Lau Chung v. Hui Keng Yee and Another

HCA 561/2019

[2025] HKCFI 359

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 561 OF 2019

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JUDGMENT

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A.  BACKGROUND

1.In this action, the plaintiff claims against the defendants for, among other things, declarations in relation to certain shares in the 2^nd defendant, and the 1^st defendant counterclaims against the plaintiff for a declaration that she is entitled to reside in a property located in Kennedy Town[1] (“the Kennedy Town Property”) rent-free for the remainder of her life, or alternatively, for an order for payment that represents the value of the 1^st defendant’s free accommodation in the Kennedy Town Property for life.

B.  THE PLAINTIFF’S APPLICATION TO RESTORE HIS CLAIM

2.As the plaintiff failed to appear at the Pre-Trial Review (“PTR”) which took place on 7 August 2024, this Court ordered, pursuant to Order 25 rule 1C of the Rules of the High Court (Cap.4A, Laws of Hong Kong) (“RHC”), that the plaintiff’s claim herein be provisionally struck out.

3.While the plaintiff did indicate on the 1^st day of the trial that he would make an application by 7 November 2024[2] to restore his claim, this Court did not consider it appropriate to adjourn the trial on the 1^st defendant’s counterclaim. It was therefore proceeded with as scheduled accordingly.

4.At the end of the day, the evidence of all witnesses called by the parties were completed within 2 days. The trial was then adjourned on 29 October 2024 for the parties to lodge and exchange their respective written closing submissions.

5.On 30 October 2024, the plaintiff wrote to the Court and applied to restore his claim.

6.In order to save costs and time, this Court directed that the parties shall lodge their written submissions on this application and that the matter would be dealt with in this Judgment at one go, which I now do.

7.Order 25 rule 1C(5) of the RHC provides that the Court shall not restore the claim unless good reasons have been shown to the satisfaction of the Court.

8.The plaintiff explained that he did not attend the PTR because he was unaware that his claim would be provisionally struck out by reason of his absence. He further stated that he was absent because of his personal circumstances, namely, that he was required to go on a business trip in the Mainland, and that he would require more time to instruct a new legal team.

9.None of the above can constitute good reason because:

(1)  Ignorance of the law cannot amount to a good reason;

(2)  The plaintiff had been legally represented until 22 July 2024 when he filed a Notice to Act in Person, and it is reasonable to expect that he had been properly advised by his former solicitors on the necessity to attend the PTR himself;

(3)  When the plaintiff was found to be absent from the PTR on 30 July 2024, this Court, with the consent of the 1^st defendant’s counsel, re-fixed the PTR to be held one week later (on 7 August 2024), and made the express order that in the event he still did not appear either in person or by his legal representative, his claim shall be provisionally struck out pursuant to Order 25 rule 1C of the RHC. It was further ordered that the 1^st defendant shall serve the order on the plaintiff by email and by post, which the 1^st defendant duly did accordingly. Hence, there is no excuse on the part of the plaintiff to say that he did not know about the legal consequence;

(4)  The original date of the PTR (30 July 2024) was fixed back on 2 November 2023. As a party, particularly as a litigant in person, the plaintiff himself had the duty to make himself available. If he decided not to put this court case as his first priority, that is his choice and he should bear the consequence;

(5)  There is no explanation as to why he could not reschedule his business trip to another date, nor did he explain what the consequence would be if he did not go to the Mainland as scheduled;

(6)  It was his own obligation to engage lawyers in time for an upcoming hearing, and he was in the best position to know whether that could be done before the PTR. In the event he could not do so in time, as in the present case, he should have attended the hearing in person;

(7)  While he stated in his affirmation that he had not been able to form his new legal team as quickly as he had hoped by reason of his business engagement, he did not go further as to why such business engagement had prevented him from instructing new lawyers in time for the PTR. Further, as aforesaid, he should have attended the hearing personally. In any event, it can be seen that he had not instructed any lawyer to represent him at the trial (which commenced more than 3 months after he had filed his Notice to Act in Person). This shows that it was just an excuse for him to say that he had not been able to instruct lawyers in time for the PTR.

10.The plaintiff then alleged that since he was in a mountainous area in Guizhou in the period between 30 July 2024 and 26 August 2024, and during which he had no access to internet in the remote area, he could not receive the 1^st defendant’s notification about the re-fixed PTR and the Court’s warning.

11.Such an explanation is not acceptable because the 1^st defendant’s letter was sent to the plaintiff’s address which was put down by him in the Notice to Act in Person as the address for service. He has the duty to make sure that he would be notified timely once any documents have been served to that address.

12.In any event, he admitted that he knew about the Court’s order made on 7 August 2024 when he returned home, presumably on 26 August 2024 or shortly thereafter. As demonstrated by his own letter dated 6 September 2024, he also clearly knew that he had to apply to restore his claim. Yet, he did not make such an application before the scheduled date of the trial (By the time when he allegedly left the mountainous area, the trial was still around 2 months away). The reasons which he gave for such a delay was that it took time for him to “re-constitute” his legal team and that he had other business commitments in Mainland China. These, again, are simply incredible and unacceptable.

13.As aforesaid, the trial on the counterclaim had been completed and the rest of the scheduled trial dates (for taking evidence) had been vacated by the time when the plaintiff made his application for restoration of his claim. There is absolutely no reason why all the witnesses should be called to give evidence again on the plaintiff’s claim.

14.Furthermore, as far as the plaintiff’s claim is concerned, the trial dates commencing on 28 October 2024 are milestone dates, which cannot be moved without exceptional circumstances: Order 25 rule 1B(3) of the RHC. There are simply no exceptional circumstances in the present case.

15.I therefore refuse the plaintiff’s application to restore his claim. Consequentially, pursuant to Order 25 rule 1C(6) of the RHC, I hereby:

(1)  Dismiss the plaintiff’s claim; and

(2)  Order that the defendants are entitled to their costs of the plaintiff’s claim (including the costs of the plaintiff’s application to restore his claim), to be taxed if not agreed.

C.  THE UNDISPUTED / INDISPUTABLE FACTS

16.I would firstly refer to the undisputed or indisputable facts (which are set out by the 1^st defendant in her closing submissions in respect of which the plaintiff has made no comment thereon) as follows:

(1)  The 1^st defendant was married to the late Lau Cho Dick (“Father”). They had two children, namely, the plaintiff and Lau Ming Albert (“Ming”).

(2)  In 1991, the plaintiff was married to Ms Donia Lo (“Donia”) and they emigrated to Australia. They subsequently returned to Hong Kong in 1994.

(3)  Ming was married to Ms Connie Lam (“Connie”).

(4)  In 1993, Father and the 1^st defendant emigrated to Canada.

(5)  In around early 1997, Father was diagnosed in Canada to be suffering from liver cancer.

(6)  Since then, Father planned to receive Chinese medicine treatment in Guangzhou.

(7)  A flat situated in Caine Road (“the Caine Road Property”)[3] was then purchased through a corporate vehicle known as Eagle Expert Industries Limited (“EEIL”) in 1997. As at 17 November 1996, the shareholders of EEIL were Lo Sun Nora (“Nora”) (Donia’s younger sister – holding 8,000 shares) and Donia’s father (holding 2,000 shares). About 2 years after the purchase, Nora transferred the said 8,000 shares to the plaintiff and the other 2,000 shares mentioned above were transferred to Donia.

(8)  6 cheque stubs were found in the 1^st defendant’s Wing Lung Bank account cheque book:

Date	Cheque No.	Handwritten remarks in the section “For”	Amount
6/10/1997	022962	“聰租金”	$60,000[4]
26/3/1998	022965	“Lau Chung” “租金”	$60,000[5]
15/10/1998	022970	“刘聰” “租金”	$70,000
8/2/1999	586055	“劉聰(租金)”	$60,000
12/10/1999	586057	“屋租”	$60,000
(undated)	586063	“屋租”	$60,000

(9)  By mid-2000, Father’s health became very poor.

(10)  The Kennedy Town Property was purchased in 2000 at the price of $4,859,000 under the sole name of the plaintiff.

(11)  The following 2 cheque stubs in the cheque book of the 1^st defendant’s Wing Lung Bank account were found:

Date	Cheque No.	Handwritten Remarks	Amount
(undated)	586065	“長江” “10%高逸華軒”	$485,900
4/7/2000	586066	“House” “購買高逸華軒”	$2,500,000

(12)  The following 7 cheque stubs have also been found in the 1^st defendant’s Wing Lung Bank account cheque book:

Date	Cheque No.	Payee	Amount
25/9/2000	586067	協誠裝飾公司	$20,000
22/10/2000	586070	曾氏裝修	$20,000
(undated)	586071	協誠裝飾公司	$20,000
24/10/2000	586072	華昌窗簾	$9,257
27/10/2000	586073	曾氏裝飾	$32,000
3/11/2000	586074	意適宝傢私	$17,000
13/11/2000	586075	協誠裝飾公司	$38,000
		Total	$156,257

(13)  Father passed away on 1 April 2001.

(14)  The 1^st defendant did not pay rent for residing in the Kennedy Town Property, but she had paid for the general expenses, utility bills and property management fees thereof. The maintenance thereof was also handled by her.

(15)  The plaintiff and Donia separated in 2006 and finally were divorced in 2016.

(16)  In early 2018, Connie and her son moved into the Kennedy Town Property.

(17)  In February 2018, the plaintiff visited the Kennedy Town Property and found that Connie and her son were also living there.

(18)  On 6 May 2018 and 7 May 2018, the plaintiff and Ming exchanged WeChat messages by which the plaintiff demanded Ming’s family to move out of the Kennedy Town Property.

(19)  On 28 June 2018, the 1^st defendant moved out of the Kennedy Town Property.

D.  THE 1^ST DEFENDANT’S CASE ON HER COUNTERCLAIM

17.The 1^st defendant’s case on her counterclaim may be summarised as follows[6]:

(1)  When Father and the 1^st defendant discussed about his cancer treatment plan with the family, Donia suggested that a property should be bought in Hong Kong. As a result, the Caine Road Property was purchased by Donia’s maiden family through a corporate vehicle.

(2)  While Father and the 1^st defendant lived in the Caine Road Property, they did pay a monthly rental of $10,000.

(3)  In about 2000, Donia proposed to buy the Kennedy Town Property which is a bigger flat as the residence for Father and the 1^st defendant in Hong Kong. Father agreed to this suggestion.

(4)  Father’s original intention was for the 1^st defendant to jointly hold the Kennedy Town Property with the plaintiff. However, upon the plaintiff’s promise that the 1^st defendant was going to have a life interest to reside in the Kennedy Town Property as long as she wishes until her death (“the Promise”), the 1^st defendant did not insist to be a registered owner of the Kennedy Town Property despite having contributed around $3 million to the purchase price[7], and as a result, the plaintiff was registered as the sole owner of the Kennedy Town Property.

(5)  However, during an oral conversation between the plaintiff and the 1^st defendant in around April to May 2018, the plaintiff denied the 1^st defendant’s right of free accommodation in the Kennedy Town Property and demanded the possession of the Kennedy Town Property from the 1^st defendant.

(6)  It is unconscionable in these circumstances for the plaintiff to deny the 1^st defendant’s right of free accommodation in the Kennedy Town Property for the rest of her life.

(7)  By operation of the principle of proprietary estoppel and promissory estoppel, the 1^st defendant is entitled to a declaration that she is entitled to reside in the Kennedy Town Property rent-free for the rest of her life, or alternatively, for an order for payment that represents the value of her free accommodation in the Kennedy Town Property for life.

E.  THE PLAINTIFF’S PLEADED DEFENCE

18.The plaintiff’s pleaded case in relation to the 1^st defendant’s counterclaim may be summarised as follows:

(1)  The Kennedy Town Property was purchased by the plaintiff for the use of Father, the 1^st defendant and Ming[8].

(2)  While Father did contribute to the purchase price of the Kennedy Town Property, such contribution was made as financial assistance to the plaintiff for the purchase.

(3)  At all material times, Father’s intention was for the plaintiff to hold the Kennedy Town Property as sole owner and there had never been any mention or promise that the 1^st defendant would be entitled to stay there for the rest of her life.

(4)  In March 2018, the 1^st defendant told the plaintiff that:

(a)  she together with Ming’s family would be emigrating to Canada in June 2018;

(b)  she would give the possession of the Kennedy Town Property back to the plaintiff;

(c)  the plaintiff could then decide whether to sell or rent out the Kennedy Town Property at his discretion.

(5)  The 1^st defendant eventually left the Kennedy Town Property in June 2018 at her own will. Her conduct demonstrated that she no longer wanted to live in the Kennedy Town Property.

F.  THE LAW

19.The principles concerning proprietary estoppel and promissory estoppel are well established.

20.In Cheung Lai Mui v Cheung Wai Shing & Others (2021) 24 HKCFAR 116, [2021] HKCFA 19, it was held that:

“23. Put shortly, the requirements of equity to recognise and give relief based on proprietary estoppel are (a) a representation or assurance made to the claimant (b) reliance thereon by the claimant and (c) detriment to the claimant in the consequence of that reliance.

[…]

27. […] there are two steps involved. First, once the elements of the proprietary estoppel are established an equity arises; secondly the court then must decide the most appropriate form of relief, and may have regard to the circumstances as they then exist.”

21.In Luo Xing Juan v. Estate of Hui Shui See (2009) 12 HKCFAR 1, Ribeiro PJ held in [54] that:

“[…] there is discussion as to the extent to which promissory estoppel and proprietary estoppel overlap, with a body of opinion inclining towards the view that there is no real difference between them. In the present context, proprietary estoppel is inapplicable because the deceased, not being the owner of the Property, was not in a position to confer on Miss Luo a proprietary interest in it. However, as Maharaj v Chand establishes, this does not prevent recourse to promissory estoppel. The doctrines therefore differ at least to that extent. However, it is at the same time clear that many of the constituent elements of the two forms of estoppel are shared and where that is so, authorities on proprietary estoppel provide guidance in cases involving promissory estoppel.”

22.His Lordship further explained the requirements of promissory estoppel in [55] thereof:

“A promissory estoppel may be said to arise where (i) the parties are in a relationship involving enforceable or exercisable rights, duties or powers; (ii) one party (‘the promisor’), by words or conduct, conveys or is reasonably understood to convey a clear and unequivocal promise or assurance to the other (‘the promisee’) that the promisor will not enforce or exercise some of those rights, duties or powers; and (iii) the promisee reasonably relies upon that promise and is induced to alter his or her position on the faith of it, so that it would be inequitable or unconscionable for the promisor to act inconsistently with the promise.”

23.From [66] onwards in the same case authority, his Lordship set out the principles as to relief:

“66. In Stack v Dowden [[2007] 2 AC 432 at 448, §37], Lord Walker of Gestingthorpe contrasted the consequences of a proprietary estoppel with the consequences of a common intention constructive trust:

‘Proprietary estoppel typically consists of asserting an equitable claim against the conscience of the ‘true’ owner. The claim is a ‘mere equity’. It is to be satisfied by the minimum award necessary to do justice (Crabb v Arun District Council [1976] Ch 179, 198), which may sometimes lead to no more than a monetary award. A ‘common intention’ constructive trust, by contrast, is identifying the true beneficial owner or owners, and the size of their beneficial interests.’

67. As previously noted, a promissory estoppel similarly gives rise to such a personal or ‘mere’ equity. The disparaging-sounding epithet ‘mere’ is used, as the passage from Lord Walker’s judgment shows, to indicate that no proprietary interest accrues to the claimant. It certainly does not mean that the relief which may be granted is insignificant.

68. In deciding upon the relief, the court determines the extent of the equity raised and the relief needed to satisfy it. As Scarman LJ stated it in Crabb v Arun District Council [[1976] 1 Ch 179 at 199]:

‘... there can be no doubt that since Ramsden v Dyson (1865) LR 1 HL 129 the courts have acted upon the basis that they have to determine not only the extent of the equity, but also the conditions necessary to satisfy it, and they have done so in a great number and variety of cases.’

The court aims to grant the relief required ‘to enable the claimant to have the benefit of the equitable right which he is held to have’.

69. It is well-established that in fashioning such relief, the court has great flexibility and addresses the substance of the equity raised in determining its extent. It is not constrained, for instance, by the lack of legal precision in the way the promise or assumption founding the estoppel was expressed. Thus, in Plimmer v Wellington Corporation [(1884) 9 App Cas 699 at 713], a case which is properly regarded as involving a proprietary estoppel, Sir Arthur Hobhouse, giving the advice of the Privy Council, stated:

‘The question still remains as to the extent of interest which Plimmer acquired by his expenditure in 1856. Referring again to the passage quoted from Lord Kingsdown’s judgment [in Ramsden v Dyson], there is good authority for saying what appears to their Lordships to be quite sound in principle, that the equity arising from expenditure on land need not fail merely on the ground that the interest to be secured has not been expressly indicated.’

70. As Lord Walker indicated, the court does not grant relief beyond the minimum necessary to do justice, although his Lordship had noted in an earlier decision that this ‘does not require the court to be constitutionally parsimonious’ although ‘it does implicitly recognise that the court must also do justice to the defendant’ [Jennings v Rice [2003] 1 P & CR 8, 100 at 113, per Walker LJ]. Where the equity is raised by operation of the doctrine of promissory estoppel in relation to a clear-cut promise that can readily be given effect, ‘the court’s natural response is to fulfil the claimant’s expectations.’ But this is subject to the remedy not being disproportionate to the detriment which its purpose is to avoid. If realising the claimant’s expectations in full would result in such a disproportion, the court will seek to satisfy the equity in a more limited way, while not abandoning its attempt to fulfil those expectations to an appropriate degree [Jennings v Rice [2003] 1 P & CR 8, 100 at 111 per Aldous LJ and at 114-116 per Walker LJ].

71. In formulating its decree, the court has a wide discretion to satisfy the equity raised in an effective way, applying the principles mentioned above. Practical considerations involving such matters as the administrative feasibility and cost of the measures ordered; their fiscal consequences; the need in some cases for a ‘clean break’ between antagonistic parties [Pascoe v Turner [1979] 1 WLR 431 at 438-439; Gillett v Holt [2001] Ch 210 at 237], and so forth, are properly taken into account.

72. While some differences have developed as between Australian and English jurisprudence in relation to the constituents of certain estoppels, with the Hong Kong courts presently inclining towards the English approach, there is no divergence among the jurisdictions regarding the court’s wide and flexible discretion to grant appropriate relief. In Waltons Stores (Interstate) Ltd v Maher [(1987-1988) 164 CLR 387 at 419], Brennan J indicated some of the measures open to a court to give appropriate effect to an equity:

‘The element which both attracts the jurisdiction of a court of equity and shapes the remedy to be given is unconscionable conduct on the part of the person bound by the equity, and the remedy required to satisfy an equity varies according to the circumstances of the case. As Robert Goff J said in Amalgamated Property Co v Texas Bank [1982] QB 84 at p 103: ‘Of all doctrines, equitable estoppel is surely one of the most flexible.’ Sometimes it is necessary to decree that a party’s expectation be specifically fulfilled by the party bound by the equity; sometimes it is necessary to grant an injunction to restrain the exercise of legal rights either absolutely or on condition; sometimes it is necessary to give an equitable lien on property for the expenditure which a party has made on it: see Snell’s Principles of Equity, 28^th ed (1982), p 562. However, in moulding its decree, the court, as a court of conscience, goes no further than is necessary to prevent unconscionable conduct.’ ”

24.In Rose v Stavrou [2000] L. & T.R., 133, Neuberger J (as he then was) held that:

“[…] There was some argument as to whether the estoppel was a promissory estoppel or a proprietary estoppel. I am not sure that it matters very much which it is. Classifications of estoppels sometimes can be of more interest to academic lawyers than anyone else. The reason why so much was made of it being a promissory estoppel was two-fold. The first is that if it is a promissory estoppel it is only a shield and not a sword and Mr Joseph says that, therefore, the claimant cannot seek a declaration on the face of it. I do not accept that. It seems to me that a person who claims to have the benefit of a promissory estoppel, although he cannot found it as a basis for claiming damages, or something like that, is perfectly entitled to seek the assistance of the court as to the extent of his right or defence under the estoppel in question. I know of no authority which would hold otherwise and I would find it surprising if there were.” (at 141 – 142)

25.The above paragraph has been cited with approval in Mo Ying v Brillex Development Limited & Another [2015] 2 HKLRD 985 (CA) by Cheung JA at [8.10]. His Lordship also cited what Scarman LJ (as he then was) said in Crabb v Arun District Council [1976] 1 Ch 179 at 193 at [8.9]:

“ …. I do not find helpful the distinction between promissory and proprietary estoppel. This distinction may indeed be valuable to those who have to teach or expound the law; but I do not think that, in solving the particular problem raised by a particular case, putting the law into categories is of the slightest assistance.”

26.However, an equitable right may be lost, estopped and/or waived: Mo Ying v Brillex Development Limited & Another (supra) at [8.6] and [11.7].

27.In Sean Wilken QC & Karim Ghaly, The Law of Waiver, Variation, and Estoppel (3^rd edition, 2012), the learned authors explained that while there are different types of waivers, the elements which are common to all forms of waiver are:

(1)  an unequivocal representation by the party (who was entitled to exercise the equitable right) either by words or conduct that it will forgo certain rights;

(2)  the said party makes that representation when it is aware of the facts that give rise to the rights which are being forgone, of the right to forgo those rights and the connection between the two.[9]

G.  THE ISSUES

28.Having taken into account how the parties ran their respective cases and all the evidence, I am of the view that the 3 main issues which this Court has to resolve are:

(1)  Whether there was any agreement among the plaintiff, Father and the 1^st defendant that the Kennedy Town Property should be registered under the sole name of the plaintiff on the condition that he would allow the 1^st defendant to reside therein for life rent-free.

(2)  Whether the 1^st defendant had given up her right to reside in the Kennedy Town Property for life rent-free.

(3)  What relief the Court should grant in the event the 1^st defendant’s case is accepted.

H.  CREDIBILITY OF WITNESSES

29.Before I discuss the aforesaid issues, I should deal with credibility of the witnesses.

30.In Hu Lan v David Golden [2023] HKCFI 873, this Court held that:

“36. When I consider the credibility of various witnesses who had given evidence in court, I shall take the following matters into account:

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

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

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

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

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

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

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

31.I will bear the above matters in mind when I consider the credibility of the witnesses in the present case.

32.At the trial, the plaintiff has given evidence but he has not called any other witness[10]. On the other hand, the 1^st defendant has also given evidence and called 3 other witnesses, namely, Donia, Connie and Ming.

33.Before I deal with the witnesses one by one, I should mention that, as pointed out by the 1^st defendant’s counsel, the plaintiff has regrettably misquoted or misunderstood quite a lot of evidence given by the 1^st defendant’s witnesses. Many of his criticism on their evidence are therefore completely baseless.

H1.  The plaintiff

34.There are quite a number of different problems in the plaintiff’s evidence.

35.Firstly, many pieces of his evidence are self-contradictory. For example:

(1)  When he was asked why his parents chose to emigrate in 1993 to Canada instead of Australia (to which he had emigrated in around 1991), the plaintiff initially said he did not know, and that he was only informed by the 1^st defendant about the reason subsequently. Upon being further cross-examined, he changed his answer, and tried to lay the blame on Donia by saying that it was her idea that the parents should not move to Australia. He further alleged that he had never told his parents that he did not want them to emigrate to Australia. However, he subsequently admitted that he did say so, and that it was his own idea that they should not move to Australia.

(2)  Although he stated in his witness statement that the Kennedy Town Property was purchased for the purpose of Father, the 1^st defendant and Ming (this is also his pleaded case, see [18(1)] above), he changed his evidence when he was cross-examined and alleged that he had never taken Ming into account when he purchased this property. He was also self-contradictory as to whether it was upon the 1^st defendant’s request that he allowed Ming to move into the Kennedy Town Property.

(3)  While the plaintiff alleged in his witness statement that

“At all material times, Father intended that the Kennedy Town Property was to be registered in my sole name […]”[11] (emphasis added)

he alleged in Court that in fact Father only knew about the plaintiff’s purchase of the Kennedy Town Property after the completion of the transaction, and that Father had never requested him to purchase another property.

(4)  The plaintiff’s evidence that he purchased the Kennedy Town Property out of his filial duty towards his parents is plainly contradicted by his pleaded case that he purchased the said property and allowed them to live there free of rent only because of his reliance on a common understanding, among other things, that he would be entitled to certain shares in a family company: see paragraph 24A and 24F(5) of the Re-Amended Statement of Claim.

(5)  The plaintiff alleged in his oral evidence that he had never thought about staying in the Kennedy Town Property and he preferred to go back to his home in the Mainland. However, according to his own WeChat message to Ming dated 6 May 2018, he had been evicted out of the Kennedy Town Property by the 1^st defendant and he could not stay therein.

36.Secondly, he has been evasive when he was cross-examined. For example, when he was asked whether he was close (“親密”) or estranged (“疏離”) to his parents in around 1994, he avoided to answer for the alleged reason that he did not know counsel’s definition of these words. In my view, these are common expressions and, if the plaintiff was truthful, he should have no difficulty in giving his answers.

37.Thirdly, some of his answers did not make sense at all. For example:

(1)  When he was asked why he did not ask the 1^st defendant to sign as a witness for his second marriage in 2017, he stated that it was only because he wanted to avoid having to ask the 1^st defendant doing all sorts of things out of his concern about her health. However, he then accepted that all that the 1^st defendant had to do was to sign some documents at a solicitors’ firm. In my view, the plaintiff was trying to cover up the fact that he did not have a good relationship with the 1^st defendant.

(2)  He said that Donia had never told him that his parents had paid rental for the Caine Road Property. This is simply incredible, particularly when there is no evidence that the relationship between Donia and him had turned sour at that time.

38.Fourthly, some of his evidence are contradictory to documentary and indisputable evidence. For example:

(1)  Despite the 1^st defendant’s ability to produce certain cheque stubs which show that some cheques have been issued for the purpose of paying rent for the Caine Road Property (the authenticity of which was not disputed by the plaintiff), the plaintiff still denied that he had ever received such rent. Even if Donia had indeed deposited such rental into her own sole name bank account, as aforesaid, it is incredible that she did not inform the plaintiff about her receipt of such payments. Further, in the circumstances of the case, any reasonable person would have understood that such payments were meant to be paid to both the plaintiff and Donia. However, he still stubbornly refused to accept the same.

(2)  The plaintiff alleged that while Father did give him “financial assistance” (which he explained in Court that it was in fact a gift) for him to purchase the Kennedy Town Property, such assistance was only rendered after the completion of the conveyancing transaction. He stated that he was sure about this timing despite the long lapse of time. However, the cheque stubs of the 1^st defendant’s cheque book show that in fact the 2 payments towards the purchase price of the Kennedy Town Property were made long before completion[12]. In my view, the plaintiff was trying to make good his case by misrepresenting the timing of the “financial assistance” so as to argue that there could not be any promise as such before completion on the basis that none of the purchase money came from the parent(s) before the completion of the purchase.

(3)  The plaintiff alleged that when the 1^st defendant said in March 2018 that she would terminate the utility services of the Kennedy Town Property, he had expressly told her that she needed not do so. However, this is contradictory to his WeChat messages sent in June 2018 which show that he specifically reminded Ming about the 1^st defendant’s agreement to terminate such services.

39.All in all, I take the view that the plaintiff is not an honest witness and therefore his evidence should be rejected.

H2.  The 1^st defendant

40.The 1^st defendant was born in 1939. At the time of the trial, she was already 85 years old. This must be borne in mind when her evidence is assessed.

41.I am of the view that the 1^st defendant is an honest witness despite the plaintiff’s submissions to the contrary:

(1)  The plaintiff’s submissions that the 1^st defendant has made a fundamental change in her evidence by saying that she has now made up her mind not to stay in Canada for good (whereas she stated at the time when she made her witness statement in July 2022 that she has not made up her mind yet) is rejected. The circumstances have apparently changed in the last 2 years because the world was still affected by the pandemic back in 2022. Neither do I accept the plaintiff’s argument that the 1^st defendant has to change her evidence so as to “salvage her claim”, because there was no “damage” to be salvaged at all even though the 1^st defendant said in July 2022 that she had not made up her mind about her future plan.

(2)  The plaintiff’s submissions that it is incredible for the 1^st defendant to allege that life in Canada does not suit her (on the basis that she has lived there for a long time in the past) is not accepted:

(a)  In relation to the period when Father was still alive (that was more than 20 years ago), that is apparently irrelevant because 1^st defendant’s life in Canada without Father would be different;

(b)  In relation to the period when the 1^st defendant went back to Canada to sell her houses, there is no evidence before the Court as to how long the 1^st defendant had stayed there on that occasion.

(3)  The inability on the part of the 1^st defendant to recall where the meeting in Guangzhou (during which the Promise was allegedly made by the plaintiff) took place should not be given much weight, because, after all, the incident had happened more than 20 years ago.

(4)  The plaintiff relied heavily on a will allegedly made by the 1^st defendant on 15 January 2016 (“the 2016 Will”) and submitted that her incredibility is shown by her evidence that she has forgotten about this will. I do not accept this submission. In fact, the 1^st defendant’s evidence has been very consistent in that she had totally forgotten about this will. In this regard, it should be borne in mind the fact that the 1^st defendant has made two other wills subsequently. In any event, the 2016 Will has nothing to do with the subject matter of the counterclaim herein.

42.I am of the view that the 1^st defendant is an honest witness. I accept her evidence.

H3.  Donia

43.Generally speaking, I find Donia an honest witness, and her evidence should be accepted.

44.The plaintiff attacked Donia’s evidence by submitting, among other things, that:

(1)  She had forgotten about the name of the restaurant at which she proposed to purchase a flat for Father and the 1^st defendant to stay while they were in Hong Kong;

(2)  She had forgotten about the details of her repayment to her father for the purchase of the Caine Road Property;

(3)  She had forgotten about the name of the restaurant at which she proposed in July 2000 to purchase the Kennedy Town Property;

(4)  She was unable to produce documents in support of various bank transactions.

45.I do not accept these submissions because:

(1)  While Donia indeed could not give details of certain events, it must be remembered that those matters happened more than 20 years ago and it is not surprising that she could not recall those details. The most important part of her evidence is on the understanding among the family members and the plaintiff’s Promise in respect of which she could give clear and unshaken evidence;

(2)  Although Donia could not provide documentary proof in relation to certain bank transactions, I accept that she did not keep record only because she never anticipated that those transactions would be subject to close scrutiny after so many years, particularly when those transactions were among family members.

H4.  Connie

46.Connie was a witness who gave straight-forward answers in cross-examination. I find that she is an honest witness and her evidence should be accepted. Indeed, in the plaintiff’s closing submissions, he did not make any submission otherwise.

G5.  Ming

47.The only submissions made by the plaintiff on the credibility of Ming were that:

(1)  Since Ming had admittedly assisted the 1^st defendant in handling her legal matters, he must have advised the 1^st defendant in denying the making of her will in 2016;

(2)  Since the 1^st defendant is old and has been living in Canada, Ming must be the driving force behind her pursuit of the counterclaim herein.

48.As far as the first matter is concerned, there is simply no evidence that Ming had ever “advised” the 1^st defendant what to say in her evidence.

49.Neither is there any evidential basis for the plaintiff to rely on the second matter.

50.There is hence nothing in the plaintiff’s submissions.

51.I consider that Ming is an honest witness. He has given straight-forward answers and I have no hesitation to come to the conclusion that he has been trying his best to tell the truth. I accept his evidence.

I.  DISCUSSION

I1.  The Promise

52.One of the main battle grounds between the parties is whether the plaintiff had ever promised the 1^st defendant that the she would be allowed to live in the Kennedy Town Property for life rent-free, as a condition that the said property would be registered under the sole name of the plaintiff.

53.As the Promise was allegedly made by the plaintiff orally and not evidenced by anything in writing, the Court would have to make a decision on this issue primarily on the basis of the credibility of the witnesses. In this regard, this Court has already explained the reasons why the Court should reject the plaintiff’s evidence and on the other hand accept the 1^st defendant and her witnesses as honest witnesses.

54.Apart from the above, there are other reasons why this Court has come to the conclusion that it is more likely than not that the Promise has indeed been made by the plaintiff:

(1)  If the 1^st defendant was only making up a story to say that the plaintiff had promised her to live in the Kennedy Town Property for life, then I do not understand why she did not claim for more – to say instead that there was a common intention that she would also be a beneficial owner of the said property. In such a case she could even leave her beneficial interest to Ming (i.e. the son with whom she had a much closer relationship) upon her demise.

(2)  The plaintiff’s case that he had allowed the 1^st defendant to reside in the Kennedy Town Property for life and free of rent out of his discharge of filial duty is not supported by evidence because it is evident that he all along was not close to his parents at all, to the extent that he asked his parents not to emigrate to Australia where he was living in.

(3)  Such a case is also contradictory to his own pleadings, in which he pleaded that the reason why he allowed Father and/or the 1^st defendant to live in the Kennedy Town Property free of rent was because of a common understanding (which was defined in paragraph 24A of the Re-Amended Statement of Claim), among other things, that he would be entitled to certain shares in a family company.

(4)  It is evident that the plaintiff’s alleged “financial assistance” was given before the date of the Agreement for Sale and Purchase. This is consistent with the 1^st defendant’s case that they had had a discussion on who should be named as the registered owner of the Kennedy Town Property.

(5)  The 1^st defendant’s case is also supported by Donia who gave evidence (which I accept) that Father and the 1^st defendant did mention about the 1^st defendant’s life interest in front of the plaintiff during a dinner gathering back in 2000.

55.For the sake of completeness, I would deal with the plaintiff’s arguments to the contrary below:

(1)  The plaintiff’s argument that the “financial assistance” in the sum of nearly $3m might well belong to Father rather than the 1^st defendant is rejected, for the monies were paid out of a bank account under the 1^st defendant’s sole name. Further, the plaintiff’s reliance on the 1^st defendant’s evidence that the monies in the bank account belonged to both Father and her does not assist the plaintiff, because that means the 1^st defendant also had beneficial interest in the balance of the said bank account.

(2)  In the course of her cross-examination, the 1^st defendant stated that she did not ask for life interest in relation to Ming’s property in Hong Kong, and neither did she do so in respect of the Kennedy Town Property. The plaintiff relied heavily on this piece of evidence and argued that this is fatal to the 1^st defendant’s case. I disagree, for the 1^st defendant’s answers in relation to that series of questions raised by the plaintiff should be considered as a whole. In my view, taking the plaintiff’s case to the highest, it may only be said that it was not the 1^st defendant but Father who first suggested that the plaintiff must give the Promise as the condition that he (the plaintiff) be registered as the sole owner of the said property. However, that does not assist the plaintiff, because it is my finding that he has indeed assured both Father and the 1^st defendant that the latter may live in the said property for life free of charge.

(3)  Both the 1^st defendant and Ming accepted that while the 1^st defendant did give Ming $3 million for the purpose of purchasing his own land property, the 1^st defendant had never requested and Ming had never promised that the 1^st defendant could live in his premises for life free of charge. The plaintiff therefore argued that the same logic should be applicable to the Kennedy Town Property. I reject such an argument:

(a)  I accept the 1^st defendant’s evidence that the purpose of securing the Promise was to make sure that she would have a place to live until her death. By the time Ming bought his own property, the 1^st defendant was already living in the Kennedy Town Property for a few years. There was simply no need for the 1^st defendant to make a similar request in relation to Ming’s property;

(b)  It is evident that the relationship between the 1^st defendant and Ming has always been very good. There is no reason why the 1^st defendant had to doubt that Ming would not let her stay in his property if there was a need for her to do so.

56.For the avoidance of doubt, I should also mention that I am satisfied that:

(1)  The 1^st defendant had relied on the Promise and as a result agreed that the Kennedy Town Property would be registered under the sole name of the plaintiff, which is detrimental to her interest.

(2)  Subject to the question of waiver which will be discussed below, it is unconscionable for the plaintiff not to act upon the Promise.

I2.  Whether the 1^st defendant has given up her right

57.It is undisputed that the 1^st defendant did move to Canada in around June 2018. The issue herein is whether the 1^st defendant should be taken to have given up her right to reside at the Kennedy Town Property for life free of charge, such that the plaintiff is no longer bound by the Promise.

58.As explained above, the Court should focus on the question of whether the 1^st defendant had made any unequivocal representation either by words or conduct that she would forgo her rights.

59.In this regard, the plaintiff alleged that the 1^st defendant had made unequivocal representations in March 2018 that she would emigrate to Canada together with Ming’s family, and that the plaintiff would be at liberty to decide whether he would like to sell or rent out the Kennedy Town Property.

60.On the other hand, the 1^st defendant alleged that while she did inform the plaintiff in March 2018 that she would move to Canada together with Ming’s family, she had never told the plaintiff that she would stay in Canada for good, nor did she say that the plaintiff could deal with the Kennedy Town Property in whatever way he wished. The 1^st defendant, to the contrary, told the plaintiff that she had not decided whether she would like to stay in Canada for good, that she would have to wait and see, and that it was possible that she would split her time in a year such that she would spend 6 months in Canada and the other 6 months in Hong Kong.

61.On the issue of waiver of right, the most important difference between the parties is what the 1^st defendant informed the plaintiff in March 2018 in relation to her future plan. For reasons which I have explained under Section H of this Judgment, whenever there is any conflict between the plaintiff’s evidence and the 1^st defendant’s evidence, I would prefer the 1^st defendant’s evidence. I therefore find that the 1^st defendant did not inform the plaintiff that she was going to leave Hong Kong permanently, nor did she say that the plaintiff could either sell or rent out the Kennedy Town Property as he wished. I accept her evidence set out in [60] above. Indeed, the plaintiff’s allegation of what the 1^st defendant said does not make sense, because by June 2018 even Ming had sold his own property. That means if the 1^st defendant decided to come back to Hong Kong afterwards, there would be nowhere for her to live.

62.The plaintiff relied on a number of matters in support of his submissions that the 1^st defendant has unequivocally represented that she would not move back to the Kennedy Town Property anymore upon her departure in June 2018:

(1)  She had removed all Father’s furniture from the Kennedy Town Property;

(2)  She had returned the keys to the Kennedy Town Property to the plaintiff;

(3)  She had terminated all the utility services of the Kennedy Town Property before she left Hong Kong;

(4)  She had changed the correspondence address of her account with Wing Lung Bank.

63.These matters have to be viewed in the light of this Court’s acceptance of the 1^st defendant’s evidence that she did make it clear to the plaintiff in March 2018 that she had not decided whether she would move to Canada for good and that she did not say that she would return the Kennedy Town Property to the plaintiff such that he could dispose of it in whatever way he wished. With these in mind, the aforesaid matters cannot be taken to be “unequivocal representation” that she would waive her right to live in the Kennedy Town Property for life free of charge.

64.In any event, those matters cannot assist the plaintiff:

(1)  In relation to the 1^st defendant’s removal of all Father’s furniture from the Kennedy Town Property, I accept her explanations that she would take the furniture wherever she goes, that no one would be there to upkeep and maintain the furniture once she had left Hong Kong, and that she did not know how long she would stay in Canada. Hence, it was reasonable for her to take the furniture with her despite the fact that she had not made up her mind as to whether she would move to Canada for good at the time of her departure in June 2018;

(2)  On the 1^st defendant’s return of her keys to the plaintiff, it is evident (by the plaintiff’s WeChat message to Connie) that it was done pursuant to the plaintiff’s demand. Further, according to the 1^st defendant’s explanation, she agreed to return her keys because she did not want to argue with the plaintiff. I accept her explanation. I find that it was an involuntary act on the part of the 1^st defendant and therefore it cannot be taken as if she had agreed not to return to live in the Kennedy Town Property forever;

(3)  In respect of the 1^st defendant’s admission that she did tell the plaintiff that she would terminate all utility services before she left Hong Kong, she explained that since she expected that she would stay in Canada for a period of time, she did not want anyone else to use any utility services registered under her name in her absence, because she would be personally liable for paying the bills. I accept her evidence in this regard, as I am of the view that the relationship between the plaintiff and the 1^st defendant was, to say the least, quite bad at the material time. It can be shown by the fact that the 1^st defendant did not even bother to inform the plaintiff her date of departure, nor did she leave the plaintiff with her address nor contact number in Canada.

(4)  As far as the Wing Lung Bank account is concerned, while it is evident that the 1^st defendant has changed her correspondence address, there is no evidence as to why she had done so, nor is there any evidence as to the identity of the owner/occupier of the new address, and the relationship between such owner/occupier and the 1^st defendant. Hence, nothing can really be made out of such a change. If anything, it can be seen that this bank account (which is a joint account held by Ming and the 1^st defendant) which had a balance of over $880,000 by the end of June 2018 was not closed before the 1^st defendant’s departure. This tends to support the 1^st defendant’s case that she has not decided to leave Hong Kong permanently by June 2018.

65.I therefore find that the 1^st defendant has not waived her right to live in the Kennedy Town Property for life free of charge.

J.  ORDER

66.By reasons of the aforesaid, I grant a declaration that the 1^st defendant is entitled to reside in the Kennedy Town Property rent-free for the remainder of her life.

67.I also make an order for possession against the plaintiff in favour of the 1^st defendant.[13]

K.  COSTS

68.There is no reason why costs should not follow the event. I therefore make an order nisi that the plaintiff shall pay the 1^st defendant’s costs of the counterclaim, including all costs reserved, to be taxed if not agreed.

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

The plaintiff was unrepresented and appeared in person

Mr Herbert Leung and Mr Joseph Ng, instructed by Iu, Lai & Li, for the 1^st defendant