Li Chun Pong Raymond v. Li Maggie Hang Yung
Read the full judgment text of DCCJ 367/2020 on BabelCite. This District Court judgment was delivered on 25 July 2024.
1. This is an absurdly acrimonious dispute between two siblings. The plaintiff ( “P” ) is a younger brother born in 1964. The defendant ( “D” ) is an elder sister born in 1960. By the time they gave oral evidence before me in April 2024, they were aged 59 and 63 respectively.
Cited by 9 cases · Cites 26 cases
|
DCCJ 367/2020 [2024] HKDC 1211 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 367 OF 2020 -------------------------
-------------------------
------------------------- JUDGMENT ------------------------- Introduction 1.This is an absurdly acrimonious dispute between two siblings. The plaintiff (“P”) is a younger brother born in 1964. The defendant (“D”) is an elder sister born in 1960. By the time they gave oral evidence before me in April 2024, they were aged 59 and 63 respectively. 2.The dispute between these siblings began with their purchase of a residential unit known as “Unit D, 29/F, Block 1, La Costa, No. 8 Po Tai Street, Shatin, New Territories” (“the Property”), registered as owned by P and D as tenants-in-common, each having a 50% interests, since 2005. Curiously, these siblings actually agreed they were and remain co-owners, both at law and in Equity. The dispute was really about (1) their respective percentage of beneficial ownership; (2) the usage of the Property; and (3) some rather disturbing acts alleged to have been perpetrated by P and said to be tortious, and thus unlawful, acts of intimidation and/or harassment. 3.Having read all documents including counsel’s exceptionally helpful written submissions, heard 4 days of oral evidence, and listened to counsel’s equally helpful oral submissions, I decided to grant the reliefs set out towards the end of this judgment. In gist, on the primary issue, I ruled in D’s favour. I shall explain how I came to that decision. Background Facts 4.The background facts are incredibly sad. In fact, when D was giving evidence before me and asked to retell some of those facts, she cried uncontrollably, as did at least two persons in the public gallery. I shall only set out so much of such background facts as would be strictly necessary to ensure the reasoning in this judgment can be fully and properly understood. I shall otherwise seek to preserve the privacy of at least some of the people involved. 5.D was born in Hong Kong. She had one elder sister, one elder brother, two younger sisters, and one younger brother. In other words, D ranked third amongst all siblings. P ranked fifth[1]. 6.From 1960 to 1982, D grew up living in a public housing unit in Choi Hung Estate. D moved out to live with her elder sister in 1982[2]. 7.D got married in November 1987 when she was 27[3]. By June 1991 when she was 30, D migrated to Sydney, Australia, with her husband, after which they gave birth to a daughter called Nicola. From 1994 to 1995, Nicola and D followed D’s husband to Japan and stayed there, by reason of work arrangements. In around 1995, D’s husband was transferred back to Hong Kong, so the family moved back. All was well until January 1998, when D’s husband was diagnosed with Stage IV liver cancer. D’s husband wished to return to Australia for treatment, so the whole family moved back to Australia. On 14 April 1998, D’s husband very sadly passed away when he was only 43. On that day, D was 37, and Nicola was only 5[4]. Overnight, D became a widow, and also a single parent. D and Nicola were all alone in Australia, a place they hardly knew at the time, though D’s father and a former colleague of D visited them briefly[5]. When D gave evidence about this before me, D said, and this was sensibly unchallenged, “嗰陣時我真係好忙… 我哋搵棺材都唔知去邊度搵” [English translation: “Back then I was really busy… we had to find a coffin but we did not even know where to go to find one”][6]. However, D decided that D and Nicola should stay in Australia since D believed[7], and this was also sensibly unchallenged, that Australia’s education system would be better for Nicola. Fortunately, D’s husband had two life insurance policies and the payouts were sufficient to allow D to take care of Nicola on a full-time basis, which D did. It was for these and other sad reasons that D and Nicola ended up staying in Australia most of the time, only visiting Hong Kong occasionally. 8.In 2005, for very hotly disputed reasons, P and D became co-owners of the Property. The solicitor who handled that transaction was one Mr Ho Kim Hung (何劍雄律師) (“Solicitor Ho”), who was then a partner of Rowdget W Young & Co Solicitors (楊振文律師行). Curiously neither party called Solicitor Ho as a witness, even though either P or D could have done so. I therefore had no opportunity to hear or receive evidence directly from Solicitor Ho. The Witnesses – Overview 9.The following witnesses gave live evidence at the trial, in this order of appearance:-
The Law – Analyzing Evidence 10.There is no real dispute as to how I should go about analyzing the live oral evidence. What was said by DHCJ Thomas Au, as Au JA then was, in Lee Fu Wing v Yau Po Ting Paul [2009] 5 HKLRD 513 (§53), and what was said by DHCJ Paul Lam SC, as the current Secretary for Justice then was, in Taishin International Bank v QFI Limited [2020] HKCFI 2116 (§13), were particularly helpful. As always, I am guided by those dicta. I am also fully aware of what was said in Phipson on Evidence (20th Edition, Chapter 45, including its §45-24), and I considered that as well. 11.I should mention that on 30 April 2024, in his oral closing, Mr Keith Tam, counsel for P, addressed me on the agreed objective fact that P had dishonestly lied to D (his own elder sister), or made false assertions to D (his own elder sister), on at least two matters, one about a lock and one about a tenant, in circumstances where P was not under oath, and Mr Tam’s submissions to me went as follows: -
12.Partly in response to that, Mr Tommy Cheung, counsel for D, asked me to make good use of my “visual benefit”[9], in the sense of having been able to visually observe P’s reaction under cross-examination. 13.By reason of the above, I should mention I am fully aware of, and I have reminded myself of, the case law on demeanour and lies. 14.As I have mentioned in Mohammad v Tam [2024] HKDC 912 (at §§6 to 11, per DDJ Kenneth KY Lam), in Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 (at §§36 to 38), Bokhary PJ said this: -
15.The above was applied in Yiu Shing Yin v Kwok Yik Ho [2018] 3 HKLRD H2 [2018] HKDC 514 (at §63, per DDJ Kenneth KY Lam). 16.In EPI v Symphony plc [2005] 1 WLR 3456 (at §§74 & 75), Peter Smith J said this: -
17.The above was applied in Lam Rogerio Sou Fung v Tan Soon Gin George (HCA2576/2005, 5 May 2011) (at §41, per Chu J). 18.Even though I am a professional judge in a civil trial, and not a juror in a criminal trial, I have still warned myself against any improper use of lies, and reminded myself a litigant may lie for a variety of different reasons, and that lies usually affect credibility only. This was emphasized by Chan PJ in HKSAR v Yuen Kwai Choi (2003) 6 HKCFAR 113 (at §§31 & 32). Given the large variety of different reasons why a person would lie, a person’s lies should always be treated with caution. 19.In particular, as I had mentioned during the trial itself[10], I was fully aware of the possibility of a lie being nothing more than a “white lie”, i.e., a false assertion uttered with the best of intentions. A dim sum lady in a Chinese restaurant may ask a male customer 「靚仔，食唔食燒賣呀？」[English translation: “Handsome boy, do you want to eat some siu mais?”], when the dim sum lady actually considered the customer hideous looking[11]. On one view, there is nothing wrong with this. A kind-hearted doctor may also tell a dying patient he would be fine, knowing full well that is untrue. On one view, there is nothing wrong with that either. Lies can also be told as jokes, even when they are not at all funny. People also bluff in drinking games, card games, mahjong and various other situations. The possibilities are endless. Each situation is different. Each situation must be examined cautiously. 20.As in Mohammad v Tam [2024] HKDC 912 (at §12, per DDJ Kenneth KY Lam), I have, in this case, similarly considered the entirety of P’s evidence, including all contents of P’s witness statement (“P’s WS”), all contents of P’s supplemental witness statement (“P’s SWS”), and P’s oral evidence. I cross-checked P’s evidence with inherent probabilities and all other pieces of evidence adduced at the trial. I have carefully observed P’s demeanour (including his long pauses before some of his answers) and approached it with great caution. At the end of the day, I came to the firm view that P’s evidence was wholly unreliable, as a result of which I rejected the entirety of P’s evidence, except those parts which were admissions, or were independently proved by various other pieces of evidence, for the full reasons set out below. The Evidence Of P 21.I found P’s evidence wholly unreliable. 22.Firstly, P’s case on the alleged common intention vis-à-vis the beneficial interests in the Property is inherently improbable. P admitted he worked for a telecommunication company since 1993 and then a bank since 2004[12]. One would have thought from both roles he must have realized the importance of proper documentation. Yet P’s case is that he had an express oral agreement with D on the beneficial interests in the Property which was fundamentally different[13] from the public written record duly registered in the Land Registry, but P did not see the need to have it recorded in writing in any way or form out of trust[14]. Whilst this may be probable for someone who never worked for a bank, it is improbable for someone who did. 23.In my view, it is substantially more likely that the entirety of P’s case on the alleged common intention is just a dishonest lie fabricated by P out of P’s greed and/or out of P’s desire to harm and hurt D (after they fell out with each other)[15]. 24.Secondly, when P was cross-examined on the contents of D’s WS, P’s oral answers under oath went like this[16]: -
25.P’s answers were lies because in P’s SWS, signed by P on 30 August 2022, P explicitly referred to D’s WS and responded to its contents section by section, in a very comprehensive manner. Since P responded to such contents section by section, P must have read D’s WS himself, or been shown and explained its contents. In fact, §3 of P’s SWS said both events occurred, and P had previously confirmed the truth of that under oath. The falsity of P’s answers under oath, or the internal inconsistency of P’s sworn oral evidence, was obvious. In my view, that was due to P’s dishonesty as a witness, or P’s indifference towards accuracy, or towards telling the truth. Either way, that made P’s evidence wholly unreliable[17]. 26.Thirdly, at the suggestion of Mr Tommy Cheung, counsel for D, I made good use of my “visual benefit”[18]. I was able to visually observe P’s reaction throughout the entire duration of his live oral evidence before me, and the way P reacted to questions in front of me clearly showed to me P was either thoroughly dishonest even when giving evidence under oath, or wholly indifferent towards accuracy or telling the truth. That applied to the entirety of P’s live oral evidence before me, but the best example is this part of his evidence[19], the visual image of which I can still vividly recall: -
27.I was, of course, fully aware it was no part of my judicial duty to pass moral judgment on P’s actions. I said so myself[20]. Whether it was despicable for P to have dishonestly lied to D in order to make her unhappy was never by itself relevant. However, the exact manner in which P reacted to my questions was relevant to my assessment of P’s credibility, and I can take that into account with caution. As Bokhary PJ had said in Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 (§§36 to 38), demeanour has a role to play. The way P insisted, when giving sworn evidence before me, that the 30 March 2019 WhatsApp Voice Message, which had in fact been explicitly pleaded as the factual basis of D’s counterclaim against P[21], was in P’s view “unimportant”, is particularly shocking. It was a pleaded counterclaim by D against P, verified by D with a Statement of Truth, and P by his own pleading denied what he did amounted to committing the tort of intimidation and/or the tort of harassment[22]. P further addressed it in P’s WS[23]. The fact that P then treated this serious pleaded issue with immense disdain when talking about it under oath was in my view a sign that P never took his legal obligation to tell me the truth seriously. 28.There were, of course, many more instances during the course of P’s oral evidence before me[24] where the visual image, such as P’s facial expression of nonchalance, contempt and scornfulness demonstrated to me P was dishonest or wholly indifferent towards accuracy or telling the truth, but just stating the above should be sufficient for present purposes. 29.Lastly, D also gave live evidence before me, and various parts of D’s evidence directly contradicted P’s evidence on the same issues. For those parts, if D’s evidence was the truth, it necessarily meant P lied to me. As I shall further explain below, after careful consideration, I accepted D’s evidence as the truth. That being the decision, I had of course also rejected P’s evidence at the trial on this further or alternative basis. The Evidence Of Carmen 30.I found Carmen’s evidence generally irrelevant to the point of being frivolous, scandalous or abusive. Whilst at the end of her evidence[25] I did politely thank Carmen for her time, and I thank her for her time again here, with respect I do not find her evidence particularly helpful, and I place no weight whatsoever on such evidence. I shall explain. 31.Firstly, Carmen signed a witness statement on 22 August 2021 (“Carmen’s WS”). There was nothing of significance in it. Carmen had no first-hand knowledge of any material issue in this litigation. Instead of providing useful information on things which mattered, Carmen’s WS was plainly just an attempt to vent her hatred and to vilify, besmirch, disparage, asperse, traduce and “diss” (數臭)[26] a person she disliked, namely, D, in a highly inappropriate and abusive manner. 32.For example, §26 of Carmen’s WS described in minute details an alleged incident in March 2019 which was supposedly a petty and small-minded dispute over some wedding expenses incurred over 32 years ago in the year 1987. Mr Keith Tam, counsel for P, sensibly never even attempted to say I (or indeed any person) should somehow spend time pondering over §26 of Carmen’s WS. The irrelevance, and the pettiness, of such evidence were shocking. 33.Another good example is §§27 to 29 of Carmen’s WS, which described in minute details why, according to Carmen at least, Carmen was supposedly a more filial daughter. Carmen described yet another petty and small-minded dispute over a contribution of HK$500 per month. Mr Keith Tam, counsel for P, never attempted to say I (or indeed any person) should spend any time at all pondering over a HK$500 dispute. That was sensible. The irrelevance, and the pettiness, of such evidence were shocking. 34.Secondly, when Carmen started her oral evidence she actually attempted to elaborate on the aforesaid irrelevant and petty evidence, and thus waste even more time[27]. When Carmen started talking about which of the siblings did, and which of the siblings did not, assist their father brush his teeth[28], I saw the need to intervene so that I could understand Carmen’s evidence properly, and so that I could discharge my judicial duties to give effect to the underlying objectives set out in Order 1A rule 1 of the Rules of the District Court (Cap 336H), and this exchange took place: -
35.Just as it was no part of my judicial duty to pass judgment on the general morality of P as a person[29], it is no part of my judicial duty to pass judgment on the general morality of D as a person either. We are not here to decide who should go to Heaven, or who should go to Hell. Neither counsel suggested otherwise. Whilst I am sure there could be some strange cases out there where it would be crucial for the trial judge to find out who assisted in teeth-brushing and who did not, in my view this case is not such a case. 36.Given the above, I place no weight on Carmen’s evidence. The Evidence Of D 37.I found D’s evidence more reliable. 38.Firstly, D’s case on the common intention between P & D vis-à-vis the beneficial interests in the Property is inherently probable. 39.In gist, D’s case, as set out in §33 of D’s WS (signed by D on 23 July 2021), is that in the afternoon of 29 September 2005 (“the Meeting Date”), at Solicitor Ho’s office in Hong Kong, P & D (together with their father, and a very young Nicola) met Solicitor Ho in person, and all of them had a face-to-face discussion. Solicitor Ho suggested “50:50 split” and no person objected. The common intention between P & D must therefore be a 50:50 split, exactly as proposed by Solicitor Ho, and never objected to by any person. The formal legal documentation which followed[30] accurately reflected that common intention. D’s case is straightforward, logical, and very likely to be true. I agree entirely with D that logically speaking, if the 50:50 split mentioned by Solicitor Ho was somehow wrong, inappropriate, or otherwise contrary to what was in P’s mind, P would in most likelihood have raised an objection there and then. The agreed fact that P stayed silent strongly supported D’s case that the common intention between P & D was a 50:50 split of the beneficial interest. That would by itself, without more, be a strong enough reason for me to accept D’s evidence as more reliable, as I do. 40.Secondly, while D had obvious disclosure inadequacies and I shall return to this subject below, the various contemporaneous documents which had been placed before me do support D’s oral evidence. 41.By way of example, D500 was an Assignment of the Property dated 3 October 2005. It described P & D as “Tenants in Common in equal shares”, in line with D’s oral evidence that that was the common intention. 42.Another good example is D130, which depicted a Ma On Shan Police Station report card with report number 19004964. It supported D’s evidence that P had done something unlawful to her, so much so D thought she must inform Ma On Shan Police Station of the incident, which she did in the end[31]. 43.Thirdly, I visually observed D’s reaction throughout the entire duration of her live oral evidence before me and the way D behaved in the witness box clearly showed to me D was honest, spontaneous and genuine, giving evidence in a natural manner, and caring deeply about accuracy, and being truthful. In fact, D was one of the most honest and natural witnesses I have ever seen in my whole life. 44.Fourthly, whilst Mr Keith Tam, counsel for P, doing the best he could in the circumstances, had diligently drawn my attention to various aspects of D’s live oral evidence which according to Mr Tam were far from satisfactory, after cautious consideration I came to the firm view that none of them was material. I should, and I do hereby, set out the reasons. 45.To start with, at §§2 to 4 of P’s Written Closing, Mr Tam, on behalf of P, criticized D’s evidence by boldly suggesting it would somehow be “contrary to common sense and inherently improbable” for the parties to have agreed to a 50/50 beneficial interest division when they “knew from the outset that P’s contributions to the Property would vastly outweigh that of D’s”. This particular assertion appeared to me to be so misconceived I raised a written requisition, inviting counsel to address me on the assertion further, in these exact words: -
46.At Mr Tam’s oral closing, this discussion took place[32]: -
47.After cautious consideration, I have no hesitation in rejecting Mr Tam’s ambitious submission that D’s evidence on the 50/50 beneficial interest division was somehow “contrary to common sense and inherently improbable”. Looking at the matter objectively from the perspective of an objective bystander, the 50/50 division actually made perfect sense. D had a rather large lump sum (from life insurance policies), but no stable income (she was a full-time single-parent and otherwise not working). P had stable income from his employment, but could benefit from a large cash injection. D would only be living in the Property for 2 weeks a year, whilst P would be living in it all-year-round. A 50/50 beneficial interest division based on these objective facts was, or could be, an arrangement which was perfectly fair and made both P & D happy. Against this background, Mr Tam cannot realistically submit there was somehow some sort of inherent improbability in D’s clear evidence that the division between P & D was intended to be 50/50. I am satisfied D’s evidence on this was highly likely to be true, and my finding of fact is that it is indeed true. 48.Moving on to §§47 & 48 of P’s Written Closing, Mr Tam, on behalf of P, entirely properly drew my attention to a discrepancy. In gist, D said this orally under oath, under Mr Tam’s cross-examination[33]: -
49.So, as we can see above, D’s sworn oral evidence was that the discussion between the parties on the 50/50 beneficial interest division was express, and orally over the phone. 50.D repeated that evidence, under Mr Tam’s cross-examination, at a later time within the same day, in this manner[34]: -
51.The problem, as Mr Tam had correctly pointed out at §§47 & 48 of P’s Written Closing, is that that was not how D phrased her evidence in D’s WS. In D’s WS, specifically its §§23 & 24, D said this: -
52.One can read and re-read D’s WS including its §§23 & 24 and get a clear impression that in D’s WS, D’s case was that up to the point of the parties’ International telephone calls (ie prior to the Meeting Date), the 50/50 common intention was unspoken, instead of communicated. During D’s oral evidence, however, D had twice said the 50/50 common intention had been expressly communicated during those telephone calls (ie prior to the Meeting Date). The discrepancy did call for an explanation from D. I asked for it. This was the exchange[35]: -
53.In gist, therefore, D was wholly unable to explain that specific discrepancy, or as to why §§23 & 24 of D’s WS did not mention the alleged express communication. That was clearly unsatisfactory. 54.There are, of course, numerous possibilities as to why §§23 & 24 of D’s WS did not mention the alleged express communication. By way of example, D’s allegation could have been a recent fabrication. It is also possible for the reason to be an inexcusable collective failure on the part of D and her solicitors to take their drafting work seriously. If I must make a factual finding, looking at how generally bad the drafting of D’s WS really was, I would find the true reason to be an inexcusable collective failure on the part of D and her solicitors to take their drafting work seriously. 55.Fortunately, the point is immaterial. As I mentioned above, it is an agreed fact that on the Meeting Date, at Solicitor Ho’s office in Hong Kong, Solicitor Ho suggested a 50/50 split, and P stayed silent on the 50/50 split suggestion. The documentation which followed[36] accurately reflected the parties’ agreement to a 50/50 split. P never suggested creating another document to record something different, despite the fact that he worked for a bank[37], and despite the fact that P & D were both inside a solicitors’ office with access to lawyers, their secretaries, computers, printers and stationery. That strongly supported D’s evidence before me that the common intention between the parties was a 50/50 split of the beneficial interest. In my view, P had no acceptable answer to this, and this makes the presence or absence of any prior discussions immaterial. Whether there was, or was never, any prior discussions on the 50/50 split, I would still have focused on what did and what did not happen at Solicitor Ho’s office on the Meeting Date[38] and accepted D’s evidence on the parties’ common intention as the truth. 56.In this connection, I am of course guided by what was said by Godfrey Lam J (as Lam JA then was) in the oft-cited case of Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 (§46 to §50) that in common intention constructive trust (“CICT”) litigation, one should start with “evidence of express discussions” whilst at all times recognizing and remembering the parties’ other conduct “remains relevant as a matter by reference to which their assertions about the agreement or understanding must be gauged and tested”. P’s silence and inaction on the Meeting Date was highly material conduct which I should refer to and heavily rely on. Indeed, I consider that to be the key to the truth. Other matters are still relevant, but immaterial. 57.Mr Tam’s slightly better point is to be found in §§53 to 56 of P’s Written Closing, where Mr Tam, on behalf of P, properly reminded me of D’s oral evidence on the issue of price. It went as follows[39]: -
58.Mr Tam’s point, set out in §§53 to 56 of P’s Written Closing, is to the effect that it made no sense for the parties to have agreed to a 50/50 division at a point in time when the ultimate price or value of the Property was an unknown, so that the fairness or otherwise of a 50/50 division must also be an unknown. 59.Fortunately, the point is also immaterial. Whilst the price was an unknown at the beginning of the parties’ oral discussion, by the Meeting Date, it was known. Whether there was, or was never, a common intention at any point prior to the Meeting Date is a red-herring. It did not matter at all. It is clearly sufficient, for the purpose of my adjudication of §12 of D’s Amended Defence and Counterclaim filed on 12 May 2022 (“AD&CC”), and for the purposes of deciding the correct outcome of, and/or the correct reliefs for, this action, that by the time of the Meeting Date, the parties had a common intention[40]. For the same reasons as set out in §§54 & 55 above, my finding is that that was the case. By the time of the Meeting Date, the parties plainly had a common intention that there should be a 50/50 split of the beneficial interests of the Property. The formal documentation which followed[41] accurately reflected that common intention. Accordingly, while I have carefully considered Mr Tam’s submissions regarding D’s evidence as set out in §57 above, I have come to the firm view that such submissions are in fact immaterial. 60.Mr Tam also criticized, generally, the way D had “expanded” her evidence under cross-examination. I noticed that myself and had asked D directly, in this manner[42]: -
61.Having considered the inherent probability of D’s answers as set out verbatim above, the fact that there was no dispute this litigation was indeed D’s first litigation, and having cautiously observed D’s demeanour whilst she was giving evidence before me in the witness box, I accept D’s answers as set out above as entirely true. 62.Moving on to §§66 & 67 of P’s Written Closing, Mr Tam, on behalf of P, quite properly drew my attention to an alleged discrepancy in D’s evidence. In gist, D said this under Mr Tam’s cross-examination[43]: -
63.This is an alleged discrepancy in that if one looks at §11.3 of D’s AD&CC, there was this embarrassing (in the sense of extremely poorly drafted) plea which read: -
64.That plea above was embarrassing (in the sense of extremely poorly drafted) since the “discussions” were never properly particularized, and the reader was left dumbfounded by how some unparticularized words were supposed to have made a leap to become a common understanding in the manner as pleaded. There was a huge unexplained void in D’s AD&CC (and I shall come back to this when I get to explain my decision on costs) and D’s admission at closing that the pleading “could be polished further” was a massive understatement[44]. However, it is debatable whether D’s oral evidence as quoted above was consistent, or inconsistent, with §11.3 of D’s AD&CC. Given how horrible the drafting of §11.3 of D’s AD&CC really was, it would have been difficult to rule on the argument. 65.Fortunately, like so many of the points industriously raised by Mr Tam, this particular point is also immaterial. Factually as it turned out, P never got married or had children. So, the parties’ understanding of this particular part of the transaction is in fact something we need not deal with at all. Whatever was talked about or never talked about in relation to this, my assessment of the parties’ evidence would be identical, and the outcome of this action would also be identical. The whole point is a red-herring. 66.Mr Tam then made a slightly better point at §§68 to 72 of P’s Written Closing, where Mr Tam, on behalf of P, properly reminded me of D’s evidence on the issue of “keeping original receipts”. D’s evidence on this went as follows[45]: -
67.As we can see from the long exchange recited verbatim above, D in effect blamed her solicitors for misunderstanding her instructions, and then erroneously making the keeping of original receipts a pleaded material fact when they should never have done so. While I had mentioned on many occasions, such as Fang Zhaohua v Kam Fung Engineering Limited [2023] HKDC 971 (§34, per DDJ Kenneth KY Lam), that blaming a person’s own lawyers could be the typical behaviour of a dishonest or unreliable witness, the exceptional nature of the specific error here points to the other direction – the specific error here should be obvious to any lawyer worth his salt but could be way too subtle for a lay person. That being the exceptional nature of the error, and having cautiously observed D’s demeanour whilst she was answering those questions set out verbatim above, I accept D’s answers as set out verbatim above as entirely true. In other words, I find as a fact that D’s instruction to her solicitors was just “the parties agreed whoever paid a sum should also keep the receipt for that sum”, and a good solicitor really should have realized that was not a material fact, and was indeed irrelevant to the issue in dispute. 68.I should add Mr Tam’s submission went further. Specifically, Mr Tam submitted to me the keeping of receipts supported P’s case. That is because §11.7 of P’s Amended Statement of Claim (“ASoC”) suggested it was part of the parties’ common intention that in the event of the Property being sold with a net profit, the proceeds of sale “shall be divided on a pro rata basis according to their respective contributions towards the Property at the time of the sale”, and the keeping of receipts was consistent with P’s case. 69.On that last point, as I had previously mentioned to counsel[46], I was troubled by just how artificial and contrived P’s case really was. On reflection, I came to the firm view, for reasons which I shall set out below, that P’s case on the common intention could not possibly be true. By way of example, it was never P’s case that the parties had agreed or worked out, with any degree of certainty or clarity, what sort of expenses would qualify as “contributions towards the Property”. Would renovation expenses, the price of new air-conditioning units, or an amount of money spent on buying new doors, etc., be “contributions towards the Property” so that they need to be taken into account in the calculations? If the parties had never worked that out, how would the parties know what kind of receipts need to be kept, and what kind of money should never be spent without consulting the other co-owner first? If P’s case is so inherently improbable as to be impossible, and it is indeed my finding, for full reasons to be set out in the next section, that P’s case is so inherently improbable as to be impossible, then the mere fact that D kept a receipt is neither here nor there. Whilst I had previously considered this relevant and troubling[47] – on reflection the point is actually wholly immaterial. 70.That brings us to §§73 to 75 of P’s Written Closing, where Mr Tam, on behalf of P, properly reminded me of D’s evidence on her plan to eventually use the Property as a retirement home. It was D’s evidence that back in 2005, she had such a plan, but she never told P. The evidence went as follows[48]: -
71.Mr Tam criticized D’s evidence on this issue in several ways, for example by emphasizing how inappropriate it could be for a relatively young lady (namely, Nicola) to be living in a small unit with a presumably heterosexual male adult with unknown or uncertain habits (namely, P, even though he was a blood relative) on a long term basis, or how inappropriate it could be for D or Nicola to be sleeping on the floor or a sofa bed. I have considered all such criticisms with due care but do not consider any of them material. Many people in the world, including D, may have thoughts which can be described as unrealistic, over-optimistic, or wishful thinking. Two people may decide to marry each other thinking they would definitely live happily thereafter, only for the marriage to end up a disaster, or indeed for it to turn into a murder case. A young man may start an innovative business thinking he will become filthy rich only for the business to fail and for him to become a bankrupt. In my view, the kind of unilateral vision or dreams which D said she had was no more incredible than dreaming about a happy marriage, or a successful business. There was no inherent improbability of D having such unilateral vision or dreams back in 2005, before P & D fell out with each other. In any case, I had cautiously observed D’s demeanour when she was answering all such questions under oath, and I accept D was telling me the truth. D can at most be described as slightly over-optimistic, or even naïve. Being genuinely over-optimistic or naïve does not make D an incredible or unreliable witness. 72.In terms of attacking the credibility of D as a factual witness, Mr Tam made four more points on behalf of P. 73.At §§97 to 104 of P’s Written Closing, Mr Tam, on behalf of P, drew my attention to D’s oral explanations as to why she did not call her own daughter, Nicola, as a factual witness. In gist, D said this orally under Mr Tam’s cross-examination[49]: -
74.Mr Tam, on behalf of P, criticized the three reasons given by D as incredible. I disagree. D made it clear her reasons were cumulative. The first reason was that in D’s mind, the main issue at the trial was about the parties’ joint purchase of the Property in 2005, and Nicola was only 13 years old then. By reason of her young age at the time, Nicola could never have been a useful witness on or for that issue. The second reason was that in D’s mind, Nicola was her own daughter and thus “too close” to her, and Nicola’s credibility or impartiality as a witness could be challenged. The third reason was that D was in Australia and only communicated with her solicitors by email (instead of face-to-face). In my view, the second reason given by D (namely, that Nicola could be deemed “too close” to D) was in fact a very reasonable explanation. Whereas if I were in D’s shoes, I might have called Nicola anyways, D’s decision not to call her on the assumption or suspicion that Nicola would be deemed “too close” to D, and therefore biased, cannot be said to be unreasonable. In my view, D’s decision never to call Nicola as a witness did not reflect badly on D’s own credibility, and no adverse inference, of any kind, should be drawn against D. 75.Another focal point, in terms of attacking the credibility of D as a factual witness, made by Mr Tam on behalf of P, can be found in §§105 to 107 of P’s Written Closing, where Mr Tam, on behalf of P, suggested to me that D had, via §16 of D’s WS, mentioned an abortion incident “purely for the purpose of slandering P’s character”. That part of D’s WS read as follows: -
76.With respect, the short answer to Mr Tam’s point is that there was nothing wrong with that part of D’s WS. There was no suggestion that what happened was illegal or immoral. In my view, it was not defamatory to say or imply that a sexually active and perfectly healthy unmarried man had consensual sex with an adult woman he loved, as a result of which that adult woman required, or had, a lawful abortion. Operations of this nature are exceedingly common and widely-accepted in this day and age. Had the allegation been adultery, or rape, it would have been seriously defamatory, but there was no such, or such similar, defamatory sting in that passage. I certainly would never think less of any person just because he was sexually active and perfectly healthy so that he ended up making his adult girlfriend pregnant, paying for her lawful abortion. I cannot see how any reasonable person in a place like Hong Kong would, in this day and age, have thought otherwise. I reject Mr Tam’s submissions in relation to this. 77.Moving on to §§108 to 110 of P’s Written Closing, where Mr Tam, on behalf of P, criticized D for having, in §10.1 of her AD&CC, used the phrase “[P] was still a tenant of a third party” when, so Mr Tam said, D should have said “[P] was still a tenant of Mr Li Chun Chung Albert”, naming the third party. With respect, that is immaterial. It is actually true that if I were the person drafting the pleading, I would also have named the person instead of calling him “a third party”. However, choosing to omit that name was also a tolerable way of pleading a case, especially since the name was by itself wholly immaterial to any of the real issues in dispute in this action. Whether P was a tenant of Mr Li Chun Chung Albert, or in fact a tenant of John Doe, or in fact a tenant of Jane Smith, does not in any way affect any trial judge’s determination of the real issues in dispute. Further, the choice of words in D’s AD&CC was probably made by, or advised by, D’s solicitors and calling Mr Li Chun Chung Albert “a third party” is “not wrong”, because Mr Li Chun Chung Albert was never a party to this action, and therefore technically a third party indeed. 78.In these circumstances, I reject Mr Tam’s submissions on this issue. I do not accept there was any bad faith on the part of D vis-à-vis the way in which Mr Li Chun Chung Albert was called a third party in §10.1 of D’s AD&CC, or that it was something material. 79.The last main point, in terms of attacking the credibility of D as a factual witness, made by Mr Tam on behalf of P, can be found in §§111 to 114 of P’s Written Closing, where Mr Tam, on behalf of P, suggested to me that D’s oral evidence on the closure of her HSBC account was wholly unsatisfactory. That part of D’s oral evidence went as follows[50]: -
80.So, the criticism of Mr Tam was on something minor, namely, D’s oral evidence on the procedural steps taken by D in closing her HSBC account was not accurately stated in D’s WS. In D’s WS, the drafting made the reader think it was a one-step process, when the truth is, it was a three-step process. There are numerous possible reasons why this minor problem existed. Looking at how absolutely horrendous the overall drafting of D’s WS was, the most probable reason was an inexcusable collective failure on the part of D and her solicitors to take their drafting work seriously. In my view, this is regrettable, but immaterial as far as my own assessment of D’s evidence is concerned. Whether D closed her bank account in just one step, or a million separate steps, or indeed whether D closed her bank account at all, has no bearing whatsoever on the real issues in dispute in this litigation. So, the whole point made by Mr Tam is in fact a red-herring. I have most cautiously considered, and repeatedly reflected upon, Mr Tam’s point, but I reject it as a wholly immaterial observation. 81.In my view, none of the points made by Mr Tam as discussed above made D any less reliable as a factual witness, even if we were to add them all up and consider all such points cumulatively and collectively. Nil plus nil is still nil. At most, since most of the points identified by Mr Tam on behalf of P during cross-examination and closing submission were the result of an inexcusable collective failure on the part of D and her solicitors to take their drafting work seriously, D should be deprived of any award of costs irrespective of the substantive outcome of these proceedings. In my view, that is the most appropriate way of dealing with this, and I shall come back to this when I write about costs below. 82.All in all, therefore, despite Mr Tam’s diligence and eloquent persuasion, and having fully considered the totality of D’s evidence, I have come to the firm view that D’s evidence was more reliable. I find as a fact that the entirety of D’s sworn evidence before me was true, and I shall rely on it in determining the three main issues in these proceedings, namely (1) the proportion of the parties’ respective beneficial interests in the Property; (2) whether P’s behaviour was tortious; and (3) what relief, if any, should be granted by me to the parties. Issue 1 – Beneficial Ownership? 83.The first and most important issue which I must decide in this case is the proportion of the parties’ beneficial interests in the Property. As in all CICT cases, I should start with the parties’ pleadings. 84.The parties’ pleadings are, with respect, horrible. 85.The gist of P’s case is to be found in §11 of P’s ASoC, which reads as follows: -
86.Just by considering the reasons already set out by me in §§22, 55 & 56 above, without more, I dismiss P’s case on this issue. P had been fairly cross-examined on those points, and P had no acceptable answer vis-à-vis those points[51]. Despite the fact that P worked for a bank, and despite the fact that on the Meeting Date P & D were both inside a solicitors’ office with access to Solicitor Ho, there was not a single piece of paper recording, in a contemporaneous manner, P’s version of the common intention. I find that dispositive. On that ground alone, I find P’s case so extremely unlikely to be true, it is virtually an impossibility. In my view, P’s case on beneficial interests is simply false, and I so find as a fact. 87.I should, by way of obiter dicta, further explain why I said P’s ASoC was horrible. 88.Firstly, as is so very common, P’s case is based on the alleged existence of an oral agreement vis-à-vis the terms of buying land. In effect, therefore, P was asking this court to enforce the terms of an oral agreement concerning land “through the backdoor”. As I stated in Chan Kang Hung Bovis v Chan Kang Kong [2023] HKDC 933, and in Pang v Pang [2023] HKDC 1346, the law in principle allows litigants to do so. See also Lewin on Trusts (20th Edition), §10-074, or Clough v Killey and Ors (1996) 72 P & CR D22. However, any litigant who attempts to enforce an oral contract vis-à-vis land through the backdoor in this manner should inform the court, and his opponent, within his pleading, what according to the litigant’s best recollection were the words used, and he should give full particulars of the alleged oral conversations. P had never done so. There was a conspicuous void in relation to this in P’s ASoC. In my view, that was unacceptable. 89.Secondly, as I had mentioned in §69 above, P had never made it clear in P’s ASoC whether, on P’s case, the parties had agreed or worked out with any degree of clarity just what category of expenses would qualify as “contributions towards the Property” for the purpose of the alleged oral agreement. By way of example, at §§23 & 24 of P’s ASoC, P said property insurance premiums should count as “contributions towards the Property” for the purpose of his version of the common intention, but this was never explained. Was this orally and expressly discussed between P & D in those telephone calls in 2005? If so, which person uttered what words? If not, why should insurance premiums count? What about payments for fixtures such as air-conditioners, window-frames, doors, electric sockets, pipes and the like? How about lights? P’s ASoC is silent on these pertinent questions and is unacceptably over-simplistic. 90.On the other hand, the gist of D’s case is to be found in §11.3 of D’s AD&CC, which reads as follows: -
91.As I had mentioned in §41 above, the parties had placed D500 – the Assignment of the Property dated 3 October 2005 – before me. I can see that it was a contemporaneous written record that P & D were “Tenants in Common in equal shares”, and this was consistent with D’s pleaded case that that was the common intention. Just like the situation in Wong Ka Yan Patrick v Cheung Ka Yu Nicole [2023] HKCA 1310 (§§38 to 40, per Au JA), which was a well-known Court of Appeal decision previously applied by me in Pang v Pang [2024] HKDC 110, in our present case it was for P to prove anything other than the recorded 50/50 division should P want to, and D had no burden to prove anything. Nor would D ever need a different piece of paper recording the intended 50/50 division when the Assignment would by itself be more than sufficient for that purpose. Having considered this, and what I have already stated at §§37 to 82 above, I find as a fact that §11.3 of D’s AD&CC is true and the parties’ common intention had always been for the Property to be owned by them on a 50/50 equal division basis, both at law and in Equity. In fact, the dismissal of P’s case for the reasons set out above was already dispositive, and strictly speaking I need not even consider D’s case on the same issue substantively. 92.For completeness, I should add, by way of obiter dicta, that I am equally disappointed by the drafting of D’s AD&CC. In my view, there was an inexcusable collective failure on the part of D and her solicitors (Mr Tommy Cheung, counsel for D, did not settle D’s terrible AD&CC) to draft D’s AD&CC with proper consideration of the well-known proviso in Order 18 rule 7(2) of the Rules of the District Court (Cap 336H) which, so far as relevant, said: -
93.Since D’s AD&CC was a “pleading subsequent to a statement of claim”, the above well-known proviso must be read in conjunction with Order 18 rule 8(1) of the Rules of the District Court (Cap 336H) which, so far as relevant, said: -
94.Also of tremendous importance was Order 18 rule 12(1)(b) of the Rules of the District Court (Cap 336H) which, so far as relevant, said this: -
95.The learned editors of Hong Kong Civil Procedure 2024 were entirely correct to say in §18/12/21 of their work that “intention” qualified as “condition of the mind” for the purpose of Order 18 rule 12(1)(b) so that it must be pleaded with proper particulars. I would add that for the purpose of that specific paragraph of their work, “overt acts” included the utterance of oral words so that if any litigant would like to rely on oral words to prove the existence of a CICT or any “common intention” of any kind, those oral words would themselves be material to the litigant’s own pleaded case and should be pleaded by that litigant verbatim. 96.On the facts of our present case, prior to the exact date of this judgment, the parties plainly did not know my ultimate view on materiality, as I genuinely kept an open mind, and told the parties so[52]. D and her legal team could not possibly know what was in my mind when I had not myself decided what I thought of the parties’ arguments. 97.Accordingly, when the various statutory pleading rules set out above are read together, it is crystal clear the exact words orally uttered by the parties prior to the registration of the Property in their joint names were, on D’s own pleaded case at least, material words which should have been set out in D’s AD&CC, verbatim, in their original language (ie Cantonese). D and her solicitors had never done so. I had to wait until Mr Keith Tam’s cross-examination of D to be informed, for the first time ever, what to D’s best recollection were the actual Cantonese words used. In my view, that was “not ideal”, to say the least. 98.Solicitors handling CICT litigation need to pay more attention to what was said by Godfrey Lam J (as Lam JA then was) in Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 (§46 to §50) and take full instructions on “express discussions” at the earliest possible stage of the litigation, and give serious thoughts as to whether, in the circumstances of the case they are handling, it would be desirable to plead the exact words used verbatim, in the original language of the alleged conversation. Just summarizing or paraphrasing a discussion in a completely different language may well lead to substantial difficulties at the trial itself[53]. Whilst in our case, as it turned out, as I had explained in §§39 & 55 above, I considered the inaction of P inside Solicitor Ho’s office in Hong Kong on the Meeting Date dispositive, and substantially more important than all words actually uttered, the better practice would still be for D and her legal team to have set out at least some of the conversations in question verbatim, within D’s AD&CC itself. 99.Finally, on the issue of 50/50 division, I have not forgotten the fact that Mr Keith Tam, trial counsel for P, took issue with this part of D’s evidence[54]: -
100.That evidence of D was true in the sense that the record in the Land Registry only showed the 50/50 division, but not the remaining terms of the parties’ oral agreement pleaded by D in §11.3 of D’s AD&CC, such as terms as to the parties’ responsibilities over estate agent commission, or as to their arrangements over the actual usage of the Property. The public record in the Land Registry was “just consistent with, but not identical to,” D’s pleaded case. What D said was obviously entirely correct, and nothing turned on it. 101.On re-examination by Mr Tommy Cheung, counsel for D, D said this[55]: -
102.What D said above was also entirely correct, and nothing turns on it. Whilst Mr Keith Tam, counsel for P, tried to persuade me the answer above showed that D’s case was just D’s wishful thinking, on careful study of the materials that was a rather unfair way of interpreting D’s answer. In my view, we must all remember the factual and procedural background and put D’s answer in its proper context. What happened was that in P’s ASoC, P specifically asked for a declaration on the parties’ respective interests in the Property which, if granted, would in substance be a declaration that the 50/50 division recorded in the Land Registry was inaccurate. As a reaction to that, in D’s AD&CC, D prayed for a declaration which, if granted, would in substance be a declaration that the 50/50 division recorded in the Land Registry was entirely accurate. Accordingly, in my view, when D said “我想爭嘅就係跟番田土廳個百分之五十” [Translation: “What I would like to fight for is to follow the 50% record in the Land Registry”] she was just saying, truthfully, that she would like to fight for the declaration she prayed for in her AD&CC. Bearing in mind D was just a lay person (and never a litigation lawyer), I can see nothing wrong with the way she answered that question, or with any other part of her oral evidence generally. 103.I shall thus be granting appropriate reliefs (including an order for the sale of the Property pursuant to the Partition Ordinance – Cap 352 – see the discussion on Issue 3 below) to D on the basis of my finding that the parties’ common intention had always been for the Property to be held and owned by them on a 50/50 equal division basis, exactly as pleaded by D in her AD&CC. Issue 2 – Was P’s Behaviour Tortious? 104.The second issue which I had been asked to decide in this case is whether certain things said to have been done by P had indeed been done by P and if so whether P’s behaviour, as proven by the evidence before me, legally amounted to a commission of the tort of intimidation and/or the tort of harassment. 105.This could have been an easy issue. However, the inexcusable collective failure on the part of D and her solicitors (and it must be pointed out Mr Tommy Cheung, counsel for D at the trial, did not settle D’s terrible AD&CC) to take their drafting work seriously, and to perform the drafting competently, created substantial difficulties which should never have been present. In fact, in terms of time allocation, I ended up spending more time on this issue. 106.In gist, as I had said above, Order 18 rule 12(1)(b) of the Rules of the District Court (Cap 336H), so far as material, said this: -
107.The tort of intimidation and the tort of harassment had mental elements which, by reason of the above rule, must be particularized. D had never done so, within the AD&CC or at all. Whilst P never sought further or better particulars of the allegations, and P never sought to strike out D’s AD&CC, Mr Keith Tam, counsel for P, had in §§66.2, 66.3, 68, 77 and 78 of his written opening for the trial repeatedly objected to the way in which D had been trying to run her case on these torts without first amending the AD&CC or inserting the necessary particulars. Having read those parts of Mr Tam’s written opening, D and her legal team nonetheless chose to make no amendment application, and chose to fight D’s case on what was plainly a defective pleading. This created substantial difficulties. 108.For the purpose of explaining why D’s AD&CC is in my view plainly defective, I must start by explaining the constituent elements of the two torts in question by reference to what was said by Mr Justice Anthony Chan in the well-known case of Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197 (§§43, 56 to 70) which went as follows: -
109.So, the constituent elements of the tort of intimidation are (1) unlawful threat; (2) intention to cause harm to the claimant with the threat; and (3) damage to the claimant. It is clear to me that D’s AD&CC did not contain any averment explaining in what way or for what reason the alleged threat was said to be “unlawful”, or what matters would be relied upon by D to say P’s intention (which was a condition of the mind) must be to cause harm. Whoever drafted D’s AD&CC (not Mr Cheung) plainly did not take the drafting task seriously, and failed to perform the drafting competently. It is almost as if an irresponsible person left the entire task to an unqualified intern who never even read law, and never bothered to check the product’s compliance with Lau Tat Wai or the RDC. The sloppiness in the drafting was shocking, irresponsible and utterly unacceptable. I was very surprised by this, given how easy it must have been to get this done correctly. Even if D’s solicitors somehow did not know how to comply with Order 18 rule 12(1)(b) of the Rules of the District Court (Cap 336H), or have never even heard of these simple and fundamental pleading rules, they obviously could have sought competent counsel’s advice and assistance pursuant to and/or in full compliance with Commentary 6 to Principle 6.01 of the Hong Kong Solicitors’ Guide to Professional Conduct, which required all solicitors in Hong Kong to serve their clients competently, in a conscientious, diligent, prompt and efficient manner, including seeking counsel’s assistance in a timely manner, whenever it would be necessary or desirable to do so. 110.The constituent elements of the tort of harassment are (1) a course of conduct sufficiently repetitive in nature as would cause emotional distress or annoyance to the victim; (2) deliberate intention to cause injury or recklessness – not caring whether the victim would suffer injury; and (3) damage to the victim. Again, D’s AD&CC did not contain any averment explaining why the course of conduct in question qualified as “sufficiently repetitive”, or whether D was alleging deliberate intention or recklessness, or if D’s case was recklessness (which was a condition of the mind as well) what matters would be relied upon by D to say P did not care about injury, etc. The sloppiness in the drafting vis-à-vis this alleged tort was shocking, irresponsible and utterly unacceptable as well. I was similarly surprised by this, again because of how easy it must have been to get this done correctly. I repeat what I have said about Commentary 6 to Principle 6.01 of the Hong Kong Solicitors’ Guide to Professional Conduct above. In a nutshell, if a solicitor is himself/herself incompetent, his/her duty is to seek appropriate assistance in a timely manner. 111.If the evidence did not show P’s commission of either of these two torts, I would have no problem dismissing D’s counterclaim in relation to this. As it turned out, the evidence showed P might have committed both of these two torts, or one of them. So, what should I do? Should I shut my eyes to the clear evidence just because D never pleaded her case properly, or should I focus on the evidence and enter final judgment against P based on these two torts notwithstanding the shocking defects in D’s AD&CC? 112.The evidence against P was overwhelming. 113.The parties were in agreement that on 17 August 2018, P sent two voice messages recorded by P in Cantonese (“the 2018 Messages”) to D, via WhatsApp, the transcribed words of which went as follows[56]: -
114.As I had informed the parties on 23 April 2024[57], I listened to the actual audio recording. I verified the transcription as accurate, and paid attention to the threatening tone used by P when he was recording the 2018 Messages. 115.Given the threatening tone used by P, P’s usage of the phrase “我會掟人落街” [“I will throw people down the street”], whether tortious or not, was shockingly disturbing. In fact, P’s behaviour was so disturbing I became extremely concerned whether P committed the statutory crime of criminal intimidation under Section 24 of the Crimes Ordinance (Cap 200), and specifically warned P of the fact that his voluntary sworn oral evidence in this civil trial could be used against him in a criminal prosecution against him under the “declaration against self-interest” exception to the hearsay rule[58]. P chose to ignore my warning. 116.In fact, when asked about this, P said the following[59]: -
117.From the above, it seems crystal clear to me that by publishing the 2018 Messages to D in the manner as he did, P was making an unlawful threat (threatening to murder D by throwing D off the Property – the 29th floor of a high rise building) intending to thereby cause harm to D with the threat. As we shall see when we look at D’s sworn oral evidence in relation to this, harm in the form of emotional distress (and/or harm in the form of never being able to enjoy the Property when D would otherwise be able to) was in fact caused to D as a direct result of this. All elements of the tort of intimidation appeared to me to be present and proven by the evidence. 118.D’s sworn oral evidence in relation to this (which I accept as the truth) went as follows:[60] -
119.Whilst all elements of the tort of intimidation appeared to me to be present and proven by the evidence, I was and remain very concerned it could be wholly unfair to P if I were to allow D to build a case out of the evidence, in circumstances where D never gave P proper prior warning by pleading proper particulars in D’s AD&CC in accordance with well-known pleading rules, including Order 18 rule 12(1)(b) of the Rules of the District Court (Cap 336H). Mr Keith Tam, counsel for P, covered this in his cross-examination of D, in this manner:[61] -
120.I accept D’s oral evidence, recited verbatim above, as entirely true. I accept D never gave proper or full instructions to D’s solicitors, and D’s solicitors never took proper or full instructions (or raised relevant and material questions) from D either. This was appalling. It was so appalling I seriously considered whether the handling solicitor should be reported to the Law Society of Hong Kong so that he or she could be investigated and prosecuted for his or her clear breach of Principle 6.01 of the Hong Kong Solicitors’ Guide to Professional Conduct, which required all solicitors in Hong Kong to serve their clients competently, in a conscientious, diligent, prompt and efficient manner. Not taking D’s proper or full instructions on the two torts in question for over 4 years (March 2020 to April 2024), not paying sufficient, or any, attention to the constituent elements of these torts by reference to what was said by Mr Justice Anthony Chan in Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197, and not complying with Order 18 rule 12(1)(b) of the Rules of the District Court (Cap 336H) in drafting a pleading, must each be a clear breach of Principle 6.01 of the Hong Kong Solicitors’ Guide to Professional Conduct. In my view, the incompetence was wholly unacceptable, and frankly rather shocking. However, all things considered, my ultimate decision is to focus on trying to bring some closure to the parties to this litigation, and to just leave it to D and D’s solicitors to work out any and all other issues amongst themselves. I shall therefore say no more about Principle 6.01, unless and save in so far as shall be necessary for the parties’ understanding of my ratio decidendi in this matter. 121.Whilst I shall in due course be addressing what the law has to say about D’s attempt to build a case out of the evidence, instead of making an application to amend D’s AD&CC, for the time being I shall address the evidence on the tort of harassment. 122.The evidence against P vis-à-vis P’s commission of the tort of harassment was just as overwhelming. 123.It must first be recognized the tort of harassment was different from the tort of intimidation in many aspects. By way of example, in Law Ka Yan Thompson v Ho Kang Wing [2020] HKCFI 513 at §§38 to 39, Mr Justice Wilson Chan correctly stated that for the tort of intimidation, it was unnecessary to show any repetition. A single act which was never repeated would suffice. By sharp contrast, for the tort of harassment, the overt act in question must have been repeated, or there must be two or more separate acts collectively amounting to “a course of conduct”. That was applied by DDJ Alan Kwong (as HHJ Kwong then was) in Chan Woon Wah t/a Ngai Hing Decoration Company v Wong Chi Ping [2024] HKDC 422 (at §69). From the evidence before me at the trial, it is obvious there was indeed “a course of conduct” on the part of P which would, when viewed objectively, amount to harassment. 124.Chronologically speaking, the starting point should be the two disturbing overt acts we already looked at above, ie., P’s publication of the 2018 Messages to D on 17 August 2018. In my view, those two overt acts by themselves amounted to “a course of conduct” for the purposes of the tort of harassment, and all elements of the tort were proven by the evidence as set out above. 125.The evidence went further. 126.It was D’s pleaded case, since confirmed by D on oath, that P committed two further sets or series of overt acts on 11[62] and 30[63] March 2019 respectively which, when considered cumulatively, also amounted to a course of conduct for the purposes of the tort of harassment. I say at once I accept D’s sworn oral evidence that these overt acts had been committed by P in the exact manner as described by D before me, and that D suffered harm in the form of emotional distress (and/or not being able to enjoy the Property when D would otherwise be able to) as a direct result of this. 127.The first set of these further overt acts was pleaded in §28 of D’s AD&CC in this manner: -
128.At the trial, Mr Keith Tam, counsel for P, cross-examined D extensively on these events, as he was of course fully entitled to. There is no necessity for me to recite D’s answers on these events verbatim[64]. It is sufficient for me to say I considered the various discrepancies (such as how many cans of pesticides were used) to be wholly immaterial. At the end of the day, I accept D and Nicola did physically leave the Property because of these events, and D did report this matter to the Hong Kong Police. Whilst P’s spraying of pesticides and throwing of clothes pegs inside the Property had never been recorded by video, D’s sworn evidence about the payment of HK$10,400 from P to D, and D’s report to the Hong Kong Police, was fully supported by contemporaneous documents produced at the trial. The details of the overt acts did not matter because quite irrespective of whether P had sprayed 2 cans, 3 cans or 4 cans of pesticides in the Property, I would still have ruled that, bearing in mind the Property was a very small enclosed space, P’s entire course of conduct clearly amounted to harassment for the purpose of the common law tort of harassment. In my view, no reasonable person would have considered P’s entire course of conduct as described by D to be anything other than obviously wrongful acts of harassment. 129.No reasonable person could have tolerated P’s behaviour. No matter how I look at this, it is crystal clear to me P’s course of conduct was objectively tortious, and P either subjectively knew or ought to have known it was tortious. 130.The second set of these further overt acts was pleaded in §30 of D’s AD&CC in this manner: -
131.As I had informed the parties on 23 April 2024[65], I listened to the actual audio recording for the various voice messages being referred to above (“the 2019 Messages”) – all of them. I verified the transcription as accurate, and paid attention to the threatening tone used by P when he was recording the 2019 Messages. In my view, P’s tone was worse than that of a typical local triad member extorting illegal protection money by criminal intimidation. P’s choice of words above, referring to “a big dog”, suicide by burning charcoal, publishing a suicide note in Apple Daily, flammable or erosive liquids, etc., was frightening, disturbing, and extremely sick. No reasonable person would have considered P’s conduct to be anything other than obviously wrongful acts of harassment. No reasonable person could have tolerated P’s behaviour. Again, no matter how I look at this, it is clear to me that P’s course of conduct was objectively tortious. Further, it is also clear that P subjectively knew or ought to have known it was tortious. 132.On the effect of P’s behaviour on D, D said she felt “isolated, depressed and upset”. She said she suffered from insomnia. She said that on 1 February 2020, she saw a psychologist[66]. I accept all such evidence of D as true and accurate, though the fact that D completely failed to name the psychologist, and completely failed to disclose any document touching on the consultation (not even a copy of the psychologist’s CV or name card) is unacceptable litigation behaviour. I will come back to this. 133.Again, at the trial, Mr Keith Tam cross-examined D on these events, as he was entitled to[67]. The general theme of the cross-examination was an attack on the paucity, or absence, of any detailed description of the effect of the 2019 Messages on D, or of the reason behind the effect, in D’s AD&CC, and in D’s WS. For my part, I am most concerned about the fact that D said “李振邦係知我驚狗嘅”[68], when this allegation of knowledge was never pleaded in D’s AD&CC, or even mentioned in D’s WS[69]. Since this allegation of knowledge surprised everyone including myself, and as a matter of order of witnesses, P gave evidence before D gave evidence, this “ambush”, whether deliberate or wholly unintentional, seems to me to be unfair to P. No person had specifically put this allegation to P when P was giving evidence. Whilst I accept D’s evidence on this as entirely true, this is still highly material to the next issue, which is whether I should allow D to build a case out of the evidence in this manner, without amending her AD&CC. I will come back to this. 134.As to the evidence on the mental element vis-à-vis the tort of harassment, it was also overwhelmingly against P. When P was answering questions on this issue under oath, it became crystal clear P did what he did with the deliberate malicious intention to cause harm to D, or alternatively in a reckless manner (not caring whether P’s conduct would cause harm to D)[70]. I find as a fact that all elements of the tort of harassment were present, and the real issue is the pleading point expressly taken by P, to which I now turn. 135.To start with, throughout the course of the trial, Mr Keith Tam for P, Mr Tommy Cheung for D, and myself, were all alert to the important distinction between cross-examining a witness for background information and credibility issues, and using his answer for unpleaded issues. Mr Keith Tam for P sensibly consented to the former, but strenuously objected to the latter. He made that crystal clear on 24 April 2024[71]. I also made it crystal clear during the same open court exchange that while I allowed Mr Tommy Cheung’s cross-examination questions, I would still hold him (and thus D as his ultimate client) to D’s AD&CC[72]. Accordingly, there was never any concession or confusion of any kind over that whatsoever. 136.That was a common scenario. 137.By way of example, in Chang Wa Shan v Esther Chan (2018) 21 HKCFAR 370 [2018] HKCFA 29 [2019] EMLR 10 (§69, per Tang PJ), the second certified question before the Court of Final Appeal was: -
138.That second certified question was ultimately answered in the negative. The fact that a witness (in that case, one Jonathan Midgley) said something admissible for one purpose would not then make it permissible for the same evidence to be used for a different purpose, such as to raise a case never specifically pleaded in the pleading in question. Unless rectified by an amendment application, a pleading defect remains a pleading defect and, ordinarily speaking, a court of law cannot ignore a pleading defect by pointing at the evidence. 139.The rationale is trite. As a matter of law, the pleadings define the scope of the parties’ cases. The evidence does not. 140.The starting point is always what Ribeiro PJ had correctly said in Sinoearn International Ltd v Hyundai-CCECC Joint Venture (2013) 16 HKCFAR 632 (§§30 to 34), as follows: -
141.The above was plainly correct, and in any case binding on me. It was adopted by Ma CJ in Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 (§§21 to 26), who further observed: -
142.It does seem to me that what D is now trying to do is precisely to raise unpleaded allegations out of the evidence adduced at the trial which according to the authorities above is simply impermissible. 143.In my view, Mr Keith Tam, counsel for P, was entirely correct when he said at §§121 to 130 of P’s Written Closing that it was completely unacceptable for D to have simply said “D was intimidated”, without any elaboration, in D’s AD&CC. The absence of particulars was shocking. By way of example, if D’s case was that P intended to intimidate D on purpose by referring to “a big dog”, knowing D had a fear of big dogs, that specific intention and that specific knowledge would be highly material particulars (which, if not explicitly pleaded, would take P by surprise) which must be expressly set out in D’s AD&CC. Another good example is D’s allegation of recklessness. In gist, recklessness means “you should have considered this beforehand, but you failed to do so”. A litigant who would like to run a case of recklessness at trial must therefore spell out the word “reckless”, and then spell out what it was that the wrongdoer should have cared about but did not. Using the “a big dog” example above, D could have pleaded something along the lines of “P, having actual knowledge D was afraid of dogs, gained from growing up with D as her brother, deliberately chose to include an otherwise unnecessary reference to “a big dog” in those words, intending to thereby make D feel frightened, emotionally distressed, and/or psychologically hurt, or included a reference to ‘a big dog’ recklessly, not caring whether the reference would cause psychological or other harm to D, in circumstances where such harm should be within P’s contemplation” etc. Nothing like this had been pleaded by D in D’s AD&CC, even though D was represented by solicitors throughout. D’s AD&CC was shockingly defective. It was inexcusable. By filing and serving a defective pleading, and keeping it defective, D ambushed everyone, including myself. 144.Order 18 rule 12(1)(b) of the Rules of the District Court (Cap 336H) specifically required D to plead particulars of any “condition of the mind”. D was under a statutory duty to plead detailed particulars vis-à-vis her case on (1) intention; (2) knowledge; and (3) mental perceptions and/or feelings. It was “not okay” for D to have kept those particulars entirely to herself at the pleadings stage and then ambushed everyone with such secret particulars at the trial, especially since D knew, or should have known, she would in most likelihood be giving live oral evidence last, so that P would have no opportunity to fairly respond to such secret particulars kept in the mind of D and never spelt out in any pleading anywhere. Good litigation behaviour was more than just telling the truth in the witness box – which D did. It required D to comply with all statutory pleading rules – which D did not. 145.I have extremely carefully considered whether I should ignore the defects in D’s AD&CC as if Order 18 rule 12 did not exist. In my view, that would be quite wrong. I cannot, and in any case should never, make a mockery of these statutory provisions by ignoring them, or by treating them as optional when they had always been mandatory. 146.As to fairness to D, in my view there can be no unfairness if I were to rule against D based on my view on the pleading point taken by P, when D was represented by solicitors and could have made an application for amendment at any point during the past years. D could even have made an application for amendment after the evidential stage of the trial, before or during D’s closing submissions, there being no law against it. See Hong Kong Civil Procedure 2024, §§20/8/9 to 20/8/14, the commentary of which I agree and adopt as correct. D chose to keep her pleading defective. There can be no unfairness when that was clearly an informed choice made by D, with the benefit of legal advice. Litigants and solicitors are reminded that a court of law is not, and should never be treated as, a rubbish bin. Litigants and solicitors should not file rubbish into court. For solicitors in particular, as DHCJ Herbert Au-Yeung (as His Lordship then was) had aptly stated in JTM324 Strategic Advisors, Inc v Permex Co Ltd [2023] 1 HKLRD 1437 [2023] HKCFI 403 (at §29), their duty to the court itself prevails over their duty to their client. Filing defective pleadings into court and keeping them defective on purpose would adversely affect the court’s duty to administer civil justice efficiently and effectively and is unacceptable. A litigant who, by herself or via solicitors, chose to file defective pleadings into court and keeping them defective on purpose cannot complain about the matter being decided against her accordingly. 147.All things considered, I dismiss D’s tortious counterclaims, on the basis that whilst the evidence received by me strongly suggested that P committed the tort of intimidation and the tort of harassment, the law does not allow D to raise an unpleaded issue, or build an unpleaded case, out of the evidence, in the manner as D is now trying to do. 148.I should add that Mr Keith Tam, counsel for P, no doubt acting responsibly and/or out of an abundance of caution, did cross-examine D on the issue of quantum[73]. In gist, Mr Tam suggested to D that the emotional distress suffered by D, if any, must be rather minor, otherwise (1) D would have sued P immediately, without waiting for P to sue her first; (2) D would have seen her psychologist more than once and asked him/her to prepare a full expert report on D’s psychological condition; and/or (3) D would have taken her disclosure obligations substantially more seriously and disclosed her referral and appointment letters, etc., in these proceedings. In my view, there is no real necessity for me to go into the details of D’s responses in a public judgment. Putting it very briefly, whilst I am fully satisfied, on the evidence, that D suffered some emotional distress and psychological harm by reason of P’s unacceptable behaviour, in the manner as D had described to me from the witness box and whilst under oath, there must also be some truth in Mr Tam’s suggestion that the degree of harm suffered by D should not be as serious as the many cases on quantum cited to me as comparables, summarized by Mr Tommy Cheung at §121 of his written closing which I diligently considered. In these circumstances, even if I were wrong on the pleading point, even if I should have entered judgment against P based on the two tortious causes of action, I would have awarded nothing more than nominal damages (ie, HK$1, instead of a “starting point” of HK$200,000 as suggested by Mr Tommy Cheung) to D, a real option which Mr Tommy Cheung, counsel for D, had accepted would be “agreeable”[74]to D. 149.Furthermore, given D’s grave drafting defects and disclosure shortcomings in this legal action, considered together with P’s behaviour generally, bearing in mind the need for me to consider the parties’ conduct under Order 62 rule 5(2) of the Rules of the District Court (Cap 336H) and the authorities helpfully summarized in Hong Kong Civil Procedure 2024, §62/5/6, whether I had decided to enter judgment against P, or to dismiss D’s counterclaims, my costs order would be identical – no order to as costs (that is to say each party should bear his or her own costs). 150.Having dismissed D’s tortious counterclaims for the reasons set out above, the next and last issue which I need to deal with is relief, to which I now turn. Issue 3 – Relief? 151.In D’s AD&CC, D prayed for the following reliefs: -
152.Any lawyer worth his salt should be able to see that if we were to put aside the declaration relief for the time being, all other reliefs sought, as framed above, are problematic. The drafting defects in this specific part of D’s AD&CC are just as shocking as those in other parts of D’s AD&CC so Mr Tommy Cheung, counsel for D, should be praised for making it clear he would be “sensible” at the end of the day, abandoning the allegation of “leasing out” altogether, etc.[75] 153.The first relief prayed for is the easiest. I do hereby grant this declaration: -
154.For the second relief prayed for, up to 23 April 2024 when the trial started, D’s legal team had completely failed to plead, or lodge by way of submissions, their proposed directions for sale. I found this shocking. I actually had to, and I did, issue a written requisition, explicitly drawing the parties’ attention to what was declared by Recorder Joseph Fok SC, as Fok PJ then was, in Wong Chun Kei v Poon Vai Chung [2007] 1 HKLRD 825, and my own previous decision in 3 Sing Credit Limited v Cheng Man Yee [2023] HKDC 936, asking for clarifications. Worse still, D’s solicitors had simply ignored Rule 4 of the Partition Rules (Cap 352A), which read: -
155.The service requirements under Rule 4 of the Partition Rules (Cap 352A) were mandatory (as opposed to optional) so (saying it politely) I have difficulties understanding why D and D’s solicitors appeared to have this fundamental misconception that they could somehow ignore their strict statutory duties. D and D’s solicitors could not choose to ignore their strict statutory duties – there was no such choice available or open to them. 156.For D’s solicitors, their failure or refusal to comply with Rule 4 of the Partition Rules (Cap 352A) at any point in time prior to my written requisition was in my view another obvious breach of Principle 6.01 of the Hong Kong Solicitors’ Guide to Professional Conduct, which required all solicitors in Hong Kong to serve competently, in a conscientious, diligent, prompt and efficient manner. Delaying the service of court documents on the Director of Lands by over 4 years was obviously not “prompt” service, and was inexcusable. 157.As to P and P’s solicitors, I should record that at §43 of their Amended Reply and Defence to Counterclaim, they denied D’s entitlement to an order for sale, which was absurd. As had been declared by Recorder Joseph Fok SC, as Fok PJ then was, in Wong Chun Kei v Poon Vai Chung [2007] 1 HKLRD 825, and as I had myself said in 3 Sing Credit Limited v Cheng Man Yee [2023] HKDC 936, Ford World Development Ltd v The Estate of Yau Tung [2024] HKDC 772, Konew Capital International Ltd v Chen Bo [2024] HKDC 802, etc., in Hong Kong, any co-owner of land has a basic legal right to rid herself of “the shackles of co-ownership”, without having to prove any “fault” or “basis” of any kind whatsoever. We do not “chain” people to each other forever, just because for whatever reason they became co-owners of land. As far as land ownership is concerned our laws recognize “no fault divorce”. It was only on 22 April 2024, the day before the start of the trial, that Mr Keith Tam, on behalf of P, eventually made it clear by way of a speaking note that P shall have no objection in principle to the Property being sold, subject to the usual submissions that we should insert appropriate directions within the directions for sale to protect the best interests of all stakeholders, etc. 158.No party had ever filed or lodged any valuation report. P and D did not even see fit to produce a screenshot from one of those completely free property valuation websites managed by local banks. I knew of 8 such websites. They show up on Google Search. P and D did not print anything from any of them. I have no idea why they did not. I received no assistance from the parties or their lawyers in setting a minimum price. 159.To be fair to the parties and their legal representatives, on my dissatisfaction with the state of affairs as it stood before the start of the trial being made known to them, they moved quickly to remedy the situation in good faith. They might have done the best they could in the circumstances, which was appreciated by me. 160.All in all, after some tribulations, I believe I am able to, and I do hereby, make the following order for sale:-
161.For the third relief prayed for (ie, damages), it is dismissed. 162.Firstly, on the tort of harassment and the tort of intimidation, such claims had been dismissed by me for the reasons set out above. 163.Secondly, for exclusion of D from the Property, D’s AD&CC was fatally defective. There was no plea as to just how many days (if any at all) would D be residing in the Property from August 2018 onwards but for P’s wrongful acts. To put this in context, D resided in Sydney Australia most of the time, and most people would not travel during the Covid period. As to the pesticides incident in 2019, it happened, but on D’s own pleaded case (§28 of D’s AD&CC) D accepted HK$10,400 in cash as compensation already, after which D’s loss must be treated as compromised and became zero. Alternatively, if D felt that she had been excluded from the fruits of the purchase of the Property she could have simply taken out an originating summons at any point in time and asked that the Property be sold pursuant to Section 6 of the Partition Ordinance (Cap 352) forthwith, and with the proceeds being held in a solicitors’ account and invested (eg being put in a fixed deposit account earning interest at 5% per annum, compounded once every 3 months), pending resolution of the dispute on percentage. She did not have to sit at home in Sydney Australia and do absolutely nothing about this. Looking at D’s AD&CC, and all of the evidence adduced at the trial, I can see no recoverable causative loss being properly pleaded or properly proven, and I award none. Similarly, D’s speculation that the Property had been lent to a third person was never proven by D, and had been effectively abandoned. Nothing should be payable in relation to that. The amount of damages payable by P is zero. 164.For the fourth relief prayed for (ie, occupational rent), it must be dismissed as completely misconceived. It is D’s own pleaded case, and sworn evidence, that she had agreed P could reside in the Property without any requirement to pay rent to her (§11.3.3 of D’s AD&CC). D cannot turn around and suddenly say, without notice, that she would like to claim what she had agreed she should never claim. 165.For the fifth relief prayed for (ie, “half of the rental income”), it must be dismissed as unproven. D adduced zero evidence that P received any rent from any person. Half of zero is zero. 166.As to costs, the starting point must be Pacific Ace Finance Ltd v Delay & Anor [2023] 4 HKC 424 [2023] HKDC 611 (§28, DDJ Kenneth KY Lam), where I summarized the general legal position as follows:-
167.In terms of “event”, we plainly have a mixed outcome in this matter, with P winning some of his arguments, and D winning some of her arguments. Each party had some victories, and some defeats. On the facts of this case, looking at the way each of the parties had been contesting this absurdly acrimonious dispute, I should, and I hereby, pay special attention to Order 62 rule 5 of the Rules of the District Court (Cap 336H) which, so far as material, says: -
168.As one can gather from everything I had set out above, in my view, P’s litigation conduct was horrible. He lied to me under oath, which was potentially a crime punishable by 7 years’ imprisonment under Section 31 of the Crimes Ordinance (Cap 200). On his pleadings he had denied the undeniable, such as D’s clear and obvious legal entitlement to rid herself of “the shackles of co-ownership”, at a point in time when what was declared by Recorder Joseph Fok SC in Wong Chun Kei v Poon Vai Chung [2007] 1 HKLRD 825 had become trite and well-known. The list of P’s litigation misconduct can go on forever. However, D’s litigation conduct was in fact also horrible. Whilst D was perfectly honest when she gave evidence under oath, and indeed I accepted the entirety of her oral evidence as true, she did file a defective pleading, namely, D’s AD&CC, into court, used it, and then ambushed everyone, including myself, with fresh allegations whilst giving live oral evidence. Further, D was plainly guilty of non-disclosure, having buried important referral and appointment letters which would have shown the names, addresses and telephone numbers of her GP and/or psychologist in Australia, plus details of her counselling session. In such circumstances the only fair and reasonable costs order for the whole matter should be “no order as to costs” – thus requiring each party to bear his/her own costs in this litigation. I hereby make such an order accordingly. 169.The above is an Order Nisi. Unless a party takes out a formal inter partes summons within 14 days from the date hereof to vary the Order Nisi, the Order Nisi shall become absolute without further order. Since the Order Nisi is “no order as to costs”, there is no necessity for me to certify the attendance of counsel. However, I must and I do acknowledge both Mr Keith Tam, counsel for P, and Mr Tommy Cheung, counsel for D, had been extremely helpful to me, for which I am most grateful. Each of them added substantial value to his own legal team, and to my efficient administration of civil justice. I would have certified their attendance before me as proper, if not essential, had I ordered any inter partes taxation for this action. 170.For the avoidance of doubt, any relief claimed for by any party that has not been specifically dealt with above (eg, the entirety of P’s claim in P’s ASoC) is hereby dismissed by me. Othes Matters 171.As I had told counsel for both parties on 30 April 2024[76], I do not have a magic wand to make the parties like each other, but I hope things between them would not escalate. Siblings should never have to sue each other, certainly not in this manner. And as I had stated at the beginning of this judgment, by the time P and D gave evidence before me in April 2024, they were aged 59 and 63 respectively. It is regrettable that P and D seemed to have become so consumed by their unhealthy mutual animosity that they lost their good sense. It is my hope that this judgment can go some way to bring some closure to the parties, so that they can simply sell the Property immediately, divide the proceeds, and move on. There are more important things in life. I hope both parties can try to understand that. 172.I do thank both counsel for their most able assistance.
Mr Keith Tam, instructed by Huen & Cheung, for the plaintiff Mr Tommy Cheung, instructed by Stephenson Harwood, for the defendant [1] P’s WS, §2, and D’s WS, §5. [2] D’s WS, §7. [3] D’s WS, §8. [4] D’s WS, §11. [5] Transcript, p.142, line R, to p.143, line H. [6] Transcript, p.142, line R, to p.143, line H. [7] Transcript, p.158, line S, to p.159, line D. [8] Transcript, p.391, lines A to K. [9] Transcript, p.402, lines A to H. [10] Transcript, p.83, line H to p.84, line Q. [11] Transcript, p.83, lines L to O. [12] Transcript, p.9, lines N to U. [13] P’s WS, §19. [14] Transcript, p.37, lines E to I. [15] Transcript, p.120, lines C to H. [16] Transcript, p.20, lines C to K. [17] Transcript, p.119, lines E to V. [18] Transcript, p.402, lines A to H. [19] Transcript, p.81, line N to p.83, line C. [20] Transcript, p.364, lines J to O. [21] AD&CC, §30.1. [22] AR, §33. [23] P’s WS, §§57 to 59. [24] Reference can, by way of example, be made to §24 above – where P showed arrogant, disdainful and contemptuous facial expressions when he lied to me and everyone else in the courtroom in that manner (see Transcript, p.20, lines C to K). [25] Transcript, p.129, line P. [26] Transcript, p.128, lines L to M. [27] Transcript, p.126, line Q onwards. [28] Transcript, p.127, line N onwards. [29] Transcript, p.364, lines J to O. [30] D500, an Assignment of the Property dated 3 October 2005, accurately described P & D as “Tenants in Common in equal shares”. [31] Transcript, p.312, line A onwards. [32] Transcript, p.379, line C onwards. [33] Transcript, p.168, lines M to U. [34] Transcript, p.194, lines K to N. [35] Transcript, p.219, lines C to G. [36] D500, an Assignment of the Property dated 3 October 2005, accurately described P & D as “Tenants in Common in equal shares”. [37] D17 – Citibank (Hong Kong) Limited. [38] Transcript, p.198, lines O to V. [39] Transcript, p.207, line K onwards. [40] AD&CC, §12, read “Based on the Common Understanding, the parties were registered as tenants-in-common (50% each of the share and interest in the Property) at the Land Registry. Such mode of co-ownership was agreed by the Plaintiff and Defendant upon the suggestion of the Plaintiff and the Defendant’s then solicitors, Messrs. Rowdget W. Yung & Co, when the Plaintiff and the Defendant attended Messrs. Rowdget W Young & Co’s office for completion of the sale and purchase of the Property”. [41] D500, an Assignment of the Property dated 3 October 2005, accurately described P & D as “Tenants in Common in equal shares”. [42] Transcript, p.209, lines Q to V. [43] Transcript, p.176, lines G to L. [44] Transcript, p.405, lines K to N. [45] Transcript, p.224, line E to p.227, line V. [46] Transcript, p.363, line M. [47] Transcript, p.364, lines B to E. [48] Transcript, p.175, lines B to T. [49] Transcript, p.317, line G onwards. [50] Transcript, p.185, line E to p.186, line U. [51] Transcript, p.34, lines I to L, p.37, lines E to J, p.49, lines F to S, and p.68, lines A to M, etc. [52] Transcript, p.363, lines A to G. [53] See §§48 to 56 above, and Transcript, p.168, lines M to U. [54] Transcript, p.244, lines C to J. [55] Transcript, p.358, lines K to N. [56] D’s WS, §50. [57] Transcript, p.4, lines B to C. [58] Transcript, p.7, lines N to V. [59] Transcript, p.93, line F onwards. [60] Transcript, p.282, line F onwards. [61] Transcript, p.286, line Q onwards. [62] D’s AD&CC, §28. [63] D’s AD&CC, §30. [64] Transcript, p.290, line K onwards. [65] Transcript, p.4, lines B to C. [66] D’s WS, §§66 & 67. [67] Transcript, p.321, line H onwards. [68] Transcript, p.330, line H. [69] Transcript, p.333, line A onwards. [70] Transcript, p.102, line I to p.105, line T. [71] Transcript, p.109, line F to p.110, line L. [72] Transcript, p.110, line H. [73] Transcript, p.344, line F onwards. [74] Transcript, p.131, Line E. [75] Transcript, p.130, line U. [76] Transcript, p.414, line L onwards. | ||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case