Ip Muk Lan v. The Personal Representative of the Estate of Ip Sau Lan (As the Executrix of the Estate of Yip Choi Koon, Deceased)
Read the full judgment text of HCA 1047/2018 on BabelCite. This High Court CFI judgment was delivered on 9 April 2025.
1. This is the trial of the disputes between the parties in relation to the beneficial ownership of the property at Flat 4, 29 th Floor, On Yeung House (Block 2), (Including the planter/planter box appertaining thereto, if any) Cheung On Estate, No. 1 Tam Kon Shan Road, Tsing Yi, New Territories, Hong Kong (“ Property ”, or the “ 2904單位 ”) registered in the name of Yip Choi Koon (“ Father ”).
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HCA 1047/2018 [2025] HKCFI 1331 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1047 OF 2018 __________________
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____________________ JUDGMENT ____________________ A. Introduction 1.This is the trial of the disputes between the parties in relation to the beneficial ownership of the property at Flat 4, 29th Floor, On Yeung House (Block 2), (Including the planter/planter box appertaining thereto, if any) Cheung On Estate, No. 1 Tam Kon Shan Road, Tsing Yi, New Territories, Hong Kong (“Property”, or the “2904單位”) registered in the name of Yip Choi Koon (“Father”). 2.Mr Ronald Pang with Ms Aria Cheung appeared for the plaintiff (“P”). The defendant did not appear. B. Procedural history 3.Madam Ip Sau Lan (“Madam Ip”) was originally sued in her capacity as the executrix of Father. 4.The trial was originally fixed and scheduled to commence before this Court on 15 January 2024. It did not proceed smoothly, in circumstances described below. 5.Between December 2023 and January 2024, Madam Ip on a number of occasions wrote to this Court and P. She said that due to her poor health, she had been admitted into hospital a number of times, and had to carry out kidney dialysis at home. 6.Given Madam Ip’s health condition, this Court on a number of occasions handed down pre-trial written directions on the conduct of the trial. Amongst other matters, the hearing hours of the scheduled trial were adjusted to accommodate her treatment. 7.Pursuant to those directions, the trial commenced on 15 January 2024 at 11:00 am. Madam Ip did not show up. Her son Cheung Hiu Wa (“Son”) did. He informed the Court that Madam Ip had been admitted into hospital that morning. He asked the case to be adjourned. Mr Pang objected. He referred to the case of Elijah Saatori v Raffles Medical Group (Hong Kong) Limited (HCPI 1114/2006, 5 September 2016). He requested Madam Ip to be medically examined to confirm her competence or otherwise to attend court. 8.Having considered the situation, noting that the case had been set down for 7 days, and not wanting to waste the scheduled time without good reasons, I directed Madam Ip to be examined by noon of 17 January 2024. 9.On 17 January 2024, Madam Ip was examined by Dr. Celine Fan. In her report of the same date (“Dr. Fan’s Report”), Dr. Fan expressed the views and findings that Madam Ip was an end-stage renal failure patient who required continuous ambulatory peritoneal dialysis 3 times per day at in interval of 6-8 hours, that she was not fit to attend trial, and that her long term condition would be deteriorating and was irreversible. 10.The matter resumed before this Court on 18 January 2024. Mr Pang submitted that given Madam Ip’s health condition, the case ought not be adjourned indefinitely. He invited this Court to allow the Son to act as Madam Ip’s McKenzie friend and commenced the trial. 11.However, the Son refused to so act. He placed before this Court a set of written submissions entitled “被告人就放棄遺囑執行人權利及放棄2904室的繼承權利之陳詞”(「放棄陳詞」). It was said therein, inter alia:
12.At that stage, this Court expressed the concern that Madam Ip might not have the mental capacity to make any informed decision on the matters expressed in the 放棄陳詞, or even to further participate in the trial. The following parts of Dr. Fan’s Report were relevant and gave rise to the concern (emphasis added):
13.When the case resumed on 19 January 2024, having heard parties, and with agreement from the Son, I directed that Madam Ip be examined by a psychiatrist. Having given further directions on the conduct of the trial, I adjourned the trial to a date to be fixed. 14.On 23 January 2024, Madam Ip was examined by Dr. Gabriel Hung, a specialist in psychiatry. In his report dated 24 January 2024, he expressed the view that “[Madam Ip] is not a mentally incapacitated person within the meaning of Order 80 rule 1 of the Rules of the High Court (Cap 4A). It is my opinion that she has a sufficient knowledge of the matters arising from HCA 1047/2018 and has the mental capacity to make decisions regarding this case.” 15.There was a then a document entitled “被告人的意見書陳詞” lodge with this Court. It was dated 28 January 2024. It states, inter alia:
16.On 29 January 2024, Madam Ip passed away. 17.Madam Ip had before her death made a will. Her husband was named the executor. No grant has however been sought. He and his 2 sons with Madam Ip also informed P by letters of 6 February 2024 that they did not agree to be a defendant in the present action, did not consent to this trial continuing, would not apply to be the executor of Father’s will, disclaimed any interest in the Property forming any part of D’s estate, and in any event disclaimed all interest in the Property. They also refused to bear any or any further costs in respect of the present case. 18.By summons of 11 April 2024, P sought leave to proceed against Madam Ip notwithstanding her estate is unrepresented. Alternatively, P seeks an order that an appropriate person be permitted to represent D for the purpose of this action. 19.The summons was heard on 16 May 2024. Having considered Order 15 rules 7 and 15 and Lau Cho Kwan, Leo v Lau Siu Fan, Elaine [2021] HKCFI 3067 cited to me, and on the facts of the present case as summarised above, I was of the view this is an appropriate case for leave to be granted to P to proceed against Madam Ip notwithstanding that her estate is unrepresented. I so ordered. I also granted P leave to re-amend the name of the defendant into “The Personal Representative of the estate of IP SAU LAN (葉秀蘭) (as the Executrix of the Estate of YIP CHOI KOON (葉財官), Deceased)”, and that all other pleadings and documents already filed be deemed to be so amended. C. Resumption of the trial 20.The trial resumed on 26 March 2025. The defendant was not represented. 21.I record that the Son and certain family members of Madam Ip were in court. I in open court recapitulated to them in some details the procedural background leading to the resumption of the trial. None of them said anything. 22.I record that P’s legal advisers had omitted to effect the re-amendments I allowed them to make by the Order of 16 May 2024. P belatedly on 20 March 2025 filed a summons for leave to make the re-amendment late. I see no prejudice to the defendant. I allowed the summons in terms, with no order as to costs. 23.I record also that upon the absence of any representation of Madam Ip’s estate, Mr Pang asked that pleadings and witness statements previously filed by the defendant be expunged. In relation to witness statements, I will make no reference to them, consistent with Order 38 rule 2A. In respect of the pleadings, I see no reason why they should be expunged. I may need to heed the nature of Madam Ip’s pleaded case when considering whether P is successful in proving her case, bearing in mind she is seeking declaratory relief. I at the same time will however bear in mind that Madam Ip’s estate has called no evidence in any attempt to substantiate her pleaded case. 24.What was left was for P to prove her case. D. The family members 25.Father passed away in January 2018. 26.Father’s wife was Madam Liu Yuk Kam (廖玉金) (the “Mother”). 27.Father and Mother had 5 children. They are, in descending order of seniority Madam Ip, P, Ip Fan Lan (葉芬蘭, “芬蘭”), Yip Ming (葉明) and Yip Heung Lan (葉香蘭). E. The Property 28.I set out certain particulars about the Property. They are gleaned from the land search records[1] and certain related documents[2]:
29.It is relevant to note that Father owned another property in Fujian (the “Mainland Property”). F. Father’s wills 30.Father had made 2 wills:
G. Parties’ pleaded case 31.P’s case is that she had borne the purchase price of the Property, all related expenses, and all utilities charges. She says that from day one, Father was not the beneficial owner. She says that based on their agreement and common intention, Father and Mother could live there for life, but that Father (and now his estate) only held the Property as her trustee. 32.Madam Ip did not deny that it was P who borne the purchase price, all related expenses, and all utilities charges. She simply put P to strict proof. Her main defence is that as Father’s right to participate in TPS was an one-off one, and that upon purchase of the Property, Father had lost that one-off right, such that Father “had obtained as [sic] least a substantial share (to be determined by the Court) in the beneficial ownership of the Property.”[6] (the “TPS Right Defence”). Madam Ip further pleaded (the “Inaction Defence”), with reference to Father’s request made in about September 2017 to examine the 1st Will, as follows:
It was then pleaded that P’s inaction “have / would have led [Father] to believe that he is the beneficial owner”, such that “it is unconscionable for [P] to suggest that she has beneficial interest” (§§25(b) and (c) of the Defence). H. The witnesses called 33.P has called herself (who has given 1 witness statement, (“P/WS”)), her friend Madam Wong Siu Lin (“Madam Wong”, who has given 1 witness statement (“Wong/WS”)), and P’s daughter Ms Lim Lai Yee (“Ms Lim”, who has given 2 witness statements (“Lim/WS1” and “Lim/WS2”)). They have all adopted their respective statements as their evidence in chief. I have considered their evidence holistically. Their evidence is consistent with contemporaneously documents and conduct, inherently probable, and does not suffer from any inconsistency, internal or external. I find all 3 of them to be honest and reliable witnesses. I accept their evidence. I. Consideration of parties’ cases in the light of the evidence 34.In relation to the law on common intention constructive trusts, I have consider Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 which Mr Pang has cited to me. I remind myself specifically of the observations of Godfrey Lam J (as His Lordship then was) at §§46 to 50, that:
35.I have considered the totally of the facts and evidence. I highlight the following, which I (save otherwise stated) specifically find and accept. 36.P originally lived with his parents in a unit with a public housing estate at Tuen Mum. Upon her marriage, she moved out and lived with her husband in a unit at On Yeung House, which she and her husband purchased under the TPS. She from time to time came back to Tuen Mum to visit her parents. It was a long travel. As things happened, the Property became available for purchase. But P was no longer eligible to purchase it under TPS. P states at §§11 to 14 of P/WS as follows:
37.She says that she paid the deposit of HK$58,000 in 2 sums. The first sum of HK$27,500 was paid on 9 May 2006, and the balance of HK$30,500 on 7 June 2006. In respect of the that first sum, as the estate agent requested payment by cheque, but as P did not have a current account at that time, she requested Madam Wong to issue a cheque in that sum for her, which sum she paid back Madam Wong immediately that day. Madam Wong confirms in evidence that arrangement, and identified when giving oral evidence the cheque concerned. P says that she paid the balance by bank transfer from her Bank of China account. She clarified that she had however lost the passbook of that account. I have no reason to doubt her evidence in this regard. Madam Wong also identified 3 other cheques which she issued on P’s behalf during that period, in the total sum of HK$15,200 for solicitors and estate agent fees. Madam Wong confirms that P had paid her back all the monies involved. 38.P also, supported by contemporaneous documents, says that she had also paid in November 2006 cash HK$196,500 for renovation of the Property[7], and all the utilities charges[8] since. 39.In respect the mortgage repayments, P says at §15 of P/WS that:
40.P’s evidence in relation to the mortgage repayments is supported by Ms Lim. Ms Lim has also produced and identified her accounts statements in support (see §3 of Lim/WS1, and [C/37-79]). 41.In respect of the 1st Will, P says in §17 of P/WS as follows:
42.The timing of the 1st Will is consistent with P’s version of events, which version I accept. 43.In respect of the 2nd Will, P says in §§25-27 of P/WS as follows:
44.I also accept P’s evidence in relation to the 2nd Will. 45.If Father had been holding the Property on trust for P, the Property would not have formed part of his estate, and the Property would not be any of the assets for him to be disposed of by the 2nd Will. 46.On the evidence, I accept P’s evidence on the existence of 該共識. I accept in particular her evidence in summary[9], that:
47.I have considered the TPS Right Defence. It is vague and unparticularised, and is not supported by any evidence. Nor has any legal authorities been put forward in support. I reject the same. 48.I have also considered the Inaction Defence. It is vague, unparticularised as to P’s alleged knowledge of the 2nd Will, contrived, and not supported by any evidence or legal principles. I accept in any event P’s evidence that she only became aware of the 2nd Will after Father’s death. I reject the Inaction Defence. 49.Whilst I have specifically mentioned the TPS Right Defence and the Inaction Defence above, I record that I have considered Madam Ip’s pleaded case in its entirety to see whether P has proved her case. Having considered all matters holistically, and applying the applicable legal principles, I find that P has proved her case on the basis of common intention constructive trust. J. Relief 50.The main relief is sought in §(1) of the prayer that Yip Choi Koon holds the Property on trust for and on behalf of P. 51.For the reason set out above, this Court makes a Declaration that Yip Choi Koon had during his life time been holding the Property on trust for and on behalf of Ip Muk Lan, and that upon his death, the estate of Yip Choi Koon holds the Property on trust for and on behalf of Ip Muk Lan. 52.§(2) is further or alternative to §(1), which I do not see any need to address given the Declaration made above. 53.§(3) seeks “All the necessary orders and/or directions for the transfer and/or conveyance of the Property to [P]”. Mr Pang has not in his submissions specified any further order or direction which he invites this Court to make. I at this stage make none. I will however grant P liberty to apply. 54.§(4) of the prayer is in the alternative, which I again do not see any need to address given the Declaration made above. K. Costs 55.On costs, I order that the costs of the action, including any costs reserved, shall be borne Father’s Estate, to be taxed if not agreed, with, which Mr Pang accepted, certificate for one counsel only.
Mr Ronald Pang and Ms Aria Cheung, instructed by KCL & Partners, for the Plaintiff The Defendant was not represented, did not appear [1] [C/83-87]. [2] Mainly [C/1-3, 164-210], and [D/7-9]. [3] [C/1]. [4] [C/18-19]. [5] [C/16-17]. [6] §14(p) of the Defence. [7] [C/36]. [8] [C/80-81] for management fees, [C/88-98] for Towngas, [C/99-111] for electricity, [C/112-126] for Rates and Government Rent, and [C/127-134] for water. [9] [B/30]. |
Cases cited in this judgment