海德國際財務有限公司 v. 張志傑

DCCJ 2515/2018

[2025] HKDC 190

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2515 OF 2018

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BETWEEN

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JUDGMENT

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I. INTRODUCTION

1.This is the trial of the summons filed by the intervener (the “Wife”) on 27 September 2022 (the “Discharge Summons”) for joinder as intervener and for discharging the charging order nisi made on 18 January 2022 (which shall be referred to as the “Plaintiff’s 2^nd CON” below) and the charging order absolute made on 4 May 2022 (which shall be referred to as the “Plaintiff’s 2^nd COA” below) and vacating the registration of these charging orders. These two orders were entered in favour of the plaintiff, a moneylender. These charging orders (“COs”) were over the defendant (the “Husband”)’s interest in the property (the “Property”) known as Flat 4 on 19^th Floor of Block D, Kam Fung Court, No 638 Sai Sha Road, Shatin, New Territories.

2.The Wife has joined as an intervener. The remaining issue in the Discharge Summons is discharging the charging orders and vacating the registration thereof.

II. BACKGROUND NOT IN DISPUTE

3.The background set out in this Part is not in dispute.

4.On 16 September 2007, the Husband and the Wife got married.

5.In 2008, under the Home Ownership Scheme (the “HOS”) administered by the Hong Kong Housing Authority (the “HKHA”), the Husband and the Wife acquired the Property in their joint names. Specifically, on 15 May 2008, a deposit of HK$132,205 (the “Deposit”) was paid, and on 18 June 2008, the assignment was executed and the mortgage was granted.

6.On 20 July 2011, the child of the Husband and the Wife was born.

7.By May 2014, the Husband had borrowed HK$84,000 from HSBC and HK$150,000 from Citibank.

8.On 14 April 2015, Messrs Cho Mei Ting & Co, Solicitors (“CMT”), on the instructions of the Husband and the Wife, issued the following letter to the HKHA:-

“We refer to the Property and we are instructed by [the Husband] and [the Wife], the Registered Owners to apply for your Consent to transfer ownership of the Property from the Registered Owners to [the Wife]:-

We now send you herewith the following documents for your further action:-

1. Application Form for Transfer of Ownership duly signed by [the Husband] and [the Wife];

2. Our cheque for the sum of HK$2,710.00… being the administrative fee for the Application for transfer of ownership;

... look forward to receiving your Consent soon.”

9.As indicated in point 1 of the letter, the Application for Transfer of Ownership duly signed by the Husband and the Wife was enclosed with the letter. In the form, under “I/We apply for transfer of ownership in respect of the caption property on the following reasons”, they filled out “Gift from Husband”.

10.On 13 June 2017, the plaintiff and the Husband entered into a loan agreement.

11.On 14 May 2019, via WhatsApp, the Husband sent to the Wife the following communication:-

Husband: “老婆：對晤住！我真係受唔住了，財務公司連日不停的來公司找我，公司阿 Sir 知道件事。我五知之後條路點行。對唔住老婆。

依幾日我非常開心同你地一齊。對唔住，我不會做好老公好老豆，但我永遠愛你們的。我係公司做了九年多公積金和強積金應該都有四五十萬，你和謙謙要好好的生活下去，層樓唔好返按了。錢係我借的，佢哋法例上唔可以收樓的。對唔住。你跟了我廿年我什么好的也冇比過你、一直要你咁辛苦。對唔住老婆”

Wife: “唔好亂諗野”

Wife: “我同你一齊”

Wife: “有咩事可以傾”

12.On 6 June 2019, the Wife presented Petition for Divorce in FCMC 6644/2019 and filed Notice of Application for Ancillary Relief with the Family Court (the “Form A”).

13.On 11 June 2019, the Form A was registered with the Land Registry.

14.On 1 August 2019, monetary judgment was entered in favour of the plaintiff against the Husband in default of defence.

15.On 15 August 2019, Master granted a charging order nisi (the “the Plaintiff’s 1^st CON”) in favour of the plaintiff over the Husband’s interest in the Property.

16.On 10 October 2019, the Wife’s then solicitors, Messrs Suimon CW Yung & Co (“SCWY”), filed a summons for joinder and discharge of the Plaintiff’s 1^st CON (the “Wife’s 2019 Discharge Summons”).

17.On 6 December 2019, the Court granted leave for joining the Wife.

18.By letter dated 3 June 2020 issued to the plaintiff, SCWY, on behalf of the Wife, wrote:-

“We take this opportunity to reiterate that our client is and was at all material times the only person having beneficial interest in the Property and that our client will be seeking a declaration from the Court that she is the sole beneficial owner of the Property. In order to save time and costs for the court proceedings, we hereby invite you, to withdraw forthwith the captioned proceedings for a charging order against the Property.”

19.In reply, on 8 June 2020, the plaintiff wrote:-

“In the absence of [the Husband] in the hearing, we are agreeable to withdraw the proceeding in respect of the Charging Order Nisi subject to no order to costs and with liberty to apply.

The above is made without prejudice to our rights and is not treated as our admission of your client’s alleged interests in the Property.”

20.In response, on 26 June 2020, SCWY wrote:-

“We are instructed to reiterate that the entire beneficial interest in the Property solely belongs to our client at all material [time]. Nevertheless, solely for the purpose of saving parties’ costs and time and for avoidance of further unnecessary arguments, we are instructed that your said offer as made in your said letter is agreeable to our client and is hereby accepted, i.e. the Plaintiff shall withdraw the proceedings in respect of the Charging Order Nisi with no order as to costs.

Given the above, we shall prepare the draft Consent Summons to give effect to the terms of settlement for your comments and approval.”

21.On 28 August 2020, SCWY sent the plaintiff a draft consent summons for comment, and on 2 September 2020, the plaintiff signed the consent summons (the “2 Sept 2020 Consent Summons”). The terms of the 2 Sept 2020 Consent Summons are:-

“1. 解除針對其附表內指明的物業所作出日期為2019年8 月15日的暫准押記令：著令提出反對因由通知書（ “該暫准押記令”）；

2. 撤鎖該暫准押記令日期為2019年9月2日在土地註冊處的土地登記冊上的登記（註冊摘要編號19090200090017) ；

3. 介入人於2019年10月10日送交法庭存檔之傳票被撤回；

4. 就該暫准押記令、介入人存檔日期為2019年10月10日的訴訟各方的傳票及本申請，法庭不作任何訟費命令，包括所有保留待決的訟費。”

22.On 11 November 2020, Master made an order (the “2020 Discharge Order by Consent”) in terms of the 2 Sept 2020 Consent Summons.

23.On 16 November 2020, Electrical and Mechanical Services Department Credit Union’s charging order nisi (the “EMSD’s Charging Order Nisi”) over the defendant’s interest in the Property was registered in the Land Registry.

24.On 18 March 2021, the Family Court made a consent order (the “FCMC Consent Order”) in FCMC 6644/2019 that the Husband do within 14 days of the decree absolute and consent of the Housing Authority (the “HA”) transfer all his right and interest in the Property to the Wife subject to existing mortgage. It is noted that by then the Wife had changed to the current solicitors, YM Laywers LLP (“YML”), which she now engages for the present proceedings.

25.On 7 April 2021, EMSD’s Charging Order Nisi over the defendant’s interests in the Property was made absolute.

26.On 31 May 2021, the plaintiff filed an application for a charging order over the defendant’s interest in the Property.

27.On 18 June 2021, the FCMC Consent Order was registered in the Land Registry.

28.On 13 September 2021, the HA issued a conditional consent to the Husband and the Wife.

29.On 18 January 2022, charging order nisi (the “Plaintiff’s 2^nd CON”) over the defendant’s interest in the Property was granted in favour of the plaintiff.

30.On 26 January 2022, the Plaintiff’s 2^nd CON was registered in the Land Registry.

31.On 4 May 2022, the Plaintiff’s 2^nd CON was made absolute (the “Plaintiff’s 2^nd COA”). The Plaintiff’s 2^nd CON and the Plaintiff’s 2^nd COA shall collectively be referred to as the “Plaintiff’s COs”.

32.On 7 June 2022, the Plaintiff’s 2^nd CON was registered in the Land Registry.

33.On 27 September 2022, the Wife filed the Discharge Summons.

34.On 24 May 2023, on YML (on behalf of the Wife)’s request, the HA issued a new no-objection letter and gave conditional consent for the transfer of the defendant’s ownership of the Property to the Wife.

35.On 2 June 2023, YML (on behalf of the Wife) wrote to the Husband demanding his urgent reply concerning transfer of his interest in the Property to the Wife pursuant to the FCMC Consent Order.

36.On 11 August 2023, the Husband and the Wife executed a deed of assignment (the “2023 Deed of Assignment”) whereby the legal estate in the Property was assigned to the Wife alone. The 2023 Deed of Assignment was prepared by YML, and the execution of the Husband and that of the Wife were both witnessed by a solicitor of YML.

III. WIFE’S CASE

37.I shall set out the Wife’s case in this Part.

38.Around January 2008, the Wife became interested in acquiring a flat under the HOS. She discussed this with the Husband, but the Husband refused to make any contribution. In response, the Wife made it clear to the Husband that if the Husband refused to make contribution, then he should not have any interest in the Property. The only reason for registering the Property in the Husband’s name as a joint tenant with the Wife was that the Husband was a male chauvinist, thinking that if he did not have a name in the Property, he would appear to others incapable to sustain the family and to be reliant on the Wife. Thus, at the time of acquiring the Property, the Husband and the Wife had a common intention that although they would both be the registered owners, only the Wife would be the true owner.

39.In reliance on such common intention, the Wife was responsible for the deposit and the mortgage payment for the Property. The funds came from herself, her mother and loans from her friends.

40.In other words, the Wife raises a case of common intention constructive trust. Alternatively, the Wife relies on resulting trust.

41.Further, based on the 2 Sept 2020 Consent Summons and the 2020 Discharge Order by Consent, the Wife also raises that the plaintiff was debarred by issue estoppel or Henderson v Henderson abuse of process from applying for the Plaintiff’s COs, and thus the COs should be discharged.

IV. PLAINTIFF’S CASE

42.Understandably, the plaintiff, being a moneylender, does not have any positive evidence to traverse the Wife’s case on trust. The plaintiff puts the Wife’s case to strict proof.

43.The plaintiff disagrees that there was any estoppel or Henderson abuse.

V. ISSUES

44.Therefore, the issues are:-

(1) Whether the plaintiff’s applications for the COs were not permitted by issue estoppel;

(2) Whether the plaintiff’s applications for the COs were not permitted by Henderson v Henderson; and

(3) Whether there is the common intention constructive trust or alternatively resulting trust as the Wife alleges.

VI. ISSUE ESTOPPEL

45.In the present case, the Wife submits that the 2020 Discharge Order by Consent made on 11 November 2020 to discharge the Plaintiff’s 1^st CON gives rise to issue estoppel that bars the plaintiff from arguing that the Wife is not the sole owner of the Property or that the Husband is a true joint tenant of the Property.

46.For issue estoppel, the Court of Appeal (comprised of Kwan VP, Au and Chow JJA) had this to say in §74 of Chung Pui Tong v Qian Zhen [2024] 5 HKC 441:-

“Issue estoppel may arise where a particular issue forming a ‘necessary ingredient’ in a cause of action has been litigated and decided. In subsequent proceedings between the same parties, it precludes a party ‘from contending the contrary of any precise point which, having once been distinctly put in issue, has been solemnly and with certainty determined against him’. Issue estoppel applies to matters ‘fundamental or cardinal’ to the prior decision, ‘legally indispensable’ to the conclusion, or ‘necessarily involved in it as its legal justification or foundation’, as opposed to ‘steps in the process of reasoning tending to establish or support the proposition upon which the rights depend’.”

See also Re Yip Kim Po [2022] 3 HKLRD 356 at §17 per Linda Chan J citing Blair v Curran (1939) 62 CLR 464.

47.For an issue estoppel (which is a res judicata), the following elements have to be established:-

“(1) the decision, whether domestic or foreign, was judicial in the relevant sense;

(2) it was in fact pronounced;

(3) the tribunal had jurisdiction over the parties and the subject matter;

(4) the decision was: (a) final; (b) on the merits;

(5) it determined a question raised in the later litigation; and

(6) the parties are the same or their privies, or theearlier decision was in rem.”

See Re Yip Kim Po, supra at §17 citing Re GW Electronics Co Ltd [2021] HKCFI 1869.

48.Further,

“Except in special circumstances where this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully. If the relevant point was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised.”

See Re Yip Kim Po, supra at §18 citing Test Claimants in the Franked Investment Income Group Litigation & Ors v Commissioners for Her Majesty’s Revenue and Customs [2021] 1 All ER 1001.

49.A consent order may give rise to issue estoppel “if the parties in the second action are the same as the parties to the first and the issues raised in the second action were necessarily compromised in the first action” (original emphasis): see Chung Pui Tong v Qian Zhen, supra at §75 citing Jellett v Brooke & Anor [2017] 1 WLR 1177.

50.In the present case, the 2020 Discharge Order by Consent (quoted in §21-22 above) effectively disposed of two applications, one being the plaintiff’s application for making the Plaintiff’s 1^st CON absolute and the other being the Wife’s 2019 Discharge Summons to discharge the Plaintiff’s 1^st CON. The Plaintiff’s 1^st CON was discharged but it must be noted that at the same time, the Wife’s 2019 Discharge Summons was dismissed. In other words, the Plaintiff’s 1^st CON was discharged not because the parties or the Court agreed to the Wife’s 2019 Discharge Summons. It is clear that the 2020 Discharge Order by Consent was made because both parties withdrew their applications. A concession by the plaintiff that the Wife was the sole owner was not a “necessary ingredient” for the consent, because (1) the Wife’s 2019 Discharge Summons was also withdrawn at the same time, which would in no way mean that the Wife conceded she was not the sole owner of the Property; and (2) the plaintiff made it clear before entering into the Consent Summons that it did not admit to the Wife’s case and requested “with liberty to apply”. Although the 2020 Discharge Order by Consent did not contain the term “with liberty to apply”, by applying the principles governing the construction of contract to construing the 2020 Discharge Order by Consent (see Chung Pui Tong v Qian Zhen, supra at §57), considering the factual matrix where the Wife wrote in reply in her letter on 26 June 2020 that “your offer… is agreeable to our client and is hereby accepted”, I do not accept any suggestion that in the letter or the 2020 Discharge Order by Consent, the omission of “with liberty to apply” would mean that the plaintiff, out of a sudden, accepted that it would not contest in the future. This also conveniently addressed the Wife’s submissions that had the plaintiff intended to reserve the right to make a fresh application, it could and should have done so expressly in the order. In my view, with this correspondence as the context, it was reasonably clear to both parties that the Wife would be able to do so. This must be so particularly when for the withdrawal of the Wife’s 2019 Discharge Summons, there was also no express provision that the Wife would be able to raise again the allegation that she was the sole owner. Thus, the absence of such expression of reservation to apply further does not give the Wife’s case any milage.

51.The Wife’s counsel, Mr Sam Ng, refers me to two cases in support of a proposition that “issue estoppel may arise even if there is a stated non-admission of the issue in question, so long as the issue in the first proceedings were necessarily determined by the order made therein”. I have no problem with this proposition as a general proposition, but one has to apply the law to the facts with regard to context. Both cases are, in my view, materially distinguishable:-

(1) In TCWF v LKKS (No 1) [2014] 1 HKLRD 896, which was an ancillary relief proceedings, the wife made a section 17 application where the wife alleged that the husband and his father had committed fraud. Eventually, the matter was disposed of by way of a compromise, by which the wife’s claim was disposed of by a consent order that no order was made, with no admission from the husband and father to fraud as alleged by the wife. The wife now would like to set aside the compromise. It is in this context that the Court of Final Appeal held that the compromise had necessarily compromised the wife’s fraud allegation. Specifically, the non-admission came from the parties not barred by issue estoppel, while the wife, barred by issue estoppel, did not make any admission or non-admission. In the present case, the distinctive difference, in my view, is that (1) it was the plaintiff who made it clear that there was no admission, “with liberty to apply”; and (2) the Wife’s 2019 Discharge Summons (which could be allowed only if she would establish that she was the sole owner) was withdrawn at the same time. While the plaintiff made no admission, looking at the withdrawal of the Wife’s 2019 Discharge Summons alone, one would think that the Wife had compromised her position on sole ownership. However, like the non-admission from the plaintiff, the Wife, in the correspondence, also reiterated her sole ownership, but she also at the same time stated that for saving costs, she would not pursue her application should the plaintiff not pursue its application. In this context, it is reasonably clear to any objective bystanders that nothing was compromised by the 2020 Discharge Order by Consent; and

(2) In SFC Finance Co Ltd v Masri (No 3) [1987] QB 1028, an important factor the Court refused the second defendant there to freshly pursue an issue eventually not pursued in a previous proceedings despite the express qualification in the previous proceedings to the Court that the second defendant made no admission to the issue, is that upon the express qualification made to the Court, the plaintiffs’ counsel immediately warned that with the wife’s not pursuing the issue, the issue would be regarded as established in favour of the plaintiffs, and although there was some reservation by the Court about the correctness of the plaintiffs’ warning, the Court made it clear it was a matter for the parties on other occasions. There and then, the second defendant, despite the warning, still persisted that she would not pursue the issue. It was in this context that the second defendant was regarded as having been afforded ample opportunity, even with a warning, to pursue the issue but she still chose not. It is a far cry from the present case, where the plaintiff made it clear that its offer was “with liberty to apply”. Although in the Wife’s reply, this phrase was not repeated while the other parts of the offer were repeated, the Wife clearly said that “your said offer as made in your said letter is agreeable to our client and is hereby accepted”. Objectively understood, assuming that both parties acted in good faith (and there is no suggestion that the Wife deliberately omitted to repeat “with liberty to apply” to, so to speak, trap the plaintiff), the plaintiff’s offer was indeed accepted.

52.In the circumstances, I hold that there is no issue estoppel on the ownership of the Property, and thus the plaintiff is not debarred from pursuing this issue now.

VII. HENDERSON V HENDERSON

53.For Henderson v Henderson, “the essence of the doctrine is that a party ought generally not to be permitted to raise in subsequent proceedings matters which that party could and should have raised in earlier proceedings”: see Ko Hon Yue v Chiu Pik Yuk [2012] 15 HKCFAR 72 at §82. In that case, the Court of Final Appeal made elaboration at §83:-

“(1) The starting point is to recognise that the doctrine is founded on an abuse of process… it ought only to be applied when the facts are such as to amount to an abuse; otherwise, there is a danger of a party being shut out from bringing forward a genuine subject of litigation…

(2) … a party ought not lightly to be deprived of the right to have serious matters litigated…

(3) It must therefore be essential when striking out a claim on this basis (and thus preventing a litigation of that claim) that an abuse is found to exist in seeking to raise in subsequent proceedings claims or issues which could and should have been raised in earlier proceedings. This abuse will usually take the form of the other party being ‘vexed’ (or in some cases, the terms ‘oppressed’, ‘unjustly harassed’ or ‘unjustly hounded’ are used) by the subsequent set of proceedings…

(4) The abuse can also take the form of the administration of justice being brought into disrepute… the courts in Hong Kong must now, when exercising their procedural powers, increasingly bear in mind not just the parties before them in any particular litigation but also the position of other litigants in the court process…

(5) In examining aspects such as abuse, the court is concerned with balancing interests: not just those of the litigants before it, but also taking into account the other interests involved in the administration of justice. It is important therefore here to emphasise that when the court is dealing with the Henderson v Henderson type of abuse, it is not looking at an absolute bar to litigation such as issue estoppel or cause of action estoppel. On the contrary, in considering this type of abuse, the court is required to assess a number of factors and balance competing interests…”

54.In the present case, the ownership of the Property was an issue already raised in the previous proceedings, but not an issue that was not raised but could have been raised. Thus, this is not a situation where the Henderson v Henderson is invoked. This is a situation where usually, issue estoppel is invoked, a matter which I have dealt with above.

55.Insofar as Mr Ng (for the Wife) would like to argue broadly that the plaintiff’s present application is a Henderson v Henderson abuse of process, I disagree. By the matters mentioned in §50(1) and (2) above, I hold that it was clear to both parties and also the Court making the 2020 Discharge Order by Consent that the issue of the ownership of the Property may arise again in the future. In other words, the dispute would remain extant. In the circumstances, I cannot see how the judicial resources would be wasted in now resolving an extant dispute. On the contrary, it would be contrary to the administration of justice in such circumstances if the parties would not be allowed to pursue the issue now.

56.Therefore, I hold that the plaintiff is not debarred by Henderson v Henderson.

VIII. COMMON INTENTION CONSTRUCTIVE TRUST

A. Legal principles

57.In Leung Hang Lin v Lam Mei Yung [2019] HKCFI 2819, DHCJ Alexander Stock SC summarised at §8 the legal principles in relation to common intention constructive trust as follows:-

“(1) The starting point is that equity follows the law. There is a presumption that the beneficial interest follows the legal interest. Where the property is registered in a defendant’s name, the plaintiff bears the burden of showing, on the balance of probabilities, that the defendant held the property on trust for him or her such that the beneficial ownership differs to the legal ownership...

(2) The burden may be discharged by showing that: (i) there was a common intention held by the plaintiff and the property owner at the time of the purchase (or exceptionally, thereafter) that the beneficial ownership was to be different to the legal ownership; (ii) the plaintiff altered his or her position in detrimental reliance upon the common intention; and (iii) it is unconscionable for the property owner to assert ownership in reliance on the legal title. The constructive trust is constituted by the plaintiff’s detrimental reliance on the common intention and the unconscionability of the legal owner departing therefrom…

(3) The approach to ascertaining common intention is objective. One looks to the intention of each party which was reasonably understood by the other party to be manifested by the first party’s words and conduct…

(4) The doctrine is sometimes described as having two limbs. First, where at any time prior to the acquisition (or exceptionally, at a later date), there is an agreement, arrangement or understanding reached between the parties as to how the property is to be held beneficially, based on evidence of express discussions. Second, where there is no evidence to support such a finding but the court relies on the parties’ conduct as a basis from which to infer a common intention. There is some authority that under the second limb, direct contributions to the purchase price by a party who is not a legal owner will readily justify the inference…

(5) However, the modern approach is to assess the parties’ common intention by a holistic approach having regard to the context and the particular facts. The court is not constrained to consider only pure direct monetary contributions to the purchase price. In a Chinese setting, especially for the older generations, where explicit discussions on property rights within the family are not that common, the court has to pay more regard to circumstantial matters…”

58.In approaching the evidence, I have to bear the domestic context in mind. In particular, the following passages from previous decided cases, not legal principles and not to be treated as such, are just common sense with which the Court should approach the evidence and make fact-findings:-

(1) “The presumption of a beneficial joint tenancy is not based on a mantra as to ‘equity following the law’ (though many non-lawyers would find it hard to understand the notion that equity might do anything else). There are two much more substantial reasons (which overlap) why a challenge to the presumption of beneficial joint tenancy is not to be lightly embarked on. The first is implicit in the nature of the enterprise. If a couple in an intimate relationship (whether married or unmarried) decide to buy a house or flat in which to live together, almost always with the help of a mortgage for which they are jointly and severally liable, that is on the face of things a strong indication of emotional and economic commitment to a joint enterprise. That is so even if the parties, for whatever reason, fail to make that clear by any overt declaration or agreement” (emphasis added): see Jones v Kernott [2012] 1 AC 776 at §19; and

(2) “In a domestic context, particularly in relation to a matrimonial home, the court is not constrained in that exercise by pure direct monetary contributions to the purchase price, see the Judgment of Baroness Hale at [69] in Stack v Dowden. In a Chinese setting, especially for the older generations, where explicit discussion on property rights within the family are not that common, the court has to pay more regard to circumstantial matters” (emphasis added): see Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327 at §1.6 per Lam VP.

B. Wife’s evidence in respect of common intention

59.The Wife has filed six affidavits in support of the Discharge Summons. In respect of how she came to an agreement with the Husband concerning the interest in the Property, in her 1^st affidavit sworn on 10 October 2019, she said:-

“7. At the time of our marriage, we lived in a flat which was rented by me only. In or about 2008, I wanted to purchase my own property so that the Defendant and I could start a family together…

9. At the time of purchasing the Property, I first intended to make the purchase under my sole name since I would be the only person responsible for its purchase price. However, my husband at the time was not happy about it when he felt that he would be humiliated if the ‘man’ of the household was living in a property that was only in the wife’s sole name. I conceded and the Property was purchased in the joint names of the [Husband] and I, where it was assigned to us to us as joint tenants on or about 18 June 2008...

11. On or about 13 May 2008, I made a payment of deposit in the sum of HK$132,205.00 towards the purchase price of the Property. I further made a payment of stamp duty for the purchase of the Property. These amounts were wholly from my own savings and no part of it came from the Defendant…”

60.In §5 of her 2^nd affidavit sworn on 11 November 2019, she said:-

“再補充一點，本人於2008年打算申請購買居屋時已婚，由於本人不符合以單人資格申請居屋，必須以家庭為申請單位。而被告人正如本人的第一份誓章第9段所說，因他的大男人心態，不願以本人的從屬家人身份居住。被告人因而要求成為物業表面上的聯權共有的業權人之一，但實際上本人才是該物業的唯一實際業權擁有人。”

61.In §5 of her 3^rd affidavit sworn on 27 September 2022, she said:-

“On 18th June 2008, I purchased the Property with the intention that the Defendant and I would be holding the entire interest right and benefit of and in Property on trust for myself solely and the Property became our matrimonial home.”

During the oral evidence, the Wife clarified that “the intention” means her intention, not the common intention of the Wife and the Husband.

62.In her 4^th affidavit sworn on 30 August 2023:-

“24. As part of our discussion on getting married, we talked about how we would want to live our lives together after marriage. Since neither of us earned a lot and I didn’t want to share my hard-earned money with him, we agreed that we would keep separate finances after marriage, and neither of us would meddle with how each other earns and spends their money…

26. After getting married, as part of our agreement to keep separate finances, we did not open a bank account under our joint names. This remains the case for the entirety of our marriage (and even now) even after the Property was purchased or after our son was born…

28. Around January 2008, I learned that the Hong Kong Housing Authority (“Housing Authority”) was about to invite applications for purchase of its sale of Home Ownership Scheme (“HOS”) flats…

29. I was concerned I did not have the necessary deposit at the time given the savings of myself and the Defendant have been exhausted by planning our marriage ceremony…

31. Given the above, I first discussed purchasing a HOS flat with the Defendant. This must have occurred around January or February 2008.

32. The Defendant told me that he would not contribute to paying the deposit. He said he was unemployed at the time and thus he could not afford to contribute to paying the deposit and mortgage repayments. However, I insisted that we should purchase a HOS flat as it was better to purchase a home for ourselves rather than paying rent to a landlord. The Defendant insisted on his refusal and said that he would refuse to be responsible for anything even if we were successful in our ballots.

33. I also asked the Defendant that, if he was unwilling to help with purchasing a flat, whether his parents would be willing to help to loan or gift a certain amount to contribute to the deposit, and I or we would repay them on a monthly basis (if it was a loan). The Defendant rejected this idea as he said that his parents are very tense when it comes to money and they would not lend money to others, even to their own son…

35. Therefore, I thought that asking the Defendant or his parents for money to contribute the deposit would be impracticable as the chance of them actually agreeing would be almost zero… the Defendant was against the idea of purchasing a flat in the first place. As a result, we did not ask the Defendant’s parents for contribution to the deposit.

36. Having ascertained that neither the Defendant nor his parents would contribute to the deposit, I said to the Defendant that if we are indeed successful in our ballots, he should not expect he would have a share in the property to be purchased, as he said he would refuse to contribute to the deposit and mortgage repayments. I remember saying roughly ‘如果真係有機會中嘅時候，你唔好諗住你有份，因爲你話你唔供㗎嘛， 所以你唔好諗住可以分到乜野’.

37. In view of the above, I came to request my parents for help to purchase a HOS flat.

38. On 28 February 2008, the first day of the application period for the Scheme, my father obtained the application form and information brochures for me…

43. After obtaining the application form, I decided to ask my parents for financial assistance to pay the deposit and gathered my parents and the Defendant for a meal to make my request. I requested to borrow HK$150,000 from my mother so as to allow me to purchase a property within HK$1,500,000, as I considered HK$1,500,000 as the ceiling of what I could afford. My mother accepted my request immediately and said she would provide all the money required for me to pay the deposit. She said to me just treat it as a wedding gift to myself from my parents and I did not have to repay her. Specifically, she said that it was a wedding gift for me as her daughter… My father just went along with what my mother said as it was his personality to defer to my mother in financial matters.

44. My mother told me that she liquidated some of her stocks to help gather a sum of money to gift to me. I also understand that my parents have saved money from the monthly contributions to family expenses given to my mother by my father and my elder and younger sister…

46. Before filling in the application forms, I asked the Defendant again whether he would contribute to the deposit or mortgage repayments. He said he could not and did not want to do so, as he did not want to be burdened with such obligations.

47… He always said to me that he was in a different position as me, as I was an estate agent and could earn commission from my sales, and that I had a better educational background than he did (which was untrue), so it was easier for me to afford to make mortgage repayments for the Property. He further said that to him, to have him make mortgage repayments would deprive him of his meaning of life… so he insisted he would refuse to make repayments for the Property or contribute to the deposit for the Property.

48. Given the Defendant’s response, I said I would not force his hands. I said I would be responsible for paying the deposit and the mortgage repayments for the Property. However, the Defendant has to agree to make the application to the Housing Authority with me as a family so that we could get a bigger flat. The Defendant agreed to cooperate with me on the explicit basis that he did not have to pay anything. I thought it was a good deal for him… I reminded him that he has to remember he has no interest in the flat to be purchased, and if the flat is ever sold, he would have no share in the proceeds… The Defendant replied that he didn’t care and the flat to be purchased would be mine, saying along the lines “得啦，層樓你嘛，我先唔會要。” So at the end we applied to the Housing Authority in the capacity of a family.

49. With my mother’s assurance, I decided to go ahead with the plan to purchase a HOS flat under the Scheme…

52. When the time came to select which specific flat to purchase, we had to attend the office of the Housing Authority at Lok Fu, Kowloon….

53. The staff of the Housing Authority asked us whether we would like there to be one or two legal owners of the Property. I immediately said that only my name should be put down as the owner. The Defendant’s mood soured and we began having an argument in front of the staff of the Housing Authority. He asked why should I be the only legal owner of the Property when we are a married couple?

54. I was very embarrassed as I did not want to have an argument in front of the staff of the Housing Authority in public. The process of purchasing the Property was very hurried. The staff of the Housing Authority would call each ballot number to complete the purchase, and flat numbers displayed on the screen as being available for purchase were disappearing fast as each buyer completed their purchases before my ballot number was called. I was very worried we would lose the opportunity to buy the Property as it may be snatched by other people being called to complete the transaction….

55. Given the intense pressure, I accepted that the Defendant could put his name down as a co-owner, saying to him along the lines of “OK，寫你個名都得，但係你要記得即使我寫你個名，但係你係冇份嘅。” I said so because I was anxious in making clear I would be the only real owner of the Property as I would be paying for the entire deposit (funded by my mother) and will likely be paying all the mortgage repayments while he refused to pay for anything but expects to be an owner on paper. He replied that “Ok我知道我冇份，只係掛名業主，我只係唔想俾人覺得我要老婆養， 結咗婚都冇錢養老婆，要老婆養我，住老婆物業。”…

56... the Defendant and I had to arrange a mortgage with Bank of China (“BOC”). The BOC staff actually set up an area in the Housing Authority’s office in Lok Fu, so we arranged a mortgage with them on the same day. The BOC staff asked whether we would be making mortgage repayments out of a joint bank account. I asked the BOC staff that if the Property was under joint names, could I make repayments from a bank account under my name only. The BOC staff replied this can be done. I looked at the Defendant and asked him whether he would contribute to mortgage repayments. He maintained that he would refuse to make repayments and wouldn’t open a joint bank account with me for that purpose, saying that “梗係唔聯名啦， 聯名姐係我要俾錢落銀行， 我都無份， 層樓你架嘛，梗係你自己一個人供啦。” So the arrangement was made that while the Defendant and I became the mortgagors (as we had to because we were the joint legal owners of the Property), the mortgage repayments would come out of a bank account held by myself only.

57. After completing the necessary procedures on the day, we sat down for lunch in Lok Fu and I asked the Defendant again whether he would make contributions to mortgage repayments. He insisted that he would refuse to do so. So I thought I had to remind the Defendant again that he has no interest in the Property as I would be paying for the deposit and the mortgage repayments. I said to him roughly along the lines of “呢層樓雖然落左你個名， 但係你唔好諗住你有份， 因爲啲錢係我媽咪出嘅， 同埋你講過， 就算抽到， 你都唔會負責供， 所以你只係掛名業主，你係無份嘅。一旦發生咩事， 你係無得分嘅。日後如果有機會賣出嘅話，你一分錢都唔可以分。The Defendant said along the lines “得喇， 知喇，你唔洗成日提啦，我唔會同你爭。層樓你㗎嘛， 我唔會咁衰冇出錢仲要攞著數。”.

63.Her 5^th affidavit does not set out her case on the matter.

64.In §5 of her 6^th affidavit sworn recently on 14 October 2024:-

“After going through the entries in my own and my mother’s bank passbooks; spending long periods of time talking to my mother recollecting; and reflecting on the past events which occurred some 16 years ago, I wish to clarify that:

(1) What I said in paragraph 59 of my 4th Affidavit… was incorrect…

(2) My mother did not provide all the funds for the Deposit. My mother provided a total of HK$108,684.17 to me as a gift for the purpose of funding the purchase of the Property (paid partly before the Deposit was paid to fund my repayment of loans from my friends and family… There is now shown to me marked: (a) “CWY-30” a true copy of the relevant pages of the bank book of my mother’s… and (b) “CWY-31” a true copy of the relevant pages of my own bank book covering the relevant period.

(3) The rest of the source of funds for the Deposit came from my own savings gathered from my own income as an estate agent, together with some loans that I obtained from my friends…”

65.The friends are, according to the Wife, Ms Long Miu Yee and Ms Hui Shiu Yuk. These are, according to the Wife, her best friends. In cross-examination, the Wife alleged that she also told or complained to them that the Husband refused to make financial contribution to the Property and that the Husband would not have any interest in the Property.

C. Wife’s failure to call relevant witnesses

66.In my view, the Husband would be an important witness for the Wife. No doubt the Wife and her legal advisers well know the importance of his evidence. At the beginning of the trial, Mr Sam Ng, counsel for the Wife, informed me that his instructing solicitors, that is, YML, sent a notice of the trial to the Husband and received no response. In cross-examination, when asked why she did not ask the Husband at least to write a statement in support of her case, the Wife did not make any suggestion that the Husband was on bad terms with her so that the Husband would not be willing to help or would say something untrue against her. Instead, the Wife explained that she had not been able to find the Husband, alleging that the Husband had cancelled his mobile phone service and that she could not reach him by WhatsApp. She said that the WhatsApp only showed one tick for her messages to him, meaning that the messages were not even delivered. She said, however, the messages had been deleted because her phone lacked the capacity. Thus, I simply cannot see the one tick she mentioned. However, she was able to produce as an exhibit (“CWY-21”) to her 4^th affidavit made on 30 August 2023 the captured screen of the WhatsApp message mentioned in §11 above in support of her allegation that the Husband, out of the blue, sent her the message about his debt.

67.In the circumstances, I do not believe that the Wife was unable to reach the Husband. As a matter of fact, YML was able to reach the Husband and have him in August 2023 sign the 2023 Deed of Assignment before a solicitor of YML to transfer to the Property to the Wife, and August 2023 is the very month when the Wife’s most elaborated affidavit, namely, her 4^th affidavit, was being prepared and filed by YML on behalf of the Wife.

68.In the latter part of her oral evidence, the Wife also said that she hated the Husband and did not want to talk to him. However, I notice that YML was able to reach him for the execution of the 2023 Deed of Assignment in August 2023, the very month when her 4^th affidavit was being prepared by YML. Even if she herself would not like to talk to him, I see no reason why YML cannot do so in the interest of the Wife as their client. As such, there is no good reason why the Wife would have failed at least to apply for a subpoena and attempt to serve it on the Husband to the address whereby. There is also no good reason why the Wife would have failed at least to procure a statement from the Husband at least in August 2023 when the Husband showed up to sign the 2023 Deed of Assignment.

69.I should say a few more words about the Husband’s WhatsApp message. I note that the Husband wrote “錢係我借的，佢哋法例上唔可以收樓的”. The parties do not dispute that it was unclear to what loan(s) the Husband was referring to in the message. That said, the Husband’s message may lend support to the Wife’s case that the Wife was the sole owner, so that the borrower would not be able to obtain vacant possession of the Property. However, when considering the matter with some more care, even if the Wife was not the sole owner, the borrower, whether by way of charging order or security over the Husband’s interest, would not be able to obtain vacant possession anyway, because the Wife was another joint tenant. Though, the borrower would be able to sell the Property to cover at least part of the Husband’s loan(s).

70.This WhatsApp message may also mean, as the Wife read it, that the Husband was going to commit suicide soon. If that was really what the Husband had in mind, then after he passed away, the Wife, being a joint tenant, would become the sole registered owner by survivorship, which would mean that the borrower would not be able to lay its fingers on the Property at all.

71.All this discussion about the Husband’s WhatsApp message above shows that (1) the WhatsApp message itself is not clear about the ownership of the Property; (2) what the Husband had in mind when texting this message may be probative; and (3) unfortunately, the Husband was not made available, or at least the Wife had not made any or any sufficient attempt to make him available, to testify in Court.

72.The Wife’s mother would also be an important witness. The Wife’s case is that “with my mother’s assurance”, she decided to purchase a HOS flat: see §49 of her 4^th affidavit as quoted above, and it was with her mother’s financial assurance that she was able to pay the deposit on her own. If the mother’s assurance was not established, the Wife’s case that she decided to purchase the Property with her own source of fund for the deposit would fall away. If this case would fall away, then it would be difficult for her to say, as she now alleges, that time and again, she told the Husband that if the Husband would not make contribution, then she would pay on her own and she would be the sole owner while the Husband would have no interest in the Property.

73.When asked why she did not ask her mother to give evidence or at least write a statement, the Wife explained that her mother was getting to 70 and not in good health, and she would like to avoid troubling her. That said, there is no evidence of her health conditions, and the Wife would take the trouble to have “long talks” with her about what happened, according to §5 of her 6^th affidavit as quoted above. If the passbooks of the Wife and of her mother produced to the Court are self-explanatory to support her case that her mother transferred money to her for the deposit for acquiring the Property, then I would have some understanding why her mother was not called. However, the passbooks are not, but are rather confusing. The best example is the entries of 15 April 2008 in the Wife’s bank book. On that day, the opening balance of the Wife bank account was HK$10,888.74. Then, the Wife’s mother transferred to her HK$8,684.17, making up a total of HK$19,572.91. The Wife, in her affidavit and oral evidence, alleged that this HK$8,684.17 was transferred in anticipation that the Wife would be able to pay the deposit. However, on the very same date, the Wife transferred out HK$17,368.34, which must include a substantial part of the Wife’s mother’s fund. When asked what the transfer out was, the Wife was unable to give any answer. At one point, she said that it may be for something else. But when asked what that could be, she then said that during that time, her mother transferred funds to her only for the deposit. However, it was impossible that the transfer out in April 2008 was for the deposit, because the deposit was only paid in May 2008. When suggesting to her that this may be for acquisition of stock because of the odd cents of this amount, her answer was that there was such a possibility. The Wife also alleged, for the first time, that her mother gave her about HK$100,000.

74.The gist is that while the Wife alleges that the money was for deposit, in all likelihood, it was not. Her mother may have some explanation, but the Wife did not even ask her mother to write a statement, even though she allegedly had “long talks” with her. The Court always assesses witnesses with regard to their ages and health conditions (if proved). In my view, the Wife’s mother’s age and alleged health conditions are not good reason for not coming to Court to assist her daughter.

75.Further, there is also no good reason at least to produce her father. Her father was also at the scene when her mother promised to gift her money for the deposit, as mentioned in §§43-44 of the Wife’s 4^th affidavit. When asked why she did not produce her father, the Wife admitted that her father’s health does not prevent him from giving evidence, but she did not think about asking him to give evidence even though according to her, her mother could not.

76.Part and parcel to the Wife’s case about her own fund to pay the deposit is her case that in May 2008, she borrowed from her friends to make up the deficiency of funds after she borrowed from her mother. Her friends are Ms Long Miu Yee and Ms Hui Shiu Yuk, the very same friends to whom the Wife alleges she told or complained about the Husband’s refusal to make financial contribution to the Property and his lack of interest in the Property. There is not a shred of documentary evidence of the loans, respectively in the sum of HK$30,000 from Ms Long and HK$70,000 from Ms Hui. The Wife does not refer to any entry of her passbooks for these loans. There is not a note of the loan. There is not a statement from Ms Long or Ms Hui. These loans would be something that happened 16 years before the Wife made her 6^th affidavit. The Wife has not explained how she managed to remember all these after all these years, but not earlier when she was making her 4^th affidavit on 30 August 2023, even giving her the benefit of doubt that she was overwhelmed by all the events taking place in 2019 when preparing her 1^st, 2^nd and 3^rd affidavits where she did not even give the details as in the 4^th affidavit. Further, her friends would be able to testify to the complaints the Wife allegedly made to them about the Husband. Therefore, the most natural course to take is to ask her best friends to assist. The Wife’s reason for not calling them is that they do not want to get into trouble. However, given the high stake in their potential evidence, I do not accept that the Wife’s reason is a good reason for not calling any of them.

D. Wife’s own evidence far from satisfactory

77.The Wife’s failure to call all these witnesses without good reason does not necessarily mean that the Wife would fail her burden. She has her own evidence as the only witness to support her own case. However, her evidence is far from satisfactory. Below are a few examples.

78.First, as mentioned in §8 above, the Wife and the Husband attempted to transfer the legal title to the Property to the Wife solely back in 2015. The Wife’s explanation is that in May 2014, she discovered the loans of HK$84,000 and HK$150,000 borrowed by the Husband from HSBC and Citibank respectively (mentioned in §7 above), and started to worry that the Husband may mortgage the Property for loans. For transfer of title of a HOS property, the HA’s approval would be necessary. In their application form (signed by the Wife and the Husband) to the HA for such approval, as mentioned above, the reason provided for the application was “Gift from Husband”. This reason is contrary to the Wife’s case that the Husband had no interest in the Property at all. In cross-examination, she explained that this reason was suggested by the then solicitors, CMT, who was also solicitors engaged by her employer. She did not correct this reason suggested by CMT because she only cared about how the title could be transferred and relied upon CMT’s expertise, and was reluctant to tell CMT too much for fear that CMT, also being her employers’ solicitors, would gossip about her own personal affairs among her colleagues. I do not accept such explanation for both the Wife and the Husband to sign a form containing a false statement for the following reasons:-

(1) The HA may reject the application. In such circumstances, it would be all the more important for the Wife to make the reason (if true) clear in any record that the Husband in the first place did not have any interest in the Property but only a mere nominal owner. Filling in the reason “Gift from Husband” would imply that indeed the Husband had some interest in the Property, and this would not be conducive to the alleged purpose of avoiding the Husband mortgaging the Property for loans if HA rejected the application;

(2) There is nothing to suggest there is any sinister in this reason (if true). Also I do not find this reason (if true) would prejudice the Wife’s eligibility under the HOS because according to the Wife herself, while she applied for a HOS property as a family unit, in purchasing the Property, the staff of the HA asked her whether she would like to register it in her own sole name or jointly with the Husband;

(3) Both the Wife and the Husband signed the application form. If the Wife was right that this reason in the form was actually not correct, she is effectively saying that the Husband also blindly signed the form without regard to the truthfulness of the form at the best and worst, like her, knowingly signed the form knowing that there was a false statement. This is a serious allegation which I am not prepared to make in the absence of the Husband; and

(4) I do not accept Mr Ng’s submissions (for the Wife) that this form was discovered by the Wife herself which would appear against her interest and thus the Wife’s evidence explaining this form should be more credible and accepted. This form had to be discovered, whether or not for or against the Wife’s case. In my view, the Wife could not escape from such responsibility and the plaintiff would in any event be entitled to apply for discovery from HA as well. Thus, I do not read much from the Wife’s discovery of this form on her own volition.

79.Pausing here, I find, absent any valid challenge to what this means on the face of its own, that the reason stated in the application to the HA for transfer in April 2015, namely, “Gift from Husband”, is true. As regards why the Husband would like at that point of time to gift his interest to the Wife, there is not sufficient evidence for me to make any finding, although the Husband’s loans from the banks may well be a catalyst.

80.The second example of the Wife’s evidence being far from satisfactory is that the farther from the material events, the more details she embroiled her case with. As can be seen from the extensive quotes of her affidavits above, her 1^st, 2^nd and 3^rd affidavits lack any details. In cross-examination, she explained that the sudden surface of the Husband’s indebtedness in May 2019 coupled with collection agents reaching her for the Husband’s indebtedness overwhelmed her so much that she simply did not have the time to think about the details. I accept such explanation in relation to her 1^st and 2^nd affidavits, sworn on 10 October 2019 and 11 November 2019 respectively. However, for her third affidavit of 27 September 2022, sworn after the Discharge Order in 2020 and for the present application, I do not accept this explanation. More than 3 years have passed, and even her family proceedings had been concluded by the FCMC Consent Order in March 2021. By the time of her third affidavit on 27 September 2022, the main proceedings she had was in relation to the EMSD’s Charging Order Nisi made on 7 April 2021 and the Plaintiff’s 2^nd CON. To all these, the Wife would and should have been able to amass sufficient focus to prepare her third affidavit, being the supporting affidavit of her Discharge Summons. If by September 2022, she did not have sufficient time and focus to do so, I do not see any reason why she had to rush so much that she would not be able to set out the details as she did only almost a year later in her fourth affidavit sworn on 30 August 2023.

81.Worse, she added more details during cross-examination. In cross-examination, she said that at the beginning, she intended the Property to be in the joint name of hers with the Husband. She said that it was only when purchasing the Property, the staff of the HA asked her whether she would like to acquire the Property in a single name or joint names did she insist on a single name. None of these were mentioned in her affidavits. Such allegations were not something that the Wife should tell only upon being asked. Such allegations would be central to her case about how she and the Husband came to the common intention she alleges.

82.One more detail she added during the cross-examination I should mention here. She said that in respect of her “argument” with the Husband in front of the staff of the HA mentioned in §53 of her fourth affidavit (quoted in §62 above), the Husband actually conversed with her in a low volume to her ear. As I understand it, the Wife’s allegation that there was an “argument” before the staff was to explain that she felt embarrassed and so, coupled with the fear that she would be passed if no decision would be made quickly, she immediately yielded to the Husband’s request that his name should also be added. However, now the Wife alleges that the Husband only spoke to her in a low volume, I did not see how it could be regarded as “argument” and/or causing embarrassment. While I do not expect one to remember each and every detail of an event that happened more than a decade ago, I do not expect either that there would be material inconsistencies within one single witness’ evidence. Such inconsistent addition reflects negatively on the quality of the Wife’s evidence.

83.A further example of the Wife’s evidence being far from satisfactory is the Wife’s failure to produce the relevant pages of her passbook for the period of June 2008, the very month during which the Wife paid her deposit. In particular, while as mentioned above, in her 1^st affidavit, she alleged that all the deposit came from her own savings,, the Wife alleges in her 6^th affidavit that on 15 April 2008, her mother transferred HK$8,684.17 to her for paying the deposit, but she on the same day transferred HK$17,368.34 out for a purpose she cannot remember. Further, as mentioned above, in the witness box, for the first time, she alleged that her mother gave her about HK$100,000. In the circumstances, with these odd entries on 15 April 2008 and inconsistency, one would easily understand the relevance and significance of the entries for June 2008 in the light of the Wife’s latest case (inconsistent with her case in her 1^st affidavit) that she paid the deposit with the mother’s funds. In fact, it is her own evidence that the funds came from her mother in April, May and June 2008. However, in failing her discovery obligation, she failed to disclose these pages for the June 2008 entries. On Day 1 of the Trial, when asked in cross-examination, she said that she did not take her passbook to print in June 2008 and thus it was not there. Strangely, in the copies of the pages of the passbook containing May and July 2008, page number “2” were written on the page containing July 2008, making it look as if the page containing May 2008 entries was the first page, and nothing was there between this so-called page “2” and the page containing May 2008 entries. At the end of the first day’s evidence, I asked the Wife to take the originals of the passbooks for the court’s and the parties’ inspection. Very unfortunately, the original of the passbook actually does contain entries for June 2008. When asked about this, the Wife’s answer was that this is something too many years ago and thus she may not remember the matters well. This answer is obviously contrary to her clear answer on Day 1 that she did not bring the passbooks to print. I do not see any reason why if recollection of events many years ago was the reason, she could not have said so on Day 1.

84.I would, however, not go so far as to say that the Wife deliberately concealed those pages initially missing, as I notice that the Deposit was paid in May 2008 and thus the relevance and significance of the June 2008 entries may have been overlooked.

85.With the originals of the passbooks, the Wife added one more detail. She said that the HK$20,000 deposited by her mother into her account on 5 June 2008 was also made for the Deposit. However, for her 6^th affidavit sworn on 14 October 2024, the Wife had “long talks” with her mother, and in the affidavit, she produced extracts of her passbooks and her mother’s passbooks. She was able to point to specific entries to say which ones were mother’s fund for the Deposit. It is highly improbable that the entry of 5 June 2008 would have been missed if this were for the Deposit. Nevertheless, when seeing this entry in the witness box, she then conveniently said that it must be for the Deposit, although she admitted that she had purchased stocks together with her mother.

86.In the circumstances, in my view, the quality of the Wife’s evidence itself is far from satisfactory.

F. Circumstantial evidence for inference of common intention to share the Property

87.On the contrary, the following circumstantial evidence points towards a common intention between the Husband and the Wife the share the Property equally:-

(1) I have found above that the reason stated for the application to HA to transfer the Property to the Wife back in 2015, “Gift from Husband”, to be true. This means that the Husband did have interest in the Property; otherwise, he would not have had anything in the property to gift to the Wife;

(2) The Husband and the Wife got married in September 2007. The Wife admitted that in 2008, she and the Husband was in a good relationship. In response to the suggestion put to her during cross-examination that she loved him and that she loved him so much that she would like to have a family with him, she agreed. In this regard, even if I assume that the Wife’s mother did contribute to the deposit, I would infer that the mother, who was not called to give evidence without good reason, intended this as a gift for both the Husband and Wife rather than the Wife alone: see Lewin on Trusts (20^th ed) §10-089;

(3) The Husband was not only a mortgagor (given that he was a legal owner, he had to be in any event). He was also a borrower. I would note that given that the Husband was the mortgagor, it would be rare for the mortgagee bank to be willing to miss one of the joint mortgagor as a borrower. However, whatever the reason for having the Husband as a borrower, the consequence was that the Husband had personal obligation to repay as well. If the Wife would default, the Husband would have to pay, or he would have to bear the consequences of default, either he having to face the risk of bankruptcy or the Property, being a matrimonial home in which he also lived, would be forfeited. In my view, it is, together with the love relationship in 2008 as the Wife admitted, “a strong indication of emotional and economic commitment to a joint enterprise”, to use the words in Jones v Kernott, supra at §19;

(4) In the domestic context. Husband and wife, especially when their relationship is good, would not and could not make a list of every expense to calculate the amounts of their respective contributions: see Stack v Dowden [2008] 2 AC 432 at §33. They simply contribute to the family. Thus, insofar as there is any suggestion that it would be improbable that the Wife would agree to share the Property with the Husband without the Husband’s promise to make contribution to the Deposit or the mortgage repayment, in my view, even though there is no evidence of the Husband’s contribution direct to the Deposit or the mortgage repayments, I do not find it strange at all that the Husband and Wife would still agree to share the ownership of the matrimonial home (that is, the Property) in 2008, when they were in love and the Husband was making contribution to the family;

(5) The Wife time and again stressed in her evidence that since before they got married, they strictly kept their finances separate. This, in my view, means that if the Wife did agree to add the Husband’s name, this means what this shows, namely, they both have ownership in the Property. All the more the Husband’s name is added as a joint tenant rather than tenant-in-common. This is entirely consistent with the Wife’s own evidence in §7 of her first affidavit that she “wanted to purchase my own property so that [the Husband] and [her] could start a family together”. The word “own” is self-serving, but the purpose to provide a matrimonial home is not in dispute; and

(6) I have not overlooked the Wife’s explanation that she agreed to add the Husband’s name because she wanted to avoid embarrassment and she feared that arguing with the Husband may prejudice her purchase of the Property (see §§53 – 55 of her 4^th affidavit as quoted above). However, such explanation is part and parcel of her evidence in support of her allegation that she was the true owner, the very evidence the quality of which I have found to be poor.

88.Considering such circumstantial evidence and the unsatisfactory quality of the Wife’s evidence, on balance, I find that the Wife and the Husband, at the time of the purchase of the Property, shared a common intention that they would share the Property equally, as indicated by their registration as joint tenants. To avoid any doubt, my such finding means that I have rejected the Wife’s evidence insofar as relates to her allegations that he and the Husband agreed that she was the sole owner and the Husband’s name was added only to make Husband happy.

E. Wife’s financial contribution to the Property

89.The above finding in relation to the common intention is sufficient for me to dispose of the Wife’s claim. For the sake of completeness, I shall say a few words about the Wife’s financial contribution to the Property.

90.As regards payments, I do accept that the Wife did make payments (including the mortgage payments), although it is impossible for me to find the total amount, given that the evidence here is bits and pieces, understandably because the payments were made more than a decade ago. However, I do not accept the Wife’s mere evidence that the Husband made no contribution at all because:-

(1) There were deposits into the Wife’s bank account from time to time. The Wife says that some came from her friends for purchasing stocks together, some from her mother, and for others, she allegedly does not remember. While I would accept that she would not be able to remember any specific sums, it seems odd to me that she cannot even remember who have deposited money into her account from time to time;

(2) Despite the above, the Wife says firmly that the Husband never gave her money. However, given the quality of her evidence as I found above, I do not accept her such evidence as well; and

(3) Further, it is the Wife’s own evidence in §40(a) of her 5^th affidavit that the Husband had “contributed some expenses such as food and dining out, and he ceased to contribute to family expenses around mid-2010”. Thus, it is not that the Husband did not make any contribution at all. Although this may not go direct to the Deposit or mortgage repayments, contribution to the family expenses in a sense freed some of the Wife’s money for mortgage repayments. This, in my view, also constitutes the Husband’s detrimental reliance on the common intention.

91.To conclude, I do not accept the Wife’s evidence that only she made contribution to the Property.

F. Conclusion on common intention constructive trust

92.Therefore, the Wife has failed to prove the common intention constructive trust as she alleges. On the contrary, I find that the Wife and the Husband shared a common intention at the time of the purchaser of the Property that they would share the ownership of the Property.

IX. RESULTING TRUST

93.Resulting trust is a presumption only, applicable when the parties did not have any intention as to the ownership of the Property: see So Man and Anor v Ng Kwok Ching and Anor [2024] HKCFI 687 at §22. Given my finding of the common intention above, resulting trust is not applicable here.

94.Further and in any event, given my finding above that the Wife was not the only one who made contribution to the Property but the Husband also did, there could be no resulting trust in favour of the Wife’s case of sole ownership in her favour: see So Man and Anor v Ng Kwok Ching and Anor, supra at §19.

X. CONCLUSION

95.In the premises, I make the following order:-

(1) Paragraphs 2 and 3 of the Discharge Summons shall be dismissed; and

(2) A costs order nisi that the Intervener shall pay the plaintiff costs of the Discharge Summons, to be taxed if not agreed, with certificate for counsel.

Miss Noel Chan, instructed by Messrs Tang, Wong & Chow, for the plaintiff

The defendant was not represented and did not appear

Mr Sam Ng, instructed by Messrs YM Lawyers LLP, for the intervener