Fung Wai Man, The Person Appointed To Represent the Estate of Fung Kwok Yan (also known as Fung Yan), Deceased (By an Order Dated 23rd September 2019) v. Fung Yuen Lun

HCA 879/2019

[2025] HKCFI 1035

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 879 OF 2019

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J U D G M E N T

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Background

1.This is a dispute amongst the Fung siblings over the remaining assets which comprise the estate of their father who died aged 90. The evidence filed was filled with acrimony, including allegations as to whether one or more of the siblings were the natural issue of the deceased mother, and father. The relevance of much of the evidence is questionable, when the real and more significant issue is whether either parent would in this case have provided by gift for one child, to the exclusion of the others, on the basis only of their blood relationship, without consideration of the natural love, affection and concern which they had nurtured and demonstrated for each other over a period of 6, nearly 7, decades. Relatives are those tied by blood, but the closer kinship of “family” extends to those who are bonded by feelings and factors which are non-biological.

The facts and the dispute

2.On the available evidence, the Fung family had lived a comfortable life in Hong Kong since the 1960s. The Fungs comprised the father Fung Kwok Yan (“Father”), the mother Lam Mei Lin (“Mother”), the eldest son Fung Wai Man (“WM”) who was born in 1950, the second son Fung Yuen Lun (“YL”) born in 1958, and the youngest daughter Fung Chui Ying (“CY”) born in 1968.

3.Father was, until his retirement in 1972, a policeman. In 1967 and 1968, he was able to purchase a total of 4 flats in Hong Kong, which was no mean feat. These properties were:

(1)  Flat B, 12/F, Tun Shing Mansion (“12B TS Mansion”);

(2)  Flat R, 11/F, State Theatre Building (“State Theatre Unit”);

(3)  Flat A, 13/F Tun Shing Masion (“13A TS Mansion”); and

(4)  Flat B, 13/F Tun Shing Masion (“13B TS Mansion”).

4.It is common ground that the properties were purchased in the name of Father’s brother, but that Father was free to dispose of them, and the Family regarded all the properties to be in Father’s sole beneficial ownership at all material times.

5.When Father retired in 1972, he purchased another property at Flat B 19^th floor Comfort Gardens (“Comfort Gardens”), which was registered in the names of Father and Mother, and was where the family lived until the siblings gradually moved out in the 1980s and 1990s. It is not in dispute that Comfort Gardens was jointly owned by Father and Mother and that at the time of his death, Father only had half of the ownership of the property. Father’s pension and the rental income from the properties other than Comfort Gardens enabled the Family to live more than adequately in financial terms, and for WM and YL to be sent overseas in the 1970s to study.

6.Mother had a minor stroke in 2006 and died later in April 2009. Father was in relative good health until September 2018, and a period of hospitalization for him followed in November 2018. He finally passed away on 9 December 2018.

7.Mother had made a will before her death. Under the will, CY was appointed the sole executrix and Mother’s estate was divided equally amongst her 3 children, WM, YL and CY.

8.After Father’s death in December 2018, it was revealed that just 5 days before, on 4 December 2018, when Father was still in the hospital, a sum of HK$8,500,000 (“Disputed Amount”) had been withdrawn from Father’s current account at the Bank of East Asia (“BEA”), a cashier order for the sum was purchased, and the Disputed Amount was deposited into YL’s personal account at the Hang Seng Bank (“HSB”).

9.Dispute obviously erupted amongst the siblings as a result of YL’s withdrawal of the Disputed Amount. YL claims that the Disputed Amount was a gift from Father to him, and that he had simply withdrawn the money from Father’s BEA account and paid it into his newly opened HSB account, all at Father’s instructions and upon Father’s express indication to YL that the money was to be his.

10.In May 2019, legal proceedings were brought against YL in the name of WM, the eldest son and the person appointed to represent Father’s estate (“Estate”) in this action. It is alleged in the Statement of Claim filed in October 2019 that YL had been added as a signatory to Father’s BEA account (in August 2006), and that YL was at all material times dealing with and operating the account as agent and/or trustee of Father and the Estate. The Estate claims that YL’s withdrawal and transfer of the Disputed Amount from Father’s BEA account to YL’s HSB account was an unauthorized misappropriation of money belonging to the Estate, and that YL had acted in breach of the fiduciary and other duties he owed to Father and the Estate. It was claimed that the withdrawal and misappropriation was made without Father’s knowledge or authority, that YL knew that Father had not intended to make a gift of the money to him, or he was otherwise reckless.

11.The Statement of Claim further pleads that the withdrawal and transfer of the Disputed Amount was procured by YL’s undue influence over Father, as YL was one of Father’s trusted sons, that the transaction was manifestly disadvantageous to Father, and that undue influence was to be presumed by virtue of the relationship between Father and YL. The Estate claims a declaration that YL held the Disputed Amount on trust for the Estate, alternatively a declaration that the transaction be set aside, an order that YL repay the Disputed Amount to the Estate, and an account of the Disputed Amount and its traceable proceeds.

12.By the time of Closing, Counsel for the Estate did not advance detailed arguments or submissions on how undue influence was presumed and/or established on the evidence. It was simply submitted that given YL’s admission that Father had placed trust and confidence in him to manage the BEA accounts, the unauthorized transfer of the Disputed Amount clearly suggests undue influence on YL’s part in the absence of any satisfactory explanation as to why a gift of such a substantial sum was made to him.

13.The essential issue in dispute was whether Father had indeed made a gift of the Disputed Amount to YL during the time when Father was in hospital in the interim of September and November 2018.

14.In his Defence, YL made a host of allegations.

15.First, YL claims that Father had favored him over WM and CY, because he was the only child who had a blood relationship with Father. YL pleads that WM was adopted by Father in around 1950, that YL himself was born in 1958 as a result of Father’s affair with one Madam Lee, and further, that CY was adopted by Mother in about 1968 after Mother had undergone a hysterectomy, having suffered from a tumor in the uterus.

16.Secondly, YL pleads various shortcomings of WM and CY since their childhood and/or teenage years, to support his claim that Father had been upset by the behavior of WM and CY, and perhaps in an effort to explain why he was Father’s “favored son”. YL’s pleading includes the following averments:

(1)  Despite Father’s repeated requests, CY had never given any satisfactory answer to Father nor given any account to him in relation to the proceeds of sale of 13A and 13B TS Mansion which were sold in 2008, after Mother’s death.

(2)  CY had failed to return a sum of HK$500,000 she had borrowed from Father.

(3)  CY seldom communicated with Father and they were not on speaking terms by 2016.

(4)  WM had been relying on Father and Mother for financial support from the time he and his wife went to Canada for their studies in mid-1970, and during the time they were living in Canada after their son was born.

(5)  WM did not have any long-term employment when he was in Hong Kong and required his parents to pay for his living expenses.

(6)  Father had been concerned about WM’s gambling habit and the fact that he did not have stable jobs. He was further upset that WM had asked him for money in front of their friends or in public places, and had asked for living expenses from Mother and from Father.

(7)  Upon WM’s return to Hong Kong in the 1980s, he and his family had continued to rely on Father and Mother for support, and WM’s purchase of a property in North Point, Hong Kong was with his parents’ financial assistance.

(8)  After WM and his family all left Hong Kong and emigrated to Canada in 2016, WM rarely returned to Hong Kong and Father was upset because WM did not visit him during WM’s stay in Hong Kong in 2017.

(9)  Father had lived alone with a maid at Comfort Gardens, and YL was the only child who would accompany Father on his medical appointments.

(10)  Since around June 2018, YL had at Father’s request started to manage the affairs of Comfort Gardens.

(11)  The State Theatre Unit was formerly owned by Father’s mother (“Grandmother”) until her death in 1975, and Father regarded the State Theatre Unit as the family’s “ancestral house” and as part of the ancestral estate, such that it should only be passed to YL as Father’s only biological son.

(12)  During the negotiations for the sale of the State Theatre Unit, Father had already told YL that he would pass the proceeds of sale as well as 12B TS Mansion to YL, as they were considered part of the ancestral estate.

(13)  Since June 2018, Father had already started expressing his wish to make a gift to YL of HK$8.5 million, or a sum out of the proceeds of sale of the State Theatre Unit, so that YL could purchase a flat and start a new family life, and in order to keep the proceeds of the sale of the State Theatre Unit “within the family’s biological lineage”.

17.WM and CY deny all the aspersions cast on them. They claim that they had never known, nor had ever been told, that they were not Father’s biological children, and that these allegations made by YL in the Defence were the first they had heard of the matter.

18.In his 4 witness statements, YL referred to more minute details of his allegations and of his complaints against his siblings, which include the following. I have exceptionally set these out in detail as YL’s defence is represented as hinging entirely on them.

(1)  Since childhood, he had been his parents’ favorite child. Mother took him to school every day – even though his school was far from home, in Kowloon.

(2)  WM had frequently bullied him as a child, and Mother had admonished WM and had constantly kept YL by her side, taking YL with her whenever she went out.

(3)  4 years after YL’s birth, Father had been promoted to Staff Sergeant and he was very pleased, saying that his promotion was due to the good luck YL had brought him.

(4)  YL gave graphic details of his visit to Mother when she was in hospital in 1968 (when YL was 9 years old) and claims that his aunt had explained to him during the visit that Mother had just had a hysterectomy.

(5)  In 1968, YL had heard Mother expressing the desire to have a daughter, and YL claims that he (aged 9) had personally accompanied Mother to a nursery on Upper Albert Road, to visit a new born baby girl, and that he had also accompanied Mother when she took the baby girl home. YL claims that that baby girl was CY and that he had helped to look after the baby.

(6)  When WM was only 18 years old, he had started to purchase extravagant items such as clothing, hi-fi equipment and cars, and he had demanded that Father and Mother should pay for these items. According to YL, the parents considered WM to be selfish and lazy. Even after he had found employment with Father’s help, WM still demanded money from Father and Mother.

(7)  WM exerted pressure on the parents to financially support him in his studies in Canada, and the parents had to pay for all the expenses for WM’s wedding in Hong Kong. YL claims that Father did not approve of WM getting married before he had any financial means and before completing his studies, and disapproved of the fact that WM had to rely on Father and Mother for his studies and for his entire family’s living expenses.

(8)  According to YL, WM did not get along with his superiors and colleagues at work, often changed jobs and never had stability throughout his period of employment. When his wife and son were in Canada between 1992 and 1997, Mother had to look after WM’s daily meals in Hong Kong.

(9)  As for CY, YL claims that she was never at home, never took care of household matters, was only fond of being in the limelight, and that Mother had to buy several magazines for CY each day. According to YL, Mother did not like CY’s lifestyle and work, and CY had ignored Mother’s advice.

(10)  Father and Mother were displeased that CY had not told them of her wedding. YL claims that no one from the family had attended the wedding or the wedding banquet. Father had also allegedly complained to YL about CY’s husband (Rambo), and had told YL that he did not trust either CY or Rambo. CY had moved to Macao in 1997 as Rambo worked there as a jockey, but CY still retained a room in Comfort Gardens to which she would return for a few days over the week to play mahjong in the early hours of the night with her friends, and sleep during the day. According to YL, CY did not care about Father or Mother, and became distant from them, much to the parents’ chagrin.

(11)  As Father aged, and as he had felt disheartened by CY and WM, he had appointed YL as the authorized signatory of his BEA account.

(12)  Father had entrusted the sale of the TS Mansion flats to CY, but CY only returned HK$700,000 of the sale proceeds of HK$2.7 million to Father, and Father took this very much to heart.

(13)  After Mother’s death, Father had asked CY for information and documentation to pursue the administration of Mother’s estate, and he had repeatedly asked CY about the whereabouts of Mother’s cash and jewellery, but CY had refused to give a clear account to Father, claiming that Mother’s estate belonged to her solely. According to YL, CY became even more reluctant than before to communicate with Father, and Father was very saddened by CY as a result. YL claims that CY wanted to appropriate all of Mother’s cash and jewellery for herself.

(14)  YL also claims that CY had angered Father on the occasion of his 90^th birthday celebration, by not inviting Father’s usual group of friends and the family of YL’s wife to the birthday banquet she organized for Father, and by making inauspicious remarks. YL further claims that Father was not happy with the location of the banquet.

(15)  Father had allegedly informed YL that CY had ulterior motives in persuading him to sell the State Theatre Unit and the TS Mansion flats. He had also allegedly told YL that he did not trust CY and did not wish CY to take care of the renewal of his domestic helper’s contract, and wanted YL to deal with it instead.

(16)  By 2012, YL had moved back to Comfort Gardens on Father’s suggestion, since CY was only there 3 or 4 days a month, and YL could look after Father. YL claims that from 2012, he had made the sole efforts to take care of Father, as neither WM nor CY would do so.

(17)  From 2012, it was YL who had paid for the upkeep of Comfort Gardens and all the daily living expenses of Father. He accompanied Father on his medical appointments, and when Father went to have tea with his friends. YL would also attend to Father’s daily meals when the domestic helper was on holiday or was away on vacation.

(18)  Even during Father’s hospitalization in November 2018, CY and Rambo had taken a pleasure trip to Japan, and when CY did visit Father in the hospital on 24 November 2018, she had upset Father by insisting on taking a photograph of Father on the hospital bed. YL claimed that Father was very unhappy after the incident and had indicated to YL that he did not wish to see CY and Rambo again. According to YL, Father had ignored CY and Rambo when they visited Father again on 25 November 2018.

19.On the basis of such minutiae of their family life, YL claims that the Disputed Amount was a gift Father had made to him, as he was the favoured and only natural son, and such gift was consistent with and the result of Father’s and Mother’s disillusionment and dissatisfaction with WM and CY.

20.It is of course impossible for the Court now to know the actual intentions of Father. The determination of the contested issue of whether the transfer of the Disputed Amount was a gift to YL can only be based on the inherent probabilities and on what is more probable to be the state of Father’s mind, and his wishes in the final stage of his life.

21.It suffices to say that WM and CY have denied all claims made by YL as to the financial burdens the former had allegedly imposed on Father and Mother, and as to their allegedly cold or poor relationship with Father and/or Mother, without going into the details of the denial. CY in particular claims that she had taken care of Mother, particularly after she suffered a stroke in 2006, until her death in 2009. She had also taken care of Father, and they had had a close and loving relationship, as she was the one who organized events and holidays attended by the family.

22.It should also be stated, at the outset, that this is not the trial of any claims made against CY in relation to any alleged misappropriation of any assets comprising Mother’s estate, nor for accounting to be made by her to the Estate. There is no counterclaim made by YL in these proceedings for any relief relating to any alleged misconduct or act of either CY or WM.

23.Further, this is not the trial of whether Mother’s will is valid, or if she had the mental capacity at the relevant time when the will was made. Despite the aspersions cast by YL on CY, there are no proper pleadings of the claims made by YL relating to Mother’s will and estate, no full evidence is required from CY on these claims, and CY did not come to the trial of these proceedings for a determination of those allegations made against her.

24.I reject Counsel’s suggestion that the Court should make findings on issues such as whether CY had failed to repay the net proceeds of sale of the TS Mansion flats to Father, or had failed to repay an alleged loan of HK$500,000 from Father, and whether WM had relied on Father and Mother for financial support and/or in the purchase of his property. It is also unnecessary, for the reasons to be set out below, for the court to make findings as to whether WM and CY were the adopted son and daughter of Father. In short, the Court’s determination of the key issue in dispute in this action does not turn on whether YM and CY were adopted. The issue is simply whether Father intended and had made a gift of the Disputed Amount to YL (“Gift”). He could have done so even if WM and/or CY were not adopted, but were his biological offspring (as their birth certificates do indicate). Even if WM and CY were adopted, that alone does not mean that Father would inevitably exclude them as beneficiaries of the Estate and would make the Gift to YL to the exclusion of WM and CY. For that reason, Counsel for YL was reminded by the Court that it would not be helpful nor necessary to focus the defence and her Closing on the issue of who were Father’s biological children.

Circumstances leading to the alleged Gift

25.YL’s pleaded case on the Gift is as follows.

26.Since “around June 2018”, Father had started expressing his wish that he intended to give YL HK$8.5 million or a sum out of the proceeds of sale of the State Theatre Unit (which on the evidence was sold in October 2015 when a deposit of the purchase price was paid into Father’s BEA savings account, and completion of the sale took place in January 2016) (paragraph 21 of the Defence). Around that time, Father started urging YL to open a bank account, so that the gift of money could be put in that account. According to the particulars in the Defence, Father told YL at the time that his siblings “had already taken enough” from him and/or Mother.

27.The Defence pleads that as early as January 2017, YL had informed Father that he wished to remarry his wife, after their divorce in 2008. According to YL, Father was very happy and asked YL to purchase a flat so that he could start a new family life (with his then ex-wife and their son). The Defence further states that on 27 July 2018, Father instructed YL to transfer $8.5 million from his savings account to his current account at BEA, as Father intended to make the Gift by drawing a cheque in favor of YL. The reason for the Gift, as stated at paragraph 21 (3B) of the Defence, is that YL was the only child of Father who had a blood relationship with him, that he was the “preferred child”, and because the $8.5 million originated from the proceeds of sale of the State Theatre Unit “which was considered part of (Father)’s ancestral estate” and Father wished to pass the proceeds on to his only child who had a blood relationship with him and to keep the proceeds within the family’s biological lineage. It could also “enable (YL) to purchase a flat for starting a new family life”.

28.The Defence further states that during the negotiations for the sale of the State Theatre Unit, Father had already told YL that he would pass to YL the State Theatre Unit proceeds, as well as 12B TS Mansion, as they were considered part of the ancestral estate.

29.YL did as instructed by Father, and transferred the Gift from the BEA savings account to the BEA current account, with the view that Father would sign a cheque as he had intended. He had been the authorized signatory of the account since August 2006, and so was able to carry out the transfer.

30.According to YL, Father was then in an out of hospital between mid-September and 13 November 2018. The Defence states that after Father’s surgery on 19 November 2018, he was extremely feeble and could not properly sign his name, and it was only on 25 November 2018 that Father instructed YL to transfer the Gift from his BEA current account to YL’s own account. According to YL, this was upon Father learning on 25 November 2018 that YL had still not opened a bank account of his own, whereupon Father had become very upset and had urged YL to do so promptly.

31.It was on 27 November 2018 that YL opened an account at HSB.

32.According to the Defence, Father again instructed YL on 2 December 2018 to “take the money from his BEA current account” as he had earlier instructed, as the money was intended to be a gift by Father to YL.

33.On 3 December 2018, Father’s condition deteriorated and he was admitted to the Eastern Hospital. That evening, when YL visited Father at the hospital, Father reminded YL again to take the money in his bank account.

34.Paragraphs 28 and 29 of the Defence then plead as follows:

“28. On 4^th December 2018, in compliance with the directions of the father and his wish to gift the aforesaid $8,500,000 to the Defendant, the Defendant withdrew $8,500,000 from the BEA Current Account and bought a cashier order of the same amount; the Defendant then deposited the cashier order to the Defendant’s HS Bank Account; later in the evening when the Defendant visited the father, the Defendant told the father that he had withdrawn $8,500,000 from the BEA Current account as instructed by the father and showed the father the bank slips; the father said he was glad and relieved.

29. By reason of the matters pleaded in paragraphs 21 to 28 above, the father had made an inter vivos gift of HK$8,500,000 to the Defendant on or about 27^th July 2018, or alternatively, on or about 4^th December 2018.”

35.Particulars of the transfer of HK$8.5 million were contained in the 4 witness statements YL served in these proceedings. Counsel for the Plaintiff has highlighted the fact that there are inconsistencies in YL’s evidence, which has evolved at different times as to why and how the Disputed Amount had been transferred out of Father’s account and paid to him.

36.As part of the relevant key events: the State Theatre Unit was sold in January 2016 when the net proceeds of HK$7,711,737 (after receipt of the initial deposit of HK$866,630 in October 2015) were received by Father and deposited into his BEA savings account on 29 January 2016.

37.YL had already been added as a signatory to the BEA account in August 2006. YL separated from his wife in 2007, they divorced in 2008, and re-married in March 2018.

38.According to paragraph 21 of the Defence, Father had “since around June 2018”, started expressing his wish that he intended to make the Gift, or a sum of the proceeds of sale of the State Theatre Unit, to YL, and started to urge YL to open an account. The Defence pleads that Father instructed YL on about 27 July 2018 to transfer the Disputed Amount from the BEA savings account to the BEA current account, “as he intended to effect the gift by drawing a cheque in favor of YL”. The transfer was made on 27 July 2018.

39.Father had been in relative good health until a medical checkup in September 2018, which led to an operation in November 2018, when he had a pacemaker implanted. YL claims that between September and October 2018, Father had told him on several occasions to open a new bank account, for the Disputed Amount to be paid to YL. Father had expressed impatience, in particular on 21 and 25 November 2018, during YL’s visits to the hospital, when Father again reminded him to open a bank account and to transfer the Disputed Amount from the BEA current account.

40.According to paragraph 73 of YL’s 1^st witness statement (“YL-1”), the HSB account was finally opened on 27 November 2018, and YL so informed Father on his visit, whereupon Father again told him to transfer the money from his account to YL’s.

41.Father was discharged from the hospital on 30 November 2018, and during his time at home, Father again instructed YL that he must transfer the money away from the BEA account.

42.According to YL, though he had assured Father that he would tend to the transfer and payment soon, he was himself not in a hurry to do so as he was busy, and also because he thought that Father would recover soon and the matter could wait.

43.Father was re-admitted to the hospital on 3 December 2018 and in the evening, Father again urged YL to transfer the money away from the BEA account. YL assured Father that he would do so, and according to paragraph 77 of YL-1, YL went to BEA in the morning of 4 December 2018, before his visit to the hospital to tend to Father’s lunch. YL stated in YL-1 that he withdrew the Disputed Amount from the BEA current account, in the form of a cashier order (“CO”), and on the same day, he deposited it in his HSB account. YL stated that during his visit to Father in the hospital at noon, he had informed Father that the Disputed Amount had been withdrawn and deposited into YL’s account, and had shown the deposit slip to Father. According to YL, Father was very pleased.

44.On behalf of the Estate, Counsel contrasted the above evidence firstly, with that set out in paragraph 21 (3) of the Defence, where it was stated that Father had instructed YL that he intended to effect the Gift by drawing a cheque in favor of YL from his BEA current account.

45.Secondly, Counsel highlighted that in YL’s 4^th witness statement (“YL-4”) made on 23 September 2022, YL had in fact given a different version of the deposit of the Disputed Amount. In response to the Plaintiff’s request for production of the deposit slip which he had allegedly produced to Father in the hospital on 4 December 2018 (“Deposit Slip”), YL claims in YL-4 that he had in fact deposited the CO by ATM deposit machine. He explained that in the course of so doing, he had erroneously input “620475” as the amount of the deposit. YL explained that he had erroneously thought that what he was to input was the password for his HSB account (which was 620475, also the telephone number of his wife), rather than the amount of the deposit. The Deposit Slip was produced at the time of the deposit (notwithstanding the incorrect amount which he had input) but the amount of the deposit was stated to be $620,475 in the Deposit Slip. This Deposit Slip which YL obtained on 4 December 2018 has never been produced for the trial.

46.It was only when YL was contacted by HSB, on 5 December 2018, in relation to the deposit, that he went to HSB again on the same day to clarify and rectify the matter, when a fresh account deposit form was completed at the counter and the Disputed Amount was paid into his HSB account on 5 December 2018. The relevant account deposit form and the copy of the CO were produced with YL-4.

47.In cross-examination, YL stated that what he had shown to Father on 4 December 2018 was the Deposit Slip obtained on 4 December 2018. He also stated that he did not go to the bank counter for the deposit, and had used the ATM deposit machine instead on 4 December 2018, as he was in a hurry to visit Father in the hospital for lunch. He explained that he had already spent time at BEA to purchase the CO, and there was a long queue at the counter of HSC. Time was very pressing as it took a long while, over 20 minutes, to travel from North Point to the Eastern Hospital, so YL decided to use the ATM machine instead of waiting in line at the counter, so as not to be late for the noon visit.

48.In submissions, Counsel for the Estate pointed out that YL’s evidence as to the deposit of the CO is contradicted by what was imprinted on the reverse of the CO, that the deposit for $620,475 on 4 December 2018 was made at 9:42 am, long before lunch time. It was also put to YL that the Deposit Slip which he had allegedly shown to Father on 4 December 2018 did not in fact show the Disputed Amount of $8.5 million, but $620,475, a much smaller sum, and it cannot be said that Father had knowledge of or had consented to the transfer of the Disputed Amount to YL’s HSB account. In answer, YL accepted that the Deposit Slip would have shown the smaller amount, but claimed that he, and he alleged Father as well, had focused on the image of the CO which appeared in the Deposit Slip, and that the CO showed the Disputed Amount.

49.Counsel for the Estate highlighted the fact that from the filing of the Defence until the filing of YL-4 on 23 September 2022, YL had withheld from giving the entire and complete account of the deposit of the Disputed Amount, and had only done so when the Plaintiff pressed him for production of the Deposit Slip which he had allegedly shown to Father in the hospital.

50.A further inconsistency relates to when the Deposit Slip was allegedly shown to Father. The Defence pleads (at paragraph 28) that it was shown to Father in the evening of 4 December 2018, but according to paragraph 11 of YL-1, YL showed it to Father during his visit to the hospital at noon on 4 December 2018.

51.In the context of YL’s withdrawal and deposit of the Disputed Amount, there is the further evidence of Lo Wai King (“WK”), who is Mother’s niece and hence a cousin of the Fung siblings, that YL had initiated a meeting with her after Father’s death, on 13 December 2018. In the course of that meeting, YL told WK that “he might have committed a crime” by taking the Disputed Amount of $8.5 million from Father’s account just a few days before his death, and disclosed to WK how he had taken away the $8.5 million. According to WK, she had advised YL to frankly discuss the matter with WM and CY and to avoid any conflict.

52.According to YL, he had never said to WK that he had taken away money from Father’s bank account, or had committed a crime. He had only informed WK the truth: that Father had made a gift of the Disputed Amount to him, and that he had withdrawn the Disputed Amount from Father’s account and transferred it to his own account, in accordance with Father’s instructions, but that unexpectedly, Father passed away a few days thereafter. YL claims that he had said to WK that he understood that Father’s Estate would be equally divided into 3 shares, and that he intended to use the Gift to purchase back Comfort Gardens from his siblings, and that he wished that WK could act as an intermediary in his discussions with WM and CY.

Was there a Gift of the Disputed Amount to YL?

53.To recap, YL’s case is that Father had made a gift of the Disputed Amount to him because:

(1)  He was the only biological son and also the preferred child of Father, since Father had been upset by the behavior of WM and CY, Father’s relationship with WM and CY was bad, and Father did not trust CY.

(2)  Father considered the State Theatre Unit and 12B TS Mansion as the Fung ancestral estate and wanted YL to have the proceeds of sale representing these ancestral properties.

(3)  Father wanted YL to use the Gift of the Disputed Amount to buy and set up a new home for his wife and son after YL’s remarriage.

(4)  Since 2012, YL had been the only son who resided at Comfort Gardens with Father, who had taken care of Father until his death and who had assisted Father with his financial and household matters.

54.In my judgment, these asserted reasons should be considered in the round, in deciding the question of whether, by virtue of one or more of the stated reasons, and on a balance of probabilities, I can be satisfied that Father more probably had the intention to give the Disputed Amount to YL absolutely, as a gift.

The natural and favored son?

55.On this question, this is purely and entirely a matter of Father’s subjective feelings and intention. A third party’s evidence cannot be accepted as reliable or credible, as to whether Father preferred one of the siblings over the others, or which sibling was Father’s “favorite child”. Nor is the subjective belief of any of the siblings, that he/she was the preferred child of Father, or Mother, anything more than wishful thinking which may or may not be true, or biased opinion which may not reflect Father’s actual thoughts.

56.Further, and understandably, a fair or considerate parent would hide his/her true preference (if any) well, such that it should not be easily observed by others.

57.Finally, it is natural for parents to assume the burden of supporting and paying for their offspring’s expenses, even in their adult years, particularly when asked. As YL himself ultimately accepted, a parent would extend a helping hand whenever the son or daughter encounters difficulties.

58.With these considerations in mind, I do not find it helpful or reliable, when YL himself asserts that he was always the favored or preferred son because of the various matters seized upon by him which allegedly show that either Father or Mother had found fault with or been displeased by WM or CY, or when cousin WK claimed that CY was the favorite daughter of the family, and when on the other hand, Lo Wing Heng (“WH”), the other cousin of the Fung siblings, purported that Father and Mother appeared to love YL the most. Such evidence represents nothing more than the opinion of the witness, based on what he/she thought of what was detectable and displayed to the witness, without knowledge of the entire situation and circumstances known to Father himself. Third parties’ observations based on outward appearances and display can be entirely misguided, as appearances are often misleading.

59.The Court can only base its own determination on whatever indisputable, undisputed or contemporaneous documentary evidence as is available at trial, applying common sense and drawing from life experience.

60.What is apparent from the Whatsapp/Wechat messages produced in trial, spanning the period from 2015 to 2018 and exchanged between Father and CY, and between Father and YL, is that there was a good and close relationship between CY, YL and their Father. The messages and quotidian exchanges demonstrate that CY and YL were both caring and concerned about Father’s welfare and daily life. In particular, the photographs of the Fung family gatherings (taken in the early 1980s, early 1990s, 2007, 2010-2018) show that they were a happy and normal family, who constantly joined in dinners, outings, trips and family events or celebrations. The frequency of the text messages between Father and CY in particular, and the video calls they made to each other, sometimes initiated by Father, lead me to believe that CY and Father had a very close relationship, and to reject the claims made by YL that Father and CY were not on speaking terms, or that they had a cool or strained relationship even at any given period of time. The photographs of a content and smiling Father taking part in the gatherings arranged by CY, and their tender messages, all contradict the suggestions.

61.Apart from the subjectiveness of one’s preference, the matters relied upon by YL to claim that Father and Mother favoured him and were unhappy with his other siblings included matters and events which had taken place decades ago, and circumstances and personalities must have changed before 2018. Whereas Mother might have taken YL with her wherever she went when he was a child, her feelings might well have changed when her sons and daughter had grown up, when Mother herself had aged and had to depend more on her adult children. On the evidence, she had apparently spent more time and enjoyed a closer relationship with her grown-up daughter over the years. It was CY who took care of Mother when she was ill. Even YL accepted, in his testimony, that CY was Mother’s main caretaker and had diligently looked after Mother from 2006 (after Mother’s stroke) until her death in 2009. These are matters which Father would have taken into consideration. As Counsel pointed out, Mother must have trusted CY to have named her as the sole executrix in her will. Counsel also referred to the fact that Father had also appointed CY as his agent under a Power of Attorney in 2007, entrusting her with the management of the rentals from Father’s properties. She split her time spent in Hong Kong at Comfort Gardens with time in Macau after 1997, because of her husband’s work there and not because of any deterioration in her relationship with either Mother or Father. She reduced the time of her stay in Hong Kong after March 2018, because of the hostilities between CY and YL, and not because of any hostility from Father.

62.YL claims that Father and Mother had to spend money on WM and CY to satisfy their whims, but I find it hard to believe that Father and Mother would not have also spent money on YL over the years, for example when he studied overseas. Even if Father had to pay for WM’s wedding, this was not unusual for Chinese families, and it is improbable that Father would have considered that WM should be excluded from his inheritance, or that his entitlement should be reduced, by reason only that Father had paid for WM’s studies, wedding, or even living expenses which WM could not meet (if true).

63.The same considerations apply to CY. YL claims that Father had to make a loan of $500,000 to CY in 2011, to settle her credit card expenses, and that she had failed to repay Father. On her part, CY claims that Father had told her that the sum did not have to be repaid. As Counsel pointed out, the fact that Father would have agreed to make the loan to CY in 2011 contradicts YL’s assertion, that Father mistrusted CY and had been upset with her because CY had failed to account to him since 2008 in respect of the proceeds of the sale of 13A and 13B TS Mansion (which CY claims were sold because of Mother’s hospital expenses), and in respect of Mother’s estate and assets after Mother’s death in 2009. In all the circumstances of this case, I find it difficult to believe that Father would have wished to deduct $500,000 from CY’s inheritance, or to make the Gift of $8.5 million to YL to compensate for the $500,000 Father had paid for CY.

64.As for WM, he had moved to Canada from 2015, and there is less evidence of his close contact with Father by means of Whatsapp/Wechat messages or calls. However, WM’s son was born in the early 1980s, and it was pointed out that Father loved his grandson. WM’s family had all taken part in the family gatherings depicted in the photographs produced in evidence, and there is nothing to show that Father was in any way cool or distant to WM, his wife or his family. In the end, YL had to accept that the relationship between WM and Father was “harmonious” after 2015.

65.In any event, and what is significant, is that even on YL’s own evidence, both Father and Mother had loved and cared for the 3 siblings in the same way. In particular, YL agreed that Father loved CY and they had great affection for each other. Mother in particular had treated the 3 siblings in the same equal manner, without discrimination or preference, when she left her estate to them by will, in equal shares. YL conceded in the end that there were certain things that Father and Mother did not like about each child, but that they loved them all the same. This is the natural, and the only reasonable and inevitable conclusion to be drawn, from the entirety of the evidence.

66.If there were squabbles between YL and CY, after YL returned to Comfort Gardens in 2012 (after his divorce) to live for most of his time, and CY spent less time at Comfort Gardens as a result, I do not consider that this would have significant impact on CY’s relationship with Father, and as the evidence shows, they had continued to communicate on Whatsapp.

67.As for YL being Father’s only natural son, I am not satisfied on the available evidence that I can make finding to such effect even if this issue is relevant or material. The birth certificates of WM and CY can be the starting point in terms of evidence, and these show unequivocally that Father and Mother were registered as the parents. I have reservations as to the reliability of the recollection and perceptions of a 9/10-year-old boy, as to what he had allegedly witnessed and understood of Mother’s operation in 1968, and of the events in 1969 of his alleged visits to Martin’s House when CY was allegedly collected.

68.YL’s evidence on the “secret DNA test” and how and why he had collected the DNA sample of Father after his death is ludicrous, but in any event, there has been no leave granted to adduce any form of expert evidence in this case. It was YL, and not WM or CY, who raised the question of Father’s natural children, and YL being Father’s natural son has no relevance to whether WM and CY were Father’s biological offspring.

69.In all, I am not satisfied on the evidence that Father’s relationship with either WM or CY in 2018 was bad, hostile, or lacking in trust. Nor is there sufficient evidence to persuade me on the balance of probabilities that YL was the preferred son to the extent that Father would be influenced into making the Gift of a significant sum to YL to the exclusion of WM and CY.

Ancestral property?

70.YL seeks to justify the Gift on the basis that it represents the sale proceeds of the State Theatre Unit, which was considered by Father to be the ancestral estate (祖屋), and should be left to YL (on the basis that he was the only natural son).

71.In this regard, Counsel for the Estate relies on the Land Registry records, to contradict YL’s assertion and to submit that the alleged reason for the Gift cannot stand.

72.According to the records at the Land Registry, the State Theatre Unit was purchased in 1968 in the name of Father’s elder brother (“Uncle”), such that it was not property passed on to Father by Grandmother, as YL alleged, or by any ancestor.

73.On behalf of YL, Counsel submitted that whatever the actual history or state of State Theatre Unit, it was sufficient and a valid reason for the Gift so long as Father himself considered and believed the State Theatre Unit to be “ancestral estate”, and had told YL so.

74.In my judgment, there was no credible or logical basis for Father or YL to draw any valid distinction between the State Theatre Unit, and the other properties (12B, 13A and 13B TS Mansion), since they were all purchased in the name of Uncle. The Grandmother was registered as one of the executors of Uncle’s estate, in relation to the State Theatre Unit. The other executor was Father.

75.If it was indeed Father’s clear intention, as allegedly declared to YL, that YL should be entitled to the ancestral estate, him being the only natural Fung son, there was no reason why only the proceeds of sale of the State Theatre Unit should be passed by Father to YL. YL alleges that 13A and 13B TS Mansion had already been sold by the time of the Gift, but Father had received at least $700,000 from the sale, and 12B TS Mansion was still unsold. It is not YL’s case that Father had promised/passed on to him the proceeds of 13A or 13B TS Mansion.

YL’s credibility

76.At this juncture, I turn to the credibility of YL’s evidence, as it is only his assertion that Father had told him that the State Theatre Unit was ancestral property, and that from the time of the negotiations for sale, Father had already said to him that the proceeds would be passed to him only. YL’s evidence on the other aspects of this case, as to whether the Gift was intended by Father to enable YL to purchase a home and to start a new family life after his remarriage, and as to what Father and Mother had allegedly said to him at different times, also turns on his credibility.

77.The Estate relies upon the judgment of Lord Walker of Gestingthorpe in Yung Shu Wu and Vivienne Sung Wu (2011) 14 HKCFAR 39, to contend that the burden of proof is on YL to satisfy the court that Father had made a clear gift, and further, that the court should consider YL’s claims and evidence against the estate of Father with suspicion. The observations of Lord Walker of Gestingthorpe at paragraph 73 and 74 of the judgment are as follows:

[73] Secondly, and in tension with the first point, Vivienne is making a claim against the estate of a deceased person who cannot give evidence against her claim. The court has always approached such claims with some suspicion, especially (in the case of an alleged gift) where the only or principal witness in support of the claim is the donee. Corroboration is not essential in every case. But as Plowman J said in Thomas v The Times Book Co Ltd [1966] 1 WLR 911,916 (the curious case about ownership of the manuscript of Dylan Thomas’ Under Milk Wood):

Therefore, not only in this case is the onus of proof on the defendants [who were insisting a claim by the poet’s administratrix], but I am enjoined by authority to approach their story with suspicion having regard to the fact that the other actor in the story, the late Dylan Thomas, is dead and cannot therefore give his own version of what took place.

This principle has been applied in Cheung Cho Kam v Cheung Yuet Ying (unrep., HCA 885/2005, [2007] HKEC 1264).

[74] This Court has to give effect to both these rules. A written instrument signed by the Deceased was not essential, as a matter of law, for a valid disposition of his equitable interest in the Good Harvest and Vacha accounts. Nor is corroboration essential as a matter of law. But here Vivienne was the sole witness to an alleged oral gift amounting (if she is right) to the entirety of the Deceased’s assets in Hong Kong, worth millions of US dollars, at a time when the Deceased’s liver cancer had not yet been confirmed (it was confirmed by the specialist on 28 December 2001 and its advanced state was disclosed later than that). She was undertaking a very heavy burden of proof to satisfy the court that the Deceased made what Sargant J in Re Westerton [1919] 2 Ch 104, 109 referred to as “a clear gift then and there … an out and out gift and not an expression of a mere desire to make a gift”.

78.Counsel for YL in turn put emphasis on the recent case of Siao Miu Ha sued by Ma Siu Yee Joanna her next friend v Wu Ching Kuen (the administratrix of the estate of Ma Chiu Hoi Sanford, deceased) [2024] HKCFI 232, where K Yeung J set out a summary on the law of gifts and the inherent probabilities of proving a gift, at paragraph 63:

“ Insofar as I see it, factual presumptions may not be anything more than accumulation of earlier wisdom and experience. In the absence of evidence showing otherwise, certain facts may generally be indicative of certain conclusions. Another illustration, perhaps showing the converse, is Chung Chun Fai v Chan Man Lung [2021] HKCFI 697, wherein Deputy High Court Judge A To observed at §70 that the ‘burden of proving a gift is very high. The more valuable the alleged gift, the heavier the burden.’ That is nothing but an acknowledgement of the common sense and experience that people do not normally gift away their properties, and even less so when the properties are valuable. The burden of overcoming the inherent improbability of people doing that is hence high. So viewed, whether one talks about the application of such presumptions or their rebuttals, one cannot overlook those facts that may otherwise trigger such presumptions, which facts should be considered together with all others in and against the context of inherent probabilities…” (emphasis added)

79.In reliance on the observations made by K Yeung J, YL’s counsel pointed out that the proper focus is to consider all the facts in the context of the overall inherent probabilities of the case. I cannot find fault with such a focus.

80.In this case, the only evidence of Father’s declaration of the Gift to YL, and the evidence of the facts asserted to support the probability of the Gift (ie the fact of YL being the natural son and the State Theatre Unit being ancestral property), is the assertion of YL himself. Father cannot give evidence to support, or contradict YL’s claims.

81.Having considered the matter objectively and dispassionately, I cannot accept YL as a reliable or credible witness. I consider that his evidence is exaggerated, inconsistent, evasive and incomplete in material aspects. His testimony was scripted, and his allegations were biased and self-serving.

82.His counsel attempted to salvage YL’s credibility, by emphasizing that he had been reasonable in court by conceding on many issues, eg that Mother and Father loved all 3 children in the same way, that the address of birth stated in CY’s birth certificate is different to the address of Martin’s House which he had stated in his witness statement, that Father and Mother were stated to be the parents of WM and CY in their birth certificates, that the relationship between WM and Father was “harmonious” by the time WM left Hong Kong for Canada in 2015, that CY and Father interacted frequently with each other on social media, and that CY had all along cared for and loved Father, etc. However, this was only in the course of his cross-examination at trial in November 2024, and begs the question why YL would make the unpleasant and hurtful accusations against CY and WM in the first place, in his series of witness statements served between January 2021 and September 2022, and why he did not make any of the concessions or qualifications earlier. It also casts doubt on the truth and basis of his accusations which had to be ultimately withdrawn. As Counsel for the Estate submitted, YL’s late “concessions” simply show that he was not telling the truth in his witness statements, and that there is no objective factual evidence which can support YL’s claim that Father had preferred him over CY, or even WM.

83.In my judgment, YL’s evidence that as a result of Father’s criticisms over the arrangements CY made for Father’s 90^th birthday banquet, CY had harbored “hatred” against Father, that CY and Father were not on speaking terms, and that Father and Mother disliked WM because they had to pay for his hobbies, his studies and his wedding, were all grossly exaggerated.

84.His tendency to be careless and cavalier as to giving the complete truth in his evidence can be seen from his complete denial of ever having had knowledge of CY’s wedding, or attending CY’s wedding banquet. After claiming in YL-1 (at paragraph 40) that Father and Mother had been displeased by the fact that CY had not informed them of her wedding, and upon CY refuting such claim in her witness statement, YL had continued to maintain in YL-3 that Father and Mother had not attended CY’s wedding banquet, and further, that neither he nor his wife had been notified of either CY’s wedding or the banquet. He even alleged (at paragraph 45 of YL-3) that CY was lying. It was only when CY finally located and produced photographs taken at her wedding banquet in Hong Kong, and which show the attendance of not only Mother and Father, but YL and his wife, that YL had to accept that he was wrong in his account and recollection. The incident demonstrates how unreliable one’s recollection can be, even when one is convinced that such recollection is totally accurate.

85.As YL embellished his evidence in a series of witness statements and in his testimony in court, inconsistencies were revealed which again call into question the truthfulness and reliability of the claims he made.

86.A good example is YL’s evidence as to Father’s intended Gift and how Father had asked for the Disputed Amount to be paid to him, as Counsel sought to highlight. At paragraph 23 of the Defence, what was pleaded was that Father had instructed YL on 25 November 2018 to simply transfer the Disputed Amount from the BEA current account to YL’s own bank account. This was after Father had learned that YL had still not opened a new bank account. In YL-1 (made on 27 January 2021), YL’s evidence was that in about June 2018, Father had instructed him on many occasions to open a new bank account, so that Father could issue a cheque to YL for deposit of the Disputed Amount into YL’s account, as he was about to be married (paragraph 62 of the statement). He went on to state, at paragraph 66, that between September and October 2018, Father had complained that YL had still not been able to open a new account, and instead of issuing a cheque, Father instructed YL to transfer the money and to deposit it into YL’s account instead.

87.In his next witness statement, YL-2 (made in April 2021), YL claimed in paragraph 29 that he opened a new account on 27 November 2018, and thereafter Father bade him to transfer the Disputed Amount from the BEA account to YL’s own account.

88.A different version was given in the letter dated 25 January 2019 (“Letter”), from YL’s solicitors to the Plaintiff’s solicitors. In the Letter, it was stated that since June 2018, Father had mentioned and confirmed to YL that Father intended to give the Disputed Amount to YL as a gift. The Letter went on to state, as follows:

“The Deceased (ie Father) further stated that it would be better for him to write a cheque to (YL). The Deceased therefore instructed (YL) to transfer the (Disputed Amount) from his savings account to his current account with the same bank on 27 July 2018…. On 4 December 2018, the Deceased again confirmed his intention and asked (YL) to draw the cheque in (YL)’s favor for him because the Deceased’s hands were trembling to such an extent that he could not properly sign on the cheque. As instructed and directed by the Deceased, (YL) went to the Bank of East Asia and asked for purchasing the cashier’s order.” (Emphases added)

89.In cross-examination, YL admitted that the statements in the Letter were totally at odds with the evidence in his own witness statements. The blame was put on his lawyers.

90.Counsel for YL argued that the pleaded case was that “since around June 2018”, Father had started to urge YL to open an account so that he could give him the money in his account as a gift, and that any different dates given in the witness statement comes within the timeframe as pleaded. However, there are still unexplained differences as to whether Father had intended to issue a cheque to YL for the Disputed Amount, or had instructed YL to transfer the Disputed Amount into his bank account, and why YL’s evidence had been roving in this respect.

91.In terms of time, I bear in mind the fact that YL had since August 2006 been added as a signatory to Father’s BEA current account. If Father had truly intended, from the time of the negotiations for sale of the State Theatre Unit before October 2015, to make a Gift of the proceeds of sale to YL, there was no reason or need to defer the Gift until either YL had opened a new account, which was in fact done by 27 November 2018, or to wait for YL to transfer the Disputed Amount first from the BEA savings account to the current account (which was already effected on 27 July 2018), and then to YL’s HSB account after the purchase of the cashier order. Father could simply have asked YL, or YL could simply have offered, to sign a cheque under Father’s BEA current account, and to deposit same into his own account - which would have satisfied Father’s persistent requests and urging, in the manner alleged by YL.

92.The deposit of the CO, on 4 December or 5 December 2018, and whether (and when) the Deposit Slip was shown to Father with the Disputed Amount is another area of inconsistencies in YL’s evidence, as narrated at paragraphs 43 to 50 above. I agree with Counsel for the Estate, that the evidence of YL in this respect is not only self-contradictory but also evasive, in that he had withheld the complete truth of the facts and time of the deposit and Father’s alleged knowledge, and had given a misleading account of the incident before September 2022, all of which casts grave doubt as to his reliability and honesty as a witness, and whether his evidence should be believed.

93.Another example of how YL was not completely forthcoming in his evidence is when he claimed that the Gift was from Father to enable him to purchase his own home upon his remarriage.

94.The averment in the Defence is that as early as January 2017, YL had informed Father that he wished to remarry his ex-wife, and Father told YL to purchase a flat so that he could “start a new family life”. This was one of the reason given for Father’s Gift to him. In YL-1, YL stated that when he told Father that he would remarry, Father was very happy and suggested that YL should purchase a flat, such that his family could lead a happy life upon the acquisition of a property. YL continued to state that he told his son and his mother-in-law of this, and obtained their happy consent. YL further stated (at paragraph 62 of YL-1) that in about June 2018, Father told him to open a new bank account so that Father could write a cheque for him, as it could be a “lucky packet” on the occasion of his impending marriage. At paragraph 63, YL went on to explain that Father’s intention was to have his son, daughter-in-law and grandson to have a home. All this suggested that YL hitherto did not have a property of his own where his family could reside, which was why Father intended to make the Gift to him.

95.However, I agree with Counsel for the Estate, that YL never mentioned in his evidence that he and his wife had owned a property in Heng Fa Chuen (“HFC”), and that in 2018, he and his family were residing in self-owned property, which fact was only revealed under cross-examination. According to YL, after their first marriage, YL and his wife had acquired a property in Quarry Bay which was later sold to buy HFC in 1993, and YL, his wife and son had lived at HFC from around 1997. HFC was transferred to YL’s wife upon their divorce in 2008. It was subsequently sold, but YL accepted in cross-examination that another property in Heng Fa Chuen had been bought upon the sale, so that by the time when YL and his wife decided to remarry in 2018, the family did have their self-acquired home, and it was not necessary for YL to purchase another property for their residence. To justify his evidence that Father had wanted him to acquire a property with the Gift, YL claimed that Father had considered that YL should have his own property, and that the property at HFC was his wife’s.

96.In my view, YL had given an incomplete picture to the Court as to the necessity for a home in 2018 and how this constituted a reason for Father’s Gift to him.

97.In this regard, cousin WH (also a policeman) gave evidence that in 2008, he had a meeting with Father, and that they had had a candid conversation about Father’s former days as a policeman and about life. According to WH, Father informed him that he had plans to make a payment of approximately $10 million to YL, because YL was “unhappy” at the time. WH claims that Father had even asked him if HK$10 million should be enough. In his witness statement, WH expressed his own belief that WM and CY had been adopted (as he had been so told by his family), his opinion and observation that Father and Mother loved YL more than the adopted children and also because YL was more “filial”, and his opinion that Father was more inclined to make a gift of his assets or the greater part of such assets to YL.

98.WH’s opinion remains his.

99.His evidence as to Father’s intention to make a gift to YL of HK$10 million is, at most, evidence of Father’s plan and intention held in 2008. On WH’s evidence, Father’s intention to make a gift then was on the basis that Father considered that YL was unhappy at that time. Chronologically, this was around the period of YL’s separation from his wife and their official divorce in 2008. This was also around the time when 13A and 13B TS Mansion were sold, which according to CY’s evidence, was partly due to the substantial hospital bills paid and incurred as a result of Mother’s hospitalization. These all coincide with and may explain Father’s “nostalgia” and emotional state, as described by WH, and Father’s lament that YL was unhappy during this time.

100.However, 2008 was 10 years before the Gift claimed by YL was completed, in November/December 2018. By 2018, YL had moved back to Comfort Gardens, then reconciled with and remarried his wife. Circumstances had substantially changed. If Father had intended to make a gift to YL in 2008, he never went ahead with such a plan in the interim of 10 years, between the time of his conversation with WH, and his hospitalization in November 2018. It is probable that Father had changed his mind about the gift.

101.Finally on the question of YL’s credibility, there is the issue raised by the meeting held between YL and cousin WK on 13 December 2018, and what was allegedly said by YL that day. There is no dispute that a meeting took place between YL and WK on 13 December 2018. According to YL, he had approached WK for the meeting, in the hope that she would act as an intermediary between himself and WM and CY (who had refused to speak to him by then). According to WK, she had been surprised when YL approached her for a private meeting. WK’s evidence is that in the course of their discussion as to YL’s plans for the Estate, and whether Father had a will, YL suddenly told her that he had “taken” $8.5 million from Father’s account just a few days before his death, and that he might have “committed a crime” thereby.

102.On YL’s account, he had only told WK that Father had made a gift to him before he died, and that he had transferred $8.5 million from Father’s account to his own account, in accordance with Father’s instructions, but that Father “unexpectedly” died a few days thereafter. YL claimed that he told WK that he wished to use the sum to purchase the interests in Comfort Gardens (from his siblings). YL denies that he had ever told WK that he “might have committed a crime”.

103.WK has no benefit under or claim to the Estate. On the evidence, she had been close to Mother (who was her own mother’s sister) and with the other members of the Fung family. She claims that Mother and Father were more fond of CY, but her opinion as to who was the preferred child is again not material to this Court’s decision in this case. WK has no other interest in the claims made against YL in these proceedings.

104.In my judgment, WK has no reason whatsoever to lie, and to fabricate a story as to what YL had told her. She had no knowledge of YL’s transfer of the Disputed Amount prior to the meeting, and what YL told her at the meeting was the first she knew of the transfer. Her evidence is that she was shocked by YL’s claim, that he had taken a large sum of $8.5 million from Father’s bank account. She was firm in cross-examination and did not waver in her claim as to what she had heard. Even if, as YL claims, he had never said that he might have committed a crime by taking the money, my finding is that he had certainly said at the meeting that the Disputed Amount was “taken” by him. In my judgment, it is probable that YL had said some time during the meeting that he might have committed a crime, as it is improbable that WK would have made up these words if they had not actually been used in the conversation which took place.

105.In view of my findings as to the unreliability of YL’s evidence in general, I would prefer WK’s evidence over YL’s where they differ in material respects in relation to the conversation on 13 December 2018. If the transfer was indeed made in all respects in accordance only with Father’s instructions, there was no reason why YL should have said to WK that he had “taken” Father’s money.

YL was Father’s caregiver at the time of his death

106.A further reason advanced by YL for the Gift made to him in 2018 is that by that time, and since 2012, he had been the only son taking care of Father.

107.On YL’s case, he had moved back to Comfort Gardens in 2012, and had only occasionally returned to his wife’s HFC property several nights a week, when they were discussing a remarriage. Although CY had been taking care of Father and had been assisting him on matters such as renting out Father’s properties and collecting the rent, paying the household expenses of Comfort Gardens, hiring the domestic helper, and in the sale of the TS Mansion units in 2007, YL’s case is that by 2018, Father had entrusted him with those matters since CY was spending her time in Macau more than Hong Kong, and she had become more distant with Father who had lost all trust in her.

108.According to CY, YL only showed interest in helping in Father’s affairs and took such matters over from her from around March/early 2018, when he displayed more hostility against CY. As a result, CY reduced the time of her stay at Comfort Gardens in order to avoid conflict with YL.

109.On behalf of the Estate, Counsel highlighted the fact that the expense receipts provided by YL to support his claims of control of Father’s matters only commenced in early 2018, corroborating the Plaintiff’s case that YL’s involvement increased only during this period.

110.I believe that at least by early 2018, as his evidence demonstrated, YL had paid for Father’s household expenses. There were also Whatsapp exchanges between YL and Father, which shows that YL had been taking care of Father’s daily needs then. Counsel for the Estate pointed out that these exchanges only became more frequent in 2018, and that there were in fact only 3 messages in 2015, 18 in 2016 and 38 in 2017. I can accept the explanation offered for YL in this regard, that he had moved back to Comfort Gardens in 2012, and was residing there, and that there was no need for text messages when most of his exchanges were face to face meetings with Father. However, since YL was residing with Father at the material time in 2018, and on his case, his wife had also moved back to Comfort Gardens after they decided to remarry, I do not consider it to be a matter of significant impact that the son should pay for the expenses of the household at Comfort Gardens (which even on YL’s case did not include CY or WM by 2018). Nor was I particularly surprised, or impressed, by the fact that YL had paid for his Father’s meals, or wheelchair, or even some of the usual medical bills. These are the ordinary and usual tasks and burdens accepted by adults in respect of their aged parent, and are not in my judgment matters of moment.

111.The fact that YL was taking care of Father in 2018 and at the time when he was ill was of course a matter which Father would or might have taken into consideration, and which the Court would likewise consider as relevant in deciding whether it is more probable that Father would make the Gift to YL.

Conclusion on assessment of the probabilities of the Gift

112.I do not consider that YL has established, on the balance of probabilities, that he was the preferred son by virtue of the fact that WM and CY were adopted, and not Father’s issue by blood. Even taking into account the observations of WK and WY, there is conflicting evidence as to whether YL, or CY, was the favorite or preferred child. On the evidence that is available before the Court, it would appear that both Mother and Father had during their lives treated their 3 children equally and without discrimination.

113.YL’s evidence has been shown to be highly exaggerated, inconsistent and generally unreliable, as to the assertions which he made in these proceedings. In particular, the circumstances of the deposit of the Disputed Amount into his bank account, and how the Deposit Slip had allegedly been shown to Father, are inherently improbable and suspicious (that he would input his password instead of the amount of the deposit), particularly in the light of his “confession” to WK. The circumstances of Father’s alleged instructions to YL to transfer the Disputed Amount to him are also riddled with inconsistencies as his evidence evolved.

114.There was a long lapse of time from:

(1)  2006 when YL was added as a signatory to Father’s BEA accounts;

(2)  2008 when YL formally divorced and Father allegedly spoke to cousin WY about YL’s “unhappiness” and Father’s plan to make a gift of money to him;

(3)  late 2015 when the sale of the State Theatre Unit was negotiated before the deposit was paid, and early 2016 when the sale was completed, around which time Father allegedly told YL that the proceeds of sale would be given to him;

(4)  June 2018 when Father told YL of his wish to make the Gift to YL out of the proceeds of sale of the State Theatre Unit and urged YL to open a bank account; and

(5)  July 2018 when the Disputed Amount was transferred to the BEA current account;

to the time of the actual alleged Gift, which was only completed by the deposit on 4/5 December 2018.

115.If Father had truly intended and told YL that he would make the Gift of the ancestral estate to YL, it is natural that he would have taken the steps to do so immediately after the sale and the receipt of the proceeds in January 2016. During this time, Father was fit and healthy, and there was no reason why he could not personally have dealt with the payment out of his BEA account to YL. There was also no reason for him to defer the Gift of the ancestral home proceeds to the favorite son, if this was true. The fact was that he did not take any steps to do so between January 2016 and before his admission to hospital in September 2018. It is probable that Father had simply changed his mind about the Gift.

116.After September 2018, when an operation became imminent, there were many likely and probable reasons for Father to have either instructed or agreed to a transfer of money, either to his current account, or a withdrawal out of his BEA accounts. Medical and hospitalization expenses would have been envisaged, and had become very likely in and after September 2018. So even if Father had instructed or agreed with YL to transfer an amount to his current account, to facilitate the issue of cheques (to be signed either by Father or YL as the authorized signatory since August 2006), or instructed or agreed to a withdrawal of money out of his account to facilitate YL’s settlement of expenses for Father, it would not have necessarily meant that Father had instructed the Disputed Amount to be transferred, or had intended to make a gift of the Disputed Amount, or any amount transferred, to YL.

117.There is doubt as to whether Father had indeed been shown the alleged Deposit Slip with the Disputed Amount imprinted. On YL’s evidence, the figure shown in any Deposit Slip produced to Father on 4 December 2018 would have been $620,475.

118.It is not credible that YL would not have retained the Deposit Slip, if on his case, the transfer and the deposit was on Father’s instructions and the Disputed Amount was on YL’s evidence shown in the copy of the CO displayed on the face of the Deposit Slip. The Deposit Slip would serve as evidence to support YL’s case of Father’s instructions, knowledge and approval. Yet, it is YL’s case that the Deposit Slip could not be found and was no longer available as evidence. On YL’s own case, his relationship with his siblings was already hostile during the time of Father’s hospitalization. Matters turned ugly when the “taking away” of the Disputed Amount was disclosed, first by him to WK, and then by WK to CY/WM, to the extent that the police had to be brought in on 17 February 2019. By then, YL must have known that the transfer and deposit of the Disputed Amount was highly contentious, and he would have envisaged the significance of retaining the documentary evidence, including the Deposit Slip showing the CO. If he had made a photocopy of the Deposit Slip in February 2019, or even shortly thereafter, the problem of the print fading and disappearing, which was his excuse for not retaining the copy, would not have arisen. The inference must be that the Deposit Slip does not assist YL’s case.

119.As observed in the earlier parts of this Judgment, the incidents and cause of complaints referred to by YL to support his claim that Mother and Father were unhappy with WM and CY are not sufficient to persuade me, on the balance of probabilities, that Father would have made to YL the substantial Gift, which would have excluded WM and CY from a significant share of his Estate. On the evidence, Father and CY in particular appeared to have enjoyed a close and intimate father and daughter relationship. As opposed to showing Father’s disapproval of CY, the alleged gifts and loan from Father to CY equally suggest that he had been indulgent of his daughter and her lifestyle. I find it totally incredible that Mother and Father had only voiced complaints about WM and CY, and had no complaints against YL. It is also incredible that Father had not spent money on or paid for YL’s expenses during his youth, when he had devoted the entirety of his complaint to Father’s expenses incurred for his other siblings. The fact that Father had spent the money which YL claimed he had on WM and CY does not mean to me that Father would, for that reason, make the substantial Gift to YL.

120.The point made during the cross-examination of WM and CY, and in Closing by YL’s Counsel, was that Father had not said to WM and CY during his life that his assets would be divided amongst the 3 siblings “equally”. Even if this is true, it cannot be taken to mean that Father would make the Gift to YL.

121.In the Defence Opening, Counsel for YL sought to justify the Gift by arguing that the Disputed Amount only represents 39.34% of the total value of the Estate, if Father’s half interest in Comfort Gardens and the remaining balance in his bank accounts are considered. Under Mother’s will, her interests in Comfort Gardens were passed to her 3 children. I see no justification whatsoever why Mother’s half share in Comfort Gardens should also be included as Father’s assets at the time of his death, and reject the contention made, that including Mother’s half share as Father’s entitlement would bring the Gift to constitute only 29.71% of Father’s total assets.

122.I reject the claim that the Gift to YL is justifiable when it represents 39.34% only of the value of Father’s Estate. It is still a significant portion, and in any event, there is no pleading, no evidence and no indication from YL that the 60.66% would be shared by WM and CY only, and that YL would waive all claims to such balance of the Estate.

123.Although I accept that as a matter of law, neither corroboration nor a written instrument is essential for a valid gift, I also note the point made by Counsel for the Estate, on the question of the inherent probabilities of the case, that there is no mention of any of the facts alleged by YL (in support of the assertion that the transfer of the Disputed Amount had been instructed by Father) in any contemporaneous documents or evidence, in the form of the Whatsapp/Wechat messages exchanged, either between Father and YL only, or between Father/YL and the other siblings. The sale of the State Theatre Unit at $8,666,300 had been completed in January 2016, and the net proceeds of $7,711,737 had been paid into the BEA savings account on 29 January 2016. However, there was no mention in any of the messages of Father’s repeated requests or “constant” reminders to YL to open a bank account for receiving the Gift, or of YL informing Father either of the transfer from the savings to current account at BEA, or of the successful deposit upon its occurrence. The requests from Father had, on YL’s case, become incessant and urgent to the extent of his losing his temper, yet Father never sent even a simple message which would have been consistent with YL’s claims, like “記住去銀行 (Remember to go to the bank)”, or “記住轉錢入你戶口 (Remember to transfer to your account)”.

124.The only message seized upon and relied on by YL is the one dated 27 July 2018, which YL claims was sent by him to Father after he had transferred the Disputed Amount from Father’s savings to Father’s current account. The message in fact said nothing more than “你所交任務完成 (ie the task you instructed has been completed)”. Nothing before or after the message links it to the transfer, or to the alleged Gift. Even if I should accept that the “mission accomplished” message dated 27 July 2018 referred to or supports the incident of the transfer of $8,500,000 to Father’s own current account which had occurred on that day, that fact of transfer cannot by itself mean that the Gift, or any gift of the sum involved, was made or intended for YL. There can be other reasons why Father would have wanted the money to be transferred to his current account, to facilitate other payments or transfers.

125.Having considered all the evidence in the round, I am not satisfied that YL has discharged his burden of proving that the payment from Father’s Estate of the Disputed Amount is, on balance, more probably a gift made by Father to him.

Other issues

126.Since I am not satisfied that YL had Father’s authority or consent to transfer the Disputed Amount to his own bank account for his own use, there is a breach by YL of his fiduciary duties owed to Father as agent for the operation and management of his bank accounts.

127.In view of my finding that there was no Gift, it is not necessary to decide on whether the Gift was induced by undue influence.

Disposition

128.For all the above reasons, YL is liable to repay the Disputed Amount with interest to the Estate, and a declaration is granted in terms of paragraph (1) of the prayer to the Statement of Claim, that the Disputed Amount was and is held on trust for the Estate. Liberty to apply is granted for any other consequential relief as prayed for.

129.The costs of the action are to be paid by YL to the Estate.

Mr Tony Ng, instructed by Tang, Wong & Cheung, for the plaintiff

Ms Deanna Law, instructed by Alex To & Co, Solicitors, for the defendant