial, when D was being cross-examined by Mr Alan Leong SC, leading counsel for P, D said this on oath[17]:-
53.D was therefore saying the Father’s financial situation in 1986 was actually very good, and the Father had in 1987 bought another property for the Widow. The point of D’s evidence on this was, at least partially, to demonstrate the extremely high probability of the Father having gifted the Property to D, exactly as D said the Father had. By D’s evidence as set out above, D also made it crystal clear to P that D considered the Father’s story (since adopted by P as P’s story) an “outrageous fabrication” which made D “fume”. Since D made it clear he was disputing the Father’s story as an “outrageous fabrication” which made D “fume”, I am a bit surprised P is now making this strange assertion that D somehow did not dispute “it was not probable for [the Father]… to have wanted to gift the Property to [D]”. P’s assertion is not just strange – it is very obviously false. 54.Secondly, at trial, D called Hau as a factual witness, and Hau’s witness statement, which Hau adopted as his evidence-in-chief, read[18]:-
55.The point of adducing Hau’s evidence was clearly to provide additional evidential basis for D to submit it was probable for the Father to have gifted the Property to D, exactly as D said was the case. If the Father was grateful for the valuable work which D had been putting into Kar Wah without taking a salary, it made sense for the Father to make a substantial gift to D, especially for marriage purpose. I mentioned these at §§42 & 43 of the Judgment. 56.Further, as I had also recorded in the Judgment (§24), Mr Alan Leong SC, leading counsel for P, had never put to Hau that Hau lied or was otherwise an unreliable witness. P must have accepted Hau’s evidence as true, or at least immaterial vis-à-vis P’s case. It is not open to P to now say otherwise. 57.P’s sixth assertion is simply not “a fact not disputed by D” as alleged. On the evidence adduced at the trial, it was plainly open to me, or any judicial officer, to reject P’s case, and to accept D’s case, for all of the reasons comprehensively set out in the Judgment. P’s current submissions to the contrary are, with respect, simply absurd. 58.P’s seventh assertion reads: -
59.P’s peculiar assertion that D did not dispute “the agreement” is obviously false. We were having a trial precisely because P alleged there was an agreement, and D said it never happened. Since on D’s case it never happened, that means on D’s case there was nothing there to cross his mind at all. Indeed, D’s case was simple. D’s case was that the Property was an absolute gift from the Father. It was, of course, perfectly lawful for a parent to gift a residential apartment to his child. My finding in the Judgment was exactly that – the Father intended to and did gift the Property to D, lawfully and absolutely (§29). I never ruled that there was any criminal conspiracy, or that the Father and D had at any point in time thought about any criminal conspiracy. There was no such finding in the Judgment. My finding in the Judgment was that there was simply no agreement between the Father and D at all, and that the Father’s allegation of CICT was untrue (§29). 60.As I had also accurately recorded in the Judgment (§35), when D was being cross-examined by Mr Alan Leong SC, leading counsel for P, on that alleged agreement, D actually said it was an even more outrageous fabrication, in these words[19]:-
61.It was plainly open to me, or any judicial officer, to accept D’s evidence, given on oath and as set out above, as true instead of false. 62.On P’s case[20], there were only two parties (namely, the Father and D) to the alleged agreement. It was said to be oral. The Father never gave evidence (because he sadly passed away on 9 November 2022, before the commencement of the trial on 18 May 2023). D gave sworn evidence that it never happened, and that the Father’s allegation was an outrageous fabrication. It was plainly open to me, or any judicial officer, to accept D’s evidence. 63.P’s seventh assertion is plainly not “a fact not disputed by D” as alleged. Furthermore, since the Father never gave evidence (see above), it is not open to P to now boldly assert, without any or any proper evidential foundation, what did or did not cross the Father’s mind back in 1986, as if the Father gave evidence and explicitly told us that on oath. 64.P’s eighth assertion reads: -
65.P’s eighth assertion, be it true or false, is wholly immaterial. Any person’s attitude towards money may change over time depending on things like his (1) age; (2) maturity level; (3) health; (4) bucket list items; (5) asset level; (6) liability level; (7) cashflow; and (8) other thoughts. In this case, what mattered was what happened in 1986. P’s eighth assertion, be it true or false, does not really assist. Whether D was or was not a money conscious man in 1988, the Father could still have gifted the Property to D in 1986. As I had stated in §42 of the Judgment, it was normal for parents to want to help their children with their children’s purchases of residential properties, especially for marriage purposes. I was aware many parents did so. P’s eighth assertion, be it true or false, would not make the finding of absolute gift in the Judgment wrong. Putting it differently, irrespective of the truth or falsity of P’s eighth assertion, it was still plainly open to me, or any judicial officer, to accept D’s sworn evidence on the Property being an absolute gift from the Father to D as true instead of false. 66.P’s nineth assertion reads: -
67.Similarly, P’s ninth assertion, be it true or false, is immaterial. It would at most be a neutral point which could go either way. I discussed this with Mr Alan Leong SC, leading counsel for P, when Mr Leong was on his feet for his oral closing at the trial, and the exchange[21] between the Bar and the Bench went as follows:-
68.As one can see from the above, during the trial, both Mr Alan Leong SC, leading counsel for P, and myself, were fully aware of at least two possibilities. The first possibility was the one favoured by P, namely, that the tuxedo incident demonstrated how unlikely it was for the Father to have gifted the Property to D. The second possibility was the one which P did not like, namely, that it was precisely because the Father had gifted the Property to D already, and the Property was quite expensive, that the Father had decided not to gift anything more to D from that point in time onwards, not even a tuxedo. Since the Father never gave evidence, a difficulty which I acknowledged at the start of the Judgment (§§1 to 5), it was not possible to ask the Father what really happened. In the absence of live oral evidence from the Father explaining the decision, P’s ninth assertion would at most be a neutral point which could go either way and would not make it wrong for me to have found that the Property was an absolute gift from the Father to D, for the reasons set out in the Judgment. It would still be open to me, or any judicial officer, to make that finding in the manner as I did. 69.In fact, as is well-known, in Chinese custom, when two people would like to get married, it is the intended groom (or his parents) who had to pay gift money (禮金) to the intended bride (or her parents) in advance and, according to D’s unchallenged sworn oral evidence[22] at the trial, when D was trying to marry D’s Wife in 1985, with both of them being Chinese, the Father (instead of D himself) generously paid the necessary gift money (禮金), for no reason other than the fact that, in D’s own words[23]:-
70.The above being unchallenged, P’s current submissions on the tuxedo incident are with respect somewhat far-fetched. If truly necessary, I would have held that the more probable reason for the Father to have not bought a tuxedo for D was the second possibility mentioned above, ie, that by the time a tuxedo was needed by D for photo-taking, which according to Hau[24] was in the year 1987 – after the Property had already been bought and assigned to D on 8 December 1986 – the Father had already gifted the Property to D, and the Father decided not to gift anything more to D from that point in time onwards, not even a tuxedo. There is no necessity for me to make a factual finding on this. 71.P’s tenth assertion reads: -
72.P’s bold and novel assertion that siblings must share the exact same feelings, or that D did not dispute that, is obviously false. 73.Firstly, why must siblings have the exact same feelings? I am aware, just from ordinary life experience, that each sibling within the same family is a separate human being with his own feelings, and that therefore it is entirely possible for siblings within the same family to have completely different feelings towards the same event, or the same person. P’s assertion to the contrary is, with respect, absurd, or at least without foundation. 74.Secondly, Chu and D were cross-examined by Mr Alan Leong SC, leading counsel for P, on their feelings, separately. As distinct human beings, their evidence on their feelings, as one should expect, was certainly not identical. At no point did Mr Leong put to either of them that they lied about their feelings. That being the case, P must be taken to have accepted such evidence as true, or immaterial vis-à-vis P’s case. It is not open to P to now say otherwise. 75.When Chu was being cross-examined by Mr Alan Leong SC, leading counsel for P, the exchange[25] actually went like this:-
76.P appears to have focused on the question and forgotten about Chu’s answer. The question was not the evidence – Chu’s answer was. It was Chu’s sworn oral evidence that he did not feel unhappy or wronged by the Father because what the Father did in 1968 (namely, leaving Mainland China without bringing his first wife Madam Cheung Wai Chun, D, Yue or Chu) the Father was forced to do so by circumstances beyond his control. At no point did Mr Alan Leong SC, leading counsel for P, put to Chu that Chu’s evidence on this was untrue, or otherwise not accepted by P. 77.In any case, it was clearly open to me, or any judicial officer, to accept Chu’s evidence, as I did in the Judgment, on the basis that Chu’s evidence “accorded with common sense” (§22(3)). 78.As to D, as I had recorded in the Judgment (§49), his evidence on his feelings towards the Father was in these words[26]:-
79.In other words, D’s evidence was that at all times up to at least 1986, the Father had loved and understood D. D had loved and understood the Father. D treated the Father’s business as his own business too. At no point did Mr Alan Leong SC, leading counsel for P, put to D that D’s sworn evidence on these matters, exactly as quoted above, was somehow untrue, or otherwise not accepted by P. 80.It was clearly open to me, or any judicial officer, to accept D’s evidence as true, as I did in the Judgment (§49). 81.P’s tenth assertion is therefore simply false. 82.Further, P’s tenth assertion, be it true or false, would not make the finding of absolute gift in the Judgment wrong. Even if D had negative emotions against the Father back in 1986, the Father could still have loved D unilaterally and unconditionally and gifted the Property to D unilaterally and unconditionally. Parental love, just like other species of love, could be unilateral and unconditional. It would be absurd for P to suggest otherwise, especially since the Father did not give evidence (see above). 83.P’s eleventh assertion reads: -
84.The short answer to this can be found in the Judgment (§§40 to 43). The fact that D had for a very long period of time worked diligently for the Father without taking any salary actually made it substantially more likely that the Property was an absolute gift from the Father to D. This was explicitly pleaded by D[27]. D’s trial counsel also relied on this in his written opening (§4(a)) and written closing (§§73 & 74). In my view, P’s eleventh assertion makes the finding in the Judgment correct (as opposed to wrong). At the very least, it was clearly open to me, or any judicial officer, to say, as I did in the Judgment (§42), that D’s long period of diligent unpaid work at Kar Wah, coupled with the agreed fact that D was getting married at the time, adequately explained why the gift of the Property was made to D and D only. 85.As to why it was logical, or at least understandable, for D and D’s Wife to move out of the Property in 1988 despite the fact that D owned the Property absolutely, I adopt and repeat §§31 to 42 above, which should be self-explanatory, and equally applicable here. 86.P’s twelfth assertion reads: -
87.At trial, I was fully aware of the point. In fact, I was the one who raised it[28]. I dealt with it in the Judgment (§§51 to 57). In gist, D had been cross-examined on this and I accepted his sworn evidence as true. D’s sworn evidence on this was as follows[29]:-
88.In other words, according to D, when D received the demand letter from the Father’s solicitors at the time, D was very angry. However, D was not angry about the Father reneging. D was angry about the Father categorizing the money paid for the purchase of the Property as entirely the Father’s, when D had contributed many years of his time and effort towards the success of Kar Wah as a furniture business. D was offended the Father considered the money entirely the Father’s, given how it was earned partly with D’s selfless contribution. It was for this specific reason that when D was giving instructions to his solicitor at the time, D’s focus was on saying the money belonged to him. 89.It was plainly open to me, or any judicial officer, to accept D’s explanation above as sufficient, as I did in the Judgment (§§51 to 57). 90.Pausing here, I should add that it was me[30] who first raised the possibility of D waiving his legal professional privilege and calling his own former solicitor (the author of the solicitors’ letter in question) as a factual witness to explain the absence of the word “gift” in that letter on oath. D’s sworn oral evidence was that this whole idea never crossed his mind, so he never attempted to do so. I specifically asked Mr Alan Leong SC, leading counsel for P, whether he would have any follow-up question arising from that answer, and Mr Leong said no[31]. There was no attempt to put to D that D’s answer on this was somehow untrue. This being the case, P should be taken as having accepted D’s answer on this as entirely true, or immaterial vis-à-vis P’s case. It should not be open to P to now say D had lied on this issue, or that some sort of adverse inference should be drawn against D. 91.In fairness to D, I should add that there was no property in any witness, so that technically, this was a case of no party calling that solicitor, instead of just D not calling that solicitor. In such a scenario, I should not speculate why P did not himself attempt to call the solicitor in question as a witness, and the fact that the solicitor in question was never called to give evidence at the trial was neither here nor there. For that reason, I shall say no more on the issue. 92.P’s thirteenth assertion reads: -
93.P’s thirteenth assertion is also false. No witness had ever, at trial, given any evidence suggesting D could somehow, in 1986, predict his future means. D obviously could not predict the future, because no person could. At trial, no witness suggested otherwise. 94.Mr Alan Leong SC, leading counsel for P, cross-examined D on this, and the exchange actually went like this[32]: -
95.Mr Leong’s next question was then deliberately phrased to be answered by D with the benefit of hindsight, ie, asking D to answer it with the benefit of the knowledge gained by D between 1986 and 2023[33]:-
96.D had never put in the paperwork, so the question was odd. 97.Quite apart from the fact that D had expressly disagreed with (instead of uttered agreement towards) Mr Leong’s odd proposition, with respect, this whole line of cross-examination was immaterial. It was never any party’s case that back in 1986, D could somehow predict, with a crystal ball or otherwise, that his wife would definitely fall out with his stepmother in 1988, or that D would definitely become so wealthy he would be denied public housing irrespective of whether he was the legal or beneficial owner of the Property. Back in 1986, D did not know whether these events would happen. It would be absurd for P or any person to suggest otherwise. 98.What happened after 1986 was of limited value in determining what the Father was, or must have been, thinking in 1986 when he paid for the down payment for the Property. 99.It was clearly open to me, or any judicial officer, to place more weight on what happened before and up to 1986, on the basis that the Father could have simply changed his mind about the Property at some point after 1986 so that events after 1986 should be given less weight or be otherwise considered less helpful in the judicial finding of fact. 100.I had discussed this with Mr Alan Leong SC, leading counsel for P, in a slightly different context, when Mr Leong was on his feet for his oral opening at the trial, and the exchange[34] between the Bar and the Bench went as follows:-
101.Mr Leong did say, twice within the same breath, that that was a fair point, because it was. 102.P’s thirteenth assertion is plainly false. 103.P’s fourteenth assertion reads: -
104.That was true but wholly irrelevant, or at least immaterial. I adopt and repeat §§26 to 45 above. 105.In fact, there was nothing unusual about a son being generous towards his own father or reluctant in evicting his own father. In my view, that was just what one would expect from a normal son with a normal moral compass. P’s current submission to the contrary is, with respect, a classic case of “以小人之心度君子之腹”, a very well-known idiom which should perhaps be translated as “using a mean person’s heart to measure a true gentleman’s mind”, or “a rogue always suspects deceit”. In so far as P is saying “if the Property belonged to D, D would definitely have evicted the Father during his lifetime”, I reject P’s proposition completely. As I had recorded in §43 above, this proposition, quite apart from being absurd, was not even put to D in the course of Mr Leong’s cross-examination of D, and in my view P should not be allowed to raise it at this stage. 106.P’s fifteenth assertion reads: -
107.That was true but wholly irrelevant. In fact, P’s submissions based on this assertion are, with respect, nonsensical. 108.Firstly, D’s case was simple – there was no CICT agreement of any kind between the Father and D. That means on D’s case, there could not possibly be any contemporaneous document evidencing this fabricated and untrue afterthought. If so, why would D ask for an item which D knew would not exist? The fact that D never sought disclosure of a non-existent item was perfectly consistent with D’s belief that none existed. 109.Secondly, on the salary point, D’s case was that he never took a salary, so there would be no contemporaneous document evidencing a lie which alleged otherwise. So, asking rhetorically, why would D ask for an item which D knew would not exist? D never sought disclosure of a non-existent item, and that was consistent with D’s belief that none existed. 110.Thirdly, both parties were represented. As such, they must be aware (because they would have been advised by their respective solicitors and counsel – all of them experienced and competent) that under Order 24 of the Rules of the District Court (Cap 336H), and §5 of Practice Direction 5.2, the discovery exercise was automatic. It was meant to happen without a court order. No litigant needed to “ask” for a list of documents (“LoD”) – a litigant’s duty to swiftly file and serve a properly-prepared LoD which complied with the law in this area arose automatically. If a litigant received from an opposing party an LoD which was potentially inadequate he would not necessarily have to take out an application under Order 24, as he would have many other legitimate alternative choices at his disposal (see below). 111.Depending on the circumstances of a particular case, a litigant may properly make a choice never to apply for specific discovery. By way of example, a litigant may choose to hold his opposing party to the truth of the standard declaration in an LoD, just like the choice made in the case of Sophisticated Materials Limited v Sidepac International Limited [2019] 2 HKLRD D2 [2018] HKCFI 2836, where the remarkable brevity of the LoD in question was successfully used against the party serving it, resulting in the entire legal action being summarily struck out as frivolous and an abuse of process. A litigant may also choose to use an LoD in cross-examination, just like the choice made in Yiu Shing Yin v Kwok Yik Ho [2018] 3 HKLRD H2 [2018] HKDC 514, where the very skillful cross-examination based on an LoD resulted in the party serving it being found dishonest, and with all uncertainties being determined against his favour, on the basis of what was said in L v C [2007] 3 HKLRD 819 (§191, per Yuen JA). Similarly, in Far East Sourcing Limited v Man Bond International Limited & Khan Jawed Arif (unrep,, HCA 1463/2012, 22 March 2016), the standard declaration in an LoD served by a corporation was successfully used to contradict the oral evidence of a witness, resulting in that witness being disbelieved (§§79 & 80, per DHCJ Sakhrani). These are just examples. Each case is different. Circumstances differ. 112.In this case, the approach chosen by Mr Tommy Cheung, trial counsel for D, was to hold P to the standard declarations within P’s LoDs, and to contrast the presence of some documents with the absence of other documents, both in his cross-examination of P[35], and in his submissions[36]. In my view, the choice was proper and helpful. As I have explained above, P’s legal duty to disclose all relevant documents caught by an application of the Peruvian Guano test – see the Court of Appeal’s judgment in Deak & Co (Far East) Ltd v NM Rothschild & Son Ltd [1981] HKC 78 – arose automatically by operation of law and did not depend on any request being made by any person, or on any court order. D and his legal team were fully entitled to hold P to the fact that no contemporaneous document supporting P’s allegation of CICT had ever been disclosed or produced by P and make such submissions on that as they considered appropriate. Indeed, they did exactly that[37]. It was plainly open to me, or any judicial officer, to accept such submissions as correct, and to say what was said in §§36 to 38 of the Judgment, regarding the conspicuous absence of contemporaneous records vis-à-vis the alleged agreement of CICT as an indication that P’s claim was more likely to be an untrue afterthought[38]. 113.Having considered what the Court of Appeal had said in Wong Ka Yan Patrick v Cheung Ka Yu Nicole [2023] HKCA 1310 (§21, per Au JA), it is in my view fanciful for P to brashly suggest the Court of Appeal would somehow choose to reverse the Judgment’s finding of facts, without having seen or heard the witnesses in person, by reason of P’s various false or immaterial assertions. As the detailed analysis above (§§14 to 112) had shown, the Judgment’s finding of facts was logical, supported by evidence, and clearly reasonably open to me. 114.In my view, all things considered, P’s intended ground two is obviously unarguable, and has no reasonable prospect of success. 115.I refuse to grant leave on P’s intended ground two. Intended Ground Three 116.P’s intended ground three reads: -
117.P then, within this intended ground three, lists out 8 assertions, as sub-paragraphs (a) to (h). To distinguish these assertions from those in P’s intended ground two (already examined above), I shall in this Decision call them “P’s assertion 3(a)”, “P’s assertion 3(b)”, etc. 118.P’s assertion 3(a) reads: -
119.For the reasons set out above (§§9 to 12), P’s intended ground one is simply false, so P’s assertion 3(a) is also simply false. 120.P’s assertion 3(b) reads: -
121.I adopt §§14 to 114 above. P’s intended ground two is for the reasons set out there unarguable. Contrary to P’s current submissions those alleged “facts” were either disputed, or immaterial. They would not make the finding of facts in the Judgment wrong. P’s assertion 3(b) is also simply false. 122.P’s assertion 3(c) reads: -
123.P’s assertion 3(c) is true but irrelevant. It was no party’s case that there was any such legal requirement and there was no such finding in the Judgment. What was actually said in the Judgment (§§31 & 32) was:-
124.It was plainly open to me, or any judicial officer, to say what was said in §§31 & 32 of the Judgment, as quoted above. 125.P’s assertion 3(d) reads: -
126.P’s assertion 3(d) is false. 127.Firstly, what was actually said in the Judgment (§32) was:-
128.The finding in the Judgment was that D’s deference vis-a-vis the Father was not absolute. The point being made was simple – there must be things (for example an act of murder) which D would refuse to do even if explicitly instructed by the Father and an instruction which if carried out would result in D losing his entitlement to public housing benefits would in most likelihood be one of them. There was nothing illogical about what was said. The reasoning was logical, or otherwise open to me. 129.Secondly, when I said “common sense would tell us deference to parents was unlikely to be literally absolute so that much would depend on the nature of the instructions and their likely consequences” and found P’s case to be less likely to be true, I was doing no more than what judicial officers frequently and properly do in non-jury trials and appeals on a daily basis – drawing on common sense and/or ordinary life experience to assess and/or determine the relative probability of an event having either occurred or not occurred. 130.Because of what is being said on behalf of P in support of the Summons, I should refer to a number of authorities. 131.The starting point should be what Lord Nicholls had famously declared in the case of Re H and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586-C to F, which is as follows:-
132.The last three propositions set out by Lord Nicholls in the text quoted above did not come from any evidence placed before the House of Lords. There was no expert report from any anthropologist, sociologist or mathematician telling Lord Nicholls how likely or unlikely would a father repeatedly rape his daughter. Lord Nicholls created those propositions out of common sense and his own life experience, as he was perfectly entitled to. For my part, I have never heard anyone doubting the correctness of his three propositions, and I have never heard anyone doubting his entitlement, as a judicial officer, to draw on common sense, and his own life experience, in the manner as he did. 133.Then we have Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117 where our own HKCFA applied Lord Nicholls’ speech in Re H with approval (§§64, 65, 113 & 116). At no point did any of His Lordships question any part of Lord Nicholls’ speech in Re H. That was because, I would suggest, Lord Nicholls’ speech in Re H was entirely correct. 134.Some 3 months later, the UK House of Lords handed down its judgment in In re B (Children) [2009] 1 AC 11, where Lord Hoffmann (at §15) said this:-
135.Similarly, Lord Hoffman’s proposition did not come from any evidence placed before him. There was no evidence from anthropologists, sociologists or mathematicians telling His Lordship how likely or unlikely would parents abuse their children. Lord Hoffman created that proposition out of common sense and his own life experience, as he was also perfectly entitled to. For my part I have never heard anyone doubting the correctness of his proposition, and I have never heard anyone doubting his entitlement, as a judicial officer, to draw on common sense, and his own life experience, in the manner as he did. 136.In the context of local land transaction, we have Polyset Ltd v Panhandat Ltd (2002) 5 HKCFAR 234, where Bokhary PJ said this (§§11 & 12):-
137.His Lordship’s point was insightful. Not every proposition in every case that is so obviously correct no legally admissible evidence needs to be adduced or considered can be adequately explained by logic. If one is asked why the conventional sum of deposit required in a land transaction was 10 per cent, one cannot come up with a satisfactory answer. Why not 9 per cent, 11 per cent, or even 20 per cent? Yet, His Lordship was entirely correct in his observation that the conventional figure was 10 per cent and that it was “routinely accepted without question”. A factual proposition which cannot be adequately explained by logic may nonetheless be entirely correct and accepted by many to be so. 138.In negligence litigation, we can refer to the current edition of Clerk & Lindsell on Torts (24th Edition, 2023) where the learned editors (at §7-209) confidently said:-
139.Judicial officers do not need to have factual or expert evidence placed before them in order to determine and say how unusual it would be for stones to be found in buns, when they know from their life experience that buns tend to be free from stones. Clearly, not every judicial assessment of inherent likelihood, plausibility or probability calls for factual or expert evidence. 140.If things were otherwise, the costs of the vast majority of cases in our courts would be unacceptably disproportionate. 141.Similar observations are routinely made in criminal cases. By way of example, in 香港特別行政區 訴 李健聰 [2020] HKCA 282, the Hon Maggie Poon J, as the Hon Poon JA then was, said this (at §22):-
142.Another example is what DHCJ Barnes (as the Hon Barnes J then was) had said in HKSAR v Tsui Chung Hang (徐頌恆) (unrep., HCMA 148/2006, 28 September 2006), which is as follows (§29):-
143.The dicta cited in §§141 & 142 above must be correct. Indeed, our courts had been saying that for decades, if not centuries. In The Queen v Nguyen Van-Son (unrep., CACC 328/1990, 21 June 1991, per Penlington JA), our Court of Appeal confirmed DDJ Z E Li was fully entitled to use his own human experience to say that a person’s adrenalin would begin to flow when that person was confronted with an alarming situation (eg being threatened with a knife), and that its effect would be to “re-liven the senses and put the person on special alert”, without receiving or considering any expert medical evidence on the phenomenon. 144.Of course, there are limits as to how far a judicial officer can go in drawing on his own common sense and life experience. Authorities on this exist in abundance[39]. The best example is arguably HKSAR v Wong Tai Shing (unrep., CACC 234/2005, 1 June 2006), where the Hon Stuart-Moore V-P said this (§§21 & 22):-
145.There are plenty of other authorities dealing with very similar points. Whilst judicial officers do not need to have evidence placed before them in order to determine how unusual it would be for stones to be found in buns (since buns are common food items), the same cannot be said about issues vis-à-vis inhaling heroin (since these matters should in the ordinary course of events be outside of a judicial officer’s ordinary life experience). It all depends on the proposition in question. 146.With these authorities in mind, we can come back to this case, where the proposition in question in the Judgment was, as I had mentioned at §127 above[40]:-
147.It appears obvious to me that this proposition was well within the boundaries. The ordinary and general behaviour of parents or children was something within the ordinary life experience of most judicial officers (see, eg, §§131 to 135 above) and, unlike the heroin propositions in HKSAR v Wong Tai Shing (above), rather uncontroversial. 148.I am fully satisfied this proposition was, and would be viewed as, reasonably open to me so that it would be fanciful for P to say the Court of Appeal would somehow reverse it as allegedly illogical. 149.P’s assertion 3(e) reads: -
150.P’s assertion 3(e) is true but wholly irrelevant. 151.Firstly, the finding in the Judgment was that D’s evidence was the truth, and the Father had never asked D to be a trustee (§34). Since the alleged discussion never happened, there was nothing to cross their minds. Putting it differently, the absence of evidence on criminality was consistent with and supported the finding in the Judgment that the alleged discussion never happened at all. I further adopt §§58 to 63 above, which are equally applicable here. 152.Secondly, P’s case and D’s case being diametrically opposed, my duty was to assess the relative probability of each case being true. As I had said in §28 of the Judgment, I adopted the approach stated by the Hon Godfrey Lam J (as he then was) in Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 (§46 to §50) to the effect that in all CICT litigation, one should start with “evidence of express discussions” whilst recognizing the parties’ other conduct “remains relevant as a matter by reference to which their assertions… must be gauged and tested”. Since P’s case was in substance an allegation that the Father and D had conspired with each other (with or without the participation of the Bank’s frontline staff) to deceive the Bank, misrepresenting to the Bank that D was the Property’s beneficial owner[41], I did have to consider whether a conspiracy of that nature, alleged by P to have existed, was likely or not. In so doing, it was necessary for me to take the nature of the alleged conspiracy into account. 153.Just as it was legitimate for Lord Nicholls (see §§131 and 132 above) to say fraud is usually less likely than negligence, it was open to me to say, as I did in §33 of the Judgment, that this specific conspiracy alleged by P was, looking at all factual circumstances surrounding the Father and D as they existed in 1986, “highly improbable”. 154.Putting it differently, it was plainly open to me to find it more probable that the Father had done something honest and lawful (eg, gifting the Property to D), and less probable that he had done something deceitful and potentially criminal (eg deceiving the Bank on the beneficial ownership of the Property[42]). 155.P’s assertion 3(f) reads: -
156.P’s assertion 3(f) is, with respect, simply absurd. 157.D’s denial on oath, expected or unexpected, was evidence. It did not cease to be evidence just because P expected it. As it was evidence I could of course “use” it, though the more accurate way of putting it would be that I was obliged to consider it, as I did. With respect, it is absurd for P to suggest whether a piece of evidence could or could not be “used” was somehow dependent on whether P expected it. No authority had been cited to me for this rather novel proposition. In any case, P had never previously submitted D’s denial on oath should for whatever reason be excluded from the evidence. No ground for exclusion existed. 158.Further, the fact that I considered one piece of evidence does not mean I ignored all other pieces of evidence, or inherent likelihood. The three preceding paragraphs in the Judgment (§§31 to 33) were on inherent likelihood. 159.As I had said at §11 above, it is clear from the Judgment (§§29 to 33) that I started my analysis by examining inherent likelihood (as that was more important). Contrary to P’s current submissions, my focus was on inherent likelihood. I merely provided additional reasons afterwards. 160.P’s assertion 3(g) reads: -
161.P’s assertion 3(g) is wrong in multiple ways. 162.Firstly, the agreed absence of contemporaneous documentary evidence which could support P’s claim of CICT was an objective fact – it was incapable of being exaggerated and was never exaggerated. Absence meant absence. Zero meant zero. 163.Secondly, like the situation in Wong Ka Yan Patrick v Cheung Ka Yu Nicole [2023] HKCA 1310 (§§38 to 40, per Au JA), the Assignment and the Mortgage Deed had already fully recorded D’s legal and beneficial interests in the Property in writing in a contemporaneous manner. The law assumed D owned the Property absolutely. It was for a person who sought to suggest otherwise to prove a different case. D did not have to prove the Property was an absolute gift. It is thus fundamentally misconceived for P to ask how anything “proved” the Property to be an absolute gift. 164.Thirdly, D’s case was plainly a plausible, or at least possible, explanation for the absence of document. If P’s case is false while D’s case is true, the absence of document made sense. It was therefore plainly open to me to say what I had said in §§36 to 38 of the Judgment. The reasoning was simple and had been sufficiently explained in those paragraphs which, so far as material, read:-
165.P’s assertion 3(h) reads: -
166.P’s assertion 3(h) is also false. 167.Without having to quibble over semantics, the short answer to P’s assertion 3(h) is that §39 of the Judgment actually added §§40 to 45 of the Judgment to the reasoning. 168.All in all, P’s assertions above plainly do not make the reasons for dismissing P’s claim “not sustainable”, whether as alleged or all. 169.In my view, P’s intended ground three is unarguable, and has no reasonable prospect of success. 170.I refuse to grant leave on P’s intended ground three. Intended Ground Four 171.P’s intended ground four reads: -
172.P then, within this intended ground four, lists out 6 assertions, as sub-paragraphs (a) to (f). To distinguish these assertions from those in P’s first three intended grounds (examined above), I shall in this Decision call them “P’s assertion 4(a)”, “P’s assertion 4(b)”, etc. 173.P’s assertion 4(a) reads: -
174.For the reasons set out above (§§9 to 12), P’s intended ground one is simply false, so P’s assertion 4(a) is also simply false. 175.P’s assertion 4(b) reads: -
176.I adopt §§14 to 114 above. P’s intended ground two is for the reasons set out there unarguable. Contrary to P’s current submissions those alleged “facts” were either disputed, or immaterial. They would not make the finding of facts in the Judgment wrong. P’s assertion 4(b) is also simply false. 177.P’s assertion 4(c) reads: -
178.P’s assertion 4(c) is wholly misconceived. The above was not a “finding”. What I actually said in §42 of the Judgment was:-
179.I adopt and repeat §§131 to 148 above. When I mentioned it was “normal for parents to want to help their children with their children’s purchases of residential properties, especially for marriage purposes”, I was not making a finding of fact from the evidence adduced at the trial. I was stating my reason for saying I considered D’s case inherently more likely to be true. What I did was no different from Lord Nicholls saying it was improbable for a father to have repeatedly raped his daughter, or from Lord Hoffmann saying most parents did not abuse their children, or from Bokhary PJ saying a 10 per cent deposit for the purchase of an interest in land was conventional and routinely accepted by most without question, or from Clerk & Lindsell on Torts saying stones were not normally found in buns. All judicial officers were entitled, and some would say required, to routinely draw on their common sense and life experience in assessing the relative probability of an event having occurred or not occurred. Since the proposition above was about the ordinary and general behaviour of parents and children, it was within my own ordinary life experience, and within the ordinary life experience of most judicial officers[43]. It was plainly open to me, or any judicial officer, to draw on that, without further enquiry, and say what was said in §42 of the Judgment. 180.In any case, this specific proposition was uncontroversial and obviously correct. At no point within P’s draft grounds of appeal, or within P’s submissions for the Summons, did P attempt to suggest otherwise. The 2nd Affirmation of Pang Kam Chuen filed on 3 November 2023 in support of the Summons was silent on the issue as well. 181.It is trite that in both civil and criminal matters, a court of law is entitled to proceed on the basis of propositions which are undisputed, or indisputable, even if it would otherwise require evidence. See, eg, HKSAR v Wong Kam-Luen (unrep., HCMA 470/2006, 30 June 2006, §§6 & 8, per DHCJ Line). A remarkably long but still non-exhaustive list of this having taken place properly in a court of law can be found in Phipson on Evidence (20th Edition, §3-17). Similar lists can be found elsewhere. Whilst P’s case at trial was, quite obviously, that the Father never gifted the Property to D, it was never part of P’s case that no parent would ever do anything similar, or that it would be wholly abnormal for any parent to want to help his child. Indeed, as I said in §69 above, at trial, P did not even challenge D’s sworn oral evidence that when D was trying to marry D’s Wife in 1985, the Father was the one who helped D by paying the necessary gift money (禮金), for no reason other than the fact that, in D’s own words[44]:-
182.Finally, it should be said that just like how I rejected P’s case on both inherent improbability and other factors, and how I certainly would have rejected P’s case even if I were to only consider one but not the other, in the Judgment I was also accepting D’s case on both inherent probability and other factors, and I also certainly would have accepted D’s case even if I were to only consider one but not the other. Accordingly, unless I were deemed palpably wrong on literally all fronts, the result would be identical, and P’s challenge of the eventual outcome as stated in the Judgment would still fail. It is, with respect, fanciful for P to suggest the outcome would be reversed by the Court of Appeal. 183.P’s assertion 4(c) does not provide P with a ground of appeal, certainly not one with any reasonable prospect of success. 184.P’s assertion 4(d) reads: -
185.P’s assertion 4(d) is, with respect, simply absurd. 186.Ordinarily speaking, a litigant cannot use the performance of one action as proof that another action had never been performed. By way of example, if a person declared he brushed his teeth, that declaration could not be taken as a demonstration that he never took a shower or washed his clothes. These events are not necessarily connected. Similarly, a judicial officer’s acceptance of sworn evidence is not a demonstration that inherent probability has thus been ignored by that judicial officer. These events are not related at all. I adopt and repeat §§9 to 13, §§127 to 159, and §§178 to 182 of this Decision here. 187.In opposing the Summons, Mr Tommy Cheung, counsel for D, helpfully drew my attention to what was stated by Lam V-P (as Lam PJ then was) in §§11 to 22 of China Gold Finance Limited v CIL Holdings Limited (unrep., CACV 11/2015, 27 November 2015). Whilst those parts of the Court of Appeal’s seminal judgment are all correct and applicable in our present case, the even more insightful part of the same judgment should be its §§31 to 35. In gist, as emphasized by Lam V-P, a dissatisfied litigant who lost in a trial cannot just take out a small passage in the first instance judgment and then read it out-of-context. 188.In China Gold, there was a small passage in the first instance judgment of DHCJ B Chu (as Chu J then was) in which Her Ladyship said she had preferred the evidence of one Mr Li Jie as she had found him “more spontaneous and firm when giving evidence”. On appeal, that one passage was blown out of all proportion. In dismissing the losing party’s challenge vis-à-vis that passage as having no merit (§35), Lam V-P (as Lam PJ then was) said this (§34):-
189.Whilst each case is different as circumstances differ, P would do well to reflect on what was said by Lam V-P above vis-à-vis what P is saying now. If P reads the Judgment carefully, P should be able to see that in §42 of the Judgment, the inherent likelihood of D’s case being true had been explicitly dealt with – the stated reasoning was that it was normal for parents to want to help their children. P should also be able to see that in §§46 to 66 of the Judgment, a variety of other arguments raised by Mr Alan Leong SC, leading counsel for P, had also been dealt with. P should further be able to see that in §67 of the Judgment, it was recorded that other points, factual and legal, put forward on behalf of P, had also been considered. P does appear to be making a rather similar mistake as the losing party made in China Gold – taking out a small passage and read it as if that was all that was ever said. In my view, P’s approach is wholly inappropriate (see China Gold, §98), and would be viewed as wholly inappropriate. 190.P’s assertion 4(e) reads: -
191.P’s assertion 4(e) is simply false. 192.Firstly, there was no error, and therefore no “such errors”. I repeat §§171 to 189 above. 193.Secondly, it is true that D’s evidence on why he had for many years been content to assist the Father run Kar Wah without taking salaries was accepted, but it was never accepted “just” because D was “credible”, wherever P got that strange and false idea. P’s assertion was false. As one can see from §19(1) of the Judgment, what I actually said was:-
194.So just within §19(1) of the Judgment, P should be able to see multiple reasons being given, namely (1) D’s explanation was logical; (2) D’s explanation accorded with common sense; and (3) D’s explanation was fully supported by the evidence of other witnesses called by him. I counted 3 reasons. Most importantly for our present purposes, there was in fact no reference to D being “credible” within that sub-paragraph. 195.Thirdly, as one can see at §§49 & 50 of the Judgment, I made a positive factual finding that D was as filial as he said he was, and I did so explicitly. 196.Fourthly, as one can see at §50 of the Judgment, I drew on my ordinary life experience in my assessment of the relative probability of D’s story being true, and explicitly said “many people in the world are just as filial as D was” so that in my view D’s story was “normal”, and that there was nothing extraordinary about D’s story at all. I explicitly said:-
197.That was based on relative probability, and not “credibility” as alleged. 198.Fifthly, at §49 of the Judgment, I explicitly quoted the reason given by D on oath verbatim and made a factual finding that that was true and accepted by me as true. That quotation at §49 of the Judgment included these words, which must be self-explanatory and understood by P:-
199.In my view, P’s renewed refusal to accept that D had for many years been content to assist the Father run Kar Wah without taking salaries for the reasons set out in §49 of the Judgment is possibly also a classic case of “以小人之心度君子之腹”, which can perhaps be translated as “using a mean person’s heart to measure a true gentleman’s mind”, or “a rogue always suspects deceit”. 200.P’s assertion 4(f) reads: -
201.P’s assertion 4(f) is wholly misconceived. 202.Without having to quibble over semantics, the short answer to P’s assertion 4(f) is that any part of any judgment of any judicial officer, if read in isolation and out of context, can be arguably hollow, but that is just because judgments are never meant to be read in that manner at all. 203.Take one of Lord Denning MR’s most famous judgments, that of Miller v Jackson [1977] QB 966, as an example. As is well-known, His Lordship’s famous first sentence (at 976-A) in that judgment went:-
204.If one reads that one sentence in isolation and without context, it is arguably hollow, as that one sentence by itself does not tell us anything useful. But if one reads the whole of Lord Denning MR’s judgment in that matter (from 976-A to 982-E), one can immediately see why he wrote about “the delight of everyone”. It was His Lordship’s view that public interest prevailed over private interest so that an injunction should be refused. The public interest in that matter was the delight the playing of village cricket brought to people in County Durham, England. Read in context, that first sentence would not be hollow at all. Just picking one sentence from a full judgment and calling it hollow is with respect an unacceptable practice. 205.In fact, that was the “first and foremost” point taken by Mr Tommy Cheung, counsel for D, in his written submissions in opposition of the Summons. According to Mr Cheung[45], it was fundamentally wrong for P to single out, separate and dismantle the closely connected or interlinked analysis and reasoning in the Judgment in the manner as P did. I entirely agree. P’s approach is simply completely wrong. If an authority is needed, we can just go back to China Gold. I do adopt §§187 to 189 above, which is also applicable here. 206.In any case, §45 of the Judgment is actually not “hollow”. It reads:-
207.That passage had therefore set out the legal approach adopted, what had been considered, what was the finding, and the timeframe. This seems to me to be quite important for the reader of the Judgment, including P, and its inclusion in the Judgment completed the picture. Its utility should be obvious to everyone. 208.All in all, P’s assertions above plainly do not make the reasons for finding D’s story more likely to be true “not sustainable”, whether as alleged or all. 209.In my view, for all of the reasons above, and with the greatest respect, P’s intended ground four is also unarguable and has no reasonable prospect of success. 210.I refuse to grant leave on P’s intended ground four. Intended Ground Five 211.P’s intended ground five reads: -
212.In my view, P’s intended ground five is also unarguable, and has no reasonable prospect of success. In fact, I do say it is deplorable that P’s intended ground five found its way into a formal court document. 213.Firstly, the sworn evidence of the Widow at trial was the exact opposite of what P now tries to submit. 214.When the Widow was giving sworn oral evidence at trial, Mr Alan Leong SC, leading counsel for P, re-examined the Widow, as he was entitled to, and the following exchange[46] took place between Mr Leong and the Widow:-
215.That exchange was telling because the question was in fact an inappropriate leading question which suggested the answer, yet the Widow firmly disagreed with the answer embedded in the question. It was an own goal for P. 216.That exchange clearly showed that what P now tries to submit is untrue, and had been denied by his own mother, the Widow, on oath. In light of that exchange, it is shocking how P still tries to pursue his intended ground five. 217.Secondly, for the “sudden expansion” of evidence on the part of P, what P now tries to submit is also untrue or nonsensical. When P was giving sworn oral evidence at trial, with the consent of everyone, I asked P clarification questions, and the following exchange[47] took place between P and myself:-
218.P never came up with any acceptable reason why it should be the Father giving evidence on something beyond his knowledge, instead of P giving evidence on his firsthand experience. This suggestion from P was and remains wholly nonsensical, and obviously so. P never addressed this in the Summons, or in P’s submissions in support of the Summons. 219.That was the genesis of what I eventually said in §18(3) of the Judgment, which was as follows:-
220.In light of the above, it is shocking how P still tries to pursue his intended ground five and seeks to re-run that “it was reasonable for P to take a more passive role” argument. Just by way of example, it must be thoroughly nonsensical for P to say he was the one who allegedly bumped into D in Kowloon City in the absence of the Father but he somehow made a conscious decision never to put that firsthand experience, personal to him, into his own witness statements, expecting the Father to somehow manage to give evidence on an incident the Father never himself experienced. The absurdity of P’s argument is obvious. 221.Thirdly, contrary to P’s current submissions, I very obviously did not just cite a single ground to say I found the evidence of the Widow and P unreliable. I cited multiple grounds. 222.In §17 of the Judgment, I listed out 3 separate grounds why I found the Widow’s evidence unreliable, as follows:-
223.In §18 of the Judgment, I listed out 5 separate grounds why I found P’s evidence unreliable, as follows:-
224.In the Summons, and in P’s submissions lodged in support of the Summons, P never addressed those other grounds. 225.So again, P appears to have adopted the approach disapproved by Lam V-P (as Lam PJ then was) in China Gold as wholly inappropriate – taking out one passage in the first instance judgment and then read it out-of-context as if that passage was all that was ever said on the subject. 226.It is regrettable that P chose to do so repeatedly. 227.Fourthly, contrary to P’s current submissions, I had never, in any way or form, at any time within the trial or in any part of the Judgment, said it was impermissible for P to have read the Father’s Statements. There was no such ruling or comment anywhere. What I actually said, in §18(2) of the Judgment, was this:-
228.The point was not whether P had read the Father’s Statements. In fact, upon DDJ Frances Lok having, on 15 March 2023, made an order directing P to take over the prosecution of this action as the executor of the Father’s estate pursuant to Order 15 rule 7 of the Rules of the District Court (Cap 336H), P became “duty bound” to read all of the papers in this action, including but not limited to the Father’s Statements, otherwise P would not be in a position to give meaningful instructions to his solicitors on matters such as whether a hearsay notice should be filed and served for the Father’s Statements, etc. P was thus wrong to say the reading was “permissible” – P was in truth both “empowered and duty bound” to read them. The point being made in the Judgment was about something else completely – it was about the internal inconsistency of P’s evidence – P contradicted his own evidence on oath within the same day. In fact, P’s denial that he had read the Father’s Statements, when he said earlier the same day that he did read the Father’s Statements, was shocking. It would be very surprising for any judicial officer to find himself being able to rely on any part of P’s evidence after P contradicted himself in that manner. Of course, as I stated above, that was just one of the five reasons I found P’s evidence unreliable – when each of those five reasons would have been more than sufficient for me to conclude P’s evidence could not be relied on by me. At the very least, that conclusion was plainly open to me and to any judicial officer. 229.I cannot see how P could argue otherwise. 230.Fifthly, contrary to P’s current submissions, as a matter of law it was impermissible for any factual witness, whether it was the Widow or P, to “take a more passive role”, whatever that was supposed to mean. The oath of a witness requires that witness to tell the truth, the whole truth, and nothing but the truth. It is never permissible for any witness to simply tell half-truths. When it comes to giving evidence, there is no such thing as “a more passive role”. P’s submissions in relation to this are thoroughly bad. The fact that one witness may show up to say something does not mean all other witnesses in the same matter may then on their parts deliberately bury that evidence. In any civil trial, each witness is supposed to give his own evidence independently. And since a written witness statement is meant to be the entirety of that witness’s oral evidence, a written witness statement must also contain the truth, the whole truth and nothing but the truth. There is no place for “a half-way house”. See, eg, Hong Kong Civil Procedure 2024, §38/2A/6, which says this (on which I agree and endorse as entirely correct):-
231.Sixthly, contrary to P’s current submissions, it is trite law that matters going to the weight of the evidence do not amount to valid grounds of appeal with reasonable prospect of success, because the Court of Appeal takes the view that it is never appropriate for the Court of Appeal to “take over the role of the trial judge as the primary assessor of the evidence”, or to “embark on the role of re-assessment of the evidence” – Yeung Cheung Chun v Wing Shing Caisson & Foundation Limited and Another (unrep., CACV 39/2015, 25 April 2016, §35, per Kwan JA, as Kwan V-P then was) – and P’s current attempt to say I should perhaps have placed more weight on this or less weight on that is wholly inappropriate within an application for leave to appeal. 232.For all of the reasons set out above, P’s intended ground five is in my view unarguable and has no reasonable prospect of success. 233.I refuse to grant leave on P’s intended ground five. Intended Ground Six 234.P’s intended ground six reads: -
235.In my view, P’s intended ground six is plainly unarguable, and has no reasonable prospect of success. 236.Firstly, P’s new assertion that the Father was “the only person who had first-hand personal knowledge of the circumstances surrounding the purchase of the Property” is inconsistent with P’s oral opening, where Mr Alan Leong SC, leading counsel for P, made it clear P’s case was based on an allegation of express agreement between the Father and D[48]. If there was an agreement (in the Judgment I ruled that there was none), then there would be at least two persons (namely, the Father and D) who had the first-hand knowledge of what was agreed. Having opened his case on that basis, it is no longer open to P to retract that and suggest the opposite, just because he lost. 237.Secondly, P’s new assertion (above) is also inconsistent with P’s cross-examination of D, where Mr Alan Leong SC, leading counsel for P, specifically put to D that there was, allegedly, an oral agreement between the Father and D on the express terms of the trust back in 1986[49]. If there was an agreement (in the Judgment I ruled that there was none), then there would be at least two persons (namely, the Father and D) who had the first-hand knowledge of what was agreed. P, having put his case in this manner, is no longer entitled to suggest the opposite, just because he lost. 238.Thirdly, P’s new assertion (above) is also inconsistent with the actual contents of the Father’s Statements, where the Father sought to allege there was an oral agreement between the Father and D on the express terms of the trust[50]. If there was an agreement (in the Judgment I ruled that there was none), as I mentioned above, there would be at least two persons (namely, the Father and D) who had the first-hand knowledge of what was agreed. P cannot blow hot and cold in this manner, alleging an agreement between two persons, whilst at the same time suggesting only one of them had first-hand knowledge of the agreement. 239.Fourthly, as I had correctly stated in §26 of the Judgment, my duty was to apply Section 49 of the EO, and I was fully entitled to consider the issue of weight by reference to a variety of factors, including those set out in Section 49(2) of the EO. It should be crystal clear from the reasoning set out in §27 of the Judgment that I did exactly that. As I had mentioned above, it is trite law that matters going to the relative weight of the evidence do not constitute valid grounds of appeal because it is never appropriate for the Court of Appeal to “take over the role of the trial judge as the primary assessor of the evidence”, or to “embark on the role of re-assessment of the evidence” – Yeung Cheung Chun (above) – and P’s current assertions that I should have placed more weight on this or less weight on that are not appropriate within an application for leave to appeal. 240.Fifthly, §8 of the Judgment was obviously correct. D properly disclosed a true copy of his current HKID Card[51]. There was no challenge to its authenticity. I had in any case examined the original. Its date of issue was “11-79”. That means, by November 1979 at the latest, D had already arrived Hong Kong and went to the Immigration Department to get the first version of his HKID Card issued by the Hong Kong Government. Nothing important turned on that at all because quite irrespective of whether D came to Hong Kong in 1979 or 1982, the Property could still be either an absolute gift or the subject of a trust. D’s exact year of entry was wholly immaterial vis-à-vis that ultimate question. There was, however, no conflict between that view and my consideration under Section 49 of the EO, which required me to have regard to “any circumstances” relating to the reliability of the hearsay evidence in question, irrespective of whether those circumstances would go to the ultimate question or not. So, whilst D’s exact year of entry was wholly immaterial to the ultimate question, the irrefutable fact that the Father’s Statements contain an obvious error was something I was obliged to consider. It was open to me, and to any judicial officer, to take that into account as one of the seven reasons (most of which unchallenged) why the Father’s Statements should be given no weight[52]. I cannot see how P could argue otherwise. 241.Sixthly, it was actually P who (via §31 of his written opening) urged me to assess the weight to be given to his hearsay evidence by cross-checking all such hearsay evidence against other evidence at the trial, citing the dictum of HHJ Jonathan Wong in Law Kim by next friend The Official Solicitor v Luk Yik Biu [2022] HKDC 878 (§5.5) in support. It is not open to P to now say I should never have done so, just because the outcome was unfavourable to P. 242.Seventhly, I gave seven reasons why the Father’s Statements should be given no weight. The full §27 of the Judgment said:-
243.Apart from a wholly unparticularized bare assertion that I had erred, P never challenged reasons (1), (2), (4), (5), (6) or (7) set out in §27 of the Judgment, as quoted above. Each of those reasons would in any case be sufficient for any judicial officer to reach the same conclusion, whether considered independently or in conjunction with each other. P did not say anything by way of submissions which could demonstrate otherwise. Even if any one of the seven reasons was taken out, it would still be open to me, or any judicial officer, to reach the same conclusion. P’s current challenge therefore does not have the necessary materiality and would fail. See §35 of Yeung Cheung Chun (above), per Kwan JA as Kwan V-P then was. 244.Eighthly, looking at the way P drafted his intended ground six, P appears to have yet again adopted the approach disapproved by Lam V-P (as Lam PJ then was) in China Gold as wholly inappropriate – taking out a single passage in the Judgment and then read that out-of-context as if that was all that was ever said on the subject, when that was untrue. 245.It is regrettable that P chose to do so repeatedly. 246.For all of the reasons above, P’s intended ground six is in my view unarguable and has no reasonable prospect of success. 247.I refuse to grant leave on P’s intended ground six. Intended Ground Seven 248.P’s intended ground seven reads: -
249.In my view, P’s intended ground seven is also unarguable, and has no reasonable prospect of success. Indeed, P’s intended ground seven is fundamentally misconceived, and wholly absurd. 250.Firstly, since my finding in the Judgment was that the alleged discussion said by P to have taken place between the Father and D in 1986 never happened, and the Property was a perfectly lawful absolute gift from the Father to D, there could be no crime, and the discussion at §§62 to 66 of the Judgment was obiter, and expressly said to be purely academic. It is trite that a litigant can only appeal against the outcome of a trial, but not against purely academic discussions based on a hypothetical scenario. As Lord Loreburn LC had stated in Glasgow Navigation Company v Iron Ore Company [1910] AC 293 at 294, it is never the function of any court of law to advise parties as to what would be their rights under a hypothetical state of facts. P’s current attempt to appeal against purely academic discussions is with respect completely misconceived. See Hong Kong Civil Procedure 2024, §59/0/30. 251.Authorities on this also exist in abundance. In my view, there is no necessity for me to identify or examine all of them, nor would that be possible. Just citing two examples should be sufficient. 252.The first example here can be the Court of Appeal’s judgment in Allidem Mae G v Kwong Si Lin (unrep., HCMP 33/2006, 17 March 2006, Yuen JA), where a litigant sought leave to appeal from the Court of Appeal on the basis that Chak Chong-chi v Maxim’s Caterers Ltd (unrep., HCLA 25/1992, 21 September 1992, DHCJ Jerome Chan) should be discussed. In rejecting that argument, Yuen JA said this (at §§6 to 11):-
253.Whilst Yuen JA’s dictum as quoted above was in relation to a labour dispute, it was of general applicability. In cases concerning private disputes only, the Court of Appeal cannot in normal circumstances, or does not in practice, seek to decide academic scenarios which did not arise from the actual findings of fact at the court or tribunal below, irrespective of how academically interesting the issue could be. The rationale is simple. Only the ratio decidendi of an authority is binding (the obiter dictum of the same authority has no force of law). It is thus considered generally inappropriate for the Court of Appeal to entertain arguments that are purely academic. It would in any case be a waste of precious judicial resources for our appellate courts to routinely (ie in the conspicuous absence of special circumstances) entertain arguments which do not in fact arise from findings of fact at the court below. 254.Another example here can be the Court of Appeal’s judgment in Beelab Semiconductor Limited v The Ombudsman (unrep., CACV 227 / 2010, 21 June 2011) where Kwan JA (as Kwan V-P then was) made it very clear that the Court of Appeal would not rule on hypothetical questions that were “not germane to” (§17) the actual decisions at the courts below. In the circumstances of Beelab, that was fatal to the application in question. 255.In our present scenario, my actual finding of fact was that the Property was a perfectly lawful absolute gift from the Father to D, so that we need not consider Monat Investment Ltd v All Person(s) in Occupation of Part of No 16 Ma Po Tsuen [2023] 2 HKLRD 1311 [2023] HKCA 479, or Patel v Mirza [2017] AC 467. No issue of criminality arose. This being the case, P’s intended ground seven is fundamentally misconceived. 256.Secondly, the factual assertions in P’s intended ground seven are either false or without foundation. By way of example, P boldly asserts the Bank “was aware of the arrangement” between the Father and D when P adduced no such evidence from any person who worked for the Bank in 1986. I do adopt §§58 to 63 above, and §§149 to 154 above, in relation to this. Even if a frontline staff member was aware of it, that person could of course have been a co-conspirator who assisted customers in deceiving the Bank. Since P chose to adduce no evidence from the Bank, that was simply unknown. It was unnecessary to investigate this matter any further, given my rejection of P’s factual case for the reasons set out in the Judgment. 257.Thirdly, I obviously did not “refuse giving effect to the CICT agreement” as alleged – my finding was that there was no CICT agreement to start with. 258.Fourthly, given my finding that the Property was an absolute gift from the Father to D, there was no resulting trust for P to rely on. 259.Fifthly, whilst I have read with interest the recent judgment of DDJ Frances Lok in Leung Ching Wai v Li Yun Lim [2023] HKDC 459 (18 July 2023) cited by P in the Summons but curiously never lodged by P, for the four reasons cited above (see §§250 to 258), this is not the occasion for me to say anything substantial about that judgment. Whilst illegality arose on the facts of Leung Ching Wai (see its §§53 to 73), it did not arise on the facts of our present case. As I mentioned above, it was lawful for the Father to gift the Property to D absolutely in the manner as he did. P’s reference to Leung Ching Wai is simply misconceived. 260.In my view, P’s intended ground seven is also unarguable, and has no reasonable prospect of success. 261.I refuse to grant leave on P’s intended ground seven. The Stay Application 262.As to the stay application, it was made by P on the assumption that I would agree there were some arguable grounds of appeal. 263.For all of the reasons set out above, my view was and remains that the intended appeal has no reasonable prospect of success so that leave should be refused altogether. In such a scenario, there is simply no reason why the Judgment should be stayed. I dismiss the stay application. 264.Having said that, I should record that according to Mr Tommy Cheung, counsel for D[53], out of respect for the Father (instead of by reason of any concession on the merits of the stay application itself), D generously offered an undertaking “not to take steps to seek actual possession of the Property from P, or otherwise dispose of the Property in reliance on the Judgment, up to the determination of P’s renewed application to the CA for leave to appeal (if there is any), or 6 months from [6 December 2023], whichever is later” (“D’s Undertaking”). 265.I accept D’s Undertaking. I do so for the sole reason that this would make it unnecessary for P to attempt an interlocutory application in the Court of Appeal itself, saving precious judicial resources. It would be beneficial to all. But for this consideration, I would not consider accepting D’s Undertaking at all, given my view on how unmeritorious P’s intended appeal really is. Disposition 266.By reason of the above, the Summons is dismissed. There is no reason why costs should not follow the event. There is an order nisi that P shall pay to D the costs of the Summons, summarily assessed by me with certificate for counsel at HK$121,555, forthwith. 267.Unless a party takes out a summons to vary the order nisi on costs within 14 days from today, the order nisi shall automatically become absolute, without further order. Final Remarks 268.Last but not least, I should say this. In most civil trials, one side wins, the other side loses. This happens daily in our courts. There is nothing unusual about this. The losing party is always entitled to exercise all of his legal rights prescribed by our rules of court, including the right to apply for leave to appeal to a higher court. These legal rights exist, and are prescribed by our rules of court, for good and important reasons. However, in exercising a legal right to apply for leave to appeal the losing party needs to act honestly and responsibly and refrain from making false or misleading allegations. All legal rights must be exercised in an honest and responsible manner. Whilst all leave to appeal applications would necessarily involve making an allegation that the first instance judicial officer had erred, and that may by itself be entirely proper, if the draft grounds of appeal seek to argue some propositions were “not disputed” by the opposing party at trial, the applicant has a duty to check whether such an allegation is actually true before making it. Even if the official transcript is not available at the point of drafting the grounds of appeal, it would be good practice for the litigant to consider applying for a copy of the official audio recording for the trial and cross-checking his intended allegations with this record. Had this been done in our case, P’s draft grounds of appeal would have been much shorter and more focused. A more responsible approach in the drafting of the draft grounds of appeal for this case would have been beneficial for the efficient administration of civil justice. 269.I do thank all counsel for their most able assistance.
Written submissions by Mr Alan Leong SC, leading Mr Alwin Chan and Ms Lily Yeung, instructed by K W Wong & Co, for the plaintiff Written submissions by Mr Tommy Cheung, instructed by Lo & Lo, for the defendant [1] Indeed, if one checks the Judgment with MS Word’s search function, one can see that (1) the word “likely”, “unlikely” or “likelihood” was used 9 times; (2) the word “inherent” or “inherently” was used 7 times; (3) the word “implausible” or “implausibility” was used 4 times; (4) the word “probable” or “improbable” was also used 4 times; but (5) the word “credible” or “credibility” was only used once. On one view at least, one may say these statistics also showed, in an objective manner, that the focus of the Judgment was, contrary to P’s submissions, substantially more on “inherent likelihood, plausibility & probability”, and very much less on “credibility”. [2] See transcript p.99, line T. [3] See §27 of D’s 1st witness statement, and §14 of D’s 2nd witness statement. [4] See §42 of D’s written closing. [5] See §§46 to 48 of D’s written closing. [6] See transcript p.3, lines B to R. [7] See transcript p.362, line D to p.363, line E. [8] See transcript p.278, lines K to p.280, line F. [9] See §12 of D’s 1st witness statement. [10] See transcript p.511, lines F to N. [11] See transcript p.339, line J to line R. [12] See transcript p.24, line E to line J. [13] See §§13 & 17 of D’s 1st witness statement. [14] See transcript p.310, line L, to p.313, line N. [15] See transcript p.159, line B. [16] See §13 of D’s 1st witness statement. [17] See transcript p.311, lines K to P. [18] See §4 of Hau’s witness statement. [19] See transcript p.312, lines D to H. [20] See transcript p.2, lines M to O. [21] See transcript p.513, lines K to S. [22] See transcript p.222, lines D to G. [23] See transcript p.222, lines D to G. [24] See transcript p.451, lines S to T. [25] See transcript p.409, lines C to E. [26] See transcript p.256, line P to p.272, line L. [27] See §16 of the Defence. [28] See transcript p.18, lines D to P. [29] See transcript p.285, line F to p.287, line J. [30] See transcript p.313, line R to p.315, line F. [31] See transcript p.315, line H. [32] See transcript p.218, line S to p.219, line M. [33] See transcript p.220, lines A to E. [34] See transcript p.6, line R to p.7, line M. [35] See transcript p.114, line U. [36] See transcript p.200, lines E to K, and p.493, lines N to T. [37] See transcript p.200, lines E to K, and p.493, lines N to T. [38] That was just part of the reasoning in the Judgement as I had, in the Judgment, dismissed P’s claim for multiple alternative reasons, each of which in my view correct. [39] See Phipson on Evidence (20th Edition, Chapter 3, including its §3-21). [40] See §32 of the Judgment. [41] See Clause 2 of the Mortgage Deed reproduced at Trial Bundle p.160, which said D was the beneficial owner of the Property. P never adduced any evidence from the Bank or from any person who worked at or for the Bank in 1986 as to why the contemporaneous record (the Mortgage Deed, of which the Bank was a party) clearly showed D to be the beneficial owner. One can assume, unless considerations of (1) relative probability; and/or (2) reliable evidence pointed to the contrary, the contemporaneous record in the Mortgage Deed explicitly saying D was the beneficial owner was actually true. [42] See the footnote immediately above. [43] See Phipson on Evidence (20th Edition, Chapter 3, including its §3-17). [44] See transcript p.222, lines D to G. [45] See §5 of D’s written submissions lodged on 6 December 2023. [46] See transcript p.77, lines H to J. [47] See transcript p.126, lines E to K. [48] See transcript p.2, lines M to O, [49] See transcript p.311, lines A to D, and p.312, lines A to F. [50] See Trial Bundle p.74, §20. [51] See Trial Bundle, p.343. [52] See §27 of the Judgment. [53] See §26 of D’s written submissions lodged on 6 December 2023. | |||||||||||||||||||
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